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IN THE HIGH COURT OF SOUTH AFRICA /ES

(GAUTENG DIVISION, PRETORIA)

CASE NO: 46003/2014

DATE:11/11/2015

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

REVISED

 

IN THE MATTER BETWEEN

 

SIZANI PRIMARY SCHOOL                                                                                         APPLICANT

AND

MEMBER OF THE EXECUTIVE COUNCIL

DEPARTMENT OF EDUCATION,

MPUMALANGA PROVINCE                                                                               1^st RESPONDENT

HEAD OF DEPARTMENT,

DEPARTMENT OF EDUCATION

MPUMALANGA PROVINCE                                                                              2^nd RESPONDENT

Ms N E MAHLANGU                                                                                            3^rd RESPONDENT

IVY MOHAPI                                                                                                         4^th RESPONDENT

 

JUDGMENT

 

KGANYAGO, AJ

 

[1] The applicant has brought an application seeking an order in the following terms:

1.1.Declaring that the respondents' failure to comply with the order of this honourable court granted on 8 August 2014, constitutes an ongoing violation of their duties under the Constitution of the Republic of South Africa 1996

1.2.Ordering the respondents:

1.2.1. to take all the administrative and other steps necessary to ensure that the respondents comply with the aforementioned prior order within twenty days as from the date of service of the further order granted herein; and

1.2.2. to deliver a report in writing to the Registrar of this honourable court and to the applicant's attorney within twenty days as from the date of service of the further order granted herein, of the manner and extent of their compliance with the order in paragraph 1.2.1 above.

1.3.Directing that if the respondents fail to comply with the orders referred to in paragraph 1.2.2 above, the applicant is given leave to supplement its notice of motion and founding affidavit and to enrol this application on reasonable notice to the respondents, for a further hearing on and determination of such further relief and complaints of contempt of court as the applicant might then seek.

1.4.Directing that the State Attorney ensure that a copy of this order is handed personally to the first and second respondents and to report to the Registrar of this honourable court within twenty days as from service of the further order granted herein that this has been done.

[2] The first application under the same case number was heard on 8 August 2014 by the Honourable Justice Lazarus (AJ), which order was granted in the following terms:

2.1.that the administrative action of the Department of Education, Mpumalanga Province, in unilaterally placing the third respondent in the vacant post of the Deputy Principal at the applicant, alternatively the administrative action of the Department of Education, Mpumalanga Province in transferring the third respondent to the applicant, be reviewed and set aside;

2.2.that the second respondent cause the applicant's Deputy Principal post to be re-advertised in terms of section 6 of the Employment of Educators Act 76 of 1998, read together with the personnel administration measures promulgated in terms of the said Act and take all necessary steps to fill the said post following due process of law;

2.3.that the first and/or second respondent is interdicted and restrained from victimising, bullying and/or intimidating the fourth respondent as Principal of the applicant;

2.4.that the first and second respondents pay the costs of the application jointly and severally the one paying the other to be absolved.

[3] The respondents did not comply with the order of 8 August 2014, hence the present application by the applicant. The respondents in their answering affidavit states that there is no merit in the applicant's case since the court order of 8 August 2014 could not in law have been made and consequently the said order stands to be declared null and void and set aside. The respondents further state that they will deal with this aspect in detail in their counter-application. However, they have failed to serve and file any counter-application.

[4] It was submitted by counsel for the respondents that the order of & August 2014 leaves itself to be interpreted by the parties as to whether the decision of the Department of Education is reviewed and set aside or such decision is still to be reviewed and set aside. Counsel for the respondents further submit that the reading of the order as stated in paragraph 2.1 above, is to the effect that the decision of the Department of Education is still to be reviewed and set aside.

[5] However, counsel for the respondents do concede that an order of court must be obeyed until it is set aside by a competent court, and that all court orders must be obeyed even if they are wrong. It is common cause that the order of 8 August 2014 was never set aside by a competent court.

[6] The relief sought by the applicant is that of a final interdict in the form of a mandamus. A mandamus is usually an appropriate order to compel the performance of a specific statutory duty or to comply with a constitutional obligation.

[7] In the case of MEC, Department of Welfare, Eastern Cape v Kate [2006] ZASCA 49; 2006 (4) SA 478 (SCA) at 492E-H and 493A the court stated:

"It goes without saying that a public functionary who fails to faljil an obligation that is imposed upon him or her by law is open to proceedings for a mandamus compelling him or her to do so. That remedy lies against the functionary upon whom the statute imposes the obligation, and not against the principal government. If Fayiya has been construed as meaning that the remedy lies against the political head of government department, as suggested by the court below, then that construction is clearly not correct. The remarks that were made in Fayiya related to claims that lie against the state, for which the political head of the relevant department may, for convenience, be cited nominally in terms of s 2 of the State Liability Act 20 of 1957, though it is well established that the government might be cited instead Moreover, there ought to be no doubt that a public official who is ordered by a court to do or to refrain from doing a particular act, and/ails to do so, is liable to be committed for contempt, in accordance with ordinary principles, and there is nothing in Fayiya that suggest the contrary.

The remedy of mandamus thus has the capacity to be effective where there is a breach or a threatened breach by a public official of a duty that is imposed upon him or her by a statute or by the Constitution and, in most cases, that ought to be sufficient without an additional remedy in damages."

[8] In the case of Minister a/ Health v Treatment Action Campaign (no2) [2002] ZACC 15; 2002 (5) SA 721 CC at paragraph [113] the court stated:

"South African courts have a wide range of powers at their disposal to ensure that the Constitution is upheld These include mandatory and structural interdicts. How they should exercise those powers depends on the circumstances of each particular case.  Here due regard must be paid to the notes of the legislature and executive in a democracy. What must be made clear, however, is that when it is appropriate to do so, courts may and, if need be, must use their wide powers to make orders that affect policy as well as legislation."

[9]   It is not in dispute that the first and second respondents did not comply with the order of Lazarus AJ issued on 8 August 2014. It is not in dispute that the order  of Lazarus AJ has not been set aside by a competent court. Counsel for the respondents has correctly pointed out that an order of court must be obeyed until it is set aside by a competent court and that all court orders must be obeyed even if they are wrong.

[10] Counsel for the respondents has submitted that paragraph 1 of the court order lacks clarity in its wording and is therefore incapable of enforcement. According to counsel for the respondents, paragraph 1 of the order leaves itself to be interpreted by the parties as to whether the decision of the Department of Education is reviewed and set aside or such decision is still to be set aside. Counsel for the respondents argues that the reading of the order is to the effect that the decision of the Department of Education is still to be reviewed and set aside. I do not agree with this argument.

[11] Paragraph 1 of the order read as follows: " the administrative action of the Department of Education, Mpumalanga Province in transferring the third respondent to the applicant be reviewed and set aside". Paragraph 1 cannot be read in isolation to paragraph 2 of the order. Paragraph 2 of the order read as follows: "That the second respondent cause the applicant's Deputy Principal post to be re-advertised in terms of section 6 of the Employment of Educators Act 76 of 1998, read together with the personnel administration measures promulgated in terms of the said Act and take all necessary steps to fill the said post due process of law".

[12] In my view if the reading of the order is to the effect that the decision of the Department of Education is still to be reviewed and set aside, there will be no need for paragraph 2 of the order. Paragraph 2 of the order puts the matter to rest, confirming that indeed the decision of the Department of Education, Mpumalanga Province in transferring the third respondent to the applicant has been reviewed and set aside. In my view the use of the word "be" by the learned Judge, is a question of style of writing and does not in any way render the order to lack clarity or to be vague.

[13] In the unreported  case of Euro Blitz 21 (Pty) Ltd and Another v Secena Aircraft Investment CC (102/2014) [2015] ZASCA 21 (19 March 2015) at paragraph [6] the court stated:

"It is trite law that the rules applicable to the interpretation of documents are applicable to the interpretation of a judgment or order of court. The test in this regard is well established  If there is no uncertainty in the meaning of the word the court's intention must be established primarily from the language of the judgment or order as construed according to the usual, well-known rules of interpretation of documents. If however, uncertainty arises from the judgment or order, regard may be had to extrinsic and the surrounding circumstances relevant to the granting of such judgment or order such as the evidence, both oral and documentary, that was adduced before the trial and submissions made."

[14] In my view even if one can be tempted to interpret paragraph 1 of the order to the effect that the decision is still to be reviewed, paragraph 2 of the order will clear any uncertainty that might be existing. Therefore, in my view the submission by the respondents that the reading of the order is to the effect that the decision of the Department of Education is still to be reviewed and set aside has no merit.

[15] I agree with counsel for the applicant that since the court order has not been rescinded, reviewed or appealed against, the court order stand until such time it is set aside, and should therefore be adhered to. The first and second respondents have failed to submit any justifiable reasons why the court order was not adhered to.

[16] In the case of Meadow Glen Home Owners v Tshwane City Metropolitan Municipality and Another 2015 2 SA 413 (SCA) at 428C-F the court stated:

"Both this court and the Constitutional court have stressed the need for courts to be creative in framing remedies to address and resolve complex social problems, especially those that arise in the area of socio-economic rights. It is necessary to add that when doing so in this type of situation courts must also consider how they are to deal with failures to implement orders; the inevitable struggle to find adequate resources; inadequate or incompetent staffing and other administration issues, problems of implementation not foreseen by the parties' lawyers in formulating the order; and the myriad other issues that may arise with orders, the operation and implementation of which will occur over a substantial period of time in a fluid situation. Contempt of court is a blunt instrument to deal with these issues and courts should look to orders that secure ongoing oversight of the implementation of the order. "

[17] The order of Lazarus AJ was clear as to what was expected of the first and second respondents, however they blatantly failed to comply with it. Courts have a particular duty to ensure that, within the bounds of the Constitution, effective relief be granted for the infringement of any of the rights entrenched.   Without effective remedies for breach, the values underlying and the right entrenched in the Constitution cannot properly be upheld or enhanced. The courts have a particular responsibility and are obliged to shape innovative remedies if needs be to achieve this goal.

[18] Under the circumstances I find that the respondents have failed to advance justifiable reasons why they failed to comply with the order of Lazarus AJ. The respondents' conduct amounts to contempt. The applicant does not seek at the outset that the respondents' conduct of contempt be punished by this court. However, the applicant seeks certain steps to be ordered on a structured basis in respect whereof the respondents should fulfil its obligations which was already canvassed and detailed in the previous application which led to the order of 8 August 2014.

[19] That in my view is the spirit as enunciated in the Meadow Home Owners case supra, where it was held that courts should look to orders that secure ongoing oversight of the implementation of the order. I am satisfied that the applicant is entitled to the relief sought.

[20] In the result I make the following order:

20.1. It is declared that the respondents' failure to comply with the order of this honourable court granted on 8 August 2014 in case 46003/2014, constitute an ongoing violation of  their duties under the Constitution of the Republic of South Africa 1996.

20.2. The respondents are to take all the administrative and other steps necessary to ensure that they comply with the aforementioned  order within twenty days as from the date of service of this order.

20.3. The respondents are to deliver a report in writing to the Registrar of this honourable court and to the applicant's attorneys within twenty days as from the date of this order, of the manner and extent of their compliance with the order in paragraph 20.2 above.

20.4. Should the respondents fail to comply with the orders referred to in paragraphs 20.2 and 20.3 above, the applicant is given leave to supplement its notice of motion and founding affidavit and to enrol this application on reasonable notice to the respondents, for a further hearing on and determination of such further relief and complaints of contempt of court as the applicant might then seek.

20.5. The State Attorney is directed to ensure that a copy of this order is handed personally to the first and second respondents and to report to the Registrar of this honourable court within twenty days as from date of service of this order that this has been done.

20.6. The first and second respondents to pay the costs of this application jointly and severally the one paying the other to be absolved.

 

46003/2014

______________________

M F KGANYAGO

ACTING JUDGE OF THE HIGH COURT

 

 

HEARD ON: 08 OCTOBER 2015

FOR THE APPLICANT: ADV. J DE BEER

INSTRUCTED BY: MICHAEL RANDELL ATTORNEYS

c/o FRIEDLAND HART SOLOMON & NICOLSON

FOR THE 2^ND & 3^RD RESPONDENTS: ADV. DD MOSOMA

INSTRUCTED BY: THE STATE ATTONEYS, PRETORIA

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