ConCourt split on school subsidy case

2013-04-26 08:43

The Constitutional Court has delivered judgment which saw the court deeply split over how a case against a provincial government department should have been decided.

The majority judgment, penned by Justice Edwin Cameron, and supported by Deputy Chief Justice Dikgang Moseneke and justices Johan Froneman, Sisi Khampepe, Thembile Skweyiya and Zak Yacoob, narrowly saw the Constitutional Court make an order forcing the KwaZulu-Natal department of education to partly pay subsidies to a group of private schools.

Justice Raymond Zondo, supported by Chief Justice Mogoeng Mogoeng and Justice Chris Jafta, penned a judgment in which he said he would not have granted leave to appeal to the KwaZulu-Natal Joint Liaison Committee, representing the private schools.

The strongly worded minority judgment notes the main judgment “unduly leans over to make a case for the (KwaZulu-Natal Joint Liaison Committee) which (is) neither made in its papers nor asked for and I find this extremely unfair to the respondents (government departments)”.

The KwaZulu-Natal Joint Liaison Committee (KJLC), a body which represents private schools, brought the case to court after a circular was issued in 2008 in which approximate funding levels were set out, which the private schools used to draw up their budgets.

The promised subsidies were slashed by as much as 30% the following year, when the department lost funding.

The KLJC argued in the ConCourt that the circular, which promised the initial funding levels, constituted a contractual agreement between the schools and government.

The department of education argued leave to appeal to the Constitutional Court should not have been granted, because there was no contractual relationship and the case should have been made out in terms of public law.

The Centre for Child Law, which was admitted as a friend of the court, submitted argument which said the right to education extended to children at both public and private schools and that “basic education comes under threat when the state reduces or does not pay promised subsidies”.

It argued that a “legitimate expectation” had been created by the department in that there had been both a promise made to pay out money and a past practice of doing so.

Cameron, in his majority judgment, ruled that “even though the 2008 notice may not have given rise to an enforceable agreement between the applicant and the respondents, it constituted a publicly promulgated promise to pay”.

This was based on public law and not on contractual law, which was the sole case argued by the KJLC.

The majority of the court ruled that “it seems both legally and constitutionally unconscionable that, more than a month after the first tranche of the promised subsidy had already fallen due ... the Department should peremptorily reduce it”.

The judgment also stated that “this is by no means a radical intervention. Accountability and rationality demand that government prepare its budgets to meet payment deadlines.”

The department was ordered to pay at least the first payments that had become due.

But, in the minority judgment. Zondo writes that “on the case that the (KJLC) brought the respondents to Court to answer, which is the only case that we are entitled to decide, the applicant has no case whatsoever and its application for leave to appeal should be dismissed”.

The minority judgment states that “it is not permissible for the main judgment to rely on public law to support its finding in favour of the applicant” because that case was not argued by the applicants.

The order states this was a deviation from the established practices in courts in South Africa.

Such an order, it argued, “may cause uncertainty and confusion whether other courts must still follow such practices. There is no warrant for the creation of such a situation”.

Zondo states the amounts the department had been ordered to pay were vague and uncertain and that there was a “real problem” with how it could be executed.

Froneman, who agreed with the majority judgment, dissented in a further judgment, saying that the entire year’s payment should have been ordered, and also that this could have been squared with law of contract.

Nkabinde, in a minority judgment, writes that she would have granted leave to appeal, but would not have found in favour of the applicant.

» Read the full judgment:

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