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REPUBLIC OF SOUTH AFRICA

HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO 2011/46091

DATE: 24 JULY 2014

CENTRE FOR CHILD LAW.....................................................APPLICANT FOR LEAVE TO APPEAL

And

THE GOVERNING BODY OF HOERSKOOL FOCHVILLE...................................FIRST APPLICANT

HOERSKOOL FOCHVILLE..............................................................................SECOND APPLICANT

IN RE:

THE GOVERNING BODY OF HOERSKOOL FOCHVILLE..................................FIRST APPLICANT

HOERSKOOL FOCHVILLE.............................................................................SECOND APPLICANT

AND

CENTRE FOR CHILD LAW.........................................................................................RESPONDENT

IN RE:

THE GOVERNING BODY OF HOERSKOOL FOCHVILLE...............................FIRST APPLICANT

HOERSKOOL FOCHVILLE...........................................................................SECOND APPLICANT

THE MEC, EDUCATION, GAUTENG..............................................................FIRST RESPONDENT

THE HOD, EDUCATION, GAUTENG.........................................................SECOND RESPONDENT

PETER SKOSANA...........................................................................................THIRD RESPONDENT

JUDITH N DUBE.........................................................................................FOURTH RESPONDENT

MRS M BILLITANE N O AND

52 OTHER PERSONS.......................................................FIFTH TO FIFTY THIRD RESPONDENTS

GREENSIDE HIGH SCHOOL GOVERNING BODY AMICUS CURIAE

JUDGMENT ON APPLICATION FOR LEAVE TO APPEAL

Headnote:

Application for leave to appeal in respect of an interlocutory application in respect of an application for leave to intervene in respect of an application that had become settled – all proceedings extinguished – notwithstanding such considerations a live issue remaining – leave granted.

SUTHERLAND J:

1. On 19 November 2013 an order was granted against CLL (the applicant for leave to appeal) to comply with a Rule 35(12) notice in respect of an application brought by CLL to intervene in litigation between the School (the first applicant in the main application) and the Gauteng Department of Education (the respondents in the main application).

2. The order was not complied with. Instead an application for leave to appeal was served, suspending the effect of the order. On 18 June 2014 the litigation between the School and the Gauteng Department of Education became settled by way of an agreement. This agreement has resolved the substantive dispute between those parties.

3. The details are irrelevant to the questions to be addressed in this application for leave to appeal, save to record that both the School and the Department of Education have agreed to a course of action that will take several months, if not years, to be completed. Both these parties have incurred obligations and acquired rights under the agreement.

4. It is plain that the lis between these parties has been extinguished by the agreement because the agreement is not contingent upon the performance by one or other party fulfilling its obligations.

5. Clauses 23 and 24 of the agreement regulate the rights of a party in the event of breach by the other. The model of dispute resolution chosen is that the parties may agree to arbitrate any dispute arising from the terms of the agreement and in the absence of such agreement, as an alternative, any party may apply to have the agreement made an order of court and ‘seek any other appropriate relief’. Further, clause 25 regulates liability for various costs orders as between these parties.

6. CLL was not a party to the litigation between the School and the Department of Education because its application to intervene had never been argued, let alone granted, and despite CLL being labelled as ‘first intervening party’ in the preamble of the agreement and being a signatory to the agreement.

7. No rights or obligations are conferred on CLL by the terms of the agreement save as alluded to in clause 26. Clause 4 correctly recorded the status of CLL as an applicant to intervene. The only other reference to CLL in the agreement is in clause 26 which addressed the question of costs in the Rule 35(12) order referred to above. Clause 26 records the status quo, including the pending application to appeal against that order. An agreement is struck between CLL and the School that each will bear whatever costs they have incurred, except for the costs order against CLL in the Rule 35(12) and further records that the liability to actually pay that costs order is ‘subject to the outcome of any appeal’. What these other costs, if any, may encompass is not apparent from the agreement.

8. Self-evidently the immediate issue that arises, prior to entertaining an application for leave to appeal in the Rule 35(12) application, is the implication of the litigation between the School and the Department of Education having being settled and their lis being extinguished.

9. Mr Brickhill, for CLL, endeavoured to contend that the lis could be revived and was not extinguished. This thesis is incorrect. The import of the agreement allows no space for reversion to the status quo ante the settlement. Without reservation it can safely be stated that the “main” proceedings between the School and the Department of Education is no more; it is as dead as the proverbial parrot and shall never rise again.

10. The inescapable consequence is that the application to intervene has no longer anything in which to intervene and because of its interlocutory and parasitic relationship to the ‘main’ proceedings it too has evaporated. In turn, the Rule 35(12) application by the School against CLL likewise has become moot as it cannot be enforced and is now utterly irrelevant.

11. Mr Brickhill suggested that the School had somehow taken up the stance that it might revive the proceedings, and the tail end phrase in clause 24, cited above - ie ‘seek any other appropriate relief’ supported his contention that there was room for such an eventuality. Mr Kemack for the School, categorically renounced any such intention. In my view, regardless of the view of the School, there is no space whatsoever for such an eventuality for the reasons given above. In short, the whole of the litigation is dead.

12. The result of these circumstances is that the Rule 35(12) order against CLL cannot be enforced. Accordingly, the provisions of Section 16(2)(a) of the Superior Courts Act 10 of 2013 (the successor provisions to Section 21A of the Supreme Court Act 59 of 1959) applies. That sub-section reads thus:

“(2) (a)(i) When at the hearing of an appeal the issues are of such a nature that the decision sought will have no practical effect or result, the appeal may be

dismissed on this ground alone.

(ii) Save under exceptional circumstances, the question whether the decision would have no practical effect or result is to be determined without reference to any consideration of costs.”

13. It is appropriate to consider the provisions of Section 16(2)(a) with the test for the grant of leave to appeal set out in the provisions of Section 17(1) of the Superior Courts Act which reads thus:

“(1) Leave to appeal may only be given where the judge or judges concerned are of the opinion that-(a) (i) the appeal would have a reasonable prospect of success; or

(ii) there is some other compelling reason why the appeal should be heard, including conflicting judgments on the matter under consideration;

(b)the decision sought on appeal does not fall within the ambit of section 16 (2) (a); and

(c) where the decision sought to be appealed does not dispose of all of the issues in the case, the appeal would lead to a just and prompt resolution of the real issues between the parties.”

14. Mr Brickhill contended that mere mootness of an issue is not an insuperable obstacle to the grant of leave. He relied on the example in BUTHELEZI AND ANOTHER v MINISTER OF HOME AFFAIRS AND OTHERS 2013 (3) SA 325 (SCA), in which the issue was the failure of the State to grant the Dalai Lama an entry visa in consequence of which his visit was called off. A quo, an application to compel the minister to grant a visa was dismissed as having no practical effect, but on appeal, Nugent JA remarked :

“[3] Courts will generally decline to entertain litigation in which there is no live or existing controversy. That is principally for the benefit of the court so as to avoid it being called to pronounce upon abstract propositions of law that would amount to no more than advisory opinions. The principle so far as appeals are concerned is captured in s 21A of the Supreme Court Act 59 of 1959, which allows an appeal to be dismissed on the grounds alone that the judgment or order sought will have no practical effect or result.

[4] The application was dismissed by the court below on the grounds that there was no live controversy. That was rightly not pressed in argument before us. Whether the authorities had acted lawfully was and remains a live issue. That they would not be called upon to reconsider their conduct if they had acted unlawfully goes only to whether a decision on that question would have practical effect. In view of the appellants' intentions it cannot be said that it will not.

[5] It is not necessary to relate the relief that was sought in the court below. Before us counsel for the appellants confined themselves to three declarations, each of which was sought as an alternative to the one preceding it. First, they asked us to declare that the respondents had been obliged to issue a visa. Secondly, to declare that visas had been refused. And thirdly, to declare that the 'conduct' of the respondents was unlawful. When probed on what 'conduct' specifically was said to have been unlawful counsel could offer no more than that the Minister of Home Affairs had unreasonably delayed her decision, and I have approached the matter on that basis.”

15. This decision does not support the idea that a court will override the lack of a practical result to hear an interesting legal argument; indeed it affirms the need for a live issue to be present. Nor does the further decision invoked, PHEKO AND OTHERS v EKURHULENI METROPOLITAN MUNCIPALITY 2012 (2) SA 398 at [32] dealing with the implications of an eviction after the people had been removed from the land they had occupied, support the contention. The court there held that a live issue remained in the form of the contested unlawfulness of the eviction and on that basis heard the appeal.

16. The upshot in my view is that a practical utility of a judgment on appeal is a requirement. The practical utility however, is not limited to the parochial concerns of the original litigants nor to the particular event which sparked the litigation. There may be practical utility at the level of principle that is relevant to the decisions to be made by or for other litigants.

17. Accordingly, what is necessary is an enquiry into whether or not the issues that CLL would have revisited on appeal measure up to that requirement. An examination of the grounds put up by CLL are threefold.

18. The first ground relates to a finding about the privileged status of documents and the second ground relates to a waiver of privilege. Both these findings were bound up with a finding about the existence and character of the legal nexus, if any, which can be established between the children and CLL. All of these findings were not made upon any novel legal principle and are largely factual findings upon established legal principle. It is not apparent that any value could lie in the court of appeal being called upon to pronounce on these issues. It is true that an obiter remark alluded to the question of prior certification as a requirement if a particular legal route was selected by a public interest litigant, but no decision made turned on that point. The fact that the observations in MUKADDAM V PIONEER FOODS (PTY) LTD 2013 (5) SA 89 (CC) at [41] seeded the notion that perhaps prior certification is unnecessary in contradistinction to the decision in CHILDRENS’ RESOURCE CENTRE TRUST V PIONEER FOODS 2013 (21) SA 213 (SCA) at [17] – [23], upon which authority the initial statement was made about the need for prior certification, does not really set up a basis to contend a live issue exists on this point. On these issues, it seems me, it is not obvious that a useful purpose might be served by a judgment on appeal.

19. The true issues of importance that might have a reach beyond this particular case are the subject matter of the third ground. The CLL wants to go on appeal to overcome any strictures it may in future face if it again chooses to procure the testimony of children on conditions of anonymity and seek to present such data as hearsay to a court and to secure, if possible, a judgment that will confer on it a special status qua litigant or litigator on behalf of children. It is however not argued on behalf of CLL that, in the absence of such a procedure, the role of CLL as a public interest litigator will be stifled. The remarks in CHILDREN’S INSTITUTE v PRESIDING OFFICER, KRUGERSDORP 2013 (2) SA 620 (CC) at [11] – [16] are invoked in this regard. That case addressed the interpretation of Rule 16A of the Uniform Rules in relation to whether or not an Amicus Curiae could adduce further evidence. By the time of the hearing, the case had been completed without the evidence in contemplation having been led. The Court nevertheless held:

“[11] The matter involves the proper interpretation of the nature and ambit of the high courts' powers under rule 16A in relation to the reception of evidence by an amicus. Rule 16A itself points to the role that amici play in constitutional litigation by referring to 'any interested party in a constitutional issue'. This matter also implicates the proper interpretation and application of s 173 of the Constitution. These are constitutional issues of substance.

[12] It is in the interests of justice to grant leave to appeal, given the significant role played by amici in the administration of justice, and the restrictive effect of the high court judgment on the ability of amici to adduce evidence and render appreciable assistance to courts in effectively administering justice.

[13] Furthermore, it is important to address two preliminary matters, namely, the mootness and appealability of an interlocutory order. I am satisfied that neither serves as a hurdle to this court's ability to hear this matter.

[14] On the question of mootness, even though the underlying case concerning SS has been resolved without the assistance of additional evidence from the Children's Institute, it cannot be said that the issue is moot with regard to other amici seeking to adduce evidence in the high court. Since the decision of the high court was made by a full bench, it will be highly persuasive to judges hearing an application of this sort and is binding on judges in the South Gauteng High Court, Johannesburg. Under these circumstances, the potential limitation on amici's ability to adduce evidence, and therefore render effective assistance to courts in the future, is significantly crippling. This is further exacerbated by the fact that the Supreme Court of Appeal refused leave to appeal. This means that the high court's decision stands and is binding.

[15] Counsel for the Children's Institute emphasised, in argument, that as a result of the high court judgment, amici have been hesitant, on the strength of this decision, to apply for leave to adduce evidence. Given the important role played by amici curiae in advocating on behalf of vulnerable groups, clarity on the question of their ability to adduce evidence is warranted. This court has found that amici curiae have made and continue to make an invaluable contribution to its jurisprudence and that their participation in litigation is to be welcomed and encouraged. It is patent that a decision on this appeal will continue to have an important and far-reaching practical effect.

[16] On the question of appealability, this too presents no hurdle to the determination of this application. As the Children's Institute points out, refusing an amicus leave to adduce evidence will generally be an interlocutory order. Given the importance of the constitutional issues to be determined in this matter and because the order is final in effect, it is in the interests of justice that we grant leave to appeal against this interlocutory order.”

20. Implicit in the contention advanced in support of leave to appeal is that the procedure of procuring hearsay evidence from children, as employed by CLL in this case, might be regarded as an issue similar to the right of an amicus to lead evidence in the CHILDRENS’ INSTITUTE CASE; ie both are issues of a procedural nature which are mechanisms employed to facilitate the ventilation of the case in question. The critical issue in this matter, might be more specifically characterised as the liability to comply with a Rule 35(12) demand when a party seeks to employ such a procedure (ie the procure of evidence in statements on grounds of anonymity for use in proceedings) on the grounds of an immunity from compliance with the Rules of Court which, based, so it is argued, by the need to protect childrens’ interests. The gravamen on the ground articulated in the notice of application for leave to appeal is a wrong exercise of a judicial discretion, which is axiomatically, fact-specific. However, the thesis anterior to the argument of CLL is in essence that there ought to be a principle of law that confers paramountcy to childrens’ rights regardless of any other consideration. In my view, that thesis, on its own terms, probably overreaches itself, over and above the factual question of whether or not the rights of children were violated in the present case.

21. Nevertheless, the contention that it is appropriate to obtain clarity about the scope of intervention that public interest agencies might employ when seeking to assert the rights or alleged rights of vulnerable classes of people seems correct. The live issue, in my view resides in this consideration.

22. Independently of these considerations, an ancillary ground of appeal is against the costs order. The general rule is that to allow an appeal on costs alone would be rare. (TSOSANE V MINISTER OF PRISONS 1982 (3) SA 1075 (C )) Are there circumstances in this matter that could warrant a perspective that might trump the usual rule?

23. The proposition which CLL wants the court of appeal to consider is the propriety of granting costs against CLL, given its role as a public interest litigant seeking to assert constitutional rights, on the footing of the dicta in BIOWATCH TRUST v REGISTRAR, GENETIC RESOURCES 2009 (6) SA 232 ( CC) at [22] – [23]. In that decision the court asserted the approach initially articulated in AFFORDABLE MEDICINES TRUST & OTHERS v MINISTER OF HEALTH & OTHERS [2005] ZACC 3; 2006 (3) SA 247 (CC) that to avoid a chilling effect on the prospect of litigation in matters of constitutional importance, where the State loses it should pay but when the State wins no costs order should be made. The notion of avoiding a chill was again articulated more broadly in BOTHMA v ELS 2010 (2) SA 622 (CC) at [91] – [93] to encompass private litigants on both sides, again, upon the rationale of diminishing the risk that worthy causes might not be pursued.

24. The Rule 35(12) application is of course an interlocutory aspect, not the core issue which motivated the application for intervention. However, In PHILLIPS v SA RESERVE BANK 2013 (6) SA 450 (SCA) AT [56] – [60] it was stated that the approach described above ought to extend to ancillary points and not be confined to the merits of the substantive case put up.

25. Upon such basis it is contended that the School, qua organ of State, should not have been regarded as being on an equal footing, as to financial resources, with CLL. The financial resources of the School was, of course, not the only consideration for the order which was made. The merits and demerits of the application for the Rule 35(12) order and the merits and demerits of the resistance were also factors weighed. Nevertheless, in making the costs order, these considerations were not considered, and it must be correct that another courts may upon weighing them consider that a different costs order would be appropriate.

26. Accordingly, the application for leave to appeal ought to be granted.

27. An order is made as follows:

27.1. The application for leave to appeal is granted.

27.2. The costs shall be costs in the appeal.

Roland Sutherland

Judge of the High Court of South Africa

Gauteng Local Division

Hearing: 18 July 2014

Judgment: 24 July 2014

For applicant for leave to appeal:

Adv J Brickhill

Instructed by Legal Resources Centre

Ref M Mnguni

For the Respondent:

Adv A Kemack SC,

with him Adv C Dreyer

instructed by Erasmus De Klerk Inc

Ref J Erasmus

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