SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy	

REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO DIVISION, POLOKWANE)

CASE NO: 68/2023
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO THE JUDGES: YES/NO
(3) REVISED: YES/NO
SIGNATURE:
DATE: 20 MARCH 2023

In the matter between:

THE BOARD OF GOVERNORS OF THE	FIRST APPLICANT MITCHELL HOUSE SCHOOL

THE MITCHELL HOUSE	SECOND APPLICANT

STEPHEN LOWRY HEAD MASTER OF	THIRD APPLICANT THE MITCHELL HOUSE

And

T[...] K[...] M[...]	RESPONDENT
On behalf of K[...] K[...] and Y[...] K[...] K[...] M[...]

IN RE:

T[...] K[...] M[...]	APPLICANT
On behalf of K[...] K[...] and Y[...] K[...] K[...] M[...]

and

THE BOARD OF GOVERNORS OF THE	FIRST RESPONDENT MITCHELL HOUSE SCHOOL

THE MITCHELL HOUSE	SECOND RESPONDENT

STEPHEN LOWRY HEAD MASTER OF	THIRD RESPONDENT THE MITCHELL HOUSE

GODFRIED KRUGER	FOURTH RESPONDENT

JUDGMENT

MDHLULI AJ

[1]	Children are the world’s most valuable resources and its best hope for the future. This quote ran through the judgement which leave is sought on and will be running through the spirit of this judgment. Children learn more from what you are than what you teach. The latter rings very true in that the Applicants before me are primarily responsible for teaching the children in the area of jurisdiction of this court. Our courts also in the judgments we give communicate who and/or what justice is.

[2]	This is an application for leave to appeal to the full bench of this Court or to the Supreme Court of Appeal in terms of Rule 49(1) (b) against the whole of my interim order delivered during the urgent court hearing of this matter on the 16th January 2023. The following are the grounds of fact and law the Applicants submitted I erred on:

2.1	By considering and entertaining the application by Mr. T[...] K[...] M[...], on behalf of his two minor children, on 16 January 2023 and brought under case number 68/2023, notwithstanding the fact that the Honourable Judge Muller J already dismissed the application on 11 January 2023, by virtue of the order by his Lordship, the Honourable Judge Muller J, on 11 January 2023 when the urgent application under case number 68/2023 was heard by the Honourable Judge Muller J;

2.2	By considering and entertaining the application by Mr. T[...] K[...] M[...], on behalf of his two minor children, on 16 January 2023 and brought under case number 68/2023, notwithstanding the fact that Mr. T[...] K[...] M[...], on or about 13 January 2023 already delivered an application for leave to appeal against the order and whole judgement of his Lordship, the honourable Judge Muller J, of 11 January 2023 in this matter under case number 68/2023, by virtue of which the aforementioned order by the Honourable Judge Muller J is still subject to appeal, alternatively application for leave to appeal as aforesaid;

2.3	By effectively interpreting the under case number 6883/2021, and specifically in such a way the above Honourable Court on 23 September 2021, under case number 6883/2021, ordered Applicants (Mitchell House School and others) to have the minor children in question, return to school pending the outcome of Part B of the application under case number 6883/2021, whereas it was in fact not so ordered by the Honourable Judge Muller J on 23 September 2021;

2.4	By effectively varying and/or amending the court order of 23 September 2021 under case number 6883/2021, which was handed down by the Honourable Judge Muller J;

2.5	In not taking into consideration the effect of the Honourable Court’s judgement of 16 January 2023 and further by not considering the fact that Mr. T[...] K[...] M[...], in his capacity as the biological parent of the children, entered into new enrolment contracts with the school (Mitchell Preparatory School) on 12 January 2022 therefore after the judgement of 23 September 2021 under case number 6883/2021;

2.6	In not taking into consideration that the enrolment entered into on 12 January 2022 was duly cancelled during 2022 already;

2.7	In not taking into consideration the fact that Mitchell House Preparatory School, as far back as 22 August 2022. After considering the written representations by Mr. T[...] K[...] M[...], not only cancelled the agreement between the aforementioned school and the parents of the minor children, but also in writing informed the parents that the last term of the minor children’s education with the aforementioned school would be the last term of the 2022 academic year;

2.8	All the relevant facts, as contained in the papers filed under case number 68/2023 and 6883/2021 when considering the provisions of Section 28(2) of the Constitution, Act 108 of 1996, read with Section 29(3)(c) of the Constitution;

2.9	In not taking into consideration the fact that Mitchell House Preparatory School is a private school and further that the relationship between the aforementioned school and parents who enrols children with the school is of a commercial nature and further that the aforementioned relationship is governed by inter alia enrolment contracts to be entered into between the school and a parent or parents; and

2.10	In finding that the parties before her Ladyship on 16 January 2023, agreed that the order of 23 September 2021 under case number 6883/2021 by the Honourable Judge Muller J was that the minor children, mentioned in the aforementioned order, was to return to school pending the finalization of Part B of the application under case number 6883/2021,whereas the parties and counsels for the respective parties did in fact not agree in respect of the interpretation of the aforementioned court order.

[3]	Section 17(1) of the Superior Courts Act regulates applications for leave to appeal and provides: “(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 the issues in the case, the appeal would lead to a just and prompt resolution of the real issues between the parties.”

[4]	The test in an application for leave to appeal prior to the Superior Courts Act was whether there were reasonable prospects that another court may come to a different conclusion Section 17(1) has raised the test, as Bertelsmann J, correctly pointed out in The Mont Chevaux Trust v Tina Goosen & 18 Others “It is clear that the threshold for granting leave to appeal against a judgment of a High Court has been raised in the new Act. The former test whether leave to appeal should be granted was a reasonable prospect that another court might come to a different conclusion, see Van Heerden v Cornwright & Others. The use of the word "would" in the new statute indicates a measure of certainty that another court will differ from the court whose judgment is sought to be appealed against”. It is now trite that “What is of paramount importance in deciding whether a judgment is appealable is the interest of justice”

[5]	On the 16th January 2023 in the urgent court the Respondent then Applicant brought an enrollment affidavit in re urgent application which was served on the Applicants on the 13 January 2023 in which the following were submitted:

5.1	That he was the biological father of the two minor children and acting in their bests interest. He sought an interim order to be granted in that the minor children would return to school for the academic year 2023 pending the appeal of the order of Muller J under case number 6883/2021. The application was premised on the legal basis that Muller J, misconstrued the nature of the application. He prayed for enrollment for determination on the issue of the requirements of an interdict pendent lite.

5.2	In support to his application he attached the two orders of the honorable Muller J marked annexure “KK1” and “KK2” respectively on both the 10th and 11th January 2023, as well as his application for leave to appeal the said order marked annexure “KK3”. It is important to note that at the time of the hearing, one minor child had found placement at a different school, and the other had passed her matric and now in tertiary education as submitted by the Applicant. I considered the application on behalf of K[...] K[...] M[...] only, a grade 8 pupil. He was unable to be placed at any school despite attempts by his father, the applicant, at the time of the hearing and had been seated at home since the order of Muller J on the 11 January 2023.

5.3	The Applicants then Respondents herein elected not to file any papers in the enrolment application. Mr Ehlers made submission from the bar in opposition of the granting of the order sought, and said “there was no application before me”, which I deem was a point of law that he raised. This was/is concerning in that every party that requires a hearing from the court, need to at least placed itself on record. The Respondents then could have filed a notice to oppose and raised a point of law without opposing affidavit in terms of the Uniform Rule 6(5)(d)(iii). Nonetheless, I gave him a hearing on behalf of the Respondents, in the interest of the urgency that the matter required, and thereby exercising my discretion in terms of section 173 of the Constitution of the Republic of South Africa (The Constitution) as the matter before involved a minor child’s interest and rights which were at stake. There was nothing on record submitted to support his appearance and/or opposition of the parties he submitted to be representing. Had I not done so, the application would have been heard unopposed as a result. Moreover, there was no terms which the Respondents were placed on opposition and service wise and lastly, I considered Rule 6(12).

[6]	The factual background of this matter is common cause to the parties, save for the parties’ interpretation of the meaning of the court order of Muller J on the 23 September 2021, Part A thereof. Part B of the application seek to challenge the legality and constitutionality of the exclusion policy, as contained in the enrolment contract of Mitchell Hose School and is still pending. The correctness or wrongfulness of this order was/is not for determination in any way then and now by this court as this court could not sit as an appeal court. Nowhere in the engagement of the matter with the parties have I engaged myself with issues for the appeal court as far as case number 6883/2021 was concerned. However, both parties confirmed on record that part B of the same case remains pending, Mr Ehlers complains about this finding in his reasons for leave, yet he confirms this position even in this application in his very detailed background of the issues between the parties.

[7]	I gave an order that the minor child K[...] K[...] M[...], grade 8, must return to school pending the determination of part B of case number 6883/2021. My order was primarily based on sections 173, 28(2), 29 (1) (a) and (3) of the Constitution. It is common cause that part B of 6883/2021 is still pending in this court. The court order was that amongst others “The three minor children (F[...], K[...] and K[...] J[...] M[...]) applicants must return to school. This is a case which includes the different interpretations between the parties. The Applicants herein argue that the order should be read with reference to the year of the order being 2021, whereas the Respondent holds a different view in that the order should be read to mean children must return to school pending the determination of part B. it is against this background that an application in 68/2023 was born, which was dismissed and then re-enrolled before me.

[8]	In my view the law did not provide for the circumstances of the case before me save for the reliance on section 173 of the Constitution read in line with the bill or rights. Section 173 of the Constitution provides that “The Constitutional Court, the Supreme Court of Appeal and the High Court of South Africa each has inherent power to protect and regulate their own process, and to develop common law, taking into account the interest of justice”. I exercised my discretion within the ambits of the law and thus the discretion was judiciously exercised mindful of the facts of the case before me and of paramount the interest of the minor child. As the African proverb says “when two elephants fight the grass suffers”. This proverb tells us that when two animals or people “fight” like we have in this matter, it is bystanders (the minor child) that suffers. This court has a responsibility to the minor child as the ultimate guardian.

[9]	Section 28 (2) of the Constitution provides that “A child’s best interests are of paramount importance in every matter concerning the child”. Furthermore, section 29 (1) Everyone has the right— (a) to a basic education, including adult basic education; and section 29 (3) provides that “Everyone has the right to establish and maintain, at their own expense, independent educational institutions that— (a) do not discriminate on the basis of race; (b) are registered with the state; and (c) maintain standards that are not inferior to standards at comparable public educational institutions”.

[10]	It is a basic rule of our law that an order of court of law stands, until it is set aside by a court of competent jurisdiction. Until that is done, the court order must be obeyed, even it may be wrong. The judgment stands even if the Applicants regard it as wrong and problematic in that if allowed to stand it would create a bad precedent. It is concerning to deduce from the submission by the Applicants’ attorney during the hearing of this application which sums up to the fact that the minor child is not being treated like the other children in one way or the other.

[11]	The Applicants in their argument for leave gave themselves much to the background of the issues of this matter in very detailed form which is appreciated, however, same does not assist the Applicant’s to a substantial extent as far as the principles that need to be discharged when one request for leave. It is worth mentioning that I was referred to paragraph 7 of Nova Property Group Holding v Cobbett which provides that “The issues in this appeal are two-fold. In view of the interlocutory nature of the order of the court a quo, the first issue that arises for determination is whether it is appealable. If found to be so, then the second issue which arises is whether the documents sought by the Companies in terms of rule 35(14) are relevant to a reasonably anticipated issue in the main application. This issue concerns the proper interpretation of s 26(2) of the Companies Act and, in particular, whether it confers an unqualified right of access to the securities register of a company contemplated in the section”. The former part of this dicta is helpful to me because it speaks to the issue before me now, however, the latter part is not applicable to the facts before me.

On the other hand, the Applicants asks that this court corrects its judgment. It is trite that the court once an order is granted becomes functus officio, unless it’s for patent errors which affect the sense of the order Firestone South Africa (Pty) Ltd v Genticuro AG. In spite of this requested that the leave should be granted with costs. I am of the view that my order of the 16th January 2016 has no patent errors. Even if I were to revisit the order it would be to the extend of that error and thus, I am not competent to revisit under the prevailing circumstances of this case.

[12]	The Respondents in his opposition submitted that leave should not be granted first because it is an interim order pending determination of 6883/2021, that it is not in the interest of justice under the prevailing circumstances that the minor child be removed from Mitchell House School, be at home pending the said determination, whether the interim order brings about harm which is serious, immediate, ongoing and irreparable, that there can be no irreparable harm or grave injustice which is likely to occur to the Applicants should the interim order remain until determination, that the Applicants have failed to show the harm and thus the application should be dismissed. I was referred to the following dictum in support of his opposition: Zweni v Minister of Law and Order; National Tresury and Others v Opposition to Urban Tolling Alliance and Others and Machele and Others v Mailula and Others

[13]	The issue to be determined is whether leave to appeal should be granted against my interim order granted on the 16th January 2023. It is trite that interim orders are generally not appealable. “On the test articulated by the court in Zweni v Minister of Law and Order, the dismissal of an application to compel discovery, such as by the court a quo, is not appealable as it is (a) not final in effect and is open to alteration by the court below; (b) not definitive of the rights of the parties; and (c) does not have the effect of disposing of a substantial portion of the relief claimed. However, three years later in Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service, the appeal court held that the requirements for appealability laid down in Zweni ‘. . .do not purport to be exhaustive or to cast the relevant principles in stone’. Almost a decade later, in Philani-Ma-Afrika v Mailula, this court considered whether an execution order (which put an eviction order into operation pending an appeal) was appealable. It held the execution order to be appealable, by adapting ‘the general principles on the appealability of interim orders . . . to accord with the equitable and more context-sensitive standard of the interests of justice favoured by our Constitution’. In so doing, it found the ‘interests of justice’ to be a paramount consideration in deciding whether a judgment is appealable.”

[14]	It is well established that in deciding what is in the interests of justice, each case has to be considered in light of its own facts. The considerations that serve the interests of justice, such as that the appeal will traverse matters of significant importance which put the rights to education on the one hand against the right to payment of fees on the other hand, certainly loom large before me and are incomparable as far as the interest of the minor child is concerned. However, the most compelling, in my view, is that a consideration of the merits of the appeal of my order will not necessarily involve a resolution of the seemingly conflicting issues and/or interpretation between the parties, and will definitely not put the matter to finality save for the hearing of part B of 6883/2021 which remains pending.

[15]	Tshwane City v Afriforum where Chief Justice Mogoeng stated: “The common law test for appealability has since been denuded of its somewhat inflexible nature. Unsurprisingly so because the common law is not on par with but subservient to the supreme law that prescribes the interest of justice as the only requirement to be met for the grant of leave to appeal.” The Chief Justice cited with approval the principle as set out by Moseneke DCJ in National Treasury and Others v Opposition to Urban Tolling Alliance and Others. These authorities establish that the traditional principle on appealability of interim and interlocutory orders at common law has in certain circumstances evolved and that where the interests of justice demand, leave to appeal should be considered. “Although this was stated in matters before the Constitutional Court, on issues of appeal before that court, I see no reason why considerations in the interests of justice should not apply to the lower courts when determining the appealability of an interim order, which is said affect the rights of parties such as the applicants to engage in political activity”.

[16]	I am not persuaded that the Applicant has made out a substantial case for the relief sought. The interest of justice does not allow me to remove a child from school to be at home. I take judicial notice of the challenges parents face yearly in our county for placing of their children within time of registration. How much more now that same has closed for most school I believe. Moreover, the Applicant had submitted during the hearing that he failed to find placement for this minor child, save for the other child. When I began, I made reference to a quote that says “children learn more from what you are than what you teach” and how valuable children are for our future. I return to these as I conclude, that the minor child will learn by benefitting from this judgment that our courts are alive to the challenges the societies or communities they preside in and are committed to protecting and promoting the rights of children as contained in the bill of rights. Even if I am wrong in my finding, the Applicants have part B to ventilate the issues between the parties to finality. Leave in the circumstances of this case cannot be granted as above ventilated.

[17]	It is trite that costs usually follow the cause. Moreover, the issue of costs is generally for the discretion of the court. Given the circumstances of this case it is my view that this is not a case in which an order for costs ought to be made.

[18]	In the result the following order is made:

18.1	The application is dismissed.

18.2	No order as to costs.

MDHLULI R.P
ACTING JUDGE OF THE HIGH COURT,
 LIMPOPO DIVISION, POLOKWANE

APPEARANCES

Heard on	:	27 January 2023

Judgment circulated on	:	20 March 2023

For the Applicants	:	Mr Ehlers G

:	Ehlers Law Incorporated Attorneys

For the Respondent	:	Adv Sikhwari

Instructed by	:	Ntsako Phyllis Mbhiza Attorneys