KwaZulu-Natal Joint Liaison Committee v MEC for Education, KwaZulu-Natal and Others

• Jurisdiction: South Africa
• Judgment Date: 25 April 2013
• Citation: 2013 (4) SA 262 (CC)

KwaZulu-Natal Joint Liaison Committee v MEC for Education, KwaZulu-Natal and Others
2013 (4) SA 262 (CC)

2013 (4) SA p262

Citation	2013 (4) SA 262 (CC)
Case No	CCT 60/12; [2013] ZACC 10
Court	Constitutional Court
Judge	Mogoeng CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Nkabinde J, Skweyiya J, Yacoob J and Zondo J
Heard	November 22, 2012
Judgment	April 25, 2013
Counsel	O Moosa SC (with A Boulle) for the applicant.; S Yacoob for the respondents.; J Brickhill (with Z Gumede) for the amicus curiae.

Flynote : Sleutelwoorde F

Education — School — Independent school — Subsidy — State's obligation to pay — Promised subsidy reduced after date for payment — Such impermissible. G

Administrative law — Statutory powers — Unilateral obligation of state to private party — Promise of specified amounts — Amounts may not be diminished after date for their payment has passed.

Headnote : Kopnota

H In this case a provincial education department sent a notice to independent schools setting out subsidies for the following year. This was in September 2008. The due date for payment of the first portion of the year's subsidies was April 2009, but in May — without having made any payments — the department announced it was reducing the subsidies with retrospective effect. In issue was the nature of the 2008 undertakings and whether they I were enforceable. (Paragraphs [30] and [35] – [36] at 271D – E and 272F – 273B.)

The court held that the undertakings — made in terms of legislation — were unilateral obligations of the department to the schools, and after the date for their payment had passed they could not be retracted. Accordingly it ordered payment of the April sums. (Paragraphs [47] – [48], [52], [69] and J [78] at 275E – 276B, 277E – 278B, 281G – 282A and 283F – H.)

2013 (4) SA p263

In a separate judgment Froneman J expressed support for the main judgment's A reasoning: that retraction after the date of payment was unconscionable when tested against the standards of reliance, accountability and rationality. But the same went for payments promised for later in the year. (Paragraphs [83], [85] and [108] at 285C – E, 285F – H and 293F.)

Nkabinde J held in her judgment that the 2008 notice — properly interpreted — was not a promise to pay, and that the applicable regulations likewise created no B such obligation. (Paragraphs [110] – [111], [127], [134], [139] – [140] and [148] at 293I – 294F, 299H – 300A, 301I, 303A – C and 305F.)

Zondo J held that the promise to pay approximate amounts was too vague to create legal obligations, and that the order to pay approximate amounts was incompetent. Moreover the majority had found for the schools on a basis that was not part of their case. (Paragraphs [161] – [164] and [177] at C 310C – 311J and 315G – I.)

Mogoeng CJ and Jafta J held in their judgment that there was insufficient evidence to establish that anything was owed for the first term. (Paragraph [189] at 318F – H.)

Cases Considered

Annotations D

Case law

Southern Africa

Barkhuizen v Napier 2007 (5) SA 323 (CC) (2007 (7) BCLR 691; [2007] ZACC 5): referred to

Bel Porto School Governing Body and Others v Premier, Western Cape, and Another E 2002 (3) SA 265 (CC) (2002 (9) BCLR 891; [2002] ZACC 2): referred to

Bertie Van Zyl (Pty) Ltd and Another v Minister for Safety and Security and Others 2010 (2) SA 181 (CC) (2009 (10) BCLR 978; [2009] ZACC 11): referred to

Cape Metropolitan Council v Metro Inspection Services (Western Cape) CC and Others F 2001 (3) SA 1013 (SCA) (2001 (10) BCLR 1026): referred to

Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC) (2002 (1) SACR 79; 2001 (10) BCLR 995; [2001] ZACC 22): referred to

Conradie v Rossouw 1919 AD 279: referred to

Dilokong Chrome Mines (Edms) Bpk v Direkteur-Generaal, Departement van Handel en Nywerheid G 1992 (4) SA 1 (A): dictum at 18C – I applied

Duncan v Minister of Environmental Affairs and Tourism and Another 2010 (6) SA 374 (SCA): referred to

Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2012 (1) SA 256 (CC) (2012 (3) BCLR 219; [2011] ZACC 30): referred to

Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others H 1999 (1) SA 374 (CC) (1998 (12) BCLR 1458; [1998] ZACC 17): referred to

Fluxman v Brittain 1941 AD 273: dictum at 293 applied

Governing Body of the Juma Musjid Primary School v Essay NO 2011 (8) BCLR 761 (CC) ([2011] ZACC 13): referred to

Government of the Republic of South Africa v Thabiso Chemicals (Pty) Ltd I 2009 (1) SA 163 (SCA) ([2009] 1 All SA 349): referred to

Gusha v Road Accident Fund 2012 (2) SA 371 (SCA): referred to

I Pieters and Company v Salomon 1911 AD 121: referred to

Jaga v Dönges, NO and Another; Bhana v Dönges, NO and Another 1950 (4) SA 653 (A): referred to

Jockey Club of South Africa v Forbes 1993 (1) SA 649 (A): referred to J

2013 (4) SA p264

A Khumalo and Others v Holomisa 2002 (5) SA 401 (CC) (2002 (8) BCLR 771; [2002] ZACC 12): referred to

KPMG Chartered Accountants (SA) v Securefin Ltd and Another 2009 (4) SA 399 (SCA) ([2009] 2 All SA 523): referred to

Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 (1) SA 475 (A): referred to

B List v Jungers 1979 (3) SA 106 (A): referred to

Logbro Properties CC v Bedderson NO and Others 2003 (2) SA 460 (SCA) ([2003] 1 All SA 424): referred to

Maphango and Others v Aengus Lifestyle Properties (Pty) Ltd 2012 (3) SA 531 (CC) (2012 (5) BCLR 449; [2012] ZACC 2): followed

C Masetlha v President of the Republic of South Africa and Another 2008 (1) SA 566 (CC) (2008 (1) BCLR 1; [2007] ZACC 20): followed

Minister of Home Affairs and Another v American Ninja IV Partnership and Another 1993 (1) SA 257 (A): referred to

Minister of Safety and Security v Slabbert [2010] 2 All SA 474 (SCA): referred to

D Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) ([2012] 2 All SA 262; [2012] ZASCA 13): referred to

National Education Health and Allied Workers Union v University of Cape Town and Others 2003 (3) SA 1 (CC) ((2003) 24 ILJ 95; 2003 (2) BCLR 154; [2002] ZACC 27): referred to

Pharmaceutical Manufacturers Association of SA and Another: In re Ex parte President of the Republic of South Africa and Others 2000 (2) SA 674 (CC) (2000 (3) BCLR 241; [2000] ZACC 1): E referred to

Phillips and Others v National Director of Public Prosecutions 2006 (1) SA 505 (CC) (2006 (1) SACR 78; 2006 (2) BCLR 274; [2005] ZACC 15): referred to

Premier, Mpumalanga, and Another v Executive Committee, Association of State-Aided Schools, Eastern Transvaal 1999 (2) SA 91 (CC) (1999 (2) BCLR 151; F [1998] ZACC 20): dictum in para [41] applied

President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2000 (1) SA 1 (CC) (1999 (10) BCLR 1059; [1999] ZACC 11): referred to

Prince v President, Cape Law Society, and Others 2001 (2) SA 388 (CC) (2001 (1) SACR 217; 2001 (2) BCLR 133; [2000] ZACC 28): referred to G

Rail Commuters Action Group and Others v Transnet Ltd t/a Metrorail and Others 2005 (2) SA 359 (CC) (2005 (4) BCLR 301; [2004] ZACC 20): referred to

Saambou-Nasionale Bouvereniging v Friedman 1979 (3) SA 978 (A): referred to

H Sebola and Another v Standard Bank of South Africa Ltd and Another 2012 (5) SA 142 (CC) (2012 (8) BCLR 785; [2012] ZACC 11): referred to

Sonap Petroleum (SA) (Pty) Ltd (formerly known as Sonarep (SA) (Pty) Ltd) v Pappadogianis 1992 (3) SA 234 (A): referred to

Soobramoney v Minister of Health, Kwazulu-Natal 1998 (1) SA 765 (CC) (1997 (12) BCLR 1696; [1997] ZACC 17): referred to

I South African Football Association v Stanton Woodrush (Pty) Ltd t/a Stan Smidt & Sons and Another 2003 (3) SA 313 (SCA) ([2003] 1 All SA 274): referred to

South African Railways & Harbours v National Bank of South Africa Ltd 1924 AD 704: referred to

South African Veterinary Council and Another v Szymanski 2003 (4) SA 42 (SCA) (2003 (4) BCLR 378): J referred to

2013 (4) SA p265

South British Insurance Co Ltd v Unicorn Shipping Lines (Pty) Ltd A 1976 (1) SA 708 (A): referred to.

England

Mercury Communications Ltd v Director General of Telecommunications [1996] 1 All ER 575 (HL): referred to

O'Reilly v Mackman [1982] 3 WLR 1096 (HL) ([1983] 2 AC 237 (HL); B [1982] 3 All ER 1124) at 285 (AC): referred to.

European Court of Justice

Mulder v Minister van Landbouw en Visserij [1988] ECR 2321: referred to

Karl Spagl v Hauptzollamt Rosenheim [1990] ECR 4539: referred to. C

Case Information

O Moosa SC (with A Boulle) for the applicant.

S Yacoob for the respondents.

J Brickhill (with Z Gumede) for the amicus curiae.

An appeal against a decision of the KwaZulu-Natal High Court, Pietermaritzburg. The majority judgment (per Cameron J) is from D paras [1] to [78]; Froneman J's judgment is at [79] to [108]; Nkabinde J's judgment from [109] to [149]; Zondo J's judgment [150] to [182]; and Mogoeng CJ and Jafta J's judgment is at [183] to [190].

Judgment

Cameron J (Moseneke DCJ, Froneman J, Khampepe J, Skweyiya J and Yacoob J concurring): E

[1] The applicant — an association of independent schools in KwaZulu-Natal — seeks leave to appeal against a decision of the KwaZulu-Natal High Court, Pietermaritzburg (the high court) dismissing its application to enforce payment of certain moneys it claims to be due to the schools F it represents. Leave to appeal was refused by both the high court and the Supreme Court of Appeal.

[2] The application stems from a subsidy the first respondent, the Member of the Executive Council for Education in KwaZulu-Natal (MEC), granted to independent schools in the province in accordance G with s 48 of the South African Schools Act [1]...