St Helena Primary School and Another v MEC, Department of Education, Free State Province and Another

• Jurisdiction: South Africa
• Judge: Musi J
• Judgment Date: 15 September 2006
• Citation: 2007 (4) SA 16 (O)
• Docket Number: 891/2004
• Hearing Date: 17 August 2006
• Counsel: D J Daffue for the plaintiffs. J Y Claasen for the defendants.
• Court: Orange Free State Provincial Division

Musi J: C

[1] The first and the second plaintiffs are, respectively, a public school and its governing body. In terms of s 9(1) of the Free State Education Act 2 of 2000 (the Act) every public school is a juristic person 'with legal capacity to perform its functions in terms of this Act'. Although a public D school has capacity to perform its functions as aforesaid, its governance is vested in its governing body in terms of s 37(1) of the Act. Now, the Act does not confer on the governing body the status of a juristic person, but states in s 37(2) that it stands in a position of trust towards the school. However, s 41(1)(b) empowers a governing body to adopt a constitution. This means that a governing body can clothe itself with the status of a juristic person by its own E constitution. So that the answer to the question of whether the second plaintiff has the legal capacity to sue or be sued in its own name, would have to be answered with reference to its constitution. There can be no doubt though that the Act contemplates that a governing body will clothe itself with such capacity, in order F to be able properly to fulfil its statutory functions. In the hearing of this matter it was assumed that the second applicant is also a juristic person.

[2] The second defendant has been joined purely as the head of the Free State Provincial Government. The first respondent is the real defendant in that he is the member of the Provincial Government who is responsible G for all educational matters in the province. In terms of s 10(1) of the Act, he must establish and maintain public schools in the province. He may reclassify existing categories or phases of public schools or register new categories (s 10(3)). He may, subject to certain conditions, restrict the right of public schools to occupy the State buildings that house them. H He may close public schools or relocate them. He oversees the establishment of governing bodies and his head of department may replace those of their members who are unable to perform their functions. In short, the second defendant, in tandem with his head of department, has ultimate responsibility for the running of public schools in the province, including control of the buildings that house them. I

[3] I shall for the sake of convenience henceforth refer to the plaintiffs collectively as the school and to the defendants collectively as the department.

[4] On the first of the three days set aside for the hearing of this matter, the J parties indicated that they would proceed in terms of Rule 33 of the

Musi J

Rules of this Court. This meant that no viva voce evidence would be A heard and the parties submitted a written statement of agreed facts (the stated case). The issues in dispute were thereby set out and the parties identified the legal issues that this Court was called upon to decide, having heard arguments advanced on behalf of the parties.

[5] In summary, the school occupies premises at Union Avenue, St B Helena, Welkom. The buildings and the land on which they are situate, belong to the Free State Provincial Government (the department). The school does not occupy the premises in terms of any lease and is therefore not a lessee. Nor does it pay any rent. It, however, occupies the premises with the full permission of the owner, the department. C

[6] On 14 February 2002 a fire broke out in the school premises and partly damaged the buildings thereof. The costs of repairing the damaged portion amounted to R122 342,52. The school had a valid short term insurance policy with Mutual and Federal Insurance Company Ltd (the insurer), covering, inter alia, damage to the buildings. A claim was D duly lodged with the insurer and an amount of R82 010,22 was paid in settlement of the school's claim in respect of damage to the buildings. The school utilised funds from other sources to make up the shortfall of R40 332,30 and had the damage repaired.

[7] In repairing the damage the school did not take any money from E its banking account. In other words, it did not take out money from its budget. The money came exclusively from outside the school's coffers. Nor did it demand any compensation from the owner of the buildings, the department. The demand for compensation comes from the school's insurer, so that the instant action has been instituted at the instance of F the insurer. The insurer relies on the doctrine of subrogation, in terms of which it can institute action in the name of its insured to enforce a claim that the insured had against a third party for compensation for the full amount of the damages suffered by the insured, and for which the third party could be held liable. G

[8] In casu the insurer avers that the department, as owner of the damaged buildings, was obliged to repair the damage; that in itself repairing the damage, the school was impoverished to the extent of the repair costs of R122 342,52 whereas the department was enriched by such amount, in the sense that it was saved that same amount which was H needed to restore the buildings to the condition in which they were prior to the fire.

[9] This is a claim based on unjustified enrichment. It is a novel claim for which no precedent could be cited. The defendants dispute that an action for unjustified enrichment lies in the instant situation; that even if I such cause of action is available to the plaintiffs, the requirements thereof have not been established. The plaintiffs also sought to impute, in the alternative, liability to the department on the basis that the school acted as a negotiorum gestor. This latter cause of action was, however, abandoned and not pursued in argument. The sole question for decision is J

Musi J

A ultimately whether a claim based on unjustified enrichment can be sustained in the circumstances of this case. The parties put it like this in the stated case:

'3.

The Court is requested to adjudicate the following question of law:

3.1

Whether or not plaintiffs are entitled to judgment against defendants B for the amount claimed in the particulars of claim and based on the cause of action pleaded therein.'

[10] There was some debate at the hearing as to whether the...