The MEC, Northern Cape Provincial Government: Department of Education v Bateleur Books (Pty) Ltd

• Jurisdiction: South Africa
• Court: Northern Cape Division
• Judge: Kgomo JP, Molwantwa AJ
• Judgment Date: 11 May 2007
• Citation: 2007 JDR 0654 (NC)
• Hearing Date: 29 March 2007
• Docket Number: 1304/06

Kgomo JP:

1.

This is an application for leave to appeal against the judgment of Molwantwa AJ (in which I concurred) by the First and Second Respondents in the main application, the MEC for Education and his Head of Department, Northern Cape (the Department). The ten publishers who were applicants in the main application oppose this application, itself out of time and accompanied by an application for condonation. The granting of the condonation is not opposed by the publishers. Condonation was granted

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without in any way suggesting that the leave sought was meritorious. All that it signifies is that non-compliance with the time limits has been satisfactorily explained.

2.

The grounds for appeal are so numerous and detailed that adverting to all of them would encumber the judgment unduly:

2.1 In essence the application is against the whole of the judgment on the merits and the law;

2.2 We gave advance notice to the parties to file short Heads of Argument, more particularly on whether the case is not moot and therefore no longer justiciable. We are indebted to counsel for their written and oral argument in this regard.

3.

A recital of the order that we have granted would enhance the better comprehension of this judgment:

"1.

The decision of the Second Respondent (the HOD) contained in Annexure DFR 13 to the Applicants' supplementary affidavit and in Department Circular 67/2006, dated 20 July 2006, to the extent to which the Second Respondent decided and the schools were informed that the Department of Education would be ordering Learner Teacher Support Material (LTS-Material) regarding grades 8,9 and 11 from publishers without giving any schools the right to select such material, is reviewed and set aside.

2.

The decision of the Second Respondent to continue with the requisitioning and ordering process after the Department was informed of the Applicants' objection to the above process is reviewed and set aside.

3.

The Second Respondent is directed to:

3.1

Withdraw all orders in respect of LTS-Material for grades 8,9 and 11 which have already been placed with any of the parties to this application;

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3.2

Ensure that all schools in the Northern Cape receive a copy of the catalogues of approved LTS-Material for grades 8, 9 and 11;

3.3

Ensure that all schools are forthwith informed of their right to select LTS-Material for procurement by the Department of Education in respect of grades 8, 9 and 11 in 2007;

3.4

To collate all requisitions once received and to place such orders without delay on behalf of those schools which have not exercised their right to select LTS-Material.

4.

The First (the MEC) and Second (the HOD) Respondents are ordered to pay the costs of this application, including the costs of the application of 3 November 2006, and which costs are to include the costs of two counsel where employed."

4.

A case is moot and therefore not justiciable if it no longer presents an existing or live controversy which should exist if the Court is to avoid giving advisory opinions on abstract propositions of law: J T Publishing (Pty) Ltd & Another v Minister of Safety & Security & Others 1997 (3) SA 514 (CC).

5.

Section 21A of the Supreme Court Act No 59 of 1959, stipulates in part that:

"(1) When at the hearing of any civil appeal to the Appellate Division or any Provincial or Local Division of the Supreme Court the issues are of such a nature that the judgment or order sought will have no practical effect or result, the appeal may be dismissed on this ground alone.

(2)(a) If at any time prior to the hearing of an appeal the Chief Justice or the Judge President, as the case may be, is prima facie of the view that it would be appropriate to dismiss the appeal on the grounds set out in subsection (1), he or she shall call for written representations from the respective parties as to why the appeal should not be so dismissed.---

(c) The judges considering the matter may order that the question whether the appeal should be dismissed on the grounds set out in subsection (1) be argued before

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them at a place and time appointed, and may, whether or not they have so ordered-

(i) order that the appeal be dismissed, with or without an order as to the costs incurred in any of the courts below or in respect of the costs of appeal, including the costs in respect of the preparation and lodging of the written representations; or

(ii) order that the appeal proceed in the ordinary course.

(3) Save under exceptional circumstances, the question whether the judgment or order would have no practical effect or result, is to be determined without reference to consideration of costs."

6.

We raised the issue of mootness in view of the following factors and circumstances:

6.1 Prior to 2006 the Department procured Learning and Teaching Support Material (LTS-Material) through book publishers (including the ten applicant-publishers). In about July 2006 the Department centralized the...