Dad claims R500,000 in bitter squabble with his kid’s school
He won a case against it but it's refusing to pay. Now he wants the school bus ... and to change the law
Nine years after he sought justice for his son who was under threat of expulsion from his school, a Durban dad is intent on changing a law in SA.
While he successfully litigated against the Kenmont School, a school for children with learning disabilities based on the Bluff, in the south of Durban, he said the school owes him more than R500,000 in legal costs.
But his attempts to get the money – by attempting to attach the school’s bank account and its bus – have been stymied because the SA Schools Act prohibits the attachment of assets of a public school as a result of legal action.
This month he secured a court victory when Durban High Court judge Khosi Hadebe ruled that this was unconstitutional. With the support of his attorney, Viren Singh, he has now filed papers in the Constitutional Court for this to be ratified.
“It shields schools … In its present form it cannot be reasonable. It offends against the letter and spirit of the constitution,” Hadebe said of the provision in the act.
“It elevates organs of state above all other litigants and allows them to defy judicial authority.”
Hadebe noted that the father – who cannot be named to protect the identity of his son – had two valid and lawful costs orders against the school and it appeared the school had the resources to pay. Instead it was hiding behind the schools act.
She said the department of education and the minister were also refusing to pay – and correctly so because they had not supported the litigation.
The saga began in 2009 when the Kenmont pupil was apparently embroiled in an altercation with a fellow pupil. Pending the outcome of a disciplinary hearing he was then made to sit outside the principal’s office during breaks.
The father went to court and secured an order by consent that his son be supervised, but not isolated from other pupils, and that the disciplinary hearing be completed by the end of August that year.
But this did not happen. Instead, according to Hadebe’s judgment, the school and the governing body simply amended its admission policy and, in January, after the start of the academic year, informed the father that his son was no longer welcome.
The father then lodged an urgent application, securing an interim order that his son be allowed to return to school, albeit having lessons on his own.
This, according to Hadebe, resulted in the teenager doing lessons in a “shed” with a guard stationed at the door, all the while under threat of being ousted from the school.
But in 2012, the new admissions policy was deemed unlawful by another judge. The teenager matriculated at the end of that year.
The school attempted to appeal the admission policy ruling in the Supreme Court of Appeal where it was dismissed, with costs, after the court ruled that any appeal “would have no practical effect or result”.
In an affidavit submitted to the Constitutional Court, Singh says his client was owed almost R578,000, plus interest.
“There is no dispute that this is what he is owed. But the school refuses to pay. We tried to settle but to no avail,” he says.
In 2016, his client obtained a warrant of execution; R387,000 in the school’s bank account, the school bus and certain furniture were attached – but “were subsequently released on the advice of counsel”.
The school and the governing body then had the warrants set aside, relying on the schools act.
“A public school is placed in an advantageous position in that it can litigate with impunity and, if unsuccessful, no execution against the assets of the public school is permitted whereas any other litigant who unsuccessfully litigates is liable to have his/her assets attached to satisfy any cost orders that may be granted against them,” Singh said.
“This clearly violates the equality clause in the constitution. If my client was the unsuccessful litigant and the cost orders were granted against him, the school would be entitled to attach his assets. But he cannot do the same … that is inherently unfair. This differentiation cannot be justified in an open and democratic society based on freedom and equality.”
Kenmont School, its attorney and the education department did not respond to requests for comment.