Locus standi married woman

Expulsion from school

CIV. CASE NO. 319/99

In the matter between

VICTORIA FENWICK APPLICANT

And

THE PRINCIPAL, WATERFORD KAMHLABA

COLLEGE RESPONDENT

Coram S.B. MAPHALALA – J

For the Applicant MR. N. HLOPHE

For the Respondent MR.T. MASUKU

JUDGEMENT

(01/04/99)

Maphalala J:

This is an application in which the applicant sought an order in a form of a rule calling upon the respondent to show cause why the decision of the disciplinary committee of the school expelling the applicant’s minor son should not be set aside. The applicant wished to have this rule to operate as an interim order with immediate effect, pending the outcome of this application.

The application is supported by the founding affidavit of Edward Fenwick mother one Victoria Fenwick with various annexures and the supporting affidavit Edward Fenwick.

The application is opposed by the respondent who filed the answering affidavit of one Michael Heslop who is the principal of the respondent. The affidavit is supported by a flurry of annexures pertinent to this case. The respondent in his answering affidavit raised two points in limine. Firstly, that the applicant does not have the locus standi in judicio to launch these proceedings for the reason that it does not appear ex facie the papers that she has the necessary capacity to bring the proceedings. Secondly, that the application is not urgent, alternatively not sufficiently urgent to justify the court dispensing with the normal time limits, forms and service provided for in the rules of court. In this regard, the following issues will be brought to the court’s attention:

There was also an issue of law that was argued whether the Education Act was in force or not. The matter was argued at the same time but in two stages. Firstly, the points in limine and secondly the question of whether the Act was in force or not.

On the points in limine Mr. Masuku in support of the first point raised contended that the deponent of the founding affidavit who is a female does not state her marital status ex facie the papers enabling her to bring these proceedings. (Herbstein & Van Wissen in The Civil Practice of the Supreme Court of South Africa (4th ED) page 361).

On the point of urgency Mr. Masuku contended that the applicant has dismally failed to prove urgency. The decision to expel the minor child was made on the 17th November 1998, and it is only now that applicant brings the application. Mr. Masuku further referred the court to the Henwood vs Malona Colliers (Pty) Ltd which is the locus classicus by Dunn J on requirements of Rule 6 as to urgency.

On the third point that the applicant has not complied with Rule 53 of the rules of this court in that the applicant has not specifically applied for condonation for the abridgement of the procedure prescribed by the rule. He further directed the court’s attention to Herbstein and Van Winsen (supra) at page 952 where the learned authors state that various courts have held the provisions of Rule 53 to be peremptory. That prayer 1 of the applicants founding affidavit fails short of praying for condonation

Mr. Hlophe in reply to the points in limine. On the first point he contended that the point on locus standi of the applicant to bring these proceedings the applicant is bringing these proceedings as a natural guardian of her ward being the minor child. To buttress this point he directed the court’s attention to Boberg on Law of Persons and the Family at page 221. The court has to take the interest of the minor child. Furthermore on this point the court as the upper guardian of all minor can intervene in the event the interests of a minor child are adversely affected.

On the second point raised that of urgency Mr. Hlophe argued that the facts of the matter do establish a case of urgency. The matter became urgent when the applicant was told that the respondent was longer looking for school for the minor child and the child could not be taken back at Waterford.

On the third point raised that applicant has not complied with Rule 53 and that she has not prayed for condonation for the abridgement of the rule. Mr. Hlophe’s view is that there is no such authority that these should be a specific averment for condonation. It has been alleged that the normal provisions of the rules of court be dispensed with “form” is used in its general sense.

In reply on points of law Mr. Masuku argued that the authority cited by Mr. Hlophe (Boberg (supra)) has no application in this case as these proceedings are not matrimonial proceedings. The father of the minor child is there and there is no reason why he did not bring this application on behalf of the minor child. Mr. Masuku further argued that the “form” and “procedure” are different matters. Review in terms of Rule 53 is a substantial procedure that can only be abridged by a proper application in terms of Rule 27 of the rules.

At this stage the court entertained submissions on the question of whether the Act is till in force or not such that the decision of the disciplinary committed constituted by the respondent was illegal.

Mr. Hlophe on that point contended that the decision of the respondent was unlawful and thus could not stand. He referred the court to The Education Rules of 1977, which according to him were established under The Education Act No. 26 of 1964. He referred the court to Regulation 10 (1) (e), which specifically provides of what ought to be done in the expulsion of pupils in schools. The said section reads in part as follows:

“Discipline punishments and expulsion of pupils

19 (1) subject to this rule, the general discipline in a school shall be vested in the headmaster of such school who may, however, seek the advice of his Deputy or other members of his staff.

(2) There shall be established in each school a disciplinary committee, consisting of the following persons

The Education Act of 1977 was repealed by The Education Act of 1981. Mr. Hlophe submitted that a repealing Act ought to provide the status of the regulations that are founded under the Act it seeks to repeal. According to Section 27 of the Interpretation Act, which direct that, a subsidiary legislation shall not be deemed to have been repealed.

On points of law Mr. Masuku replied that in terms of Section 21 of the 1981 Act the Minister is given powers to make regulations. The 1977 Act dealt with rules whilst the 1981 Act dealt with regulations. He further directed the court to Section 27 (2) of the interpretation Act to unravel the problem.

These are the issued for determination. The court is called upon to determine the three points in limine raised by the respondent, to wit, whether applicant has locus standi to bring these proceedings, secondly, whether urgency has been proved by the applicant and thirdly whether Rule 53 of the High Court has been followed by the applicant in bringing these proceedings. The last point which is pivotal to the case is whether the rules in the 1977 Act are still in force and if the court finds that they are still in force, notwithstanding the promulgation of the 1981 Act the actions of the respondent would be clearly irregular and unlawful. And thus the expulsion a nullity.

In doing so I shall deal with each aspect of the case in periatum.

On the question of locus standi of the application to bring these proceedings I agree with Mr. Masuku that the authority cited by Mr. Hlophe (Boberg (supra) at page 221) is not exactly in point in that the learned author states that there are a number of exceptions to the rule that a woman who is subject to her husband’s marital power lacks the capacity to sue or be sued without his assistance. The law grants her locus standi in judicio in the following classes of legal proceedings.

Now coming to the second point in limine raised by the respondent that applicant has not proved urgency in accordance with the rules of this court. It is common ground that the decision to expel the minor child was made on the 17th November 1998, and it is only now that applicant brings this application. It is clear that the respondent undertook to help the applicant to find an alternative school for the child but it is disputed by the respondent that it would consider re-admitting the child in the event another school was not found. Indeed this seem to be the position of one looks at annexure “VF3” to wit, a letter from respondent to the applicant dated the 25th January 1999 which reads in part as follows:

At paragraph 2 - “In order not to give you false, we have to emphasize that Waterford Kamhlaba is not able to take Edward back either. Once a student has been expelled, it really does mean that he is expelled and under no circumstances is it possible to have him back. The very best we can do is to offer to have Edward back here at IBI level, provided he passes the entrance tests.

We very much hope that you will have success with finding Edward a satisfactory new school and that he will be happy there”

I agree with Mr. Masuku that the respondent has failed to prove urgency as enunciated by Dunn J in the case of Henwood (supra) which is considered in this division as the locus classicus on this point.

Now coming to the third point that the applicant has not complied with Rule 53 of the High court Rules. It is trite law that the rule is mandatory and in the absence of a specific allegation for condonation in the applicant’s notice of motion for the abridgement of procedure. Mr. Masuku is correct that prayer 1 of the applicant’s notice of motion is not sufficient. “Form” is not the same as “procedure” and special condonation in my view out to be applied for. For this reason I rule in favour of the respondent in respect of this point in limine.

It is clear, therefore, that applicant’s application is not properly before court in view of my finding in respect of the question of urgency and that it does not conform with Rule 53 of High Court Rules. To consider the point of law which seem to be central to the case would be purely academic. However, I feel I should address it.

I agree with Mr. Masuku that The Education Act of 1964 was repealed by The Education Act No. 9 of 1981 in its Section 23, which reads thus:

“Repeal

The following Acts are repealed:

Section 21 of the 1981 Act gives the Minister of Education powers to make regulations, thus:

“Powers to make Regulations

Whilst the 1964 at Section 11 gave the powers to make rules to the Minister to regulates inter alia “(f) conduct and discipline in schools”.

My considered view on the matter is that 1977 Education rules which were established under Act 26 of 1964 were repealed and thus obsolete. I rule therefore that in the absence a regulation in terms of Section 21 of the 1981 Act. The actions of the respondent cannot be said to be unlawful.

As an aside, I would urge the Ministry involved to put in place specific regulations to avoid such grey areas, which leads to unnecessary confusion.

S.B. MAPHALALA

JUDGE

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