THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 1417/2018
In the matter between:
MEMBER OF THE EXECUTIVE COUNCIL,
DEPARTMENT OF EDUCATION,
EASTERN CAPE

APPELLANT
and
KOMANI SCHOOL & OFFICE
SUPPLIERS CC, t/a KOMANI STATIONERS
RESPONDENT

Neutral citation: Member of the Executive Council, Department of Education,
Eastern Cape v Komani School & Office Supplies CC, t/a
Komani Stationers (Case no 1417/2018) [2022] ZASCA 13
(26 January 2022)
Coram:
PETSE AP and MOCUMIE, MBATHA and GORVEN JJA and
WEINER AJA
Heard:
08 November 2021

Delivered: This judgment was handed down electronically by circulation to
the parties' legal representatives by email, publication on the Supreme Court of
Appeal website and release to SAFLII. The date and time for hand-down is
deemed to be 09h 45 on 26 January 2021.
Summary: Public school and school governing body – South African Schools
Act 84 of 1996 as amended (the Schools Act) – interpretation of s 60(1) –
liability of State for delictual or contractual damage or loss arising from act or
omission in connection with school activity for which such a public school
would have been liable but for the Schools Act.

ORDER

On appeal from: Eastern Cape Division of the High Court of South Africa,
Grahamstown (Malusi J, sitting as court of first instance):

1 The appeal is upheld with costs, including the costs of two counsel.
2 The order of the high court is set aside and in its place is substituted the
following:
'The application is dismissed with costs, including the costs of two counsel
where so employed.'

JUDGMENT

Petse AP (Gorven JA and Weiner AJA concurring):

[1] During January 2017 the respondent, Komani School & Office Suppliers
CC trading as Komani Stationers (Komani Stationers), instituted motion
proceedings in the Eastern Cape Division of the High Court, Grahamstown (the
high court) against the appellant, the Member of the Executive Council for the
Department of Education, Eastern Cape (the MEC), seeking payment of
R151 954.81, representing the purchase price of goods sold and delivered to
Mpendulo Public Primary School, (Mpendulo School) which is a public school
under the political stewardship of the MEC. In addition, Komani Stationers also
sought payment of the sum of R959.59 in respect of legal costs it had incurred

in the Queenstown Magistrates' Court (the magistrates' court) in its abortive
attempt to recover the principal debt from Mpendulo School together with mora
interest at the prescribed legal rate.

[2] The facts are uncomplicated and are briefly as follows. During January
2013, Komani Stationers supplied school stationery to the Mpendulo School at
the instance of the School Governing Body (SGB) and the school's Principal.
The purchase price of the goods was R151 954-81. The SGB and the Principal
failed to pay the purchase price. As a result, Komani Stationers instituted an
action against the SGB and the Principal in the magistrates' court. The action
was not defended. Komani Stationers proceeded to obtain default judgment
against the SGB and Mpendulo School as represented by its Principal in the
amount claimed in its summons together with interest and costs of suit in the
sum of R959-69. Subsequently, Komani Stationers issued a warrant of
execution, and pursuant thereto various goods 1 were placed under judicial
attachment in order to satisfy the judgment debt, interest and costs of suit.

[3] The attachment of the property prompted the District Director, Mr N H
Godlo, to institute interpleader summons in the magistrates' court on behalf of
the MEC. The interpleader summons sought an order releasing the goods
concerned from attachment. The foundation for the interpleader summons was
that such goods were owned by the Eastern Cape Department of Education (the
Department) or alternatively John Noah High School, neither of whom were
indebted to Komani Stationers nor were they the defendants in the magistrates'
court proceedings. In any event, the MEC contended that assets of a public

1 The goods attached belonged to the Department and John Noah High School both of which were not parties
to the proceedings.

school are immune from judicial attachment in order to satisfy a judgment by
virtue of the prohibition provided for in s 58A(4) of the South African Schools
Act 84 of 1996 as amended (the Schools Act). The interpleader proceedings
were not opposed.

[4] Once the goods were released from attachment, Komani Stationers turned
its focus to the MEC. By letter dated 4 November 2016 and addressed to the
MEC on behalf of Komani Stationers, the latter gave notice to the MEC in terms
of s 3 of the Institution of Legal Proceedings against Certain Organs of State
Act 40 of 2002.2 In this letter, Komani Stationers advised the MEC that it would
institute legal proceedings against the MEC seeking recovery of the amounts
owed to it by Mpendulo School. In order to assist the MEC to assess the merits
of the claim, the letter included a draft notice of motion accompanied by an

2 Section 3 which is headed 'Notice of intended legal proceedings to be given to organ of state' provides:
'(1) No legal proceedings for the recovery of a debt may be instituted against an organ of state unless–
(a) the creditor has given the organ of state in question notice in writing of his or
(b) the organ of state in question has consented in writing to the institution of that her or its intention
to institute the legal proceedings in question; or legal proceedings–
(i) without such notice; or
(ii) upon receipt of a notice which does not comply with all the requirements set out in subsection (2).
(2) A notice must–
(a) within six months from the date on which the debt became due, be served on
(b) briefly set out the organ of state in accordance with section 4(1); and
(i) the facts giving rise to the debt; and
(ii) such particulars of such debt as are within the knowledge of the creditor.
(3) For purposes of subsection (2)(u)–
(a) a debt may not be regarded as being due until the creditor has knowledge of the identity of the organ
of state and of the facts giving rise to the debt, but a creditor must be regarded as having acquired such
knowledge as soon as he or she or it could have acquired it by exercising reasonable care, unless the
organ of state wilfully prevented him or her or it from acquiring such knowledge; and
(b) a debt referred to in section 2(2)(a), must be regarded as having become due on the fixed date.
(4) (a) If an organ of state relies on a creditor’s failure to serve a notice in terms of subsection (2)(a), the creditor
may apply to a court having jurisdiction for condonation of such failure.
(b) The court may grant an application referred to in paragraph (a) if it is satisfied that–
(i) the debt has not been extinguished by prescription;
(ii) good cause exists for the failure by the creditor; and
(iii) the organ of state was not unreasonably prejudiced by the failure.
(c) If an application is granted in terms of paragraph (b), the court may grant leave to institute the legal
proceedings in question, on such conditions regarding notice to the organ of state as the court may
deem appropriate.'

unsigned 'founding affidavit' explaining the history of the matter. The letter did
not elicit a response from the MEC.

[5] Undeterred by the MEC's indifference, Komani Stationers, as already
indicated, instituted legal proceedings against the MEC. The MEC opposed the
application.

[6] The opposing affidavit filed on behalf of the MEC was deposed to by
Mr E W Scheun, the Director of Legal Services employed by the Department.
After making reference to s 60 of the Schools Act, Mr Scheun stated the
following:
'The provisions and liability of the [MEC] in terms of the provisions of section 60 (1) of the
Act only applies to liability in relation to delictual claims and does not include any contractual
claims against the [SGB] and [Mpendulo Public Primary School]. The Applicant's claim
against the [SGB] and [Mpendulo Public Primary School] is a contractual claim and
accordingly the [MEC] is not liable in terms of sections 60 (1) and 60 (3) of the Act. [Komani
Stationers'] claim and the relief sought against the [MEC] is defective and should accordingly
be dismissed, with costs, on this ground alone.'

[7] He then continued:
'[Komani Stationers] bases its claim against the [MEC] on the judgment which was granted
on 10 September 2015, which judgment was granted against the [SGB] and [Mpendulo Public
Primary School]. If [Komani Stationers] does have a claim against the [MEC], which is
denied, such claim must be instituted against the [MEC]in terms of section 60 (3) of the Act.'

[8] Thereafter Mr Scheun went on to assert that it was not correct that the
MEC became 'liable in terms of s 60(1) of the [Schools Act]' as a consequence

of a school's3 inability to satisfy a judgment against it. He then concluded by
contending that even if it were accepted that Komani Stationers had a claim
against the MEC by virtue of s 60 of the Schools Act, such a claim had
prescribed.

[9] To counter Mr Scheun's assertion that the claim had prescribed, the
deponent to Komani Stationers' replying affidavit averred that:
'7.2.
The claim, which essentially is a claim against a public school, is a claim for specific
performance.
7.3.
The claim against the [MEC] pursuant to the provisions of Section 60(1)(a) of the Act
is only triggered once it is apparent that the school is not in a position to comply with
its contractual obligations and in the present instance only once Judgment has been
obtained against the school (through the medium of the governing body).
7.4.
Accordingly, [Komani Stationers'] claim pursuant to Section 60(l)(a) only arose
subsequent to the granting of the Judgment and when it became apparent that only
subsequent to the granting of the Judgment.
7.5.
It is only after Judgment has been obtained and it appears that the school is unable to
pay the amount outstanding as specific performance, that [Komani Stationers] has
suffered damages for which it can hold the State, through the Member of the Executive
Council for the Department of Education Eastern Cape, liable in terms of Section
60(l)(a).'

[10] Accordingly, it was asserted that 'prescription did not arise until [Komani
Stationers] had knowledge of the identity of the debtor and the facts from which
the debt arose.' And that Komani Stationers became aware of these facts only
when the MEC filed the interpleader summons seeking the release of the goods

3 This was in reference to Mpendulo Public Primary School.

placed under attachment in satisfaction of the judgment obtained in the
magistrates' court.

[11] On 14 December 2017 the matter came before Malusi J who, in his
judgment, found in favour of Komani Stationers. In the result, the learned Judge
ordered the MEC to pay the amounts claimed representing the judgment debt,
costs of suit in the magistrates' court, mora interest calculated from
11 September 2015 to the date of payment and costs attendant upon the high
court proceedings. The present appeal is directed against that order and is with
the leave of the high court.

[12] This appeal concerns the question whether, on its proper construction,
s 60(1) of the Schools Act, as it now reads after its amendment by s 14 of the
Basic Education Laws Amendment Act 15 of 2011 (the Amendment Act),
encompasses claims for specific performance in respect of payment of money
owed to a creditor by a public school because of the prohibition contained in
s 58A(4)4 of the Schools Act. Section 58 A(4) precludes the attachment, in
satisfaction of a judgment debt, of the assets of a public school. The high court
answered that question in the affirmative. Whether the high court was correct in
reaching that conclusion or not is the cardinal issue that confronts us in this
appeal.

[13] If the conclusion reached by the high court prevails, then a subsidiary
issue will arise, namely whether or not the claim asserted by Komani Stationers
against the MEC has prescribed.

4 Section 58A(4) reads:
'The assets of a public school may not be attached as a result of any legal action taken against the school.'

[14] In arriving at its decision the high court, in essence, held that Mpendulo
School was empowered in terms of ss 20 and 215 of the Schools Act to perform
certain functions6 such as entering into agreements of the kind that ultimately
gave rise to the claim instituted against the school by Komani Stationers in the
magistrates' court.7 Furthermore, the high court held that the loss that Komani
Stationers had suffered, and thus sought to recoup from the MEC, arose as a
direct consequence of the school's failure 'to render specific performance'
coupled with the fact that Komani Stationers was, in terms of s 58A(4) of the
Schools Act, precluded from levying execution against the assets of the school
in order to satisfy the judgment it had obtained by default against the school.8

5 Section 21 which is titled 'Allocated functions of governing bodies' reads:
'(1) Subject to this Act, a governing body may apply to the Head of Department in writing to be allocated any
of the following functions:
(a) To maintain and improve the school's property, and buildings and grounds occupied by the school,
including school hostels, if applicable;
(b) to determine the extra-mural curriculum of the school and the choice of subject options in terms of
provincial curriculum policy;
(c) to purchase textbooks, educational materials or equipment for the school;
(d) to pay for services to the school;
(dA) to provide an adult basic education and training class or centre subject to any applicable law; or
(e) other functions consistent with this Act and any applicable provincial law.
(2) The Head of Department may refuse an application contemplated in subsection (1) only if the governing
body concerned does not have the capacity to perform such function effectively.
(3) The Head of Department may approve such application unconditionally or subject to conditions.
(4) The decision of the Head of Department on such application must be conveyed in writing to the governing
body concerned, giving reasons.
(5) Any person aggrieved by a decision of the Head of Department in terms of this section may appeal to the
Member of the Executive Council.
(6) The Member of the Executive Council may, by notice in the Provincial Gazette, determine that some
governing bodies may exercise one or more functions without making an application contemplated in subsection
(1), if–
(a) he or she is satisfied that the governing bodies concerned have the capacity to perform such function
effectively; and
(b) there is a reasonable and equitable basis for doing so.'
6 Section 15 essentially provides that a public school is a juristic person endowed with legal capacity to
perform its function in terms of the Schools Act.
7 Para 17 of the high court judgment.
8 Para 18 of the high court judgment.

[15] Insofar as prescription was concerned, the high court found that the claim
had not prescribed because 'prescription [could] only begin to run on 8 June
2016 which is the date on which the district director deposed to an affidavit
initiating the interpleader summons.’9 Thus, the upshot of this statement is that
prescription could not have commenced to run vis-à-vis the MEC before 8 June
2016 presumably because the MEC's identity as a debtor was unknown to
Komani Stationers until the MEC entered the fray on 8 June 2016 in order to
avert the attachment of the assets of the school.10

[16] It is timely at this stage to make reference to s 58A(4) of the Schools Act.
The section provides:
'The assets of a public school may not be attached as a result of any legal action taken against
the school.'
In this case, s 58A(4) does not present any controversy. Komani Stationers
accepts without question that the school's assets were immune from attachment,
hence it readily conceded the MEC's interpleader claim and, instead, invoked
s 60(1) of the Schools Act to seek recompense against the MEC.

[17] Section 60 of the Schools Act which is headed 'Liability of State' reads:
'(1)(a) Subject to paragraph (b), the State is liable for any delictual or contractual damage or
loss caused as a result of any act or omission in connection with any school activity
conducted by a public school and for which such public school would have been liable but
for the provisions of this section.

9 Para 24 of the high court judgment.
10 Section 12(3) of the Prescription Act 68 of 1969 which is headed 'When prescription begins to run' provides:
'A debt shall not be deemed to be due until the creditor has knowledge of the identity of the debtor and of the
facts from which the debt arises: Provided that a creditor shall be deemed to have such knowledge if he could
have acquired it by exercising reasonable care.'

(b)
Where a public school has taken out insurance and the school activity is an eventuality
covered by the insurance policy, the liability of the State is limited to the extent that the
damage or loss has not been compensated in terms of the policy.
(2)
The provisions of the State Liability Act, 1957 (Act 20 of 1957), apply to any claim
under subsection (1).
(3)
Any claim for damage or loss contemplated in subsection (1) must be instituted
against the Member of the Executive Council concerned.
(4)
Despite the provisions of subsection (1), the State is not liable for any damage or loss
caused as a result of any act or omission in connection with any enterprise or business
operated under the authority of a public school for purposes of supplementing the resources
of the school as contemplated in section 36, including the offering of practical educational
activities relating to that enterprise or business.
(5)
Any legal proceedings against a public school for any damage or loss contemplated
in subsection (4), or in respect of any act or omission relating to its contractual responsibility
as employer as contemplated in section 20 (10), may only be instituted after written notice of
the intention to institute proceedings against the school has been given to the Head of
Department for his or her information.'

[18] In the present case it is not in dispute that the purchase of school stationery
by a public school endowed with the powers under s 2111 of the Schools Act is
a 'school activity' as envisaged in s 60(1).12 Insofar as s 60(4) is concerned, the
State is absolved from liability for any damage or loss arising 'in connection
with any enterprise or business operated under the authority of a public school
for purposes of supplementing the resources of the school as contemplated in
section 36, including the offering of practical educational activities relating to
that enterprise or business.'13

11 It is common cause that Mpendulo Public Primary School is such a school.
12 See s 1(1) of the South African Schools Act 84 of 1996 which defines 'school activity' to mean any official,
educational, cultural, recreational or social activity of the school within or outside the school premises.
13 Section 36 which is headed 'Responsibility of governing body' reads:

[19] It is apposite at this juncture to make one pertinent observation, which is
this: when Komani Stationers commenced litigation in the high court against the
MEC in 2017, the default judgment it had earlier obtained against the school (as
represented by its School Governing Body and Principal) was still extant. And
we were informed, during the hearing, that this remained the position as at the
date of the hearing of the appeal.

Interpretation of s 60(1) of the Schools Act
[20] The principles to be applied to the interpretation of statutory provisions
are by now well settled. The prevailing position is to the effect that:
'Interpretation is the process of attributing meaning to the words used in a document, be it
legislation, some other statutory instrument, or contract, having regard to the context provided
by reading the particular provision or provisions in the light of the document as a whole and
the circumstances attendant upon its coming into existence. Whatever the nature of the
document, consideration must be given to the language used in the light of the ordinary rules
of grammar and syntax; the context in which the provision appears; the apparent purpose to
which it is directed and the material known to those responsible for its production. Where
more than one meaning is possible each possibility must be weighed in the light of all these
factors. The process is objective not subjective. A sensible meaning is to be preferred to one

'(1) A governing body of a public school must take all reasonable measures within its means to supplement the
resources supplied by the State in order to improve the quality of education provided by the school to all learners
at the school.
(2) Despite subsection (1), a governing body may not enter into any loan or overdraft agreement so as to
supplement the school fund, without the written approval of the Member of the Executive Council.
(3) If a person lends money or grants an overdraft to a public school without the written approval of the Member
of the Executive Council, the State and the public school will not be bound by the contract of lending money or
an overdraft agreement.
(4) (a) A governing body may, with the approval of the Member of the Executive Council-
(i)
lease, burden, convert or alter immovable property of the school to provide for school activities or to
supplement the school fund of that school; and

(ii) allow any person to conduct any business on school property to supplement the school fund.
(b) A governing body may not allow any activity on school property that is hazardous or disruptive to learners
or prohibited by this Act.
(5) For the purposes of subsection (4), "school property" means immovable property owned by the State,
including property contemplated in sections 13 and 55 and any immovable property bought by a school from
the school funds or donations to the school.'

that leads to insensible or unbusinesslike results or undermines the apparent purpose of the
document. Judges must be alert to, and guard against, the temptation to substitute what they
regard as reasonable, sensible or businesslike for the words actually used. To do so in regard
to a statute or statutory instrument is to cross the divide between interpretation and legislation.
In a contractual context it is to make a contract for the parties other than the one they in fact
made. The "inevitable point of departure is the language of the provision itself", read in
context and having regard to the purpose of the provision and the background to the
preparation and production of the document.' (Footnotes omitted.)
So said Wallis JA in Natal Joint Municipal Pension Fund v Endumeni
Municipality 14 . This approach has not been departed from since. On the
contrary, it has been reaffirmed on several occasions both by the Constitutional
Court15 and this Court.16

[21] In Cool Ideas17 the Constitutional Court reiterated what it termed 'three
important interrelated riders' to statutory interpretation. These are:
'A fundamental tenet of statutory interpretation is that the words in a statute must be given
their ordinary grammatical meaning, unless to do so would result in an absurdity. There are
three important interrelated riders to this general principle, namely:
(a) that statutory provisions should always be interpreted purposively;
(b) the relevant statutory provision must be properly contextualised; and
(c) all statutes must be construed consistently with the Constitution, that is, where reasonably
possible, legislative provisions ought to be interpreted to preserve their constitutional validity.
This proviso to the general principle is closely related to the purposive approach referred to
in (a).' (Footnotes omitted.)

14 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; [2012] 2 All SA 262
(SCA) para 18.
15 Cool Ideas 1186 CC v Hubbard and Another 2014 (4) SA 474 (CC) para 28 (Cool Ideas); AfriForum and
Another v University of the Free State 2018 (2) SA 185 (CC) para 43; Chisuse and Others v Director-General,
Department of Home Affairs and Another [2020] ZACC 20 paras 47-48.
16 Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk 2014 (2) SA 494 (SCA);
G4s Cash Solutions v Zandspruit Cash And Carry (Pty) Ltd and Another 2017 (2) SA 24 (SCA) para 12.
17 Footnote 15 para 28.

[22] It is as well to keep at the forefront of one's mind the salutary remarks by
Schreiner JA that:
'[T]he legitimate field of interpretation should not be restricted as a result of excessive peering
at the language to be interpreted without sufficient attention to the contextual scene.'18

[23] Nevertheless, as the Constitutional Court cautioned in Kubyana v
Standard Bank of South Africa Ltd (Kubyana):19
'[L]egislation must be understood holistically and, it goes without saying, interpreted within
the relevant framework of constitutional rights and norms. However, that does not mean that
ordinary meaning and clear language may be discarded, for interpretation is not divination
and courts must respect the separation of powers when construing Acts of Parliament.'

[24] Counsel on both sides were in agreement that the claim asserted by
Komani Stationers is essentially one for specific performance. Counsel also
accepted that on its terms s 60(1) does not absolve public schools from liability
in respect of their contractual obligations. It is, therefore, hardly surprising that
when Mpendulo School failed to pay for the stationary it had purchased from
Komani Stationers the latter instituted legal action in the magistrates' court
against the school itself.

[25] In Bastian Financial Services (Pty) Ltd v General Hendrik Schoeman
Primary School20 this Court had occasion to consider the proper interpretation
of s 60 as it then read. This was before its amendment by the Amendment Act.
Section 60, at that stage, read thus:

18 Jaga v Dönges, NO and Another; Bhana v Dönges, NO and Another 1950 (4) SA 653 (A) at 662G-H and
664H quoted with approval by the Constitutional Court in Bato Star Fishing (Pty) Ltd v Minister of
Environmental Affairs and Tourism and Others 2004 (4) SA 490 para 89.
19 Kubyana v Standard Bank of South Africa Ltd [2014] ZACC 1; 2014 (3) SA 56 (CC) para 18 (Kubyana).
20 Bastian Financial Services (Pty) Ltd v General Hendrik Schoeman Primary School [2008] ZASCA 70; 2008
(5) SA 1 (SCA) (Bastian).

'(1)
The State is liable for any damage or loss caused as a result of any act or omission in
connection with any educational activity conducted by a public school and for which such
public school would have been liable but for the provisions of this section.

(2)
The provisions of the State Liability Act, 1957 (Act No. 20 of 1957), apply to any
claim under subsection (1).

(3)
Any claim for damage or loss contemplated in subsection (1) must be instituted
against the Member of the Executive Council concerned.

(4)
Despite the provisions of subsection (1), the State is not liable for any damage or loss
caused as a result of any act or omission in connection with any enterprise or business
operated under the authority of a public school for purposes of supplementing the resources
of the school as contemplated in section 36, including the offering of practical educational
activities relating to that enterprise or business.

(5)
Any legal proceedings against a public school for any damage or loss contemplated
in subsection (4), or in respect of any act or omission relating to its contractual responsibility
as employer as contemplated in section 20(10), may only be instituted after written notice of
the intention to institute proceedings against the school has been given to the Head of
Department for his or her information.'

[26] Although s 60 was, at that stage, couched in slightly different language,
it was, save for minor yet fundamental changes, in substance functionally
equivalent to the current s 60. In Bastian this Court observed that although
s 60(1) was couched in broad and general terms it could not 'be interpreted to
render the State liable for specific performance of contractual obligations

lawfully undertaken by a public school through the medium of its governing
body.'21

[27] The Court went on to hold that:
'The public school itself, and not the State, is therefore liable for the fulfilment of a public
school’s contractual obligations – the other party to the contract cannot, as it were, rely on
some sort of ‘warranty’ by the State that the school will perform its obligations under
contracts which have been lawfully concluded. This being so, it is difficult to understand why
the Legislature would have intended s 60(1) of the Act to have the effect of imposing upon
the State a ‘warranty’, vis à vis the other party to a contract with a public school, to pay
contractual damages to such other contracting party should the school breach its contractual
obligations.'22

[28] Hot on the heels of this Court's decision in Bastian, the Legislature
amended s 60 to explicitly provide in s 60(1)(a) thereof that, subject to
paragraph (b)23, 'the State is liable for delictual or contractual damage or loss
caused as a result of any act or omission in connection with any school activity,
conducted by a public school. . .' The italicised words represent the changes in
the text of s 60(1) introduced by the amendment brought about by s 14 of the
Amendment Act.24

[29] As already mentioned above, the central issue in this appeal is whether
the high court was correct in sustaining the claim for specific performance
asserted by Komani Stationers against the MEC. Unsurprisingly, counsel for

21 Bastian para 21.
22 Bastian para 22.
23 Paragraph (b) reads:
'Where a public school has taken out insurance and the school activity is an eventuality covered by the insurance
policy, the liability of the State is limited to the extent that the damage or loss has not been compensated in
terms of the policy.'
24 See para 12 above.

Komani Stationers valiantly supported the judgment of the high court. On the
contrary, counsel for the MEC trenchantly criticised the underlying reasoning
of the high court. In broad terms, counsel contended that the high court erred in
two fundamental respects. First, it paid no regard to the purpose of the
Amendment Act contained in the long title which states that the purpose of the
amendment was 'to further regulate the liability of the State for certain damages.'

[30] Counsel submitted that the words 'liability of the State for certain
damages' clearly evince an intention to limit the liability of the State to either
delictual or contractual damages or loss only. And that a claim for specific
performance seeks not the payment of damage or loss but rather performance of
a specific act or payment of money pursuant to a contractual obligation.25 The
distinction between a claim for damages for breach of contract and a claim for
payment under the contract, that is specific performance, was explained by
Innes CJ in Gibson Ltd v Woodhead Plant Ltd26 thus:
'The claim in this action is for £900 less royalties received on actually imported; there is no
claim for loss otherwise sustained owing to non-importation, nor is there any averment of
such loss. The sum demanded therefore, is what the respondents undertook to pay.'27
In Gibson Ltd the plaintiff had described its claim in its declaration as one for
damages. However, this Court observed that in view of the fact that in truth the
relief sought in the action represented a payment which the respondent had
contracted to make it could not properly be described as a claim for damages.

[31] Secondly, counsel submitted that in failing to pay due regard to one of the
fundamental tenets of statutory interpretation, namely to have regard to every

25 See, for example, Olivier v Stoop 1978(1) SA 196 (T) at 202 A-C.
26 Gibson Ltd v Woodhead Plant Ltd 1918 AD 308.
27 Ibid at 314.

word in a statutory provision, the high court ignored the most crucial words, that
is, 'delictual and contractual damage or loss' contained in the amended s 60(1)
which are indicative of the fact that s 60(1) ascribes liability to the State only
for delictual or contractual damage or loss to the exclusion of claims for specific
performance.

[32] In counter, counsel for Komani Stationers submitted that the decision in
Corporate Finance Solutions (Pty) Ltd v Laerskool Hartswater28 was wrong in
concluding that a claim for specific performance was not available against the
State under s 60(1) of the Schools Act. It was argued that in coming to this
conclusion, the high court there failed to have regard to the effect of s 58A(4)
of the Schools Act which proscribed the attachment of the assets of a public
school.

[33] It was further contended that the word 'loss' in s 60(1) ought to be given
an extended meaning to encompass a loss occasioned by a school's inability to
fulfil its contractual obligations, including a claim for specific performance. In
addition, it was submitted in counsel's heads of argument that 'where it is
apparent, . . ., that enforcement of performance against a debtor is impossible,
[by reason of the prohibition in s 58A(4) in this case] the claim against the MEC
is not dissimilar to a claim for damages as surrogate for performance.' For this
proposition, counsel called into aid this Court's decision in Mostert NO v Old
Mutual Life Assurance Co (SA) Ltd.29

28 Unreported judgment of the Gauteng Division of the High Court, Pretoria under case no 508/2012.
29 Mostert NO v Old Mutual Life Assurance CO (SA) Ltd 2001 (4) SA 159 (SCA) (Mostert NO).

[34] It is therefore necessary to consider what s 60(1) means by providing that
'the State is liable for any delictual or contractual damage or loss caused as a
result of any act or omission in connection with any school activity conducted
by a public school and for which a public school would have been liable but for
the provisions of this section.' This exercise will be undertaken in the light of
the interpretive tenets outlined above, having due regard to the objects of the
Schools Act and the manifest purpose of the Amendment Act to which reference
has been made in paragraph 12 above. And, I do so cognisant of the
constitutional injunction in s 39(2) of the Constitution, which decrees that when
interpreting legislation every court must promote the spirit, purport and objects
of the Bill of Rights.

[35] It bears mentioning, by way of prelude, that a delict generally entails a
breach of a duty imposed by the law independently of the will of the party
bound. On the other hand, contractual damage or loss flows from a breach of
contract and thus consists of a breach of a duty voluntarily assumed. However,
as E M Grosskopf AJA (writing for the majority) recognised in Lillicrap,
Wassenaar and Partners v Pilkington Brothers30 (SA) (Pty) Ltd, there may well
be an overlap between a claim for delictual and contractual damage where the
conduct complained of constitutes both a breach of contract and also satisfies
the requirements of a delictual claim.31

[36] In contrast, specific performance entails the right of a plaintiff to insist,
subject only to the court's discretion, that the other party to the contract performs

30 Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 (1) SA 475 (A) at 495I-496A-
H.
31 See also Van Wyk v Lewis 1924 AD 438 at 443; And compare Administrator, Natal v Edouard 1990 (3) SA
581 (A) at 597 as to the differences between the remedy for breach of contract and for delict.

his or her undertaking in terms of the contract whenever he or she is in a position
to do so.32

[37] The last ditch contention on behalf of Komani Stationers was that if it is
not allowed to claim specific performance from the MEC this would mean that
it has no other remedy because it cannot execute against the school as a result
of the prohibition in s 58A(4). This contention cannot be sustained. Had the
legislation meant that a creditor who cannot execute against a public school
could enforce its rights, deriving from a contract with a public school, against
the relevant MEC, it would have said so. However, this is not what s 60(1) says.
All it says is that 'the State is liable for any delictual or contractual damage or
loss caused as a result of any act or omission in connection with any school
activity conducted by a public school and for which such a public school would
have been liable but for the provisions of this section.'

[38] During argument the question was raised as to whether it were not, for
example, open to Komani Stationers, once the school failed to pay the purchase
price, to cancel the contract with Mpendulo School on account of the latter's
breach of the contract and then sue the MEC for contractual damage in terms of
s 60(1) and (3) of the Schools Act. However, it is not necessary to express a firm
view on this proposition because the situation put to counsel did not arise in this
case. Nevertheless, I venture to say that had that situation eventuated the
position would have been as follows. It would, in that event, have been open to
Komani Stationers to invoke s 60(1) of the Schools Act, and institute a claim

32 See in this regard: Farmers' Co-op Society (Reg) v Berry 1912 AD 343 at 350.

'from the onset' for the 'damage or loss' suffered against the MEC as
contemplated in s 60(3).

[39] However, what in fact happened here is that Komani Stationers elected to
sue Mpendulo School (and the SBG) for specific performance. When it was
confronted with s 58A(4) – which had been in operation since 26 January 200633
– it still, and specifically, chose to claim specific performance against the MEC.
But, this is not what s 60 contemplates. Its wording, in light of its context and
purpose, caters only for a claim for delictual or contractual damage or loss which
is required to be instituted from the outset against the MEC concerned.34

[40] As already pointed out, in view of the conclusion as to the legal position
reached in this judgment the proposition put to counsel is, happily, not an issue
we are called upon to decide in this case. Thus, that question will have to wait
for another day where it is pertinently raised and addressed. For as Howie JA
pointedly observed:
'Finally it is desirable that any judgment of this Court be the product of thorough consideration
of, inter alia, forensically tested argument from both sides on questions that are necessary
for the decision.'35 (Emphasis added.)

[41] To bring a claim within the purview of s 60(1) in order to hold the State
liable the claimant would need to establish the following: (a) delictual or
contractual damage or loss; (b) caused as a result of any act or omission; (c) in
connection with a school activity; (d) conducted by a public school; (e) for

33 See s 6 of the Education Laws Amendment Act 24 of 2005.
34 See Moodley v Kenmont School and Others 2020 (1) SA 410 (CC) para 45 (Moodley).
35 Western Cape Education Department and Another v George [1998] 2 All SA 623 (A); 1998 (3) SA 77
(SCA) at 84E.

which such public school would have been liable but for the provisions of this
section.

[42] This then raises the question as to whether or not, in the context of the
facts of this case, Komani Stationers satisfied these requirements. I do not think
so. That Komani Stationers did not assert a delictual claim admits of no doubt.
So too, on its own admission, it did not assert a claim for contractual damage or
loss. Instead, it chose to pursue Mpendulo School for specific performance. As
pointed out above, it was only after it had been confronted with s 58A(4) that it
instituted another claim, still for specific performance, against the MEC.

[43] However, its approach is not what s 60(1) countenances. The provision is
specifically designed to come to the rescue of someone who asserts a delictual
or contractual claim for damage or loss. There is no good reason to extend the
operation of s 60(1) beyond its natural ambit. To do so would be crossing the
divide between statutory interpretation and legislating. The clear and
unequivocal language employed in s 60(1) cannot be ignored for as Kentridge
AJ aptly put it in S v Zuma and Others:36
'[I]f the language used by the lawgiver is ignored in favour of a general resort to "values" the
result is not interpretation but divination.'

[44] Although these remarks were made in a different context, the
Constitutional Court subsequently stated in Kubyana that 'they apply even more
forcefully in relation to statutory interpretation generally.'37 Accordingly, the
reliance by Komani Stationers on Mostert NO is misplaced as that case turned

36 S v Zuma and Others [1995] ZACC 1; 1995 (2) SA 62 (CC) para 18.
37 Kubyana para 18.

on its facts which are materially distinguishable from the facts of the present
matter.

[45] It remains to mention that the constitutional issue that was foreshadowed
in this Court's directive38 of 21 February 2020, namely whether or not s 58A(4)
of the Schools Act is constitutionally valid by virtue of its potentiality to infringe
ss 9 and 34 of the Constitution, does no longer arise. This is so because in
Moodley39 the Constitutional Court, whilst recognising that s 58A(4) of the
Schools Act limited the fundamental rights guaranteed in ss 9(1) and 10 of the
Constitution, nevertheless held that the limitation was reasonable and justifiable
under s 36(1) of the Constitution. The Court noted that (paras 25-26):
'. . . this matter concerns two crucial constitutional rights: the right that decrees that "[a]
child’s best interests are of paramount importance in every matter concerning the child"; and
the right to basic education. Of particular significance in the present context is the right to
basic education.  The purpose of the limitation brought about by section 58A(4) is to avert
any adverse effects that could be caused by the attachment of school assets.

There is no denying that a significant number of South African public schools operate
under conditions of extreme deprivation. Largely, these are schools that service communities

38 The directive read, in material parts, as follows:
'1.
This appeal has been removed from the roll in view of the likelihood of the following Constitutional
issue arising if it succeeds on the basis that the respondents claim is not a claim for damage or loss in
terms of s 60(1) (a) of the South African Schools Act 84 of 1986:
"Are the Respondent's constitutional rights to equality (s 9 of the Constitution) and access to courts (s
34 of the Constitution) infringed by its inability by virtue of s 58A(4) of the Schools Act to execute on
a judgment for the price of goods sold and delivered to a public school and the absence of any remedy
against the MEC: Education for the Eastern Cape or any other party to recover the amount due in terms
of that judgment."
2.
The appellant is directed to serve a copy of the appeal record, together with the heads of argument and
this directive, on the Minister for Basic Education and the Minister of Justice.
3.
The Ministers are required to five notice within 10 days of such service to the Registrar of this court
and the parties' attorneys indicating if they intend to intervene in this appeal.
4.
If either Minister intervenes in the appeal their heads of argument shall be delivered within 30 days of
the date of the notice to intervene.
. . .'
39 Above fn 34.

disadvantaged by South Africa’s colonial and apartheid past. If what meagre resources they
have were to be liable to be attached to satisfy judgment debts, untold misery would be visited
upon the already disadvantaged school children. Imagine a school bereft of all materials
necessary for education such as desks, chairs or benches, laboratory apparatus, books,
computers, school buses and other vehicles, and the like. Imagine the spectre of school
children who – because of the lack of desks and chairs or benches – have to sit on the floor
and write on their laps. Imagine a school that has lost its meagre financial resources to an
attachment and cannot buy the barest of necessities.' (Footnotes omitted.)

[46] The Court then went on to say (paras 30 and 31):
'. . . therefore, the proscription in section 58A(4) of the Schools Act of the attachment of the
assets of public schools is meant to protect this very important right, the right to basic
education. It averts the obvious harm that would surely eventuate if school assets could be
attached.

Although in nature and extent the limitation is absolute, in the light of the right that it
seeks to protect, that is the right to basic education, the limitation is understandable. Add to
this the cognate right, the right that "[a] child’s best interests are of paramount importance in
every matter concerning the child". This is by no means making light of the importance of
the rights to dignity and equality, both of which are – as I have said – of particular significance
in the South African context. The reality is that the right that the limitation is seeking to
advance cries out for protection. And that is a cry which we cannot but heed.' (Footnotes
omitted.)

[47] In this case there can be no question of Komani Stationers having been
denied access to courts in breach of its constitutional right in terms of s 34 of
the Constitution. In truth, what happened here is that Komani Stationers
misconceived the nature of its remedy under s 60 of the Schools Act. Thus, it
was the author of its own misfortune.

[48] Advisedly, I refrain from saying anything about the fact that Komani
Stationers itself had at no stage prior to this Court's directive questioned the
constitutional validity of s 58A(4) of the Schools Act.

[49] For all the foregoing reasons therefore, the primary argument predicated
upon s 60 of the Schools Act and advanced on behalf of the MEC must succeed.
In sum, it is held that s 60 in its current incarnation is limited only to delictual
or contractual damage or loss arising as a result of an act or omission in the
circumstances stipulated in the section itself against a public school and does
not avail a creditor who seeks to enforce a contractual claim for specific
performance against the MEC concerned when a claim of that kind lies solely
against a public school that is privy to the contract. And that in circumstances
where s 60 avails a creditor, the creditor is required, in terms of s 60(3), to
institute its claim at the outset against 'the Member of the Executive Council
concerned' and not first against a public school and when no payment is
forthcoming from the school, to then turn to the Member of the Executive
Council concerned.40

[50] This is indeed what s 60(1) and (3) contemplates. As this Court rightly
noted in Bastian, it is inconceivable that s 60(1) was intended to provide the
other contracting party to a contract with a public school with some kind of
'warranty' against a public school that has failed to perform its contractual
obligations. The change in the wording of s 60(1) brought about by the 2011
amendment does not affect this position. In the present case it is common cause

40 Moodley para 45.

between the parties that Komani Stationers is in effect claiming specific
performance from the MEC.41

[51] The conclusion to which I have arrived renders it unnecessary to consider
the MEC's alternative contention with respect to prescription.

[52] Before making the order, it is necessary to mention that I have had the
advantage of reading, with great care and interest, the dissenting judgment of
Mocumie and Mbatha JJA. However, I do not propose to traverse their reasons
in support of the conclusion to which they have come. Suffice it to state that
most of the statements of fact which constitute the foundation on which the
edifice of their reasoning rests are not borne out by the record.

[53] One of the enduring tenets of judicial adjudication is that courts are
enjoined to decide only the issues placed before them by the litigants. And that
it is not open to a court to change the factual issues presented by the parties or
introduce new issues.

[54] This principle was aptly explained in Fischer and Another v Ramahlele
and Others42 in which the following was stated:
'Turning then to the nature of civil litigation in our adversarial system it is for the
parties, either in the pleadings or affidavits, which serve the function of both pleadings and
evidence, to set out and define the nature of their dispute and it is for the court to adjudicate
upon those issues. That is so even where the dispute involves an issue pertaining to the basic

41 Bastian paras 21-22.
42 Fischer and Another v Ramahlele and Others [2014] ZASCA 88; 2014 (4) SA 614 (SCA); [2014] 3 All SA
395 (SCA) paras 13-14. See also National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2)
SA 277 (SCA) ; 2009 (1) SACR 361 (SCA) ; 2009 (4) BCLR 393 (SCA) ; [2009] 2 All SA 243 (SCA) paras
15-16.

human rights guaranteed by our Constitution, for ‘it is impermissible for a party to rely on a
constitutional complaint that was not pleaded’. There are cases where the parties may expand
those issues by the way in which they conduct the proceedings. There may also be instances
where the court may mero motu raise a question of law that emerges fully from the evidence
and is necessary for the decision of the case. That is subject to the proviso that no prejudice
will be caused to any party by its being decided. Beyond that it is for the parties to identify
the dispute and for the court to determine that dispute and that dispute alone.

It is not for the court to raise new issues not traversed in the pleadings or affidavits,
however interesting or important they may seem to it, and to insist that the parties deal with
them. The parties may have their own reasons for not raising those issues. A court may
sometimes suggest a line of argument or an approach to a case that has not previously
occurred to the parties. However, it is then for the parties to determine whether they wish to
adopt the new point. They may choose not to do so because of its implications for the further
conduct of the proceedings, such as an adjournment or the need to amend pleadings or call
additional evidence. They may feel that their case is sufficiently strong as it stands to require
no supplementation. They may simply wish the issues already identified to be determined
because they are relevant to future matters and the relationship between the parties. That is
for them to decide and not the court. If they wish to stand by the issues they have formulated,
the court may not raise new ones or compel them to deal with matters other than those they
have formulated in the pleadings or affidavits.' (Footnotes omitted.)

[55] Explaining the difference between a review and an appeal in
Johannesburg Consolidated Investment Company Ltd v Johannesburg Town
Council43 Innes CJ made the following pertinent remarks in relation to an appeal
record:
'... there is this distinction between the two, [a review and an appeal] that an appellant comes
into court upon a record of the case in the court below, and by that record, he is bound, he

43 Johannesburg Consolidated Investment Company Ltd v Johannesburg Town Council 1903 TS 111 at 115.
See also in this regard S v Makwanyane and Another 1995 (3) SA 391 (CC) para 54 in which it was said:
'[A]ppeals are decided on the record of the case and the findings made by the trial court.'

cannot take advantage of any circumstance which does not appear upon or cannot be deduced
from the record.'

[56] In similar vein, the Constitutional Court, in dealing with the import of rule
19(1)(c)(i) of its rules, stated that:
'[R]ule 19 deals with the preparation of the appeal record, which according to the practice of
our courts has always been understood to mean a record of the proceedings in the court against
whose decision the appeal has been noted.'44

[57] In the circumstances, I have serious misgivings about the approach
adopted in the dissenting judgment. It has, contrary to judicial precedent,
adjudicated this case on the basis of facts not relied upon by the parties in their
affidavits. In so doing, the dissenting judgment has, with respect, gone outside
the four corners of the record, thereby overlooking the fundamental principle
that, as an appellate court, this Court is as a general rule confined to the appeal
record.

[58] The reason for this sound principle is not far to seek. Primarily, the task
of the appellate court is to determine whether the court of first instance arrived
at the correct decision on the issues, supported by facts, raised by the parties.
And absent the admission of new evidence on appeal, the appellate court is
bound by the record and may not stray beyond what is contained in the record.

[59] And, what is more, where the constitutionality of a statutory provision is
not impugned, as in this case, courts are enjoined to interpret the implicated
provisions 'in a manner best compatible with the Constitution'. This principle

44 S v Lawrence; S v Negal; S v Solberg [1997] ZACC 11; 1997 (10) BCLR 1348 (CC) paras 17-19.

was affirmed by the Constitutional Court in Grootboom v National Prosecuting
Authority and Another.45

[60] In the result the following order is made:
The appeal is upheld with costs, including the costs of two counsel.
The order of the high court is set aside and in its place is substituted the
following:
'The application is dismissed with costs, including the costs of two
counsel where so employed.'

X M PETSE
ACTING PRESIDENT
SUPREME COURT OF APPEAL

Mocumie JA and Mbatha JA (dissenting):

[61] We have had the benefit of reading the judgment by our colleague, Petse
AP with whom other colleagues agree. He proposes to find in favour of the
appellant, the MEC, in respect of all the issues on appeal. We respectfully hold
a different view. Our approach is based on a reading of s 60(1) of the Schools

45 Grootboom v National Prosecuting Authority and Another [2013] ZACC 37; 2014 (2) SA 68 (CC) para 37.

Act in line with the now settled principles of interpretation of statutes set out in
para 20 of the majority judgment and in line with s 39(2) of the Constitution.

[62] There is a preliminary issue which needs to be addressed before we delve
into the merits of the appeal. It is common cause that when the appeal was
initially set down, the parties confined themselves strictly to the four corners of
the record. The scope of the appeal, to include constitutional issues, was
widened by the directive of this Court. This necessitated the postponement of
the appeal and the filing of supplementary heads of argument by the parties. The
essence of the directive was that it waived that the constitutional issues were not
raised in the pleadings as it mero motu called upon the parties to address it on
specific constitutional issues.  In a letter addressed to the parties, this Court
required the following in terms of a Directive issued which we quote:
‘1. This appeal has been removed from the roll in view of the likelihood of the following
constitutional issue arising if it succeeds on the basis that the respondent’s claim is not a claim
for damage or loss in terms of s 60(1)(a) of the South African Schools Act 84 of 1986:
“Are the Respondent’s constitutional rights to equality (s 9 of the Constitution) and access to
courts (s 34 of the Constitution) infringed by its inability by virtue of s 58A(4) of the Schools
Act to execute on a judgment for the price of goods sold and delivered to a public school and
the absence of any remedy against the MEC: Education for the Eastern Cape or any other
party to recover the amount due in terms of that judgment.”

2. The appellant is directed to serve a copy of the appeal record, together with the heads of
argument and this directive, on the Minister for Basic Education and the Minister of Justice.

3. The Ministers are required to give notice within 10 days of such service to the Registrar of
this court and the parties’ attorneys indicating if they intend to intervene in this appeal.

4. If either Minister intervenes in the appeal their heads of argument shall be delivered within
30 days of the date of the notice to intervene.

5. The parties are given leave to deliver supplementary heads of argument dealing with the
constitutional issue within 20 days of the delivery of the later of the Minister’s heads of
argument, or within 20 days of the elapse of the period of 10 days in paragraph 3 of this
directive, whichever is the earlier.

6. The Registrar is directed to send a copy of this directive to the following non-governmental
organisations: Equal Education; Legal Resources Centre, Grahamstown; the Federation of
School Governing Bodies and the Governing Body Foundation.

7. Any such organisation wishing to intervene in this appeal shall apply to be admitted as an
amicus curiae in terms of Rule 16A of the Uniform Rules of Court.

8. The appeal will be enrolled again once all parties and amici have complied with this
directive.’
The parties thereafter conducted their case on this basis.

[63] There are two issues raised by this appeal: first, the interpretation of the
provisions of s 60 of the Schools Act as amended by the Amendment Act;
second, whether s 58A(4) read with s 60 of the Schools Act infringed the
respondent’s, Komani Stationers’, right to equality under s 9 of the Constitution
and its right of access to courts in terms of s 34 of the Constitution.

[64] The most contentious issue arising from the conclusion reached by the
learned acting president is whether it can be said that s 60(1), as amended, only
ascribes liability to the State for delictual and contractual damages and loss, with
the exclusion of claims for specific performance. In the context of the

interpretation of the provisions of s 60(1), it is important to bear in mind that the
claim by Komani Stationers against Mpendulo Primary School is one for
specific performance. Komani Stationers’ claim for contractual damages against
the MEC is based on the same cause of action that served before the magistrate’s
court, save that the claim was again pursued against the MEC. When Komani
Stationers could not execute against the school this required the interpretation
of the provisions of s 60(1)(a), as amended, which provide as follows:
‘Subject to paragraph (b) the State is liable for any delictual or contractual damage or loss
caused as a result of any act or omission in connection with any school activity conducted by
a public school and for which such public school would have been liable but for the provision
of this section.’

[65] The Minister intervened in the proceedings on the basis that the matter
raised constitutional issues and the absence of the remedy against the MEC for
Komani Stationers to recover the amount due in terms of the judgment. The
backdrop to this was the finding by the court a quo that s 60(1) was triggered by
the failure of the school to render specific performance which therefore
guaranteed the obligations of the State.

[66] The MEC contends that the liability of the State is only limited to delictual
and contractual obligations or loss in line with the Bastian46 judgment. It further
contended that the court a quo misconstrued the approach to the principles set
out in Bastian to the amended s 60.

[67] Furthermore, the MEC contended that there is a clear distinction between
a liability in a contract for a purchase price as opposed to one for damages

46 Footnote 20.

arising from a breach of contract. The MEC asserted that if such liability is
ascribed to the State this would create a second liability accessory to the liability
of a public school. The MEC furthermore suggested that Komani Stationers was
not without a remedy. A remedy fashioned in Moodley,47 namely a mandamus
and contempt proceedings are available to it.

[68] As Petse AP notes in para 20 of the majority judgment, ‘[t]he principles
to be applied to the interpretation of statutory provisions are by now well
settled’. Additionally, s 39(2) of the Constitution48 allows the courts to develop
any private law remedies in line with the Bill of Rights.

[69] The process of interpreting the Constitution must recognise the situational
context and the Constitution’s goal of a society based on democratic values,
social justice and fundamental human rights. The Constitution’s history and
purpose involves a transition from a society based on division, injustice and
exclusion to a vested democratic society, respecting the dignity of all its citizens
and including everyone in the process of governance. This spirit of transition
and transformation characterises the constitutional enterprise as a whole.49

[70] This theme of democratic values, social justice and fundamental human
rights in the Constitution finds resonance in the Schools Act. The preamble to
the Schools Act sets out the objectives of that Act as follows:

47 Footnote 35.
48 Section 39(2) provides that when interpreting any legislation, and when developing common law or customary
law, every court, tribunal or forum must promote the spirit, purport and objective of the Bill of Rights.
49 Investigating Directorate: Serious Economic Offences and Others v Hyundai Motor Distributors (Pty) Ltd
and Others In re: Hyundai Motor Distributors (Pty) Ltd and Others v Smit NO and Others [2000] ZACC 12;
2000 (10) BCLR 1079 para 21.

‘Whereas this country requires a new national system for schools which will redress past
injustices in educational provision, provide an education of progressively high quality for all
learners and in so doing lay a strong foundation for the development of all our people’s talents
and capabilities, advance the democratic transformation of society, combat racism and sexism
and all other forms of unfair discrimination and intolerance, contribute to the eradication of
poverty and the economic well-being of society, protect and advance our diverse cultures and
languages, uphold the rights of all learners, parents and educators, and promote their
acceptance of responsibility for the organisation, governance and funding of schools in
partnership with the State; and
Whereas it is necessary to set uniform norms and standards for the education of learners at
schools and the organisation, governance and funding of schools throughout the Republic of
South Africa.’

[71] The Constitutional Court in Competition Commission of South Africa v
Mediclinic Southern Africa (Pty) Ltd and another50 para 9 stated as follows:
‘The invocation of section 39(2) of the Constitution in interpreting legislation that implicates
a right in the Bill of Rights, ought not to be viewed as an optional extra. It should rather be
seen as a constitutional injunction. Whether any of the parties have specifically contended for
the interpretation of legislation with express reference to or through the prism of section 39(2)
should not really matter. It is, broadly speaking, a constitutional obligation that rests on the
shoulders of any court interpreting legislation or developing the common law or customary
law, to promote the spirit, purport and objects of the Bill of Rights. That a court, whose
judgment and order is appealed against, might not have heeded this constitutional call to duty
should only point to its failure to do what it was obliged to do in the first place.’ (Footnote
omitted.)

[72] This means, as provided in s 34 of the Schools Act, that the State has a
Constitutional obligation to ‘fund public schools from public revenue on an

50 Competition Commission of South Africa v Mediclinic Southern Africa (Pty) Ltd and Another [2021] ZACC
35.

equitable basis in order to ensure the proper exercise of the rights of learners to
education and the redress past inequalities in education provision’. This should
be read with s 36 of the Schools Act which provides that the SGB must take all
reasonable steps to supplement resources by the State in order to improve the
quality of education provided by the school to all learners at the school.

[73] A narrow interpretation of s 60(1)(a) proposed by the MEC infringes
Komani Stationers’ right to equality under s 9 of the Constitution and its right
to access to courts in terms of s 34 of the Constitution. We envisage an
interpretation which is not only purposive, but also pragmatic and protects small
business enterprises which have a legitimate right to participate in the economy
of their country without any hindrances and or curtailment of their rights from
organs of State. The failure to accord protection to such business enterprises will
not only negatively affect them, but will also impact on the values enshrined in
the preamble to the Schools Act, amongst which, the provision of ‘an education
of progressively high quality for all learners.’

[74] Moreover, the interpretation advanced by the MEC manifestly and
unreasonably offends public policy. The school is a juristic entity with powers
to contract with consequences which flow from such powers. The MEC is
responsible for ensuring that such powers are properly exercised by the public
school. The nature of Komani Stationers’ claim is sui generis, because of the
limitation imposed by s 58A(4). To curtail the rights of Komani Stationers by
the narrow interpretation of s 60(1)(a) proposed in these circumstances would
be an anomaly that cannot be countenanced in any democratic society.

[75] Any other interpretation of s 60(1) would set the unjust precedence of a
party being denied the possibility of pursuing a remedy of specific performance
against a school in circumstance beyond their control. Komani Stationers, in this
case, made every effort to purge the indebtedness against the school. It cannot
be said that it adopted a supine attitude and failed to pursue its remedies against
the school. It is inconceivable, in the rural social context and setting in which
the parties live, that Komani Stationers should have ascertained if the school had
sufficient funding before supplying it with the necessary school materials, as the
MEC contended.

[76] Mpendulo Primary School is a quintile three school, in an area where
most parents are illiterate or working outside the province. The Minister in her
intervening affidavit, sets out the norms and standards for public school funding.
The public school in this matter, being a public school, is accorded ‘s 21
functions’ namely, to maintain and improve the school’s property and buildings
and grounds occupied by the school; purchase textbooks, educational materials
or equipment for the school; and to pay for services to the school. The SGB is
responsible for managing aspects of expenditure. The decision to allocate these
functions to the SGB by the Department of Education takes into account
considerations relating to the capability to handle and account for public funds,
to meet contractual obligations to suppliers of goods and services and the ability
to make sound financial decisions.51

[77] The s 21 functions, which are bestowed on SGBs, require governors with,
at least, a basic understanding of finance and budgeting. This is so because the

51 See in this regard s 29 of the Schools Act.

SGB manages the intricate finances, procurement, and management of school
assets, and requires that the SGB should be able to handle the financial
administration of the school after receiving some form of financial management
training. Although not pleaded, however, from the paucity of information on the
part of the Minister and the MEC,52 there is no indication that the SGB was
capacitated in financial management to the level of concluding a contract of this
magnitude. In her affidavit, the Minister has not disclosed the competency of
the SGB in this sphere.

[78] Furthermore, the Minister has not stated whether the school and the SGB
exceeded the allocated budget or whether there was an increase in the intake of
pupils or if they received the allocated budget at all. She merely sets out the
allocations to the school and the responsibilities of the SGB, without giving the
actual facts relating to the school in question. It bears mention that no affidavit
has been filed by the school principal nor by the Head of the Department (the
HOD) as to what exactly led to the conclusion of the contract with Komani
Stationers. Also, no reason for the school’s non-fulfilment of its obligation to
pay the purchase price under the contract is provided whatsoever.

[79] It is difficult to conclude otherwise than that the SGB in this matter like
other SGBs, performed a public constitutional function on behalf of the State.
Considering the paucity of information within the knowledge and purview of
the Minister through the MEC, HOD and SGB, on the competence of the SGB
to deal with its s 21 functions, the Minister cannot state without contradiction

52 It must be noted that the Minister and the MEC are the custodians of all the information and are privy to
whether the SGB was competent or not and ought to have disclosed this in their affidavit.

that the SGB was trained and competent to handle those functions. To say the
opposite required the Minister to have stated that in her affidavit, which she did
not do.

[80] In that regard it cannot be gainsaid that the SGB was carrying out the
constitutional mandate of the Department of Education, even if it is accepted, as
the Minister seems to suggest, that the SGB may have exceeded its quota.
Contracting for textbooks and school materials was the only way that it could
have supplemented the resources due by the State.

[81] In this case, the SGB had the necessary legal powers to conclude the
agreement in terms of s 21 with Komani Stationers. In pursuing a claim against
the MEC, it cannot be said that it was a resuscitation of an invalid agreement.
Furthermore, there is no evidence to the contrary that suggests that the stationery
was never supplied and delivered to the school.

[82] The provisions of s 22 of the Schools Act bear relevance here. The section
provides for the withdrawal of the functions of the SGB by the HOD, where
they cannot perform the s 21 functions. The claim in this case came to the
attention of the HOD early enough for the Department to have been able to
inform this Court, whether they have acted in terms of s 22 to protect the
interests of other creditors of the school.

[83] We now turn to the issue of possible remedies available to Komani
Stationers. The MEC submits that Komani Stationers is not without a remedy as
a mandamus and contempt proceedings are available to Komani Stationers, as

was decided in Moodley.53 This case is distinguishable from Moodley as in that
case the SGB was in a position to raise funds for senior counsel in extensive and
unnecessary litigation. It even refused to disclose the source of its funders, hence
the court held that it was in a position to settle costs due to Mr Moodley. There
is no evidence that suggests that in this case, the school had an SGB that would
be able to settle Komani Stationers’ debt. The Constitutional Court did not state
that an appropriate remedy should always be in terms of a mandamus and
contempt of court proceedings. Mr Gade’s affidavit, filed on behalf of the MEC
says it all, where he expressed himself as follows:
‘[D]ue to the high level of poverty experienced in the Eastern Cape all learners who attend
quintile one, two and three schools are subsidised at a quintile one level which is at a level at
which no fees are charged. Such schools are fully subsidised by the Eastern Cape Department
of Education.’
Therefore, the remedy fashioned in Moodley can never address the injustice to
Komani Stationers. The MEC should not only prescribe what needs to be done
by public schools, but should ensure that it is done.

[84] On that score, Komani Stationers is entitled to appropriate relief for a
breach of the right to equality. A remedy embodying effectiveness, suitability
and just relief as stated in Fose v Minister of Safety and Security54 will be in line
with the objectives of the Constitution. In Modder East Squatters and Another
v Modderklip Boerdery (Pty) Ltd; President of the RSA and Others v Modderklip
Boerdery (Pty) Ltd55 this Court emphasised that:

53 Footnote 35.
54 Fose v Minister of Safety and Security [1997] ZACC 6; 1997 (7) BCLR 851 (CC).
55 Modder East Squatters and Another v Modderklip Boerdery (Pty) Ltd, President of the Republic of South
Africa and Others v Modderklip Boerdery (Pty) Ltd [2004] ZASCA 47; [2004] 3 All SA 169 (SCA).

‘[Courts] should “attempt to synchronise the real world with the ideal construct of a
constitutional world” and they have a duty to mould an order that will provide effective relief
to those affected by a constitutional breach.’56
A form of constitutional damages should suffice in this case, otherwise Komani
Stationers will be left without a remedy. It would be unfair if Komani Stationers
is forced to pursue other remedies including unjustified enrichment at its peril
as it may be met with prescription and any other lawful defence which the MEC
may raise. Komani Stationers’ claim can never be satisfied by the impoverished
community. Public policy dictates that the MEC settles the debt due to Komani
Stationers.

[85] In conclusion, besides the public policy issue with which this judgment
commenced, Komani Stationers advanced a very persuasive argument that s
60(1) should be read to include damages or loss flowing from the non-payment
of a claim based on specific performance. We agree with the respondent that
this will not lead to a floodgate of claims against the MEC, as not all claims of
specific performance will give rise to claims against the MEC as each case will
need to be treated on its own particular facts. In appropriate circumstances, a
court faced with the same facts but pleaded and argued in the court of first
instance, would have been bound to ‘prefer interpretations . . . that fall[s] within
the constitutional bounds over those that do not, provided that such an
interpretation can be reasonably ascribed to the section’.57

[86] From what we have stated in the above paragraphs, it is clear that we are
of the view that in interpreting the provisions of s 60(1)(a), the word ‘loss’ must

56 Ibid para 42.
57 Footnote 4 at para 23. See also Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism
and Others [2004] ZACC 15; 2004 (4) SA 490 (CC) at para 21.

be ascribed a different interpretation to word ‘damage’. The fact that the
respondent did not sue the school for damages, does not necessarily mean that
the school is not liable for ‘loss’ that the creditor has suffered due to non-
payment of the purchase price. The majority judgment reasons that the
respondent could have cancelled the contract and sued for damages. It is trite
that if a debtor persists in failing to render specific performance after obtaining
judgment, the creditor can cancel and claim damages.58 That has not happened
in this case because, cancelling and suing for damages would not yield a
different monetary value or overcome the s 58A(4) prohibition on execution
against the school property. In that regard, the creditor should not go through
the formality of the cancellation before claiming damages or loss for which the
school would in that event have been liable.

[87] At the end of it all, it is not as if the Minister, the MEC or the SGB
including the beneficiaries of this business venture (the learners) have lost
anything. To the contrary they have benefitted immensely at the expense of
Komani Stationers. The advantages to them are obvious. It is therefore
imperative for the Minister and the MEC in the province to go back to the
drawing board to educate, train and empower the SGBs, the principals and the
local businesses on this very unique situation to avoid similar actions.

[88] In sum, if an ordinary man in the Eastern Cape was asked ‘is the Minister
and the MEC’s refusal to pay a small business enterprise for goods sold to
advance “an education of progressively high quality for all learners [at

58 See in this regard Basson and Others v Hanna [2016] ZASCA 198; [2017] 1 All SA 669 (SCA); Farmers’
Co-operative Society (Reg) v Berry 1912 AD 343; Victoria Falls & Transvaal Power Co Ltd v Consolidated
Langlaagte Mines Ltd 1915 AD 1; Woods v Walters 1921 AD 303; Shill v Milner 1937 AD 101; Haynes v King
Williamstown Municipality 1951 (2) SA 371 (A); Rens v Coltman [1995] ZASCA 118; 1996 (1) SA 452 (A).

Mpendulo Primary School and surrounding schools]”’, at all justifiable in any
society not to mention a democratic one? We are certain, the answer will be ‘not
at all’. This is so, because this small business enterprise, and others that are
invited to do business with the school and other schools in the province (in
particular to provide books), are to advance the values underpinning the Schools
Act as read with the Constitution. However, if this is done without having
ascertained whether the school has money or not would definitely result in these
enterprises being bankrupted. This cannot be countenanced in any democratic
society which upholds equality of all before the law. No one should be allowed
to benefit at the expense of the other on the basis proposed by the MEC or any
organ of State. After all, s 7(2) of the Bill of Rights makes this very clear, ‘[t]he
State [through its organs] must respect, protect, promote and fulfil the rights in
the Bill of Rights’.

[89] In the result, we would have dismissed the appeal with costs, including
the costs of two counsel.

____________________________
B C MOCUMIE
JUDGE OF APPEAL

____________________________
Y T MBATHA
JUDGE OF APPEAL

APPEARANCES

For the appellant:
T J M Paterson SC (with him K L Watt)
Instructed by:

State Attorney, Port Elizabeth
State Attorney, Bloemfontein

For the respondent:
A Beyleveld SC (with him T Rossi)
Instructed by:

Zepe & Company Attorneys, Queenstown
Mavuya Inc., Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:

26 January 2022
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not form part of
the judgments of the Supreme Court of Appeal
Member of the Executive Council, Department of Education, Eastern Cape v Komani
School & Office Supplies CC, t/a Komani Stationers (Case no 1417/2018) [2022]
ZASCA 13 (26 January 2022)

Today the Supreme Court of Appeal (SCA) upheld an appeal against a decision of the Eastern
Cape Division of the High Court, Grahamstown in a majority judgment penned by Petse AP in
which Gorven JA and Weiner AJA concurred.
The facts were as follows. Komani School & Office Suppliers CC (Komani Stationers) instituted
motion proceedings in the Eastern Cape Division of the High Court (the high court),
Grahamstown, against the Eastern Cape Member of the Executive Council for Education (the
MEC) seeking payment of the purchase price in respect of goods sold and delivered to
Mpendulo Public Primary School (the school) as well as for additional costs incurred in the
Queenstown Magistrates’ Court in an action in which Komani stationers sued the School
Governing Body and the Principal of the school for similar relief.
Komani Stationers supplied the school with stationary and when no payment was forthcoming,
it instituted proceedings against the school’s governing body and principal. However,
interpleader summons were instituted by the MEC as the assets of a public school are immune
from judicial attachment in terms of section 58A(4) of the South African Schools Act 84 of 1996
(Schools Act). The claim against the MEC was based on section 60 of the Schools Act, which
holds the MEC liable for any delictual or contractual damage or loss suffered as a result of
any act of omission in connection with any activity conducted by a school. However, the MEC
contended that section 60 did not find application in this instance, and even if it did, it was of

little consequence as the claim had prescribed. Nevertheless, the high court found in favour
of Komani Stationers and ordered the MEC to pay the amounts claimed.
The high court held that the claim by Komani Stationers against the MEC fell squarely within
the purview of s 60. In addition, it held that the claim had not prescribed because the running
of prescription commenced only on 8 June 2016 or alternatively on 11 September 2015 when
Komani Stationers obtained default judgment against the School.
Thus, the SCA was called upon to determine whether the high court was correct in upholding
a claim for specific performance in respect of the repayment of money owed to a creditor by a
public school, notwithstanding the provisions of the Schools Act. This Court specifically
emphasised the importance and meaning of section 60 of the Schools Act having regard to
the manifest purpose of the Basic Education Laws Amendment Act 15 of 2011 and related
legislation. However, Komani Stationers contended that denying its claim for specific
performance would amount to it being left with no remedy.
This Court indicated that this was not the case. In order to hold the MEC liable, Komani
Stationers was required to establish that it had suffered contractual or delictual damage or
loss, which it did not do. Rather, and despite the express provisions of section 60, it specifically
pursued a claim of specific performance. This Court held that a claim for specific performance
based on section 60 would have extended section 60 beyond its natural ambit, thereby
crossing the divide between interpreting the law and legislating.
The Court concluded that it was inconceivable that section 60 was intended to provide a
contracting party with a warranty against a public school should such a school have failed to
fulfil its contractual obligations. Accordingly, this Court set aside the high court’s order and
substituted it with one dismissing the claim with costs.
However, the joint minority judgment penned by Mocumie and Mbatha JJA concluded that it
would have dismissed the appeal with costs, by reasoning that section 60, as amended, only
ascribes liability for delictual and contractual damages and loss, thereby excluding claims for
specific performance. The minority found the interpretation favoured by the majority too narrow
as it paid no regard to the spirit and purport of the Constitution of the Republic of South Africa,
1996, and infringed sections 9 and 34. Rather, the interpretation should have been purposive
and pragmatic. Any other interpretation of section 60 would result in the unjust precedent being
set that a party was denied the possibility of pursuing a remedy of specific performance in
circumstances beyond its control as existing remedies would never have been contextually
appropriate. The MEC, being vested with powers to ensure public schools honour their
contractual obligations should not only prescribe what should be done, but actually ensure

that it is done. In the result, the appeal would have been dismissed with costs, including the
costs of two counsel.
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