THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Reportable
Case No: 633/2016

In the matter between:

PRINCIPAL, MBILWI HIGH SCHOOL
FIRST APPELLANT

CHAIRPERSON OF SCHOOL GOVERNING
SECOND APPELLANT
BODY OF MBILWI HIGH SCHOOL

SENIOR DISTRICT MANAGER, VHEMBE
THIRD APPELLANT
DISTRICT, DEPARTMENT OF BASIC
EDUCATION

MEC OF EDUCATION,
FOURTH APPELLANT
LIMPOPO PROVINCE

and

RM (OBO OM)
RESPONDENT

Neutral citation: Principal of Mbilwi High School v RM (633/2016) [2017]
ZASCA 72 (1 June 2017)

Coram:
Ponnan, Theron, Majiedt, Wallis and Zondi JJA

Heard:
16 May 2017

Delivered: 1 June 2017

Summary: Appeal: mootness: the court should exercise its discretion to hear an
appeal where it relates to the proper construction and application of important
provisions in the National Education Policy that will impact on the future conduct
of education officials and learners.
Interpretation: the high court misinterpreted the National Policy Pertaining to the
Programme and Promotion Requirements of the National Curriculum Statement
Grade R-12.

__________________________________________________________________

ORDER
__________________________________________________________________

On appeal from: Limpopo Local Division of the High Court, Thohoyandou
(Makhafola J sitting as court of first instance):

1 The appeal is upheld.
2 The order of the high court is set aside and replaced with the following:
„(i) The Rule Nisi granted on 30 January 2015 is discharged.
(ii) The applicant is directed to pay the costs of this application.‟

_____________________________________________________________________________

JUDGMENT
______________________________________________________________________________

Theron JA (Ponnan, Majiedt, Wallis and Zondi JJA concurring):

[1] The main issue in this appeal is the interpretation and application of the
National Policy Pertaining to the Programme and Promotion Requirements of the
National Curriculum Statement Grade R-12 (the National Policy) issued by the

Department of Education. In particular it concerns the progression, promotion and
retention of learners in the senior phase of the school program.

[2] The facts giving rise to this matter are largely common cause. OM, a minor,
was a learner at Mbilwi High School (the school) from 2011 until 2014. He was in
grade 11 in 2014. The school routinely assessed learners throughout the academic
year and usually held at least two meetings with parents where such assessments
were discussed. OM was assessed during the 2014 academic year. At the end of the
first term he obtained an aggregate mark of 63.1%, during the second term 43.7%
and during the third term 46.7%.  The final assessment for the 2014 academic year
was conducted in November and he obtained an aggregate of 49.7% but he failed
two subjects, namely, Mathematics and Physical Sciences, having achieved less
than 30 per cent in both subjects. According to the school, because he had failed to
satisfy the requirements for promotion to grade 12, it was obliged to retain him in
grade 11.

[3] During January 2015, the respondent, RM,  the father and natural guardian
of OM, lodged a complaint with the school about his son‟s retention in grade 11
and sought to have him progressed to grade 12. The school said that it was not
entitled to do so and, after a re-mark of the mathematics and physical science
papers did not result in an improvement in his marks, maintained that stance. On 6
January 2015, the respondent lodged an appeal with the third appellant, which
appeal was dismissed.

[4] On 30 January 2015, the respondent, in his capacity as parent and natural
guardian of OM, brought an urgent application in the Limpopo Local Division of
the High Court (the high court), against the appellants. The first appellant is the

principal of the school. The second appellant is the chairperson of the Governing
Body of the school. The third appellant is the Senior District Manager for the
Vhembe District, Department of Education in Limpopo. The fourth respondent is
the Member of the Executive Council, responsible for basic education in the
province of Limpopo.

[5] The respondent, inter alia, sought the following urgent relief in the high
court:
(i)
That the decision of the school management team in refusing to promote
OM from grade 11 to grade 12 was unlawful and be set aside.
(ii)
That the decision of the third appellant in dismissing the respondent‟s
appeal was unlawful and be set aside.
(iii) Directing that the school promote OM from grade 11 to grade 12 with
immediate effect.
(iv)
Directing that the school‟s non-compliance with the Procedure Manual for
Promotion and Submission of 2014/11 GET Grades 9, and NSC Grades 10 and 11
schedules and summaries, instruction 47 of 2014 (the Procedure Manual), was
unlawful.
(v)
Directing that the school comply with the provisions of the Procedure
Manual.

[6] On that same day, 30 January 2015, and by agreement between the parties,
an interim order was issued which essentially provided for the relief sought by the
respondent. The interim order was confirmed on 31 March 2015. On 10 April
2015, the appellants applied for leave to appeal. On 14 April 2015, the respondent
applied for and succeeded with an application in terms of Rule 49(11) for

execution of the order pending the application for leave to appeal. OM thus
progressed to grade 12 in 2015.

[7] The reasons for the judgment were handed down on 18 October 2015. On 23
February 2016, the application for leave to appeal was refused by the high court.
The first appellant appeals with the leave of this court.  While there was an
appearance for the respondent at the hearing of this matter, the matter was not
opposed.

[8] It was common cause that the outcome of this appeal would have no
practical effect as between the parties. By the time the reasons for judgment were
handed down on 18 October 2015, the learner had almost completed grade 12. The
preliminary question in this matter is whether this court should, in any event,
entertain this appeal.

[9] Section 16(2)(a)(i) of the Superior Courts Act 10 of 2013 is relevant and
reads:
„When at the hearing of an appeal the issues are of such a nature that the decision sought will
have no practical effect or result, the appeal may be dismissed on this ground alone.‟
The primary object of s 16(2)(a)(i) is to alleviate the heavy workload of courts of
appeal.1 It is founded upon the principle that courts of law exist for the settlement
of concrete controversies and not to pronounce upon abstract questions or to advise
upon differing contentions.2

1 Absa Bank Ltd v Van Rensburg [2014] ZASCA 34;2014 (4) SA 626 (SCA) at 631E; Premier, Provinsie
Mpumalanga & ‘n ander v Groblersdalse Stadsraad 1998 (2) SA 1136 (SCA) at  1137G-HD.
2 Tshwane City v Nambiti Technologies & others (Pty) Ltd  [2015] ZASCA 167; 2016 (2) SA 494 (SCA) paras 5-7;
Radio Pretoria v Chairman, Independent Communications Authority of South Africa, & another  2005 (1) SA 47
(SCA) at 48B-C; Land en Landbouontwikkelingsbank van Suid-Afrika v Conradie 2005 (4) SA 506 (SCA) at 510H-
511B; The Merak S;  Sea Melody Enterprises SA v Bulktrans (Europe) Corporation 2002 (4) SA 273 (SCA) at
276G-I.

The Constitutional Court has stated that:
„A case is moot and therefore not justiciable if it no longer presents an existing or live
controversy which should exist if the Court is to avoid giving advisory opinions on abstract
proposition of law.‟3

[10] Section 16(2)(a)(i) confers a discretion on this court to hear an appeal
notwithstanding mootness.4 Accordingly, the court on appeal may in appropriate
cases, notwithstanding the mootness of the issue as between the parties to the
litigation, hear an appeal where important questions of law are raised which are
likely to arise in the future.5

[11] In my view, the proper interpretation and application of the provisions of the
National Policy are important matters of law which will arise in future. The
decision in this appeal extends beyond the parties. The precedential potential of
this court‟s decision is similar to that in Motor Industry Staff Association v Macun
NO & others,6 where Navsa JA, writing for the court, stated:
„Had it not been for the precedential potential of the present case, it might well have been liable
to be dismissed in terms of s 16(2)(a)(i) of the Superior Courts Act 10 of 2013 on the basis that it
would, in the circumstances of the present case, have no practical effect.‟7

[12] Central to this matter is the question whether a learner may be progressed at
all after having failed, for the first time, to meet the requirements for promotion.

3 National Coalition for Gay and Lesbian Equality & others v Minister of Home Affairs & others 2000 (2) SA 1
(CC) para 21 fn 18 and cases cited therein.
4 Centre for Child Law v Hoërskool Fochville & another [2015] ZASCA 155; 2016 (2) SA 121 (SCA) para 11; Absa
Bank v Van Rensburg, supra, at 629F.
5 Absa Bank v Van Rensburg, supra, at 629F-630D (and cases referred to therein); Qoboshiyane NO & others v
Avusa Publishing Eastern Cape (Pty) Ltd & others [2012] ZASCA 166; 2013 (3) SA 315 (SCA) at 319B-E. Centre
for Child Law supra  para 11; Sebola & another v Standard Bank of South Africa Ltd & another [2012] ZACC 11;
2012 (5) SA 142 (CC); Land en Landbouontwikkelingsbank van Suid-Afrika supra; The Merak S supra.
6 Motor Industry Staff Association v Macun NO & others [2015] ZASCA 190; 2016 (5) SA 76 (SCA)  [2016] 3
BLLR 284 (SCA).
7 Ibid, para 25.

The decision of the court a quo stands as a clear precedent that progression is to be
considered by the National Department of Education (the department) in such
cases. The issue in this matter on which the adjudication of this court is required
involves the proper construction and application of provisions in the National
Policy which will impact on the future conduct of the appellants as well as
learners.8 In these circumstances, this court should exercise its discretion to
entertain the appeal.

[13] The applicable legislative framework is primarily to be found in the National
Policy and the Procedure Manual. The Procedure Manual consists of three
Annexures. Annexure „A‟ deals with promotion requirements. Annexure „B‟ is
titled „Procedure for SMT and Subject Teacher‟s Meeting for Promotion, Retention
and Progression of Grades 9, 10 and 11 Learners 2014‟. Annexure „C‟ sets out the
procedure relating to the „Information Meeting with parents/guardians regarding
progression and retention of Grades 9, 10 and 11 Learners 2014‟.

[14] In the National Policy, promotion is defined as:
„the movement of a learner from one grade to  the next  when that learner meets the minimum
required level of achievement per subject in a particular grade‟.
Progression is defined as:
„the advancement of a learner from one grade to the next . . . in spite of the learner not having
complied with all the promotion requirements.‟

[15] Section 29(1) of the National Policy provides that a learner in grades 10-12
will be promoted from grade to grade if such a learner has, inter alia, completed
end-of-year examination requirements in no fewer than seven subjects, and has

8 Executive Officer, Financial Services Board v Dynamic Wealth Ltd & others [2011] ZASCA 193; 2012 (1) SA 453
(SCA) paras 43 and 44.

achieved 40% in three subjects, one of which is an official language at Home
Language level, and 30% in three subjects. The learner may fail, that is, obtain less
than 30% in one subject provided they have completed the curriculum and written
the examination. This was the stumbling block for OM. Section 29(1) is to be read
with Annexures „A‟, „B‟ and „C‟ of the Procedure Manual.

[16] Annexure „A‟, sets out the promotion, retention and progression
requirements, in relevant part, as follows:
„2.4  Promotion of a Learner
2.4.1  For Grades 04 to 08 learners who meet promotion requirements, “RP” for “Ready to
Progress” is written in the appropriate column against the name of the learner in the Promotion
Schedule.
2.4.2  For Grades 9, 10 and 11 learners who meet promotion requirements, “P” for “Promoted”
is written in the appropriate column against the name of the learner in the Promotion Schedule.

2.5
Retention of a Learner
2.5.1 A learner who does not meet the promotion requirements for the first time in the
Intermediate, Senior or FET [Further Education and Training] phase, must be retained, and
2.5.2 For Grades 04, to 08 learners who do not meet the promotion requirements, “NR” for
“Not Ready to Progress” to is written in the appropriate column against the name of the learner
in the Promotion Schedule.
2.5.3 For Grades 9, 10 and 11 learner, “R‟” for “Retained” is written in the appropriate column
against the name of the learner in the Promotion Schedule.

2.6
Progression
2.6.1 Guiding Principle: a learner may only be retained once in phase in order to prevent the
learner being retained in this phase for longer than four years
2.6.2  If the learner has already been retained in a phase, the learner ordinarily qualifies to be
“Progressed”.

2.6.3 If on the basis of the evidence available the school deems it is in the best interest of the
learner to move to the next grade, then the learner is “Progressed”.
2.6.4 The “QP” for “Progressed” is written in the appropriate column against the name of the
learner in the Promotion Schedule.

2.7
Retention of Learners who ordinarily qualify for progression
2.7.1  If a learner ordinarily qualifies for progression, but the school has educational reasons or
evidence that it is in the best interest of the learner to be retained, then the learner is “Retained”‟.

[17] Clause 2.5.1 of Annexure „A‟ provides in peremptory terms that a learner
who does not meet the promotion requirements for the first time in the
intermediate, Senior or FET phase, must be retained. This is the only provision
dealing with the failure of a learner to achieve promotion to the next grade for the
first time. Clauses 2.6, 2.7.4 and 5 deal with learners who have failed, for the
second time, to achieve promotion after having been retained in a grade, and do not
detract from clause 2.5.

[18] This view is fortified by clauses 3 and 4 of Annexure „B‟ which read:
„3
Consider the learners who do not qualify for progression. These are learners who have
not met the promotion requirements for [the] first time in a phase. Write “R” for “Retained”
against the name of the name of the learner.
Consider learners who ordinarily qualify for progression on the basis that they have
already been retained once in the phase.
4.1
If evidence available is such that it serves the best interest of the learner to be progressed,
then the learner is progressed . . .
4.2
If the evidence available or educational reasons are such that it is in the best interest of
the learner to be retained, then the learner is retained . . .‟

[19] The guiding principle in respect of progression is that a learner may only be
retained once in a four year phase. If a learner has already been retained in a phase,
such learner ordinarily qualifies to be progressed, if the school deems it is in the
best interest of a learner to do so. The system is clear: a first failure to meet
promotion standards results in a compulsory retention. A second failure has to be
dealt with on a discretionary basis weighing the objective to avoid the learner
being retained in this phase for longer than four years (which means that the
learner ordinarily qualifies to be „progressed‟) against the evidence available as to
whether it would be in the best interest of the learner to be progressed. It is clear
from this framework that progression is not to be afforded a learner who has failed
to meet the promotion requirements for the first time. The school management only
has a discretion whether or not to retain or progress the learner, following a second
failure to achieve the requirements for promotion.

[20] Clause 4.1 of Annexure „A‟ provides that the school management team must
hold an information meeting with the parents of all learners who qualify for
progression, irrespective of whether they are to be progressed or retained. If the
parents of a learner who qualifies for progression agree with the decision of the
school management team to either progress or retain the learner, a Partnership
Contract must be entered into between the parties. In the event that the parents
contest the decision of the school management team, they may appeal against such
decision to the Senior District Manager.

[21] Annexure „C‟ deals with the procedure for the information meeting with
parents as envisaged in clause 4.1 of Annexure „A‟ and the conclusion of the
Partnership Contract  provided for in clause 4.2 thereof. This only applies to
learners who ordinarily qualify for progression, namely those who, in terms of

clause 4.1 have already been retained once in a phase. Annexure „C‟ sets out the
applicable procedure to be adopted, relating to either the progression or retention
of such a learner for the second time and how this should be dealt with between the
school, the parents and the learner. Whether or not progression is to follow (as
opposed to a second retention) is then to be dealt with by way of proper discourse
through an information meeting with the parents per clause 4 of annexure „A‟ read
with clauses 4 and 5 of annexure „B‟ and the Partnership Contract provisions of
annexure „C‟. It follows that both the information meeting and the appeal provided
for in clause 5 of annexure „A‟ will only come into play in respect of a learner who
has failed to achieve the promotion requirements for the second time, and not the
first time.

[22] It was common cause that OM had failed more than one subject and did not
meet the minimum required level of achievement for promotion to grade 12. It was
also common cause that he had not previously been retained in that phase. In the
circumstances, he did not qualify for progression to grade 12. The terms of the
National Policy, read with the Procedure Manual, dictated that he had to be
retained in grade 11. The provisions of clause 2 of Annexure „A‟, read together
with Annexure „C‟, with regard to the holding of an information meeting with his
parents, was not applicable to his situation.

[23] On a proper construction and application of the National Policy and the
Procedure Manual, a learner may only be progressed upon having failed to achieve
the requirements for promotion for the second time. The first failure has to be dealt
with by way of retention in the same grade. Should a second failure follow, the
educational authorities have a discretion to decide whether a further retention, or
progression, would be in the best interest of the learner. That decision is to be

taken in consultation with the parents and a Partnership Agreement is to be entered
into between the parties. It is only the latter decision, i.e. how a second failure is to
be dealt with, that is subject to an appeal in the event that the educational
authorities and the parents do not agree.

[24] The flawed reasoning of the high court appears from the following
paragraphs of the reasons for judgment:
„[2]
The dispute has turned uglier in that the learner has been tossed between Mbilwi High
School and Nazarene School of Natural Sciences and this conduct of the 1st, 2nd and 3rd
respondents has become an affront to the best interests of this child-learner impacting the core of
the justness and fairness to him.
[3] It is on this basis that this court had to intervene and redirect the confronting parties to a
solution in favour of the child. The court has acted in terms of the letter and spirit of Section
4(a) of the [C]hildren‟s Act 38 of 2005 which provides: “In any matter concerning a child-(a) an
approach which is conducive to conciliation and problem-solving should be followed and a
confrontational approach should be avoided”. In the result, the confirmation of the Rule Nisi in
favour of the applicant was found to serve the best interests of the child.
…
[18] The law concerning children is clear both in the [C]onstitution, and [C]hildren‟s Act and
other legislation relating to treatment of children. Further, the Education Department‟s
Regulations are lucid and have to be complied with to promote and protect the welfare of
learners.
. . .
[19] The respondents did not act in terms of annexure “C” relating to procedure for
information meeting with parents/guardians regarding progression and retention of grades 9, 10
and 11 learners 2014.‟

[25] The high court found that the school had „flouted‟ the national policy „by not
following correct procedures‟. The basis for this finding is to be found in para 19
of the judgment where it is stated that the appellants failed to act in accordance

with Annexure „C‟ relating to the procedure for the holding of an information
meeting with parents. This finding of the high court is based on the premise that
the provisions pertaining to progression were applicable. The high court was
wrong in that it had simply interpreted the policy incorrectly.

[26] It follows that an appeal did not lie to the third appellant against the decision
by the school management team that the learner be retained in grade 11. This
question did not arise in this matter. It was however dealt by the high court in the
following manner:
„Paragraph 11 of the founding affidavit is a scathing attack on non-compliance with regulation[s]
relating to the composition of the appeal panel. Without being ashamed, the respondents do not
admit the irregularity …. Instead the deponent, justifies the irregularity and challenges the
applicant to prove prejudice to himself (the applicant).‟
Insofar as the high court made any findings in this regard, these are obiter and not
binding.

[27] For these reasons the following order is made:
1 The appeal is upheld.
2  The order of the high court is set aside and replaced with the following:
„(i) The Rule Nisi granted on 30 January 2015 is discharged.
(ii)  The applicant is directed to pay the costs of this application.‟

_________________
LV Theron
Judge of Appeal

APPEARANCES:

For the Appellants:

R J Raath SC and T W G Bester SC
Instructed by:

Mathivha Attorneys, Thohoyandou

Molefi, Thoabaka Attorneys, Bloemfontein

For the Respondent:

M S Sikhwari
Instructed by:

Mvundlela & Associates, Thohoyandou
Webbers Attorneys, Bloemfontein

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME
COURT OF APPEAL

PRINCIPAL
OF
MBILWI
HIGH
SCHOOL
&
OTHERS
V
MAKHERA
RATSHILUMELA JOHANNES (OBO OVHONALA MAKHERA)

From:  The Registrar, Supreme Court of Appeal
Date:    30 May 2017
Status:  Immediate

Please note that the media summary is for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal.

The Supreme Court of Appeal today upheld an appeal against a judgment of the
high court, Limpopo Local Division, Thohoyandou, concerning the interpretation and
application of the National Policy Pertaining to the Programme and Promotion
Requirements of the National Curriculum Statement Grade R -12 (National Policy)
issued by the Department of Education.

On 30 January 2015, the respondent brought an urgent application against the
appellants in his capacity as parent and natural guardian of his minor son, Ovhonala
Makhera (Ovhonala). The respondent required that the decision of the school
management team refusing to promote Ovhonala from grade 11 to grade 12 be set
aside and directed that Ovhonala be promoted from grade 11 to grade 12 with
immediate effect.  On that same day, and by agreement between the parties, an
interim order was issued and on 10 April 2015 the appellants applied for leave to
appeal.  An execution order was granted on 14 April 2015 pending the application for
leave to appeal and Ovhonala progressed to grade 12 in 2015. Reasons for the
judgment of the court a quo were handed down on 18 October 2015.  It was common
cause that the outcome of this appeal would have no practical effect between the
parties as Ovhonala had almost completed grade 12 in 2015.

The SCA held that the proper interpretation and application of the provisions of the
National Policy are important matters of law which will have an impact on the future
conduct of the appellants’ as well as learners.

The SCA found that a learner may only be progressed upon having failed to achieve
the requirements for promotion for the second time.  The first failure has to be dealt
with by way of retention in the same grade and should second failure follow, the
educational authorities have a discretion to decide whether a further retention, or
progression, would be in the best interest of the learner.  That decision is to be taken

in consultation with the parents and a Partnership Agreement is to be entered into
between the parties, it is only when a second failure is to be dealt with, that is subject
to an appeal in the event that the educational authorities and the parents do not
agree.