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Notice of Motion-3359.Pdf IN THE HIGH COURT OF SOUTH AFRICA PROVINCIAL DIVISION CAPE OF GOOD HOPE CASE NO: 12126/99 In the matter between: BEL PORTO SCHOOL GOVERNING BODY First Applicant VERA SCHOOL GOVERNING BODY Second Applicant DOMINICAN-GRIMLEY SCHOOL GOVERNING BODY Third Applicant JAN KRIEL SCHOOL GOVERNING BODY Fourth Applicant ALTA DU TOIT SCHOOL GOVERNING BODY Fifth Applicant TAFELBERG SCHOOL GOVERNING BODY Sixth Applicant PIONEER SCHOOL GOVERNING BODY Seventh Applicant ELJADA SCHOOL GOVERNING BODY Eighth Applicant GLENDALE SCHOOL GOVERNING BODY Ninth Applicant PAARL SCHOOL GOVERNING BODY Tenth Applicant DE LA BAT SCHOOL GOVERNING BODY Eleventh Applicant and THE PREMIER OF THE PROVINCE, WESTERN CAPE First Respondent THE MINISTER OF EDUCATION OF THE PROVINCE, WESTERN CAPE Second Respondent NOTICE OF APPLICATION IN TERMS OF RULE 18 OF THE CONSTITUTIONAL COURT RULES Ref: G M MOSTERT Applicants’ Attorney Tel: 988-3704 BE PLEASED TO TAKE NOTICE that the First – Tenth Applicants (hereinafter referred to as “the Applicants”): 2 1. Intend to apply to the Constitutional Court for leave to appeal directly to it against the order granted by this Honourable Court on 21 September 2000, dismissing the Applicants’ application with costs, including the costs of two counsel. 2. Hereby apply that this Honourable Court certify in terms of rule 18 of the Constitutional Court Rules as promulgated in Government Notice R757, Regulation Gazette 6199 of 29 May 1998, that: 2.1 it is in the interests of justice for this matter to be brought directly to the Constitutional Court; 2.2 there is reason to believe that the Constitutional Court may give leave to the Applicants to note an appeal against the order referred to in 1 above; 2.3 the constitutional matters are of substance and a ruling by the Constitutional Court in respect thereof desirable; 2.4 the evidence in the proceedings is sufficient to enable the Constitutional Court to deal with and dispose of the matter without having to refer the case back to the above Honourable Court for further evidence; and 2.5 there is a reasonable prospect that the Constitutional Court will reverse or materially alter the order made by the above Honourable Court if permission to bring the appeal is given. 3. Hereby apply that this Honourable Court grant leave to appeal to a Full Bench of this Honourable Court, alternatively the Supreme Court of Appeal of South 3 Africa, against the order referred to in 1 above, only in the event of the Constitutional Court refusing to grant the Applicants leave to appeal. In the latter event, leave to appeal to a Full Bench of this Honourable Court, alternatively the Supreme Court of Appeal of South Africa, against the aforesaid order will be deemed to have been granted on the date when the Constitutional Court refuses the Applicants leave to appeal. 4. Hereby apply for an order: 4.1 directing that the costs of this application be costs in the appeal; 4.2 granting the Applicants further and/or alternative relief. B. TAKE NOTICE FURTHER that: this application will be made on a date to be arranged with His Lordship Mr Justice Brand. this Honourable Court will be requested to allow this matter to be heard urgently. C. TAKE NOTICE FURTHER that the constitutional matters raised in the application, the decisions against which the Applicants seek to appeal and the grounds on which such decisions are disputed, are as follows: 1. Whether the Respondents acted in contravention of section 33 of the 4 Constitution. 1.1 The Court failed to find that the Respondents had acted in contravention of section 33 of the Constitution, read with item 23(2)(b) of schedule 6. 1.2 This finding failed to take proper account of the fact that the way in which the Western Cape Education Department (“the WCED”) deals with the employment of general assistants, constitutes administrative action. 1.3 In addition to the fact that the Applicants in accordance with the trite constitutional principle had the right to be heard before the Respondents finalised the personnel provisioning measures (contained in “BC22” p375-390 of the record), the Applicants had the right to be heard in terms of section 20 of the South African Schools Act, 84 of 1996. The Applicants were not afforded the opportunity to be heard. 1.4 In addition the WCED failed to furnish any reasons whatsoever justifying the inequality relating to the employment of general assistants at Elsen schools within the jurisdiction of the WCED. There is also no rational reason why Elsen schools in the Eastern Cape in a position similar to that of the Applicants, could be accommodated by the Eastern Cape Education Department whilst the WCED have persisted in its failure to treat the Applicants’ schools equal to other Elsen schools in the Western Cape. 2. Whether section 28 of the Constitution had been infringed: 2.1 The Court failed to find that the Respondents had infringed the rights as 5 entrenched in section 28 of the Constitution of the learners at the Applicants’ schools. 2.2 The employment of the general assistants at the Applicants’ schools by the WCED will not be a luxury; it is demanded by the most basic needs of the children at those schools. While it is the duty of the WCED to provide for the needs of learners with disabilities in terms of the South African Schools Act, it is the duty of the WCED to give paramount importance to the best interests of those children in every matter concerning them; section 28(2). 2.3 The best interests of those learners are already compromised as a result of the Respondents’ failure to employ the general assistants at the Applicants’ schools. That will be aggravated if those general assistants are not appointed by the WCED immediately prior to the implementation of the personnel provisioning measures. It will result in: the Applicants’ schools having to be content with employees of other schools who are surplus to requirement; the retrenchment of the general assistants presently employed by the Applicants as the Applicants already find it difficult to remunerate those general assistants. Retrenchments will burden the Applicants with retrenchment costs, putting a further strain on the already dire financial situation experienced by the Applicants. By virtue of the aforesaid considerations the WCED’s failure to employ the general assistants presently employed by the Applicants also constitutes an 6 infringement of the rights of the children at the Applicants’ schools as entrenched in section 28(1)(b), (c) and (d). 3. Whether section 10 of the Constitution had been infringed: 3.1 The Court failed to find that the Respondents’ failure to employ the Applicant’s general assistants, constituted an infringement of the learners at the Applicants’ schools’ rights in terms of section 10 of the Constitution. 3.2 Due to their physical handicap the children at the Applicants’ schools can only retain their dignity if they receive proper care. That care is only possible with the assistance of general assistants. As a result of the failure of the WCED to employ the general assistants at the Applicants’ schools, most of the Applicants’ schools are in dire straits financially. Consequently, certain of the general assistants at some of the schools had to be retrenched, resulting in a decline in the quality of the care given to the children at those schools. 4. Whether section 11 of the Constitution had been infringed: 4.1 The Court failed to find that the right to life of the children at the Applicants’ schools had been infringed. 4.2 The lives of children at some of the Applicants’ schools are threatened as a result of the lack of care resulting from the WCED’s failure to employ the general assistants at the Applicants’ schools; see for example record p131 and 163. 5. Whether section 12 of the Constitution had been infringed: 7 5.1 The Court failed to find that the right to freedom and security of the person of the learners at the Applicants’ schools had been infringed. 5.2 In certain of the Applicants’ schools the lack of care as a result of the WCED’s failure to employ the general assistants at those schools, has resulted in certain of the children being subjected to violence or cruel, inhuman or degrading treatment perpetrated by their fellow learners or as a result of the lack of care demanded by their own handicaps. 6. Whether section 26 of the Constitution had been infringed: 6.1 The Court failed to find that the right to adequate housing of certain of the learners at the Applicants’ schools had been infringed. 6.2 Considering the physical handicaps of the children at the Applicants’ schools, accommodation with their relatives in many instances is not “adequate” and in terms of section 26(2) of the Constitution it is the duty of the State to provide them with “adequate” accommodation. That demands the employment of the general assistants at the Applicants’ schools and, in particular, those who render services at hostels; see for example record p133. 7. Whether section 27 of the Constitution had been infringed: 7.1 The Court failed to find that the right to health care of certain of the learners at the Applicants’ schools had been infringed. 7.2 The general assistants at the Applicants’ schools also assist with health care of 8 the children at those schools; see for example record p121 para 5.6. That care has been compromised and is inadequate as a result of the WCED’s failure to employ the general assistants at the Applicants’ schools. 8. Whether section 9 of the Constitution had been infringed: 8.1 The Court failed to find that the right to equality of the Applicants and the children at their schools, in terms of section 9 of the Constitution, had been infringed.
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