Legal Talk

Attaching the assets of a public school

Although it is not normal for a school to have a court order made against it, it's not inconceivable for this to happen. In terms of the South African Schools Act, you cannot attach the assets of a public school if legal action was taken against the school.

The Durban High Court ruled that this provision may be unconstitutional. A case involving these issues eventually was eventually settled in the Constitutional Court. The facts of the case raised two important constitutional rights: The one being that a child's best interests are paramount and the other being a child right to basic education.

A learner was disciplined for allegedly attacking another learner with a pair of scissors at a special needs school.The child was forced to spend every break outside the school principal's office and could not interact with other children.The school said this was because he posed a danger to the other children.

The father of the learner, Mr. M, took the school to court. The parties agreed that the school appoint staff to supervise the learner's movement so that he is not isolated and the school concludes its disciplinary enquiry.

Instead, the school governing body amended the school's admission policy, in which it said a learner would not be automatically re-admitted to school if the child demonstrated certain behavioural problems or endangered the safety or health of the other learners or educators.Mr. M went to the HighCourt to review and set aside the school policy.

The High Court found the decision not to re-admit the learner to be unlawful and awarded Mr. M his legal costs.The school took to the Supreme Court of Appeal but lost. Mr. M tried unsuccessfully to get the school to settle the amount it was ordered to pay.

A warrant of execution against the school was then issued against the school's assets.The Sheriff attached a school bus and a sum of R386710 in the school's bank.

The school tried to set aside the warrant of execution and attachment, relying on the Section 58 provision contained in the Schools Act Mr. M opposed the application and also asked for an order declaring section 58A(4) of the Schools Act to be unconstitutional, saying his rights to equality and dignity was violated by this provision.

Whilst the Concourt The Concourt confirmed that Mr. M be awarded him his legal costs, it held that the Schools Act provision was not unconstitutional . The Concourt said that many public schools operate under conditions of extreme deprivation.

"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. It said if you interfere with the basic education of children, you put at risk its potential to unleash in every child the ability to set her- or himself on the path to a successful, meaningful, wholesome life".

Know your rights! The Law Desk of Fawzia Khan and Associates. Giving YOU the Power of Attorney. Email fawzia@thelawdesk.co.za or call 031-5025670 for legal assistance at competitive rates.