Governing Body of the Juma Musjid Primary School v. Juma Musjid Trust,  ZACC 13
Constitutional Court decision on direct appeal against an order of the High Court authorizing an eviction of a public primary school from private property. The case covered a range of issues, including, the constitutional right to a basic education; application of constitutional rights against private parties; balancing of private interests in property against children’s interest in constitutional right to education; and the responsibility of the Municipality to provide a basic education.
The Juma Masjid Trust had allowed the Juma Musjid Primary School, a public school, to operate on its private property for an extended period of time. A dispute arose when the provincial Department of Education responsible for the school did not pay the Trust for rent or out-of-pocket expenses to run the school, and also did not adequately respond to a notice and other communications from the Trust to vacate the premises. The Trust then sought an eviction order to remove the School from its property. The School Governing Body objected on the basis that eviction would unduly interfere with the constitutional right of children to basic education and would not meet the constitutional requirement that in all matters affecting children their best interests must be treated as paramount.
The Constitutional Court held that notwithstanding the constitutional rights at stake, given the history of the dispute and the efforts made by the Trust to secure an agreement acceptable to all, the Trust had acted reasonably in seeking an eviction order from the High Court. Nevertheless, the Constitutional Court determined that that the High Court, in granting that eviction order without considering where the children would go, had failed to take adequate account of the best interests of the children as required by the Constitution and of their constitutional right to basic education.
On this basis, the Constitutional Court set aside the High Court’s decision granting the eviction order. The Court also ordered the parties to engage with one another to attempt to resolve their dispute and allow for the continued operation of the school. If this failed, the Department was required to take steps to secure alternative placements for the students, and the Trust was granted leave to apply directly for an eviction order. The dispute remained unresolved. Therefore, upon receiving satisfactory information from the Department regarding alternative arrangements for student placement that would protect the right to a basic education, and upon considering the eviction application made by the Trust, the Constitutional Court granted the final eviction order.
The eviction order was carried out in full (the school vacated the premises) and all of the school children were placed at nearby other schools for the next school year.
Centre for Child Law (as amicus curiae); Socio-Economic Rights of South Africa (as amicus curiae)
The case is significant for its engagement of the question of the relationship between constitutional socio-economic rights and common law rules (i.e. judge-made rules) of property law and the related question regarding whether and to what extent constitutional socio-economic rights impose duties on non-state actors such as the Trust. In this respect the Court made a number of significant observations: 1) the right to basic education indeed imposes on private parties at least a duty to respect (i.e. the duty not to interfere in its exercise); 2) at least under the circumstances of this case, a private party does not have the affirmative duty to provide basic education, such affirmative duty resting in the first place on the state; and 3) in context of the common law rules of eviction, a court must exercise an equitable discretion in light of all relevant circumstances in deciding whether or not to grant an eviction order. This caserequired the court to consider the impact that an eviction order would have on the right to basic education.
The Court also distinguished the constitutional right to basic education from higher education, stating that unlike the right to higher education, which the State is obligated to make progressively available, the right to basic education is “immediately realisable” and thus may only be limited by a “law of general application which is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.”
(Updated July 2015)