Vryburg High School and Another v Head of Department, Deoartment of Education, North West Province and Others (M12/2014) [2015] ZANWHC 6 (5 March 2015)

Key Facts

Issues

• The court considered the appropriate costs order following the dismissal of the application. Applicants argued against paying costs, but the court ordered them to pay ordinary party and party costs, rejecting a punitive costs order despite the Applicants' contradictory stance.
• The Applicants contended that the matter had become moot due to the unavailability of the Third and Fourth Respondents for the principal position. The court assessed whether the case should be dismissed as moot or proceed to judgment.
• The Applicants sought to review and set aside the First Respondent's decision to appoint the Fifth Respondent as principal of Vryburg High School, arguing the decision was irrational as it allegedly prioritized transformation over other considerations. The court evaluated whether the appointment was legally sound and whether the application had merit.

Holdings

• The court ordered the Applicants to pay the costs of the application jointly and severely, including costs for employing two counsel. While counsel argued against a punitive costs order, the judge ruled that the Applicants must cover ordinary party and party costs, as the case was not moot and the Respondents incurred expenses opposing the application.
• The court dismissed the Applicants' application for the review and setting aside of the First Respondent's decision to appoint the Fifth Respondent as principal of Vryburg High School. The judge found no merit in the application, as the decision to appoint the Fifth Respondent was rational and based on transformation considerations. The Applicants' argument that the case had become moot due to the unavailability of other candidates was rejected.

Remedies

Legal Principles

• The court applied costs principles, ordering the Applicants to pay the Respondents' costs following the dismissal of the application. This included ordinary party and party costs, rejecting the Applicants' argument that costs should be shared due to overlapping entities.
• The court considered the doctrine of approbating and reprobating, noting that the Applicants recommended the Fifth Respondent for appointment but later sought to have it set aside, creating an inconsistent legal position.

Judge Name

Passage Text

• [13] This argument does not contend with the fact that these entities are entirely different from one another with different financial bookkeeping. More importantly, does it not take into consideration that the Fifth Respondent on his own incurred costs to oppose this application. Senior Counsel acting on behalf of the Respondents submitted that a punitive costs order should be imposed because it were the very same Applicants, and in particular the Second Applicant, who amongst others recommended and put forward for appointment the name of the Fifth Respondent and now that he is appointed, the Applicants want an order that his appointment be reviewed and set aside. The Applicants were approbating and reprobating.
• [11] There is no merit in the submission that because of the current state of affairs, the matter should not be dismissed but instead it should be ordered that it became moot and that each party should pay his / her / its own cost. After listening to argument and may I emphasize, also on the merits, I was of the view that there is no merits in the application. I consequently dismissed the application.
• [12] As far as costs are concerned, I could find no plausible reason why costs should not follow the result. Counsel on behalf of the Applicants submitted that it would not make any sense to order the Applicants being the school and the School Governing Body (SCB), to pay the costs of in particular the Department and its Member of Executive Council (MEC) because it is one and the same. According to him, it will amount to the transfer of monies from one 'Department' (if the school and SGB can be regarded as such) to another 'Department' in the same sphere.