Response to Grootkraal Judgment
I have now had the opportunity to study the Grootkraal Judgment (24611/2011) and consult with my Legal Counsel.
I have serious concerns regarding some statements that have been made in the judgment, some of which exhibit statements of exasperation, some of which would appear to be intruding into the competence of the executive, and some of which appear to be erroneous.
The facts of this matter are as follows:
- This matter dates back to 2010, when the lease agreement between the new owner, Kobot Besigsheids Trust ("KBT"), and the WCED expired. Negotiations between the KBT and the department in respect of a new lease agreement were then already underway. Those attempts were however, unsuccessful and indications were that the school, Grootkraal, would have to vacate the property.
- In keeping with its constitutional obligations, the department made alternative arrangements to ensure the continued education of the learners. The department arranged to relocate the school to Voorbedacht Primary School, approximately, 17 kms from Grootkraal's current site. Voorbedacht occupies a large piece of state land, which can accommodate the two schools. In order to facilitate the relocation, the department erected the same number of mobile classrooms as the learners occupied at Grootkraal.
- Grootkraal's school governing body opposed the relocation and succeeded in obtaining a court interdict in July 2011 to delay the relocation of the school. ("The Henney J order")
- Henney J ordered the department to try and engage the KBTin an attempt to re-negotiate a lease agreement. The Department did so, making offers that were considerably higher than the average rentals paid in respect of other public schools on private land in the area.
- These negotiations were unsuccessful, and in December 2011, the KBT applied to Court for an order evicting the department and the school from its property. The former MEC did not oppose the application on the basis that the lease agreement with KBT had expired.
- Quite clearly, the department, as far back as 2010, had to know who property owner was in order to negotiate a new lease agreement.
- Justice Baartman initially heard the matter in early 2012. She appointed the Centre for Child Law at the University of Pretoria to report to her on the interests of the learners in this matter. The centre did so in September 2013.
- Subsequently, other parties intervened. One such party, the community of Grootkraal, launched a counter-application in May 2014, claiming a right to occupy the land on the basis of a public servitude. They contended that should they successfully oppose the eviction application, KBT might sell the property, in which event they would have to repeat the exercise and accordingly, requested the Court to determine their rights in respect of the property.
- Nothing further happened in this matter until, in late 2016. Justice Baartman then asked the department for the WCED's plan for the school. The department remained steadfast in its commitment to ensure the continued education of the learners at Grootkraal. In the event of an eviction order ultimately being granted, the department could relocate Grootkraal to the Voorbedacht property. Although, some of the mobile classrooms referred to above had in the meanwhile been relocated to another school to fulfil a classroom need there, the department undertook to replace the mobile units at Voorbedacht, and made it quite clear that the transport route could be extended. In the event that learners had to leave their homes earlier to travel the additional 17kms in the morning, arrangements would be made with the school to start later. These arrangements were clearly set out in the court papers filed by the department.
- The department formed the view that a decision by the Court in favour of the community, impacted significantly on whether Grootkraal ought in the meanwhile to be relocated. Furthermore, the Henney J order did not impose an obligation on the department to take a decision on whether or not to relocate Grootkraal. It merely required the department to comply with the process provided for therein if it decided to relocate Grootkraal. Accordingly, the department considered it sensible to await the outcome of the community's counter-application. That decision was only handed down on 1 August 2017.
The education of the learners at Grootkraal has continued uninterruptedly and has not been affected at all by the department. During this time, the department has continued to support Grootkraal by providing the necessary education materials and transport costs.
I am obliged to provide enough school places so that every child in the province can attend school. I do so within the department's available resources under extremely difficult circumstances, always with the best interests of all learners uppermost in our minds.
The ordering of its resources is pre-eminently a matter which falls within the competence and remit of the department. The property at Voorbedacht is state-owned and improvements on state-owned land are more beneficial in the long term.
The department's available resources do not permit it to improve private property, or to acquire private property when there is state property in the broader area, the development costs of which are likely to exceed by far any improvement of state-owned property in order to achieve the same or similar purpose.