Durban - The KwaZulu-Natal Education Department will have to hand over about R2 million to the owner of a building in Durban’s city centre which housed a government school for 13 years without any lease and without the department paying rent.
In a judgment scathing of the department’s handling of the matter involving the Juma Musjid Islamic School - which finally shut down at the end of 2010 - Durban High Court Judge Yvonne Mbatha said the department had failed the underprivileged children who attended the school.
The legal battle over the school began in 2003 when the Juma Musjid Islamic Trust, which owns the building in Cathedral Road, first tried to evict the school.
Six years later, the trust finally got an eviction order but the school’s governing body took up the fight in the Constitutional Court, arguing that there was nowhere else for the pupils - most of them children of refugees - to attend school.
The governing body accused the education department of dropping the ball in negotiating a lease with the trust.
It had also done nothing to find alternative schools for the children. Ultimately the court ordered the school to vacate the premises, but made sure that the children had been provided for.
That court also criticised the education authorities, finding their conduct “wanting” and “indifferent”.
The trust then sued the department for the unpaid rental, damages to restore the premises and damages for use and occupation.
In the application, which was heard by Judge Mbatha last month, the trust argued that it had served eviction notices, and reminders, in 2003, 2004, 2005, 2007 and 2008.
Because there was no lease agreement, the trust was entitled to compensation for rental value on the open market.
The department, however, said the trust was not entitled to this “enrichment” claim and that it was “impossible” to vacate the premises because of the attitude of the governing body and the “competing rights and interests” of the trust, the governing body and the pupils.
The eviction had to have the oversight of the court, the department argued.
But in her ruling handed down this week, Judge Mbatha said “it was very unlikely” that during the 13-year period, the school could not be relocated.
“There was evidence that it would take at least four to six months to resettle the children in other schools, but this exercise was never undertaken by the department until the Constitutional Court intervened.
“Had the courts not intervened, it is clear to me that the MEC would never have done anything to relocate the pupils.”
The judge said on the other hand the trust had attempted not to disrupt education by only attempting to evict at times which would not interfere with schooling.
The department had been wrong in not entering into a proper lease agreement and then refusing to “meet half way” when it came to payment of water and rates.
She said an eventual offer of rental of R3 000 a year “was a slap in the face of a landlord assisting the government in the provision of basic education to children”.
The fact that the department had not even opposed the eviction order showed that it had no interest in these children and had failed in its duty to them.
She said the issue was simple. The department was in occupation and the trust was entitled to compensation.
The Mercury