Deverajh Moodley, a Durban dad who won several cases against Kenmont School in the Bluff, wants the legislation declared inconsistent with the constitution to recoup R577 409 that the school owes him for legal fees. Cost orders were awarded against the school when it lost in court.
The legal stand-off between Moodley and Kenmont dates to 2009, when the school attempted to exclude his son, Remano Moodley.
The school described the youngster as a difficult child.
Remano stayed in the school and matriculated in 2012, thanks to his dad’s victories in courts.
A warrant of execution was issued against Kenmont in July 2016. An amount of R386710 in the school’s bank account was attached, as well as a car and some furniture, but these were subsequently returned on advice of counsel that the school’s assets were exempted from attachment by the South African Schools Act (Sasa).
In papers to the Concourt, Moodley’s attorney, Viren Singh, said: "This was grossly unfair in a democratic society.
"A public school therefore is placed in an advantageous position in that it can litigate with impunity, and if unsuccessful, no execution against the assets of the public school is permitted, whereas any other litigant who unsuccessfully litigates is liable to have his/her assets attached to satisfy any cost orders that may be granted against them,” he said.
If Moodley had lost in court and the cost order was granted against him, Kenmont would be entitled to attach his assets, Singh argued.
“The applicant, however, cannot attach the assets of the (school) by virtue of the provisions of section 58A(4) of Sasa, which affords (it) blanket protection against the attachment of its assets to satisfy cost orders, which is inherently unfair.
“This differentiation cannot be justified in an open and democratic society based on freedom and equality,” Singh added.
The school wanted the Concourt to uphold its exemption from attachment, and shift the responsibility to settle the debt to the KwaZulu-Natal Education Department.
The State Liability Act, adopted in 1957, should be invoked, Kenmont argued in its opposing papers.
“It is the (school’s) contention that their assets are protected from attachment in terms of the Schools Act. The (school) contends that there is no need to declare section 54(4) of the act constitutionally invalid as the provisions of the act invoke provisions of the State Liability Act,” said Glynnis Dauth in the school’s papers.
“The (provincial education department) ought to have paid the costs.”
The court has informed the parties that it will hear the matter in May.