By Duncan Wild on 25 April 2013

The KwaZulu-Natal Joint Liaison Committee (“”the Committee“) is an association of independent schools that describe themselves as impoverished and dependent on State subsidies.  The Committee brought the case on the basis that the KwaZulu-Natal Department of Education (“the Department“) issued a notice in September 2008 setting out “approximate” subsidies for the 2009/2010 year.  The subsidies actually paid out were on average 30% less than stipulated in the notice.

The question the Constitutional Court had to determine is whether issuing the notice, against a background of payments in previous years that did align with the amounts set out in the notices, created a binding obligation to pay the amounts set out in the notice.

A secondary question, in part argued by the amicus, the Centre for Child Law, is that bearing in mind the right to basic education, the issuing of the notice created a legitimate expectation amongst the schools that the subsidies would not be significantly reduced when paid.

In the main judgment authored by Justice Cameron (and concurred in by Moseneke DCJ, Froneman J, Khampepe J, Skweyiya J and Yacoob J), it was held that the notice did not give rise to a contractual obligation.  The notice did, however, find that once a public official had made a public statement of a promise to pay specified amounts, that amount could not be unilaterally reduced after the due date for payment. The Constitutional Court therefore overturned the High Court decision and ordered the Department to pay the approximate amounts specified in the 2008 notice. 

Froneman J wrote a separate opinion in which he stated he agreed with the reasoning of Cameron J’s judgment but would also have found that the 2008 notice together with the Department’s past conduct would have constituted a binding contractual obligation.

Nkabinde J dissented from the main judgment finding that the 2008 notice did not constitute a binding promise to pay.  She would have granted leave to appeal but dismissed that appeal upholding the High Court’s judgment on the basis that the “approximate” amounts in the notice were not sufficiently precise to constitute a promise to pay.

Zondo J also wrote a dissenting opinion, in which Mogoeng CJ and Jafta J concurred. Zondo J held that the notice did not create a legal obligation as the “approximate amounts” were not sufficiently certain. He held that the order made in the main judgment would not be competent in law as the Department would not be able to determine what “approximate” amount to pay the schools.

Finally Mogoeng CJ and Jafta J wrote a separate dissent, in which Zondo J concurred, in which they indicated they agreed with Nkabinde J’s opinion, except that they would not have granted leave to appeal.

Download the judgment here.