Liability of State for payment

In Member of the Executive Council, Department of Education, Eastern Cape v Komani School and Office Suppliers CC t/a Komani Stationers [2022] 2 All SA 44 (SCA), liability of the state for a school payment owed to a creditor.

By Merilyn Rowena Kader LLB (Unisa), Legal Editor at LexisNexis South Africa.

Education - School payment owed to creditor – liability of the state: The respondent, Komani Stationers, in Member of the Executive Council, Department of Education, Eastern Cape v Komani School and Office Suppliers CC t/a Komani Stationers [2022] 2 All SA 44 (SCA) had supplied school stationery to a public school. The Stationers did not receive payment and it sued the school’s governing body and principal. Default judgment was obtained, but the District Director instituted interpleader summons seeking an order releasing the goods concerned from attachment on the ground that the goods were owned by the Eastern Cape Department of Education (the Department) who were not cited nor indebted to Komani Stationers. The latter then sued appellant (the MEC) for payment. As s 58A(4) of the South African Schools Act 84 of 1996 prevents attachment, in satisfaction of a judgment debt, of assets of a public school, the question in the present appeal was whether s 60(1) of the Schools Act encompasses claims for specific performance in respect of payment of money owed to a creditor by a public school because of the prohibition contained in s 58A(4). A subsidiary issue was whether Komani Stationers’s claim against the MEC had prescribed.

The High Court found against the MEC who then appealed.

The court held that it was common cause between the parties that the claim asserted by Komani Stationers was essentially one for specific performance, and that on its terms s 60(1) does not absolve public schools from liability in respect of their contractual obligations. The court considered what s 60(1) means in providing that ‘the State is liable for any delictual or contractual damage or loss caused as a result of any act or omission in connection with any school activity conducted by a public school and for which a public school would have been liable but for the provisions of this section’. The established tenets of statutory interpretation were applied.

A delict generally entails a breach of a duty imposed by the law independently of the will of the party bound. On the other hand, contractual damage or loss flows from a breach of contract and thus consists of a breach of a duty voluntarily assumed. There may well be an overlap between a claim for delictual and contractual damage where the conduct complained of constitutes both a breach of contract and satisfies the requirements of a delictual claim. In contrast, specific performance entails the right of a plaintiff to insist, subject only to the court’s discretion, that the other party to the contract performs their undertaking in terms of the contract whenever they are able to do so.

To bring a claim within the purview of s 60(1) to hold the state liable the claimant would need to establish delictual or contractual damage or loss, caused as a result of any act or omission, in connection with a school activity, conducted by a public school, for which such public school would have been liable but for the provisions of this section. The court held that s 60 is limited only to delictual or contractual damage or loss arising as a result of an act or omission in the circumstances stipulated in the section itself against a public school and does not avail a creditor who seeks to enforce a contractual claim for specific performance against the MEC concerned when a claim of that kind lies solely against a public school that is privy to the contract.

The appeal was upheld by the majority of court.

In a dissenting judgment, the point of departure was the interpretation of s 60. The minority judgment favoured a less narrow interpretation to read the section to include damages or loss flowing from the non-payment of a claim based on specific performance.

Merilyn Rowena Kader
Legal Editor at LexisNexis