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Govt wins fees battle
Tsungirirai Shoriwa, The Herald (Zimbabwe)
November 24, 2006

http://www.herald.co.zw/inside.aspx?sectid=11740&cat=1&livedate=11/24/2006

THE High Court has dismissed an urgent chamber application by the Association of Trust Schools seeking an order compelling the Secretary for Education, Sport and Culture, Dr Stephen Mahere, to allow them to increase school fees.

Justice Antonia Guvava, who heard the matter, said the ATS, Arundel School Trust, Chisipite Junior School Trust and 27 other applicants did not exhaust all the channels open to them before approaching the court.

She said they, therefore, had used a wrong procedure in approaching the court for redress.

In the application, Dr Mahere and the Minister of Education, Sport and Culture, Cde Aeneas Chigwedere, were cited as respondents.

Justice Guvava said the Education Act, which provides the Secretary for Education with powers to approve increases in school fees, was very clear that an aggrieved party should appeal to the minister.

She said the relief sought by the ATS and its fellow applicants required the court to usurp the powers of the minister.

"Where an Act of Parliament provides domestic remedies and they have not been exhausted, the court has discretion of whether or not to deal with the matter or decline jurisdiction.

"The relief sought by the applicants requires that this court usurp the functions of the respondents and itself approve increases in fees. It seems to me that this is not the proper course to take, especially where an Act of Parliament sets out the procedure to be followed in the event that a party is not satisfied with a decision," Justice Guvava said.

She said in her view, the applicants had failed to make out "a case in terms of which I am inclined to exercise my discretion in their favour".

The judge also said she was not persuaded by the arguments by the schools’ lawyer Advocate Edith Mushore that replies from the Acting Secretary for Education were wrong at law and should be dealt with in terms of Section 22 of the Act.

Justice Guvava said the said section deals with a "situation where the Secretary has given his approval based on false information".

She said the Secretary had declined to grant an approval, hence Section 22 would not be applicable.

"In my view, therefore, where the Secretary has responded to an application made in terms of subsection 2 of Section 21 and declined to approve the increase applied for, then the remedy of the aggrieved party lies with an appeal to the Minister in terms of Section 22," Justice Guvava said.

The private schools dragged the Government to court in September this year after it declined to approve their application to increase school fees for the third term.

ATS chairman Mr Jameson Timba, in his affidavit, said there was no provision in the Education Act where it was stipulated that applications for increasing school fees should be made for the coming term.

The Government opposed the application, saying the schools had adopted a wrong procedure and that the matter was not urgent.

The Government, however, later conceded that the matter required immediate resolution, prompting Justice Guvava to deal with the case on an urgent basis.

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