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[2021] ZAWCHC 23
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School Governing Body Paarlzicht Primary School v Member of the Executive Council for Education Western Cape and Others (14098/2019) [2021] ZAWCHC 23; [2021] 2 All SA 241 (WCC) (11 February 2021)
In
the High Court of South Africa
(Western
Cape Division, Cape Town)
Case
No: 14098/2019
In
the matter
between:
SCHOOL GOVERNING BODY,
PAARLZICHT
Applicant
PRIMARY
SCHOOL
and
MEMBER OF EXECUTIVE
COUNCIL
First Respondent
FOR
EDUCATION, WESTERN CAPE
HEAD OF EDUCATION,
WESTERN CAPE
Second Respondent
EDUCATION DEPARTMENT
PAARLZICHT PRIMARY
SCHOOL Third
Respondent
D.J DURAAN
N.O
Fourth
Respondent
D
OORDMEYER
Fifth
Respondent
ACTING WYNLAND
DISTRICT MANAGER, Sixth
Respondent
WESTERN
CAPE DEPARTMENT OF EDUCATION
Date of Hearing
: 16 November 2020
Date
of Judgment : Delivered electronically on 11
February 2021
JUDGMENT
LEKHULENI
AJ
INTRODUCTION
[1]
This is a review application. Initially, this matter served before
this Court on an
urgent basis. It consisted of two parts, i.e.
Part A and Part B. Part A dealt with an application for an
interdict
and Part B dealt with the review proceedings. The
applicant and the second respondent have since reached an agreement
with
regard to the prayers in Part A and it was recorded that there
shall be no order in respect of Part A as a consequence thereof.
In essence, the issues before this Court relates to Part B, that is,
the review proceedings.
[2]
The applicant (a School Governing body of the third Respondent) seeks
to review and
set aside the decision of the second respondent taken
on 26 January 2019 to appoint, the fourth respondent (“Mr.
Duraan”)
as the principal of third respondent. Plainly
summarized, the applicant avers that the second respondent as a
result of bias,
decided to appoint Mr Duraan as the principal of the
third respondent. When the second respondent so appointed Mr Duraan,
he did
so unreasonably and without considering the preferred
candidate by the applicant being the fifth respondent
(“Mr
Oormeyer”)
by
placing too much weight and / or emphasis on the psychological
assessment of Mr Oormeyer, and without considering factors indicating
that Mr Oormeyer was a better candidate than Mr Duraan. The applicant
contended that the decision of the second respondent is procedurally
tainted.
[3]
As stated by the parties, the schooling system at the third
respondent has not been
disrupted by this application. At the
hearing of this matter, the Court was informed that all the necessary
arrangements
have been made towards the management of the third
respondent. What was outstanding, was the finalization of this
review
application. This application is only opposed by the second
respondent.
PRELIMINARY
ISSUES
The
misjoinder of the first respondent
[4]
The second respondent took issue with the misjoinder of the first
respondent. According
to the second respondent, he is the functionary
that took the impugned decision. The second respondent avers that he
took the decision
in the exercise of his statutory powers in terms of
section 6 of
the Employment of the Educators Act 76 of 1998 (“
the
EE Act”
)
and
not the
first respondent. In
casu
,
the Provincial Minister was not the decision maker. The second
respondent further contends that as the Provincial Minister did
not
make the impugned decision, there was accordingly no basis in fact or
in law to join the Provincial Minister in these proceedings,
let
alone cite her as the first respondent. The second respondent further
submitted that the applicant failed to address the misjoinder
of the
first respondent in either its replying affidavit or its heads of
argument. As a result, the second respondent avers that
there was no
basis for the applicant to join the first respondent.
[5]
Indeed the applicant did not deal with this challenge. Having
had regard to
the powers of the second respondent, I tend to agree
with their submissions on this point. In my view, there was no basis
in law
or fact why the Provincial Minister was joined in this matter.
In terms of section 6(3)(a) read with 6(3)(f) of the EE Act the power
to appoint, promote or transfer educators is vested in the head of
department, that is, the second respondent in this matter. It
remained common cause that the decision to appoint Mr Duraan was
taken by the second respondent in terms
the EE Act. It is that decision that is the subject of review
in this matter. In my opinion, the joinder of the Provincial
Minister
in this case is ill-advised and unwarranted. To this end, the
submissions by Mr Farlam, the second respondent’s
counsel,
that
there was no basis in law for the applicant to join the first
respondent are legitimate. This preliminary point in my
view
should succeed.
Unreasonable
Delay in launching this application
[6]
The applicant filed this application seventeen (17) days out of time.
The second respondent
submitted that the applicant was informed of
the decision to appoint Mr Duraan on 29 January 2019. The respondent
further states
that it ought to have been clear to the applicant on
that date that in terms of the EE Act, there was no internal
mechanism available
to it to challenge the decision. According to the
second respondent, as at 30 January 2019, the applicant had already
decided to
take issue with the decision of the second respondent as
it wrote to the Director Education for the Cape Wynland District
voicing
out its dissatisfaction in relation to the appointment of Mr
Duraan. In pursuing this complaint further, the applicant requested
the reasons from the second respondent for his decision.
On
01 April 2019, the second respondent furnished the reasons for the
appointment of Mr Duraan as a suitable candidate in terms
of section
6(3)(f) of the EE Act after same were requested. By that time,
the applicant had already sought legal opinion
and had been advised
that there were no internal appeal procedures. The remaining
option was to proceed with the review proceedings.
To this end, the second respondent contends that the applicant
should have taken legal steps sooner to challenge the decision
that
the applicant was not prepared to accept. Notwithstanding, the
applicant delayed until 14 August 2019, some seven months after
being
informed of the decision to launch this application. The second
respondent is of the view that the applicant has not provided
any
justification for the delay in instituting this application and has
not properly sought condonation for the delay.
[7]
The applicant on the other hand initially contended that the delay in
filing this
application was negligible and that there was no
application for condonation necessary to bring this application.
However, after
the second respondent challenged the delay in filing
this application, in its replying affidavit, the applicant applied
for condonation.
The applicant also stated that it exchanged
correspondence with the second respondent in good faith in order to
avoid litigation
at all costs. It did so over a period of six months.
The applicant avers that the array of correspondences accounts for
the delay
in bringing this application and that the second respondent
also delayed significantly in producing his reasons for his decision.
This delay had an impact in the launching of this application. The
reasons for the decision were only produced some three months
after
the decision was taken and an entire month after the applicant
requested his reasons. The applicant contended that
it was in
no position to review the decision before this point. In the
applicant’s view, the second respondent has not sought
to
demonstrate any prejudice caused by this slight delay.
[8]
Section 7(1) of the Promotion of Administrative Justice Act 3 of
2000,
(“PAJA”)
provides that
any
proceedings for judicial review in terms of section 6(1) must be
instituted without unreasonable delay and not later than 180
days
after the date on which the person concerned was informed of the
administrative action, became aware of the action and the
reason for
it, or might reasonably have been expected to have become aware of
the action and or the reasons. Section 9(1) of PAJA
provides that
“the 180-day period may be extended for a fixed period, by
agreement between the parties or, failing such agreement,
by a court
or tribunal, on application by the person or administrator
concerned.” It is trite law that such application may
be
granted where the interest of justice so requires. Where the delay
can be explained and justified, then it can be considered
reasonable,
and the merits of the review can be considered - See
Department
of Transport v Tasima (Pty) Ltd
2017 (2) SA 622
(CC) at para 153.
[9]
In
Merafong City v AngloGold Ashanti Ltd
2017 (2) SA 211
(CC)
at para 50, the court said:
The
rule against delay in instituting review exists for good reason: to
curb the potential prejudice that would ensue if the lawfulness
of
the decision remains uncertain. Protracted delays could give rise to
calamitous effects. Not just for those who rely upon the
decision but
also for the efficient functioning of the decision-making body
itself.
[10]
At common law the application of the undue delay rule requires a two
stage inquiry. The first
question to be determined is whether there
was an unreasonable delay and, second, if so, whether the delay
should in all the circumstances
be condoned. See
Associated
Institutions Pension Fund and Others v Van Zyl and Others
2005 (2) SA 302
(SCA) pare 47. In
Opposition
to Urban Tolling Alliance v South African National Roads Agency
Limited
[2013] 4
AII SA 639 (SCA) para 26, the SCA found that section 7(1) of PAJA
require the same two stage approach. However, the difference
lies in
the legislature’s determination of a delay exceeding 180 days
as
per se
unreasonable. The court observed that a court is only empowered to
consider a review application if the interest of justice dictates
an
extension in terms of section 9 of PAJA. In the absence of such
extension, the court has no authority to entertain or consider
a
review application at all.
[11]
Reverting to the present matter, it is not in dispute that the
applicant was informed of the
decision of the second respondent on 29
January 2019. The applicant immediately expressed its consternation
and objection to the
decision of the second respondent on 30 January
2019 in a correspondence addressed to Mr Benjamin the Director of
Education for
the Wynland District. The applicant requested reasons
for the decision and same were furnished on 01 April 2019.
Notwithstanding,
the applicant delayed until 14 August 2019,
some seven months after being informed of the decision to launch this
application.
The application was launched 201-days after the
applicants where informed of the decision of the second respondent to
appoint Mr
Duraan. As explained above, in terms of section 7(1) of
PAJA, a delay of 180 days is unreasonable
on its own.
[12]
However it must be stressed that after the decision was made, there
was a dense array of correspondences
between the applicant and the
second respondent and other officials of the WCED. In those
correspondences, the applicant expressed
its displeasure and asked
the second respondent whether the decision could be revisited or
overturned. The WCED later sought legal
advice which was communicated
to the applicant on 27 February 2019. The advice from Advocate
Coleridge-Zils was that the decision
of the second respondent could
not be appealed but only reviewed. On 28 February 2019 the applicant
requested written reasons from
the second respondent for his
decision. The second respondent delayed by about a month to provide
the reasons for his decision.
The second respondent furnished his
reasons on 01 April 2019. There were other correspondences that the
applicant sent to the second
respondent in an attempt to engage with
second respondent’s reasoning. The
correspondences
were exchanged for over a period of six months. Eventually in May
2019, the applicant sought the services of an
attorney who also
engaged the second respondent. Subsequently, in August 2019 this
two-pronged application for review was then
launched.
[13]
After a careful consideration of the facts of this matter, I am of
the opinion that the correspondences
between the applicant and the
second respondent comprehensively accounts for the delay in bringing
this application. Subsequent
to the applicant being informed of the
decision of the second respondent to appoint Mr Duraan, the applicant
did not at all remain
complacent and or
sit
back.
The
applicant meaningfully engaged the second respondent in
correspondences from the date of his decision. In my view, this court
should be very slow to close doors for the applicant to access this
court. The applicant may view this delay as negligible,
however
each day it has delayed on counts and should be accounted for. Since
the matter goes to the core of the governance of the
school, in my
view, the delay such as the present should not stand on the way of
the applicant in its quest to vindicate its constitutional
right in
terms of section 34 of our Constitution. It cannot be said that the
applicant was indolent or slow-moving in bringing
this application.
[14]
In addition,
in
State Information
Technology Agency SOC Limited v Gijima Holdings (Pty) Ltd
2018 (2) SA 23
(CC) at par 49, the Constitutional Court stated that
the discretion to overlook an undue delay in instituting review
proceedings
cannot be exercised in the abstract. There must be a
basis upon which to do so, arising from facts before the court by the
parties,
or objectively available factors. It is my considered view
that the correspondences between the parties were clear, frank,
candid,
and meaningful and without any doubt account and explains
fully the delay in launching this application. In my judgment, it
will
be thoughtless and against the interest of justice for this
court to avoid considering this application by virtue of the 17-day
delay in bringing this application. This is a matter that involves
the management of the school and the education of young school
children is at the coalface of this application. The stakes are high
and the best interest of the school children is paramount.
The
prejudice to the learners at the school occasioned by the uncertainty
which has existed since January 2019 and the detrimental
consequences
that might face the school for not having a permanent principal since
that date are immeasurable and incomparable
with the prejudice that
will be suffered by the second respondent if any, if condonation is
granted.
[15]
On a conspectus of all the facts place before court, I am of the view
that al
though
there was a delay it was explained, the interest of justice weighs
heavily in favour of condoning the late filling of the
review
application. Consequently, the applicants’ application
for condonation succeeds.
FACTUAL
BACKGROUND
[16]
The genesis of the dispute arose from a vacancy for a position of
principal of the third respondent.
The position became vacant on 01
July 2018, when the erstwhile principal of the third respondent, Mr
Jacobs resigned due to ill
health. Pursuant thereto, the applicant
commenced on a process of recruiting a new principal for the third
respondent. The process
commenced on 01 June 2018 when the second
respondent advertised the vacancy and invited candidates to apply for
the position. The
advertisement of the second respondent, among
others, provided that the position required a strategic thinker and a
visionary;
knowledge of the relevant national and provincial
education regulations and proven experience in leading a primary
school as a
principal.
[17]
Following the advertisement, 29 candidates applied for the position
for principal and on 29 August
2018, the applicant shortlisted four
candidates for interview. The interview process included competency
based assessment which
was conducted by th
e
Western Cape Education Department
(“the
WCED”).
The
interview process was m
onitored
by Mr Dalvey, a representative of the WCED.
[18]
As part of the recruitment process or criteria, the applicant sought
a candidate with experience
in managing a primary school with
approximately 1000 learners. They sought a principal who is familiar
with the broader community
and the parents of the school. They also
looked for a candidate who has experience in primary school
activities and who has experience
in the day to day management of a
school environment. According to the applicant, Mr Oormeyer complied
with all the requirements
as he is currently serving as a principal
of AME Primary School.
[19]
After the interview process was concluded, the applicant unanimously
found Mr Oormeyer as the
suitable and ideal candidate for the
position of principal of the third respondent. The applicant avers
that Mr Oormeyer performed
extremely well in his interview and did
far better than Mr Duraan. According to the applicant, Mr Oormeyer
has a deep understanding
of the issues facing education in the 21st
century and the sensitivity required to meet the needs from diverse
backgrounds. The
applicant stated that its intention was to only
submit the name of Mr Oormeyer to the second respondent in terms of
section 6(2)(c)
of the EE Act. However, Mr Dalvey, who was the
department’s official overseeing the recruitment process,
interfered in the
deliberations of the applicant and insisted that Mr
Duraan’s name be submitted to the second respondent. The
applicant eventually
submitted the names of Mr Duraan and Mr Oormeyer
to the second respondent in terms of section 6(2)(c) of the EE Act.
[20]
On 05 October 2018 both candidates underwent a psychological
assessment conducted by the WCED.
Mr Duraan apparently performed
better than Mr Oormeyer in the assessment test. However, the
psychometrist conducting the test highlighted
the fact that the
results of the test should not be considered in isolation but
instead,
should
be combined with other relevant information when deciding on the
appointment of a suitable candidate. After consulting other
officials
of the WCED, on 26 January
2019,
t
he second
respondent appointed Mr Duraan as the principal of the third
respondent. The applicant contended that the departmental
official
interfered with the appoin
tment
process and that Mr Dalvey was friends or acquainted with Mr Duraan
and another short listed candidate, and should therefore
not have
overseen the recruitment process on behalf of the department, let
alone intervene in the way he did.
[21]
After the appointment of Mr Duraan as principal of the third
respondent, the applicant implored
the second respondent to review
his decision to appoint Mr Duraan as it felt that Mr Oormeyer was the
preferred candidate on the
list submitted for
consideration
as a principal. On 28 February 2019, the applicant requested from the
second respondent the reasons for the appointment
of Mr Duraan as the
principal of the third respondent over their preferred candidate Mr
Oormeyer. The applicant also requested
that the involvement of Mr
Dalvey and his influence on the applicant be investigated.
[22]
On 01 April 2019, the second respondent furnished the reasons for the
appointment of Mr Duraan
as a suitable candidate in terms of section
6(3)(f) of the EE Act after same were requested. The reasons for this
decision included
but was not limited to the following:
“
(i)
That Mr Duraan has both a Degree and Honours Degree in Education
Management as well
as 10 years’ experience as advisor in
Primary Schools.
(ii)
Neither candidate has extensive Primary School experience; Mr
Duraan’s Primary
School work for 10 years and post Graduate
qualification in Education Management support my decision.”
[23]
The second respondent also alluded to the fact that although not a
deciding factor in his decision,
the Competency Based Assessment
(psychological assessment report) supported his original decision
that Mr Duraan is the most suitable
candidate for this post. H
owever,
the applicant did not accept the second respondent’s reasons.
As a consequence thereof, these proceedings were
instituted in order
to review and set aside the decision of the second respondent.
GROUNDS
OF REVIEW
[24]
The applicant’s grounds of review can be succinctly summarized
as follows:
24.1
That the second respondent was biased when he appointed Mr Duraan on
26 January 2019 instead of Mr Oormeyer;
24.2
That
the second respondent failed to consider relevant considerations in
making the decision;
24.3That
the decision of the second respondent was unreasonable;
24.4That
the second respondent unlawfully delegated his powers and failed
to
comply with the mandatory requirements; and
24.5 That
the decision was irrational (not rationally connected to the
information
that served before the second respondent).
ANALYSIS OF THE
PARTIES’ SUBMISSIONS AND APPLICABLE LEGAL PRINCIPLES
[25]
For the sake of brevity and completeness, I will deal with the
grounds of review set out above
ad seriatim.
(i)
Was
the first respondent biased when he appointed Mr Duraan on 26 January
2019 instead of Mr Oormeye
r
[26]
Mr Arendse argued on behalf of the applicant that there was clear
bias in this case. Counsel
contended that the bias operated on two
levels.
First
,
that the second respondent worked together with Mr Duraan in the West
Coast Education District and in the Wynland Education District.
They
were closely acquainted, and thus creating an impression of bias.
Second,
the involvement of Mr Dalvey creates a reasonable apprehension of
bias. Counsel contended that the crucial facts concerning Mr
Dalvey
among others, are that: Mr Dalvey was present at all times during the
interviews
and nominations of Mr Duraan and Mr Oormeyer. Mr Dalvey had been a
referee for Mr Elton-John Du Plessis one of the short
listed
candidates. Mr Dalvey has
a
close relationship with Mr Duraan and moreover, Mr Dalvey and Mr
Duraan were colleagues for years in the Atlantis and Wynland
District
offices. Mr Dalvey is effectively Mr Duraan’s Manager and
superior. Mr Dalvey and Mr Duraan have worked
together
on the latter’s PowerPoint presentation for his interview with
the applicant and has also prepared Mr Duraan’s
practical
component of the interview. Mr Dalvey did not disclose to the
applicant his relationship to two of the candidates and
on the
contrary, members of the applicant discovered these relations
themselves. Mr Arendse also argued that on 12 September 2018
after
interviewing the candidate, the members of the applicant felt that
only Mr Oormeyer should be nominated for appointment by
the second
respondent and Mr Dalvey interrupted during the deliberations when he
realized that Mr Duraan would not be nominated
to the second
respondent. He insisted that Mr Duraan be included in the list.
[27]
Mr Farlam for the respondent argued that Mr Dalvey merely had an
oversight role during the interviews
and he performed his duties
diligently. He refuted all the allegations made by the applicant
against Mr Dalvey. It was contended
that there was no relationship
between Mr Dalvey and Mr Duraan as alleged and that Mr Dalvey did not
assist Mr Duraan with the
latter’s’ PowerPoint
presentation for the interview with the applicant. The allegations
that Mr Dalvey prepared Mr
Duraan’s practical interview
component were also refuted. Counsel argued that Mr Dalvey was not
the decision maker. It was
further contended on behalf of the second
respondent that there is nothing at all untoward that can be
attributed to Mr Dalvey’s
presence during the interview and
nomination process. Counsel contended that Mr Dalvey was required to
oversee the nomination and
selection process, and was simply doing
his job diligently.
[28]
From the above submissions of the applicant’s counsel, it is
very clear that the applicant’s
allegations of bias on the part
of the second respondent are based on two grounds, namely, that the
second respondent was closely
acquainted with Mr Duraan as they
worked together in the West Coast Education District and in the
Wynland Education District. The
second ground of the alleged biasness
against the second respondent is the involvement of Mr Dalvey during
the interview and nomination
process.
[29]
It is trite law that decision makers ought to be impartial. They must
be prevented from making
decisions that are based on illegitimate
motives and considerations. This ancient common law principle was
captured in section
6(2)(a)(iii) of PAJA which gives the court the
power to review administrative actions where the administrator was
biased or reasonably
suspected of bias - See Hoexter
Administrative
Law in South Africa
2 edition at page 451. In
BTR
Industries South Africa (Pty) Ltd v Metal and Allied Workers’
Union
[1992] ZASCA 85
;
1992 (3) SA
673
(A), the court found that in order to have a decision set aside,
the affected individual merely has to prove an appearance of
partiality
rather than its actual existence.
[30]
For the applicant to succeed on this ground of review, the applicant
must demonstrate with proof that the second
respondent was biased or
that on the facts there is a reasonable apprehension that the second
respondent was biased. In
President
of the RSA v South African Rugby Football Union
[1999] ZACC 9
;
1999 (4) SA 147
(CC) at para 45, the Constitutional Court confirmed
that the test for apprehended bias is objective and that the onus of
establishing
it rests upon the applicant who alleges it. The
apprehension of the reasonable person must be assessed in the light
of the true
facts as they emerge at the hearing of the application.
Incorrect facts which were taken into account by an applicant must be
ignored
in applying the test.
[31]
In this case, the second respondent has flatly denied that he was
acquainted with Mr Duraan as
alleged or at all. In fact, he was
emphatic that he cannot recall at this time who Mr Duraan is. It was
against this background
that he refuted the allegations of bias
against him. In my view, there is no reason to discount the denial of
the second respondent
to the allegations levelled against him.
Importantly, the applicant did not produce any shred of evidence to
support its
allegations that the second respondent was acquainted
with Mr Duraan. The applicant merely made bald and unsupported
statements
of friendship and / or acquaintance between the second
respondent and Mr Duraan. To this end, I agree with the views
expressed
by Mr Farlam that a bald assertion without any factual
basis cannot begin to lay a basis for a finding of a reasonable
apprehension
of bias an enquiry which involves an objective test that
requires the person making the assertion to show that a reasonable
person
in the position of the litigant would, on reasonable grounds,
consider the decision maker biased.
[32]
In my view, the applicant failed to prove or to adduce any evidence
to support its allegation
that the second respondent was in fact
acquainted to Mr Duraan. Even if the applicant had proved any
friendship between the second
respondent and Mr Duraan, which in my
view it failed to do, this allegation is unfounded. From the
objective facts placed
before court, it is abundantly clear that the
applicant is seeking to rely on bald assertions without any basis in
fact or law.
In my view, the bald allegations are unsupported and
ill-conceived. At the same time, the second respondent’s denial
of these
allegations cannot be disregarded by this court and in the
absence of any evidence to the contrary, that disposes of the bias
allegations
of the applicant.
[33]
The applicant also contends that Mr Dalvey influenced the interview
and the nomination process
and that his involvement in the interview
process give rise to a reasonable apprehension of bias. In my view,
this argument misses
the point. It must be stressed that Mr Dalvey
was not the decision maker. Even if it could be accepted for
once that he made
a decision, such decision is not reviewable. Mr
Dalvey was merely present during the interview process to oversee the
smooth
running of the recruitment process.
[34]
Furthermore, the allegations by the applicant that Mr Dalvey
influenced the process and the nomination
of Mr Duraan is unfounded
and undoubtedly in conflict with the correspondences of the applicant
to the Provincial Minister. From
the time the decision was made to
appoint Mr Duraan, the applicant did not complain of any illegality
of the interview process
or the involvement and / or interference of
Mr Dalvey in this exercise. Instead, on 04 February 2019, the
applicant wrote to the
Provincial Minister and emphasized how well
and flawless the process had functioned. For the sake of
completeness, I deem it wise
and prudent to quote verbatim the said
correspondence to the Minister. The applicant through its
representative stated:
“
Ons
as Skool Beheerliggaam wil net onder u aandag bring dat ons baaie
ontevrede is dat by Paarlzicht primer te Paarl ‘n 2de
benoemde
kandidaat in pos 1105 as Hooffaangestel is en dat die 1
st
benoemede oor die hof gesien was sonder enige verduideliking!
Ons
wil did duidelik stel dat die proses wat ons gevolg het regeverdig
gevolg was soos deur Mnr Dalvie (kringbestuurder) uitgewys
was! Daar
was niks verkeerd met die proses! Ons het seker gemaak dat die proses
wat die SBL gevolg nie bevragteken word nie
.
Die 1ste benoemde het nie n ander pos aanvaar by n ander skool nie
and dit is ons hoofrede hoekom ons Mnr D. Oormeyer as Prinsipaal
by
Paarlzicht wil aanstel he...”(my underling).
[35]
In my view, this email is very clear and unambiguous. Evidently, it
makes the point that the
interviewing and nomination process was
faultless, impeccable and above reproach. It lends support to the
fact that there was nothing
untoward that Mr Dalvey did during the
interview process. In subsequent correspondences of the 19
February and 28 February
2019 respectively that were addressed to the
second respondent, the applicant raised concerns about the
appointment of Mr Duraan.
Neither of those correspondences did the
applicant raise any concern on the impropriety of Mr Dalvey’s
conduct. Furthermore,
when the second respondent was taking time to
furnish reasons the applicant approached the Provincial Minister for
assistance.
In my view, if indeed there was concern that Mr Dalvey
unlawfully interfered with the process, the applicant would have
raised
this concern at the earliest available opportunity. The
applicant only raised this concern about the purported conduct of Mr
Dalvey
in an email dated 18 March 2019. The applicant sought a
response to its request for reasons and it requested that the
involvement
of Mr Dalvey and his purported influence on the applicant
be investigated. In this correspondence, the applicant did not give
details
of Mr Dalvey’s alleged undue influence or involvement
in the appointment process. The first time that the averments on
which
the applicant relies on in its founding affidavit with regard
to the alleged conduct of Mr Dalvey, were only raised in a letter
dated 24 April 2019.
[36]
The applicant did not provide this court with an explanation as to
why the alleged improper conduct
of Mr Dalvey was only raised some
four months after the applicant was informed of the decision and only
seven months after the
applicant had made the decision to recommend
Mr Oormeyer and Mr Duraan as the two candidates for the Principal’s
position.
The impugned decision was made in January 2019 and the
complaint about Mr Dalvey only surfaced clearly in April 2019. In my
view,
if indeed the applicant was concerned with the conduct of Mr
Dalvey, the applicant would have raised its concern with the second
respondent immediately after the interviews were conducted or when
the names of the two candidates were submitted to the second
respondent. Needless to say the fact that this alleged concern was
not raised at the time is highly revealing and questionable.
[37]
The allegation that Mr Dalvey insisted in nominating Mr Duraan is
unsupported by the facts and
the evidence before court. In the
minutes of the meetings for the interview in particular, the minutes
of 12 September 2018 confirming
the nomination and the suitability of
Mr Oormeyer and Mr Duraan, it is not recorded that there was any
improper conduct of Mr Dalvey
as alleged by the applicant. Nowhere in
the minutes is it recorded that Mr Dalvey insisted in the appointment
of Mr Duraan. These
minutes were signed by the chairperson and
secretary of the applicant. The minutes also incorporates the names
of all the officials
involved in the interview process in particular
members of the applicant. The argument that this information is not
recorded in
the minutes because Mr Dalvey prepared these minutes
objectively speaking does not at all hold sway. If there was any
impropriety
conduct by Mr Dalvey this would have reflected on the
minutes.
[38]
In my view, the alleged indictment of impropriety against Mr Duraan
is an afterthought and glaringly
unconscionable. To top it all, at no
stage prior to the decision of the second respondent did the
applicant raise any concern with
the second respondent or the
department in regard to the role played by Mr Dalvey in the interview
and appointment process. These
allegations against Mr Dalvey were
only raised in peripherally or tangentially in March 2019 and / or
April 2019 respectively,
after the reasons for the decision had been
received. In my judgment, this is not consistent with the applicant’s
version
that Mr Dalvey was biased and unduly partial to one
candidate. In fact, this outrightly negates the applicant’s
version.
[39]
The final issue that requires consideration before I conclude on this
review ground is the presence
of Mr Dalvey during the interviews and
the allegation that he was a referee for one of the candidates.
Having had due regard to
all the evidence placed before court, there
is nothing inappropriate or infelicitous that can be attributed to Mr
Dalvey’s
presence during the interview and nomination process.
The minutes of the meeting and the correspondences of the applicant
to the
second respondent completely negates the version of the
applicant. In any event Mr Dalvey was required to oversee the
nomination
and the selection process and was simply doing the task
assigned to him in the best way he could. There is no reason
whatsoever
for this court to falter his performance.
[40]
Furthermore, the allegation that he was a referee to one of the
candidates is inconsequential
to the decision that was taken by the
second respondent. More importantly, the decision to appoint Mr
Duraan was taken by the second
respondent and not Mr Dalvey. It has
not been established that the second respondent nor Mr Dalvey had any
interest in appointing
Mr Duraan over Mr Oormeyer. However what has
been established is that the second respondent appointed a candidate
whom he considered
to be a better candidate. In my view, the fact
that the applicant takes umbrage at the second respondent’s
choice does not
give rise to a reasonable apprehension or bias.
Consequently, I am satisfied that the applicant has failed to
demonstrate a reasonable
apprehension of bias in the present matter.
(ii)
Did
the second respondent fail to consider relevant considerations in
making the decision
[41]
The applicant contends that the second respondent decided to appoint
Mr Duraan and failed to
afford proper weight to various factors. To
this end, the applicant contends that after the two candidates were
nominated and their
names were submitted to the second respondent,
both candidates underwent a psychometric assessment test conducted by
the WCED.
In this test, Mr Duraan performed well than Mr Oormeyer.
However, the Psychometrist who conducted the test warned that the
results
from the test should not be considered in isolation but
should be combined with other relevant information when deciding on
the
appointment.
The
applicant also contends that the psychological assessment was not at
all the requ
irement
of the post. The applicant also contended that the second respondent
failed to attribute enough weight to the recommendation
of the
applicant that Mr Oormeyer was a preferred candidate. The applicant
averred that the second respondent failed to make mention
that Mr
Oormeyer has 23 years of teaching experience and ignored the
memorandum recommending Mr Oormeyer to be appointed.
[42]
Sections 6(2)(e)(iii) and (vi) of PAJA provides for judicial review
where an action was taken
because irrelevant considerations were
considered or relevant considerations were not considered or the
action was taken arbitrarily
or capriciously. In cases such as this,
it is important for the courts to defer to the decisions of the
functionary unless it can
be established that the decision maker has
not brought
his
unbiased judgment to bear in making the impugned decision. The court
must consider the actions of the employer, in this case
the second
respondent, and can only interfere with that discretion if the
employer acted frivolously or capriciously or unreasonably
- See
Arries v CCMA and
others
(2006) 27
ILJ
2324 at para 19.
[43]
In this
case,
the second respondent recorded in his correspondence dated 01 April
2019 that his reasons for his decision include but are
not limited to
that:
“
Duraan
has an honours degree as well as 10 years’ experience as an
advisor to primary schools;
Neither
candidates had extensive primary school experience;
Mr Duraan had
however worked with primary school for 10 years.
Mr
Duraans’ competency Based Assessment (although not a deciding
factor) was a consideration supporting the second respondent’s
view that Mr Duraan was the most suitable candidate for the post.”
[44]
From this response, it is evident that the reasons advanced by the
second respondent to the applicant
were not exclusive. The second
respondent explained to the applicant that he considered all the
relevant factors including the
qualifications and experience of the
two candidates as well as the competency based assessment and other
relevant information as
reflected in the rule 53 record. These
included the CV of the candidates and motivations, the scoring of the
candidates during
the interviews and all the relevant recommendations
from the various officials from the WECD. There is nothing to
suggest
that the second respondent did not consider all the relevant
factors placed before him before he made the appointment. The
second respondent averred in his answering affidavit and even in his
correspondences to the applicant that he had considered all
the
relevant factors, including the qualifications and experience of the
two candidates, as well as the psychological assessment
results.
[45]
The applicant seems to suggest that the second respondent afforded
certain factors in particular,
the psychological assessment report
and the qualification of Mr Duraan more weight and failed to take
other relevant considerations
into account. In my view, the decision
of the
Supreme Court
of Appeal in MEC for Environmental Affairs and Development Planning v
Clarison’s CC
2013
(6) SA 235
(SCA) at para 60, is apposite and relevant for present
purposes. In that matter the court said:
“
The
Court will merely require the decision-maker to take the relevant
considerations into account; it will not prescribe the weight
that
must be accorded to each consideration, for to do so could constitute
a usurpation of the decision maker’s discretion”.
[46]
The second respondent, in my view, considered all the factors placed
before him. In addition,
he considered all the documents that
served before the applicant during interview as well as the CV’s
of the incumbents.
Similarly, from the record placed before court, it
is clear that Mr Oormeyer’s experience was placed before the
second respondent
and that the latter considered it. In his
correspondence to the applicant and in his answering affidavit, the
second respondent
stated that he considered the fact that Mr Oormeyer
mainly had experience in teaching in High School and not at a Primary
School
level. He made it clear that neither candidate possessed
extensive Primary School experience.
[47]
In my view, this is indicative that he considered the experience of
Mr Oormeyer. Furthermore,
the argument that the factors which
rendered Mr Oormeyer the preferred candidate were purportedly not
afforded any weight by the
second respondent is unfounded and without
basis in reason or fact. There is no evidence adduced to support this
argument. The
fact that Mr Duraan, a second candidate was appointed
does not suggest or mean on its own that the second respondent did
not consider
all the relevant facts placed before him. The
psychological assessment report as well as the fact that Mr Duraan
had an honours
degree was one of the considerations but was not a
deciding factor. The second respondent was unequivocal and emphatic
that these
were but some of the range of factors which he considered.
Furthermore, the fact that the applicant is in disagreement with the
decision of the second respondent does not render the decision
reviewable. To this end, I agree with the views expressed by Mr
Farlam that for a ground of review based on failure to consider
relevant factors to succeed, the complaint cannot be that one factor
was supposedly weighed too heavily or too lightly. It must instead be
demonstrated that the decision maker failed to take into
account
facts which, if they had been taken into account, would have
materially influenced the decision, or alternatively took
into
account factors which are relevant to the process.
[48]
In
Head of the
Western Cape, Education Department and Others v Governing Body of the
Point High School and Others
2008 (5) SA 18
(SCA) at para [10], the court considered the exercise
of a discretion by the head of department in the position of the
second respondent
and stated as follows:
“…
If
he is satisfied that the stipulated requirements have been complied
with, he may appoint a candidate from the governing body’s
list
in terms of the discretion vested in him by ss 6(3)(f). The law is
now clear that, in exercising this discretion, the HOD
is required to
act reasonably and, by taking into account all of the relevant
factors and considering the competing interests involved,
to arrive
at a decision which strikes a ‘reasonable equilibrium’.
The Court has no
power to review this decision purely because there may be another,
perhaps better, ‘equilibrium’ which
could have resulted
by attributing more weight to some factor or factors and less to
others. If that struck by the decision maker
is reasonable, then it
must stand.
”
(My emphasis).
[49]
Taking into account the facts of this case and the guidelines set out
above, I am of the view
that there is no basis whatsoever warranting
the setting aside of the decision of the second respondent in terms
of section 6(2)(e)(iii)
of PAJA. The second respondent does not have
to rubber stamp the recommendations of the applicant. In this
matter he demonstrated
that he applied his mind considerably.
Therefore, this ground of review falls to be dismissed.
(iii)
Was
the decision of the second respondent unreasonable
[50]
Section 6(2)(h) of PAJA provides that a decision can be reviewed
where the exercise of the power
or performance of the function
authorized by the empowering provision, in pursuance of which the
administrative action was purportedly
taken, is so unreasonable that
no reasonable person could have so exercised the power or performed
the function. It is now trite
that for a decision to be impugned on
the basis of lack or reasonableness, the decision must have been so
unreasonable that no
reasonable decision maker could have come to the
same decision.
[51]
If I understood the argument of the applicant correctly it stated
that, the appointment of Mr
Oormeyer who was the applicant’s
preferred candidate was a forgone conclusion. The applicant however,
does not dispute the
fact that Mr Duraan as well was a suitable
candidate. Likewise, Mr Duraan was recommended by the applicant to
the second respondent
to be considered for the position of principal.
Therefore, it is common cause that the second respondent was
presented with two
suitable and competent candidates. One had an
honours degree and performed better than the preferred candidate of
the applicant
at the psychological assessment test.
[52]
In my view, the second respondent exercised his discretion fairly in
selecting one candidate
over the other. I gather and appreciate
the fact that the second respondent has to attribute substantial
weight to the recommendations
of the School Governing body as was
stated in
the Point
High School (supra)
however,
this does not mean that in doing so he had to ignore his statutory
powers to exercise his discretion in terms of section
6(3)(f) of the
EE Act which states that:
“
Despite
the order of preference in paragraph (c) and subject to paragraph (d)
the Head of Department
may
appoint any suitable candidate on the list
”.
(My emphasis).
[53]
Furthermore, the argument of the respondent’s counsel holds
true that the decision in
the
Point High School (supra)
is
no authority for the proposition that the governing body’s
preference for a specific candidate removes the discretion of
the
head of department envisaged in section 6(3)(f) of the EE Act. This
case is also no authority for the proposition that substantial
weight
must be attributed to the specific choice of a governing body.
Instead due weight must be accorded to the recommended list
of all
candidates with the preference of a governing body being a factor
,
albeit
not a
determinative one.
[54]
As explained above, for a decision to be attacked on the basis of
lack of reasonableness, the
impugned decision must have been so
unreasonable that no reasonable decision maker could have come to the
same conclusion. On a
conspectus of all the evidence that has been
placed before court, I am of the view that there is nothing advanced
by the applicant
in its submissions which indicates that the second
respondent’s appointment of Mr Duraan was so bereft of reason
to an extent
that it should be set aside. This review ground should
fail.
(iv)
Unlawful
delegation and Mandatory conditions
.[55]
Section 6(3)(c) of the EE Act provides as follows:
“
The
governing body must submit, in order of preference to the head of
department, a list of –
(i)
At
least three names of recommended candidates; or
(ii)
Fewer
than three candidates in consultation with the head of department.”
[56]
It is common cause that in this matter, the applicant only submitted
the names of two candidates
to the second respondent – the head
of department. According to the applicant, it intended to submit the
name of Mr Oormeyer
only but Mr Dalvey insisted that the name of Mr
Duraan be submitted as well. There was no consultation between the
applicant and
the second respondent on the submission of fewer
candidates as envisaged in section 6(3)(c)(ii) of the EE Act. It is
my considered
view that a careful reading of section 6(3)(c)(ii) of
the EE Act suggests that the head of department can condone a list of
less
than three nominees. The phrase “in consultation”
with in the subsection means that there must be unanimity and
concurrence
on the part of the head of department. It is different to
the phrase “after consultation with”.
[57]
In
President of
South Africa and Others v Reinecke
2014
(3) SA 2015
(SCA) at ft. 11, the Supreme Court of Appeal found that
the difference between the two expressions is correctly described in
the
judgment of Griesel J in
McDonald
and Others v Minister of Minerals and Energy and Others
2007 (5) SA
642
(C) at para 18 where he stated:
“
(W)here
the law requires a functionary to act "in consultation with"
another functionary, this too means that there must
be concurrence
between the functionaries, unlike the situation where a statute
requires a functionary to act "after consultation"
with
another functionary, where this requires no more than that the
ultimate decision must be taken in good faith, after consulting
with
and giving serious consideration to the views of the other
functionary.”
[58]
To this end, I agree with the views expressed by the respondent’s
counsel that the purpose
of the consultation envisaged in section
6(3)(c)(ii) operates to ensure that the Head of department, in this
case second respondent,
is not effectively removed or excluded by the
governing body recommending fewer than three candidates. If the
governing body intends
to submit fewer than three candidates, they
are required to do so in consultation with the head of department. To
the extent that
the second respondent is able to condone the failure
by the governing body to submit three names, which in my view by
implication,
he did in this matter, there was no consultation
necessary with the second respondent as envisaged in section
6(3)(c)(ii) of the
EE Act. Be that as it may, in my view, this
disparity does not vitiate the legality of the appointment process.
This ground
of review in my view has no merits and must fail. This
leads me to the applicant’s last ground of review for
consideration.
(v)
Irrationality
[59]
Section 6(2)(f)(ii) of PAJA provides that a decision can be reviewed
if it bears no rational
relation to the reasons given. If I
understand correctly the argument of the applicant’s Counsel,
the reading of section
6(3)(f) of the EE Act suggests that all
candidates on the list provided by the governing body are suitable.
Counsel also argues
that the power to appoint an educator in terms of
section 6(3)(f) must be read alongside the power to decline a
nomination in terms
of section 6(3)(g) of the EE Act. Section 6(3)(g)
of the EE Act envisages unsuitability as a ground for rejection a
nominee. Mr
Arendse argued that the power to appoint a candidate
under section 6(3)(f) assumes that all candidates are suitable for
the post.
Counsel asserted that the second respondent should have
made his decision on other grounds such as distinct experience or
skills.
It was argued that because the candidates were already
suitable and the reasons of the second respondent addresses
suitability,
the second respondent’s reasons are not rationally
connected to the purpose for which his power in terms of section
6(3)(f)
was granted to him.
[60]
In my view this argument misses the point. The second respondent
cannot act beyond the bounds
of section 6(3)(f). The essence and
objective of section 6(3)(f) is to ensure that the most suitable
candidate is appointed for
a vacant post. The second respondent in
this matter considered a number of factors placed before him and
ultimately came to the
conclusion that Mr Duraan was the most
suitable candidate given among others his experience, psychological
assessment results and
qualifications. In my view, the second
respondent brought his unbiased judgment to bear when he appointed Mr
Duraan. He clearly
exercised his discretion within the framework of
Section 6 of the EE Act. In
Pharmaceutical
Manufacturers of SA in re: Ex Parte President of the Republic of
South Africa
[2000] ZACC 1
;
2000
(2) SA 674
(CC) at para 90, the following was said:
“
Rationality
in this sense is a minimum threshold requirement applicable to the
exercise of all public power by members of the executive
and other
functionaries…The setting of this standard does not mean that
the courts can or should substitute their opinions
as to what is
appropriate, for the opinions of those in whom the power has been
vested. As long as the purpose sought to be achieved
by the exercise
of public power is within the authority of the functionary, and as
long as the functionary’s decision, viewed
objectively, is
rational, a court cannot interfere with the decision simply because
it disagrees with it, or considers that the
power was exercised
inappropriately.”
[61]
In my judgment, the decision of the second respondent viewed
objectively, is rational and unquestionable.
The applicant ground of
review in this regard falls to be dismissed.
[62]
As far as costs are concerned, it is a trite principle of our law
that a court considering an
order of costs exercises a discretion.
Ferreira
v Levin NO and Others; Vreyenhoek and Others v Powell NO and Others
[1996] ZACC 27
;
1996 (2) SA 621
(CC). The court’s discretion must be exercised
judicially.
Motaung
v Makubela and Another, NNO; Motaung v Mothiba NO
1975
(1) SA 618
(O) at 631A.
In
my view, this case raises an issue of special constitutional concern
in particular the right to just administrative action envisaged
in
section 33 of our Constitution. Furthermore, the applicant is a
public interest group representing parents and school children.
A
cost order against the applicant in my opinion, would hinder the
advancement of constitutional justice. (
see
Biowatch
Trust v Registrar Genetic Resources and Others
2009
(6) SA 232
(CC).
ORDER
[63]
In the result, the following order is granted:
63.1The
application for misjoinder succeeds;
63.2
The
application for condonation for the late filing of the review
application is granted;
63.3
The
applicant’s application to review the decision of the second
respondent of 26 January 2019 to appoint the fourth respondent
(Mr
Duraan) as principal of the third respondent is dismissed;
63.4
Each party
is ordered to pay its own costs.
___________________________________
LEKHULENI
AJ
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For
the Applicant Advocate
N. Arendse, SC
Instructed
by Andrews
& Co. Attorneys
(ref:
Mr. J. Andrews)
For
the 2
nd
Respondent Advocate
P. Farlam, SC
Advocate
M. Adhikari
Instructed
by The
State Attorneys
(ref:
Ms S Chetty)