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[2016] ZASCA 192
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MEC: Department of Education North West Province and Another v FEDSAS (021/2016) [2016] ZASCA 192 (1 December 2016)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 021/2016
In
the matter between
THE
MEC: DEPARTMENT OF EDUCATION
NORTH
WEST PROVINCE
FIRST APPELLANT
THE
HOD: DEPARTMENT OF EDUCATION
NORTH
WEST
PROVINCE
SECOND APPELLANT
and
FEDSAS
RESPONDENT
Neutral
citation:
MEC:
Department of Education Northwest Province v FEDSAS
(021/2016)
[2016] ZASCA192 (01 December 2016)
Coram:
Maya AP, Wallis and
Swain JJA and Fourie and Dlodlo AJJA
Heard:
09 November 2016
Delivered:
01 December 2016
Summary
:
Education – Powers of the MEC to make regulations relating to
the administration of public schools hostels – s 27(1)
of the
North West Schools Education Act 3 of 1998 – ss 9, 12 and
20(1)(
g
)
of the
South African Schools Act 84 of 1996
– interpreted in
the light of s 29(1) and 28(2) of the Constitution – hostel
regulations within the powers of the MEC.
ORDER
On
appeal from:
North
West Division, Mahikeng (Kgoele J sitting as court of first
instance):
1
Leave to appeal is granted.
2 The
appeal is upheld with no order as to costs.
3
The order of the court a quo is set aside and replaced with the
following order:
‘
The
application is dismissed.’
JUDGMENT
Dlodlo AJA (Maya AP,
Wallis and Swain JJA and Fourie AJA concurring):
[1]
The respondent, the Federation of Governing Bodies for South African
Schools (FEDSAS) launched an application in the North West
Division
of the High Court seeking orders reviewing and setting aside the
‘Regulations relating to the Administration of
Public school
hostels’ promulgated in the
North
West Provincial Gazette Extraordinary
7031, GN 430 of 2012, of 31 August 2012 (the hostel regulations). The
application was opposed by the Head of Department, Education
and
Training, North West Province (the HoD). The High Court upheld the
application and declared that the hostel regulations were
‘unlawfully
promulgated,
ipso
facto
void and of
no force or effect’. Leave to appeal against that order was
refused by the High Court on the basis that the appeal
had been
perempted. However, this court (per Leach JA and Plasket AJA)
referred the application for leave to appeal for oral argument.
BACKGROUND
FACTS
[2]
The Department of Education in the North West Province had received
numerous complaints of learners being unfairly excluded
and others
being expelled from hostels without recourse to the provisions of the
law. This resulted in those learners being unable
to go to school at
all. There were also reports of abuse of authority including ‘the
charging of high and exorbitant boarding
fees and school fees.’
[3]
The impugned hostel regulations are reportedly the result of an
intense study by the Department on how to achieve the realization
of
the rights guaranteed by the Constitution. The Department identified
the ‘lack of access to schools by learners, more
especially in
rural areas’, as ‘one of the challenges that impacted on
the provision of quality education and learner
achievement’.
[4]
On the relationship between the provision of hostels and access to
education, the position is articulated in para 3.1 of the
answering
affidavit:
‘
Boarding
facilities provide access to education for learners from remote rural
areas and farming communities. Such facilities also
provide learners
with exposure to the environment beyond the confines of their own
community. They provide an answer for learners
living in places where
the State cannot provide schools, thus reducing the difficulties of
transport across distances including
costs, the dangers involved in
it and the time being consumed. Boarding facilities also provide
access to a choice of education
and access to further education for
learners whose local schools are limited to lower level grades.’
This
was admitted by FEDSAS stating that boarding facilities do provide
relief for a variety of circumstances, for example, where
parents are
transferred their children are able to remain at school which has
hostel facilities. In FEDSAS’s view, the Department
must either
expend capital on new schools closer to those deprived of educational
access, or build more hostels at existing schools
to accommodate
those learners. It was accepted that boarding facilities enable
learners to pursue specialised curricular directions
such as
technical, agricultural, science and mathematics fields which may not
be available to them at their local school.
[5]
There are a number of reasons why boarding facilities provided by
hostels play a vital role in the provision of access to education.
Boarding facilities provide a disciplined environment particularly in
cases of families of single working parents, families in
which the
parents are compelled to travel extensively, or families which are
unable to provide after-school supervision for learners.
They provide
many disadvantaged learners with an opportunity to enjoy better
living conditions and sometimes better care than they
would
experience in their own home environment. Basic facilities such as
electricity and shelter, television, computers and media
centres are
made accessible in some boarding facilities. Boarding facilities also
facilitate participation in extra-curricular
activities including
sports and cultural activities.
[6]
Boarding facilities provide a relatively safe environment for
children, many of whom are at risk in that they live in informal
settlements and townships and are without supervision for much of the
day. They provide a stable environment for children from
broken
families or homes with special needs and problems. They facilitate
positive social development and the ability to accept
others from
different social or cultural backgrounds. They promote independence,
self-discipline and the ability to work as part
of a team of
learners.
[7]
The provision of boarding facilities can be a cost efficient measure
in small, sparsely populated rural and farming communities.
The
hostel facilities offer disadvantaged learners from rural areas, who
would otherwise have to travel long distances to school,
better
living conditions that are conducive to learning. Learners travelling
long distances to school and back home are exposed
to all kinds of
challenges such as arriving late for school or being tired due to the
long hours they have to spend on the road.
The accommodation of
learners in boarding facilities will evidently eradicate these
challenges and reduce the dropout rate in schools.
THE
LAW
[8]
The impugned hostel regulations were promulgated in terms of s 27 of
the North West Schools Education Act 3 of 1998 (the North
West
Schools Act) read with
s 9(3)
of the
South African Schools Act 84 of
1996
(SASA). These must be read in the light of the Constitution.
Section 29(1) of the Constitution provides:
‘
Education
(1)
Everyone
has the right –
(a)
to a basic
education including adult basic education.’
And s 28(2) of the
Constitution provides:
‘
A
child’s best interests are of paramount importance in every
matter concerning the child.’
[9]
The most recent pronouncement by the Constitutional Court on the
importance of basic education is found in
Federation of Governing
Bodies for South African Schools v MEC for Education, Gauteng &
another
[2016] ZACC 14
;
2016 (4) SA 546
(CC) (
Fedsas v
MEC for Education, Gauteng
) para 3 as follows:
‘
.
. .
access
to teaching and learning has not been freely and widely accessible to
all people at all times. All forms of human oppression
and
exclusion are premised, in varying degrees, on a denial of access to
education and training. The uneven power relations that
marked
slavery, colonialism, the industrial age and the information economy
are girded, in great part, by inadequate access to
quality teaching
and learning. At the end of a long and glorious struggle against all
forms of oppression and the beginning of
a democratic and inclusive
society, we, filled with rightful optimism, guaranteed universal
access to basic education. We collectively
said: “[e]veryone
has the right to a basic education, including adult basic
education.”’ (Footnote omitted.)
Similarly, the
Constitutional Court observed in
Governing Body of the Juma Musjid
Primary School & others v Essay NO & others
(
Centre
for Child Law & another
as
Amici Curiae
)
[2011] ZACC
13
;
[2011] 8 BCLR 761
(CC) paras 42 and 43 as follows:
‘
The
significance of education, in particular basic education for
individual and societal development in our democratic dispensation
in
the light of the legacy of apartheid, cannot be overlooked. The
inadequacy of schooling facilities, particularly for many blacks
was
entrenched by the formal institution of apartheid, after 1948, when
segregation even in education and schools in South Africa
was
codified. Today, the lasting effects of the educational segregation
of apartheid are discernible in the systemic problems of
inadequate
facilities and the discrepancy in the level of basic education for
the majority of learners.
Indeed,
basic education is an important socio-economic right directed, among
other things, at promoting and developing a child’s
personality, talents and mental and physical abilities to his or
fullest potential. Basic education also provides a foundation
for a
child’s lifetime learning and work opportunities. To this end,
access to school – an important component of the
right to a
basic education guaranteed to everyone by section 29(1)
(a)
of
the Constitution – is a necessary condition for the achievement
of this right.’ (Footnotes omitted.)
[10]
The right to basic education guarantees access thereto, which must
include, where appropriate, access to hostels because of
their
importance in making basic education accessible. In terms of Schedule
4 of the Constitution, ‘education at all levels,
excluding
tertiary education’ is a concurrent provincial and national
legislative competence. This concurrent competence
operates as
described by the Constitutional Court in
Fedsas v MEC for
Education, Gauteng
para 26:
‘
Education
is a functional area of concurrent national and provincial
legislative competence. Parliament may legislate on education
and a
province too. In turn, the Premier and MECs in a province exercise
authority by implementing provincial legislation. The
legislative
competence of a province cannot be snuffed out by national
legislation without more. The Constitution anticipates the
possibility of overlapping and conflicting national and provincial
legislation on concurrent and national legislative competences.’
(Footnotes omitted.)
[11]
The Constitutional Court in
Head of Department, Mpumalanga
Department of Education & another v Hoërskool Ermelo &
another
[2009] ZACC 32
;
2010 (2) SA 415
(CC) paras 55-56
described the role of SASA as follows:
‘
The
avowed purpose of the Schools Act is to give effect to the
constitutional right to education. Its preamble records that the
achievement of democracy has consigned to history the past system of
education which was based on racial inequality and segregation,
and
that the country requires a new national system for schools which
will redress past injustices in the provision of education
and will
provide education of a progressively high quality for all learners.
The new education system must lay a foundation for
the development of
all people’s talents and capabilities and advance the
democratic transformation of society, and combat
racism, sexism,
unfair discrimination, and contribute to the eradication of poverty.
The preamble also expresses the intent to
advance diverse cultures
and languages and to uphold the rights of learners, parents and
educators. It also makes plain that the
statute aims at making
parents and educators accept the responsibility for the organisation,
governance and funding of schools
in partnership with the State.
An
overarching design of the Act is that public schools are run by three
crucial partners. The national government is represented
by the
Minister for Education whose primary role is to set uniform norms and
standards for public schools. The provincial government
acts through
the MEC for Education who bears the obligation to establish and
provide public schools and, together with the Head
of the Provincial
Department of Education, exercises executive control over public
schools through principals. Parents of the learners
and members of
the community in which the school is located are represented in the
school governing body which exercises defined
autonomy over some of
the domestic affairs of the school’. (Footnote omitted.)
See
also
MEC for
Education, Gauteng Province & others v Governing Body, Rivonia
Primary School & others
[2013]
ZACC 34
;
2013 (6) SA 582
(CC) para 36.
[12]
Section 12 of SASA provides:
‘
Provision
of public schools
(1)
The
Member of the Executive Council must provide public schools for the
education of learners out of funds appropriated for this
purpose by
the provincial legislature.
(2)
The
provision of public schools referred to subsection (1) may include
the provision of hostels for the residential accommodation
of
learners.’
Section
20(1)
(g)
identifies the function of governing bodies, subject
to the Act, as the power to:
‘
administer
and control the
school’s
property and buildings and grounds occupied by the
school
,
including school hostels, but the exercise of this power must not in
any manner interfere with or otherwise hamper the implementation
of a
decision made by the Member of the
Executive
Council or Head of Department
in terms of any law or policy.’
[13] The preamble to the
North West Schools Act provides that its purpose is:
‘
To
provide for a uniform system for the organisation and funding of
schools; to amend and repeal certain laws relating to schools;
to
cater mainly for the best educational interests of the child by
providing an education of progressively high quality and upholding
the rights of all
learners,
parents and educators,
and
to promote their acceptance of responsibility for the organisation,
governance and funding of schools in partnership with the
State; and
to provide for matters connected therewith.’
[14]
Section 27(1) of the North West Schools Act provides in relevant
part:
‘
Regulations
27
(1) The Member of the Executive Council in consultation with the Head
of Department may make regulations which are not inconsistent
with
any law, as to –
(a)
any
matter which shall or may be prescribed by regulation under this Act;
(b)
any
matter which the Member of the Executive Council may deem necessary
or expedient to prescribe in order to achieve the objectives
of this
Act’.
The
purpose of the hostel regulations as stated in regulation 2(1) is ‘to
regulate the administration and control of hostels,
the admission of
learners to hostels, disciplinary procedures and matters related
thereto.’
DISCUSSION
[15] FEDSAS submitted in
reliance upon
Ngcobo & others
v Van Rensburg
1999
(2) SA 1057
(SCA) para 11, that the North West Schools Act cannot be
read disjunctively, or in a manner where only the preamble determines
the objectives of the Act. It emphasised that, when analysing s
27(1)
(b)
of the North West Schools Act, this must be done
contextually and not by reference to the preamble alone. To determine
whether
a functionary has acted
intra vires
his or her
legislative powers, the ambit of such power must be discernible by
reference to the objects of the entire North West
Schools Act. Absent
an apparent object, the functionary does not have that power and acts
ultra vires
. In making these submissions FEDSAS relied on
Minister of Health NO v New Clicks South Africa (Pty) Ltd &
others
(Treatment Action Campaign & another as Amici
Curiae)
2006 (2) SA 311
(CC) para 144 where the following
appears:
‘
Where
the making of regulations is challenged on this ground, lawfulness
depends on the terms of the empowering statute. If the
regulations
are not sanctioned by the empowering statute they will be unlawful
and invalid.’
[16]
FEDSAS argued that in the absence of any express statutory authority,
the general empowering provision finds application only
in matters of
an administrative nature and cannot be used to make regulations of a
substantive nature. Relying on
Hoërskool
Ermelo
, it was
submitted that the intention of the Legislature in the two statutes
is that the power to run school hostels is placed in
the hands of the
parents and guardians of learners through School Governing Bodies
(SGBs).
[17]
The issue in this appeal engages the right to basic education
enshrined in s 29 of the Constitution. Unlike other socio-economic
rights, the right to basic education has no internal limitation
requiring it to be progressively realised. It is a right which
is
‘immediately realizable’. See
Juma
Musjid Primary School
para
37; and
Minister of
Basic Education & others v Basic Education For All & others
[2015] ZASCA 198
;
2016 (4) SA 63
(SCA) para 36-37.
[18]
All legislation must be read in a manner which promotes the spirit,
purport and objects of the Bill of Rights (s 39(2) of the
Constitution). This is an obligation placed on courts regardless of
the approach adopted by the litigants. See
Phumelela
Gaming and Leisure Ltd v Gründlingh & others
[2006] ZACC 6
;
2007 (6) SA 350
(CC) paras 26-27. Additionally, all
statutory instruments must be interpreted purposively, contextually
and consistently with the
Constitution. See
Stratford
& others v Investec Bank Ltd & others
[2014]
ZACC 38
;
2015 (3) SA 1
(CC) para 19;
Natal
Joint Municipal Pension Fund v Endumeni Municipality
[2012]
ZASCA 13
;
2012 (4) SA 593
(SCA) para 18.
[19]
The assertion that the MEC had simply no power to promulgate the
hostel regulations, militates against the established principle
of
interpretation that powers expressly granted must be interpreted to
include those powers reasonably necessary or incidental
to those
powers. See
City of
Cape Town v Claremont Union College
1934
AD 414
at 420 recently followed in
Engen
Petroleum Limited v The Business Zone
1010
CC trading as
Emmarentia
Convenience Centre
[2015]
ZASCA 176
para 21.
[20]
The regulation-making power in s 27(1) of the North West Schools Act,
extends to what the MEC deems ‘necessary or expedient
to
prescribe in order to achieve the objectives of this Act’. This
phrase as submitted by the appellant, confers power ‘of
the
widest possible character’ and leaves it to the decision-maker
to decide ‘what method to follow in order to achieve
the
purpose stated in the subsection.’ See
Catholic
Bishops Publishing Co v State President & another
1990
(1) SA 849
(A) at 861F. As mentioned above, the objects of the Act
include ‘the best educational interests of the child by
providing
an education of progressively high quality.’
[21]
The constitutional right to education in s 29(1) and the best
interests of the child learner provided for in s 28(2) of the
Constitution must be promoted and protected. These provisions
envisage that the right to education goes substantially further than
the provision of classrooms. In a country as large as ours, with
scattered population in rural areas, access to education must
necessarily include the provision of hostels to enable learners
living far from schools to obtain an education. Legislation which
gives effect to the right to education requires a generous
interpretation. The provision of hostels is thus an essential
component
for facilitating the right of access to education.
[22]
The MEC is vested with regulation-making powers. This is clear from
ss 12(1) and 12(2) of SASA. The MEC is empowered in terms
of s
27(1)(
b
) of the North West Schools Act to make regulations
deemed necessary or expedient in order to achieve the objects of the
North West
Schools Act. The right to education must include the
provision of necessary facilities which includes hostels. SGBs do not
have
exclusive authority over the governance of schools and by
extension, school hostels and accordingly do not have unfettered
powers
to administer school hostels. Section 20(1)
(g
) of SASA
provides that the exercise and administration of powers over school
hostels must not in any manner interfere with or otherwise
hamper the
implementation of a decision made by the MEC or HoD in terms of any
law or policy. The MEC and the HoD accordingly have
a say in the
administration of school hostels, contrary to the contention by
FEDSAS that the administration of school hostels is
its exclusive
preserve. The relationship between the Minister, the MEC, HoDs and
SGBs in the overall administration of school matters
in terms of SASA
was recognised by the Constitutional Court in
Head of Department,
Department of Education, Free State Province v Welkom High School &
others
[2013] ZACC 25
;
2014 (2) SA 228
(CC) paras 36-37 where it
was held, inter alia, that:
‘
The
State’s obligations to ensure that the right to education is
meaningfully realised for the people of South Africa are
great
indeed. The primary statute setting out these obligations is the
Schools Act. That Act contains various provisions governing
the
relationships between the Minister, members of provincial executive
councils responsible for education (MECs), HoDs, principals
and the
governing bodies of public schools. It makes clear that public
schools are run by a partnership involving school governing
bodies
(which represent the interests of parents and learners), principals,
the relevant HoD and MEC, and the Minister. Its provisions
are
carefully crafted to strike a balance between the duties of these
various partners in ensuring an effective education system.’
(Footnote omitted.)
[23]
FEDSAS’ claim to the exclusive governance of hostels disregards
the constitutional obligation of the MEC to ensure access
to
education. This would be hampered if the MEC were precluded from
promulgating regulations relating to access to hostels for
learners
as these regulations do. The authority to promulgate the regulations
is a necessary and ancillary power to the constitutional
and
legislative duty to provide basic education. This must be understood
within the broader constitutional scheme of cooperative
governance
(ss 40 and 41 of the Constitution) that enjoins all spheres of
government to adhere to the principles of unity, indivisibility
and
coherence in inter-spherical government relations as well as the
fostering of friendly relations assistance and support. This
must
also be seen in the context of concurrent legislative competence
where the MEC is enjoined to make basic education accessible
to
everyone. Thus the MEC’s power to make regulations is also
derived from his statutory power to arrange for the provision
of
education, and in many instances, this cannot be done without
providing a hostel. Once the hostel is provided, the MEC must
make
regulations pertaining to that hostel. The MEC has the power under
SASA to prescribe codes of conduct. It would thus be absurd
to say
that he can do that for the school premises, but not the hostel. If
that was the case, it would mean that conduct that is
unacceptable in
the school buildings (such as vandalism) is not a disciplinary
offence if it occurs in the school hostel.
[24]
Relying upon ss 146-150 of the Constitution, FEDSAS submitted that
the inconsistency between the sets of legislation was sufficient
to
invalidate the hostel regulations. This argument was, however
rejected by this court and the Constitutional Court in
Fedsas v
MEC, Gauteng
. The Constitutional Court laid down the approach to
possible conflicts as follows (paras 27-28):
‘
The
conflict resolution scheme of sections 146, 149 and 150 of the
Constitution departs from the conventional hierarchy that provincial
legislation may not be in conflict with national legislation.
Automatic repugnancy between the two classes of legislation does
not
arise. The scheme readily acknowledges and manages the potential
conflict related to concurrent national and provincial law-making
competences. Under the scheme, provincial legislation prevails over
national legislation except if the national legislation applies
uniformly countrywide or the matter cannot be regulated effectively
by respective provinces or the matter is one listed in the
Constitution as requiring uniformity across the nation. None of these
considerations apply here.
Even
if there was conflict, it does not render the national or provincial
legislation on Schedule 4 matters invalid. A court must
first attempt
to avoid the conflict by preferring any reasonable interpretation of
the two pieces of legislation which avoids conflict.
If the conflict
persists, the provincial legislation prevails. It must be added that
national legislation may enjoy supremacy over
provincial law only in
accordance with the test laid down in sections 146(2) and (3) of the
Constitution and in terms of section
148 if section 146 does not
apply. However, the trumped provincial or national legislation is not
to be struck down. It simply
‘becomes inoperative for as long
as the conflict remains.’
[25]
The argument of FEDSAS demands that unless SASA set out in detail the
powers of the MEC in relation to hostels, any regulation-making
powers conferred by the North West Schools Act could not be
competently exercised in relation to hostels. This is not correct.
The impugned regulations do not unlawfully limit the powers of SGBs.
In
Hoërskool
Ermelo
, the
Constitutional Court acknowledged the important role of SGBs, but
stressed that the powers of SGBs are not absolute and are
subject to
a range of limitations. Section 16(2) of SASA provides that an SGB
‘stands in a position of trust towards the
school,’ and s
20(1)
(a)
provides
that the SGB ‘must promote the best interests of the
school and strive to ensure its development through the
provision of
quality education for all learners at that school’.
[26]
FEDSAS submits that the definition of both ‘learners’ and
‘school’ has been expanded by the regulation
and are
‘contrary to SASA and cannot prevail, and none of the
individual regulations can pass constitutional muster’.
This is
not so, because as correctly pointed out by the appellant, the need
to have appropriate definitions was a practical mechanism
of
confirming the ambit of the regulations in relation to hostels. The
suggestion that some of the impugned regulations are irrational
is
contrary to the requirements of rationality review. The executive has
a wide discretion ‘in selecting the means to achieve
its
constitutionally permissible objectives’ and courts may not
interfere with the means selected ‘simply because they
do not
like them or because there are other more appropriate means that
could have been selected’. See
Albutt
v Centre for the Study of Violence and Reconciliation & others
[2010] ZACC 4
;
2010
(3) SA 293
(CC) para 51. The question is simply whether the means
selected are rationally related to the objectives sought to be
achieved.
The court must merely determine whether there is a
‘sufficient connection’ between the regulations and the
objective
they seek to achieve and not whether it was ‘the best
decision [it] could have made or whether [it] could have made a
different
decision’. See
Minister
of Defence and Military Veterans v Motau & others
[2014]
ZACC 18
;
2014 (5) SA 69
(CC) para 70.
[27]
FEDSAS disregards the objectives sought to be achieved in the ambit
of the right to education and the best interests of the
learner. The
MEC can lawfully make regulations pertaining to a school, and he can
equally do so in relation to hostels because
they are an integral
part of schools. The appeal must accordingly succeed. In accordance
with the principle in
Biowatch
Trust v Registrar Genetic Resources
2009
(6) SA 232
(CC) Counsel for the appellant did not ask for an order
for costs.
ORDER
[28]
In the result, the following order is made:
1
Leave to appeal is granted.
2 The
appeal is upheld with no order as to costs.
3
The order of the court a quo is set aside and replaced with the
following order:
‘
The
application is dismissed.’
______________________
D V Dlodlo
Acting
Judge of Appeal
APPEARANCES
For appellant
G J Marcus SC (with him O K Chwaro and M Makoti)
Instructed
by:
Mokhetle Inc,
Mahikeng
Phatshoane
Henney Attorneys, Bloemfontein
For
first respondent
J I Du Toit SC
(with him M J Merabe)
Instructed
by:
Michael Randell Attorneys, Mahikeng
Claude
Reid Attorneys, Bloemfontein