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[2013] ZAGPJHC 145
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Randview College (Pty) Ltd and Others v Mec of Education Gauteng and Another (2013/08339) [2013] ZAGPJHC 145 (13 June 2013)
SOUTH GAUTENG HIGH COURT
JOHANNESBURG
CASE NO: 2013/08339
DATE:13/06/2013
In the matter between:
RANDVIEW COLLEGE (PTY)
LTD
...........................................
First
Applicant
ZANDILE
NTULI
…......................................................................
Second
Applicant
ELSIE
LUBHEDZE
....................................................................
Third
Applicant
LINDIWE
MBATHA
.....................................................................
Fourth
Applicant
VIOLET
MASEKO.
....................................................................
Fifth
Applicant
MBULELO
MZONDO
…..........................................................
Sixth
Applicant
TARAFA
NHAMO
.....................................................................
Seventh
Applicant
GEORGE
SHIMA
.....................................................................
Eighth
Applicant
SAMUEL
TAMOPO
.................................................................
Ninth
Applicant
LUCIA
PALAZA
…..................................................................
Tenth
Applicant
And
MEC OF EDUCATION GAUTENG
….................................
First
Respondent
GAUTENG DEPARTMENT OF EDUCATION
…..............
Second Respondent
JUDGMENT
RATSHIBVUMO AJ:
1. This matter was initially brought
before this court on 07 March 2013 on urgent basis before being
postponed to the normal roll.
According to the notice of motion, the
Applicants seek a declaratory order to the effect that the First
Applicant’s premises
are suitable to conduct the exit grade 12
National Senior Certificate examination; an interdict against the
first and the Second
Respondents restraining them from withdrawing
the registration of the First Applicant as 2013 National Senior
Certificate examination
centre and an order directing the first and
an order directing the Second Respondent to register the grade 12
students currently
enrolled with the First Applicant to sit for their
grade 12 National Senior Certificate examination at the First
Applicant’s
premises. The rest of the Applicants are the
guardians of the grade 12 learners registered at with the First
Applicant.
2. Background: Following is the
background that led to this application. The First Applicant is an
Independent School as envisaged
by the South African Schools Act 84
of 1996 (the Act) and is registered with the Second Respondent as
such. In accordance with
the provisions of Regulation 27 (6) of the
Regulations pertaining to the Conduct Administration and Management
of the National
Senior Certificate
1
the First Applicant had signed an annual service contract with the
Second Respondent together with the application to register
as an
examination centre for 2012
2
.
The registration of the First Applicant as an examination centre for
2012 was as such granted.
3
As required in terms of Regulation 27 (6) above, the First Applicant
submitted an application for registration as an examination
centre
for 2013, grade 12 exit examination on 31 October 2012. This
application was refused by the Second Respondent and the same
was
communicated to the First Applicant through a letter dated 31 January
2013
4
.
According to this letter, the grade 12 learners enrolled at the First
Applicant would have to be channelled for examination through
other
institutions and the First Applicant could request to be re-evaluated
once all areas of concern raised are addressed. No
reasons were
furnished and requests for reasons by the applicant went unheeded.
3. The application is opposed by the
Respondents on the basis that the First Applicant failed to meet the
minimum requirements for
registration for National Senior Certificate
examination centre and as such it failed to adhere to the annual
service contract
it signed with the Second Respondent.
4. Issues for determination: Whether
the facts of the case warrant court intervention and if so, on what
grounds and to what extent.
The court has to decide if the decision
by the Second Respondent is reviewable or not. Although it is not
clear from the Notice
of Motion as to the nature of the relief
sought, it would appear from the Applicants’ counsel reliance
on Johannesburg Consolidated
Investment Company LTD v Johannesburg
Town Council
5
that
the Applicants seek a review of the respondent’s decision.
5. Two issues were raised in the
Applicants’ heads of arguments. First, it was submitted that
the decision by the Second Respondent
is inconsistence with the
Constitution of the Republic of South Africa which provides that
everyone has a right to administrative
action that is lawful,
reasonable and procedurally fair. Second, is the right that everyone
adversely affected by the administrative
action has which is to be
given reasons for such an action. The second issue will not be dealt
with here since the Applicants could
have chosen to enforce their
right to access to information in terms of section 5 of the Promotion
of Administrative Justice Act
3 of 2000 (PAJA), and they chose not
to. Only the first issue would therefore be relevant for purposes of
this judgment.
6. Exhausting Internal Remedies:
Before visiting the statutory provisions pertaining to review, it is
prudent to observe section
7 (2) (a) of PAJA which provides that no
court or tribunal shall review an administrative action in terms of
this Act unless any
internal remedy provided for in any other law has
first been exhausted. The first question would therefore be whether
the Applicants
have exhausted the internal remedies. Mr. Masilo, in
the Answering Affidavit deposed for the Respondents avers that the
Applicants
brought this application to courts prematurely since they
had not exhausted the internal remedies; in particular, the 14 days
that
the applicant has to lodge an appeal.
6
The First Applicant in his Replying Affidavit alleges that he was
unaware of the regulations that make provisions for an appeal.
7
7. The Regulations issued in terms of
the Act provide that the
Assessment Irregularities
Committee is empowered to recommend to the Head of
Department
or his or her nominee
for
deregistration of
an independent school or learning institution as
an
examination centre
; when there is
evidence of inter alia, t
he flouting of policies,
regulations and guidelines
.
8
Regulation 10 of the same Regulations provides for an appeal process
that may be lodged within 10 working days to the MEC of Education.
It
is therefore clear from the above that any decision to deregister an
independent school from being an examination centre is
appealable to
the MEC irrespective of how it is worded (the Applicants argued that
the letter referred to in footnote 4 above was
worded as though the
decision was final).
8. The contention by the Applicants
suggests that the decision by the Respondents was unlawful,
unreasonable and procedurally unfair.
Sec 6 (2) of PAJA provides as
follows,
(2) A court or tribunal has
the power to judicially review an administrative action if—
(a) the administrator who took it
(iii) was biased or reasonably
suspected of bias;
(b) a mandatory and material procedure
or condition prescribed by an empowering provision was not complied
with;
(c) the action was procedurally
unfair;
(i) the action is otherwise
unconstitutional or unlawful.
Although there has not been any
reference to this section of PAJA by the Applicants, the quoted parts
of section 6 appear in my
view to be the closest to the argument
raised for them.
9. Action to be reviewed. I now turn
to unpack the action complained about so as to answer if it is
unreasonable, procedurally unfair
or unlawful. All centres are
expected to apply and register as examination centres on an annual
basis before the end of October
of the year prior to the
examination.
9
Independent schools must apply to the relevant assessment body for
registration as examination centres under their own names.
10
It follows from these provisions that the qualification by an
institution for registration for examination centre on a particular
year does not automatically qualify it for registration for the
following year. All the information regarding how the First Applicant
had qualified for registration for 2012 would therefore be
irrelevant.
10. The First Applicant in this case
is said to have submitted its application for 2013 registration by 31
October 2012
11
.
Although Prayer 2 in the Notice of Motion refers to interdicting the
Respondents from withdrawing the registration, it would appear
from
the facts that the Respondents did not actually withdraw the
registration. A registration for 2013 was just not granted. A
registration for 2012 lapsed with the 2012 examination. This is
cleared by the words to the effect “this is valid for the
year
of examination (inclusive of the supplementary examination)”
which appear at the bottom of the service contract signed
between the
First Applicant and the First Respondent.
12
Once the registration for a particular year is granted, it may be
withdrawn for various reasons listed in the Regulations, but
this
applies only when it was granted. Of importance though is that an
institution would be expected to qualify for registration
each year
without relying on merits of the previous year’s qualification.
11. Applicant’s compliance with
the requirements. It is clear that the findings by the officers of
the First Respondent regarding
the suitability or readiness of the
First Applicant to register as an examination centre are a matter of
dispute. The Replying
Affidavit prepared for the First Applicant
suggests that the court should visit the premises to do inspection.
In review proceedings,
the responsibility of the court is not to
determine if the decision by the statutory body is right or wrong or
whether it is the
decision the court would have granted had the
matter been before it; but rather to determine if the decision was
capriciously arrived
at.
13
Unlike an appeal where the appeal body determines if the decision is
right or wrong, in review, the courts determine the process
of
arriving at such a decision.
14
While I understand the frustration the First Applicant had in not
being furnished with the reasons for the decision, the applicant
had
recourse in terms of PAJA where it could demand the same to be
provided in accordance with the statutory provisions, giving
the
First Respondent 90 days to respond, but it opted not to exercise
that right.
12. The fears the First Applicant
harboured over the closing date as per Annexure RVC 33 which was
recorded as 15 March 2013 does
not help its plight. My understanding
of Annexure RVC 33 is about the closing date for submission of the
applications for registration
as examination centres with the First
Respondent. The First Applicant was covered since it submitted its
application by 31 October
2012 already. I do not as such see how
exercising the right to appeal can be said to be a submission later
that 15 March 2013.
13. Although the findings by the First
Applicant’s officers are disputed by the First Respondent,
there is no dispute that
when the First Applicant submitted its
application in October 2012, it did not have some of the requirements
such as clearance
in terms of the local health and fire services
bylaws.
15
It was rightly pointed in the Replying Affidavit prepared for the
First Applicant that certificates are issued in advance for the
following academic year. The certificate dated 28 July 2011 was
issued for 2012 academic year for which the First Applicant
qualified.
No certificate was submitted for the year 2013. One would
expect it to be dated in 2012 seeing the application was made in
October
2012. A week after launching this application, the First
Applicant produced letters suggesting that the inspection is
currently
underway with a view to have the First Applicant issued
with the relevant clearance certificates.
16
Obviously the same will only be issued if the First Applicant
complies with the necessary requirements. Until such time that the
First Applicant is issued with the same, the Respondents remain in
the dark on whether the First Applicant met this qualification.
There
obviously must be safety reasons for these requirements. Someone must
take responsibility for ordering the issue of the registration
for
grade 12 examination centre ignoring the failure to comply with these
statutory requirements exposed in this application. Such
body should
not be the courts.
14. I have also
noted that the Respondents made available institutions whereby the
grade 12 learners would be able to write examination
at premises
other than those of the First Applicant. According to the
Respondents, the learners would be taught at the First Applicant
premises and certificates would also be issued under its name in its
premises. It is only the writing of examination that would
not take
place at the First Applicant’s institution.
15. I am therefore unable to find the
decision of the First Respondent to be unreasonable, unlawful or
unfair. The First Applicant
conceded in the Replying Affidavit that
it had not complied with all the requirements for such registration
on undisputed facts.
16. For the reasons stated above, I
make the following order
The application is dismissed with
costs.
_______
T.V. RATSHIBVUMO
ACTING JUDGE OF THE HIGH COURT
Date Heard: 15 May 2013
Judgment Delivered: 13 June 2013
For the Applicant: Adv. MA
Fhedzisani
Instructed by: Denga Incorporated
Johannesburg
For the Respondent: Adv. N
Nharmuravate
Instructed by: State Attorneys
Johannesburg
1
See Government Gazette no. 31337 R872 published
on 29 August 2008.
2
See Annexure RVC 16 attached to the first
applicant’s affidavit.
3
See Annexure RVC 12 attached to the first
applicant’s affidavit.
4
See Annexure RVC 27 attached to the first
applicant’s affidavit.
5
1903 TS 111.
6
See paragraph 29.1.2 of the Answering Affidavit.
7
See paragraph 27. 2 of the Replying Affidavit.
8
See Regulation 9 published in Government Gazette
GN 1081 of 17 September 2004.
9
See Regulation 27 (6) of Government Gazette no.
31337 R872 published on 29 August 2008.
10
See
Regulation 27 (3).
11
See paragraph 8 of the Answering Affidavit.
12
See Annexure RVC 16.
13
See
Shidiack v Union
Government (Minister of Interior)
1912
CPD 656
and
South African Railways v
Swanepoel
1933 AD 370
14
Rustenburg Platinum Mines Ltd
(Rustenburg Section) v CCMA & others
[2006] 11 BLLR 1021
(SCA
)
at
para 30.
15
See Regulation 27 (1) (b).
16
See Annexure RVC 50 & 51