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[2016] ZAGPJHC 200
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School Governing Body, Leicester Road School and Another v Member of the Executive Council: Education Gauteng and Others (19121/2016) [2016] ZAGPJHC 200 (15 July 2016)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO:
19121
/2016
DATE: 15 JULY 2016
In the matter between:
THE SCHOOL GOVERNING BODY,
LEICESTER ROAD
SCHOOL
......................................................................................
First
Applicant
LEICESTER ROAD
SCHOOL
..................................................................................
Second
Applicant
And
THE MEMBER OF EXECUTIVE COUNCIL:
EDUCATION
GAUTENG
...........................................................................................
First
Respondent
THE HEAD OF DEPARTMENT: EDUCATION,
GAUTENG
...........................
Second
Respondent
THE DISTRICT DIRECTOR JOHANNESBURG
EAST M
NDEVU
........................................................................................................
Third
Respondent
GASPARI,
MARIZABEL DA
CONCEICOA
........................................................
Fourth
Respondent
Summary: Urgent application for review of
failure to appoint principal to primary school from one of those
recommended by School
Governing Body – matter ripe for hearing,
fully argued – appropriate to be dealt with as one of urgency –
Head
of Department delayed in taking decision because acting
principal not shortlisted lodged complaint of bias of chairperson of
SGB
– District Director upholding complaint of bias –
decision upholding complaint falling within objectionable conduct
identified in several of sub-paragraphs of s.6 of PAJA –
decision upholding complaint of bias accordingly reviewed and set
aside – failure by Head of Department not reviewed since
unreasonable delay under s.6(3)(a) of PAJA not shown.
Judgment
Van der Linde, J
Introduction
and basic facts
[1]
This is an urgent application for two
reviews: the first, a review of a grievance procedure that led to a
decision by the third
respondent that the first applicant’s
shortlisting process for identifying recommendations for the
appointment of a principal
for a primary school in Kensington,
Johannesburg, known as Leister Road Primary School (“the
school”), was flawed and
should be rerun; and the second, a
review of the failure of the second respondent to appoint, in
accordance with his statutory
obligation, a principal for the school
from the three recommendations put up by the School Governing Body
(the “SGB”).
The school has existed for 78 years and a
measure of the stability that it has enjoyed over the years is
reflected in the fact
that it has had only four principals since
inception.
[2]
The
immediate urgency is that the new school term starts next week,
Monday, 18 July 2016. The previous principal resigned last year,
31
March 2015, and Ms Gaspari, the current deputy principal, has since
then been acting as principal, appointed to that position
by the
second respondent. The prescribed process for appointing a new
principal was run last year, and in that process Ms Gaspari
was
shortlisted and interviewed for appointment.
[3]
The
relevant subcommittee was required to and did put up three names for
possible appointment; Ms Gaspari was one of them, although
the
subcommittee did not regard her as suitable. In the event, Mr
Ramafalo was appointed, but he resigned after a day to take up
an
appointment with the Gauteng Department of Education (“GDE”),
and it was back to the drawing board.
[4]
The
process was then run again, with the SGB, established in terms of the
South African Schools Act 84 of 1996 (the “SASA”),
again
putting together a selection committee. This committee was swelled by
observers from organised labour, NAPTOSA and SADTU,
and a
representative of the GDE. On 30 November 2015 the SGB advised the
school and the GDE of the detail of its management plan
for the
filling of the vacancy.
[5]
This provided amongst others for interviews
on 12 December 2015, grievances to be declared within 5 working days,
grievance procedures
to be engaged by 22 December 2015, District
Grievance Committee (“DGC”) Meetings to be held by 17
January 2016, and
with the appointment date of the successful
candidate aimed for 1 January 2016.
[6]
The
relevant detail of the process will be discussed below, but the
Gauteng Department of Education (“GDE”) put forward
47
names of applicants who were assumed to have met the guidelines laid
down by the GDE itself in the Guidelines for Open Vacancy
Circulars
for Educators and Education Therapists Posts (“the
Guidelines”).
[7]
The
Guidelines explain that the GDE takes responsibility for the initial
sifting process to eliminate candidates who do not comply
with the
minimum requirements. These requirements, set out at paragraph 3 of
the Guidelines, explain that the minimum requirements
for appointment
as a principal are at least seven years’ teaching (not
necessary as a principal) experience. The Guidelines
also incorporate
the shortlisting and interviewing procedures outlined in the Gauteng
Provincial Chamber: Collective Agreement
2 of 2005.
[8]
That document, annexed as LR28 to the
supplementary founding affidavit, requires the shortlisting by the
SGB of compliant applicants
who meet post requirements with a view to
interviewing them; and the constitution by the SGB of a selection
committee to interview
shortlisted candidates. Not less than five
candidates are to be shortlisted, and at the conclusion of the
interviews, the selection
committee must rank the candidates in order
of preference.
[9]
The
Grievance Procedure, to which I return below, is an annexure to the
Collective Agreement.
[10]On 5 December 2015 the
selection committee duly shortlisted eleven (more than five) of these
47 applicants for interviews. Ms
Gaspari, the acting principal, was
not shortlisted; she was ranked number 13. Her aggregate score among
the committee members was
248; the first candidate scored 311.
[11]It was a central tenet of the
respondents’ submissions to the court that clearly Ms Gaspari
had been discriminated against:
she had been acting principal, she
was shortlisted and recommended before, and yet she was not
shortlisted on the second occasion.
[12]Unbeknown to the applicants
at that stage, on 8 December 2015, the Tuesday after the shortlisting
on the Saturday 5 December
2015, Ms Gaspari authored a letter of
complaint in which she averred that the then chairperson of the
selection committee, Ms Mileder,
was biased against her, and that
that was why she had not been shortlisted for interviews.
[13]
After
the interviews of the shortlisted candidates on 12 December 2015, the
selection committee recommended for appointment, and
the school
passed this on to the third respondent on 14 December 2015, any one
of three candidates, but in order of preference,
Messrs Spaarwater,
Naicker and Brijnath. This was in accordance with their scoring in
the interviews, although it must be added
that the committee was
lukewarm, to say the least, about Mr Brijnath.
[14]No response was received from
the second respondent. Instead, after an invitation on 3 February
2016 by the GDE addressed to
the chairperson of the selection panel,
Ms Mileder, to discuss a grievance that had been received, she and
the current chairperson
of the SGB, Mr Sherman, attended a meeting.
At the meeting, where Ms Gaspari was present, Ms Mileder was given
the letter of complaint
by Ms Gaspari on 8 December 2015. She was
afforded an opportunity to read it there and then, but not given a
copy.
[15]Discussions followed, as
reflected in a transcript of the meeting made by Mr Sherman, bound
into the papers at LR21, p 178 ff.
The upshot of that part of the
meeting attended to by Ms Mileder and Mr Sherman was that Ms Mileder
handed all the documentation
relating to the shortlisting and
recommendations to the panel present, and she explained how the
selection process that was followed
had been in accordance with the
GDE guidelines.
[16]Now since the minutes of the
meeting kept by the GDE have been discovered, it is apparent that the
meeting went on to deliberate
and make findings after Ms Mileder and
Mr Sherman had left. The minutes reflect that there were three
members, Ms Tsubane as chairperson
and department representative; Mr
Mntungwa as DGC member and SADTU representative, and Mr Pieters,
presumably also a DGC member,
but NAPTOSA representative.
[17]According to the minutes the
DGC recommended, after its deliberations and findings, that what was
described as the “grievance
of the school” be upheld, and
that “a new independent panel be appointed to conduct the
process”. The third respondent
then, according to the minute,
“Approved” the recommendation on 10 March 2016.
[18]On 14 March 2016 a letter
from the third respondent followed, saying that a substantial flaw
had been discovered in the shortlisting
process and accordingly the
selection process for a principal had to start afresh. The third
respondent deposed to the respondents’
answering affidavit and
does not dispute either the minute or the letter; and, in fact, he
describes the finding as one of a substantial
flaw in the process of
shortlisting.
Urgency
[19]The respondents argued that
the matter was not urgent. The application was fully argued. No party
requested more time either
to prepare or to put up further evidence.
The new school term starts next week. The school has been without a
permanent principal
since April 2015. The school has been on the
receiving end of two unfortunate sequential events: the resignation
of the first appointed
principal, and then the grievance letter and
DGC meeting.
[20]After
the letter of March 2016 advising of the decision regarding the
process, the SGB engaged the department in an attempt
to find a
solution. Emails dating from 8 March 2016 evidence what transpired. A
letter by the applicants’ attorneys of 21
April 2016set out
contentions advanced by the applicants, and requested reasons again
for the GDE’s decision of March 2016.
It contended that that
decision was unreasonable and reviewable. It concluded by demanding a
meeting to discuss remedial action.
No response was received.
[1]
[21]No further substantive
reaction was forthcoming from the respondents, and thus the
application was launched on 6 June 2016,
enrolling the matter for 12
July 2016. Reasonable time was allowed for the delivery of the record
of the decisions sought to be
reviewed and for answering affidavits.
[22]The application was served on
the government respondents on 7 June 2016. They gave notice of their
intention to oppose on 17
June 2016, and delivered the record
pertaining to the decisions to be reviewed by email after hours on
Friday, 1 July 2016, and
in hard copy on Monday, 4 July 2016.
[23]The issue of urgency in
motion proceedings is determined, at least notionally, by the
question whether the applicant would be
able to obtain substantive
redress at a hearing in due course. In this matter, an opposed
hearing in due course would have to find
its place on the ordinary
opposed roll, which could be some months away. In the meantime there
is a situation of uncertainty if
not instability at the school which
cannot be satisfactory. There are cogent reasons why an acting
principal may be appointed by
the second respondent but why, when a
permanent appointment is to be made, a comprehensive process must be
followed. That distinction
applies in other professions as well.
[24]Its precise effect on the
learners cannot be assessed with any pretence at accuracy, but this
very inability weighs in favour
of an earlier rather than a delayed
resolution. In my view the matter is therefore sufficiently urgent
for it to be determined
out of term.
The
statutory framework
[25]The
two immediately relevant statutes are the
South African Schools Act
(“the Schools Act”) already referred to, and the
Employment of Educators Act 76 of 1998 (“the Educators
Act”).
[2]
Of relevance too are the Guidelines referred to above, and the
Grievance Procedure.
[26]The
interrelationship between the two statutes was examined by Alkema, AJ
(then) in High School Carnarvon and Another v MEC
for Education,
Training, Arts and Culture of the Northern Cape Provincial Government
and Another.
[3]
The learned acting judge there held: that in terms of s.6(3)(a) of
the Educators Act any appointment to a post on the educator
establishment of a school has to be made on the recommendation of the
SGB; the MEC for Education may only decline a recommendation
if any
of five stipulated sets of circumstances exist; the Schools Act
acknowledges that a school cannot function without a principal;
the
facts and circumstances that the MEC may take into account are only
those set out in s.6(3)(b) of the Educators Act; and the
MEC had no
power to sit in judgment on the recommendation of the SGB, and had no
concern about the merits of the recommendation.
[27]It is as well then that
s.6(3) of the Educators Act be quoted:
“
(a)
Subject to paragraph (m), any appointment, promotion or transfer to
any post on the educator establishment of a public school
may only be
made on the recommendation of the governing body of the public school
and, if there are educators in the provincial
department of education
concerned who are in excess of the educator establishment of a public
school due to operational requirements,
that recommendation may only
be made from candidates identified by the Head of Department, who are
in excess and suitable for the
post concerned.
(b) In
considering the applications, the governing body or the council, as
the case may be must ensure that the principles of equity,
redress
and representivity are complied with and the governing body or
council, as the case may be, must adhere to—
(i) the
democratic values and principles referred to in section 7(1);
(ii) any
procedure collectively agreed upon or determined by the Minister for
the appointment, promotion or transfer of educators;
(iii) any
requirement collectively agreed upon or determined by the Minister
for the appointment, promotion or transfer of educators
which the
candidate must meet;
(iv) a
procedure whereby it is established that the candidate is registered
or qualifies for registration as an educator with the
South African
Council for Educators; and
(v)
procedures that would ensure that the recommendation is not obtained
through undue influence on the members of the governing
body.
(c) 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.
(d) When
the Head of Department considers the recommendation contemplated in
paragraph (c), he or she must, before making an appointment,
ensure
that the governing body has met the requirements in paragraph (b).
(e) If the
governing body has not met the requirements in paragraph (b), the
Head of Department must decline the recommendation.
(f)
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.
(g) If the
Head of Department declines a recommendation, he or she must —
(i)
consider all the applications submitted for that post;
(ii) apply
the requirements in paragraph (b)(i) to (iv); and
(iii)
despite paragraph (a), appoint a suitable candidate temporarily or
re-advertise the post.
(h) The
governing body may appeal to the Member of the Executive Council
against the decision of the Head of Department regarding
the
temporary appointment contemplated in paragraph (g).
(i) The
appeal contemplated in paragraph (h) must be lodged within 14 days of
receiving the notice of appointment.
(j) The
appeal must be finalised by the Member of the Executive Council
within 30 days.
(k) If no
appeal is lodged within 14 days, the Head of Department may convert
the temporary appointment into a permanent appointment
as
contemplated in section 6B.
(I) A
recommendation contemplated in paragraph (a) shall be made within two
months from the date on which a governing body was requested
to make
a recommendation, failing which the Head of Department may, subject
to paragraph (g), make an appointment without such
recommendation.
(m) Until
the relevant governing body is established, the appointment,
promotion or transfer in a temporary capacity to any post
on the
educator establishment must be made by the Head of Department where a
—
(i) new
public school is established in terms of the
South African Schools
Act, 1996
, and any applicable provincial law;
(ii)
...repealed
(iii) new
public adult learning centre is established in terms of the
Adult
Basic Education and Training Act, 2000
, and any applicable provincial
law.”
[28]In this case the GDE does not
rely on the provisions of the Educators Act to decline to accept the
recommendation of the SGB
for the appointment of a principal. By
letter of the third respondent it contended that the DGC met on 4
February 2016, deliberated
on the submissions of Ms Gaspari and the
responses of the SGB, and found that “
a
substantive flaw was established in the process of shortlisting”
.
The third respondent then continued: “
Based
on the aforementioned fact, it is thus we upheld the grievance. A new
process will be redone”
.
[29]
The
Grievance Procedure provides for the establishment of a DGC to deal
with unfair labour practices as defined in the
Labour Relations Act
66 of 1995
. It provides too that “
Grievances
based on dissatisfaction with the outcome of correctly applied
procedures will not be entertained, except where the recommendation
is grossly unreasonable.”
[30]
The Grievance Procedure provides that the process
for the handling of grievances requires that first the chairperson
shall be responsible
to see that all relevant documentation is
available at the meeting.
[4]
Then
the facts relating to the grievance will be established. Then
discussion will take place with a view to reaching consensus
about
upholding the grievance or not.
[31]The procedure does not say
what the available sanctions are, but the Grievance Procedure as a
whole relates to “
the selection
and appointment processes”
.
The
proposed analysis
[32]As indicated, there does not
appear to be any reliance by the GDE on the provisions of the
Educators Act to justify its failure
to have made a decision on the
recommendation. Rather the GDE, through the third respondent, appears
to adopt the position that
since there was a “
substantive
flaw in the process of shortlisting”
,
that halted the subsequent process irrevocably, necessitating a
redoing of the process.
[33]The point about this is that
the grievance by Ms Gaspari set in motion a process which led to the
recommendation by the DGC,
approved by the third respondent, that the
shortlisting process had been flawed, followed by the decision of the
third respondent
that a fresh shortlisting process would have to
ensue. That necessarily implies a setting aside of the shortlisting
process that
was actually run.
[34]It seems clear that the
failure of the second respondent to have taken a decision in early
2016 to appoint a principal was therefore
a function of the
engagement of the grievance procedure. The applicants would be
hard-pressed to argue that his delay was unreasonable
for the
purposes of s.6(3)(a) of the Promotion of Administrative Justice Act
3 of 2000 (“PAJA”), because that would
entail submitting
that the second respondent should have ignored the pending grievance
procedure. But this is an issue that arises
only if the applicants
are successful in their review of the decision to set aside the
shortlisting process, and so it is to that
issue that attention must
next be directed.
The
grievance procedure
[35]The applicants accepted that
the grievance procedure attached to their supplementary founding
affidavit applied to the shortlisting
process. The respondents’
answering affidavit defends the outcome of the procedure, namely that
the shortlisting process
was flawed, but does not engage with the
actual reasoning that led to that result. The reasoning is found in
the record of proceedings
made available by the respondents. I will
accept for present purposes, despite the absence of an express
assertion to that effect
in the answering affidavit, that the third
respondent supports that reasoning.
[36]The attack of the applicants
on the process is both procedural and substantive and, although not
spelt out in the founding affidavit
in those terms, was said from the
Bar to be reliant on the entitlement to review administrative action
under PAJA. As part of the
analysis of the substantive failures, the
applicants submitted that there was no justiciable grievance to start
off with, because
there was no reliance on a deviation from the
agreed procedures, as envisaged paragraph 1.5 of the grievance
procedure. Further,
the applicants also argued that there was in any
event no substance in fact in the assertion by Ms Gaspari that Ms
Mileder was
biased.
[37]Given more time, the
procedural failure arguments could have been investigated here.
Rather, in view of the constraints
it is more economical to
focus on a central issue, being whether substantively the decision
arrived at is subject to challenge
under ss.6(2)(e)(i)(reason not
authorised by empowering provision), 6(2)(e)(iii)(irrelevant
considerations were taken into account
or relevant considerations
were not considered), 6(2)(e)(vi)(the decision was taken arbitrarily
or capriciously), 6(2)(f)(i)(the
decision is not authorised by the
empowering provision), 6(2)(f)(ii)(the decision is not rational), or
6(2)(h)(the decision is
so unreasonable that no reasonable person
would have taken it). And in this context, it seems to me that the
investigation must
zoom in on the four bullet points listed under the
“Deliberations and Findings” of the State respondents’
minutes
of the DGC meeting.
[38]The first bullet point
records that the DGC considered that the selection committee
misapplied the standard laid down by paragraph
3.3.2 of the
Guidelines, because the selection committee minutes of the
shortlisting process reflects that the committee set as
the selection
threshold a minimum of seven years as principal.
[39]That is wrong. The selection
committee simply said that all candidates who were principals with
seven years’ experience
as such should automatically qualify
for an interview, meaning should be shortlisted. The selection
committee was entitled to do
that, and to lay down thresholds for
shortlisting. The DGC erroneously had in mind the minima requirements
for selection as applicants,
an endeavour that the GDE undertakes: to
select the applicants that are then sent through to the SGB for
shortlisting. Ms Gaspari
did not, on this threshold set by the
selection committee, qualify automatically for an interview.
[40]This error alone renders the
decision of the third respondent reviewable under s.6(2)(e)(iii).
[41]The
second and third bullet points relate to the contention that members
of the selection committee were biased against Ms Gaspari.
The DGC
considered that the members of the selection committee acted in a
discriminatory fashion against her, because they discussed
her
participation in the first selection process; and because of the
remarks attributed to Mr Sherman.
[5]
[42]But the minutes of the
selection committee do not bear out any discrimination, nor the
assertions attributed to Mr Sherman (p.75).
Those minutes cannot be
and have not been disputed. The context in which Ms Gaspari’s
previous participation was raised was,
if anything, sympathetic
towards her.
[43]Importantly, the scoring by
the various panel members of the 47 candidates was self-evidently
done independently by the participating
selection committee members.
There is no suggestion that there was an undisclosed underhand
agreement between the committee members
to contrive the scoring
results listed on p.72. That has the consequence that all that
remains is that the committee may be criticised
for selecting eleven,
and not thirteen, interviewees.
[44]But the Guidelines leave the
number of interviews entirely up to the selection committee, provided
only that the number is not
below five; paragraph 3.6.3 of annexure A
to the Collective Agreement no.2 of 2005. The selection committee, to
the contrary, transparently
spelt out its shortlisting criteria (page
71, annexure LR8), and the members applied those criteria in arriving
at their individual
scores. Finally, both Mr Sherman (Richard) and Ms
Mileder (Sharon) scored other applicants lower than they scored Ms
Gaspari (see
page 72, annexure LR9).
[45]These facts provide evidence
that the reasoning under bullets two and three render the decision
reviewable under ss.6(2)(e)(iii),
6(2)(e)(vi), 6(2)(f)(ii)(cc),
and 6(2)(h).
[46]The last bullet reflects the
conclusion of the DGC: that “based on the scores that are not
clearly outlined,” and
statements made by the panelist in the
DGC meeting, “the panel was doing everything possible to
exclude Ms Gaspari from the
shortlisting.”
[47]The minute of the
shortlisting committee’s deliberations do not bear out this
conclusion. The discussion involving Ms
Gaspari was in the nature of
examining whether, despite the fact that she was excluded from the
first eleven, she should not still
be considered for inclusion on a
somehow or other basis. The selection committee considered that she
should not be, given that
eleven interviews were enough already.
[48]It is suggested that the last
bullet, signifying as it does the conclusion of the DGC, which was
ultimately approved by the
third respondent, fails at the rationality
threshold in s.6(2)(f)(ii)(cc), as well as at the unreasonableness
threshold in s.6(2)(h).
[49]The decision taken by the
third respondent was to approve of the recommendation of the DGC. In
turn, that recommendation was
a function of the reasoning set out in
the four bullets that preceded it. In his answering affidavit, the
third respondent has
not distanced himself from either the reasoning
of the DGC or responsibility for having ultimately taken the decision
concerned,
that is to set aside the shortlisting process.
[50]One is therefore entitled to
accept that his is the same as the reasoning of the DGC; and so that
it suffers from the same defects
listed above. On this basis then the
decision of the third respondent is reviewable.
[51]But in any event, in my view
the decision fails at the s.6(2)(e)(i) hurdle. A grievance, to be
justiciable under the Grievance
Procedure, must qualify under
paragraph 1.5. The complaint of non-shortlisting Ms Gaspari does not
qualify, first because it cannot
be an unfair labour practice since
the SGB does not employ Ms Gaspari.
[52]Second, no deviations from
the agreed procedure have been asserted or illustrated. At best
for the respondents, even if
one accepts that the DGC intended to
rely on lack of “fairness” in the way Ms Gaspari was
treated (paragraph 3.9),
again neither the minute of the shortlisting
meeting nor the actual scoring endeavour, suggests any “unfairness.”
At
this level, that is whether or not paragraph 1.5 is satisfied, the
enquiry is simply whether, objectively, “unfairness”
as a
jurisdictional fact has been proved. The minute of the shortlisting
meeting is destructive of such a conclusion.
[53]Finally, there is the
consequential requirement in paragraph 1.5, namely that the
respondents would have to show that had Ms
Gaspari been treated
differently, she would have been recommended for appointment as one
of the three final candidates. Such a
result is not contended for by
the respondents.
[54]The arguments that were
advanced by the respondents centered around the contention that
someone who is good enough for acting
principal must be good enough
for permanent principal. But that submission does not factor into the
reckoning that the body that
shortlists is not the same one that
makes acting appointments. An acting appointment is, substantively,
also very different from
a permanent appointment; very different
considerations are taken into account in the case of the latter.
[55]It follows that in my view
the decision of 10 March 2016 of the third respondent must be
reviewed and set aside. The consequence
of that conclusion must next
be considered.
[56]The second respondent has not
yet made a decision on the three candidates put up to him for
permanent appointment. Since “administrative
action”
includes a failure to take a decision, that conduct is, in principle,
reviewable. But such a review would have to
be under s.6(2)(g) of
PAJA, read with s.6(3)(a), since there is no prescribed time within
which the decision is to be taken. In
turn, that implies that the
applicants would have to show an unreasonable delay on the part of
the second respondent.
[57]As long as the process has
taken, having regard to the double impact of the short-lived first
appointment and the ill-fated
challenge the second time round, I do
not believe a case has been made out for unreasonableness in delay on
the part of the second
respondent. Such an approach inevitably
infuses hindsight into the perspective. At the time, the first half
of 2016, the third
respondent’s decision stood, and it stood
until it was set aside. That only happened now. While it stood, the
second respondent
could not take his decision.
[58]
Of
course, the passage of time might mean that what was a reasonable
time in December 2015 is no longer a reasonable time in July
2016.
But non constat that the non-decision of the second respondent has
been unreasonably prolonged and is therefore reviewable.
Conclusion
[59]The respondents all, except
the fourth respondent, made common cause in opposing all the relief
claimed, and should therefore
share the costs burden.
[60]In the result I make the
following order:
(a)
The
decision of the third respondent of 10 March 2016 is reviewed and set
aside.
(b)
The
first, second and third respondents are directed to pay the costs of
the application jointly and severally, the one paying the
other to be
absolved.
WHG van der
Linde
Judge, High
Court
Johannesburg
For the
applicant: Adv. C.J. Dreyer
Instructed
by: Shepstone 7 Wylie
Ground Floor
The Lodge
38 Wierda
Road
Johannesburg
Tel: 011 290 2540
Ref:
PL/VP/LEIC30466.1
For the first
respondent: Adv. M. Ramoshaba
Instructed by: The
North Gauteng State Attorney
Cnr Kruis and Markets
Street
Johannesburg
Tel: 011 330 7635
Ref:
RNEMAKONDE/jev3455/16/P43/jev
Date
argued: 13 July 2016
Date of judgment: 15 July 2016
[1]
Reference may be had here to the judgment of the
Supreme Court of Appeal in
Member of the
Executive Council for Education, Gauteng v Federation of Governing
Bodies for South African Schools 2015 JDR 2254
(SCA), where the
following was said at [8]: “
The
issues raised in this appeal arose against a history of a sustained
power struggle between provincial education departments
and school
governing bodies over governance and management of public schools in
this country. This contestation has come to court
on a number of
occasions. 5
At the centre of these disputes is the education of the children of
the country. For that reason,
courts have emphasized that it is
paramount that those involved should do their best to resolve the
disputes with the utmost
sense of responsibility. 6
However, recent history shows a regrettable enduring power struggle
over authority to provide access
to schools between the provincial
departments of education, Fedsas and some of its affiliates around
the country.”
[2]
The
relationship between the department, both at national and at
provincial level, the head of the department, and the SGCs has
been
described in Head of Department, Mpumalanga Department of Education
and Another v Hoerskool Ermelo and Another, 2012 (2)
SA 415 (CC) at
[56]. It is of some significance that the court, per Moseneke, DCJ,
said at [57]: “
It accords well
with the design of the legislation that, in partnership with the
State, parents and educators assume responsibility
for the
governance of schooling institutions. A governing body is
democratically composed and is intended to function in
a democratic
manner.
43
Its primary function is to look after the interest of the school and
its learners.44
It is meant to be a beacon of grassroots
democracy in the local
affairs of the school. Ordinarily, the representatives of parents of
learners and of the local community
are better qualified to
determine the medium best suited to impart education and all the
formative, utilitarian and cultural
goodness that comes with
it.”
It is also significant that
SGBs are organs of state: “[141] The school governing bodies
and HOD are organs of state.
132
In terms of s 41(1)
(h)
they have an unequivocal obligation to co-operate with each other in
mutual trust and good faith by assisting and supporting
one another,
informing one another of, and consulting one another on, matters of
common interest, co-ordinating their actions,
and avoiding legal
proceedings against one another.”, per Froneman and Skweyiya,
JJ. See further in this regard, MEC for
Education, Gauteng Province,
and Others v Governing Body, Rivonia Primary School and Others,
2013
(6) SA 582
(CC) at [36].
[3]
[1999] 4 All SA 590 (NC).
[4]
Paragraph 1.10 of Annexure B and ff.
[5]
P.271 of the application papers.