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[2014] ZASCA 218
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Minister of Education for the Western Cape v Beauvallon Secondary School (865/13) [2014] ZASCA 218; (2015) 2 SA 154 (SCA); [2015] 1 All SA 542 (SCA) (9 December 2014)
Links to summary
THE
SUPREME COURT OF APPEAL
OF SOUTH
AFRICA
JUDGMENT
REPORTABLE
Case
No:
865/13
In
the matter between:
MINISTER
OF EDUCATION FOR THE
WESTERN
CAPE
.................................................................................................
FIRST
APPELLANT
WESTERN
CAPE EDUCATION DEPARTMENT
.....................................
SECOND
APPELLANT
and
BEAUVALLON
SECONDARY SCHOOL
…................................................
FIRST
RESPONDENT
SCHOOL
GOVERNING BODY OF
BEAUVALLON
SECONDARY
SCHOOL
................................................
SECOND
RESPONDENT
BERGRIVIER
NGK PRIMARY
SCHOOL
..................................................
THIRD
RESPONDENT
SCHOOL
GOVERNING BODY OF
BERGRIVIER
NGK PRIMARY
SCHOOL
..............................................
FOURTH
RESPONDENT
BRACKENHILL
EK PRIMARY
SCHOOL
..................................................
FIFTH
RESPONDENT
SCHOOL
GOVERNING BODY OF
BRACKENHILL
EK PRIMARY
SCHOOL
..................................................
SIXTH
RESPONDENT
DENNEPRAG
PRIMARY
SCHOO
.........................................................
SEVENTH
RESPONDENT
SCHOOL
GOVERNING BODY OF
DENNEPRAG
PRIMARY
SCHOOL
.........................................................
EIGHTH
RESPONDENT
KLIPHEUWEL
PRIMARY
SCHOO
.............................................................
NINTH
RESPONDENT
SCHOOL
GOVERNING BODY OF
KLIPHEUWEL
PRIMARY
SCHOOL
.........................................................
TENTH
RESPONDENT
KROMBEKSRIVIER
NGK PRIMARY SCHOOL
............................
ELEVENTH
RESPONDENT
SCHOOL
GOVERNING BODY OF
KROMBEKSRIVIER
NGK PRIMARY SCHOOL
..............................
TWELVTH
RESPONDENT
LK
ZEEMAN PRIMARY
SCHOOL
................................................
THIRTEENTH
RESPONDENT
SCHOOL
GOVERNING BODY OF
LK
ZEEMAN PRIMARY
SCHOOL
..............................................
FOURTEENTH
RESPONDENT
LAVISRYLAAN
PRIMARY SCHOOL
.........................................
FIFTHTEENTH
RESPONDENT
SCHOOL
GOVERNING BODY OF
LAVISRYLAAN
PRIMARY SCHOOL
..............................................
SIXTEENTH
RESPONDENT
PROTEA
PRIMARY
SCHOOL
....................................................
SEVENTEENTH
RESPONDENT
SCHOOL
GOVERNING BODY OF
PROTEA
PRIMARY
SCHOOL
....................................................
EIGHTTEENTH
RESPONDENT
REDLANDS
PRIMARY
SCHOOL
..................................................
NINETEENTH
RESPONDENT
SCHOOL
GOVERNING BODY OF
REDLANDS
PRIMARY
SCHOOL
...................................................
TWENTIETH
RESPONDENT
RIETFONTEIN
NGK PRIMARY SCHOOL
..............................
TWENTY-FIRST
RESPONDENT
SCHOOL
GOVERNING BODY OF
RIETFONTEIN
NGK PRIMARY SCHOOL
.........................
TWENTY-SECOND
RESPONDENT
RONDEVLEI
EK PRIMARY SCHOOL
...................................
TWENTY-THIRD
RESPONDENT
SCHOOLGOVERNING
BODY OF
RONDEVLEI
EK PRIMARY SCHOOL
...............................
TWENTH-FOURTH
RESPONDENT
URIONSKRAAL
NGK PRIMARY SCHOOL
...........................
TWENTY-FIFTH
RESPONDENT
SCHOOL
GOVERNING BODY OF
URIONSKRAAL
NGK PRIMARY SCHOOL
...........................
TWENTY-SIXTH
RESPONDENT
VALPARK
PRIMARY SCHOOL
.........................................
TWENTY-SEVENTH
RESPONDENT
SCHOOL
GOVERNING BODY OF
VALPARK
PRIMARY
SCHOOL
............................................
TWENTY-EIGHTH
RESPONDENT
WANSBEK
VGK PRIMARY SCHOOL
.................................
TWENTY-NINETH
RESPONDENT
SCHOOL
GOVERNING BODY OF
WANSBEK
VGK PRIMARY
SCHOOL
.............................................
THIRTIETH
RESPONDENT
WARM
BAD-SPA PRIMARY
SCHOOL
......................................
THIRTY-FIRST
RESPONDENT
SCHOOL
GOVERNING BODY OF
WARM
BAD–SPA PRIMARY
SCHOOL
................................
THIRTY-SECOND
RESPONDENT
WELBEDACHT
UCC PRIMARY SCHOOL
..............................
THIRTY-THIRD
RESPONDENT
SCHOOL
GOVERNING BODY OF
WELBEDACHT
UCC PRIMARY SCHOOL
..........................
THIRTY-FOURTH
RESPONDENT
THE
SOUTH AFRICAN DEMOCRATIC
TEACHERS
UNION
........................................................................
THIRTY-FIFTH
RESPONDENT
Neutral
citation:
Minister of Education for
the Western Cape v Beauvallon Secondary School
(865/2013)
[2014] ZASCA 218
(9 December 2014)
Coram:
Brand, Maya, Leach and Willis JJA and
Mathopo AJA
Heard:
17 November 201
Delivered:
9 December 2014
Summary:
Closure
of schools under s 33 of Act 84 of 1996 – nature of reasons to
be given under s 33(2) – gist of reasons sufficient
–
effect of new reasons emerging during consultative process –
SADTU need not be consulted before school closed.
ORDER
On
appeal from:
Western
Cape High Court, Cape Town (Bozalek, Le Grange, and Dolamo JJ sitting
as court of first instance):
(a)
The appeal succeeds to the extent that paras 1 and 3 of the order of
the court a quo are set aside and substituted with the
following:
‘
1
(a) The first respondent’s decision to close Beauvallon
Secondary School (the first
applicant) with effect from 31 December
2012 is reviewed and set aside;
(b)
The review application in respect of the first respondent’s
decision to close another 16 schools with effect from 31 December
2012 is dismissed;
.
. .
3
The first and second respondents are ordered to pay the costs of the
first and second
applicants jointly and severally, the one paying the
other to be absolved, such costs to include the costs of two
counsel.’
(b)
(i) The first and second appellants are
to pay the first and second respondents’
costs of appeal,
jointly and severally, the one paying the other to be absolute.
(ii)
Save to the extent in (b) (i) above, there will be no further order
as to costs of the appeal.
(c)
No order is made on the cross-appeal.
JUDGMENT
Leach
JA
(Brand
and Maya JJA and Mathopo AJA concurring)
[1]
The dispute between the parties arises from a decision taken by the
first appellant, the Minister of Education in the Western
Cape
Government (‘the Minister’) acting under s 33 of the
South African Schools Act 84 of 1996 (‘the Act’)
to close
a number of schools in the province. Eighteen of the affected schools
and their respective school governing bodies (‘SGBs’)
launched an application seeking, inter alia, an order reviewing and
setting aside the Minister’s decision. The South African
Democratic Teachers Union (SADTU), a trade union representing the
interests of certain teachers, also joined the fray as the thirty
seventh applicant. However one of the schools and its SGB withdrew
and were no longer parties when the matter came before the court
a
quo. Those that remained are the first to thirty fourth respondents
in this appeal.
[2]
Cited as respondents in the application were the Minister as well as
the Western Cape Department of Education, the second appellant
in
this appeal (‘the department’), and two ministers in the
national government, the Minister of Basic Education and
the Minister
of Justice and Constitutional Development. The last-mentioned has
played no part in any of the proceedings whilst
the Minister of Basic
Education (‘the National Minister’) joined the fray
solely to defend the provisions of s 33(2)
of the Act, the
constitutionality of which was sought to be impugned.
[3]
The matter came before a full court of the Western Cape High Court
which unanimously rejected both the attack upon the constitutionality
of s 33 and the Minister’s contention that his decision to
close the schools was not reviewable under the provisions of the
Promotion of Administrative Justice Act 3 of 2000 (PAJA). But
although the court was also unanimous that the decision to close
the
Beauvallon Secondary School (the first respondent in this appeal)
should be set aside under PAJA, its members were not ad idem
in
regard to the remaining 16 schools. The majority (Le Grange and
Dolamo JJ) concluded that their closures should also be set
aside
whilst the minority (Bozalek J) concluded otherwise. The order of the
court, reflecting the findings of the majority, was
thus as follows:
‘
1.
The first respondent’s decision made on or about 15-16 October
2012, to close the affected schools with effect from 31
December 2012
is reviewed and set aside;
2.
The application for declaratory relief in relation to
s 33(2)
of the
South African Schools Act, 81 of 1996
is dismissed;
3.
The first and second respondents are ordered to pay the applicants’
costs (except the costs of the 35
th
applicant, SADTU),
jointly and severally, the one paying the other to be absolved and
such costs to include the costs of two counsel.
4.
In respect of the 35
th
applicant, SADTU, each party to pay its own costs.’
[4]
The Minister and the department were granted leave to appeal to this
court against paras 1, 3 and 4 of this order (and for convenience
I
intend to refer to them collectively as ‘the appellants’).
On the other hand, the schools, their SGBs and SADTU (collectively
‘the respondents’) applied for leave to conditionally
cross-appeal against the order in para 2 that
s 33
was not
unconstitutional. That application was dismissed but leave on this
issue was granted by this court. It was solely on this
issue that the
National Minister entered the lists in the appeal to defend the
constitutionality of the section. As things turned
out, as more fully
set out below, this issue largely became something of a damp squib.
[5]
The material facts relevant to the review of the Minister’s
decision to close the affected schools are not in dispute.
It is
common cause that for some years the policy of the national education
authorities has been to close small and under-performing
public
schools. The national Department of Education, in its guidelines
given to provincial departments of education to expedite
this
process, identified a number of reasons justifying such action. These
include the number of learners at each school, as a
declining number
of learners ‘at rural or farm schools challenges the costs
effectiveness of maintaining such schools’,
and that a low
learner enrolment ‘results in schools being unable to provide
adequate curriculum choices’. Other considerations
recorded are
that it is undesirable for educators ‘to teach many grades
across phases in one classroom’ and that a
lack of adequate
facilities has led to many rural and small schools failing to
function properly. It also stressed the advantage
of merging small
schools in close proximity to each other so as to provide for
infrastructure in addition to classrooms, such as
libraries,
laboratories, sports fields etc.
[6]
The national guidelines go on to outline a suggested process to be
followed in the merger or closure of public schools, and
that a
provincial co-ordinating team should be established to guide the
merger and closure process. This end was facilitated at
provincial
level by the department adopting guidelines to effectively and fairly
manage the closure of non-viable public schools
so as to best promote
the interests of learners concerned and the interests of sustainable
quality schooling. The provincial guidelines
also detail various
reasons for closing a public school, echoing in broad terms the
problems identified in the national guidelines.
[7]
In the Western Cape there are approximately 1450 public schools, more
than 10 per cent of which have less than 100 learners.
However, the
department’s view is that in order to provide an acceptable
level of educational, extra-curricular and social
opportunities, and
having regard to budgetary restraints and its resources, it can
maintain and resource only approximately 1000
schools having more
than 100 learners. That many small and under-performing schools
should be closed is therefore part of the policy
adopted at both
national and provincial levels of government. Indeed, in the 12 years
immediately preceding the institution of
these proceedings in the
high court, more than 2 500 such schools were closed country wide.
[8] In order to
facilitate this policy and in an effort to improve levels of
education by obliging many learners to attend schools
‘that are
better equipped to provide a quality education’, the provincial
guidelines lay down an annual process for
each district office to
identify public schools ‘that are no longer educationally
viable and which in the interests of sustainable
quality schooling,
should be considered by the Minister for closure’ and state:
‘
The
(Department) must identify public schools within the province for
closure as follows:
With
reference to the guidelines . . . each district office must identify
public school(s) within its area of jurisdiction for
closure; and
Each
district office must then prepare an application for the closing of
each school identified . . . and submit this application
to the Head
of (the department) not fewer than 10 working days before the end of
the first term of the school year.’
[9] In 2012, the
department in this way identified 27 schools in the Western Cape as
candidates for possible closure, and submitted
a recommendation in
this regard to the Minister in respect of each school. In respect of
each such school, the following process
was adopted:
(a)
The district office, on recommending
closure, submitted a written application form completed by the
director of the education district
and the circuit manager of the
relevant region to the head of the department. Completed in line with
the department’s guidelines
for the closing of non-viable
public schools, this application contained, inter alia, particulars
of the school, the number of
learners in each grade, its proximity to
nearby schools, the number of educators in each grade, each
educator’s post-level,
the post-level of other members of its
staff, the reasons for recommending closure and the comments of
various senior department
officials on closure.
(b) On receipt on
this application, the Director: Infrastructure Planning and
Management prepared a report with a recommendation
addressed to the
Minister containing information in regard to the school, the current
enrolment of learners, the grades taught
and the primary reasons for
the suggested closing of the school, as well as where the learners
and staff could be accommodated
at other schools if the school be
closed. This report’s recommendation was supported by various
senior members of the department
including the Chief Director:
Physical Resources, the Chief Director: Districts, the Deputy
Director-General: Education Planning,
the Deputy Director-General:
Institutional Development and the Head of Department. The report was
then forwarded to the Minister
for consideration.
(c) The Minister, in
turn, addressed a letter to the SGB of the school giving notice of
his intention to close the school under
s 33(2)
(a)
of the
Schools Act (the provisions of which are dealt with in more detail
below) giving his reasons for doing so and inviting the
SGB, should
it so wish, to make representations either orally at a meeting to be
held with the department’s officials or
in writing using a
standard form.
(d) At a subsequent
meeting between officials of the department and the SGB, the latter
submitted representations it considered
relevant to the school’s
closure. Thereafter the department submitted a further report to the
Minister detailing the SGBs’
objections to the proposed closure
but recommending the continuation of the closure process.
(e) The Minister
decided to continue with the process, and notices were published
informing the public both of his intent to close
the school and of a
public hearing to be held on a particular date to discuss the
proposal; and inviting written representations
in respect of the
matter. A public hearing was thereafter held and a transcript of the
proceedings prepared. So too were minutes
of the meeting and a report
by the presiding official to which were attached any written
representations that had been made.
(f)
A final report to which all relevant documentation was attached and
supported by the recommendations, once more, of a number
of senior
departmental officials was then made available to the Minister who
took the final decision on closure (his decision was
to close 20 of
the 27 schools) and a notice to this effect giving his reasons for
closure was published in the Provincial Gazette
on 16 October 2012.
[10]
As already mentioned, in considering the lawfulness of the Minister’s
decision to close these schools, both the majority
and minority
judgments in the court below held that it had been an administrative
action reviewable under PAJA. The appellants
argued on appeal that
the court a quo had erred in this regard and that, in deciding to
close the schools in question, the Minister
had performed not an
administrative but an executive function that is not subject to
review under PAJA.
[11]
Courts are so often called upon to decide whether or not a decision
by a public official is administrative in nature that one
is left to
ponder to what extent PAJA has in fact muddied the waters rather than
provided certainty on the issue. Part of the problem
is the
definition of ‘administrative action’ set out in PAJA.
Variously and correctly described as being ‘extremely
narrow
and highly convoluted’
[1]
and
‘cumbersome’,
[2]
it
embraces the concept of an action or decision taken by a public body,
official or functionary of ‘an administrative nature’.
Conduct of that nature was described, in broad terms, by this court
in
Grey’s
Marine
[3]
as ‘the conduct of the bureaucracy (whoever the bureaucratic
functionary might be) in carrying out the daily functions of
the
State, which necessarily involves the application of policy, usually
after its translation into law, with direct and immediate
consequences for individuals or groups of individuals’. And
although administrative action excludes ‘the executive
powers
or functions of the Provincial Executive’ – which clearly
include the formulation of government policy –
the
implementation of policy is generally regarded as being
administrative in nature.
[4]
Moreover, a procedural requirement affording affected parties a
hearing before a decision is taken (the purpose of which is of
course
to ensure that there has been a full and proper appraisal of the
relevant facts and circumstances, including possible alternatives
to
the proposed action) is the hallmark of administrative action.
[12]
There is no simple litmus test to determine whether a decision by a
public official is administrative or executive in nature,
and in
order to determine the issue a close analysis needs to be undertaken
of the nature of the public power or function in question
[5]
in the light of the facts of each case.
[6]
In
doing so, it is important to remember that a decision heavily
influenced by considerations of policy is a clear indication of
it
being executive, rather than administrative, in nature. In
Scalabrini
,
dealing with the closure of a refugee reception office, Nugent JA
stressed the importance of the separation of powers and that
a
court’s primary responsibilities do not include making
decisions reserved for the other branches of government
[7]
before going on to say:
‘
The
question whether a Refugee Reception Office is necessary for
achieving the purpose of the Act is quintessentially one of policy.
Where, and how many, offices should be established will necessarily
be determined by matters like administrative effectiveness
and
efficiency, budgetary constraints, availability of human and other
resources, policies of the department, the broader of political
framework within which it must function, and the like. I do not think
courts, not in possession of all that information, and not
accountable to the electorate, are properly equipped or permitted to
make those decisions.’
[8]
[13]
It is significant that that in order to give effect to the right to
procedurally fair administrative action, s 4(1)
(b)
of PAJA
provides for a ‘notice and comment procedure’ as a
possible measure to be adopted where an administrative action
materially and adversely affects the rights of the public. Section
4(3) goes on to provide:
‘
If
an administrator decides to follow a notice and comment procedure,
the administrator must-
(a)
take appropriate steps to communicate
the administrative action to those likely to be materially and
adversely affected by it and
call for comments from them;
(b)
consider any comments received;
(c)
decide whether or not to take the
administrative action, with or without changes; and
(d)
comply
with the procedures to be followed in connection with notice and
comment procedures, as prescribed.
’
[14]
In the present case, not only was a notice and comment procedure
adopted by the Minister but the procedure followed was specifically
prescribed by ss 33(1) and (2) of the Schools Act. Echoing the notice
and comment procedure in s 4(3) of PAJA, these sections provide:
‘
33(1)
The
Member
of the Executive Council
may,
by notice in the Provincial Gazette, close a
public
school
.
(2)
The
Member
of the Executive Council
may not act under subsection (1) unless he or she has-
(a)
informed
the
governing
body
of
the
school
of
his or her intention so to act and his or her reasons therefor;
(b)
granted
the
governing
body
of
the
school
a
reasonable opportunity to make representations to him or her in
relation to such action;
(c)
conducted
a public hearing on reasonable notice, to enable the community to
make representations to him or her in relation
to such actions; and
(d)
given
due consideration to any such representations received.’
[15]
The respondents’ argument, as I understood it, was that the
necessity to follow a notice and comment procedure under
s 33(2)
before closing a school under s 33(1) is a clear indication that even
though such decision may well be influenced also
by factors such as
budgetary constraints, national and provincial policies relevant to
education, resources and administrative
efficiency, it materially
affects the rights of members of the public, amounts to an
implementation of policy, and is administrative
rather than executive
in nature; so that the court a quo correctly held PAJA to be
applicable.
[16]
Attractive though this argument may be, I do not think it is
necessary in the present circumstances to reach a final decision
on
the issue. I am aware that as a rule a court considering the review
of a decision of a public official should determine whether
or not
the proceedings are governed by PAJA.
[9]
But I do not believe that rule to be rigid and inflexible, as it is
indeed now well established that even in cases where PAJA is
not of
application, the principle of legality may be relied upon to set
aside an executive decision made not in accordance with
the
empowering statute.
[10]
And in
the present case the statutory incorporation into s 33(1) of the
Schools Act of a notice and comment procedure essentially
the same as
that envisaged by s 4(3) of PAJA renders superfluous any attempt
to pigeon-hole the decision to close the schools
as either executive
or administrative in nature. After all, however it may be
categorised, if the Minister’s decision was
taken without
proper compliance with that prescribed procedure it must fail for
lack of legality.
[17]
In the light of this consideration both sides did not press their
respective arguments on the precise nature of the Minister’s
decision with any great vigour and contented themselves in the main
with the issue of legality, to which I now turn.
[18]
The
principal issue debated in this court in regard to the question of
legality was whether the Minister, in acting under s 33(2),
gave the
affected schools sufficient information for them or their SGBs to
make meaningful representations relating to their closure.
In
contending the Minister had not, the respondents submitted that the
reasons provided in the May 2012 letter warning them of
possible
closure and calling for representations on the issue were ‘shockingly
short’ and did not adequately set up
‘the nature and
substance of the case that they had to meet’, and that at the
very least the length of the department’s
report to the
Minister recommending the closure of each school ought to have been
matched.
[19]
In considering this argument, it must be remembered that although the
fairness of any procedure followed will depend on the
circumstances
of each particular case,
[11]
a
person affected by a decision usually cannot make meaningful
representations without knowing what factors are likely to be taken
into account. Accordingly, in a test regularly approved by this
court, ‘fairness will very often require that he is informed
of
the gist of the case which he has to answer’.
[12]
As long as the gist of his reasons was conveyed, the Minister was
thus not obliged to spell out in great detail why the particular
schools were being considered for closure. In this regard, the
reasons given in the May 2012 letter to each SGB were the same as
those set out in the department’s recommendation, and although
the latter document was not attached to the letter that in
itself
does not result in the letter falling short of the mark.
[20]
Similarly, in my view, the Minister was not obliged to inform the
schools of ‘adverse policy considerations’ and
information concerning the department’s finances and resources
to facilitate their making of proper representations, as the
respondents further argued. This argument loses sight of the
realities of what the Minister was about. It was for him to consider
what was in the best interest not only of the learners and staff of
the affected schools, but of education in the province as a
whole,
taking into account budgetary restraints, available resources and the
implementation of both provincial and national policies
relating to
education. Those policies are in the public domain and, if disputed,
are matters for debate in the forums in which
they were determined,
but not between the functionary charged with their implementation and
those who might be affected.
[13]
Policies such as multi-grade teaching and the desirability of closing
small rural schools were therefore not issues on which the
Minister
needed to consider the views of the affected schools and it would
have been wholly unnecessary and superfluous for him
to have called
for their input thereon. Accordingly, in my view, the majority in the
court below wrongly concluded that the failure
to provide a brief
background to the department’s policy regarding the closure of
the schools had impeded effective and proper
representations and fell
short what had been required under s 33(2).
[21]
I
turn to consider the reasons given more closely. They were undeniably
terse, but that of course does not mean that they could
not be
addressed. Although somewhat differently worded in the case of
different schools, certain of the reasons were common to
most. The
most common was ‘dwindling learner numbers’, a reason
offered in respect of all but two of the schools, the
only exceptions
being the Beauvallon Secondary School (the first respondent) to which
I shall refer in more detail later, and the
Wansbek VGK Primary
School (the 29
th
respondent).
The second most common reason was ‘multi-grade teaching’,
which national education policy regarded as undesirable,
was taking
place at the school. This was a reason given in respect of nine of
the 17 schools (the third, fifth, and seventh, eleventh,
nineteenth,
twenty first, twenty third, thirty first and thirty third
respondents). These two main complaints were the sole reasons
given
in respect of five schools (the third, fifth, seventh, eleventh and
thirty first respondents) but I do not see that anyone
could have
entertained any doubt as to why the closure of those schools was
being considered. Nor for that matter could there have
been such
doubt in the cases where in addition to the two main considerations
was added a further reason: for example, ‘poor
LITNUM results
of the school’ in the case of the nineteenth respondent;
‘learners can be accommodated at [neighbouring
schools]’
in the case of the twenty first respondent; and that learners were
being transported from another town in the case
of the twenty third
respondent. In the result I once again find myself in respectful
disagreement with the majority in the court
below who concluded that
reasons such as dwindling learner numbers and learners not
benefitting from multi-grade teaching were
too brief for any of the
meaningful representations to be made.
[22]
Similarly where, such as in the cases of the thirteenth and fifteenth
respondents, the reason of dwindling learner numbers
was supplemented
by the further reason of there being sufficient accommodation for
learners at neighbouring schools, those affected
could have had no
doubt as to why the schools were being considered for closure. And in
the case of the 29
th
respondent in which the sole reason given was that its ‘learner
enrolment is lower than 25’ the reason behind its possible
closure was clearly self-evident and did not need to be spelled out
any clearer. Indeed one is hard pressed in this last case to
consider
what else could have been said.
[23]
I do not think it is necessary to consider the reasons given in
respect of any of the schools in any greater detail.
In none of
the cases can it be said that the gist of why closure was being
considered was not apparent from the initial reasons.
That being so,
the conclusion of the court below that there was a failure to meet
the requirements of s 33(2) which justified it
interfering with the
ultimate decision is unsustainable.
[24]
This leads me to consider a further issue arising from the initial
reasons given by the Minister in his letter of May 2012.
In certain
instances the reasons for closure of the schools finally set out in
the media statement issued by the Minister on 16
October 2012
differed somewhat from those initially given to the SGBs of the
schools and in the notice of the public hearings.
It was argued on
behalf of the respondents that as these reasons had not been
disclosed at the outset, the schools and the public
had not been in a
position to deal with them in making their representations to the
Minister rendering the final decision to close
those schools
procedurally unfair. It was indeed on this process of reasoning that
the court a quo concluded that the closure of
the first respondent,
Beauvallon
Secondary School, should be set aside.
[25]
As a starting point in considering this argument, I accept that the
circumstances of a matter may be such that procedural fairness
will
demand that in the event of a fresh reason arising after the Minister
has given initial reasons, interested parties should
be given the
opportunity to comment thereon before a final decision is taken. That
may particularly be the case where the ultimate
decision is taken on
the strength of a new reason forthcoming from the department in
respect of which no comment had been called
for nor made during the s
33(2) process. But this does not mean that comment must be called for
in all cases in which these fresh
reasons emerge during the course of
that process. To hold otherwise would require the Minister to embark
upon a lengthy, drawn-out
investigative process – a potentially
‘never-ending story’ – before making a decision,
and the importance
and necessity of the executive being able to act
efficiently and promptly has been authoritatively stressed.
[14]
This is particularly so in context of education and the need to close
public schools to benefit learners and husband the department’s
finances and resources to the best advantage.
[26]
Thus, for example, in the case of thirty third respondent where
parents of learners had expressed the view during the consultative
process that the quality of education was higher at a school proposed
as an alternative, it would be ridiculous to suggest that
this be
ignored until such time as the school, its SGB and the public be
asked to comment further on the issue. Indeed the consultative
process envisaged by s 33(2) is to ensure that the Minister, in
taking a final decision, has all the available facts on the
circumstances of the school and whatever views there may be on
closure available in order to take an informed decision. For him
to
have closed his mind to this additional information would have
subverted that process.
[27]
Consequently, the fact that the Minister’s ultimate reasons for
closure may not have tallied precisely with his initial
reasons does
not mean either that his final decision is vitiated by procedural
unfairness or that additional reasons emerging during
the process
prescribed by s 33(2) cannot be taken into account and relied upon
without giving further notice to the schools or
public.
[28]
Different considerations may apply where the additional reason or
reasons ultimately relied upon did not emerge during the
consultative
process but were forthcoming from the department itself, especially
where those reasons were known to the department
before notice of
intention to close the school had been given to the relevant SGB and
public under s 33(2). In such a case the
Minister would not have
complied with his obligation under s 33(2)
(a)
to inform the SGB of his reasons for intending to close the school,
and a subsequent final decision would thus be one taken without
complying with the necessary statutory requirement. But this is a far
cry from the Minister taking into account a reason which
emerged
during the process of receiving representations invited under the
section.
[29]
Bearing this in mind, it is necessary to consider in more detail the
position of the first respondent, Beauvallon Secondary
School.
The
initial reasons given for closure were stated by the Minister as
being ‘consistent under-performance in the NSC examination
as
well as grades 8-11’ and ‘high dropout rate’.
However, in the media statement on 16 October 2012, it was stated
that the school was to be closed as its infrastructure was becoming
increasingly unsuitable, that this impacted on the safety of
learners
and teachers, the security of the school and its ability to retain
learners, and that its learners could be accommodated
at the nearby
John Ramsay High School which had achieved better academic school
results, had a better retention rate and offered
safe facilities. The
court below concluded that the unsuitable school infrastructure and
its consequences for the school and its
learners was a significant,
if not the primary reason, for Beauvallon’s closure and that,
as this reason had not been raised
in the s 33(2) process, the
Minister’s decision to close it had been procedurally unfair.
[30]
The
Minister, in his answering affidavit, alleged that his reasons for
closing the school, namely, the under-performance in examinations,
the high drop-out rate, the unsuitable infrastructure and the
problems relating to the security of the school and its learners,
had
been known to all concerned since at least 2010. And it is indeed so
that in the department’s initial application to
the Minister
for closure of the school both the IMG Advisor (who alleged that the
school’s building ‘was not conducive
to teaching and
learning’) and the Circuit Team Manager ( who stated, inter
alia, that a learner had been fatally stabbed
in March 2012 and that
the poor condition of the infrastructure was ‘an injustice to
the school community’) had raised
not only the reasons
initially given but the further additional reasons that were, at the
end of the day, also relied upon by the
Minister.
[31]
However, the fact that all the final reasons for Beauvallon’s
closure had been known to the appellants before the commencement
of
the closure process makes it surprising, to say the least, that they
were not mentioned by the Minister in giving his reasons
at the
commencement of the s 33(2) process. But the additional reasons
relating to infrastructure, safety and security were not
given, and
those concerned were thus not called on to make representations in
regard to them as they had not been raised. Significantly,
the
response of the school’s SGB dealt with the reasons that had
been given and further mentioned vandalism and burglaries
at the
school, but did not address the additional reasons, presumably as
those issues had not been raised as reasons for closure.
Furthermore,
the additional reasons were not ventilated or raised during the
public hearings. The only reference to the aspect
of safety and
security that one can extract from the transcript of those
proceedings was a statement made in support of the school
not being
closed to the effect that, due to gangster activity and violence, the
learners would not be safe if they were to attend
another school
outside of the area in which Beauvallon was situated.
[32]
Consequently, material reasons on which the Minister based his
decision to close Beauvallon were not given under s 33(2)
(a)
and no representations were made to or received by the Minister
relevant to those reasons. The procedure followed in regard to
these
particular schools was thus fatally flawed as, simply put, the
Minister did not comply with the provisions of the section
by
properly giving his reasons, nor even the gist of his reasons, for
considering closing the school. That being so, his final
decision in
respect of the school offends the principle of legality and the court
a quo correctly set it aside. The appeal in regard
to Beauvallon must
accordingly fail.
[33]
Beauvallon was not the only school where the final reasons for
closure in the media statement of 16 October 2004 included reasons
additional to those initially given by the Minister. Thus in the case
of Klipheuwel Primary School (the ninth respondent), where
the
initial reasons had been simply that there was no ‘feeder
community’ and dwindling numbers, the final reasons included
the fact that the school relies on multi-grade teaching, that the
learner number of 31 was low, that no viable solutions to increase
the learner numbers could be identified, and that the learners could
conveniently be accommodated at a nearby school where there
are
better literacy and numeracy development opportunities. Similarly in
the case of
Urionskraal
NGK Primary School
(the
twenty fifth respondent), in which the initial reasons were identical
to those given in the instance of Klipheuwel, it was
stated in the
final reasons that learner numbers were low at 34 learners; that the
school relies on multi-grade teaching with the
staff of two educators
required to teach 34 learners across grades 1-6; that the 34 learners
could be accommodated at a nearby
primary school; and, most
importantly, that during the public participation process it had been
noted not only that the principal
of the school was transporting
almost a third of the learners in a single vehicle, but that the
school’s SGB had expressed
its support for the proposed
closure.
[34]
I do not think it is either necessary or useful to embark upon
further analysis of the differences between the Minister’s
initial and final reasons. The instances quoted above indicate that
in most cases certain facts emerging during the course of the
consultation process or reflected in national educational policies
were mentioned in the final reasons, and that the original reasons
were either expressed somewhat differently or were substantiated by
the recommendations made during the participation process under
s
33(2). However, as the minority in the court a quo correctly held, a
decisive consideration is that apart from the instance of
Beauvallon,
none of the other schools relied upon any differences between the
initial reasons and those later given to suggest
that the process
under s 33(2) had been procedurally unfair.
Consequently,
apart from the instance of Beauvallon, the procedure followed by the
Minister complied with the requirements of s
33(2) and the majority
in court a quo erred in reaching a contrary conclusion.
[35]
The respondents argued further, however, that the Minister had failed
to comply with his obligations under s 33(2) in that
he had failed to
consult with the thirty fifth respondent, SADTU, before taking his
final decision to close the schools. This argument,
advanced in the
papers but rejected in the court a quo, was put forward once more in
the respondents’ heads of argument in
this court. But although
not abandoned, it was not presented within any vigour by respondents’
counsel, whose hesitancy on
this score is understandable.
[36]
The simple fact is that consultation with SADTU, or any other trade
union that might represent the interests of educators or
other
members staff of a school, is not a requirement specified in s 33 as
a prerequisite for closure of the school. Even though
it was alleged
in the supplementary founding papers that the Minister’s
failure to consult was ‘without precedent’,
it appears
that at best the views of the leadership of SADTU had been obtained
previously only at an informal level before a decision
to close a
school was taken. Members of SADTU were, of course, perfectly
entitled to make representations on the proposed closing
of the
schools, either in their capacities as members of the relevant SGBs
or as members of the public, and some of them did. But
there was no
obligation on the part of the Minister to consult with SADTU, and the
fact that he did not is no reason to impugn
his decision.
[37]
The respondents also alleged the decision to close each of the
schools was arbitrary and irrational. In particular, in this
regard,
it was argued that as the circumstances of the seven schools the
Minister had decided not to close were comparable to certain
of the
schools that he did close, this demonstrated ‘an inconsistency
and vacillation in standards and policies that is entirely
irrational’. In this regard attention was focussed on the
Minister having replaced the school principal of certain schools
to
avoid closure but not in other schools that he closed where
leadership was cited as a concern. The respondents also emphasised
that although multi-grade teaching was cited as a reason for the
closure of all of the rural schools, some schools in which there
was
multi-grade teaching were kept open.
[38]
It is neither necessary nor desirable to attempt to closely analyse
the respects in which it is alleged the decision relating
to each
school had been irrational, particularly as I did not understand
counsel for the respondents, at the end of the day, to
place undue
emphasis on this aspect of the case. Indeed the attack upon the
Minister’s decision on the basis of its alleged
irrationality
can be swiftly dealt with. Courts must be wary of trespassing into
the domain of public officials by interfering
with decisions
entrusted by the Constitution or legislation to them. As long as
there is a rational connection between the facts
and information
available to a public official and the achievement of the purpose
falling within the power being exercised, a court
cannot interfere
merely because it considers a decision to be wrong or that a
different outcome would have been preferable.
[15]
As was emphasized by Ngcobo CJ in
Albutt
:
[16]
‘
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. But, where the decision is challenged on
the grounds of rationality, courts are obliged to
examine the means
selected to determine whether they are rationally related to the
objective sought to be achieved. What must be
stressed is that the
purpose of the enquiry is to determine not whether there are other
means that could have been used, but whether
the means selected are
rationally related to the objective sought to be achieved.’
Thus
the requirement of rationality is not aimed at testing the
reasonableness, fairness or appropriateness of a decision nor whether
an alternative or better means could have been employed to achieve
the desired end. It is restricted to the ‘threshold question’
whether the decision taken ‘is properly related to the public
good it seeks to realise’.
[17]
[39]
The
majority in the court a quo held that the decision to close the
affected schools was irrational, particularly as even though
multi-grade teaching and the benefits of smaller schools were clearly
issues of policy falling within the domain of the Minister
and the
department, ‘where multi-grade teaching was cited as the
primary reason to close certain schools, in circumstances
in which
schools where the method is implemented and with an equally
successful rate are given a reprieve to continue,
then
the complaint of arbitrariness is not without merit and cannot be
ignored on the basis of policy consideration’.
[40]
With respect, this conclusion was clearly incorrect
The
Minister had the power under s 33(1) to close the affected schools.
Hard choices had to be made, and the fact that in the exercise
of his
function he closed a school whose circumstances may have been similar
to another school that was not closed does not, in
itself, establish
irrationality. The truth is that no two schools can ever be regarded
as identical and the Minister, as functionary,
was called upon to
make what may be colloquially described as being a ‘judgment-call’
on which of the 27 schools under
consideration should be closed to
achieve the desired end of improving education in the province. Thus,
for example, multi-grade
teaching can obviously not be phased out
overnight, whatever national policy might be, and the fact that a
school offering multi-grade
teaching was not closed does not mean
that the closure of a school at which there is such instruction is
irrational.
[41]
As appears from the evaluation process that I have already described
in some detail, the Minister made his decision in the
light of the
facts made available to him, and after considering the
recommendations, representations and debates that had taken
place
during a lengthy and careful evaluation process. There is no
suggestion that he was not bona fide in taking his decision.
Indeed,
the converse is glaringly apparent. The closure of each of the
schools was in line with national policies relating to similar
schools and there is thus no room for a finding that his decision was
vitiated for being irrational or arbitrary. Consequently,
the
conclusion
of the minority in the court a quo that the closure of the schools
had not been shown to have been irrational, was correct.
[42]
In the light of all the afore-going, save for the instance of
Beauvallon, the court a quo’s decision to review and set
aside
the Minister’s decision to close the remaining schools cannot
stand and the appeal must succeed.
[43]
That brings me to the respondent’s cross-appeal in which it was
sought to impugn the provisions of s 33(2) of the Act
as
unconstitutional. This challenge was conditional upon the assertion
that if the section is to be interpreted in such a way as
to permit
the Minister to close a school without giving substantive reasons for
proposing to do so, it would offend the right to
just administrative
action enshrined in s 33 of the Constitution. However, it was
not suggested by any of the parties that
s 33(2) of the Act was to be
so interpreted and, that being so, the debate on the validity of the
section fell away. The National
Minister, who was represented solely
in order to support the constitutional validity of s 33(2), did
not seek to recover costs
for appearing. In these circumstances, it
is appropriate to make no order in the respect of the conditional
cross-appeal.
[44]
In regard to the costs of the appeal itself, although the appellants
must succeed in setting aside the order of the court a
quo in respect
of all of the affected schools, save for Beauvallon, they did not
seek a costs order against any of the schools
or their SGB’s as
would inevitably have to be discharged from the public purse. In
addition, whilst
the
appellants, in their heads of argument, had indicated that they would
seek a costs order against SADTU should the appeal succeed,
their
counsel did not persist in seeking such relief and, most properly,
conceded that the appellants would in any event have been
before this
court had SADTU not been a party. In these circumstances, save for
the first and second respondents (Beauvallon and
its SGB, the first
and second applicants in the court below) being entitled to their
costs in successfully resisting the court
a quo’s judgment in
their favour, no further order need be made in respect of the
costs of appeal.
[45]
Of course the first and second respondents in the appeal were also
entitled to their costs in the court below; as was indeed
reflected
in the order of the minority. It was also not suggested that the
order in the majority judgment below relating to the
issue of costs
between the appellants (as respondents below) and SADTU should
change. In the result, only the first and third paragraphs
of that
order need be altered.
[46]
For these reasons it is ordered as follows:
(a)
The appeal succeeds to the extent that paras 1 and 3 of the order of
the court a quo are set aside and substituted with the
following:
‘
1
(a) The first respondent’s decision to
close Beauvallon Secondary
School (the first applicant) with effect
from 31 December 2012 is reviewed and set aside;
(b)
The review application in respect of the first respondent’s
decision to close another 16 schools
with effect from 31 December
2012 is dismissed;
.
. .
3
The first and second respondents are ordered to pay the costs of the
first and second
applicants jointly and severally, the one paying the
other to be absolved, such costs to include the costs of two
counsel.’
(b)
(i) The first and second appellants are
to pay the first and second respondents’
costs of appeal,
jointly and severally, the one paying the other to be absolute.
(ii)
Save to the extent in (b) (i) above, there will be no further order
as to costs of the appeal.
(c) No order is made
on the cross-appeal.
_______________
L
E Leach
Judge
of Appeal
Willis
JA:
[47]
Having read the fine and comprehensive judgment of Leach JA, I agree
with his proposed order that each of the individual decisions
to
close 16 of the affected schools, is not one with which a court may
interfere. Indeed, I should have gone one step further.
In the case
of the Beauvallon Secondary School , I consider the difference given
in the final reasons as to why the school was
to be closed was
neither so materially different from those originally put before the
meetings with the school governing bodies
(SGBs) nor so strikingly
unfair in the overall process as to be 'fatally flawed'. I therefore
disagree that there was, accordingly,
a justification for judicial
interference with the decision to close that school. Relevant is the
totality of the history of the
process. Having as its wellspring the
best interests of those who teach and those who learn, the decision
to close the school was,
in each instance, taken after careful
consideration and extensive consultation over a protracted period of
time. In this regard,
my conclusions mirror those of Davis J who
delivered a dissenting judgment when the application for an interim
interdict in this
matter was considered. In my opinion, this court
should, therefore, also have sanctioned the closure of Beauvallon
Secondary School.
[48]
Additionally, there are a few other aspects in the reasoning of Leach
JA where I respectfully find myself not to be in unqualified
agreement with him. Here below I shall attempt to set out briefly the
features of the case which, in my deliberations of the matter,
warrant a separate consideration.
[49]
I agree with Leach JA that, in general, administrative action is
characterised by the requirement of procedural fairness whereas
executive action is not. This is made clear in
Masetlha
v President of the Republic of South Africa & another
.
[18]
It is important, however, not to lose sight of the fact that the
requirement of procedural fairness is a consequence of a decision
being administrative rather than the reason why it is so.
[50]
In my opinion, it follows from
President
of the Republic of South Africa & others v South African Rugby
Football Union & others
,
[19]
Premier,
Mpumalanga & another v Executive Committee, Association of
State-Aided Schools, Eastern Transvaal
[20]
and
Masetlha
[21]
that the development, formulation and implementation of policy are
executive decisions. It is in regard to the use of the word
‘implementation’
[22]
that confusion may arise. Mr Fagan, who appeared for the appellants,
argued that all that they had done was to implement policy
and,
therefore, the application was not amenable to review.
[51]
The implementation of policy will almost always require some degree
of individuation. The implementation of a policy to build
more
clinics, for example, would require that specific contracts be
entered into for the building of particular units in different
places. The former is not amenable to review in terms of the
Promotion of Administrative Justice Act 3 of 2000 (PAJA)
,
but the individuated tenders awarded as a result thereof would be.
[52]
‘Policy’ has a ‘general’ character.
[23]
It is in the nature of things that the implementation of policy
entails a process of moving from the general to the particular.
Ordinarily, once a process of decision-making has been particularised
to the extent that an individuated decision has been made,
having
concrete, measurable and finite results and which are not of general
application, there is a change of character: executive
decision-making becomes administrative action. In a certain sense, as
the colloquial expression has it: ‘The devil is in
the detail’.
Policy has an abstract quality: it is separated from
particularity.
[24]
The
fingerprint of administration, on the other hand, is precisely the
particularity of its consequences in the hand of the State.
Administrative action, in a manner different from executive
decision-making, affects human beings in the singularity of their
lives, their hopes, their futures. Therein reposes the wisdom of the
constitutional requirement
[25]
that there should be a statute such as PAJA.
[53]
Not every individuated decision made the executive authority or an
organ of State is, however, amenable to review. Certain
decisions,
such as those historically derived from the royal prerogative and
that are unrestrained by the Constitution would, by
way of
illustration, be beyond review in terms of PAJA. The closure of
schools is not such a prerogative decision.
[54]
By reason of my minority judgment in
Minister
of Home Affairs & others v Scalabrini Centre
&
others
[26]
to which Leach JA has referred with approval, I should record,
as an aside, that I agree that
Scalabrini
makes
it clear that the decision to close particular or individual schools
is an administrative one.
Scalabrini
dealt
with the closure of a Refugee Reception Office in Cape Town. In that
case it was held that the decision to close the office
was an
administrative one. In principle, there is no difference, in regard
to the question of its amenability for review, between
the decision
to close a Refugee Reception Centre and a school. Although I wrote a
minority judgment in
Scalabrini
,
all the judges hearing the matter agreed that the decision to close
the office was reviewable in terms of PAJA.
[55]
I am considerably more phlegmatic than Leach JA about the
shortcomings of PAJA, such as they are. In my opinion, it has served
us well since its coming into operation. Certainly, it has been a
huge improvement on the situation that previously prevailed.
The
consideration of PAJA has come before the Constitutional Court in
cases to innumerable to mention. As far as I am aware, the
Constitutional Court has not found it necessary to criticise the
crafting of the Act. In this regard, I take my cue from them.
Indeed,
in what was effectively the unanimous decision of the Constitutional
Court in
Bato
Star Fishing (Pty) Limited v Minister of Environmental Affairs &
others
,
[27]
PAJA seems to have received a sterling endorsement.
[28]
[56]
I otherwise agree with the judgment and order proposed by Leach JA,
including his reasons therefor.
__________________
N
P WILLIS
JUDGE
OF APPEAL
Appearances:
For
the Appellant: E W Fagan (with him E F van Huyssteen)
Instructed
by:
State
Attorney, Cape Town
State
Attorney, Bloemfontein
For
the Respondents: N Arendse SC (with him D Simonsz and S Fergus)
Instructed
by: Botha, Pretorius and Andrews Inc, Cape Town
Honey
Attorneys, Bloemfontein
For
the Respondent in the
Cross-Appeal:
Kemp J Kemp SC (with him T Masuku)
Instructed
by:
State
Attorney, Cape Town
State
Attorney, Bloemfontein
[1]
Cora
Hoexter
Administrative
Law in South Africa
2
ed (2012) at 195.
[2]
Minister
of Home Affairs v Scalabrini Centre
2013
(6) SA 421
(SCA) para 48 where Nugent JA found it unnecessary to set
out the definition beyond stating that it requires a decision of an
‘administrative nature’ that has various features
including that it ‘adversely affects the rights of any
person’.
[3]
Grey’s
Marine Hout Bay (Pty) Ltd v Minister of Public Works
[2005] ZASCA 43
;
2005
(6) SA 313
(SCA) para 24.
[4]
Permanent
Secretary, Department of Education and Welfare, Eastern Cape v
Ed-U-College (PE) (Section 21) Inc
2001
(2) SA 1
(CC) para 18 and Hoexter at 177-178.
[5]
Sokhela
& others v MEC for Agriculture and Environmental Affairs
(KwaZulu-Natal)
& others
2010
(5) SA 574
(KZP) para 61 quoted with approval in
Scalabrini
para
52.
[6]
Viking
Pony Africa Pumps (Pty) Ltd t/a Tricom Africa v Hidro-Tech Systems
(Pty) Ltd
2011
(1) SA 327
(CC) para 37.
[7]
Paras
54-56.
[8]
Scalabrini
para
58
[9]
Minister
of Health & another NO v New Clicks South Africa (Pty) Ltd &
others (Treatment Action Campaign & another
as amici curiae)
2006
(2) SA 311
(CC) paras 436-438.
[10]
See
eg
National
Director of Public Prosecutions & others v Freedom Under Law
2014
(4) SA 298
(SCA) para 29 and
Affordable
Medicines Trust v Minister of Health
[2005] ZACC 3
;
2006
(3) SA 247
(CC) paras 48-50.
[11]
Joseph
& others v City of Johannesburg & others
2010
(4) SA 55
(CC) para 56.
[12]
Doody
v Secretary of State for the Home Department & other appeals
[1993]
3 All ER 92
(HL) at 106
b-h
cited
with approval in this court, inter alia, in
Chairman,
Board on Tariffs and Trade & others v Brenco Inc & others
2001
(4) SA 511
(SCA)
para
13 and
Du
Preez & another v Truth & Reconciliation Commission
[1997] ZASCA 2
;
1997
(3) SA 204
(A) at 232C.
[13]
Compare
Scalabrini
para
67.
[14]
Premier,
Mpumalanga & another v Executive Committee, Association of
State-aided Schools, Eastern Transvaal
1999
(2) SA 91
(CC) para 41.
[15]
Bel
Porto School Governing Body v Premier, Western Cape
[2002] ZACC 2
;
2002
(3) SA 265
(CC) para 45.
[16]
Albutt
v Centre for the Study of Violence and Reconciliation & others
2010
(3) SA 293
(CC) para 51.
[17]
Per
Moseneke DCJ the
Law
Society of South Africa & others v Minister for Transport &
another
2011
(1) SA 400
(CC) para 35.
[18]
Masetlha
v President of the Republic of South Africa & another
[2007] ZACC 20
;
2008
(1) SA 566
(CC) para 78.
[19]
President
of the Republic of South Africa &
others
v South African Rugby Football Union & others
2000
(1) SA 1
(CC) para 143.
[20]
1999
(2) SA 91
(CC) para 41.
[21]
Para
77.
[22]
See
Premier,
Mpumalanga
para
41, approved in
Masetlha
para
77.
[23]
See
for example
The
Oxford English Dictionary
,
2006.
[24]
Ibid.
[25]
See
s 33 of the Constitution, 1996.
[26]
Minister
of Home Affairs & others v Scalabrini Centre & others
2013
(6) SA 421 (SCA).
[27]
Bato
Star Fishing (Pty) Limited v Minister of Environmental Affairs &
others
2004
(4) SA 490 (CC).
[28]
See
esp paras 25 and 26.