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[2012] ZASCA 150
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Head of Department: Department of Education, Free State Province v Welkom High School and Another, Head of Department: Department of Education, Free State Province v Harmony High School and Another (766/2011, 767/2011) [2012] ZASCA 150; 2012 (6) SA 525 (SCA); [2012] 4 All SA 614 (SCA) (28 September 2012)
Links to summary
THE SUPREME COURT
OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no
:
766
&767/2011
Reportable
In the matter
between:
THE HEAD OF
DEPARTMENT: DEPARTMENT
OF EDUCATION,
FREE STATE PROVINCE
....................................
Appellant
and
WELKOM HIGH
SCHOOL
.......................................................
First
Respondent
THE GOVERNING
BODY OF WELKOM
HIGH SCHOOL
.......................................................................
Second
Respondent
And in the matter
between:
THE HEAD OF
DEPARTMENT: DEPARTMENT
OF EDUCATION,
FREE STATE PROVINCE
....................................
Appellant
and
HARMONY HIGH
SCHOOL
....................................................
First
Respondent
THE GOVERNING
BODY OF HARMONY
HIGH SCHOOL
.......................................................................
Second
Respondent
Neutral citation:
The Head of Department: Department of Education, Free
State Province v Welkom High School & Harmony High School
(766
&767/2011)
[2012]
ZASCA
150
(28 September 2012)
Coram:
MPATI
P, CLOETE, MHLANTLA, THERON JJA and PLASKET AJA
Heard:
18
September 2012
Delivered
28
September 2012
Summary:
School
and school governing body - School governing body – In terms of
South African Schools Act 84 of 1996
, governance of public school
vested in governing body, including right to determine school's code
of conduct – the provincial
head of department not empowered to
instruct a school principal to ignore a pregnancy policy even if
school governing body not
empowered to adopt such a policy and even
if the policy is unconstitutional.
Administrative
law – administrative act – consequences of invalidity –
Until invalid administrative action set
aside by court in proceedings
for judicial review, it exists in fact and it has legal consequences
that cannot be disregarded.
Administrative
law – distinction between direct and collateral challenge –
only a person threatened with coercive action
by a public authority
may mount a collateral challenge – HOD’s challenge not
collateral.
___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from:
Free State High Court, Bloemfontein, (Rampai J sitting as court
of first instance):
1 Each appeal is
dismissed, with costs.
2 The order of the
high court is amended to read:
‘
(a)
In each case, for as long as the pregnancy policy remains in force,
the first respondent is interdicted and restrained from
directing the
school principal to act in a manner contrary to the policy adopted by
the school governing body.
(b) The learner
concerned shall be entitled to attend formal classes at the school,
to remain at the school and in her current grade
and to be taught, to
learn and to be examined.’
___________________________________________________________________
JUDGMENT
___________________________________________________________________
THERON
JA (
MPATI P, CLOETE, MHLANTLA
JJA and
PLASKET AJA concurring):
Introduction
[1] This appeal
concerns the exercise of administrative power and the principle of
legality, in the context of an instruction by
a provincial Head of
the Department of Education (HOD) to a principal of a public school
to act in a manner contrary to a policy
adopted by the school’s
governing body.
Background
[2] The appellant is
the HOD in the Free State. The first respondent, in each matter, is a
public school as defined in the South
African Schools Act 84 of 1996
(the Act), respectively, Welkom High School and Harmony High School.
The second respondent, in each
matter, is the governing body of the
respective school.
[3] On 20 November
2008, the governing body of Welkom High School adopted a policy on
the Management of Learner Pregnancy, which
policy was implemented
with effect from 1 January 2009. The governing body of Harmony High
School adopted its Policy on Pregnant
School Girls on 29 January
2009. Each governing body contends that the pregnancy policy adopted
by it was in accordance with the
National Department of Education’s
Measures for the Prevention and Management of Learner Pregnancy,
which were published
in 2007 and intended to assist public schools in
managing learner pregnancies as and when they occurred. The
implementation of
the respective pregnancy policies gave rise to this
dispute.
[4] The first matter
concerned Ms D (D), a 15 year old grade 9 learner at Welkom High
School in 2010, who fell pregnant in 2010
and was due to give birth
in December. In September 2010, D was advised by the principal that
pursuant to the terms of the pregnancy
policy, the school had taken a
decision that she would have to take a leave of absence for the
period 16 September 2010 until the
second term in 2011, when she
would be able to return in order to continue with grade 9. D’s
family laid a complaint against
her ‘expulsion’ with the
Minister of Basic Education, the MEC for Education in the Free State
and the Human Rights
Commission of South Africa. On 28 October 2010
the principal received a written directive from the HOD to rescind
the decision
taken in respect of D and to allow her to return to
school immediately. The school sought advice from the Federation of
Governing
Bodies for South African Schools (FEDSAS), a national
representative organisation for school governing bodies of which it
is a
member. It was advised by FEDSAS to re-admit D to school,
pending the outcome of an application to court to challenge the
validity
of the HOD’s instruction. D was subsequently allowed
to continue with her schooling.
[5] In the second
matter, Ms M (M), a 17 year old grade 11 learner at Harmony High
School gave birth to a child during June 2010.
In terms of the
school’s pregnancy policy, a learner could not ‘be
re-admitted to school in the same year that they
left school due to a
pregnancy’. The school took a decision, in accordance with its
pregnancy policy, not to allow M to continue
with her schooling for
the remainder of 2010. The school subsequently received a written
request from the Department of Education,
to review M’s case.
The governing body decided not to alter its initial decision. In a
letter dated 20 October 2010, the
HOD instructed the principal to
rescind the decision and to allow Mokoena to return to school
immediately. The instruction was
in similar terms to that issued to
the principal of Welkom High School.
[6] The high school
and its governing body, in each matter, instituted urgent proceedings
against the HOD during November 2010 in
the Free State High Court,
Bloemfontein.
The
matters were consolidated and in May the following year Rampai J
granted an order which, inter alia, (a) declared that the HOD
does
not have authority to instruct or compel the school principal to act
in a manner contrary to a policy adopted by the school
governing
body; (b) declared that the decisions taken by the governing bodies
of the schools relating to the exclusion of D and
M, pursuant to the
implementation of the schools’ pregnancy policies, were valid
in law and (c) interdicted the HOD from
taking steps intended to
undermine the decisions taken by the schools and their respective
governing bodies pursuant to the pregnancy
policies.
It
is against these orders that the HOD appeals, with the leave of the
high court.
1
There was no appeal
against the part of the order that the two learners were entitled to
return to school.
[7] The South
African Human Rights Commission and the Centre for Child Law were
admitted as amici curiae in the high court. On 10
May 2012, this
court granted the Centre for Child Law leave to intervene on appeal
as an amicus curiae. The Centre for Child Law
was established by the
University of Pretoria and is registered as a law clinic with the Law
Society of the Northern Provinces.
Its main objective is to establish
and promote child law and uphold the rights of children in South
Africa, and in particular to
use the law and litigation as an
instrument to advance such interests. The submissions of the Centre
for Child Law are in essence
that the pregnancy policies are
unconstitutional in that they discriminate against learners on the
grounds of pregnancy. It will
become clear why it is not necessary to
have regard to these submissions.
The
South African
Schools Act
[8
] The legislative
framework relevant to the appeal is to be found in the Act. In terms
of the scheme of the Act, public schools
are to be run by three
partners, namely the national government represented by the Minister
of Education; the provincial government,
that acts through the MEC
for Education; and parents of the learners and members of the
community where the school is located,
the latter being represented
in the school governing body.
2
Sections 5(5), 6(2),
7, 8(1), 16(1) and 20(1) – (5) of the Act vest particular
governance powers in the governing body.
[9] Section 23
provides that public school governing bodies are to comprise elected
members, the principal in his or her official
capacity and co-opted
members. The elected members comprise a member or members of each of
the following categories: parents of
learners at the school,
educators at the school, members of staff at the school who are not
educators and learners in the eighth
grade or higher at the school.
The number of parent members on the governing body must comprise one
more than the combined total
of other members who have voting rights.
Co-opted members of the governing body do not have voting rights.
[10] The governing
body’s primary function is to promote the interests of the
school and ensure the provision of quality education
for its
learners.
3
The powers of a
governing body are limited and it may only perform such functions and
obligations and exercise only such rights
as prescribed by the Act.
4
The limited nature
of the powers of a governing body was confirmed by the Constitutional
Court in
Head
of Department, Mpumalanga Department of Education & another v
Hoërskool Ermelo & another
,
where Moseneke DCJ stated that a governing body has ‘defined
autonomy over some of the domestic affairs of the school’.
5
[11] Whereas the
‘professional management’ of a public school must be
undertaken by the principal under the authority
of the HOD, the
‘governance’ is vested in the governing body.
6
A governing body
must adopt a code of conduct for the learners after consultation with
the learners, parents and educators of the
school.
7
Such code ‘must
be aimed at establishing a disciplined and purposeful school
environment, dedicated to the improvement and
maintenance of the
quality of the learning process’.
8
Section 20(1) of the
Act details the functions that the governing body must perform. The
obligation to adopt a code of conduct is
specifically stated in s
20(1)(
d
).
Collateral
challenge
[12] The HOD accepts
that the governing body has authority to adopt a code of conduct but
contends that it does not have the power
to adopt any policy, the
effect of which would be to exclude learners from attending school.
It was contended that the HOD, when
the lawfulness of his
instructions were challenged in court, was entitled to launch a
collateral challenge attacking the validity
of the decisions taken by
the governing bodies, and has in fact done so in these proceedings.
[13] This court, in
Oudekraal
Estates (Pty) Ltd v City of Cape Town & others
,
9
held that a person
has the right to raise a collateral challenge to the validity of an
administrative act where he or she is threatened
with coercive action
by a public authority. The basis and nature of a collateral challenge
was explained as follows:
‘
When
construed against the background of principles underlying the rule of
law a statute will generally not be interpreted to mean
that a
subject is compelled to perform or refrain from performing an act in
the absence of a lawful basis for that compulsion.
It is in those
cases ─ where the subject is sought to be coerced by a public
authority into compliance with an unlawful administrative
act ─
that the subject may be entitled to ignore the unlawful act with
impunity and justify his conduct by raising what has
come to be known
as a "defensive" or a "collateral" challenge to
the validity of the administrative act.’
10
[14] There is no act
that the HOD is compelled to perform or refrain from performing in
consequence of the pregnancy policies. Neither
is there any coercive
action directed at him consequent upon the implementation of the
pregnancy policies. The learners could have
mounted a collateral
challenge in order to resist attempts by the schools to prevent them
from attending school, had the schools
for instance applied to
interdict them from doing so.
[15] In
Kouga
Municipality v Bellingan & others
,
11
this court discussed
the distinction between a direct and a defensive (collateral)
challenge. In that matter, the respondents had,
in proceedings in the
high court, launched a direct challenge against a by-law passed by
the municipality regulating liquor trading
hours. Cloete JA, when
considering whether the high court had granted appropriate relief to
the respondents, stated:
‘…
the
correct approach to the relief sought by the applicants would have
been to recognise that the application was in form a direct
challenge, but in substance a defensive or collateral challenge, to
the validity of the bylaw. The two are different …’
12
In describing the
difference between the two, Cloete JA referred to the statement in
Oudekraal
that:
‘
Each
remedy thus has its separate application to its appropriate
circumstances and they ought not to be seen as interchangeable
manifestations of a single remedy that arises whenever an
administrative act is invalid.’
13
This is in
accordance with the principle that a collateral challenge to the
validity of an administrative act will only be available
‘if
the right remedy is sought by the right person in the right
proceedings’.
14
Kouga
Municipality
confirmed
that a collateral challenge is available to the person against whom
an unlawful administrative act is sought to be enforced,
and the
learned judge of appeal concluded that there was ‘no reason why
a collateral challenge to the validity of a piece
of legislation
cannot be brought in civil proceedings for a declaratory order by a
person who has been charged with contravening
such legislation’.
15
[16] The HOD alleges
that he is, in these proceedings, protecting the constitutional right
of learners not to be excluded from school.
A collateral challenge of
this nature to the validity of the decisions of the governing body is
not a defence in the hands of the
HOD. The HOD says the pregnancy
policies are unlawful, and in a nutshell, the basis of his defence is
that the HOD has the power
to instruct principals, as their employer,
not to obey an unlawful policy or act in an unlawful manner,
especially if to do so
would be unconstitutional. That is a direct
challenge and he has to approach a court to set aside the decisions
that are, in his
opinion, invalid. These matters are the converse of
those dealt with in
Kouga Municipality
inasmuch as the
challenge by the HOD is in form a collateral challenge, but in
substance a direct challenge. The argument that
the HOD had brought a
collateral challenge falls to be rejected.
Section 172(1) of
the Constitution
[17] I now turn to
the question whether this court is obliged, in terms of s 172(1) of
the Constitution,
16
to deal with the
constitutional issues raised by the HOD. As was submitted by his
counsel, as part of his defence, the HOD relied
on the alleged
unconstitutionality of the exclusionary provisions of the pregnancy
policies and the decisions taken in reliance
thereon to exclude
learners from attending school.
[18] It was argued,
on behalf of the HOD, that if the pregnancy policies are
unconstitutional then the HOD is entitled, as employer,
to issue an
instruction to the principal, as employee, not to give effect to an
unlawful policy. It was further argued that this
court is obliged to
consider the constitutionality of the pregnancy policies. In this
regard, reliance was placed on the following
passage of
Mkangeli
& others v Joubert & others
:
17
‘
Having
reached the conclusion that the Tenure Act was unconstitutional,
Flemming DJP considered it unnecessary to make a formal
declaration
of invalidity - this despite the provisions of s 172(1) of the
Constitution which requires that a Court when deciding
a
constitutional matter within its jurisdiction “must declare
that any law or conduct that is inconsistent with the Constitution
is
invalid to the extent of its inconsistency”. If the
constitutionality of the legislation was not relevant to his judgment
the learned judge ought not to have considered that issue; if it was
relevant he ought to have taken steps to have had the Minister
responsible for the administration of the Tenure Act joined as a
party to the proceedings. He ought then to have heard argument
from
the parties on that issue, and if he found the Act to be inconsistent
with the Constitution, he ought to have made a declaration
to that
effect as required by s 172(1) of the Constitution.’
18
[19] In my view, the
fact that a collateral challenge was not available to the HOD puts
paid to this argument. Secondly, the passage
I have quoted from
Mkangeli
is to the effect
that when a constitutional challenge is properly before a court, it
must deal with it. In this case, because the
HOD was not entitled to
raise a collateral challenge, the constitutionality of the pregnancy
policies was not properly before the
court a quo.
[20] It was not
necessary for the court to determine the constitutional issue.
19
The schools have
deliberately chosen not to address the constitutional complaints
against the exclusionary provisions of the pregnancy
policies and
have confined themselves to an argument that, irrespective of the
constitutional validity of the policies, the HOD
has no power to
order the principals to ignore the policies and to re-admit the
learners,
and
that his conduct in doing so violated the constitutional principle of
legality. In the view I take of the matter, it was indeed
not
necessary for the schools to address the constitutional complaints
against the pregnancy policies. They launched proceedings
relating to
the unlawful conduct of the HOD.
20
That issue can be
determined without pronouncing upon the constitutionality of the
policies. It would have been different, had the
HOD launched a
counter-application, as he had indicated was his intention to; but he
did not. The constitutionality of the pregnancy
policies was not
relevant to the judgment of the high court and the learned judge was
correct in not considering that issue. The
judge put the matter thus:
‘
The
common issue before me in these two applications is really not the
unlawfulness of the pregnancy policies adopted and implemented,
but
rather the lawfulness of the instruction given. I am therefore not
called upon to consider the substantive dimension (merits
or
demerits) of the pregnancy policy. Yet, that was precisely what the
respondents and the amici wanted me to do. But there was
no avenue
open to me to get there. None of the respondents had filed any
counter-application to challenge the pregnancy policies
adopted by
the schools. The critical issue before me was concerned with the
procedural dimension of the first respondent's action(s)
— call
it the legality thereof, if you will.’
21
The reasoning of the
high court cannot be faulted and is equally applicable to the issues
on appeal. In any event, there is insufficient
evidence on record to
embark on a detailed analysis of the constitutionality of the
pregnancy policies.
Authority of the
HOD
[21] It was argued
that as the employer of principals, the HOD has the ordinary powers
of an employer to issue instructions to an
employee. This was the
only basis on which the HOD relied for his authority to have issued
instructions to the principals to disregard
the provisions of the
pregnancy policies. It was further contended that the HOD, as
employer, has the power to instruct a principal,
as employee, not to
implement an unlawful policy and was obliged to do so in view of s
7(2) of the Constitution
22
if the policy was
unconstitutional.
It
was contended that the Act recognises the importance of the
employer/employee relationship between the HOD and the principal,
and
the primacy of this relationship over any relationship between the
principal and the governing body. Support for this view,
so the
argument went, is to be found in s 16(3) of the Act which provides
that the principal’s responsibility for the professional
management of the school is exercised ‘under the authority of
the Head of Department’.
Thus,
while the principal sits on, and is obliged to assist,
the governing body
in the performance of its functions and responsibilities, such
assistance may not be in conflict with instructions
issued by the
HOD.
[22] This argument
is fundamentally flawed and a recipe for chaos. It is flawed because
it ignores the fact that, as I have pointed
out, the adoption of a
code of conduct is a governance issue that falls within the domain of
the governing body.
It
does not fall within the professional management of a public school
that must be undertaken by the principal under the authority
of the
HOD. The HOD may issue appropriate instructions to a principal in
relation to the professional management of the school,
but he does
not have any authority, under the Act, to issue an instruction to a
principal to disregard a policy adopted by the
governing body in
relation to governance matters at the school. The HOD’s opinion
that such policy might be unlawful is no
justification for his
interference in matters over which the governing body exercises
responsibility. That would produce the chaos
to which I have
referred. The HOD was entitled to request the governing bodies of the
schools to rescind their pregnancy policies
and to put forward all
arguments he considered relevant. But his remedy when they refused to
do so was to mount a challenge in
a court of law – as a matter
of urgency for interim relief, if necessary. I turn to consider this
question.
Administrative
decisions of the governing bodies
[23] A decision by a
school governing body to adopt a pregnancy policy is an
administrative decision. Even if the pregnancy policies
adopted are
unconstitutional, and even if school governing bodies are not
empowered by the Act to adopt such policies, as alleged
by the HOD,
it does not follow that the HOD is entitled to instruct the
principals to disregard such policies. In
Oudekraal
,
this court held that until an unlawful and invalid administrative
decision is set aside ‘by a court in proceedings for judicial
review it exists in fact and it has legal consequences that cannot
simply be overlooked’.
23
The rationale
underlying the court’s decision is apparent from the following
passage of the judgment:
‘
The
proper functioning of a modern State would be considerably
compromised if all administrative acts could be given effect to or
ignored depending upon the view the subject takes of the validity of
the act in question. No doubt it is for this reason that our
law has
always recognised that even an unlawful administrative act is capable
of producing legally valid consequences for so long
as the unlawful
act is not set aside.’
24
In the
circumstances, the decisions of the governing bodies stand until set
aside by a court, and the conduct of the HOD, in instructing
the
principals not to implement the policies, was unlawful.
[24] The HOD says
that by issuing the instructions to the principals he was acting in
the best interests of the learners who were
being denied access to
school in terms of unlawful and unconstitutional polices.
The purest of
motives of the HOD cannot justify what amounts to self-help. The high
court was alive to the fact that the HOD, in
issuing the directive to
the principals, had tried to ‘ensure that invalidity and
injustice did not prevail’. The HOD
believed that he was acting
in the best interests of the learners, but the course of conduct he
adopted was, and remains, unlawful.
The principle of
legality
[25] It must be
accepted that the HOD exercises executive control over public schools
through principals.
25
However, the HOD is
constrained by the principle of legality. This principle dictates
that ‘the exercise of public power is
only legitimate where
lawful’.
26
The HOD, as a public
functionary,
may
exercise no power and perform no function beyond that conferred upon
him by law. The question that arises is whether the HOD,
by
instructing the principals to re-admit the learners, acted within his
powers.
[26] In
Minister
of Education, Western Cape & others v Governing Body, Mikro
Primary School & another
,
it was held that, save in the case of a new school, the governance of
the school and the admission and language policy of the
school are to
be determined by the governing body of a school subject to the
provisions of the Act and applicable provincial law.
27
The school was a
single medium Afrikaans school. The court held that a directive by
the HOD to the principal to admit certain learners
and to have them
taught in English, was unlawful. The court concluded that the HOD and
Minister, by failing to avail themselves
of any of the remedies
available to them, and merely instructing the principal to admit the
learners concerned to the school for
instruction in English, had
acted contrary to the admission policy of the school and in so doing
the Department of Education had
substituted its own admission policy
for that of the school. Streicher JA went to say that:
‘
In
so doing it was acting unlawfully, as it did not have the power to
determine an admission policy for the school. Even if the
language
and admission policy determined by the first respondent was invalid,
the department or the first and second appellants
did not, in terms
of the Act, have the power to determine a language or admission
policy for the second respondent. It follows
that the directive …
was unlawful.’
28
[27] In the matters
under consideration, the HOD issued a directive to each of the school
principals that D and M should be allowed
to return to school and
that the decision of the governing bodies be rescinded. The HOD, in
issuing such instructions to the principals,
was
in effect substituting his own pregnancy policy for that of the
respective schools. The HOD does not have the power, in terms
of the
Act, to determine pregnancy policies for the schools. Whether the
governing bodies have such power is irrelevant,
and
so is the constitutionality of the policies, the question addressed
by the amicus curiae. It suffices, for the purposes of this
appeal,
to hold that the HOD failed to adhere to the principle of legality
and that his conduct is accordingly unlawful, for the
reasons given
by the high court:
‘
The
HOD had no outright legislative power to determine or to abolish the
learner pregnancy policy for the school all on his own
and against
the popular and democratic will or resolution of the school
governors. This was the effect of his [instruction]. Similarly,
he
had no outright legislative authority to veto the principal’s
decision to implement the learner pregnancy policy of the
school.
This was the effect of his … order. However misguided or
invalid the learner pregnancy policy was the department
or its
functionary had no … power to override the school governors
and the school managers.’
29
Order
[28] The terms of
the order granted by the high court are too wide and need to be
amended so as to limit the scope of the order.
In terms of the order
as it stands,
the
HOD would be precluded from taking the decisions of the governing
bodies on review. In addition, that part of the order declaring
the
decisions of the governing bodies ‘valid in law’
presupposes that the decisions cannot be assailed on any legal
grounds. I doubt that the learned judge intended to go that far. He
must have intended, as stated in
Oudekraal
,
that the decisions are valid until set aside. Furthermore, the order
that the learners are to remain at the schools ‘until
the
completion of their high school careers’ effectively precludes
their future expulsion on valid grounds. The order that
was given
reflected the fact that by the time the application came to be heard,
the learners had passed the grades in which they
were studying at the
time the application was launched and they were already being
educated in a higher grade.
[29] The following
order is made:
1 Each appeal is
dismissed, with costs.
2 The order of the
high court is amended to read:
‘
(a)
In each case, for as long as the pregnancy policy remains in force,
the first respondent is interdicted and restrained from
directing the
school principal to act in a manner contrary to the policy adopted by
the school governing body.
(b) The learner
concerned shall be entitled to attend formal classes at the school,
to remain at the school and in her current grade
and to be taught, to
learn and to be examined.’
_______________
L V THERON
JUDGE OF APPEAL
Appearances
Appellant: M
Chaskalson SC (with BS Mene)
Instructed by:
State Attorney,
Bloemfontein
Amicus curiae: N
Rajab-Budlender
Instructed by:
Centre for Child
Law, Pretoria
University of Free
State Law Clinic,
Bloemfontein
Respondents: N
Snellenburg
Instructed by:
Horn & Van
Rensburg Attorneys,
Bloemfontein
1
The
decision of the high court is reported as
Welkom High School &
another v Head, Department of Education, Free State Province and
Another Case
2011 (4) SA 531
(FB).
2
Head
of Department, Mpumalanga Department of Education & another v
Hoërskool Ermelo & another
2010 (2) SA 415
(CC) para
56.
3
Section
20(1(
a
) of the Act.
4
Section
16(1) of the Act.
5
Para
56.
6
Section
(16)(1) and (3) of the Act.
7
Section
8(1) of the Act.
8
Section
8(2) of the Act.
9
Oudekraal
Estates (Pty) Ltd v City of Cape Town & others
2004 (6) SA
222
(SCA).
10
Para
32.
11
Kouga
Municipality v Bellingan & others
2012 (2) SA 95
(SCA)
12
Para
12.
13
Ibid.
14
Metal
and Electrical Workers Union of South Africa v National Panasonic Co
(Parow Factory)
1991
(2) SA 527
(C) at 530C-D. See also
Oudekraal
Estates (Pty) Ltd v City of Cape Town & others
2004
(6) SA 222
(SCA) para 35 where this phrase from
Metal
and Electrical Workers Union
was
quoted with approval. See generally H W R Wade and C F Forsyth
Administrative Law
9 ed (2004) at 302.
15
Kouga
Municipality v Bellingan & others
2012 (2) SA 95
(SCA) para
19.
16
Section
172(1) of the Constitution reads:
‘
When
deciding a constitutional matter within its power, a court –
(a) must declare
that any law or conduct that is inconsistent with the Constitution
is invalid to the extent of its inconsistency…’.
17
Mkangeli
& others v Joubert & others
2001
(2) SA 1191
(CC).
18
Para
10.
19
S
v Mhlungu & others
[1995] ZACC 4
;
1995 (3) SA 867
(CC) para 59;
Zantsi v
Council of State, Ciskei & others
[1995] ZACC 9
;
1995 (4) SA 615
(CC) paras
2-5;
Ex Parte Minister of Safety and Security & others: In Re
S v Walters & another
[2002] ZACC 6
;
2002 (4) SA 613
paras 64-67.
20
For
a similar situation see
Queenstown Girls High School v MEC,
Department of Education, Eastern Cape & others
2009 (5) SA
183
(Ck) para 13.
21
Welkom
High School & another v Head, Department of Education, Free
State Province and Another Case
2011 (4) SA 531
(FB) para 36.
22
Section
7(2) of the Constitution reads:
‘
The
state must respect, protect, promote and fulfil the rights in the
Bill of Rights’.
23
Oudekraal
Estates (Pty) Ltd v City of Cape Town & others
2004 (6) SA
222
(SCA) para 26.
24
Ibid.
See also
Judicial Service Commission v Cape Bar Council (Centre
for Constitutional Rights as amicus curiae)
(818/11)
[2012]
ZASCA 115
para 13 and the cases cited therein.
25
Head
of Department, Mpumalanga Department of Education & another v
Hoërskool Ermelo & another
2010 (2) SA 415
(CC) para
56.
26
Fedsure
Life Assurance Ltd & others v Greater Johannesburg Transitional
Metropolitan Council & others
[1998] ZACC 17
;
1999 (1) SA 374
(CC) para 56.
27
Minister
of Education, Western Cape & others v Governing Body, Mikro
Primary School & another
2006 (1) SA 1
(SCA) para 32.
28
Minister
of Education, Western Cape & others v Governing Body, Mikro
Primary School & another
2006 (1) SA 1
(SCA) para 43.
29
Welkom
High School & another v Head, Department of Education, Free
State Province and Another Case
2011 (4) SA 531
(FB) para 45.