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[2023] ZAECBHC 7
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Mabandla v Member of the Executive Council for the Department of Education - Eastern Cape and Another (224/2023) [2023] ZAECBHC 7 (27 April 2023)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, BHISHO)
CASE
NO. 224/2023
NOT REPORTABLE
In
the matter between:
TANDISWA
NOMSISI MABANDLA
Applicant
and
MEMBER
OF THE EXECUTIVE COUNCIL
FOR
THE DEPARTMENT OF EDUCATION –
EASTERN
CAPE
First
Respondent
THE
HEAD OF DEPARTMENT FOR THE
DEPARTMENT
OF EDUCATION –
EASTERN
CAPE
Second
Respondent
JUDGMENT IN RESPECT OF
URGENT APPLICATION FOR INTERIM RELIEF UNDER PART A
HARTLE J
[1]
The applicant is a
displaced educator, for want of a better description. In 2018 she was
appointed as a permanent principal at the
Gobintsasa Primary School
in Ntabankulu. In 2020 the school was closed for operational reasons
and the learners moved to the Khetani
Primary School, where she too
was initially moved. She was however subsequently deployed at the
Bagqozini Primary School, also
in Ntabankulu, in a diminished
capacity.
[2]
She claims that neither
she nor the governing body of her disestablished school were afforded
an opportunity to make representations
as contemplated in the
Guidelines for the
Rationalisation of Small or Non-viable Schools
issued by the Directorate Rural Education under the Education
Department (“The 2009 Guidelines”). Her real issue with
the process that was adopted relating to the school’s
unfortunate closure however pertains for present purposes to her own
employment interests that were indisputably impacted thereby.
The Guidelines, for example, behoved all role players in the
rationalisation process to “
ensure
compliance with all obligations applicable to labour law”, and
to give recognition
inter
alia
to the
position of principals in consequently placing them in suitable posts
elsewhere arising from the rationalisation process.
[3]
More than two years
after the applicant became “displaced” pursuant to the
loss of her post for the operational reasons
applicable to her
disestablished school, she was eventually called to a meeting of
circuit managers in the Alfred Nzo West district
of the ECDoE (“the
department”), under which administrative district Ntabankulu
falls, in January 2023, and asked to
choose a school amongst five
specific schools named and identified by the department itself where
she might wish to be placed as
a principal
in
lieu
of the
principal post lost to her by the rationalization process.
[4]
She alleges that this
meeting was held pursuant to a memorandum issued by the office of the
acting DDG: Corporate Services, dated
6
th
December 2022 (“the Memorandum”) that concerned the
filling of “promotional posts” subject to a management
plan advertised in a 2022 bulletin that were never filled within the
prescribed time frame. The Memorandum
inter
alia
(in paragraph
8 thereof) invited the relevant role players in the department to
fill principal posts “by placing principals
from closed
schools.” (This appears to be a reference to schools closed due
to operational requirements). The applicant’s
preferred choice
amongst the five possibilities held up to her was the Khetani Primary
School.
[5]
Having made her
election, the managers raised no objection to her choice or alerted
her to any difficulties that pertained thereto,
most especially as to
her competence to be placed at the Khetani Primary School, and she
assumed that it was a
fait
accompli,
as it
were, that she would consequently be appointed principal there.
[6]
On 1 March 23 she
learned through a principals’ WhatsApp group that Khetani
Primary School, her choice of placement to remedy
the disadvantage to
her by the rationalization process, was being “profiled”.
In education parlance this apparently
means that the school has been
identified as one with a vacant post that requires to be filled. Once
“profiled,” a
formal advertising of the identified vacant
post ensues which is then followed by the customary open recruitment
processes.
[7]
Although nothing formal
had been communicated to her since the January 2023 meeting after
confirming her expressed preference, she
claims to have entertained a
legitimate expectation that she would be appointed to the vacancy at
the Khetani Primary School offered
to her at the meeting, which she
understood to be on the basis provided for in the Memorandum. When
she heard that the post earmarked
for her had however been “profiled”
this created a concern for her that her expectation of being
appointed to the post
would be prejudiced.
[8]
Cautiously
she approached an attorney who invited the Department of Education
(within 30 days of 16 March 2023)
[1]
to clarify her employment status, more particularly in relation to
her reasonable expectation that she would be placed at the Khetani
Primary School in the principal’s post, which now appeared to
be under threat according to the information gleaned by her
on the
principals’ WhatsApp group. Even before engaging the services
of an attorney however, she also sought to take up her
compromised
situation with at least two circuit managers who she claims gave her
the “run around” rather than any positive
affirmation of
her placement in the chosen post.
[9]
In any event, it was
brought to her attention on 6 April 2023 that the Khetani Primary
School principal’s post had certainly
been included and
advertised in the Open Post Bulletin for Principals: Volume 1 of 2023
dated 27 March 2023 (“the Bulletin”),
with the closing
date for submission of applications for all the advertised posts
being on 24 April 2023.
[10]
This prompted the
present application which was launched on an urgent basis on the
pivot, so to speak - at least in respect of the
relief claimed under
Part A, of the closing date of 24 April 2023, in which the applicant
asks this court to interdict the
respondents from recruiting and
appointing prospective candidates to
the
vacant
posts
(
sic
)
reflected in the Bulletin pending further relief sought under Part B
compelling them to comply and adhere to paragraph 8 of the
Memorandum
dated 6 December 2022 and to give effect to her preference by
furnishing her with a letter of appointment as principal
of that
school.
[11]
Notwithstanding the
provisions of paragraph 8 of the Memorandum, the applicant’s
points out the further obligation on the
respondents to follow the
provisions of the Personnel Administrative Measures (“the
Measures”) promulgated under the
Employment of Educators Act.
1988, which,
inter
alia
, require that
before a post is advertised, all vacancies that arise at educational
institutions must be offered to serving educators
displaced as a
result of operational requirements as a first step. Secondly, every
attempt is to be made to accommodate such displaced
educators in
suitable vacant posts at educational institutions or offices. The
Measures provide further that, although all vacancies
(required to be
filled) are to be advertised, the department may publish a closed
vacancy list. In such an event, the procedures
contained in the
resolution dealing with the rationalisation and deployment of
educators in the provisioning of educator posts
are to apply. (I
digress to emphasise that the respondents accept that these are the
necessary processes, as well as the fact that
that was the peculiar
deference to have been afforded to the applicant under all the
circumstances.)
[12]
The applicant
articulated the harm that would befall her if the recruitment process
with regard to the post earmarked for her is
open, rather than closed
and if the recruitment process initiated by the publishing of the
open principal’s bulletin is permitted
to take its course. In
such event, she will have to compete with other interested applicants
and might then not be successful.
She claims that worst case
scenario, she might ultimately be left without a job and indeed, she
will lose the opportunity to be
placed at the school of her choice if
the vacancy is filled by another incumbent in an open recruitment
process. This, so she submitted,
will be obviously detrimental to her
interests and employment rights, particularly since the 2009
Guidelines and the Measures provide
for her to be placed without
following the normal recruitment processes. Moreover, as far as she
is concerned, the placement at
the Khetani Primary School according
to the processes indicated by the Memorandum, the Measures and the
2009 Guidelines had “accrued”
to her.
[13]
In
the lead up to the application being heard before me, the respondents
gave an undertaking to extend the closing date for the
submission of
applications in terms of the Bulletin until today,
[2]
in effect recognizing in my view that without the court’s
intervention she would both be in a predicament and would not achieve
substantial redress down the line if the matter were to be heard in
the ordinary course.
[3]
This
concession by the respondents was incorporated in the order made by
my colleague who postponed the matter to the opposed roll
this week
whilst the parties exchanged further papers.
[14]
The respondents opposed
the application, firstly citing a lack of urgency.
[15]
They
claim further in answering affidavits filed on their behalf, to have
accurately followed all rationalization procedures
vis-à-vis
the applicant’s interests implicated thereby, adverting to the
very same meeting she says management held with her in January
2023
when she was asked to choose her school. It transpires though,
according to the deponents (who Mr. Metu complained do not
appear to
be properly authorised to depose on behalf of the cited
respondents)
[4]
that her choice
could not be acted upon essentially because she does not qualify for
placement at the Khetani Primary School.
[16]
In his respect they
revealed for the first time in the answering papers that:
“
When
the circuit managers of the Alfred Nzo West district started the
verification and consultation process in line with the applicable
protocols of rationalisation it transpired from the Human Resources
section of the district that applicant is a level P1 principal
and
that the school which she has shown interest into is a level 2 in
terms of post grading.”
[17]
They assert that due to
this “predicament”, she could not be placed at the
Khetani Primary School as this would have
amounted to “a
promotion without having followed recruitment processes” and
add that
“
a
placement only occurs in respect of posts at the same salary level
and it must be horizontal in nature.” They suggest that
the
solution available to her, forgetting the deference admittedly owing
her, is to compete for the post in an open recruitment
process.
[18]
Assuming there is any
merit in this argument (which I do not have to decide for present
purposes) they must evidently have known
since 6 December 2022 that
the Khetani Primary School required a principal at a level 2 grading,
this apparent from a Final Post
Establishment conducted for the
present year for the “Khetani Junior Secondary School”
put up by them as Annexure “LM-1”
to their answering
papers, yet had no qualms including the school as one of five that
she might (on their version) horizontally
transfer to.
[19]
The respondents have
not taken this court into their confidence regarding the nature of
the verification and consultation process
the department’s
officials allege were followed, or when this process was undertaken
in relation to the January 2023 meeting.
Further no basis
appears for the assertion (as a standard) that a placement only
occurs in respect of posts and the same salary
level or that it is
required to be “horizontal in nature”. Indeed, the
department still has a lot of explaining
to do and the remedying of
the applicant’s displacement still hangs starkly in the air.
The question begs itself, for example,
why the department’s
managers offered the school as an option to the applicant in the
first place. Further, assuming there
to be a valid basis for the
current stance adopted by the department, the additional question
arises why she was not informed sooner
of this supposed dilemma.
Indeed, despite the launch of these proceedings and the clear fact
that she has been legally represented
at least since 16 March 2023,
the circuit manager of the district, identified as M Gabela,
privately addressed her in a letter
dated 21 April 2023 (after the
issue of the application) as follows:
“
TO:
MRS MABANDLA
FROM:
CIRCUIT MANAGER
SUBJECT:
REJECTION OF YOUR CHOICE
in
respect to your choice about the school you preferred to be placed
at, which is Khetani Primary School, upon making indepth enquiry
from
our HR section about the grading of schools, we were reliable
informed that your previous closed school (Gobintsasa PS) was
graded
P1 whilst your school of choice (Khetani P2) is graded P2.
By
implication your choice is tantamount to a promotion which by
procedure you are supposed to apply and follow all the due process.
We
believe the above information and explanation will inform your future
steps to take. Our sincere apologies for the late response
due to the
process of enquiries.” (Sic)
[20]
When
the matter was argued before me I queried from Mr. Mayekiso who
appeared for the respondents whether by their formal response
privately addressed to the applicant they had not in fact capitulated
to the interim relief sought under part A. He did not argue
against
such an interpretation but was not in agreement that the respondents
should pay the costs of the application under this
part. In this
respect he submitted that the relief sought by the applicant had been
cast too widely in the notice of motion. He
lamented the fact that
the Bulletin involved hundreds of posts, all of which would (and had)
been held hostage so to speak by the
applicant’s parochial
problem.
[5]
As far as he was
concerned, if the relief sought in the notice of application had been
suitably curtailed, his clients might have
agreed to an interim order
that isolated out the vacant post at the Khetani School. (Ironically
though if his client’s defence
is taken at face value the
concession is inconsistent with the department’s stance that
the applicant must make her application
in terms of the Bulletin and
openly compete for the post at the Khetani Primary School if she
entertains any hope of being placed
there.) The simple answer though
is that in the same way the department was able to publish an
addendum, it could also have
withdrawn
the entire Bulletin and republished a new one, excluding the
contentious principal’s post at the Khetani Primary School.
[21]
Mr. Mayekiso did not
forcibly persist in his argument that the application should flounder
for want of urgency, neither am I inclined
of the view that any merit
exists in the points taken by the respondents on this issue. It is
plain that the applicant was backed
into a corner with the date for
submissions looming, and that she took reasonable steps to ascertain
her position before adopting
a litigious approach.
She
further explained that once it appeared to her that it would be
necessary to seek the court's intervention she had to consult
with
counsel. The distance between Ntabankulu and Mthatha where her
counsel operates from, and her peculiar financial imperatives,
caused
a slight delay in her attorneys preparing the present application, as
also the fact that it was Easter. Ultimately the certificate
of
urgency was presented to the duty judge on 17 April 2023.
Against
all these exigencies, the respondents couldn’t even have been
bothered to inform her attorney after asking on her
behalf what her
official status was of their “decision,” obviously taken
after the fact and evidently
because
of
the urgent
litigation.
[22]
It seems to me
therefore that the applicant has established both urgency and the
relevant requirements for the grant of an interim
interdict.
The
prima
facie
right is
fairly apparent from the department’s manager’s handling
of the matter and reasonable impression created by
them that the
principal’s post at the Khetani Primary School was able to be
reserved for her. The after-the-fact purported
justification for why
she cannot now be appointed to that post, is to my mind a mere red
herring and does not change what was on
the horizon for her as of 6
April 2023 when she first learned that the post had been published in
the Bulletin.
[23]
The harm the
applicant will suffer by the open recruitment process has been stated
above. The alleged prejudice to the respondent
thereby is a fallacy.
It can easily exclude the school from its recruitment processes
currently underway pursuant to the Bulletin.
For the rest, and
concerning the processes going forward, the applicant’s
entitlement to be placed at a school after having
become displaced
does not now come to an end because of the purported justification
thrown up by the respondents. Indeed, the department
has a lot to
explain and must of necessity still place the applicant, a legal
obligation they were required to meet nearly three
years ago already.
[24]
As I
indicated above it is unnecessary for me to decide for present
purposes whether the department was entitled to take the “decision”
which it has purported to or the merits of that decision. That
is no doubt something that the applicant will call into scrutiny
under the part B relief sought given its impact on the question
whether the Khetani Primary School should have been “profiled”
at all under the circumstances and whether the applicant is entitled
to insist that the process commenced by the January 2023 meeting
be
given effect to. In the meantime, and in order to preserve her
rights, it appears to me to be necessary to interdict and
restrain
the open recruitment process with regard to the still available
vacant principal’s post at her desired school from
proceeding
in the meantime.
[25]
The parties did not
address me regarding the other four choices held up to the
applicant. The thought occurs to me that I
should have asked if
those schools were also profiled and those principal’s posts
mentioned in the Bulletin. Given
the change of circumstances by
virtue of the respondents’ recent purported “decision”
and the supposed elimination
of the applicant’s preference, the
parties would certainly in my view be entitled to approach the court
to amplify the terms
of my order granted herein to preserve her
position regarding the other four options that she may have to
consider depending on
the determination of the applicant’s
application under Part B.
[26]
I take Mr. Mayekiso’s
point that the relief as stated in the notice of motion on the face
of it potentially causes confusion
in the sense that the applicant by
the relief she claims purports to persuade this court to interdict
and restrain the respondents
from proceeding with the recruitment of
all
principal posts across the province advertised in the Bulletin
whereas her only concern for present purposes is with the post for
the Khetani Primary School. It was clearly never the applicant’s
intention to cause havoc or the pandemonium contended for
on behalf
of the respondents. The matter is easily solvable by simply taking
the Khetani School out of the equation for present
purposes. I will
tailor the relief accordingly under the mantle of prayer 7 for
“further and/or alternative relief.”
[27]
Mr. Metu who appeared
on behalf of the applicant requested me to deal with the issue of
costs presently, rather than leaving them
for determination under
Part B given the respondents’ censorious conduct by keeping the
applicant on a string and by paying
lip service to their legal
obligation (going back more than two years) to have placed her back
in the system or at least to have
meaningfully addressed the fallout
of the rationalisation process concerning her. He further urged upon
me to grant costs on the
punitive scale and possibly even
de
bonis propriis
against the managers concerned who have ridden roughshod over her
rights and acted in disregard of her legal entitlement, quite
insensitively at that. Whilst I agree with his characterization
of their poor handling of the matter and that the applicant
ought not
to be out of pocket by virtue of the present proceedings that could
have been avoided, it is not clear what role each
of the circuit
managers played, or didn’t, in the whole fiasco. For now,
I will peg the costs at the attorney and client
scale, but I agree
that the three managers named in the applicant’s founding
affidavit should be called upon to show cause
why such a punitive
costs orders should not be made against any, or all, of them in the
peculiar circumstances. I make provision
for that in the order below.
[28]
In the result, I grant
the following order:
1.
The respondents are
interdicted
and
restrained, pending the finalisation of the relief sought under Part
B, from proceeding with the recruitment process including
but not
limited to shortlisting, interviewing, selection of prospective
incumbents and their placement in the vacant principal’s
post
at the Khetani Junior Secondary School advertised in the Open Post
Bulletin for principals: Volume 1 of 2023 dated 27 March
2023.
2.
The respondents are
directed to pay the costs of the proceedings under Part A, including
the reserved costs of 20 April 2023 on
the attorney and client scale.
3.
The three circuit
managers of the Alfred Nzo West District of the Eastern Cape
Department of Education, namely Messrs Zondani and
Gabhela, and Mrs.
Nonkonyana, are called upon to file affidavits within 10 days of the
date of this order to show cause why they
should not be ordered to
pay costs
de bonis
propriis
of the
proceedings under Part A.
4.
The determination of
their possible liability on this basis is to stand over for
determination under Part B.
5.
The applicant is
directed to file her amended Notice of Motion, if so advised, and any
supplementary affidavit pertaining to the
relief sought under Part B,
within 10 days of the date of this order.
B HARTLE
JUDGE OF THE HIGH
COURT
DATE OF APPLICATION: 26
April 2023
DATE OF JUDGMENT: 27
April 2023
Appearances:
For
the Applicant:
Mr.
B Metu
instructed
by
O
Mjuleka Attorneys Inc.,
King William’s
Town
Khaya Dywanisi
Attorneys,
care of
(ref. Mr. Mjuleka)
For
the Respondents:
Mr.
M Mayekiso
instructed
by
the
State Attorney,
East London
(ref. Mr. Ngcama)
[1]
There
was evidently no haste at the time and an expectation that the
situation could be resolved informally by the department.
[2]
Which
extension they effected by the simple
fiat
of publishing an addendum.
[3]
In
my view, although not invoking the exact phraseology implicated by
the provisions of Rule 6 (12) (b), the applicant fully set
out the
circumstances
that justified the hearing of the application on an urgent basis as
well as the basis on which she contended that she would not
obtain
substantial redress at a hearing in the ordinary course.
[4]
The
point was raised from the bar by Mr Metu and was not a matter I had
to decide under Part A. in any event the respondents
were not
afforded an opportunity to deal with it.
[5]
In
this regard he raised the fact that the undertaking given by the
respondents entailed extending the deadline for submissions
pursuant
to the Bulletin until 28 April 2023.