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[2022] ZAKZPHC 44
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Governing Body of Thuthukani Special School v MEC of the KwaZulu-Natal Department of Education and Others (2550/2021P) [2022] ZAKZPHC 44 (26 August 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: 2550/2021P
In
the matter between:
THE
GOVERNING BODY OF THUTHUKANI FIRST
APPLICANT
SPECIAL
SCHOOL
THUTHUKANI
SPECIAL SCHOOL
SECOND
APPLICANT
and
THE
MEC OF THE KWAZULU-NATAL
DEPARTMENT
OF EDUCATION
FIRST
RESPONDENT
THE
HEAD OF THE KWAZULU-NATAL
DEPARTMENT
OF EDUCATION SECOND
RESPONDENT
THE
KWAZULU-NATAL DEPARTMENT
EDUCATION
THIRD
RESPONDENT
MP
NENE
FOURTH
RESPONDENT
ORDER
The
following order is granted:
1.
The decision
of or on behalf of the second and/or third respondents to appoint,
alternatively transfer, the fourth respondent to
the educator
establishment at the second applicant is reviewed and set aside.
2.
The second
and/or third respondents are hereby directed, within 30 calendar days
of this order, to commence with the due process
as set out in the
Employment of Educators Act 76 of 1998
and the Personnel
Administration Measures, as contained and consolidated in GN 170,
published in the
Government
Gazette
39684 of 12 February 2016, and to follow due process as set forth in
the Act, with regard to the appointment of educators for the
vacant
posts on the second applicant’s educator establishment.
3.
The
applicants’ are given leave to supplement their papers and to
approach this court for further relief should the first
to third
respondents fail to fill all 16 vacant posts at the second applicant.
4.
The second and
third respondents are ordered to pay the costs of the application,
jointly and severally, the one paying the other
to be absolved,
including the costs of the senior counsel, where so employed.
JUDGMENT
Bezuidenhout
AJ
[1]
The first applicant, the Governing Body of Thuthukani Special School
and the second
applicant, Thuthukani Special School, brought an
application seeking inter alia to review and set aside the decision
of or on behalf
of the second respondent, the Head of the
KwaZulu-Natal Department of Education and/or the third respondent,
the KwaZulu-Natal
Department of Education, to transfer the fourth
respondent, Ms M P Nene to the educator establishment of the second
applicant.
[2]
The applicants also seek an order directing the first and the second
respondents to
commence with and to follow the due process as set out
in the Employment of Educators Act 76 of 1998 (‘the EEA’)
for
the appointment of educators for the vacant posts on the second
applicant’s educator establishment.
[3]
The application came about as a result of the second and/or the third
respondents
placing the fourth respondent as an educator in a vacant
post at the second applicant. In a letter from the third respondent’s
human resources section dated 28 January 2021, received by the fourth
respondent on 15 February 2021, she was informed of the following:
(a)
The department
had her name on its list of excess or additional educators declared
in terms of HRM Circular 61 of 2020.
(b)
In
line with the EEA, the department was placing her in one of its
schools with a vacant post for operational reasons.
(c)
The details of
the second applicant were supplied, together with the date of
assumption of duty of 1 February 2021.
(d)
The fourth
respondent was instructed to report to the school without fail and to
fill in and submit the assumption of duty forms
within three days.
(e)
The circuit
manager would facilitate her placement in the post.
The
letter was signed by the District Director, Dr D S Chonco. It also
appears from the letter that the fourth respondent was attached
to
the Mabhensa Primary School.
[4]
The third respondent addressed a further letter, also dated 28
January 2021, to the
principal and the School Governing Body of
Mabhensa Primary School, informing them that the department had
received the name of
an excess or additional educator (presumably the
fourth respondent) declared by them in terms of HRM Circular 61 of
2020. In line
with the EEA, the educator had been placed in the
second applicant’s school. They were furthermore instructed to
release
the fourth respondent and were informed that the circuit
manager will facilitate the actual movement to the indicated school.
The
letter was likewise signed by the District Director, Dr D S
Chonco.
[5]
The fourth respondent arrived at the second applicant’s school
on 17 February
2021 and exhibited the placement letter of 28 January
2021, referred to above. It was attached to the founding affidavit as
annexure
‘T6’. There was no indication in the letter as
to whether the placement was temporary or permanent. It also did not
appear from the letter whether the placement was for a stated period
or not. Although reference is made to a vacant post, there
is no
indication in respect of which vacant post the fourth respondent was
placed at the second applicant. The fourth respondent
was advised to
report to the district office as the placement letter was unlawful
and irregular.
[6]
It is inter alia the applicants’ case that the placement letter
is invalid for
the following reasons:
(a)
The provisions
of section 6(3)
(a)
of the EEA
have not been adhered to;
(b)
No opportunity
was afforded to the first applicant, as far as its rights, as set out
in section 6(3)
(a)
and
(c)
of the EEA, are concerned;
(c)
The provisions
of section 6(3)
(d)
,
(f)
,
(g)
,
and
(l)
of the EEA have been disregarded;
(d)
If it was
alleged that the transfer was a temporary transfer, the provisions of
sections 6B, 7(2)
(b)
,
8(2) and/or 8(5) and 8(6) of the EEA are alleged not to have been
followed.
[7]
In terms of
section 5A(1)
of the
South African Schools Act 84 of 1996
(‘SASA’),
‘
The
Minister
may,
after consultation with the Minister of Finance and the
Council
of Education Ministers
, by regulation
prescribe minimum uniform norms and standards for—
(
a
)
. . .
(
b
)
capacity of a
school
in respect
of the number of
learners
a
school
can
admit. . .’
These
norms and standards contemplated must provide, in respect of the
capacity of a school, inter alia for the number of teachers
and the
class size.
[1]
[8]
Section 58C(6)
of SASA provides that:
‘
The
Head
of Department
must—
(
a
)
in accordance with the norms and standards
contemplated in
section 5A
determine the minimum and
maximum capacity of a
public school
in relation to
the availability of classrooms and
educators
, as well as
the curriculum programme of such
school
; and
(
b
)
in respect of each
public school
in
the province, communicate such determination to the chairperson of
the
governing body
and the
principal
, in
writing, by not later than 30 September of each year.’
[9]
The governing body of a public school is required to ‘promote
the best interests
of the school and strive to ensure its development
through the provision of quality education for all learners at the
school’.
[2]
[10]
The employment and transfer of educators is governed by the EEA. In
terms of
section 3(1)
(b)
of the EEA, the second respondent ‘shall be the employer of
educators in the service of the provincial department of education
in
posts on the educator establishment of that department for all
purposes of employment’. And for the purposes of creating
posts
‘on the educator establishment of a provincial department of
education, the Member of the Executive Council shall be
the employer
of educators in the service of that department’.
[3]
[11]
Section 5(2)
of the EEA provides that,
‘
The
educator establishment of any public school, further education and
training institution, departmental office or adult basic
education
centre under the control of a provincial department of education
shall, subject to the norms prescribed for the provisioning
of posts,
consist of the posts allocated to the said school, institution,
office or centre by the Head of Department from the educator
establishment of that department
.’
[12]
The relevant provisions of
section 6
of the EEA, which deal with the
powers of employers, provide as follows:
(1) Subject
to the provisions of this section, the appointment of any person, or
the promotion or transfer of any educator—
(
a
)
. . .
(
b
)
in the service of a provincial department of
education shall be made by the Head of Department.
(2)
. . .
(3)(
a
)
Subject to paragraph (
m
), any appointment, promotion or
transfer to any post on the educator establishment of a public school
may only be made on the recommendation
of the governing body of the
public school and, if there are educators in the provincial
department of education concerned who
are in excess of the educator
establishment of a public school due to operational requirements,
that recommendation may only be
made from candidates identified by
the Head of Department, who are in excess and suitable for the post
concerned.
(
b
)
. . .
(c
)
The governing body must submit, in order of preference to the Head of
Department, a list of—
(i)
at least three names of recommended candidates: or
(ii)
fewer than three candidates in consultation with the Head of
Department.
(
d
)
When the Head of Department considers the recommendation contemplated
in paragraph (
c
), he or she must, before making an
appointment, ensure that the governing body has met the requirements
in paragraph (
b
)
.
(
e
)
. . .
(
f
)
Despite the order of preference in paragraph (
c
) and subject
to paragraph (
d
), the Head of Department may appoint any
suitable candidate on the list.
(
g
)
If the Head of Department declines a recommendation, he or she must—
(i)
consider all the applications submitted for that post;
(ii)
apply the requirements in paragraph (
b
) (i) to (iv);
and
(iii)
despite paragraph (
a
), appoint a suitable candidate
temporarily or re-advertise the post. . .’
[13]
In terms of
section 6B
of the EEA,
‘
The
Head of Department may, after consultation with the governing body of
a public school, convert the temporary appointment of
an educator
appointed to a post on the educator establishment of the public
school into a permanent appointment in that post without
the
recommendation of the governing body
.’
[14]
Section 7(2)
(b)
of the EEA provides that a person may be
appointed ‘in a temporary capacity for a fixed period, whether
in a full-time, in
a part-time or in a shared capacity’.
[15]
The relevant provisions of
section 8
of the EEA, which deal with the
transfer of educators, read as follows:
‘
(1) Subject
to the provisions of this Chapter—
(
a
)
. . .
(
b
)
. . .
(
c
)
the Head of Department may transfer any educator
in the service of the provincial department of education to
any other
post in that department.
(2) Subject
to subsections (4) and (5), no transfer to any post on
the educator establishment of a public school
shall be made unless
the recommendation of the governing body of the public school has
been obtained.
(3) .
. .
(4) A
recommendation contemplated in subsection (2) shall be made
within two months from the date on which
a governing body or council
was requested to make a recommendation, failing which the Head of
Department may make a transfer without
such recommendation.
(5) The
Head of Department may, without a recommendation contemplated
in subsection (2), transfer an educator temporarily
for a stated
period from a post at a public school to a post at another public
school.
(6) An
educator referred to in subsection (5) shall return to his
or her previous post at the end of the period
contemplated in that
subsection. . .’
[16]
The first applicant, in its founding affidavit, also referred to the
Personnel Administration
Measures (‘PAM’) which were
promulgated by the Minister of Education in GN 222 of 18 February
1999.
[4]
PAM determines the
terms and conditions of employment of educators. It should be noted
that the Minister of Basic Education issued
a consolidated PAM on 12
February 2016.
[5]
All references
in this judgment will be made to the consolidated PAM.
[6]
Paragraph B.5 of PAM sets out the requirements for the advertising
and filing of educator posts.
[17]
Paragraph B.5.1.2 of PAM requires that ‘any appointment or
transfer to any post on the
educator establishment of a public school
may only be made on the recommendation of the SGB. . .’.
[7]
[18]
The requirements for the advertisements of vacant posts of educators
is set out in paragraph
B.5.2.1 of PAM. In terms of paragraph
B.5.2.2, ‘[a]
ll
vacancies in public schools are to be advertised in a
gazette
,
bulletin or circular, the existence of which must be made public by
means of an advertisement in the public media both provincially
and
nationally’
.
Paragraph B.6 of PAM, which deals with the ‘transfer of serving
educators in terms of operational requirements’, also
sets out
the procedure to be followed in filling vacancies in cases where a
department had educators in addition to a staff establishment.
All
vacancies are required to be advertised.
[8]
[19]
In line with the provisions of
section 5(2)
of the EEA, the second
applicant was issued a post provisioning certificate for the year
2020, in terms of which the second applicant
was allocated 34
permanent posts. In 2021, a post provisioning certificate was issued
in terms of which the second applicant’s
permanent posts were
increased to 49. At the time of the institution of the current
application, on 19 April 2021, the second applicant
had 16 vacant
substantive educator posts which would increase to 17 from 10 July
2021 due to a resignation.
[20]
It is the applicants’ case in respect of the relief sought in
paragraph 2 of the notice
of motion, that the second respondent is
aware of the vacant posts at the second applicant, and has failed to
address the issue
by following the procedures set out in the EEA and
PAM.
[21]
The second applicant is, as its name indicates, a special school
which provides education to
learners who are described as ‘Severe
Profound Intellectually Disabled’, with the intellectual
development of a person
between the age of one and eight years.
Learners suffer inter alia from visual impairment, hearing
impairment, autism, cerebral
palsy, Down Syndrome and some are
physically disabled. The applicants stated that as a result of
these factors, it is crucial
that the vacant educators posts at the
second applicant be filled with adequately skilled educators which
are in excess in main
stream education.
[22]
The applicants allege that the second and/or third respondents are
obliged to follow the procedures
set out in the EEA and PAM when
filling vacant posts. It was stressed that it is important to
advertise the posts to enable all
suitably qualified educators to
apply, and to afford the first applicant the opportunity to consider
applicants and/or candidates
identified by the second respondent who
are in excess and suitable for the post, and to submit a list of
names of recommended candidates
to the second respondent, as provided
for in the EEA. Reference was made in particular to
sections
6(3)
(a)
and 8(2) of the EEA.
[23]
The first to third respondents (collectively referred to as the
respondents) in their combined
opposing affidavit denied the
allegations. They stated, inter alia, that the second respondent may,
in terms of
section 8(5)
of the EEA, temporarily transfer an educator
for a stated period from a post at a public school without the
recommendation of the
school governing body or without advertising
such a post.
[24]
The respondents also alleged that the second respondent delegated its
authority to identify excess
educators due to operational
requirements, and to place such excess educators, to its district
offices. Importantly, the respondents
alleged that the process of the
placement of excess educators was governed by the EEA and Collective
Agreement 4 of 2016
[9]
(‘the
Agreement’) concluded between the National Department of
Education and the recognized trade unions of educators,
under the
auspices of the Education Labour Relations Council. The Agreement’s
terms applied to all educators employed by
the department,
specifically excess educators, and is informed by the EEA. The
applicants were not party to the Agreement.
[25]
The Agreement formed part of the supplementary record filed by the
respondents.
[26]
In terms of paragraph 4 of the Agreement, the parties would request
the Minister of Education
to amend paragraph B.6 of PAM by including
what was contained in a document attached as annexure ‘A’.
Amendments were
proposed to paragraph B.6.5, which dealt with
the procedure to be followed in filling vacancies where a department
has educators
in addition to a staff establishment.
[27]
In terms of paragraph B6.5.1 of annexure ‘A’, the
employer may transfer an educator
in terms of
section 6
and/or
section 8
of the EEA if the educator ‘is in addition to another
post in the department that matches his/her skills and experience’.
In terms of paragraph B.6.5.2 of annexure ‘A’ the
employer may, in terms of
section 6(3)
and/or
section 8(2)
of the EEA
‘only transfer an educator permanently to a school on the
recommendation of the school governing body of such
school’.
[28]
Paragraph B.6.5.4 of annexure ‘A’ provides that an
employer reserved a right to make
a choice on behalf of the educator,
should he/she fail to do so. It is also required that ‘[t]he
employer shall, after receiving
the choices of the educators, submit
such to the school governing body for consideration and
recommendation within 2 months of
the request’.
[10]
[29]
The changes proposed in annexure ‘A’ effectively replaces
the obligation to advertise
vacant posts as set out in paragraph
B.6.5.1 of PAM.
[30]
Despite the respondents’ apparent reliance on the Agreement,
the respondents provided no
information or proof that the Minister of
Basic Education in fact consented to the amendment proposed in
annexure ‘A’
or affected such amendment. Counsel for the
applicants referred me to
Federasie
van Beheerliggame van SA Limpopo v Departement van Onderwys,
Limpopo
[11]
where the following was held by De Vos J:
‘
Die
Minister van Onderwys kan ‘n kollektiewe ooreenkoms se
bepalings verhef tot regulasies. Ten spyte daarvan dat die bepalings
van ‘n kollektiewe ooreenkoms tot regulasies verhef kan word is
namens die applikant aan die hand gedoen dat sodanige feit
…
nie kan afbreuk doen aan die bepalings van ‘n statuut en in
hierdie geval spesifiek die [bepalings] van artikels
6(3)(a) en 8(2)
van die Indiensnemings Wet waarkragtens die oorplasing van ‘n
opvoeder na ‘n openbare skool slegs gedoen
kan word op die
aanbeveling van ‘n beheerliggaam van ‘n bepaalde skool
nie. Ek meen dat hierdie argument korrek moet
wees, nie alleen omdat
die betrokke wet natuurlik hoër rangeer … as die
kollektiewe ooreenkoms nie, maar bloot omdat
die partye wat nie
betrokke was by die kolletiewe ooreenkoms nie, ook sekere regte
verwerf het uit die betrokke wetgewing en geregtig
is om daarop te
steun.’
The
respondents’ reliance on the Agreement is clearly misplaced. It
is furthermore clear from the papers that the respondents
failed to
even comply with the requirements set out in annexure ‘A’,
never mind what is set out in PAM and the EEA.
[12]
[31]
It is however the respondents’ case that the fourth
respondent’s placement with the
second applicant was only a
temporary placement for a period of three months and that it was the
‘general practice’
of the second respondent to do so. The
respondents denied that the placement of the fourth respondent and
the placement letter
were invalid.
[32]
The respondents, in amplification of their denial, made reference to
HRM Circular No 61 of 2020:
Procedure Manual for Staffing of Schools
(‘the Circular’) which was issued on 13 October 2020 and
which was to be read
with the Agreement. The Circular was apparently
issued in keeping with the provisions of the KwaZulu-Natal PELRC
Collective Agreement
1 of 2017 (‘the 2017 Agreement’).
The purpose of the Circular was to provide a schedule and/or a plan
and framework
for the placement of excess educators in a three year
cycle. The Circular formed part of the record provided by the
respondents.
[33]
The 2017 Agreement applied to and bound the third respondent as the
employer and all trade unions
who were parties to the KZN Chamber of
the Education Labour Relations Council. It was inter alia agreed that
‘[t]he post
establishment of each school shall remain constant
for the period of each three year cycle. . .’
[13]
and that ‘[t]he number of educator posts distributed to each
public school under the control of the KwaZulu-Natal Department
of
Education shall be fixed for the ensuing three years’.
[14]
Reference was made to Annexure ‘A’ attached to the 2017
Agreement, which was the ‘procedure directive for the
staffing
of schools’.
[34]
Paragraph 2.1 of annexure ‘A’ provides that
‘
The
provisions of
section 8(5)
of the
Employment of Educators Act no. 76
of 1998
, which are reiterated in clause B. 6.5.6 of the Collective
Agreement 4 of 2016, empower the Head of Department to temporarily
transfer
an educator for a stated period without the recommendation
of the School Governing Body.’
It
is required in terms of paragraph 2.3 of annexure ‘A’
that
‘
In
order to effect the temporary transfers, educators will be given a
list of vacant posts and will be required to choose 10 schools
from
within their Circuit, 10 from the CMC and an additional 5 from within
the District and 5 from outside their District. . .’.
A
total of 30 schools had to be selected or as many posts as available,
matching their profile.
[35]
A school governing body may recommend permanent absorption during the
period of temporary transfer.
[15]
Educators who were not recommended for permanent absorption, would
remain in the school for the stated duration.
[16]
[36]
The Circular made reference to the 2017 Agreement, and inter alia
drew attention, by emphasizing
in bold print, the following as
important on page 10:
‘
All
transfers of additional educators undertaken by the Task Team at the
various levels are temporary transfers for a stated period
unless the
statutory recommendation of the School Governing Body of the
receiving school is obtained for the permanent transfer.’
[37]
The respondents did not allege in their opposing papers nor did their
counsel appearing before
me submit on what legal basis the 2017
Agreement or the Circular could amend the provisions of section 58C
of SASA or the EEA for
that matter. I accordingly do not accept that
the respondents can agree with any party referred to in the 2017
Agreement or the
Circular to amend an annual determination of
capacities, in relation to educators, to becoming a three year
cycle.
[17]
[38]
The respondents provided the minutes of the meeting of the Task Team
relating to the district
of King Cetshwayo. It was at this meeting
that the decision was apparently taken to place the fourth respondent
as an excess educator
on a temporary basis for three months at
the second applicant. The meeting was held on 4 February 2021,
despite the fact
that the placement letter was dated 28 January 2021.
[39]
The second applicant was mentioned on page 4 of the minutes when the
Umhlathuze CMC was discussed.
There were 182 surpluses declared and
79 vacancies. The most vacancies came from special schools such as
the second applicant.
On page 7 of the minutes, the human resources
department was tasked to consolidate the list of, inter alia, total
surpluses declared,
total placed surpluses and total vacancies. The
human resources department further had to issue letters on 8 February
2021 for
surpluses to be placed so that they could be released to
principal schools. No reference was made to placing the fourth
respondent,
or anyone else for that matter, as an excess educator on
a temporary basis for three months at the second applicant.
[40]
The respondents also included in the record a list of remaining
vacancies compiled after the
placements by the District Task Team on
19 February 2021. There were 14 vacancies remaining at the second
applicant. A placement
list of the educators placed on 4 February
2021 by the Task Team was also included, where reference was made to
the fourth respondent,
her current school, the subject she was
presumably going to teach, and the name of the school to which she
was going, namely the
second applicant. No reference is made to a
duration or whether it is a temporary placement.
[41]
The only other documents contained in the record provided by the
respondents which refers to
the fourth respondent’s placement
with the second applicant, are the two letters, one being the
placement letter dated
28 January 2021 and the other letter
also referred to above, addressed to the principal of Mabhensa
Primary School.
[42]
There is no reference in the record to any list compiled by the
fourth respondent to indicate
her choice of schools from the list of
vacant posts (as referred to in the 2017 Agreement, assuming that the
respondents were adhering
to it).
[43]
It is clear from the placement letter that no mention is made of the
fact that it was to be a
temporary placement. No mention was made of
the stated period or duration of the placement. No mention is made
that the fourth
respondent will return to her previous post at the
end of the period indicated.
[44]
The respondents, in their affidavit, make a positive statement that
the fourth respondent’s
placement with the applicant was to be
on a temporary basis of three months, which was to expire on 1 May
2021. There is however
not a single document which contains this
information, apart from what is stated in the opposing affidavit.
[45]
The respondents made much of the applicants ‘unlawful conduct’
of refusing to allow
the fourth respondent to assume her duties and
criticized them for complaining about vacancies not being filled but
then refusing
the placement of the fourth respondent, whose very
placement on a temporary basis was apparently to ameliorate the
vacancies. The
respondents seem incapable of realising and
appreciating that their placement of the fourth respondent and their
placement letter
did not remotely comply with the requirements of the
EEA. The applicants’ had no idea why and on what basis the
fourth respondent
was being placed at the second applicant, apart
from what was written in the placement letter. The respondents
claimed that it
was the general practice of the department that
placements of excess educators would only be for a period of three
months, despite
the fact that this ‘general practice’ is
not referred to in any correspondence provided. Even if it was, the
respondents
were still obliged to comply with the provisions of the
EEA.
[46]
As far as the relief sought in paragraph 1 of the notice of motion is
concerned, the respondents
stated that the issue has become purely
academic as the period has expired. The application was therefore
also academic and stood
to be dismissed. It is in my view clear from
the papers that it was only the respondents who knew that it was only
a temporary
placement for three months. The applicants would not have
known and did in fact not know that the placement had expired. There
is furthermore nothing academic or moot about the relief being sought
in paragraph 2 of the notice of motion.
[47]
As far as this issue is concerned, counsel for the applicants, Mr
Pretorius SC, referred me to
Oudekraal
Estates (Pty) Ltd v City of Cape Town and others
[18]
where it was held that an unlawful administrative act, as well as all
acts and consequences flowing therefrom, remains in existence
until
set aside by the court in proceedings for judicial review. It is
clear in my view that the respondents’ decision has
to be dealt
with as it stands until set aside.
[48]
As far as the second prayer for relief is concerned, the respondents
admitted that they have
not taken steps to advertise the vacant posts
at the second applicant. The respondents incorrectly assumed that the
applicants
object to vacant posts at the second applicant being
filled with excess educators. This is clearly incorrect. All that the
applicants
require is for the procedures set out in the EEA and PAM
to be followed, with emphasis placed on the importance of the
advertising
of the posts to enable suitably qualified and experienced
educators to apply, and to afford the first applicant the opportunity
to identify the educators who are in excess and who are suitable for
the posts.
[49]
The respondents provided no reason or justification for its failure
to advertise the vacant posts.
Instead, the respondents state that it
was entitled to place the fourth respondent without having advertised
such placement as
it was a temporary placement. I have already dealt
with the issue above, namely that the placement letter made no
reference of
it being a temporary placement. The applicants are
clearly not only referring to the placement of the fourth respondent
but to
the number of vacant posts at the second applicant.
[50]
The respondents stated that the applicants unlawfully encroached on
the respondents’ statutory
functions and duties, and also
stated that the applicants have failed to make out a case that
challenges the respondents’
conduct in respect of their failure
to fill the remaining vacancies. In his heads of argument, and before
me, counsel for the respondents,
Mr Mfeka, submitted that the
applicants have not relied on any provisions of the EEA or the
Constitution in terms of which they
were entitled to compel the
respondents to fill the vacant posts. It was argued that it was not
for the applicants to tell the
respondents how to use their
resources.
[51]
There are a number of problems with this argument:
(a)
The SASA clearly sets out what the functions of
the governing bodies such as the first applicant are. These
are inter
alia to promote the best interests of the school and to ensure the
provision of quality education for all the learners
of the school. In
bringing the present application, the first applicant clearly fulfils
this important function.
(b)
The EEA and PAM contain detailed provisions on the
powers of the employer when appointing educators, filling
posts, and
the transfer of educators. In PAM the procedure is set out in detail.
It could not have been the intention of the legislature
to provide a
mechanism by which the second respondent allocates posts to the
second applicant, even allocating additional posts,
and then simply
sitting back without following the prescribed procedures in filling
vacant posts.
(c)
As mentioned before, the respondents provided no
reasons for its admitted failure to advertise the vacant
posts. No
mention was made of lack of resources or financial challenges. What
is furthermore of grave concern is that the Department
has declared
more than 3 000 educators as being additional. These educators
receive their monthly salaries but the respondents
have taken no
steps to advertise the vacant posts which would enable the applicants
to consider and recommend some of these educators
to be placed in the
vacant posts at the second applicant, should they apply. The second
applicant is home to extremely vulnerable
and compromised learners,
yet the respondents do not fulfil their mandate and statutory
obligations to give effect to these children’s
rights to an
education.
[52]
The respondents’ counsel submitted that the applicants should
have brought the application
in terms of the Constitution, and failed
to do so. He placed reliance on
Soobramoney
v Minister of Health, Kwa-Zulu Natal
,
[19]
which in my view does not assist him. Applicants’ counsel
submitted that the applicants are entitled to apply for the relief
based on what is set out in the legislation. The applicants are not
attacking the constitutionality of the legislation. The application
is brought on the basis that once the second respondent has issued
the second applicant’s post provisioning norm certificate,
the
applicants were entitled to have the vacant post filled.
[53]
In
Centre
for Child Law and others v Minister of Basic Education and
others
,
[20]
Plasket J dealt with a matter where a number of applicants inter alia
sought orders to compel the department to implement the 2012
educator
post establishment, which had already been declared, by making
appointments to vacant posts by a specified date. This
particular
order became settled between the parties, the Department agreeing to
an order to implement the educator establishment
and to appoint
educators to all vacant substantive posts declared. Although Plasket
J referred to the matter as concerning the
fundamental rights of
children attending public schools to a basic education, which is
enshrined in in section 29(1)
(a)
of the Constitution, I could find no indication that the application
had been brought or had to be brought in terms of the Constitution.
[54]
In
Linkside
and others v Minister of Basic Education and others
[21]
the court dealt with an application which concerned the ongoing
failure by the Department of Basic Education in the Eastern Cape
to
appoint educators in vacant posts at various public schools. In para
3 of the order issued by Roberson J, the head of the department
was
directed to publish an open educator bulletin, the school governing
boards were entitled to interview the applicants, and make
recommendations, which the respondents had to act on within 15 days.
The Department’s defence was a strain on the budget
and on
expenditure. The Department’s objection to the order obliging
it to publish bulletins was inter alia that the applicants
could not
dictate to the department how it should perform its administrative
duties. Roberson J said the following in response:
‘
In
my view, the Department's conduct in relation to the publication of
bulletins can only exacerbate the crisis concerning the appointment
of educators in substantive vacant posts and the circumstances
equally call for a remedy in the form of a just and equitable
order
.’
[22]
[55]
In the present matter, the applicants are simply trying to achieve
the same in order to protect
the rights of the learners attending the
second applicant. It is in my view clear from what is set out above
that the respondents’
decision to place the fourth respondent
as an educator with the second applicant was unlawful and should be
reviewed and set aside.
Even if I accept that it was only a temporary
placement, the respondents have clearly failed to comply with section
8(5) of the
EEA.
[56]
During argument in reply, counsel for the applicants requested an
amendment to paragraph 2 of
the notice of motion by inserting the
word PAM after reference to the EEA. Counsel for the respondents
objected to such an amendment
on baseless grounds, as it is clear
from the applicants’ case that the appointment of educators are
made with reference to
both the EEA as well as PAM.
[57]
I am of the view that the applicants have made out a case for the
relief sought in paragraph
2 of the notice of motion, duly amended.
The respondents have failed to convince me that they are under no
obligation to comply
with the EEA and PAM, and that they cannot be
ordered to fulfil their statutory obligations.
[58]
The applicants, in their replying affidavit, sought leave to
supplement their papers and approached
the court for further relief
should the respondents fail to fill all 16 vacant posts at the second
applicant. Neither counsel for
the applicants nor counsel
for the respondents made any submissions in this regard. In my view
it would be a salient
order to grant.
[59]
The issue of costs was only addressed briefly by counsel for the
applicants, with reference to
his heads of argument, where costs are
sought in line with paragraph 3 of the notice of motion but with the
addition of costs of
senior counsel, where so employed. Counsel for
the respondent did not offer any objections. In my view, the matter
is of sufficient
complexity and importance to the applicants to
warrant such an order. No cost order was sought against the first
respondent.
[60]
The following order is accordingly made:
1.
The decision
of or on behalf of the second and/or third respondents to appoint,
alternatively transfer, the fourth respondent to
the educator
establishment at the second applicant is reviewed and set aside.
2.
The second
and/or third respondents are hereby directed, within 30 calendar days
of this order, to commence with the due process
as set out in the
Employment of Educators Act 76 of 1998
and the Personnel
Administration Measures, as contained and consolidated in GN 170,
published in the
Government
Gazette
39684 of 12 February 2016, and to follow due process as set forth in
the Act, with regard to the appointment of educators for the
vacant
posts on the second applicant’s educator establishment.
3.
The
applicants’ are given leave to supplement their papers and to
approach this court for further relief should the first
to third
respondents fail to fill all 16 vacant posts at the second applicant.
4.
The second and
third respondents are ordered to pay the costs of the application,
jointly and severally, the one paying the other
to be absolved,
including the costs of the senior counsel, where so employed.
BEZUIDENHOUT
AJ
Appearances
Date
of hearing: 16
May 2022
Date
of judgement: 26
August 2022
For
the applicants: Mr
Pretorius SC
Instructed
by: Tatham
Wilkes Inc.
200
Hoosen Haffejee Street
Pietermaritzburg
Tel
: 033 345 3501
Email:
jaco@tathamwilkes.co.za
Ref:
J van der Merwe/o9Zg34121
For
the respondents: Mr
Mfeka
Instructed
by:
Hlela
Attorneys Inc
.
241
Problem Mkhize Road
Essenwood
Durban
Tel:
031 305 6655
Ref:
Hlela/LAB/01375
C/O
SS Nqati Attorneys
88
Church Street
Mez 4,
2
nd
Floor
Laager
Centre
Pietermaritzburg
Tel:
033 345 5685
Email:
ssnqayi@gmail.com
[1]
Section
5A(2)
(b)
of SASA.
[2]
Section
20(1)
(a)
of
SASA.
[3]
Section
3(3)
(b)
of EEA.
[4]
Terms
and conditions of employment of educators determined in terms
of
section 4
of the
Employment of Educators Act, 1998
, GN
222,
GG
19767,
18 February 1999.
The
latest amendment of PAM was contained in GN 948, published in the
Government
Gazette
38249 of 27 November 2014.
[5]
Personnel
Administrative Measures, GN 170,
GG
39684,
12 February 2016.
[6]
This
is also the PAM which was referred to by the applicants.
[7]
This
is to be done with reference to
section 6(3)
(a)
and
(m)
of the EEA.
[8]
Paragraph
B.6.5 of PAM.
[9]
This
collective agreement deals with the transfer of serving educators in
terms of operational requirements.
[10]
Paragraph
B.6.5.5 of annexure ‘A’.
[11]
Federasie
van Beheerliggame van SA Limpopo v Departement van Onderwys, Limpopo
(TPD)
Unreported case no 30801/03 (28 November 2003) at 13.
[12]
[13]
Paragraph
4.1 of the 2017 Agreement.
[14]
Paragraph
4.2 of the 2017 Agreement.
[15]
Paragraph
2.4 of annexure ‘A’
[16]
Paragraph
2.5 of annexure ‘A’.
[17]
See
Federasie
van Beheerliggame van SA Limpopo supra.
[18]
Oudekraal
Estates (Pty) Ltd v City of Cape Town and others
2004
(6) SA 222
(SCA);
[2004] 3 All SA 1
(SCA) paras 37 and 49.
[19]
Soobramoney
v Minister of Health (Kwa-Zulu Natal)
1998
(1) SA 765 (CC); 1997 (12) BCLR 1696 (CC).
[20]
Centre
for Child Law and others v Minister of Basic Education and others
2013
(3) SA 183 (ECG).
[21]
Linkside
and others v Minister of Basic Education and others
[2015]
JOL 327868B (ECG).
[22]
Ibid
para 30.