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[2022] ZALMPPHC 48
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School Governing Body of Tidima Secondary School v Head of Department of Education, Limpopo and Others (6945/2020) [2022] ZALMPPHC 48 (6 September 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE NO:
6945/2020
REPORTABLE:
NO
OF INTEREST TO OTHER
JUDGES:
NO
REVISED.
In the matter between:
THE SCHOOL GOVERNING
BODY OF
APPLICANT
TIDIMA SECONDARY
SCHOOL
and
HEAD OF DEPARTMENT OF
EDUCATION, LIMPOPO
1
st
RESPONDENT
MEMBER OF EXECUTIVE
COUNCIL
2
nd
RESPONDENT
FOR EDUCATION, LIMPOPO
SONTI CLARENCE
TLOUBATLA
3
rd
RESPONDENT
JUDGMENT
NAUDÈ-ODENDAAL
J:
[1]
This is a review application wherein the Applicant applies that the
1
st
Respondent’s decision to re-advertise the post
of the principal at Tidima Secondary School dated 17 August 2020 be
declared
unlawful and invalid and be reviewed and set aside. The
Applicant further applies that the 1
st
Respondent be
ordered to appoint the Applicant’s recommended candidate who
was interviewed on the 6
th
of June 2019 within one month.
BACKGROUND FACTS:
[2]
It is common cause that on 11 September 2014, the 1
st
Respondent advertised a post for a principal to be appointed at
Tidima High School. Various applicants applied for the post and
a
short-listing process took place on 10 April 2015 at the Circuit
Manager’s Office. The candidates short-listed were as
follows:-
(a)
Margaret Thizwilondi Mathivha;
(b)
Sonti Clarence Tloubatla;
(c)
Kgabo Johannes Morifi;
(d)
Nakedi Damaris Mashoene; and
(e)
Koena Martha Letsoalo.
[3]
On the evening of the 10
th
of April 2015 the Circuit
Manager phoned the Chairperson of the Applicant and instructed him to
stop the interview process. A tussle
developed between the Applicant
and the functionaries of the Department of Education, Limpopo
Province at the district level and
Sekgosese West Circuit. At some
point the recruitment function was taken away from the Applicant.
This resulted in all the documents
relating to the post being
submitted to the Circuit office.
[4]
Allegations and counter allegations were made by the parties being
the Applicant and
the Department’s functionaries. Ultimately on
30 January 2019, the 1
st
Respondent sent a letter to the
Applicant wherein she directed the Applicant to proceed with the
recruitment process in filling
the principal’s post. The letter
stated as follows from paragraph 2 to 4:-
“
2.
The Head of Department has granted approval for the filling of the
principal’s post of Tidima Secondary
School.
3.
The District Director is directed as follow:
3.1
The applications for the principal’s post be handed back to the
SGB to finalise the filling of the post;
3.2
The SGB should continue with the process form where it was when the
District took over the process;
3.3
The Circuit Manager and the District Director should support the SGB
in ensuring that the principal’s
post is filled; and
3.4
A management plan should be developed for the filling of the post.
4.
The process should be expedited to ensure that the principal is
appointed urgently.”
[5]
As a result, the District Director for Polokwane district wrote a
letter to the Applicant
dated the 11
th
of April 2019, in
terms of which the decision of the 1
st
Respondent was
reiterated. The Applicant was informed that due to the over dragged
period, the district is unable to trace the
applications for the five
candidates shortlisted by the Applicant. It was stated that even in
the absence of the said applications,
the 1
st
Respondent’s
decision still needs to be implemented and was the Applicant
therefore requested to inform the five shortlisted
candidates to fill
in new forms and attach documents as per the advert and bring the
newly filled in forms with them on the date
of the interview process.
[6]
The Applicant convened a meeting on 25 April 2019 and set a date for
the interviews
being the 9
th
of May 2019. On the 9
th
of May 2019, the interview process however collapsed due to some
candidates decided not to attend the interviews. The interviews
were
then rescheduled for 6 June 2019. Invitations together with a
Management Plan for the post were prepared and sent out to the
Circuit Manager, District Director, members of the panel, NATU, SADTU
and the respective candidates. The candidates were also called
telephonically and sms’s were sent to them in order to ensure
that they are aware of the interviews.
[7]
The candidates confirmed receipt of the invitations. Ms. TM Mathivha
declined the
invitation on the basis that she was appointed in
another post and was no longer interested in the position in
question. The candidates
were given different times in their
invitations to attend the interviews. On 6 June 2019 the interviews
were conducted as scheduled.
Three further short-listed candidates,
Mashoene ND, Letsoalo KM and Morifi KJ declined to attend the
interviews.
[8]
After the completion of the interview process, the Applicant
recommended the 3
rd
Respondent who was the only
interviewed person for the appointment. It needs to be stated that
the 3
rd
Respondent has been acting in the position for
several years.
[9]
On the 11
th
of June 2019 the Applicant submitted its
recommendations of appointment of the 3
rd
Respondent to
the Circuit Office. However, despite the fact that the Applicant made
recommendations to the 1
st
Respondent for the appointment
of the 3
rd
Respondent, the 1
st
Respondent never
made the appointment.
[10]
It is submitted by the Applicant that the 1
st
Respondent
did not correspond to the recommendation. The 1
st
Respondent did not make the appointment and further also did not give
any explanation as to why the 1
st
Respondent did not
appoint the recommended candidate. It is further submitted that the
1
st
Respondent ignored the recommendations made by the
Applicant and proceeded to re-advertise the post in question on or
about 17
August 2020. According to the Applicant, it is this
re-advertisement of the post in question that triggered the present
application
for review and setting aside of the decision to advertise
the post in question.
[11]
The Applicant’s grounds for this application is that the 1
st
Respondent failed to comply with
Section 3(2)(b)(iii) of the
Promotion of Administrative Justice Act, 3 of 2000 (“PAJA”)
in that in order to give effect to procedurally fair administrative
action, an administrator, must give a person concerned, a clear
statement of the administrative action. It was submitted by the
Applicant that the 1
st
Respondent did not give the
Applicant a clear statement of the administrative action before
re-advertising the post in question.
The 1
st
Respondent
advertised the post in question without informing the Applicant of
the decision to have declined a recommendation by
the Applicant. In
the result, in absence of the clear statement of the administrative
action, the 1
st
Respondent’s impugned decision is
procedurally unfair and must be reviewed and set aside.
[12]
The Applicant further submits as a ground for this review that the
1
st
Respondent failed to comply with
Section 3(2)(b)(v)
of PAJA
in that the 1
st
Respondent failed to give the
Applicant notice of its right to request reasons in terms of
Section
5 of PAJA
. It was submitted that the 1
st
Respondent
never even gave a notice of the decision to decline a recommendation
by the Applicant. In the absence of the decision
to decline a
recommendation by the Applicant and failure to give adequate notice
of the right to request reasons, the 1
st
Respondent failed
to comply with the provisions of
Section 3(2)(b)(v) of PAJA
and therefore the impugned decision was procedurally unfair and it is
unlawful and invalid and must be reviewed and set aside.
[13]
As a third ground for the present application, the Applicant
submitted that the action of the
1
st
Respondent
contravenes a law or is not authorized by the empowering provision,
Section 6(2)(c) of PAJA.
[14]
The Applicant submitted that the appointment of a principal into the
post in question is governed
by
Section 6 of the Employment of
Educators Act 76 of 1998 (“the Act”)
.
Section
6(3)(a) – (l)
of the Act provides as follows:-
“
(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) In
considering the applications, the governing body or the council, as
the case may be must ensure that the principles of equity,
redress
and representivity are complied with and the governing body or
council, as the case may be, must adhere to—
(i) the
democratic values and principles referred to in section 7(1);
(ii) any
procedure collectively agreed upon or determined by the Minister for
the appointment, promotion or transfer of educators;
(iii) any
requirement collectively agreed upon or determined by the Minister
for the appointment, promotion or transfer of educators
which the
candidate must meet;
(iv) a
procedure whereby it is established that the candidate is registered
or qualifies for registration as an educator with the
South African
Council for Educators; and
(v)
procedures that would ensure that the recommendation is not obtained
through undue influence on the members of the governing
body.
(c) The
governing body must submit, in order of preference to the Head of
Department, a list of—
(i) at least
three names of recommended candidates: or
(ii) fewer
than three candidates in consultation with the Head of Department.
(d) When the
Head of Department considers the recommendation contemplated in
paragraph (c), he or she must, before making an
appointment,
ensure that the governing body has met the requirements in paragraph
(b).
(e) If the
governing body has not met the requirements in paragraph (b), the
Head of Department must decline the recommendation.
(f) Despite
the order of preference in paragraph (c) and subject to
paragraph (d), the Head of Department may appoint
any suitable
candidate on the list.
(g) If the
Head of Department declines a recommendation, he or she must—
(i) consider
all the applications submitted for that post;
(ii) apply
the requirements in paragraph (b)(i) to (iv); and
(iii) despite
paragraph (a), appoint a suitable candidate temporarily or
re-advertise the post.
(h) The
governing body may appeal to the Member of the Executive Council
against the decision of the Head of Department regarding
the
temporary appointment contemplated in paragraph (g).
(i) The
appeal contemplated in paragraph (h) must be lodged within 14 days of
receiving the notice of appointment.
(j) The
appeal must be finalised by the Member of the Executive Council
within 30 days.
(k) If no
appeal is lodged within 14 days, the Head of Department may convert
the temporary appointment into a permanent appointment
as
contemplated in section 6B.
(I) A
recommendation contemplated in paragraph (a) shall be made within two
months from the date on which a governing body was requested
to make
a recommendation, failing which the Head of Department may, subject
to paragraph (g), make an appointment without such
recommendation.”
[15]
The Applicant submitted that the use of the word “must”
in
Section 6(3)(g) of the Act
is instructive. This means that
where the HOD has declined a recommendation by the SGB, the HOD must
consider all the applications
submitted for the purpose of the post
and apply the requirements in paragraph (b)(i) to (iv) and appoint a
suitable candidate temporarily.
If after considering all the
applications submitted for the post the HOD is of the view that there
is no suitable candidate to
be appointed temporarily, the HOD has an
option to re-advertise.
[16]
It was submitted by the Applicant that from the wording of the
provisions of
Section 6(3)(g) of the Act
, it is clear that the
HOD must before re-advertising the post, consider all the
applications submitted for that post and appoint
a suitable candidate
temporarily if there is such a suitable candidate. The HOD cannot
re-advertise the post before considering
all the applications
submitted for that post and consider whether there is a suitable
candidate to be appointed temporarily. Simply
put, the Applicant
submits that the 1
st
Respondent cannot re-advertise the
post before complying with the provisions of
Section 6(3)(g) of
the Act
.
[17]
The 1
st
and 2
nd
Respondents submit that the
advertisement of the post occurred on 11 September 2014 and because
of various challenges, interviews
were only held on 6 June 2019 after
a period of five years.
[18]
It was further submitted by the 1
st
and 2
nd
Respondents that the original applications filled and submitted by
the shortlisted candidates were lost. The 1
st
Respondent
was unable to comply with
Section 6(3)(g)(i) to (iii) of the Act.
It was an impossibility on the part of the 1
st
Respondent,
as there were no applications to consider as they were lost because
of the contestations between the Applicant and
the District Office
and the Circuit Office. Hence, the shortlisted candidates were
requested to fill in new documents, however
only the 3
rd
Respondent who was the only person to be interviewed did that.
[19]
The 1
st
Respondent submitted that it was barred from
making an appointment in terms of the recommendations made by the
Applicant based
on the reasons provided. Firstly, it was of a concern
that the recruitment process remained outstanding for a period of
five years.
Secondly, the other shortlisted candidates lost interest
in the post - some were employed elsewhere and some were dismayed by
the
request to fill in new documents afresh, five years down the
line.
[20]
The 1
st
Respondent further submitted that the appointment
of the 3
rd
Respondent would not have been rational and
procedurally fair. It would have disadvantaged other prospective
applicants. According
to the 1
st
Respondent, five years is
a long time and a lot can happen, hence for the purpose of fairness
to every educator who aspires to
hold the post of principal, logic
dictates that they must have a fair chance to compete. It would
therefore have been irresponsible
for the 1
st
Respondent
to simply rubber stamp the recommendations made by the Applicant,
even though the process was marred by irregularities.
[21]
It was further submitted by the 1
st
Respondent that in
terms of the collective agreement reached and the relevant pieces of
legislation in particular,
Section 6(3)(c)(i) – (ii) of the
Act
, which provides that the Governing Body must submit in the
order of preference to the HOD a list of (a) at least three names of
recommended candidates; or (b) fewer than three candidates in
consultation with the HOD.
[22]
The 1
st
Respondent submitted that it is common cause that
the 3
rd
Respondent was the only person who was interviewed
and ultimately recommended. Such recommendation was not done in
consultation
with the 1
st
Respondent as prescribed by
Section 6(3)(c)(ii) of the Act
.
[23]
It was submitted that 1
st
Respondent acted in terms of
Section 6(3)(c) of the Act
which states that if the Governing
Body has not met the requirements in paragraph (b), the Head of
Department must decline the
recommendation. Consequently, the 1
st
Respondent declined the recommendations made by the Applicant.
[24]
The 1
st
Respondent further submitted that in terms of the
letter dated the 17
th
of January 2020, advising the
Applicant that the principal’s post ought to be re-advertised,
the Applicant was indeed informed
as the letter was received by the
3
rd
Respondent. In terms of
Sections 16A(1)(a)
,
16A
(2)(b),
16A
(2)(f) and (3) of the
South African Schools Act, 84 of
1996
, the School principal, and in this present matter, the 3
rd
Respondent as an acting principal, forms part of the Applicant
representing the Head of Department in the Governing Body. The
principal becomes the point of call in matters involving the
Governing Body. There is nothing untoward in the 3
rd
Respondent receiving the letter on behalf of the Applicant.
[25]
The 1
st
Respondent, pertaining to the process that is
followed when an appointment of an educator is made, submitted that
it is important
to state that the Governing Body embarks on a
recruitment process, whereafter it makes recommendations to the 1
st
Respondent to appoint.
[26]
After the interview process has concluded, the interviewing committee
completes a form called
“RF-1” which is used to rank the
candidates during interviews and also to record a brief motivation
for each candidate
interviewed. Thereafter, the school governing body
fills in a form called “RF-2” in terms of which they
recommend candidates
to the Head of Department for appointment.
[27]
These forms are then followed by a form called “RF-3”
which is completed by the Circuit
Manager and is addressed to the
District Director. This document is a checklist to see that all the
prescribed processes, procedures
and other Departmental directives
have been followed before sending the said documents to the District
Office. This form was however
not completed as the Circuit Manager
did not align herself with the recommendations made by the Applicant.
[28]
It was submitted that the challenges experienced, objections raised
by SADTU, and lack of “package”
were recorded. The
District Director was also unable to forward the documents to the 1
st
Respondent and the challenges experienced were outlined. This
included the fact that only one candidate was interviewed, candidates
declining to attend interviews and letters to that effect were not
presented by the Applicant. However, the biggest concern was
the lack
of documentation that was lost between the Circuit Office and the
School.
[29]
The 1
st
and 2
nd
Respondents submit that with
the difficulties as mentioned, the 1
st
Respondent could
not with a clear conscience make the appointment as recommended by
the Applicant and that the 1
st
Respondent in
re-advertising the position acted in the best interest of the school
and prospective employees. In conclusion, it
was submitted that the
1
st
Respondent could not have acted otherwise as she did
not have the documents before her as they were lost.
[30]
The reasons provided by the District Director for the re-advertising
of the post, dated 17 January
2020, were directed for the Applicant’s
attention to the Applicant, Tidima Secondary School, Sekgosese West
Circuit, but
were however received by the 3rd Respondent on the 22
nd
of January 2020. The reasons provided are as follows:-
“
2.
Kindly be informed that the Head of Department has taken a decision
to re-advertise the principalship
post of your school Tidima
Secondary.
3.
The decision is taken as a result of the following reasons amongst
others:-
3.1
The filling of the principalship post of Tidima Secondary School has
taken an unreasonable long time
to fill. It is almost five (5) years
since the post was advertised.
3.2
Given this length of time, the authenticity of the applications and
related records is questionable.
3.3
The filling of the principalship post is very critical to ensure the
smooth management and curriculum
delivery at the school; and
3.4
Therefore the selection process should be above board…
”
[31]
In my view, in essence, the 1
st
Respondent only gave two
reasons for the re-advertisement of the post namely, the fact that
the filling of the post has taken an
unreasonably long time and the
fact that the authenticity of the applications and related record is
questionable. All the reasons
stated by the 1
st
Respondent
now in this application in my view were stated as an after-thought as
it did not form part of the reasons provided to
the Applicant in the
letter dated 17 January 2020.
[32]
None of the two reasons provided by the 1
st
Respondent in
the letter dated 17 January 2020 are however in my view valid
reasons. Firstly, it is common cause that the filling
of the post
took an unreasonably long time. This fact was known when it was
confirmed in the 1
st
Respondent’s letter dated the
30
th
of January 2019 wherein it was stated that the 1
st
Respondent has approved the filling of the principal’s post of
Tidima Secondary School and that the District Director is
directed to
hand back the applications for the principal’s post to the
Applicant to finalise the filling of the post and
further that the
Applicant should continue with the process from where it was when the
District took over the process.
[33]
The Applicant furthermore wrote a letter to the District Director on
10 April 2019 wherein the
Applicant requested the District Director
to facilitate the departmental support due to the Applicant through
the circuit, as well
as that the Applicant be granted permission to
proceed with the interviews under any condition that might avail
itself, as long
as it does not prejudice the Collective Agreement 01
of 2008.
[34]
After the aforementioned letter was sent to the District Director,
the District Director wrote
the letter dated 11 April 2019 to the
Applicant wherein it was stated that following the 1
st
Respondent’s decision on the above matter, due to the over
dragged period on filling this post, the district is unable to
trace
the applications for the five candidates shortlisted by the
Applicant. It was stated that even in the absence of the said
applications, the 1
st
Applicant’s decision still
needs to be implemented and were the Applicant requested to inform
the five shortlisted candidates
to fill in new forms.
[35]
In my view the fact that the candidates documentation were lost,
cannot now as an after-thought
be used as the main concern for the
re-advertisement of the post. None of the grounds provided by the
Respondents for the re-advertisement
of the post are valid as all
these issues and facts were already taken into account prior to the
interviews having been conducted.
[36]
The 1
st
Respondent did not decline the appointment on the
basis that the Applicant failed to ensure that the principles of
equity, redress
and representivity were complied with. The 1
st
Respondent furthermore did not decline the appointment on the basis
that the Applicant submitted fewer than three candidates and
in any
event if the Applicant submitted fewer than three candidates, such
submission may be made in consultation with the Head
of Department.
Furthermore, the fact that the Applicant submitted only the 3
rd
Respondent’s name without having consulted the 1
st
Respondent is in any event not one of the grounds upon which the 1
st
Respondent declined to appoint the 3
rd
Respondent.
[37]
The 1
st
Respondent furthermore did not decline the
appointment on the basis that the Applicant failed to meet the
requirements in
Section 3(b) of the Act.
[38]
In my view, the 1
st
Respondent failed to give
consideration to
Section 3(f) of the Act
which states that
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. It is common cause that the five candidates
were shortlisted after due process has been followed.
It can be
accepted that all five candidates met the requirements to be
appointed in the post. During the interview process, only
one
candidate remained available and was ultimately interviewed. There is
nothing indicative thereof that the 3
rd
Respondent is not
a suitable candidate to be appointed especially in light thereof that
he has acted in the position for many years.
[39]
The 1
st
Respondent furthermore failed to give effect to
the provisions of
Section 3(g) of the Act
in terms whereof the
1
st
Respondent, once having declined to make an
appointment must consider all the applications submitted for that
post, apply the requirements
in paragraph (b)(i) to (iv) and despite
paragraph (a) appoint a suitable candidate temporarily or
re-advertise the post. There
is no indication that the 1
st
Respondent applied the requirements in paragraph b(i) to (iv) before
summarily re-advertising the post.
[40]
In the result it cannot be found that the 1
st
and 2
nd
Respondents acted reasonably and rationally in declining to make an
appointment and summarily re-advertising the post. In the result
the
application for review stands to succeed.
[41]
The Applicant however also applied that this court orders the 1
st
Respondent to appoint the 3
rd
Respondent, as the
Applicant’s recommended candidate interviewed on the 6
th
of June 2019 within one month from the date of this order.
[42]
Regarding the Applicant’s prayer that the 1
st
Respondent be directed and ordered to appoint the recommended
candidate,
Brand JA
had the following to say in
Kimberley
Junior School v Head Northern Cape Educations Department
[2009] 4 All
SA 135
(SCA) at p144i-145a
:-
“
Apart
from the principle of separation of powers, which dictates that a
court should be hesitant to usurp executive functions, there
was in
this case not even a proper recommendation by the SGB as contemplated
by Section 6(3)(c). In the circumstances, both the
SGB and the HOD
should, in my view, be afforded the opportunity to perform their
respective functions in terms of Section 6(3)(c)
in a proper manner.”
[43]
In my view, although the present matter can be distinguished from the
Kimberley Junior School matter supra
, the 1
st
Respondent should also be given an opportunity to perform its
respective functions properly without the interference of the court.
[44]
In
Intertrade Two v MEC Road and Public Works and Another
[2008]
All SA 142
(Ck) at para 46 Plasket J
held as follows:-
“
These
constitutional principles mean that courts, when considering the
validity of administrative action, must be wary of intruding,
even
with the best of motives, without justification into the terrain that
is reserved for the administrative branch of government.
These
restraints on the powers of the courts are universal in democratic
societies such as ours and necessarily mean that there
are limits on
the powers of the courts to repair damage that has been caused by a
breakdown in the administrative process.”
[45]
Section 8(1)(c) of PAJA
provides:
“
Remedies
in proceedings for judicial review
:
(1)
The court or
tribunal, in proceedings for judicial review in terms of Section
6(1), may grant any order that is just and equitable,
including
orders-
…
(c)
setting aside the administrative action and-
(i) remitting the
matter for reconsideration by the administrator, with or without
directions; or
(ii)
in exceptional cases-
(aa)
substituting or varying the administrative action or correcting a
defect resulting from the administrative action…”
[46]
In my view, the present matter should be referred back to the 1
st
Respondent for reconsideration by the 1
st
Respondent and a
proper application of the provisions of
Section 6(3)
of the
Employment of Educators Act, 76 of 1998
.
[47]
The only issue remaining is the issue of costs. It was submitted by
the 1
st
and 2
nd
Respondents’ counsel that
in the event of the 1
st
and 2
nd
Respondents
being successful in the opposition of the application, the 1
st
and 2
nd
Respondents will not seek costs against the
Applicant.
[48]
The Applicant however persisted and applied for costs against the 1
st
and 2
nd
Respondents. In my view, there is no reason why
the general rule applicable to costs in that the costs should follow
the event,
should not be applicable in the present matter.
[49]
I therefore make the following order:-
1.
The 1
st
Respondent’s decision to re-advertise the post of the principal
at Tidima Secondary School dated 17 August 2020 is reviewed
and set
aside.
2.
The matter is remitted
back to the 1
st
Respondent for reconsideration and compliance with
Section 6(3)
of
the
Employment of Educators Act, 76 of 1998
.
3.
The 1
st
and 2
nd
Respondents are ordered to pay the Applicant’s costs of this
Application.
M.
NAUDÈ-ODENDAAL
JUDGE
OF THE HIGH COURT,
POLOKWANE
APPEARANCES:
HEARD
ON:
18 JULY 2022
JUDGMENT
DELIVERED ON: 6 SEPTEMBER 2022
For
the Applicant:
Adv. S.S. Tebeile
Instructed
by:
Israel Maenetja Attorneys
eazym10@gmail.com
For
the 1
st
and 2
nd
Respondents: Adv.
L.A. Nkoana
Instructed
by:
The Office of the State Attorney
Polokwane
mramabu@justice.gov.za
For
the 3
rd
Respondent:
None