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[2022] ZALMPPHC 55
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School Governing Body of Botlokwa Special School v District Director: Limpopo Department of Education, Capricon North and Others (3304/2022) [2022] ZALMPPHC 55 (25 October 2022)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE NO: 3304/2022
REPORTABLE: YES
OF INTEREST TO OTHER
JUDGES: NO
REVISED
DATE: 25/10/2022
In
the matter between:
THE
SCHOOL GOVERNING BODY OF
BOTLOKWA
SPECIAL SCHOOL
APPLICANT
And
DISTRICT
DIRECTOR: LIMPOPO DEPARTMENT
OF
EDUCATION, CAPRICON NORTH
FIRST RESPONDENT
HEAD
OF DEPARTMENT OF EDUCATION, LIMPOPO
SECOND RESPONDENT
MEC
FOR EDUCATION LIMPOPO PROVINCE
THIRD RESPONDENT
LETLADI
JOHN MABITSELA
FOURTH RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
The fourth respondent is an educator, and during the beginning of
2021 he was declared in excess at
the school he was working at.
Botlokwa Special School was identified as the school where he was
supposed to be transferred to occupy
the post number 15 of deputy
principal in terms of the rationalisation and redeployment process (R
& R). The fourth respondent
also showed interest to be
transferred to Botlokwa Special School, and also met the requirements
for the post number 15 deputy
principal. However, the principal of
Botlokwa Special School rejected the transfer of the fourth
respondent to his school on the
ground that the transfer did not meet
the operational requirements of the school due to the nature of their
establishment and its
unique needs.
[2]
That led to the second respondent advertising the post of deputy
principal at Botlokwa Special School
on 1
st
September
2021. The applications were received by the applicant and
shortlisting were done. The fourth respondent did not apply
for the
position of deputy principal Botlokwa Special School. Interviews were
held and the applicant made recommendations for the
appointment of
deputy principal, which recommendations they submitted to the second
respondent to either confirm or decline the
appointment.
[3]
According to the first to third respondents (respondents), before the
successful candidate could be
appointed, on 12
th
December
2021 the fourth respondent lodged a grievance dissatisfied with his
rejection in terms of the R & R process. The respondents
instituted their investigations and found that the fourth respondent
was prejudiced by not being placed to the post of deputy principal
through the R & R process as he had met all the requirements.
Based on the outcome of the investigation, the first respondent
notified the circuit manager that the post of deputy principal
Botlokwa Special School has been nullified and that the process
of R
& R must continue with the placement of the fourth respondent.
The applicant was duly notified of the process which the
respondents
were now taking.
[4]
That led to the applicant on 5
th
April 2022 instituting
the urgent review application against the respondents. The fourth
respondent did not file any opposing papers.
The applicant in their
review application are seeking orders (i) that the first respondent’s
decision to nullify the deputy
principal’s post no 15 at
Botlokwa Special School be declared unlawful and invalid and be
reviewed and set aside; (ii) and
that the third respondent be ordered
to consider the applicant’s recommendations
de novo
and
make the appointment of deputy principal at Botlokwa Special School
de novo
within 10 days from the date of the order.
[5]
The applicant has submitted that after submitting the recommendations
to the second respondent for appointment
to be made by the second
respondent, the applicant expected the second respondent to act in
terms of section 6 of the Employment
of Educators Act
[1]
(Educators Act) to confirm or decline the appointment. The
respondents conceded that after the recommendations were received by
the second respondent, the second respondent was supposed to have
acted in terms of section 6 of the Educators Act. However, the
respondents have submitted that the first respondent had nullified
the process of the interviews as result of the grievance that
they
have received from the fourth respondent. Further that the wording in
their letter which stated that the post of the deputy
principal was
“nullified” has not been correctly captured, as their
intention was to nullify the process of the interviews,
and continue
with the R & R process.
[6]
The applicant has brought its review application in terms of the
Promotion
of
Administrative
Justice Ac
t
[2]
(PAJA). The applicant’s grounds for review are (i) that
the respondents’ action is unlawful; (ii) the action
was taken
for a reason not authorised by empowering provision; (iii) the action
contravenes a law or is not authorised by empowering
provision; (iv)
the decision was procedurally unfair; and (v) non-compliance with
section 3(2)(b)(v) of PAJA. What this court is
called upon to
determine is whether the first respondent had the powers to nullify
the post of the deputy principal and/or the
interviews which were
properly held and completed; and also whether the second respondent
was compelled to act in terms of section
6 of the Educators Act once
he/she had received the recommendations from the applicant.
[7]
As per the wording of the letter of the 17
th
February 2022
from the first respondent to the Circuit Manager Sekgosese, the
district had taken a decision to nullify the deputy
principal post no
15 of Botlokwa Special School, and further that they were continuing
with the placement of the fourth respondent
at the school that he had
identified as per R & R cluster vacancy. However, the respondents
in their answering affidavit have
stated that the wording of the
letter had not been correctly captured, as their intention was to
state “nullify the process
of the interviews” and not the
post.
[8]
Whether the nullification was for the post or the interviewing
process, it is not in dispute that when
the first respondent was
taking that decision, it was exercising public authority which
amounted to an administrative action, which
the affected party may
review in terms of PAJA. In terms of section 33(1) and (2) of the
Constitution, everyone has a right to
administrative action that is
lawful, reasonable and procedurally fair, and further that everyone
whose rights have been adversely
affected by an administrative
action, has the right to be given written reasons.
[9]
In
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs
[3]
O’Regan J said:
“
What will
constitute a reasonable decision will depend on the circumstances of
each case, much as what will constitute a fair procedure
will depend
on the circumstances of each case. Factors relevant to determining
whether a decision is reasonable or not will include
the nature of
the decision, the identity and expertise of the decision-maker, the
range of factors relevant to the decision, the
reasons given for the
decision, the nature of the competing interest involved and the
impact of the decision on the lives and well-being
of those affected.
Although the review functions of the Court now have a substantive as
well as a procedural ingredient, the distinction
between appeals and
reviews continues to be significant. The Court should take care not
to usurp the functions of administrative
agencies. Its task is to
ensure that the decisions taken by administrative agencies fall
within the bounds of reasonableness as
required by the Constitution.”
[10]
The process of nullification of the post and placement of the fourth
respondent in terms of the R &
R process was initiated and
finalised by the first respondent. Section 6(3)(a) of the
Employment
of Educators Act
[4]
(EEA) provides as follows:
“
Any appointment,
promotion or transfer to any post on the educator establishment of a
public school or a further education and training
institution, may
only be made on the recommendation of the school governing body of
the public school or council of the further
education and training
institution, as the case may be, and if there are provincial
department of education concerned who are in
excess of the educator
establishment of a public school or further education and training
institution due to operational requirements,
that recommendation may
only be made from candidates identified by the Head of Department,
who are so in excess and suitable for
the post concerned.”
[11]
The fourth respondent was placed to the post of deputy principal
Botlokwa Special School as he was regarded
to be in excess at his
previous school. As per section 6(3)(a) of the EEA, it is the second
respondent who was supposed to have
identified the fourth respondent
and the suitable placement for him, and not the first respondent.
Counsel for the respondents
has submitted that the second respondent
had verbally delegated the first respondent carry out those duties
sometime during December
2021. He could not give the exact date as to
when the alleged delegation of powers was allegedly given to the
first respondent
by the second respondent.
[12]
In terms of section 7A(6)(a) of the Public Service Act, 1994 (PSA),
the head of the principal department
had the power to delegate some
of his/her powers. Section 7A(8)(b) of the PSA provides that any of
the delegation of powers or
authorisation to perform a duty shall be
in writing. The onus is on the respondents to show that the alleged
delegation by the
second respondent to the first respondent was
properly made. (See
Chairman,
Board on Tariffs and
Trade v
Teltron (Pty) Ltd
[5]
).
The respondents have no full details of when the alleged delegation
of power was allegedly verbally given to the first respondent,
except
to say that it was during December 2021. Even if the respondents had
a date as when the alleged delegation was verbally
given, it would
still have been invalid as section 7A(8)(b) of the PSA has expressly
stated that the delegation of power or authority
shall be in writing.
Therefore, the decision by the first respondent to nullify the post
and/or the process of the interviews was
unlawful.
[13]
It is common cause that the interviews for the vacant post of deputy
principal Botlokwa Special School were
conducted by the applicant,
and thereafter the applicant’s submitted their recommendations
to the second respondent for his/her
consideration. The respondents
are not challenging anything in relation to the process which the
applicant has followed in interviewing
the candidates for the vacant
post of deputy principal Botlokwa Special School. The only conclusion
to be reached is that the interviews
conducted by the applicant
regarding the vacant post of the deputy principal Botlokwa Special
School was conducted in fair manner.
[14]
In terms of section 6(3)(a) of the EEA the appointment of an educator
to any post may only be made on the
recommendation of the governing
body of the public school. In the case at hand it will be the
applicant who will made a recommendation
to the second respondent as
to who should be appointed to the vacant post of the deputy principal
Botlokwa Special School. The
applicant had indeed submitted their
recommendations to the second respondent. On receipt of the
recommendations, the second respondent
may either confirm or decline
the recommendations.
[15]
Section 6(3)(b) of the EEA has limited the circumstances under which
the second respondent may decline the
recommendations by the
applicant, and has listed five grounds. Those grounds are:
(i) where any procedure
collectively agreed upon or determined by the Minister for
appointment, promotion or transfer has not been
followed;
(ii) the candidate does
not comply with any requirement collectively agreed upon or
determined by the Minister for the appointment,
promotion or
transfer;
(iii) the candidate is
not registered, or does not qualify for registration, as an educator
with the South African Council for Educators;
(iv) sufficient proof
exist that the recommendation of the said governing body or council,
as the case may be, was based on undue
influence; or
(v) the recommendation of
the said governing body or council, as the case may be, did not have
regard to the democratic values and
principles referred to in section
7(1).
[16]
The second respondent in the case at hand did not even consider the
recommendations of the applicant, but
instead the first applicant had
nullified the post. The EEA does not make any provision for the
nullification of the process of
interviews after the interviews have
been properly held. Even if it does I have already found that the
first respondent was not
properly delegated to nullify the post
and/or the process of the interviews, and the action taken by the
first respondent was a
nullity, and of no force and effect. The
reasons given by the first respondent to nullify the post was that
the fourth respondent
had lodged a grievance, which after their
investigations, they found it to have merit. However, there is no
provision provided
for that in the EEA for the procedure followed by
the first respondent. The first respondent had nullified the post of
the deputy
principal for a reason not authorised by any empowering
provision.
[17]
The second respondent was bound to have acted in terms of the EEA on
receipt of the recommendations from
the applicant, which was to
either confirm or decline. If the second respondent was to decline,
it was supposed be on the grounds
listed in section 6(3)(b) of the
EEA, and not to nullify the post. What the respondents could have
done was to invite the applicant
for their input before they took
that decision, since the procedure they were following was not
authorised by any empowering provision.
By inviting the applicant
after a decision was taken and already communicated to the applicant
and the fourth respondent did not
solve or mitigate the problem, the
damage was already done. It is trite that once an administrative
decision has been taken, it
will remain valid until set aside by a
court of competent authority. Therefore, the procedure which the
first respondent has followed
in nullifying the post of the deputy
principal was unfair.
[18]
Under the circumstances, the decision of the first respondent to
nullify the deputy principal’s post
no 15 at Botlokwa Special
School was unlawful and invalid, and stands to be reviewed and set
aside. Since the second respondent
did not consider the
recommendations of the applicant before the post was nullified, it
will be in the interest of justice if the
matter is referred back to
the second respondent to consider the recommendations
de novo
.
[19]
In the result I make the following order:
19.1 The applicant
succeeds with its review application, and the decision of the first
respondent to nullify the deputy principal’s
post no 15 at
Botlowa Special School is declared unlawful and invalid, and
therefore reviewed and set aside.
19.2 The matter is
remitted back to the second respondent for her/him to consider the
applicant’s recommendations
de novo
and either confirm
or decline the recommendations within 30 days from date of this
order.
19.3 The first, second
and third respondents to pay the costs of this application on party
and party scale.
KGANYAGO
J
JUDGE OF THE HIGH
COURT OF SOUTH
AFRICA, LIMPOPO
DIVISION,
POLOKWANE
APPEARANCES:
Counsel for the
applicant
: Adv Tebeila
Instructed
by
: Israel Maenetja Attorneys
Counsel for the
respondent
: Adv ZS Mothupi
Instructed
by
: State Attorney Polokwane
Date
heard
: 13
th
October 2022
Electronically
circulated on
: 25
th
October 2022
[1]
76
of 1998
[2]
3
of 2000
[3]
[2004] ZACC 15
;
2004
(4) SA 490
(CC) at 513B-D
[4]
76
of 1998
[5]
1997
(2) SA 25
(A) 31F-G