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[2022] ZAECMKHC 76
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MEC: Department of Education: Eastern Cape Province and Others v Cohcrane and Others (CA 179/2021) [2022] ZAECMKHC 76 (18 October 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
APPEAL
CASE NO: CA 179/2021
In
the matter between:
THE
MEC: DEPARTMENT OF EDUCATION:
EASTERN
CAPE
PROVINCE
First Appellant
THE
DISTRICT DIRECTOR: DEPARTMENT OF
EDUCATION
SARAH BAARTMAN DISTRICT
Second Appellant
BELINDA
BOTHA
Third Appellant
FUNDISWA
JIM-WABANIE
Fourth Appellant
and
DOLAN
GORDON
COHCRANE
First Respondent
JENNIFER
MAY
HOPE
Second Respondent
ISAAC
KELVIN
KAYSTER
Third Respondent
TESSA
CLAIR
NEILL
Fourth Respondent
GRANT
GEORGE
LEMKE
Fifth Respondent
CHERYL
WADDELOW
Sixth Respondent
DAVID
ANDREW
LANGMEAD
Seventh Respondent
DEREK
LIGHT
N.O
Eight Respondent
JOHN
DOUGLAS STERN
N.O.
Ninth Respondent
KEVIN
CHARLES WATERMEYER
N.O.
Tenth Respondent
ARLAND
JAMES USSHER STANLEY N.O.
Eleventh Respondent
KARIN
WALTRAUD MARAIS
N.O.
Twelfth Respondent
LIONEL
ALEXANDER DE LA HARPE N.O.
Thirteenth Respondent
REPORTABLE:
YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED.
JUDGMENT
POTGIETER
J
Introduction
[1]
This appeal, with the leave of the court
a quo,
has been
confined to the following issues:
“
(a) Whether the 14 day
period referred to in Regulation 19.4 of the Regulations promulgated
on 16 October 2017 in Provincial Notice
No. 3939 (the Regulations)
constitute a procedural time bar and not a substantive time bar;
(b) Since the 14 day period in
regulation 19.4 had elapsed, whether it was no longer open to the
District Electoral Officer (DEO)
to resolve the dispute which had
been raised;
(c) Whether, having regard to the
content of the answering affidavit, the DEO should not have been
permitted to take longer than
the 14 day period to consider and
decide upon the complaints which had been received.”
[2]
Pursuant to an agreement reached among the parties, the Respondents
are
abiding by the decision of this court in respect of the abovesaid
confined issues for adjudication on appeal and did not appear
at the
hearing of the appeal.
The
Issue
[3]
The matter concerns a dispute that had arisen with regard to the
election
of the School Governing Body of the Union High School,
Graaf-Reinet which is a public school as defined in the South African
Schools
Act, 84 of 1996 (“the Act”). The First Appellant,
the Member of the Executive Council for Education, Eastern Cape
Province
(“the MEC”), acting under delegated authority,
promulgated the Regulations for the Elections of School Governing
Bodies
for Public Schools (“the Regulations”), in terms
of the Act in Provincial Notice No. 3939 in the Provincial Gazette
on
16 October 2017.
[4]
The Regulations provide,
inter alia
, for a School Electoral
Officer (“SEO”) to preside over local elections and to
deal with any disputes that arise during
the elections. Any
unresolved disputes and those arising after finalisation of the
elections are dealt with by the District Electoral
Officer (“DEO”)
who is required to decide the dispute and notify the outcome to the
complainant within 14 days of receipt
of the dispute. The procedure
governing elections is set out in Regulation 19. In the present
matter the DEO was unable to finalise
the dispute that had arisen
within the said 14 day period as provided for in Regulation 19.4. The
real issue currently is the proper
interpretation of Regulation 19.4
and more specifically whether the 14 day period constitutes a
substantive or procedural time-bar
provision. In the former event the
DEO would be absolutely prohibited from dealing with the dispute
after expiry of the 14 day
period, while the period could be extended
in appropriate circumstances in the latter event. This is
encapsulated in the first
issue that has been identified above for
adjudication on appeal.
Mootness
[5]
Before dealing with the merits of the matter, it is necessary to
decide
whether the appeal has become moot given the fact that the
dispute between the parties has effectively been resolved. The
determination
of the remaining issues identified above cannot
conceivably have any direct effect on that dispute.
[6]
The issue of mootness is regulated by
section 16(2)(a)(i)
of the
Superior Courts Act, 10 of 2013
which provides as follows in relevant
part:
“
When at the hearing of an
appeal the issues are of such a nature that the decision sought will
have no practical effect or result,
the appeal may be dismissed on
this ground alone.”
[7]
The subsection confers a discretion on the court (cf
Absa Bank v
Van Rensburg 2014(4) SA 626 (SCA)
dealing with the similarly
worded section 21A of the Supreme Court Act, 59 of 1959) which is
exercised in favour of deciding the
merits of appeals (which are
otherwise academic) where important questions of law are at issue
which are likely to arise frequently
and their determination may be
of benefit in other cases.
[8]
It has been stated that the test is not whether the judgement might
be
of interest in a hypothetical future case (
Premier, Provinsie
Mpumalanga v Groblerdalse Stadsraad 1989(3) SA 1136 (SCA) at 1141
D-F).
This does not, however, preclude an appeal in a true “
test
case”
where circumstances create a practical need for the
court to express its view on a particular point of law of public
interest for
future guidance which is bound to have a very definite
practical effect (
Western Cape Education Department v George
1998
(3) SA 77
(SCA) at 84D; Natal Rugby Union v Bold
[1998] ZASCA 62
;
1999 (1) SA 432
(SCA) at 445B).
[9]
The Supreme Court of Appeal indicated in
Van Staden v Pro-wiz
2019(4) SA 532 (SCA) at para [5]
that:
“
An appeal will have a
practical effect or result when it raises a discreet issue of public
importance, the answer to which would
affect matters in the future,
and on which the decision of this Court is required.”
[10]
Mr Buchanan SC, who appeared on behalf of the Appellants, submitted
that the remaining
issues to be determined on appeal raise
fundamental matters of public importance and will indeed have a
direct practical effect.
I agree with Counsel’s submission
insofar as the first of the three remaining issues being raised on
appeal is concerned,
namely whether the 14 day period referred to in
Regulation 19.4 constitutes a substantive as opposed to a procedural
time bar.
The proper and effective resolution of disputes concerning
School Governing Body elections in this Province is a matter of
public
importance and impacts directly on the entire school
community. The proper construction to be placed upon Regulation 19.4
is an
important issue of law that is likely to arise frequently and
that requires clarification and the guidance of the court for the
benefit of matters in the future. The appeal in respect of this issue
is therefore not moot. In my view, however, the two remaining
issues
do not fall into the same category and do not warrant being decided
in this appeal and I decline to do so. I accordingly
proceed to deal
with the first issue only.
Nature
of the time-bar provision in Regulation 19(4)
[11]
Regulation 19 provides for the election of School Governing Bodies
and is to the following
effect:
“
19.1 The school electoral
officer shall decide all matters concerned with the nomination and
election of nominees in terms of all
the categories;
19.2 All the disputes should be
reported to the school electoral officer during the process of the
elections;
19.3 The school electoral officer
shall resolve all disputes to declare elections undisputed. His or
her decision during the election
is final;
19.4 If the school electoral
officer is unable to resolve the dispute the election should be
completed and the dispute can then
be referred to the district
electoral officer within 7 days after the election day. The district
electoral officer shall inform
the complainant in writing of his or
her decision and the reasons therefor within 14 days after the
receipt of the complaint;
19.5 In the event that the
knowledge of any alleged irregularities only became available after
completion of the election process,
a dispute can be referred to the
district electoral officer. The provisions of Regulation 19(4) and
19(6) will then apply;
19.6 An appeal may be lodged with
the MEC within 7 (seven) days, should the complainant not be
satisfied with the decision taken
by the electoral officer;
19.7 The MEC must inform the
complainant in writing of his or her decision and the reasons
therefor within 30 (thirty) days of receipt
of the appeal.”
[12]
It is readily apparent that Regulation 19 envisages that a dispute
may be raised with regard
to the election of a School Governing Body
during as well as after the completion of the elections. Unresolved
local disputes are
ultimately referred to the District Electoral
Officer as are post-election disputes. The decision of the DEO
together with the
reasons therefor must be communicated in writing to
the complainant within 14 days of receipt of the complaint.
[13]
We are required to determine the proper interpretation of this
time-bar provision. The
crisp issue to be decided is whether the 14
day time bar in Regulation 19.4 is substantive in nature in that it
constitutes an
absolute prohibition against dealing with or
finalising a dispute after the 14 day period had expired or is
procedural in nature
allowing for the 14 day period to be extended
upon good cause being shown.
[14]
In dealing with this aspect in its judgment, the court
a quo
concluded that Regulation 19.4 contains a substantive time bar which
precluded the DEO from dealing with the relevant dispute subsequent
to the expiry of the 14 day period. It held as follows in this
regard:
“
[22] However, given that the
SEO did not implement the outcome and that the matter is now in the
hands of the DEO, should the DEO
be afforded time to consider the
complaint?
[23] It is common knowledge that
the DEO received the dispute on 23 March 2021. Acting on the basis of
section 19(4) of the regulations,
she had fourteen (14) days within
which to resolve it and she did not. …
[24] Even if, for argument sake the
dispute fell under section 19(4) of the regulations, the DEO ought to
have dealt with it within
fourteen days of receipt of the dispute.
This she has failed to.” (sic)
[15]
The essential distinction between substantive and procedural time
bars was recently considered
by the Constitutional Court in
Competition Commission v Pickfords Removals 2021(3) SA 1 (CC)
(“Pickfords Removals”).
The court took as a useful
starting point the well-established approach to statutory
interpretation set out as follows in
Cool Ideas 1186 CC v Hubbard
2014(4) SA 474 (CC) at para 28
:
“
A fundamental tenet of
statutory interpretation is that the words in a statute must be given
their ordinary grammatical meaning,
unless to do so would result in
an absurdity. There are three important interrelated riders to this
general principle, namely:
(a) that statutory provisions
should always be interpreted purposively;
(b) the relevant statutory
provision must be properly contextualised; and
(c) all statutes must be construed
consistently with the Constitution, that is, where reasonably
possible, legislative provisions
ought to be interpreted to preserve
their constitutional validity. This proviso to the general principle
is closely related to
the purposive approach referred to in (a).”
[16]
The court in
Pickfords Removals
proceeded to point out that in
determining the nature of a time-bar provision regard should be had
to the purpose served by the
provision and an interpretation should
be favoured which promotes the spirit, purport and objects of the
Bill of Rights.
[17]
The purpose of Regulation 19.4 is to create a mechanism to
expeditiously, where possible,
dispose of unresolved disputes post
the election process when the School Electoral Officer is
functus
officio.
In the absence of this provision there would be no
mechanism to determine post-election disputes. The appeal
jurisdiction of the
MEC in terms of Regulation 19.6 clearly only
applies in respect of decisions by electoral officers and does not
entail original
as opposed to appellate powers to deal with disputes.
[18]
There is a high likelihood in many disputes of the DEO not being able
to finalise a dispute
within fourteen days as occurred in the present
matter. The interpretation that Regulation 19.4 contains a
substantive time bar
would render nugatory the purpose of creating a
post-election dispute resolution mechanism. On that interpretation
the DEO would
be unable to finalise an outstanding dispute and should
cease all activities upon expiry of the fourteen day period no matter
how
close the dispute is to finalisation or despite the existence of
good cause for the delay in finalising the dispute. Such a result
would be absurd. While it is desirable that disputes of this nature
be dealt with expeditiously, it is more important and in the
public
interest for disputes and complaints by interested persons concerning
the election of School Governing Bodies affecting
as it does, the
entire school community, be disposed of and not be left, as it were,
hanging in the air. An interpretation favouring
the effective
disposal of dispute of this nature, is to be preferred to one having
the opposite effect and which renders the purpose
of the provision
ineffectual.
Conclusion
[19]
The court
a quo
accordingly erred in concluding that
Regulation 19.4 contains a substantive time bar. On a proper
interpretation the 14 day period
in issue constitutes a procedural
time bar which can be extended in appropriate circumstances.
[20]
It follows that the appeal in respect of the first issue must
succeed. The Appellants are
not seeking a costs order. In the result,
the following order is made:
(a) it is declared that the fourteen
day period contained in Regulation 19.4 of the Regulations
promulgated on 16 October 2017 in
Provincial Notice No. 3939,
constitutes a procedural time bar which can be extended upon good
cause being shown;
(b) there shall be no order as to
costs.
D.O.
POTGIETER
JUDGE
OF THE HIGH COURT
I
agree:
M.J
LOWE
JUDGE
OF THE HIGH COURT
I
agree:
A
DA SILVA
ACTING
JUDGE OF THE HIGH COURT
APPEARANCE
Counsel
for the appellants:
Adv RG Buchanan SC, instructed by the State Attorney
29 Western Road,
Central, Gqeberha c/o Whitesides Attorneys, 53 African Street,
Makhanda
For
the Respondents:
No Appearance
Date
of hearing:
08 August 2022
Date
of delivery of judgment: 18 October
2022