MEC for Education, Northern Cape v Bateleur Books (Pty) Ltd (298/08) [2009] ZASCA 33; 2009 (4) SA 639 (SCA) ; [2009] 3 All SA 127 (SCA) (31 March 2009)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2009
>>
[2009] ZASCA 33
|

|

MEC for Education, Northern Cape v Bateleur Books (Pty) Ltd (298/08) [2009] ZASCA 33; 2009 (4) SA 639 (SCA) ; [2009] 3 All SA 127 (SCA) (31 March 2009)

Links to summary

THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case number: 298/08
In
the matter between:
THE
MEC FOR EDUCATION:
NORTHERN
CAPE PROVINCE
........................................
1
st
APPELLANT
THE
HEAD: DEPARTMENT OF
EDUCATION
:
NORTHERN CAPE
PROVINC
E
........................................
2
nd
APPELLANT
and
BATELEUR
BOOKS (PTY) LTD & OTHERS
........................................
RESPONDENTS
Neutral
Citation:
MEC
for Education, Northern Cape v Bateleur Books (Pty)Ltd
(298/08)
[2009] ZASCA 33
(31 March 2009)
Coram:
CAMERON, MTHIYANE, JAFTA, MAYA JJA, AND BORUCHOWITZ AJA
Heard:
12
NOVEMBER 2008
Delivered:
31
MARCH 2009
Summary:
Legitimate
expectation – provincial government department closely involving
private business entities in its procurement processes
– after two
years, abruptly changing practice without notice – unfair and
unlawful – decision set aside – two years not
too short for
practice to come into being – fact that alternative source of funds
used irrelevant –
budgetary decisions and
procurement processes not to be conflated for purpose of determining
duty of fair decision-making
ORDER
On appeal from
: The Kimberley
High Court (Molantwa AJ and
Kgomo JP – sitting
as a court of first instance).
'The appeal is dismissed with costs, including the costs
of two counsel.'
JUDGMENTS
CAMERON JA (
MTHIYANE,
MAYA JJA, AND BORUCHOWITZ AJA
concurring, with JAFTA JA dissenting.)
The question this case raises is whether a government
department can make private entities a close part of its procurement
processes,
putting them to trouble and expense in their permissible
pursuit of income, and then without warning summarily exclude them
from
it, leaving them to foot the bill. In my view the answer must
be No. It is the legal doctrine of legitimate expectation the
publishers cry in aid here; but it is elementary fairness that
demands their protection.
I have had the benefit of reading the judgment of my
colleague Jafta JA in which he concludes that the appeal should
succeed.
Though I agree with him that the failure by the appellants
('the department') to file the record on time should despite the

respondents’ strong objections be condoned, and that the appeal is
not moot, I cannot agree with his conclusion that the respondents

('the publishers') should be non-suited. The high court judgment in
my view rightly assessed the facts (which appear from the
judgment
of Jafta JA) as well as the equities of the situation, and soundly
applied the law to them. I would therefore dismiss
the appeal,
though in doing so I should make it clear that I do not find it
necessary to go as far as the high court did in finding
a violation
of s 217(1) of the Constitution,
1
and holding that those provisions require 'competitiveness …
determined and driven by […] market forces and not by the

Department on undisclosed criteria'.
The nub is this. For some years before 2006, the
Northern Cape education department involved publishers closely in
public schools’
book procurement. Those schools ordered learner
teacher support materials (LTSMs) off a departmental catalogue the
publishers
at their own expense prepared for this purpose. The
schools placed orders with bookshops in the province, which then
ordered
the books from the publishers.
But in June 2006, the department decided to shortcut
the process by cutting past the schools and the bookshops. For
2007, it
decided on 'central provisioning' for grades 8, 9 and 11 –
instead of the schools and bookshops procuring LSTM, it would do so

itself. Its objectives were good – mainly efficiency and cost
savings. But the effect on the publishers was harsh. Not only
did
they stand to lose their profits, but their considerable 2006
investment, in producing the catalogue, paying a participation

deposit, producing and distributing promotional materials, and
undertaking expensive marketing and publicity 'roadshows', would
go
to waste.
Worse was that the department made this decision
without consulting them. It did not even inform them. They learnt
of the proposed
change, months after it was circulated, by accident
rather than the department’s design. This triggered an emergency
meeting
with the department, and when this failed to provide a
remedy, a successful interdict application (in which the publishers
acted
in concert, even though in the short term some stood to
benefit from the change).
In the face of these facts, the judgment of Jafta JA
non-suits the publishers on three bases:
He says the publishers have shown no benefit to
themselves from the previous system;
In any event, he says, that system did not constitute a
settled practice and therefore could not give rise to any
expectation;
and
Finally, that system imposed no duty on the department
to consult the publishers.
In reaching this conclusion, Jafta JA accepts, it
appears, that the department’s decision was administrative action
as defined
in the Promotion of Administrative Justice Act 3 of 2000
(PAJA) (though the department contested this in the court below), as
well as the principles now settled in our law relating to the
doctrine of legitimate expectation, which PAJA itself recognizes.
2
I agree these principles are applicable. They should
in my view lead to the failure of the appeal. I therefore deal in
turn
with the three impediments the judgment of Jafta JA discerns.
(a) No benefit, or interests not affected
First, Jafta JA says, it is not clear what benefit or
privilege or advantage the publishers claimed to derive from the
previous
ordering process, since it was the schools that placed
orders with the bookshops, and the bookshops that on-ordered from
the
publishers. Hence, he says (para 43), the publishers’
interests were not affected since the only change was that the
department
placed the orders directly with the publishers, and not
the schools through the bookshops.
This point does not seem to me persuasive. There are
two answers to it, though before giving them, I should say that it
is not
clear that an applicant in a legitimate expectation case need
have relied on the undertaking to his or her detriment (see Lord

Hoffmann in
R (on the application of
Bancoult) v Secretary of State
[2008] UKHL
61
;
[2008] 3 WLR 955
para 60); but given what I say below it is not
necessary to decide that now.
The first answer is that benefit to the publishers from
the past practice, and detriment from its abrupt cancellation, has
never
been disputed. It was set out in the publishers’ founding
affidavit and not denied in the department’s answer. All parties

seem to have taken it as obvious. Indeed, the publishers’
interest was the counterpart of the savings the department aimed
to
achieve through central provisioning: by buying from fewer
publishers, in bigger orders, gain sizeable discounts would accrue.

The necessary corollary was fewer orders, at lesser cost. So the
publishers as a group undoubtedly benefited from the existing,
more
costly, practice. Discounts and efficient ordering were laudable
departmental objectives: but, given the department’s
past
practice, and the publishers’ reliance on them, they had to be
pursued fairly.
The second answer springs from the publishers’
explanation of why they acted in concert in these proceedings even
though some
stood to benefit from the change. It is that central
provisioning concentrated orders on some, while it excluded others.
Schools-based
ordering, by contrast, not only decentralized the
process; it diversified the choices the schools made, thus spreading
the available
funds more randomly – and more evenly – between
all the publishers. Some for all, instead of more for some.
That was a sizeable benefit, to each publisher who on
the previous process would have received orders and on the new
system would
not. Each of these publishers has in my view an
individual cause of complaint arising from a forfeited benefit or
advantage.
No one has sought to non-suit any of the publishers who
have joined in the litigation on the ground that, individually, they
stood to gain and not lose: hence nothing more need be said about
this.
(b) No expectation because no settled practice
Second, Jafta JA says, the publishers failed to show a
regular practice that they reasonably expected to continue (para
44).
This was because the province’s education head (the second
respondent, or HOD) used additional funds for LSTM procurement in

the grades concerned. This point was put up against the publishers’
case in the court below, which rejected it, and the publishers’

written argument in my view correctly points out that it conflates
two different issues – budgetary decisions and procurement

processes.
The fact that different funds were used cannot change
the duty of fairness that applied to the official disbursing them.
As Molwantwa
AJ (with whom Kgomo JP concurred) pointed out in the
high court, 'the funds had already been appropriated for purposes of
being
disbursed by the department … The HOD was simply determining
how it should be spent'.
Just as the focus of the inquiry in determining whether
a particular act is administrative action is not the identity of the
actor,
but the nature of the power exercised,
3
so too the focus is not on the nature or source of the funds but the
nature of the power invoked in disbursing them. The duty
springs
from the department’s prior practice, which involved the
publishers intricately in the book-ordering process. It required

the department to tell them it was going to change that process
before doing so. The department head could no more exempt himself

from that duty by using different funds than he could by taking the
decision in an adjoining office.
Also on the nature of the practice the publishers
invoke, Jafta JA observes that 'the procedure on which [they] rely
as proof
of a regular practice was implemented for only two years',
concluding that it was therefore not regular enough to sustain an

expectation from which a duty of fairness could spring.
This approach seems to me to err on the side of
formalism. The law does not predetermine the time that must elapse
before a departmental
or official practice can give rise to a duty
of fairness. It depends on whether what happened was an isolated
event or a procedure
designed to lay a basis for planning future
conduct and arrangements.
Here, a decentralized and diversified system was in
place for at least two years, in which the schools placed orders
through the
bookshops, which relayed them to the publishers. That
system was designed and intended to continue. Indeed, the
department
informed the schools by circular in February 2006 that it
would. As in the two preceding years, it allowed the publishers to
draw up their catalogues, to train and deploy their 'roadshow'
staff, to pay the participation deposit, and to produce and
distribute
promotional materials.
All this points to the conclusion that, until revoked,
the decentralized schools procurement system was a fairly settled
way of
doing things. It meant that the publishers could rely on it
in running up expenses and in planning for the next year. It also

meant that the department could not change it without notice to
them. It would in my view be quite unfair to non-suit them because

the system had been in existence for only two years.
I might add that the High Court relied, in my view
justifiably, on a minute the publishers recorded of the emergency
meeting with
the department in October 2006, after the department’s
intention to change the system came to their notice. That minute
shows
that the department itself regarded the practice as the
'normal' procedure, and indeed that it told the publishers that
centralized
procurement for 2007 was a 'once-off', and that 'things
will return to normal next year'.
Though the department’s answering affidavit quibbled
with the status of the minute, denying that it was an 'official
record',
it grudgingly acknowledged that 'it purports to be a record
of what occurred at the meeting, albeit a record compiled on behalf

of the [publishers]'. But, significantly, it did not dispute one
iota of its accuracy. The record persuaded Molwantwa AJ 'that
the
Department has hereby, directly or by implication, acknowledged the
existence of an established normal procedure'. That
inference was
in my view correct.
(c) No legitimate expectation in law
Jafta JA concludes (para 48) that no legal duty arose
that required the department to warn the publishers that it proposed
to
change the system. Procedural fairness, he says, did not require
the department to give the publishers an opportunity to make

representations before implementing centralized procurement. I
cannot agree with this. The settled practice and the reliance
the
publishers placed on it in making their plans were quite enough to
trigger a legal duty.
In reaching his conclusion, Jafta JA relies again on
the suggestion (para 48) that 'the only complaint the [publishers]
could
raise is that some of them would have no orders'. But that,
surely, was quite enough. The point is not that the department owed

the publishers a living, nor any obligation to contribute to their
profits. It simply owed them a duty to give them reasonable
notice
that it was planning to change the procurement processes in which it
had intimately involved them. That would enable
them to adjust
their business plans, and if necessary their markets, to absorb the
blow. To change the existing system without
notice, and after they
had incurred expenses in reliance on it, was in my view intolerably
unfair.
As Kgomo JP pointed out in refusing the department
leave to appeal, the system was not immutable, and the finding in
favour of
the publishers did not mean that procurement 'can never be
centralized by the Department'. It required only observing
elementary
fairness in process, in good time, before doing so.
In my view, this case is on all fours with
Premier
Mpumalanga v Association of State-aided Schools
1999 (2) SA 91
(CC), from which Jafta JA tries to distinguish it.
In both cases, a past practice involving the disbursement of public
funds
is interrupted mid-year, without notice, after preparations
have begun for, and reliance placed upon, its continuance. In both

cases, fairness will intervene.
In my view, the interdict was rightly granted. The
appeal is dismissed with costs, including the costs of two counsel.
________________
E CAMERON
JUDGE OF APPEAL
JAFTA JA
Introduction
This is an appeal against the
judgment of the Kimberly High Court (Molwantwa AJ, Kgomo JP
concurring) in terms of which that court
reviewed and set aside the
second appellant
’
s
decision and ordered the appellants to withdraw orders made for
delivery of books for learners in public schools in the Northern

Cape province. The main issue raised in this appeal is whether the
respondents

the publishers

had a legitimate expectation to be heard before the second appellant
took the impugned decision.
The second appellant is the administrative head of the
Department of Education (the department) in the Northern Cape
province.
The first appellant is the member of the executive council
under whose responsibility the department falls. The respondents

are publishers of books and members of the Publishers Association of
South Africa, a voluntary association representing publishers
in
this country.
The respondents instituted these proceedings for an
interdict and review of the decision taken by the second appellant.
This decision
was published in a circular addressed to the first
appellant and other functionaries in the department, including
public schools
in the province. As already mentioned, the court
below set it aside and directed the appellants to perform certain
acts concerning
procurement of books for learners at public schools.
The appeal is with leave of this court.
Statutory setting
Section 29 of the Constitution
imposes an obligation on the state to provide education for everyone
while at the same time redressing
past imbalances caused by racially
discriminatory laws and practices of the apartheid era.
4
The national and provincial governments enjoy concurrent competence
over education, excluding tertiary education.
5
In order to promote the right to education and regulate the manner
in which the state would discharge the obligation to provide

education, Parliament passed the
South African Schools Act 84 of
1996
.
Section 12 of the Act obliges the
member of the executive council responsible for education to provide
public schools for education
of learners, out of funds allocated for
that purpose by the provincial legislature.
6
The governance and management of public schools is vested in the
governing bodies whose functions and responsibilities are listed

extensively in the Act.
7
The Act also mentions powers to be exercised by the head of
department such as the second appellant. Some of these powers can
be
delegated to governing bodies upon request. Section 21 of the Act
provides:
‘
(1) Subject to this Act, a
governing body may apply to the Head of Department in writing to be
allocated any of the following functions:
(a) to maintain and improve school
’
s
property, and buildings and grounds occupied by the school, including
school hostels, if applicable;
(b) to determine the extra-mural curriculum of the
school and the choice of subject options in terms of provincial
curriculum policy;
(c) to purchase text books, educational materials or
equipment for the school;
(d) to pay for services to the school;
(dA) to provide an adult basic education and training
class or centre subject to any applicable law; or
(e) other functions consistent with
this Act and any applicable provincial law.
’
The functions allocated to a
governing body in terms of s 21 can be withdrawn by the head of
department. Except in the case of
an emergency, the head of
department is obliged to give a governing body notice of his or her
intention to withdraw a function;
furnish it with reasons therefor
and grant it an opportunity to make representations. All of this
must occur before the decision
is taken. In the case of an emergency
the head of department must furnish the governing body with reasons
for his or her decision
after it had been taken and give it a chance
to make representations.
8
Of the functions mentioned in s 21,
the purchase of books and educational material is relevant for
present purposes. The second
appellant had allocated it to governing
bodies at the time the impugned decision was taken. A governing body
of a public school
must prepare an annual budget according to
prescripts determined by the member of the executive council and
such prescripts must
be published in a Provincial Gazette. The
budget must be presented to a general meeting of parents for
approval before being
adopted by the governing body.
9
A governing body must establish a school fund and administer such
fund in accordance with directions issued by the head of department.

Money received by a school, including school fees, must be paid into
this fund.
10
A governing body also has the responsibility of supplementing
resources supplied by the state so as to improve the quality of

education to all learners at its school.
11
The norms and standards for funding schools are determined by the
Minister of Education after consultation with the Council of

Education Ministers and the Minister of Finance. These norms and
standards set out the criteria for the distribution of funding
to
all schools in a fair and equitable manner. They also provide for a
system in terms of which learners are placed into quintiles

according to financial means. This is used to determine the level of
funding.
Public schools are funded from the
public revenue and the state must effect the funding on
‘
an
equitable basis in order to ensure the proper exercise of the rights
of learners to education and the redress of past inequalities
in
education provision
’
.
The state must annually provide information to public schools
regarding such funding, to enable them to prepare budget estimates

for the next financial year.
12
Therefore, for the supply of resources to public
schools to succeed there must be co-operation between the governing
bodies and
the departmental officials in the provinces. Public
schools located in affluent areas have better resources because they
can
supplement whatever funding they receive from the state. Of the
421 schools in the Northern Cape province, 409 schools were
allocated
the power to procure their own Learner Teacher Support
Material (LTSM).
Factual background
The decision which was set aside by the court below
concerned procurement of LTSM for grades 8, 9 and 11 in 2007. Before
referring
to that decision and considering the basis on which it was
challenged, it is necessary to set out the procedure followed in the

procurement of LTSM in the Northern Cape province. Usually in
October of each year the department received from publishers such
as
the respondents books published by them and which they wished to be
included in the provincial catalogue. This catalogue was
compiled by
the department and listed books from which orders could be made for
various schools in the province.
Before being placed in the catalogue, books were
evaluated by officials in the department. By the end of January each
year, a
catalogue comprising books accepted by the evaluation team
was compiled. Once the catalogue was finalised it was submitted to
the procurement unit in the department. This unit prepared
requisition forms for schools; printed and distributed the catalogue

to schools and arranged for exhibitions by publishers whose books
were listed in the catalogue.
B
y
May the schools submitted their completed requisition forms, which
constituted orders, to bookshops. Some schools submitted
these
orders to the departmental procurement unit. From the bookshops or
the procurement unit the orders were normally sent to
publishers.
In 1997 the national government adopted the policy of
Outcome Based Education which necessitated a fundamental change in
the curriculum.
This policy was later implemented in terms of a
framework called Curriculum 2005 which later became the New
Curriculum Statement
(the NCS). The NCS was introduced incrementally
as from 2004. In that year the new curriculum for grades R to 3 was
implemented.
In 2005 the implementation was extended to grades 4 to
6 and in 2006 it was the turn of grades 7 and 10. The NCS in respect
of
grades 8, 9 and 11 was scheduled to be implemented in 2007.
The implementation of the NCS meant that the course
content and LTSM for each grade had to change. This necessitated
procurement
of new textbooks as the old ones could no longer be
used. Each learner had to be supplied with seven to eight new
textbooks.
This placed a heavy financial burden on the schools,
especially the less resourced ones. Due to budgetary constraints it
is not
possible for the state to provide each learner with all the
necessary textbooks, educator manuals and stationery. Wealthier
schools
are able to raise additional funds to cover the shortfall
while learners in poor schools have to be content with the material
supplied by the state.
When the NCS was first implemented
in 2004, schools did not receive additional funding to cover the
costs occasioned by the procurement
of the new LTSM. They had to
acquire such material from their ordinary budget allocations. The
same thing happened in 2005. During
2006 there was uncertainty
regarding who was going to bear the costs for the new LTSM for
grades 7 and 10. The uncertainty arose
from statements made by some
departmental officials. As a result the schools used most of their
funds to acquire other material
they needed. At the time the
department cleared the misunderstanding, there were no funds in the
schools
’
budgets for procurement of the new LTSM. In order to address the
problem the department was able to raise additional funding
in the
amount of R5 million.
The additional amount was made available for the
purpose of acquiring LTSM for grade 10 only. Schools were allowed to
place orders
through the department which forwarded them directly to
publishers. The bookshops were left out of the process. In this way
the
department was able to negotiate a discount of 30% from the
retail price of LTSM. In so far as LTSM for other grades was
concerned,
schools were required to pay for orders from their own
budgets.
Initially the authorities had
scheduled the implementation of the NCS in respect of grades 8 and
11 only. But later the Council
of Ministers decided that
implementation in respect of grade 9 should be effected
simultaneously with those two grades. The latter
grade was added
after school budgets had been finalised. As a result procurement of
LTSM in respect of that grade was not budgeted
for. The department
addressed the additional financial burden on schools by allocating a
special fund to cover costs for LTSM
for the three grades. Having
secured the funds the second appellant was of the view that in order
to achieve an equitable distribution
of resources the department

and not the schools - should make the selection of books to be
ordered for grades 8, 9 and 11. The selection was to be made from

the catalogue referred to above. Since the department had previously
obtained a 30% discount when it placed orders directly with

publishers, he decided to again leave the bookshops out of the
procurement process. In his view making orders directly to
publishers
had proved to be more efficient and cost-effective.
Having considered a recommendation submitted to him by officials in
the department,
the second appellant issued, as he had authority to
do so, circular 67/2006 on 20 July 2006, setting out his decision.
As the circular contains the impugned decision it is
necessary to quote it in full. It reads:
‘
CIRCULAR NO 67/2006
LEARNING
AND TEACHING SUPPORT MATERIAL (LTSM) FOR SECTION 21 AND NON-SECTION
21 SCHOOLS FOR THE YEAR 2006/2007.
1. The Department will be provisioning LTSM for Grades
(8,9,&11) implementing NCS (National Curriculum Statement) in
2007 centrally.
2. Section 21 schools however, will be responsible for
procuring their own Text and Reading books for all other top-up
Grades, as
well as the textbooks not supplied by the Department for
Grades 8,9 & 11 and other areas of LTSM (Paper, Writing books &

Stationery) from the allocations they will be receiving.
3. Non-section 21 schools will place their orders from
approved suppliers appointed through the bidding process via the
District
Offices.
4. The approved book catalogues for all Grades except
Grade 9 with copies of the Management Plan and Circular NO 22 will be
forwarded
via the District Offices to all schools.
5. District Offices are kindly requested to ensure that
all schools adhere to these dates in the management plan.
6. The Supply Chain Management Unit will be procuring
the Grades 8, 9 and 11 titles on behalf of the schools as follows:
Grade 8 - 7 Text Books per learner (Excluding
Languages)
Grade 9 - 7 Text Books per learner (Excluding
Languages)
Grade 11 - 5 Text Books per learner (Excluding
Languages)
7. The Publishers will deliver the policy directly to
Head Office who will in turn be responsible for the receipt and
packaging
of these books to the schools via the District Offices.
8. Schools will in turn be responsible, as in the past,
for providing regular progress reports on the ordering and delivery
of all
LTSM to their respective District Office who will, in turn,
have to provide Head Office with these progress reports.
Your co-operation in this regard will be appreciated.
____________________________
DEPUTY DIRECTOR GENERAL
01-09-06
’
Although the circular stipulates
that the department would procure a specified number of text books
for each learner in the affected
grades, it expressly states that
schools, if they wished to acquire books not selected by the
department, were free to order
them in the normal way and pay for
them from their own budgets. In addition schools were still
responsible for procurement of
LTSM for other grades (para 2 of the
circular). The decision to centralise procurement did not affect 12
schools which were described
as
‘
non-section
21 schools
’
.
These schools could order their material from suppliers who had been
awarded tenders to supply material (para 3 of the circular).
The circular was sent to schools in the province. None
of them complained about the decision that the department was to
select
books for them and that the bookshops were left out of the
procurement process. It was common cause that this decision was
taken
without giving the governing bodies an opportunity to make
representations. But the governing bodies did not challenge it. In
fact the schools were happy with the decision. The bookshops which
had been left out of the supply chain also did not challenge
the
decision. It was only the respondents who attacked it, even though
some of them were to benefit from the decision as orders
had already
been made to them. The respondents’ role in the chain was to
supply the bookshops with books ordered from the latter
by schools.
Although the respondents had
challenged the decision on various grounds they pursued two grounds
only, both in the court below
and this court. The first was that the
decision did not comply with the provisions of s 217 of the
Constitution.
13
Secondly, they contended that the decision amounted to procedurally
unfair administrative action which was taken in contravention
of s 3
of the Promotion of Administrative Justice Act 3 of 2000 (PAJA). In
support of this ground they argued that they had a
legitimate
expectation to be heard before the concerned decision was taken.
Section 3(1) of PAJA provides:
‘
Administrative action which
materially and adversely affects the rights or legitimate
expectations of any person must be procedurally
fair.
’
Section 3(2) proclaims that a person
whose legitimate expectations are affected must be given a
‘
reasonable
opportunity to make representations
’
before the decision is taken.
Preliminary issues
Before I address matters raised in this appeal, it is
necessary to consider two preliminary issues. The first is that the
appellants
failed to lodge the record timeously and as a result they
were obliged to apply for condonation. The second is whether this
appeal
is moot or not. When refusing leave to appeal the court below
pointed out that the matter had become academic as its order had

already been carried out and the NCS for the relevant grades had
been implemented. I address these issues in turn.
Condonation
In a case such as the present where
leave was granted by this court, the appellant was supposed to lodge
its notice of appeal
with both the registrar of this court and the
registrar of the court
a
quo
within one
month from the date on which leave was granted.
14
The date on which the notice of appeal was lodged is used as a
reference point from which the period for lodging the record is

calculated. Once the notice of appeal is lodged, the appellant must
file or lodge within three months six copies of the record
of
proceedings in the court below and deliver to respondents copies of
the same record. The parties may, however, agree to extend
the
period or the registrar may do so upon written request provided that
notice has been given to other parties. But the registrar
may not
extend the period for more than two months.
15
In this matter the appellants lodged
their notice of appeal on 3 October 2007. They ought to
have lodged the record
by no later than 4 February 2008.
They failed to do so. The record together with the application for
condonation were
lodged on 13 June 2008. It was four
months late. The applicants
’
attorney gave the following explanation for the delay. He said the
record was delivered to the respondents
’
attorneys on 9 January 2008. The copies which were meant
to be lodged with the registrar were delivered to the appellants’

Bloemfontein attorneys.
On 14 January 2008 the
Bloemfontein attorneys informed him that the record was defective in
that it was not compiled
by a
‘
professional
transcription service
’
.
It was therefore not lodged with the registrar. The appellants
’
attorney contacted various transcribing companies and all of them
indicated that they could not complete the work in time for
lodging
before 4 February 2008. While on sick leave, he instructed
a secretary in his office to send a letter requesting
extension of
time to the respondents
’
attorneys. But this letter was erroneously sent to counsel. On
returning to work he sent the letter to respondents
’
attorneys on 7 February. In a letter dated 25 February the
respondents
’
attorneys declined to grant the appellants an extension. He received
the record from transcribers on 26 March. He immediately

forwarded a copy to counsel with instructions that an application
for condonation and heads of argument be prepared. He received
both
the application and heads of argument from counsel on 10 June. As
mentioned, it was lodged on 13 June.
The respondents opposed the
application for condonation. They contended that since the granting
of the order on 21 November 2006,
they have conducted
their affairs in accordance therewith and if the appellants
’
were granted condonation and should they succeed, the new order will
be ‘disruptive and prejudicial’ to the respondents.
They argued
that they have spent amounts of money in promoting publications
which were included in catalogues for 2007 and 2008.
These
promotions were done on the understanding that the procedure
followed by schools in ordering books, before the circular
was
issued, would continue to apply. If they had known that the
procedure would be stopped, they could not have spent money on

promotions. They contended that they were entitled to finality of
the matter.
The correct approach to applications
for condonation was laid down in
Federated
Employers Fire & General Insurance Co Ltd and Another v
McKenzie
.
16
In that case Holmes JA said:
‘
In considering petitions for
condonation under Rule 13, the factors usually weighed by the Court
include the degree of non-compliance,
the explanation therefor, the
importance of the case, the prospects of success, the respondent
’
s
interest in the finality of his judgment, the convenience of the
Court and the avoidance of unnecessary delay in the administration
of
justice.
’
Applications for condonation in this
court are now regulated by Rule 12 which requires the applicant to
furnish a detailed and
accurate explanation for the delay to enable
the court to decide whether to grant or refuse condonation.
17
Although the explanation given by the appellants
’
attorney is not entirely satisfactory, as soon as the defect in the
record was pointed out, he took remedial steps and further
causes of
the delay were not occasioned by him. He had submitted the record to
the transcribing company before the deadline for
lodging the record
lapsed. Upon receiving it from the transcribers, he immediately
instructed counsel to prepare heads of argument
and the application
for condonation. The appellants themselves were in no way to blame
for the entire delay. It also appears
to me that there are prospects
of success on the merits.
The respondents
’
objection is primarily based on their interest in the finality of
the case. But they were aware that the appellants were desirous
of
appealing against the judgment because they were served with the
notice of appeal and the defective record. Their consent
to an
extension was sought but withheld. When all this happened the
respondents had already spent money on promoting their publications.

After the lodging of the notice to appeal the respondents did not
take any action which they could not have taken had they have
known
that the appellants were still pursuing the appeal. In compliance
with the order of the court below, schools had selected
and
requisitioned books as if the circular was not issued. The
appellants
’
success on appeal, if any, will not reverse the orders already made.
In these circumstances I am satisfied that condonation must
be
granted.
Mootness
Counsel for the respondents argued
that the appeal was moot because judgment by this court will have no
practical effect. The
NCS for the relevant grades was implemented in
2007 and in requisitioning LTSM, schools acted as if the impugned
decision did
not exist. While it is true that a judgment which
effectively revives that decision would not have any effect on the
implementation
of the NCS for grades 8, 9 and 11, I disagree that
such judgment will have no practical effect. The effect of the order
granted
by the court below is that whenever the department
contemplates taking a similar decision, it must afford the
respondents an
opportunity to make representations. A judgment which
sets aside the order of the court below will release the department
from
that obligation. In this context therefore such judgment will
have a practical effect. In
Natal
Rugby Union v Gould
18
this court said:
‘
Had there been no appeal the
judgment of the Court below would in all probability have continued
to influence the procedure adopted
in respect of office bearer
elections at future union meetings…. In the circumstances I
consider that determination of the appeal
will, quite apart from the
issue of costs in the Court below, have a
‘
practical
effect or result
’
within the meaning of s 21A of the Supreme Court Act.
’
Failure to comply with s 217 of the Constitution
Having found that the impugned decision amounted to
administrative action the court below based its judgment on two
grounds. It
said:
‘
34 In the circumstances of this
case, I find that the Applicants [Respondents] have established that
there are grounds of review
for the following reasons:
34.1 There is clear evidence that there was a legitimate
expectation which arose from the existence of a regular practice
which
the Publishers reasonably expected to continue.
34.2 The decision of the HOD to
cancel the right of the schools to select and procure LTS

Material in respect of grades 8, 9 and 11 without giving prior notice
to the Publishers was an administrative action which is subject
to
review.
34.3 The HOD failed to adopt a
procedurally fair and justifiable process in terms of section 217 of
the Constitution read with section
3(2) of PAJA.
’
Section 217 does not require the process followed by
the state in procuring goods to be justifiable. What is required is
that
such process must be fair, equitable, transparent, competitive
and cost-effective. The court below found that the process followed

in the present case failed to meet the criteria in s 217. It held
that for the process to be competitive orders ought to have
been
made to all publishers whose books were in the catalogue. Proceeding
from the premise that the respondents should have been
notified of
the impugned decision, the court below held that the process lacked
transparency. It reasoned thus:
‘
It is not clear how equity will be
achieved by a process which by its very nature has excluded some
publishers without any sound
basis whatsoever. There is no reason
advanced why centralization was kept under a cloak of secrecy until
such a late stage (02/10/2006).
There was, without doubt, no
transparency at all. The process had not been shown to have been cost
effective or to promote competitiveness….
Competitiveness in this
context can only be healthy when it is allowed to be determined and
driven by the market forces and not
by the Department on undisclosed
criteria. This process can only be achieved when all publishers are
given an equal opportunity
to market their products to the schools
and then be supported and chosen on the quality of their products.
’
19
To the extent that the court below implies that the
publishers were not given equal opportunity to market their books,
it erred.
All respondents were allowed and did submit their books
for inclusion in the catalogue. The selection of books ordered by
the
department was made from that catalogue. No publisher was
excluded from submitting its books for consideration and listing in
the catalogue. That process was as transparent, competitive, fair
and equitable as contemplated in s 217. Having followed such
process
the section did not oblige the state to procure books from every
publisher whose books appear in the catalogue. It was
for the state
(either through the department or schools themselves) to choose from
the catalogue books needed for learners at
schools. The selection of
books, per se, could not make the process to be inconsistent with s
217 of the Constitution. I also
fail to appreciate how the selection
that led to orders being made to some publishers rendered the
process less cost-effective.
The record does not show any pricing by
any of the publishers.
Before addressing the issue of
legitimate expectation, I must point out that the finding by the
court below to the effect that
the second appellant cancelled the
schools
’
right to select material is incorrect. There was simply no evidence
supporting it. Instead overwhelming evidence and the decision
itself
show that the schools retained their right to select and order
material for grades 8, 9 and 11. In this regard the circular
states:
‘
Section 21 schools however, will
be responsible for procuring their own Text and Reading books for all
other top-up Grades, as well
as the textbooks not supplied by the
Department for Grades 8,9 & 11 and other areas of LTSM (Paper,
Writing books & Stationery)
from the allocations they will be
receiving.
’
Clearly, if the schools wanted to
make a selection of books other than those selected by the
department, they were free to do
so. They were also allowed to
procure LTSM for other grades. The impugned decision did not at all
interfere with schools
’
budgets. It was confined to the additional fund only. The error by
the court below influenced the manner in which the case was

presented in this court. Counsel for the respondents argued that the
second appellant had, without giving the schools and publishers
a
hearing, withdrawn the schools
’
power to select books. The submission is not borne out by the facts
as demonstrated above.
Although I have reservations I am
willing to assume in the respondent
’
s
favour that they have established
locus
standi
in respect
of the subject matter of these proceedings. I am also willing to
assume in their favour that the impugned decision
constitutes
administrative action envisaged in PAJA. The question that arises is
whether the decision affected the respondents
’
legitimate expectation. They did not claim that it affected their
rights nor could they do so on the present facts. I address
the
issue of legitimate expectations below.
Legitimate expectation
Counsel for the respondents argued that the impugned
decision affected their legitimate expectation and as a result they
should
have been given the opportunity to make representations
before it was taken. Since it is common cause that the respondents
were
denied that opportunity, he submitted that the decision
contravened s 3 of PAJA. Accordingly, he argued, the decision was
procedurally
unfair and consequently invalid.
In addressing this issue the
starting point is to determine whether a legitimate expectation
existed or not. In
Administrator,
Transvaal and Others v Traub and Others
20

a leading authority on the topic

Corbett CJ described a legitimate expectation as a

‘
substantive benefit or advantage
or privilege which the person concerned could reasonably expect to
acquire or retain and which
it would be unfair to deny such person
without prior consultation or a prior hearing
’
.
21
The doctrine of legitimate
expectation finds application where a person enjoys a privilege,
advantage or benefit which it would
be unfair to deny such person
without giving him or her a hearing.
22
The legitimate expectation contemplated in s 3 of PAJA can arise
either from a promise made by the decision-maker or from a regular

practice which is reasonably expected to continue. The purpose of
legitimate expectation is to provide procedural fairness in

decision-making in circumstances where the decision does not affect
the rights of the party in need of protection against unfairness.
In
Traub
Corbett CJ, however, warned against the danger of freely invoking
the doctrine. The learned Chief Justice said:
‘
[W]hereas the concepts of liberty,
property and existing rights are reasonably well defined, that of
legitimate expectation is not.
Like public policy, unless carefully
handled it can become an unruly horse. And in working out,
incrementally, on the facts of
each case, where the doctrine of
legitimate expectation applies and where it does not, the Courts
will, no doubt, bear in mind
the need from time to time to apply the
curb. A reasonable balance must be maintained between the need to
protect the individual
from decisions unfairly arrived at by public
authority (and by certain domestic tribunals) and the contrary
desirability of avoiding
undue judicial interference in their
administration.
’
23
T
he
application of the doctrine of legitimate expectation is determined
on a case-by-case basis. The test for establishing whether
a
legitimate expectation exists is twofold. A party claiming that its
expectation has been adversely affected by administrative
action
must prove, by means of accepted facts, either that the
decision-maker had made a promise or that it followed a regular

practice which the claimant reasonably expected to continue and be
extended to it. Once this is established, then the court must

determine whether, in the circumstances of the particular case, the
facts introduce a legal duty which obliges the decision-maker
to
afford the claimant a pre-decision hearing.
24
This entails a value judgment to be made by the court while bearing
in mind the need to strike the balance referred to in
Traub
.
Returning to the present facts, in determining whether
the respondents have established a legitimate expectation it is
necessary
to examine their case as set out in the papers. In their
founding affidavit the respondents stated:
‘
25. In the past schools in the
Northern Cape have ordered publications off a catalogue produced by
the Department.
These
orders were placed with various bookshops in the province
(‘suppliers
’
),
which suppliers in turn ordered the publications selected by the
schools from the relevant publishers
.
(my
emphasis)
26. This year the Department has, in
most subjects/learning areas, excluded the schools and the suppliers
from the process, selected
the books themselves and placed orders
directly with certain of the publishers.
’
The above procedure was confirmed by
the appellants with one qualification. That is that schools
submitted orders either to bookshops
or the department. Because
these are motion proceedings, where the appellants
’
version differs with that of the respondents, it must prevail.
25
However, it is quite clear that parties on both sides agree that
previously the selection of books was done by schools, irrespective

of whether subsequently the orders were submitted to bookshops or
the department.
On the respondents case it is not clear what benefit,
privilege or advantage they derived from the process whereby the
schools
sent orders to bookshops who, in turn, acquired stock from
the respondents. It appears to me that if there was any advantage

flowing from that process, it accrued to the bookshops which, it
seems, were suppliers to whom tenders were awarded. There was
no
direct link between the schools and the publishers. The bookshops
were the common link. In my view the respondents’ interests
were
not affected even in the case where the schools submitted orders to
the department, following a selection of books by the
schools
themselves. The department forwarded such orders to the respondents.
The fact that orders did not come from the bookshops
made no
difference. The only thing new brought about by the impugned
decision is that the department selected books for schools.
That
selection was, of course, confined to orders relating to the special
fund and such orders were placed directly with the
respondents.
The power to select books suitable
for learners in public schools in the Northern Cape province vests
in the second appellant.
He controls the budget allocated to the
department. It was him who made additional funds available for
procurement of LTSM for
the relevant grades. He is the functionary
who allocated the power to procure books to the schools
’
governing bodies. The impugned decision did not withdraw that power
but it meant that orders made in relation to the additional
fund the
department would select the books. The schools were happy with the
decision. He had done the same in the previous year
in respect of
additional funds which were made available for ordering LTSM for
grade 10. In these circumstances I am unable to
appreciate how the
respondents could entertain an expectation that they would be heard
before the decision was taken. It seems
to me that they could not
have anticipated that additional funds were going to be made
available. Nor could they have reasonably
expected to be heard if
the department were to decide to make the selection itself. If
anything, they should have expected the
opposite when additional
funds were made available because that was the position in the
previous year.
Moreover, the procedure on which the
respondents rely as proof of a regular practice was implemented for
only two years before.
In the third year of implementing the NCS the
department departed from that procedure in respect of grade 10. Can
it be said

in these circumstances

that there was a regular practice which the respondents expected to
continue? I think not. Bearing in mind that the schools were
still
free to select and order books for grades 8, 9 and 11, there was no
right or interest of the respondents which was adversely
affected by
the impugned decision.
B
ut
on the assumption that the first requirement is fulfilled the
question that needs to be considered is whether in these
circumstances
the respondents should have been given the opportunity
to make representations before the decision was taken. In doing so,
Corbett
CJ
’
s
caution in
Traub
must be borne in mind. That warning is consistent with the principle
of judicial deference referred to in the following statement
by
Professor Hoexter, cited with approval by this court and the
Constitutional Court in
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Others
:
26
‘
[A] judicial willingness to
appreciate the legitimate and constitutionally ordained province of
administrative agencies; to admit
the expertise of those agencies in
policy-laden or polycentric issues, to accord their interpretation on
fact and law due respect;
and to be sensitive in general to the
interests legitimately pursued by administrative bodies and the
practical and financial constraints
under which they operate. This
type of deference is perfectly consistent with a concern for
individual rights and a refusal to
tolerate corruption and
maladministration. It ought to be shaped not by an unwillingness to
scrutinize administrative action, but
by a careful weighing up of the
need for

and the consequences of

judicial intervention… Above all, it ought to be shaped by a
conscious determination not to usurp the functions of administrative

agencies; not to cross over from review to appeal.
’
27
Even if the respondents had
established facts giving rise to a legitimate expectation, it could
not follow as a matter of law
that they were entitled to a hearing.
The question whether an expectation is legitimate to the extent of
giving rise to the right
to be heard depends on the circumstances of
each case. The fact that a decision is prejudicial to a particular
party, by itself,
is not sufficient for invoking the doctrine of
legitimate expectation. The issue is whether the facts of the case,
viewed as
a whole, cry out for a pre-decision hearing. The
claimant’s subjective hope or expectation is not relevant to the
enquiry.
In
SARFU
28
the Constitutional Court said:
‘
The requirement of procedural
fairness, which is an incident of natural justice, though relevant to
hearings before tribunals, is
not necessarily relevant to every
exercise of public power.
Du
Preez’s
case is
no authority for such a proposition, nor is it authority for the
proposition that, whenever prejudice may be anticipated,
a
functionary exercising public power must give a hearing to the person
or persons likely to be affected by the decision. What
procedural
fairness requires depends on the circumstances of each particular
case. For instance, in
Du
Preez’
s case, the
calling of evidence was likely to cause severe prejudice to the
persons implicated thereby. Yet, it could hardly have
been suggested
that the commission would not have been entitled to take the decision
to call the witnesses without first hearing
such persons.’
29
I am of the view that the present case falls into the
category referred to in SARFU. Procedural fairness did not require
the second
appellant to give the respondents an opportunity to make
representations before he decided that the department would make the
selection of books and place orders with some of the respondents.
Since the selection was made from the catalogue and the orders
made
to some of the respondents, the only complaint the respondents could
raise is that some of them would have no orders. By
selecting one
book for each learner throughout the province, the second appellant
reduced the number of publishers to whom orders
could be made. In
essence this was the complaint by the respondents. The impact of the
selection on the respondents must be viewed
in the light of the fact
that it applied to orders made in relation to the special fund only.
The schools were still free to
select other books for the same
grades and LTSM for other grades. On these facts the duty to act
fairly, in my view, did not
require a pre-decision hearing.
For the conclusion that the
respondents had a legitimate expectation to be heard, the court
below relied on
Premier,
Mpumalanga and Another v Executive Committee, Association of
State-aided Schools, Eastern Transvaal
.
30
In that case the Constitutional Court held that in the particular
circumstances of that case the affected schools had a legitimate

expectation to be heard before the decision withdrawing subsidies
was taken. The court emphasised the fact that it was procedurally

unfair to cancel the subsidies in the middle of the year, without
notice, after the MEC for education had allocated funds for
such
subsidies for the entire financial year. Moreover, the decision to
cancel subsidies was made to have a retrospective effect.
The facts in
Premier
Mpumalanga
were
briefly that the department of education had been paying subsidies
to schools for the needy white learners over a period
of years. The
payment was effected in terms of a policy of the past apartheid
government. The current democratic government wanted
to terminate
the policy as it was based on and perpetuated the inequalities of
our past. At the end of the 1994 school year,
the provincial
government issued notice that payment of subsidies would continue
until the end of 1995 or until the government
decided otherwise.
Subsidies were indeed paid for the first and second terms in 1995.
In May 1995 the MEC for education allocated
funds from his budget
for the payment of the subsidies until the end of the financial
year. As a result the schools arranged
their affairs on the footing
that they would receive the subsidies until the end of the financial
year or until payment is terminated
by notice to schools. However,
the MEC informed the schools on 5 August 1995 that he had
decided to terminate the subsidies
with effect from July 1995. The
facts of this case are distinguishable from the present matter and
reliance on it was misplaced.
For these reasons I would allow the
appeal.
________________
C N JAFTA
JUDGE OF APPEAL
Appearances:
For 1
st
& 2
nd
Appellant: I Jamie SC
D Borgström
Instructed by
State Attorney Bloemfontein
For Respondent: R G L Stelzner
Instructed by
Fairbridges Attorneys Cape Town
Duncan & Rothman Kimberley
McIntyre & van der Post Bloemfontein
1
Constitution s 217:
Procurement
(1) When an organ of
state in the national, provincial or local sphere of government, or
any other institution identified in national
legislation, contracts
for goods or services, it must do so in accordance with a system
which is fair, equitable, transparent,
competitive and
cost-effective.
2
Promotion of Administrative Justice Act 3 of
2000
, s
3(1):
'Administrative action
which materially and adversely affects the rights or legitimate
expectations of any person must be procedurally
fair.'
3
President of the Republic of South Africa v South African Rugby
Football Union
2001 (1) SA 1
(CC) para 141.
4
Section 29
provides: ‘(1) Everyone has the right

(a) to a basic education, including adult basic education; and (b)
to further education, which the state, through reasonable
measures,
must make progressively available and accessible. (2) Everyone has
the right to receive education in the official language
or languages
of their choice in public educational institutions where that
education is reasonably practicable. In order to ensure
the
effective access to, and implementation of, this right, the state
must consider all reasonable educational alternatives,
including
single medium institutions, taking into account

(a) equity; (b) practicability; and (c)
the need to redress the results of past racially discriminatory laws
and practices.’
ï€
5
See Part A of Schedule 4 of the Constitution.
6
Section 12 provides: ‘(1) The Member of the Executive Council
must provide public schools for the education of learners out
of
funds appropriated for this purpose by the provincial legislature.
(2) The provision of public schools referred to in subsection
(1)
may include the provision of hostels for the residential
accommodation of learners.’
7
See sections 16 and 17 of the Act.
8
Section 22 provides: ‘(1) The Head of Department may, on
reasonable grounds, withdraw a function of a governing body. (2)
The
Head of Department may not take action under subsection (1) unless
he or she has- (a) informed the governing body of his
or her
intention so to act and the reasons therefore; (b) granted the
governing body a reasonable opportunity to make representations
to
him or her relating to such intension; and (c) given due
consideration to any such representations received. (3) In cases
of
urgency, the Head of Department may act in terms of subsection (1)
without prior communication to such governing body, if
the Head of
Department thereafter

(a) furnishes the governing body with reasons for his or her
actions; (b) gives the governing body a reasonable opportunity to

make representation relating to such actions; and (c) duly considers
any such representations received. (4) The Head of Department
may
for sufficient reasons reverse or suspend his or her action in terms
of subsection (3). (5) Any person aggrieved by a decision
of the
Head of Department in terms of this section may appeal against the
decision to the Member of the Executive Council.’
9
See s 38 of the Act.
10
See s 37 of the Act.
11
See s 38 of the Act.
12
See s 35 of the Act.
13
Section 217(1) provides: ‘When an organ of the state in the
national, provincial or local sphere of government, or any other

institution identified in national legislation, contracts for goods
or services, it must do so in accordance with a system which
is
fair, equitable, transparent, competitive and cost-effective.’
14
Rule 7(1) provides: ‘(1) An appellant in a civil case shall lodge
a notice of appeal with the registrar and the registrar
of the court
a quo within one month after the date of - (a) …. (b) the granting
of leave where leave to appeal is required
….’
15
See Rule 8 of the Supreme Court Rules.
16
1969 (3) SA 360
(A) at 362G-H.
17
Rule 12(4) provides: ‘(4) Every application, answer or reply
shall - (a) be clear and succinct and to the point; (b) furnish

fairly all such information as may be necessary to enable the court
to decide the application; and (c) deal with the merits of
the case
only in so far as is necessary for the purpose of explaining and
supporting the particular grounds upon which the application
is
sought or opposed.’
18
[1998] ZASCA 62
;
1999 (1) SA 432
SCA at 444J-H445B.
19
The judgment of the court below at para 31.
20
[1989] ZASCA 90
;
1989 (4) SA 731
(A).
21
Ibid at 758D-E.
22
See
Walele v City of Cape Town and Others
[2008] ZACC 11
;
2008 (6) SA 129
(CC) at para 35.
23
Above n 17 at 761D-G.
24
Above n 19 at para 38.
25
See
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A).
26
[2004] ZACC 15
;
2004 (4) SA 490
(CC);
2003 (6) SA 407
(SCA) and
Logbro
Properties CC v Baldderson NO and Others
2003 (2) SA 460 (SCA).
27
Hoexter ‘The future of Judicial Review in South African
Administrative Law’
(2000) 117
SALJ
484
at 501-2.
28
President of the Republic of South Africa and
Others v South African Rugby Football Union and Others
2000 (1) SA 1
(CC).
29
Ibid para 219.
30
1999 (2) SA 91
(CC).