Douglas High School and Another v Head of the Department of Education, NC and Others (1118/2019) [2021] ZANCHC 18 (16 April 2021)

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[2021] ZANCHC 18
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Douglas High School and Another v Head of the Department of Education, NC and Others (1118/2019) [2021] ZANCHC 18 (16 April 2021)

IN THE
HIGH COURT OF SOUTH AFRICA
(NORTHERN CAPE
DIVISION, KIMBERLEY)
CASE
NO.: 1118/2019
Date
heard:  19-10-2020
Date
delivered: 16-04-2021
In
the matter between:
Douglas High
School

1
st
Applicant
The School Governing Body of Douglas
High
School

2
nd
Applicant
and
The Head of the Department of
Education, NC

1
st
Respondent
MEC for Education NC

2
nd
Respondent
Mr F J Waldeck

3
rd
Respondent
Ms. C Myburgh

4
th
Respondent
Ms J Erasmus

5
th
Respondent
CORAM:
WILLIAMS J et
JUDGMENT
WILLIAMS
J:
1.
In
this review application the 1
st
applicant, Douglas High School (the school) and the 2
nd
applicant, the School Governing Body of the school ( the SGB), seek
the following relief against the 1
st
respondent, the Head of Department of Education, Northern Cape (the
HOD):
“
1.
That the first respondent’s administrative decision to decline the
recommendation by the
second applicant for the appointment of the
third respondent as Departmental Head in post number 201807/0242 at
first applicant be
reviewed, remedied, and set aside.
2.
That the first respondent be directed and ordered to appoint
permanently to the
first respondent’s employ at first applicant,
Douglas High School in Douglas, third respondent,
Mr F J WALDECK,
persal no 55384268 as the Departmental Head in Physical Sciences
Grade 10-12; Agricultural Technology Grade 10 – 12 &
Agricultural
Sciences Grade 10-12 (post number 201807/0242), as per
the recommendation of the second applicant dated 17 September 2019,
such appointment
to be made within 7 days of the court order.
3.
That the first-and second respondents be directed to pay the costs of
this application
jointly and severally, the one paying the other to
be absolved.”
2.
The
2
nd
respondent is the Member of the Executive Council for Education in
the Northern Cape (the MEC).  The MEC in cited in his official
capacity as political head of the Department of Education in the
Northern Cape (the Department) because he may have an interest in
the
application.  Although the relief sought in the Notice of Motion
quoted above includes a cost order against the MEC, the
applicants
have in both their founding and replying affidavits stated that this
was a mistake and that no relief is sought against
the MEC.
3.
The
3
rd
respondent is Mr F J Waldeck an educator at the school and the SGB’s
preferred candidate for the vacant post of Departmental Head
as more
fully described in the second prayer of the Notice of Motion cited
above.
4.
The
4
th
and 5
th
respondents, Ms C Myburgh and Ms J Erasmus are also educators at the
school and were respectively the SGB’s second and third ranked
candidates for the vacant Departmental Head post.  These parties
are also cited merely for the interest they may have in this
matter.
5.
It
appears to be common cause that educators who have experience in
teaching agricultural subjects at high school level are difficult
to
find.  This dearth of suitable agricultural educators led the
SGB to headhunt Mr Waldeck during 2017.  At the time he
was the
internally appointed Acting Departmental Head agricultural subjects
at the Northern Cape Agricultural High School in Jan
Kempdorp.
He had also previously been appointed by the Department to act in the
same position at that school during 2015.
6.
Mr
Waldeck was amenable to a transfer to the school, which was
formalised by the Department during April 2017, where he was
appointed
as a post-level 1 educator in agricultural subjects.
7.
When
the Departmental Head post came into existence at the school during
2018 the Department appointed Mr Waldeck to act in this post
at the
school.
8.
After
the vacant post was advertised and the initial sifting, shortlisting
and interviewing proceedings were completed, the SGB made
its
recommendations to the HOD as described in paragraphs 3 and 4 above
on 17 September 2018.
9.
On 11
December 2018 the HOD, in a letter addressed to the SGB, declined to
make an appointment.  The letter reads as follows;
“
After
thorough consideration of your recommendation, my office has come to
the conclusion that same must be declined in terms of section
6(3)
(e) of the Employment of Educators Act 76 of 1998 (the Act).
The
documents at my disposal reveal that your office has not complied
with section 6 (3) (b) (iii) of the Act in that your preferred
candidate does not meet the profile of the post.  Your office
must appreciate that in the provision of quality education we
must
promote educators into the correct positions provided they meet the
requirements for such promotion.  Sadly, this is not
the case in
the current matter, my office would advise you place the mentioned
preferred candidate(s) in the correct position so
as to ensure that
we do not jeopardise future upward mobility.
My
office has further considered all applications for the said vacancy
and is not satisfied that we would be able to comply with section
6
(3) (g) (iii) of the Act.
Given
the above, it is my decision that the mentioned post will be
re-advertised in the next gazette.”
10.
On 4
February 2019, the applicants, through their attorneys of record,
Horn & Van Rensburg Attorneys, requested the HOD to provide
in
terms of s5 of the Promotion of Administrative Justice Act, Act 3 of
2000 (PAJA), full and adequate reasons in writing, within
90 days,
for the decision to decline to appoint Mr Waldeck in the post.
11.
After
the expiry of the 90 day period within which to provide reasons on 6
May 2019 and with no reasons forthcoming the applicants
launched this
application on 20 May 2019.
12.
On 10
June 2019, the attorneys for the 1
st
and 2
nd
respondents, Mjila & Partners, wrote a letter to the applicants
attorneys elaborating on the reasons why the HOD declined the
appointment of Mr Waldeck.  The relevant portion of this
communication reads as follows:
“
3.
Firstly, it is our instruction that, your clients were informed
exactly why your clients’
preferred candidate was not appointed.
The first Respondent in its letter of 18 December 2018 clearly
advised your clients
that they have not complied with section 6(3)
(b) (iii) of the Employment of Educators Act, No 76 of 1998 (“the
Act”) in that
your preferred candidate did not meet the profile of
the post.  You will appreciate that in order to meet the profile
of post
a candidate must meet the minimum professional qualifications
for the post.  Your clients’ preferred candidate and the other
recommended candidates did not meet the profile for the post since
they failed to comply with provisions of clause B.3.2.1 (a) and/or
(b) of the
Personnel
Administrative Measures
(herein
after referred to as PAM).
4.
To demonstrate the failure of the 3
rd
, 4
th
and
5
th
Respondents to satisfy the requirements of the
position, you will note that according to the advertisement, the
Respondents would
be required to teach the following subjects:
“Fisiese Wetenskappe” (Physical Science) Grade 10-12,
“Lanboutegnologie” (Agricultural
Technology) Grade 10-12 and
Landbouwetenskappe” (Agricultural Science) Grade 10-12.
When
regard is had to the academic qualifications of the 3
rd
to 5
th
Respondents it is abundantly clear that your client’s preferred
candidate did not demonstrate that the subjects listed herein above
form part of his professional qualification (a degree or diploma at
tertiary educational level).  Neither did any of the other
recommended candidates demonstrate that all of the aforementioned
subjects form part of their professional qualification.
Accordingly,
as a minimum, the recommended candidates had to
demonstrate that their professional qualifications reflect that they
have a basic
knowledge of the aforementioned subjects, which their
professional qualifications failed to do.
5.
We further wish to draw your attention to
section
6 (b) (iii) of the Educators Employment Act
,
(should
be section 6(3)(b)(iii)) which reads as follows:
“
In
considering the applications, the governing body or the counsel, as
the case may be, must ensure that the principles of equity,
redress
and representivity are complied with and the governing body or
council as the case may be, must adhere to:
(iii)
any requirements collectively agreed upon or determined by the
Minister for the appointment,
promotion or transfer of educators
which the candidate must meet”
6.
It is our submission that the First Respondent was correct in
declining to appoint
any of the recommended candidates on the grounds
enumerated above.
7.
Lastly, we submit that, the fact that the 3
rd
to 5
th
Respondents were not eliminated at the sifting stage, may possibly
have been an oversight and does not therefore translate into them
satisfying the minimum requirements of the post.
8.
In addition to the above, we reserve the right to raise any other
point which we
consider to be relevant.  Accordingly, we humbly
propose that the applicants withdraw the current application and
tender our
party to party costs at this stage.”
13.
The
applicants refused to withdraw this application and a complete set of
papers was filed as well as supplementary affidavits by
both sides
which we, at the hearing of this matter, allowed.
14.
At
this stage I pause to mention that it is a matter of concern that the
HOD appears to persists in providing catch-all reasons for
declining
recommendations of SGBs.  S6 (3)(b)(iii) covers everything from
equity, redress and representivity to qualifications.
Requests
for more specific reasons have been met with lengthy delays and
eventual clarification by the HOD’s legal representatives.
A
similar situation arose in the matters of Kathu Primary School and
Another and Seodin Primary School and Another v Head of Department
of
Education, Northern Cape and Others (308/2018, 516/2018
[2019] ZANCHC
50
(6 September 2019).  While the court in that case rejected
contentions of
ex
post facto
reasons being provided, it is inevitable that such accusations will
arise, as it has
in
casu
.
This state of affairs could have the effect of giving rise to
unnecessary litigation.  If the HOD takes the time to give
clear
reasons from the start or provide such without delay, there will
definitely be a decline in the number of matters of this nature
on
our court rolls.
15.
Be
that as it may, the applicants rely on the following grounds of
review:
15.1
That the action was taken because irrelevant considerations were
taken into account or relevant considerations were not
considered
and/or taken in bad faith;
15.2
That the action is not rationally connected to:
15.2.1
the purpose for which it was taken and/or;
15.2.3
the reasons given for it by the administration; and
15.3
that the exercise of the power or the performance of the function
authorised by the empowering provision, in pursuance
of which the
administrative action was purportedly taken, is so unreasonable that
no reasonable person could have so exercised the
power or performed
the function.
16.
The
HOD opposes the relief sought on the following grounds:
16.1
A preliminary point that only two candidates were recommended for the
post by the SGB instead of three candidates as required
by s
6(3)(c)(i) of the Employment of Educators Act, No 76 of 1998 (the
EEA); and
16.2
Mr
Waldeck did not meet the minimum professional qualification for the
post and consequently did not meet the profile for the post
since his
appointment would have been inconsistent with the provisions of s
6(3) (e) and b (iii) of the EEA read with the provisions
of clause
B.3.2.1.1 (a) and/or (b) of the Personnel Administrative Measures,
Government Notice 170 of 12 February 2016, published
in Government
Gazette No 39684 (PAM).  The 4
th
and 5
th
respondents also did not comply.
17.
I
deal first with the point
in
limine
relating
to the issue of no proper recommendation having been made.
S6(3) (c) of the EEA reads as follows:
“
(c)
The governing body must submit, in order of preference to the Head of
Department a list of -
(i)
at
least three names of recommended candidates: or
(ii)
fewer
than three candidates in consultation with the Head of Department."
18.
At
issue here is the recommendation of the 5
th
respondent Ms Erasmus, the SGB’s third ranked candidate.  The
NCK 15 and 16 forms motivating the recommendation of Ms Erasmus
as
third preferred candidate for the post state the following:
“
Sy
is ook ‘n goeie onderwyser maar beskik nog nie oor die nodige
ondervinding om op te tree as departementshoof nie.  Sy sal
wel
as ‘n goeie leier ontwikkel soos was sy ondervinding opdoen.”
19.
The
applicants deny that there is any merit in this contention and refer
to this defence as contrived and
ex
post facto
as it was never raised by the HOD as a reason for the refusal to
appoint Mr Waldeck at the time when the decision was taken.
20.
The
argument of Mr Petersen, on behalf of the HOD, is that it matters not
that the flaw in the recommendation was only raised in the
answering
affidavit since it is a legal point which can be raised at any time.
He referred to the judgment in
Kimberley
Junior School and Another v Head of Northern Cape Education
Department and Others
2010(1) SA 217 (SCA).  In that matter a similar issue arose
where the SGB had put up the names of three candidates for the
appointment
as principal of the school as required to do in terms of
s 6(3)(c)(i), but in effect only recommended one candidate for the
position.
In a letter separate from the NCK 2 form, the SGB
informed the HOD that the second and third ranked candidates lacked
inter
alia
the administration and management skills required of a principal of a
primary school.  The HOD nevertheless appointed the third
ranked
candidate in the post.
21.
In
dealing with the issue of whether the HOD had a discretion to appoint
the third ranked candidate, the SCA held
inter
alia:
21.1
That the HOD’s power to appoint under s (6)(3)(f) is dependant on
the objective jurisdictional fact of a recommendation
by the SGB.
Objective jurisdictional facts include the type of fact or state of
affairs that must exist in an objective sense
before the power can
validly be exercised (paragraphs 11,12);
21.2
That “
section
6(3)(c)(i) plainly requires a governing body to recommend at least
three candidates.  For the recommendation of a lesser
number it
must consult the head of the department with a view to invoke the
procedure under s 6(3)( c)(ii).  What the SGB tried
to do in
this instance, namely to nominate or put up the names of three
candidates, but to recommend only one, is simply not permitted
by s
6(3)(c)”
(at paragraph 18); and
21.3
That in that case there was no proper recommendation by the SGB as
envisaged by s6 (3)(c) and that in the absence of the
jurisdictional
fact of a recommendation by the SGB the HOD had no authority to make
an appointment (paragraph 19).
22.
In
applying the above dicta to the matter
in
casu
it is clear that the SGB’s failure to recommend three candidates
left the HOD with no authority to make an appointment.
23.
Mr
Merabe for the applicants argued with reference to
MEC
for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd
t/a Eye Lazer Institute
2014(3) SA 481 (CC) where it is stated at paragraph 99 thereof that,
“
.
. . the absence of a jurisdictional fact does not make the action a
nullity.  It means only that the action is reviewable,
usually
on the grounds of lawfulness (but sometimes also on the grounds of
reasonableness).  Our courts have consistently treated
the
absence of a jurisdictional fact as a reason to set the action aside,
rather than as rendering the action non-existent from the
outset.
The absence of jurisdictional facts did not entitle Mr Boya to
withdraw the approval, but only to approach a court
to set it
aside.”,
that it was incumbent on
the HOD to have the flawed recommendation reviewed and set aside, in
the absence of which the recommendation
stands.  The short
answer to this contention is that a recommendation is not a decision
which can be set aside on review.
It has no binding effect.
There
is no merit in this argument.
24.
The
application stands to be dismissed solely on this preliminary point.
For the sake of completeness however, I intend to deal
with the
further defence raised by the HOD.
25.
In his letter of 11 December 2018, the HOD gives the reason for
declining Mr Waldeck the position of Departmental
Head as
non-compliance with s 6(3)(b)(iii) of the EEA, in that he does not
meet the profile of the post.
S 6(3) (b) (iii) reads as
follows:
3
(a)       . . . .
(b)
In considering the applications, the governing body or the council,
as the case may be, must
ensure that the principles of equity,
redress and representivity are complied with and the governing body
or council, as the case
may be, must adhere to –
(i)
. . .
(ii)
. . .
(iii)
any requirement collectively agreed upon or determined by the
Minister for the appointment,
promotion or transfer of educators; ”
26.
In the letter of 10 June 2019, the attorneys for the HOD explain that
in order to meet the profile of a post
the candidates must meet the
minimum professional qualifications for the post in compliance with
clause B.3.2.1.1 (a) or (b) of the
PAM.
27.
Clause B3.2.1.1 (a) provides the minimum requirements for a
school-based educator: general classroom teacher.
The clause
relevant to a Departmental Head post (school-based educator: manager)
for which the SGB recommended Mr Waldeck, is clause
B.3.2.1.1 (b)
which requires of the candidate to have:
27.1  A recognised
three-or four–year qualification, which includes professional
teacher education;
27.2
Registration with SACE (South African Council for Educators) as
professional educator;
27.3
Advanced knowledge of teaching as provided for in the professional
qualification;
27.4  Good teaching
and assess skills, good extra-and co-curricular skills, good people
management, good administrative skills
and good communication skills;
and
27.5
Three years of actual teaching experience.
28.
The obstacle identified by the Department and which affects all three
of the recommendated candidates, is the
requirement under paragraph
27.3 above.  The Department is of the view that the requirement
of “
advanced
knowledge of teaching as provided for in the professional
qualification”
means
that the applicant must demonstrate by means of his/her professional
qualification (diploma or degree at tertiary level), that
he/she
possesses advanced knowledge of the subjects listed in the advertised
post.
29.    The
intention, according to the Department’s Acting Chief Director:
District Operations, Mr Kistoo, and the
Acting Deputy Director:
Recruitment and Selection, Ms Jansen, is that the subjects listed in
the advertisement for the post i.e.
Physical Science, Agricultural
Technology and Agricultural Science, which the appointee is also
required to teach, must be reflected
in his/her degree or diploma at
tertiary level.
30.
Mr Waldeck, who completed a B.Ed. in Senior and Further Education and
Training Phase, majored in Business Studies
and Educational
Economics.  None of the advertised subjects form part of his
degree course.  As a result Mr Kistoo, who
has been delegated by
the HOD to perform the function of the appointment of Departmental
Heads at schools, was of the view that Mr
Waldeck should not be
appointed.  The letter of non-appointment was signed by the HOD
after he had satisfied himself that the
non-appointment was
justified.
31.
The HOD also relies on the Vacancy Circular, published by the
Department on 20 July 2018, in which the specific
vacancy was
advertised and in which clause 7.1 of the circular specifically
provides that the requirements for educators are specified
in the
PAM.  Clause 9.2.7 of the Vacancy Circular states specifically
that one of the criteria for the shortlisting of Departmental
Head
posts are to be “
qualifications
(relevant to the post)”
.
32.    In
addition, the HOD relies on Departmental Circular 50/2018.  This
circular was issued on 30 October 2018,
after the closing date for
applications for the post in issue, and relates to the 2019
vacancies.  However the deponent to the
answering affidavit Mr O
Mogatle, the Director: Legal Services of the Department, states that
a Departmental Circular which was issued
in 2017 and which had
identical content to that of the 2018 circular was sent to the
schools in the province and the SGBs, including
the applicants.
A copy of the 2017 circular could not be obtained due to the fact
that space had to be made for new circulars
on the Department’s
internal server.  Copies of the 2018 and 2019 circulars are
however attached to the answering affidavit.
In both these
attached circulars paragraphs 6.5 to 6.8 read as follows:
“
6.5
Schools must not advertise posts with an unreasonable combination of
subjects, e.g. Mechanical Technology
and Life Orientation or
Mathematics and Physical Sciences and Setswana.  Schools should
note that if you advertise this combination
then the applicant must
have passed all subjects in his/her diploma/degree.
6.6
Schools must also not advertise posts with a myriad of subjects that
applicants would most probably
not have offered and passed in their
qualification like Mathematics and Life Orientation and Technology
and Social Sciences and English
Home Language.  If a school
advertises such a post then the appointed educator must have passed
all five subjects in his/her
qualification.
6.7
If a school lists the subjects as Accounting
or
Life
Orientation, then it implies that the school must short list all
persons who have Accounting in their qualification
and
all persons that have Life Orientation in their qualification.
This could result in the school appointing a Life Orientation
educator instead of and Accounting educator.
6.8
Similarly, if a school advertises the post as Mathematics
and/or
Physical Sciences, then it implies that the school must short list
educators who have
both
these
subjects or
only
one
of these subjects in their qualification and the school is satisfied
to accept the best educator that has both subjects or only
Mathematics
or only Physical Sciences in their qualification.”
33.
From the above, and with specific reference to paragraph 6.5 of the
Circulars, the argument is that it is clear
that the “
qualification”
referred to (presumable in PAM), is a diploma or a degree and not a
series of short courses offered by the Department or the experience
in teaching a particular subject.
34.
Whilst the applicants do not dispute the applicability of the PAM and
specifically clause 3.2.1.1(b) thereof,
they dispute the
interpretation of the requirement of “
advanced
knowledge of teaching as provided for in the professional
qualification”
as contended by the Department and the approach adopted at arriving
at such interpretation.  They accuse the Department of reading
into the requirement “
advanced
knowledge of the subjects listed in the advertised post”,
which
does not in any way accord with the ordinary grammatical meaning of
the words used.  All that is required according to
Mr Merabe is
that the candidate has “
advanced
knowledge of teaching”,
which
Mr Waldeck as a qualified educator, with experience in teaching
agricultural subjects and a clear interest and self-developed
passion
for these subjects, clearly possesses.
35.
The applicants criticise the HOD’s reliance on the opinions of Mr
Kistoo and Ms Jansen without them having
been qualified as experts in
the interpretation and application of the PAM document.  In this
regard they contend that the HOD
took into account irrelevant
considerations and acted unreasonably and irrationally when he took
the impugned decision.
36.
There is however nothing unusual or contentious about a Head of
Department relying on the assistance and advice
of qualified and
experienced officials within the Department.  It cannot be
expected of the HOD to be involved in every single
aspect of the
Department’s affairs.  As long as the HOD makes an informed
and independent decision based on the facts an information
before
him, there can be no basis for complaint in this regard.
37.
Mr Merabe argued, in addition, that the use of departmental circulars
as aids to the interpretation of the PAM
cannot be allowed since it
cannot be used as instruments to interpret primary legislation such
as s6 (3)(b)(iii) of the EEA which
brought about the PAM document.
Though the issue here is not the interpretation of the primary
legislation, I take cognisance
of the gist of the argument at the
hand of
Sebola
and Another v Standard Bank of SA Ltd and Another
2012(5) SA 142 (CC) at paragraph 62 thereof, that regulations cannot
be used to interpret an Act.
38.    The
notion advanced, by the applicants, that a reader has to confine
himself to the
ipsissima verba
of a document in interpreting
any provision thereof, is however not sustainable.  It also does
not find support in the matter
of
Natal Joint Municipal Pension
Fund v Endumeni Municipality
2012(4) SA 593 (SCA) which Mr Merabe
referred to.  In that matter Wallis JA deals extensively and
authoritatively with the current
state of our law with regard to the
interpretation of statutes, statutory instruments and documents
generally.  The learned
judge of appeal expresses it as follows
at paragraph 18 of the judgment.
“
Interpretation
is the process of attributing meaning to the words used in a
document, be it legislation, some other statutory instrument,
or
contract, having regard to the context provided by reading the
particular provision or provisions in the light of the document
as a
whole and the circumstances attendant upon its coming into existence.
Whatever the nature of the document, consideration must
be given to
the language used in the light of the ordinary rules of grammar and
syntax; the context in which the provision appears;
the apparent
purpose to which it is directed and the material known to those
responsible for its production. Where more than one
meaning is
possible each possibility must be weighed in the light of all these
factors.  The process is objective not subjective.
A sensible
meaning is to be preferred to one that leads to insensible or
unbusinesslike results or undermines the apparent purpose
of the
document. Judges must be alert to, and guard against, the temptation
to substitute what they regard as reasonable, sensible
or
businesslike for the words actually used. To do so in regard to a
statute or statutory instrument is to cross the divide between
interpretation and legislation. In a contractual context it is to
make a contract for the parties other than the one they in fact
made.
The ‘inevitable point of departure is the language of the provision
itself’, read in context and having regard to the purpose
of the
provision and the background to the preparation and production of the
document.
39.
What is clear is that one has to look at the language used in the
context of the particular document if there
is any uncertainty as to
the meaning of the particular provision.
40.
The argument of the SGB is that the nub of the requirement and the
intention of the lawmaker is clear, and that
is “
advanced
knowledge of teaching”
–
without any reference to specific subjects.  Speaking in
general, this interpretation would effectively mean that an educator,
without ever having studied, passed or taught any of the subjects
falling under the Departmental Head post, would qualify for the
position, as long as such educator has a recognised three or four
year qualification, is registered with the SACE as professional
educator and has 3 years of actual teaching experience.
41.
On the other hand, an entry level general classroom teacher is
required in terms of the PAM to have a recognised
three year
qualification, registration with the SACE and basic knowledge of the
subject/programme/phase.
42.
It can surely not be the case that the Departmental Head of a
particular subject is not required to have any
knowledge of the
subject whilst the general class teacher requires a basic knowledge
of the subject.  The duties of the Departmental
Head as
described in the vacancy circular include
inter
alia
class
teaching, to assess and record assessment of learners, to be in
charge of subjects and phase, to provide guidance of content
and to
control the work of educators and learners in the department.
Without knowledge (basic or advanced) of the subjects within the
department, it is extremely difficult to comprehend how a
Departmental Head would be able to perform the duties listed above.
43.    The
further issue is that whilst the SGB admits that the professional
qualification referred to in PAM refers
to a diploma or degree at
tertiary level, which enables a person to teach, it urges us to
extend the meaning of professional qualification
to include the
training courses and in-service training which Mr Waldeck has
completed and his experience relating to the agricultural
subjects.
44.
While the irony is not lost on us that we are urged to consider only
the
ipsissima
verba
of the first part of the requirement i.e. “
the
advanced knowledge of teaching”
and to give an extended meaning to the second part of the requirement
which relates to “
as
provided for in the professional qualification”
,
the interpretation as relied on by the SGB may, on the face of it
appear to be reasonable, taking into account the motivation and
ability shown by Mr Waldeck regarding the agricultural subjects.
I may just mention at this stage that Mr Waldeck has attended
skills
training courses in agriculture presented by the Department, he
received a certificate of appreciation for achieving 2
nd
place in the Northern Cape for the 2016 National Senior Certificate
exams, a certificate of appreciation for being the quintile winner
in
Agricultural Technology for the 2017 and 2018 National Senior
Certificate examination, he was also chief marker in the Northern
Cape for an agricultural subject in the National Senior Certificate
examinations and had been marking matric agricultural papers
in the
Northern Cape for some years.
45.
The problem with the SGB’s interpretation however becomes apparent
when applied to the Physical Sciences component
of the post.  Mr
Waldeck has no experience or apparent basic knowledge of Physical
Sciences.  Therefore, even if one would
be willing to accept,
for arguments sake, that Mr Waldeck is “
sufficiently”
qualified to head the Agricultural component of the department at the
school, he in all respects lacks the qualifications to head
the
Physical Sciences component.  It can then in these circumstances
hardly be said that the HOD’s decision not to appoint
Mr Waldeck
was irregular or unlawful for any of the reasons mentioned by the
applicants.
46.
A further issue to be addressed is that of the sifting of the
candidates.  The sifting process of the candidates
is handled by
the Department.  The relevant provision of the PAM Reads as
follows:
“
B.5.3
Sifting (school-based and office-based educator posts)
B.5.3.1
The employing department must acknowledge receipt of all applications
by:
B.5.3.1.1
Informing all applicants in writing of receipt.
B.5.3.1.2
Clearly indicating whether the application is complete or not.
B.5.3.1.3
Indicating whether the applicant meets the minimum requirements for
the post and
that such applications have been referred to the
institutions concerned
.
B.5.3.2
The employing department must handle the process of eliminating
applications of those candidates who do not comply with the
requirements for the post(s) as stated in the advertisement.
.
. . . . . . . . . .
B.5.4.4
All applications that meet the minimum requirements and provisions
of
the advertisement must be handed to the SGB responsible for that
specific institution.”
Mr
Petersen conceded that the Department had erred in not eliminating
the 3
rd
to 5
th
respondents during the sifting process due to their failure to meet
the minimum requirements for the post.  This failure on
the part
of the Department has no effect on the outcome of the application but
should in my view have a bearing on the costs.
47.
Had the 3
rd
to 5
th
respondents been eliminated at the sifting stage, this application
may never have seen the light.  On the other hand, the
applicants
persistence in pursuing this application, after having
been alerted to the full reasons for the HOD declining their
recommended candidate,
has also resulted in unnecessary litigation.
In my view a fair and equitable order is one that each party pay its
own costs.
The
following order is made:
a)
The application is dismissed.
b)
Each party is to pay its own costs.
________________________
CC WILLIAMS
JUDGE
I concur
______________________
A M MOFOKENG
ACTING JUDGE
For Appellant:

Adv. M J Merabe
Horn &
Van Rensburg Attorneys
c/o
Elliot, Maris, Wilmans & Hay
For Respondent:

Adv. F Petersen
Mjila
& Partners