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[2017] ZASCA 72
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Principal, Mbilwi High School and Others v RM OBO OM (633/2016) [2017] ZASCA 72 (1 June 2017)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 633/2016
In
the matter between:
PRINCIPAL,
MBILWI HIGH SCHOOL
FIRST
APPELLANT
CHAIRPERSON
OF SCHOOL GOVERNING SECOND
APPELLANT
BODY
OF MBILWI HIGH SCHOOL
SENIOR
DISTRICT MANAGER, VHEMBE THIRD
APPELLANT
DISTRICT,
DEPARTMENT OF BASIC
EDUCATION
MEC
OF EDUCATION,
FOURTH
APPELLANT
LIMPOPO
PROVINCE
and
RM (OBO
OM) RESPONDENT
Neutral
citation:
Principal
of Mbilwi High School v RM
(633/2016)
[2017] ZASCA 72
(1 June 2017)
Coram:
Ponnan
,
Theron,
Majiedt, Wallis and Zondi JJA
Heard:
16
May 2017
Delivered:
1
June 2017
Summary
:
Appeal: mootness: the court should exercise its discretion to hear an
appeal where it relates to the
proper
construction and application of important provisions in the National
Education Policy that will impact on the future conduct
of education
officials and learners.
Interpretation:
the high court misinterpreted the National Policy Pertaining to the
Programme and Promotion Requirements of the
National Curriculum
Statement Grade R-12.
ORDER
On
appeal from:
Limpopo
Local Division of the High Court, Thohoyandou (Makhafola J sitting as
court of first instance):
1 The appeal is
upheld.
2 The order of the
high court is set aside and replaced with the following:
‘
(i)
The Rule Nisi granted on 30 January 2015 is discharged.
(ii) The applicant
is directed to pay the costs of this application.’
JUDGMENT
Theron
JA (Ponnan, Majiedt, Wallis and Zondi JJA
concurring):
[1]
The main issue in this appeal is the interpretation and application
of the National Policy Pertaining to the Programme and Promotion
Requirements of the National Curriculum Statement Grade R-12 (the
National Policy) issued by the Department of Education. In particular
it concerns the progression, promotion and retention of learners in
the senior phase of the school program.
[2]
The facts giving rise to this matter are largely common cause. OM, a
minor, was a learner at Mbilwi High School (the school)
from 2011
until 2014. He was in grade 11 in 2014. The school routinely assessed
learners throughout the academic year and usually
held at least two
meetings with parents where such assessments were discussed. OM was
assessed during the 2014 academic year. At
the end of the first term
he obtained an aggregate mark of 63.1%, during the second term 43.7%
and during the third term 46.7%.
The final assessment for the
2014 academic year was conducted in November and he obtained an
aggregate of 49.7% but he failed two
subjects, namely, Mathematics
and Physical Sciences, having achieved less than 30 per cent in both
subjects. According to the school,
because he had failed to satisfy
the requirements for promotion to grade 12, it was obliged to retain
him in grade 11.
[3]
During January 2015, the respondent, RM, the father and natural
guardian of OM, lodged a complaint with the school about
his son’s
retention in grade 11 and sought to have him progressed to grade 12.
The school said that it was not entitled to
do so and, after a
re-mark of the mathematics and physical science papers did not result
in an improvement in his marks, maintained
that stance. On 6 January
2015, the respondent lodged an appeal with the third appellant, which
appeal was dismissed.
[4]
On 30 January 2015, the respondent, in his capacity as parent and
natural guardian of OM, brought an urgent application in the
Limpopo
Local Division of the High Court (the high court), against the
appellants. The first appellant is the principal of the
school. The
second appellant is the chairperson of the Governing Body of the
school. The third appellant is the Senior District
Manager for the
Vhembe District, Department of Education in Limpopo. The fourth
respondent is the Member of the Executive Council,
responsible for
basic education in the province of Limpopo.
[5]
The respondent, inter alia, sought the following urgent relief in the
high court:
(i)
That
the decision of the school management team in refusing to promote OM
from grade 11 to grade 12 was unlawful and be set aside.
(ii)
That
the decision of the third appellant in dismissing the respondent’s
appeal was unlawful and be set aside.
(iii)
Directing
that the school promote OM from grade 11 to grade 12 with
immediate effect.
(iv)
Directing
that the school’s non-compliance with the Procedure Manual for
Promotion and Submission of 2014/11 GET Grades 9,
and NSC Grades 10
and 11 schedules and summaries, instruction 47 of 2014 (the Procedure
Manual), was unlawful.
(v)
Directing
that the school comply with the provisions of the Procedure Manual.
[6]
On that same day, 30 January 2015, and by agreement between the
parties, an interim order was issued which essentially provided
for
the relief sought by the respondent. The interim order was confirmed
on 31 March 2015. On 10 April 2015, the appellants applied
for leave
to appeal. On 14 April 2015, the respondent applied for and succeeded
with an application in terms of Rule 49(11) for
execution of the
order pending the application for leave to appeal. OM thus progressed
to grade 12 in 2015.
[7]
The
reasons for the judgment were handed down on 18 October 2015. On 23
February 2016, the application for leave to appeal was refused
by the
high court. The first appellant appeals with the leave of this
court. While there was an appearance for the respondent
at the
hearing of this matter, the matter was not opposed.
[8]
It was common cause that the outcome of this appeal would have no
practical effect as between the parties. By the time the reasons
for
judgment were handed down on 18 October 2015, the learner had almost
completed grade 12. The preliminary question in this matter
is
whether this court should, in any event, entertain this appeal.
[9]
Section 16(2)(
a
)(i) of the
Superior Courts Act 10 of 2013
is
relevant and reads:
‘
When at
the hearing of an appeal the issues are of such a nature that the
decision sought will have no practical effect or result,
the appeal
may be dismissed on this ground alone.’
The
primary object of
s 16(2)(
a
)(i)
is to alleviate the heavy workload of courts of appeal.
[1]
It
is founded upon the principle that courts of law exist for the
settlement of concrete controversies and not to pronounce upon
abstract questions or to advise upon differing contentions.
[2]
The
Constitutional Court has stated that:
‘
A case
is moot and therefore not justiciable if it no longer presents an
existing or live controversy which should exist if the
Court is to
avoid giving advisory opinions on abstract proposition of law.’
[3]
[10]
Section 16(2)(
a
)(i)
confers a discretion on this court to hear an appeal notwithstanding
mootness.
[4]
Accordingly,
the court on appeal may in appropriate cases, notwithstanding the
mootness of the issue as between the parties to the
litigation, hear
an appeal where important questions of law are raised which are
likely to arise in the future.
[5]
[11]
In my view, the proper interpretation and application of the
provisions of the National Policy are important matters of law
which
will arise in future. The decision in this appeal extends beyond the
parties. The precedential potential of this court’s
decision is
similar to that in
Motor
Industry Staff Association v Macun NO & others
,
[6]
where
Navsa JA, writing for the court, stated:
‘
Had it
not been for the precedential potential of the present case, it might
well have been liable to be dismissed in terms of
s 16(2)(
a
)(i)
of the
Superior Courts Act 10 of 2013
on the basis that it would, in
the circumstances of the present case, have no practical effect.’
[7]
[12]
Central to this matter is the question whether a learner may be
progressed at all after having failed, for the first time,
to meet
the requirements for promotion. The decision of the court a quo
stands as a clear precedent that progression is to be considered
by
the National Department of Education (the department) in such cases.
The
issue
in this matter on which the adjudication of this court is required
involves the proper construction and application of provisions
in the
National Policy which will impact on the future conduct of the
appellants as well as learners.
[8]
In
these circumstances, this court should exercise its discretion to
entertain the appeal.
[13]
The applicable legislative framework is primarily to be found in the
National Policy and the Procedure Manual. The Procedure
Manual
consists of three Annexures. Annexure ‘A’ deals with
promotion requirements. Annexure ‘B’ is titled
‘Procedure
for SMT and Subject Teacher’s Meeting for Promotion, Retention
and Progression of Grades 9, 10 and 11 Learners
2014’. Annexure
‘C’ sets out the procedure relating to the ‘Information
Meeting with parents/guardians
regarding progression and retention of
Grades 9, 10 and 11 Learners 2014’.
[14]
In the National Policy, promotion is defined as:
‘
the
movement of a learner from one grade to the next when
that learner meets the minimum required level of achievement
per
subject in a particular grade’.
Progression
is defined as:
‘
the
advancement of a learner from one grade to the next . . . in spite of
the learner not having complied with all the promotion
requirements.’
[15]
Section 29(1)
of the National Policy provides that a learner in
grades 10-12 will be promoted from grade to grade if such a learner
has, inter
alia, completed end-of-year examination requirements in no
fewer than seven subjects, and has achieved 40% in three subjects,
one
of which is an official language at Home Language level, and 30%
in three subjects. The learner may fail, that is, obtain less than
30% in one subject provided they have completed the curriculum and
written the examination. This was the stumbling block for OM.
Section
29(1)
is to be read with Annexures ‘A’, ‘B’
and ‘C’ of the Procedure Manual.
[16]
Annexure ‘A’, sets out the promotion, retention and
progression requirements, in relevant part, as follows:
‘
2.4
Promotion of a Learner
2.4.1 For Grades 04 to 08
learners who meet promotion requirements, “RP” for “Ready
to Progress” is written
in the appropriate column against the
name of the learner in the Promotion Schedule.
2.4.2
For Grades 9, 10 and 11 learners who meet promotion requirements, “P”
for “Promoted” is written in
the appropriate column
against the name of the learner in the Promotion Schedule.
2.5 Retention of a Learner
2.5.1 A learner who does not meet
the promotion requirements for the first time in the Intermediate,
Senior or FET [Further Education
and Training] phase, must be
retained, and
2.5.2 For Grades 04, to 08
learners who do not meet the promotion requirements, “NR”
for “Not Ready to Progress”
to is written in the
appropriate column against the name of the learner in the Promotion
Schedule.
2.5.3
For Grades 9, 10 and 11 learner, “R’” for
“Retained” is written in the appropriate column against
the name of the learner in the Promotion Schedule.
2.6 Progression
2.6.1 Guiding Principle: a
learner
may
only be retained once in phase in order to prevent
the learner being retained in this phase for longer than four years
2.6.2 If the learner has already
been retained in a phase, the learner ordinarily qualifies to be
“Progressed”.
2.6.3 If on the basis of the
evidence available the school deems it is in the best interest of the
learner to move to the next grade,
then the learner is “Progressed”.
2.6.4
The “QP” for “Progressed” is written in the
appropriate column against the name of the learner in
the Promotion
Schedule.
2.7 Retention of Learners who
ordinarily qualify for progression
2.7.1
If a learner ordinarily qualifies for progression, but the school has
educational reasons or evidence that it is in the best
interest of
the learner to be retained, then the learner is “Retained”’.
[17]
Clause 2.5.1 of Annexure ‘A’ provides in peremptory terms
that a learner who does not meet the promotion requirements
for the
first
time in the intermediate, Senior or FET phase,
must
be retained. This is the only provision dealing with the failure
of a learner to achieve promotion to the next grade for the first
time. Clauses 2.6, 2.7.4 and 5 deal with learners who have failed,
for the second time, to achieve promotion after having been
retained
in a grade, and do not detract from clause 2.5.
[18]
This view is fortified by clauses 3 and 4 of Annexure ‘B’
which read:
‘
3
Consider the learners who do not qualify for progression. These are
learners who have not met the promotion requirements for [the]
first
time in a phase. Write “R” for “Retained”
against the name of the name of the learner.
4 Consider learners who
ordinarily qualify for progression on the basis that they have
already been retained once in the phase.
4.1 If evidence available is such
that it serves the best interest of the learner to be progressed,
then the learner is progressed
. . .
4.2 If the
evidence available or educational reasons are such that it is in the
best interest of the learner to be retained, then
the learner is
retained . . .’
[19]
The guiding principle in respect of progression is that a
learner
may only be retained once in a four year phase. If a learner has
already been retained in a phase, such learner ordinarily
qualifies
to be progressed, if the school deems it is in the best interest of a
learner to do so. The system is clear: a first
failure to meet
promotion standards results in a compulsory retention. A second
failure has to be dealt with on a discretionary
basis weighing the
objective to avoid the learner being retained in this phase for
longer than four years (which means that the
learner ordinarily
qualifies to be ‘progressed’) against the evidence
available as to whether it would be in the best
interest of the
learner to be progressed. It is clear from this framework that
progression is not to be afforded a learner who
has failed to meet
the promotion requirements for the first time. The school management
only has a discretion whether or not to
retain or progress the
learner, following a second failure to achieve the requirements for
promotion.
[20]
Clause 4.1 of Annexure ‘A’ provides that the school
management team must hold an information meeting with the parents
of
all learners who qualify for progression, irrespective of whether
they are to be progressed or retained. If the parents of a
learner
who qualifies for progression agree with the decision of the school
management team to either progress or retain the learner,
a
Partnership Contract must be entered into between the parties. In the
event that the parents contest the decision of the school
management
team, they may appeal against such decision to the Senior District
Manager.
[21]
Annexure ‘C’ deals with the procedure for the information
meeting with parents as envisaged in clause 4.1 of Annexure
‘A’
and the conclusion of the Partnership Contract provided for in
clause 4.2 thereof. This only applies to learners
who ordinarily
qualify for progression, namely those who, in terms of clause 4.1
have already been retained once in a phase. Annexure
‘C’
sets out the applicable procedure to be adopted, relating to either
the progression or retention of such a learner
for the second time
and how this should be dealt with between the school, the parents and
the learner. Whether or not progression
is to follow (as opposed to a
second retention) is then to be dealt with by way of proper discourse
through an information meeting
with the parents per clause 4 of
annexure ‘A’ read with clauses 4 and 5 of annexure ‘B’
and the Partnership
Contract provisions of annexure ‘C’.
It follows that both the information meeting and the appeal provided
for in clause
5 of annexure ‘A’ will only come into play
in respect of a learner who has failed to achieve the promotion
requirements
for the second time, and not the first time.
[22]
It was common cause that OM had failed more than one subject and did
not meet the minimum required level of achievement for
promotion to
grade 12. It was also common cause that he had not previously been
retained in that phase. In the circumstances, he
did not qualify for
progression to grade 12. The terms of the National Policy, read with
the Procedure Manual, dictated that he
had to be retained in grade
11. The provisions of clause 2 of Annexure ‘A’, read
together with Annexure ‘C’,
with regard to the holding of
an information meeting with his parents, was not applicable to his
situation.
[23]
On a proper construction and application of the National Policy and
the Procedure Manual, a learner may only be progressed
upon having
failed to achieve the requirements for promotion for the second time.
The first failure has to be dealt with by way
of retention in the
same grade. Should a second failure follow, the educational
authorities have a discretion to decide whether
a further retention,
or progression, would be in the best interest of the learner. That
decision is to be taken in consultation
with the parents and a
Partnership Agreement is to be entered into between the parties. It
is only the latter decision, i.e. how
a second failure is to be dealt
with, that is subject to an appeal in the event that the educational
authorities and the parents
do not agree.
[24]
The flawed reasoning of the high court appears from the following
paragraphs of the reasons for judgment:
‘
[2] The
dispute has turned uglier in that the learner has been tossed between
Mbilwi High School and Nazarene School of Natural
Sciences and this
conduct of the 1
st
,
2
nd
and 3
rd
respondents has become an affront to the best interests of this
child-learner impacting the core of the justness and fairness to
him.
[3] It is on this basis that this
court had to intervene and redirect the confronting parties to a
solution in favour of the child.
The court has acted in terms of the
letter and spirit of
Section 4(
a
) of the [C]hildren’s
Act 38 of 2005 which provides: “In any matter concerning a
child-(a) an approach which is conducive
to conciliation and
problem-solving should be followed and a confrontational approach
should be avoided”. In the result,
the confirmation of the
Rule
Nisi
in favour of the applicant was found to serve the best
interests of the child.
…
[18] The law concerning children
is clear both in the [C]onstitution, and [C]hildren’s Act and
other legislation relating
to treatment of children. Further, the
Education Department’s Regulations are lucid and have to be
complied with to promote
and protect the welfare of learners.
. . .
[19] The
respondents did not act in terms of annexure “C” relating
to procedure for information meeting with parents/guardians
regarding
progression and retention of grades 9, 10 and 11 learners 2014.’
[25]
The high court found that the school had ‘flouted’ the
national policy ‘by not following correct procedures’.
The basis for this finding is to be found in para 19 of the judgment
where it is stated that the appellants failed to act in accordance
with Annexure ‘C’ relating to the procedure for the
holding of an information meeting with parents. This finding of
the
high court is based on the premise that the provisions pertaining to
progression were applicable. The high court was wrong
in that it had
simply interpreted the policy incorrectly.
[26]
It follows that an appeal did not lie to the third appellant against
the decision by the school management team that the learner
be
retained in grade 11. This question did not arise in this matter. It
was however dealt by the high court in the following manner:
‘
Paragraph
11 of the founding affidavit is a scathing attack on non-compliance
with regulation[s] relating to the composition of
the appeal panel.
Without being ashamed, the respondents do not admit the irregularity
…. Instead the deponent, justifies
the irregularity and
challenges the applicant to prove prejudice to himself (the
applicant).’
Insofar
as the high court made any findings in this regard, these are obiter
and not binding.
[27]
For these reasons the following order is made:
1 The appeal is
upheld.
2 The order of the
high court is set aside and replaced with the following:
‘
(i)
The Rule Nisi granted on 30 January 2015 is discharged.
(ii) The
applicant is directed to pay the costs of this application.’
_________________
LV Theron
Judge of Appeal
APPEARANCES:
For
the Appellants: R J Raath SC and T W G Bester SC
Instructed
by: Mathivha Attorneys, Thohoyandou
Molefi,
Thoabaka Attorneys, Bloemfontein
For
the Respondent: M S Sikhwari
Instructed
by: Mvundlela & Associates, Thohoyandou
Webbers
Attorneys, Bloemfontein
[1]
Absa Bank
Ltd v Van Rensburg
[2014] ZASCA 34
;
2014 (4) SA 626
(SCA) at 631E;
Premier,
Provinsie Mpumalanga & ‘n ander v Groblersdalse Stadsraad
1998 (2) SA 1136
(SCA) at 1137G-HD.
[2]
Tshwane
City v Nambiti Technologies & others (Pty) Ltd
[2015] ZASCA 167
;
2016 (2) SA 494
(SCA) paras 5-7;
Radio
Pretoria v Chairman, Independent Communications Authority of South
Africa, & another
2005
(1) SA 47
(SCA) at 48B-C;
Land
en Landbouontwikkelingsbank van Suid-Afrika v Conradie
2005 (4) SA 506
(SCA) at 510H-511B;
The
Merak
S
;
Sea
Melody Enterprises SA v
Bulktrans
(Europe)
Corporation
2002 (4) SA 273
(SCA) at 276G-I.
[3]
National
Coalition for Gay and Lesbian Equality & others v Minister of
Home Affairs & others
2000
(2
)
SA
1 (CC) para 21 fn 18 and cases cited therein.
[4]
Centre for
Child Law v Hoërskool Fochville
& another
[2015] ZASCA 155
;
2016 (2) SA 121
(SCA) para 11;
Absa
Bank v Van Rensburg
,
supra, at 629F.
[5]
Absa Bank
v Van Rensburg
,
supra, at 629F-630D (and cases referred to therein);
Qoboshiyane
NO & others v Avusa Publishing Eastern Cape (Pty) Ltd &
others
[2012] ZASCA 166
;
2013 (3) SA 315
(SCA) at 319B-E.
Centre
for Child Law
supra
para 11;
Sebola
& another v Standard Bank of South Africa Ltd & another
[2012] ZACC
11
;
2012 (5) SA 142
(CC);
Land
en Landbouontwikkelingsbank van Suid-Afrika
supra
;
The Merak S
supra.
[6]
Motor
Industry Staff Association v Macun NO & others
[2015]
ZASCA 190
;
2016 (5) SA 76
(SCA)
[2016] 3 BLLR 284
(SCA).
[7]
Ibid, p
ara
25.
[8]
Executive Officer, Financial
Services Board v Dynamic Wealth Ltd & others
[2011]
ZASCA 193
;
2012 (1) SA 453
(SCA) paras 43 and 44.