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[2019] ZALMPPHC 52
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School Governing Body of Mabogopedi Secondary School (Elected on 12 April 2018) v Member of the Executive Commettee Department of Education and Others (A5458/2018) [2019] ZALMPPHC 52 (31 October 2019)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
CASE
NUMBER: A5458/2018
31/10/2019
In
the matter between:
THE
SCHOOL GORVERNING BODY OF
MABOGOPEDI
SECONDARY SCHOOL
(ELECTED
ON 12 APRIL 2018)
APPLICANT
AND
MEMBER
OF THE EXECUTIVE COMMETTEE
DEPARTMENT
OF EDUCATION
FIRST RESPONDENT
HEAD
OF DEPARTMENT: LIMPOPO
DEPARTMENT
OF EDUCATION
SECOND RESPONDENT
DISTRICT
OF WATERBERG
THIRD RESPONDENT
CIRCUIT
MANAGER: THABAZIMBI
FOURTH RESPONDENT
ACTING
PRINCIPAL OF MOBOGOPEDI
SECONDARY
SCHOOL
FIFTH RESPONDENT
CHAIR
PERSON OF THE 02
ND
SCHOOL
GOVERNING
BODY OF MOBOGOPEDI
SECONDARY
SCHOOL
(ELECTED
ON 12
TH
JUNE
2018)
SIXTH RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
On the 12
th
April 2015 the applicant was elected as a
School Governing Body (SGB) of Mabogopedi Secondary School. On the
25
th
May 2018 the applicant attended the inauguration for
newly elected SGB members for the whole Limpopo Province hosted by
the Member
of Executive Committee (MEC) of Education Limpopo Province
held at Mokopane. On the 28
th
May 2018 the applicant was
called to a meeting by the District Office of Waterberg (third
respondent), and was informed about an
audit query by the Treasury.
The query was to the effect that they did not comply with the time
frame for holding of SGB elections
and that the SGB that was elected
on the 12
th
April 2018 had to be dissolved.
[2]
The applicant tried to argue that the elections of the 12
th
April 2018 were valid without success. New elections were held on the
12
th
June 2018 wherein a new SGB was elected. According to
the applicant, the SGB of the 12
th
June 2018 was elected
unlawfully.
[3]
Aggrieved by the election of the SGB of the, 12
th
June
2018, the applicant brought an application seeking an order that the
SGB that was elected on the 12
th
April 2018 be declared a
legitimate body, and that the SGB elected on the 12
th
June
2018 be declared null and void.
[4]
The respondents are opposing the applicant's application. In their
opposing affidavit,
the respondents have stated that the period for
holding governing body elections is between 1
st
and 31
st
March of the year that the previous SGB's term of office comes to an
end. According to the respondents, if elections are held outside
that
period, permission from the Head of Department Limpopo Province (2
nd
Respondent) should first be sought for the extension of time to hold
elections, of which the applicant had failed to do.
[5]
The respondents have also stated that due processes were not followed
when the election
of the 12
th
April 2018 was held in that
they were not overseen by a school electoral officer appointed by the
district senior manager, and
that the declaration of elections was
not signed by the school electoral officer, but by the acting
principal of the school who
signed it on the 10
th
May
2018.
[6]
When this matter was argued in court, counsel for the applicant
correctly conceded that
the decision of the 2
nd
respondent
to dissolve the SGB that was elected on the 12
th
April
2018 amounted to an administrative action. However, he insisted that
they are entitled to the relief they are seeking. The
respondents’
counsel submitted that the applicant should have brought a review of
the decision of the 2
nd
respondent in terms of PAJA. The
applicant submitted that the elections of SGB‘s in Limpopo
Province are regulated by Regulations
relating to Governing Bodies of
Public Schools, Limpopo Provincial Gazette of 2018. The applicant
argued that in terms of the Regulations
there is no provision for a
requirement that the school must obtain permission from the 2
nd
respondent for extension of time to hold SGB elections after
the stipulated period to hold elections has lapsed.
[7]
The
Promotion of Administrative Justice
Act
[1]
(PAJA)
provides for judicial review of administrative actions. What
constitute an administrative action was defined in
Minister
of Defence v Motau
[2]
as follows:
“
... there must be
(a) a decision of an administrative nature; (b) by an organ of State
or a natural or juristic person; (c) exercising
a public power or
performing a public function; (d) in terms of legislation or an
empowering provision; (e) that adversely affects
rights; (f) that has
direct, external legal effects; and (g) that does not fall under any
of the listed exclusions.”
[8]
Section
6(2) (a) of PAJA reads as follows:
“
A
court or tribunal has the power to judicially review an
administrative action if-
(a)
the
administrator who took it-
was not authorised to do
so by the empowering provision;
(acted under a
delegation of power which was not authorised by the empowering
provision; or
was biased or
reasonably suspected of bias.”
[9]
The 2
nd
respondent when he took the decision to dissolve the SGB that was
elected on the 12
th
April 2018 was performing a public function, which amounted to an
administrative action. As I have already pointed out above, counsel
for the applicant has correctly conceded that the action of the 2
nd
respondent amounted to an administrative action.
[10]
According to the respondents, the reason why he ordered a re-run of
the elections, was that there
were some irregularities committed when
the elections were held and also that the elections were held after
the stipulated time
period has lapsed without obtaining permission
from the 2
nd
respondent. That in my view amounts to
nullifying the elections of the 12
th
April 2018. The
applicant contends that the Regulations relating to the elections of
SGB’s in Limpopo does not makes it a
requirement that a school
must obtain permission from the 2
nd
respondent to hold
elections after the stipulated time period has lapsed. What the
applicant is basically saying is that the 2
nd
respondent
took the action when he was not authorised to do so by the empowering
provisions of the Regulations. Since the 2
nd
respondent
was performing a public function in my view, his action falls within
the ambit of section 6(2) (a) (i) of PAJA, and
the proper route for
the applicant to have followed, was to bring a review application in
terms of PAJA.
[11]
In
Onderkraal
Estate (Pty) Ltd v City of Cape Town and Others
[3]
the court said:
“
Until the
Administrator’s approval (and thus also the consequences of the
approval) is set aside by a court in proceedings
for judicial review
it exists in fact and it has legal consequences that cannot simply be
overlooked. The proper functioning of
a modern state would be
considerably compromised if all administrative acts could be given
effect to or ignored depending upon
the view the subject takes of the
validity of the act in question. No doubt it is for this reason that
our law has always recognised
that even an unlawful administrative
act is capable of producing legally valid consequences for so long as
the unlawful act is
not set aside.”
[12]
The decision of the 2
nd
respondent to dissolve the SGB
that was elected on the 12
th
April 2018 has not been set
aside by a court of competent jurisdiction. It will therefore
continue to exist and have legal consequences
which cannot be
ignored. It will therefore be improper for this court to grant the
applicant the relief that it is seeking whilst
the decision of the
2
nd
respondent is still in existence. On this point alone
the applicant's application stands to fail.
[13]
In the results I made the following order:
13.1. The applicant's
application is dismissed with costs.
MF KGANYAGO J
JUDGE OF HIGH
COURT OF SOUTH AFRICA, LIMPOPO DIVISION, POLOKWANE
APPEARANCE:
COUNSEL FOR THE
APPLICANT : ADV S TEBEILE
INSTRUCTED BY
: MAMPA & MACHETE ATTORNRYS
COUNSEL FOR 1
ST
RESPONDENTS : ADV B MATLHAPE
INSTRUCTED BY
:STATE ATTORNEY
POLOKWANE
DATE OF HEARING
: 09
October 2019
DATE OF JUDGEMENT
:
31
st
October 2019
[1]
3 of 2000
[2]
2014 (5) 69 CC at 83 A-B
[3]
2004 (6) SA 222
SCA at 242 A-C