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[2019] ZAFSHC 25
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School Governing Body Grey College, Bloemfontein v Scheepers and Others (South African Teachers Union Intervening) (2612/2018) [2019] ZAFSHC 25 (17 January 2019)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE
STATE
DIVISION, BLOEMFONTEIN
Case
No.: 2612/2018
In
the application between:-
THE
SCHOOL GOVERNING BODY GREY COLLEGE, BLOEMFONTEIN
Applicant
And
DEON
SCHEEPERS
1st
Respondent
THE
MEC: DEPARTMENT OF EDUCATION, FREE STATE PROVINCE
2nd
Respondent
JURIE
GELDENHUYS
3rd
Respondent
THE
NATIONAL MINISTER OF
EDUCATION
4th
Respondent
SOUTH
AFRICAN TEACHERS UNION
(SAOU)
Intervening
Party
CORAM:
MUSI, AJP et VAN ZYL, ADJP
HEARD
ON: 19 NOVEMBER 2018
JUDGMENT
BY:
MUSI, AJP
DELIVERED
ON: 17 JANUARY 2019
Introduction
[1]
This is an application for leave to appeal against our judgment that
was delivered on 6 September 2018, in which we made the
following
order:
“
1. The first
respondent is ordered to pay the costs, including the costs of two
counsel, of the intervening party in respect of
the application to
intervene and the striking out application.
2. The conditional
counter-application is dismissed with costs, including the costs of
two counsel.
3. Paragraphs 1 and 2
(excluding the alternative to paragraph 2) of the applicant’s
notice of motion and paragraph 2.1 of
the intervening party’s
notice of motion are granted with costs, including the costs
occasioned by each of them employing
two counsel. Such costs to
include the costs of 8 June 2018.”
[2]
The application for leave to appeal is sought on approximately 18
grounds. The costs orders made against the applicant are also
the
subject of this application. The applicant abandoned the suspension
of the operation and execution of paragraph 3 of our order,
excluding
the parts dealing with costs.
[1]
Section
17 (1)
[3]
Applications for leave to appeal are regulated by Section 17(1) of
the Superior Courts Act 10 of 2013 (SCA). It reads as follows:
“
(1)
Leave to appeal may only be given where the judge or judges concerned
are of the opinion that—
(a) (i) the
appeal would have a reasonable prospect of success; or
(ii) there is some other
compelling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration;
(b) the decision sought
on appeal does not fall within the ambit of section 16(2)(a); and
(c)
where the decision sought to be appealed does not dispose of all the
issues in the case, the appeal would lead to a just and
prompt
resolution of the real issues between the parties.
”
[4]
This application was predicated upon sections 17(1)(a)(i) and/or
(ii). Section 17(1)(a)(i) has not only raised the bar for
applications for leave to appeal but also fettered the Judge’s
discretion when considering such applications. Leave to appeal
may
only be given when the Judge or Judges are of the opinion that the
appeal would have a reasonable prospect of success. The
word “only”
is indicative of the fact that this section limits the Judge’s
discretion to grant leave to appeal.
The Judge’s discretion is
circumscribed because he or she may not grant leave to appeal based
on a reason other than the
one mentioned in it. Considerations such
as an applicant, for leave to appeal, having an arguable case or that
there is a possibility
of success on appeal are irrelevant.
[2]
[5]
It has correctly been said that the word “would” in the
section points to the legislature’s aim of raising
the bar in
applications for leave to appeal. In
The
Mont Chevaux Trust v Tina Goosen and 18 Others
[3]
it was stated that:
“
It is clear that
the threshold for granting leave to appeal against a judgment of a
High Court has been raised in the new Act. The
former test whether
leave to appeal should be granted was a reasonable prospect that
another court might come to a different conclusion…
The use of
the word “would” in the new statute indicates a measure
of certainty that another court will differ from
the court which
judgment is sought to be appealed against.”
[4]
[6]
Whether there is a compelling reason why the appeal should be heard
will depend on the facts of a particular case. There must
be a strong
reason for granting leave to appeal on this ground. Some reasons may
be compelling whilst others may not be. The Court
should give careful
and proper consideration to the reason advanced before categorizing
it as compelling. Section 17(1)(a)(ii)
should therefore not be
invoked for flimsy reasons.
[7]
Although the applicants did not argue all the grounds of appeal, we
decided to consider all of them, lest we be criticised for
not
considering them because they were not expressly abandoned. I now
consider the grounds of appeal seriatim.
Grounds
1.1 and 1.2
[5]
[8]
These two grounds can be considered together. The applicants
contended that we erred and misdirected ourselves in finding that
the
School Governing Body (SGB) abdicated its powers or functions because
this was not the case or submissions of the principal
or the SGB.
Furthermore, that we should have declared the conduct of the
principal unlawful and set it aside as prayed for in the
conditional
counter-application. These grounds of appeal are based on a total
misunderstanding of the judgment. In paragraph [58]
of the judgment
we said the following:
“
In
this case, counsel for the SGB correctly conceded that there was no
express or tacit delegation of power by the SGB to the principal.
The
SGB therefore abdicated its power or functions in as far as the
principal exercised functions that were in the exclusive preserve
of
the SGB. It can therefore be said that the principal usurped
the powers and functions of the SGB. It must however
be noted
that the principal can only usurp powers or functions which are not
functions and responsibilities entrusted to him by
the Act, any other
legislation or policy. If the Act, any other legislation or
policy allows him or her to exercise a function
or power that the SGB
is also empowered to exercise then there cannot be any unlawful
exercise of power.”
[9]
It is clear from the above paragraph that our finding was that the
principal could not usurp a power or function that was in
any event
entrusted to him by legislation or policy. We proceeded to indicate
in each instance, that the Schools Act and/or Departmental
policy
endowed the principal with the rights, powers or functions that the
SGB endeavoured to take away. In the last sentence of
para [58] we
clearly stated that if legislation or policy allows the principal to
exercise a power or function that the SGB is
also empowered to
exercise then there cannot be any unlawful exercise of power. The
conditional counter-application would not have
been of any assistance
to the applicants.
[10]
The SGB’s case has always been that the principal exercised
powers that ought to have been exercised by it. The principal’s
contention has always been that he exercised the powers and functions
entrusted to him by the Schools Act. It is clear that the
applicant’s
counsel conceded that the SGB did not expressly or tacitly delegate
any powers or functions to the principal.
This issue was therefore
raised in argument.
Ground
1.3
[11]
The third ground of appeal was that we erred in finding that the
SGB’s resolution had an adverse effect on the principal’s
right to manage the school and constituted administrative action
which is subject to review in terms of the Promotion of
Administrative
Justice Act, 3 of 2000 (PAJA). The applicants
contended that the resolution amounted to a policy decision and that
no rights were
adversely affected. The applicants unduly restrict the
meaning of the word “right” in PAJA.
[12]
In
Secretary
for Inland Revenue v Kirsch
[6]
it was said that:
“
The word “right”,
in legal parlance, is not necessarily synonymous with the concept of
a “legal right” which
is the correlative of a duty or
obligation. On the contrary, legal literature abounds with “right”
being used in a
much wider sense and, as is pointed out in Salmond on
Jurisprudence 11
th
ed at 270, in a laxer sense to include any legally recognised
interest whether it corresponds to a legal duty or not.”
[7]
[13]
This principle was underscored in
Sandown
Hotel v Kleinmond Drankwinkel
[8]
where a privilege was held to be a right. Van Winsen J said the
following:
“
Nevertheless, it
is difficult to resist the conclusion that once he is afforded such
privilege and for so long as he continues to
retain it and claim to
be exercising a “right” in the generally accepted sense
of the word to do so. It is a protected
interest afforded him under
the operation of the machinery provided by the Liquor Act, and it is
open to him to appeal to the Courts
to assist him to have it
protected. To that extent, too, it justifies the description of a
right, and there is a correlative duty
on everyone else to refrain
from interfering with it. The fact that it is a right
vis-a-vis
the world in general and not merely one against another contracting
party would not, in my view, exclude it from the concept of
being a
right.”
[9]
[14]
Fitzgerald
[10]
defines a legal
right in the generic sense as “any advantage or benefit
conferred upon a person by a rule of law”.
[11]
He further identifies four kinds of rights,
viz
rights in the strict sense, liberties, powers and immunities.
[12]
A “right” therefore has a wider and a strict meaning.
There is nothing in PAJA that suggests that only rights in the
strict
sense of the word are worthy of protection. Rights in the wider sense
of the word may therefore be protected by using PAJA.
[15]
In
Bullock
NO v Provincial Government, North West Province
[13]
it was said that “a decision of an organ of State may relate to
a question of policy, and the policy itself may not be open
to
judicial scrutiny”.
[14]
The
decision to denude the principal of some of his rights was not a
policy decision. It was, however, emphasised that “one
of the
ways in which the courts have in the past controlled, and will
continue to control, the exercise of public power is to examine
whether the organ of State which has exercised such power has
complied with the requirements of the legislation which governs such
exercise”.
[15]
The South
African Schools Act (SASA)
[16]
does not give a SGB the power to take away the principals rights.
[16]
The SASA and the other policy documents mentioned in the judgment
gives the principal, as a representative of the Head of Department
and as an educator rights and powers. The principal had a right to
perform the functions, powers and privileges entrusted to him
by the
SASA and policy documents. We have pointed out the various sections
and instruments in the judgment and it is not necessary
to repeat
same herein. The resolution of the SGB denuded him of the right to
exercise those powers, functions and privileges. His
rights were
therefore adversely affected by the SGB’s decision.
Ground
1.4
[17]
The applicant contended that we erred in finding that the resolution
minimised the role and input of one partner. The SASA
gives the
principal duties to assist the SGB. The SGB took its resolution
without consideration or proper consideration of the
duties entrusted
to the principal by,
inter alia
, section 16A of the SASA.
[18]
The denuding of the principal’s functions and giving or
purportedly delegating the principal’s financial functions
to
someone else was indeed vague, unstructured and unlawful. Worse
still, they were given to an educator without involving that
educator’s employer. This ground is also without merit.
Ground
1.5
[19]
The next ground is that we failed to consider that the principal is
accountable to the SGB. This point was never part of the
controversies in this case. We had no issue with the SGB’s
power to make policy that is lawful. The principal is accountable
to
the SGB for financial and property matters. The SGB governs the
school and the principal manages the school and assists the
SGB.
Ground
1.6
[20]
The applicant contended that the Principal’s Administrative
Measures (PAM) are not binding between the principal and
the SGB. The
judgment does not say it is. It clearly states that the principal is
bound by the PAM because it is a policy of his
employer. He would
have ignored it at his own peril and on pain of sanction, including
dismissal.
Ground
1.7
[21]
The contention that we should not have considered the PAM in order to
discern what functions are given to the principal by
legislation or
official policy, is misplaced. Section 16A(3) makes plain that the
principal may not act contrary to the PAM. It
provides that:
“
(3) The
principal
must assist the
governing body
in the performance of its
functions and responsibilities, but such assistance or participation
may not be in conflict with—
(
a
)
instructions of the
Head of Department
;
(
b
) legislation or
policy;
(
c
) an obligation
that he or she has towards the
Head of Department
, the
Member
of the Executive Council
or the
Minister
; or
(
d
) a provision of
the Employment of Educators Act, 1998 (Act No. 76 of 1998), and the
Personnel Administration Measures determined
in terms thereof.”
Ground
1.8
[22]
The applicant contended that we erred in finding that “school
activity” is defined very wide in the SASA. The regulations
for
safety measures at schools which were promulgated to support the SASA
defines “school activity” as “any educational,
cultural, sporting or social activity of the school within or outside
the premises”.
[17]
The
centrality of the principal’s role in school activities is
comprehensively set out in the regulations. Both the
SASA and
the regulations define “school activity” widely. This
ground has no merit.
Ground
1.9
[23]
The applicant averred that we erred in finding that the SGB could not
strip the principal of his responsibility over the hostel
and related
activities. We have referred to the provisions of the PAM and the
duties which they impose on the principal. If the
SGB wanted to strip
him of those functions it could only do so with the permission of his
employer or, if it had such power, by
giving him a fair opportunity
to make representation.
Grounds
1.10 to 1.14
[24]
These grounds are fully canvassed and addressed in the judgment and
no purpose would be served by elaborating on or repeating
what was
said in the judgment in respect of those issues.
Ground
1.15
[25]
I find ground 1.15 very strange, to say the least. We specifically
invited the applicant’s legal team to address us on
the
conditional counter-application and they expressly said that they had
no submissions to make on the conditional counter-application.
To now
allege that they argued that “the SGB would fall by its
submission on papers (sic) and no further oral submission
to be made
(sic) in Court based on the interaction between the bench and the
leader of the legal team” is extremely rich,
considering that
they were given an opportunity and decided to say nothing.
Ground
1.16
[26]
The applicant argued that we erred in finding that section 41 of the
Constitution does not apply to the facts of this particular
case.
This ground also lacks merit. The principal is both an educator and
an organ of State. The dual role of a principal should
not be
conflated as the applicant endeavoured to do. “Principal”
is defined in the SASA as an educator appointed or
acting as the head
of a school. “Educator” is defined as follows:
““
educator
”
means any person, excluding a person who is appointed to
exclusively perform extracurricular duties, who teaches, educates or
trains
other persons or who provides professional educational
services, including professional therapy and education psychological
services,
at a
school
;”
[27]
The principal, when he asserts his rights as an educator is not an
organ of State. When he acts as the HOD’s representative,
then
he is an organ of State.
[18]
The principal in this matter acted as an employee of the Department
of Education who is given certain rights, duties, privileges
and
responsibilities by legislation and official policy and not as an
organ of State. He wanted to protect his rights as an educator
and
not as a representative of the HOD.
Grounds
1.17 and 1.18
[28]
These grounds relate to the standing of the SAOU. We have set out all
the bases on which it had standing. In any event, even
if the point
about section 38(e) of the Constitution is a good point it is not
dispositive of the standing issue. We found that
the union had
standing on other grounds as well. The union convinced us that it had
a direct and substantial interest in the subject-matter
of this
controversy. This finding is not challenged by the applicant.
Costs
grounds
[29]
The intervening party was ready to argue the application to intervene
on 8 June 2018. The applicant was not. The principal
came to Court to
vindicate his rights and there was no reason not to grant him and the
intervening party costs. We exercised our
discretion based on the
well accepted principle that costs follow the success and the general
conduct of the SGB in this case.
The HOD expressly asked them to
rescind their resolution but they unnecessarily and stubbornly
refused. The applicant did not argue
that we granted the costs orders
based upon a wrong principle or that we considered irrelevant issues
when exercising our discretion
against it.
[30]
We are convinced that there are no reasonable prospects that this
appeal would succeed.
Section
17(1)(a)(ii)
[31]
I now consider section 17(1)(a)(ii) of the SCA. The applicant
contended that leave to appeal should be granted since the entire
relationship between the educational partners and the designation and
allocation of functions are at stake. It averred that it
would be in
the public interest to have this matter heard by a higher Court.
[32]
This is a surprising
volte-face.
In its papers opposing the
intervention of the union it stated that this matter has no bearing
on other principals. It further
contended that its decision is
clearly “not a legal precedent to be applied by all the SGBs in
the country. It is not speaking
on behalf of any other SGBs, but each
case at a particular school will have to be determined on its own
assessed merits pertaining
to the prevailing circumstances at that
particular school by its SGB and the relevant stakeholders”.
[33]
When we heard the application to intervene it was important to decide
whether an SGB has the power to delegate and under what
circumstances
it may retract its delegation. That would have had a bearing on other
principals. Our findings with regard to those
issues are not
challenged by the SGB. The other findings are fact specific and are
certainly not compelling reasons to grant leave
to appeal. The
interests of justice militate against leave to appeal being granted.
[34] What does our
judgment say?
34.1) That a SGB may
delegate some of its powers.
34.2) It may delegate it
to the principal or any other person or committee.
34.3) In the case of the
principal, it should consider carefully whether the powers which it
intent to delegate are, in any event,
powers which the principal may
exercise in terms of an Act or any other policy instrument.
34.4) The SGB may
retract, at any time, any of its powers delegated to the principle or
any other person or committee. No formality
is required where none is
prescribed.
34.5) The SGB may not
deploy an educator, employed by the MEC, without involving the MEC
who is the employer of such educator. It
may do so if it has employed
the educator.
34.6) A principle has a
dual role first, as a representative of the HOD and therefore an
organ of State and second as an educator
and not an organ of State in
this capacity.
34.7) A principal’s
rights, in the wide sense, are sourced not only in the Act but also
in the regulations, the PAM and other
official Departmental policy
documents.
34.8)
When a SGB is of the view that it may interfere with a principal’s
right, it may only do so after adhering to the rules
of natural or
fundamental justice.
[35] All the findings in
paragraph 34 are, in our view, beyond controversy. The argument that
the Supreme Court of Appeal must determine
what powers may be
delegated by a SGB cannot be countenanced. That is a decision best
left to a specific SGB and principal and
is certainly not a
compelling reason.
Order
[36]
The following order is issued.
The
application for leave to appeal is dismissed with costs, including
the costs of two counsel.
___________________
C.J. MUSI, AJP
I
concur.
___________________
C.
VAN ZYL, ADJP
Appearances:
For
the Applicant: Adv MJ Engelbrecht
With
Adv MJ Merabe
Instructed
by Horn & Van Rensburg Attorneys
Bloemfontein
For
the 1
st
Respondent: Adv WA Van Aswegen
Instructed
by Peyper Attorneys
Bloemfontein
For
the Intervening Party: Adv N Snellenburg SC
With
Adv CD Pienaar
Instructed
by Lovius Block Attorneys
Bloemfontein
[1]
Section
18 of the Superior Courts Act provides:
“
(1)
Subject to subsections (2) and (3), and unless the court under
exceptional circumstances orders otherwise, the operation and
execution of a decision which is the subject of an application for
leave to appeal or of an appeal, is suspended pending the
decision
of the application or appeal.
(2) Subject to
subsection (3), unless the court under exceptional circumstances
orders otherwise, the operation and execution
of a decision that is
an interlocutory order not having the effect of a final judgment,
which is the subject of an application
for leave to appeal or of an
appeal, is not suspended pending the decision of the application or
appeal.
(3) A
court may only order otherwise as contemplated in subsection (1) or
(2), if the party who applied to the court to order
otherwise, in
addition proves on a balance of probabilities that he or she will
suffer irreparable harm if the court does not
so order and that the
other party will not suffer irreparable harm if the court so
orders.”
[2]
Mothuloe
Incorporated Attorneys v The Law Society of the Northern Province
2017 JDR 533 (SCA) at para 18.
[3]
Unreported judgment of the
Land
Claims Court of South Africa Case No LCC 14R/2014.
[4]
Ibid para 6. See also Wools v Wools 2018 JDR 1191 (FB).
[5]
I
use the applicant’s numbering for the sake of convenience.
[6]
Secretary
for Inland Revenue v Kirsch 1978 (3) SA 93 (T).
[7]
Ibid
p94.
[8]
Sandown
Hotel (Pty) Ltd v Kleinmond Drankwinkel (Edms) Bpk 1979 (1) SA 655
(C).
[9]
Ibid
658.
[10]
PJ
Fitzgerald:
Salmond
on Jurisprudence
12
th
ed Sweet & Maxwell 1966.
[11]
Ibid
p 41.
[12]
Ibid.
[13]
Bullock
NO and Others v Provincial Government, North West Province and
Another 2004 (5) SA 262 (SCA).
[14]
Ibid
para 15.
[15]
Ibid
para 17.
[16]
Act
84 of 1996
[17]
Regulations for Safety Measures Public Schools GN 1040 of 12 October
2001 as amended.
[18]
Izak
“Sakkie” Prinsloo explains the dual role of a principal
in the
South
African Journal of Education
vol. 36 no 2 May 2016. The title of the article summarizes what the
applicant is grappling with. The title is “The dual
role of
the principal as employee of the Department of Education and ex
officio member of the governing body”.