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[2019] ZAFSHC 54
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The School Governing Body, Grey College v The Head of Department, Department of Education, Free State Province and Another (1816/2019) [2019] ZAFSHC 54 (2 May 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates:
YES/NO
Case number:
1816/2019
In
the matter between:
THE
SCHOOL GOVERNING BODY, GREY COLLEGE
Applicant
and
THE
HEAD OF DEPARTMENT, DEPARTMENT OF
EDUCATION,
FREE STATE PROVINCE
First Respondent
THE
MEMBER OF THE EXECUTIVE COUNCIL
EDUCATION,
FREE STATE PROVINCE
Second Respondent
HEARD
ON:
26
APRIL 2019
JUDGMENT
BY:
C REINDERS, J
DELIVERED
ON:
2 MAY 2019
[1]
This matter came before me on Friday, 26 April 2019. It was enrolled
by the applicant (the
School Governing Body of Grey College, “the
Grey SGB”) as an urgent application. I removed the matter from
the roll
with costs and indicated that I would furnish my reasons
later. Here are those reasons.
[2]
The application was opposed and opposing papers were filed by the
respondents. The first
respondent is the Head of Department of
Education in the Free State Province (“the HOD”). The
second respondent is
the Member of the Executive Council for
Education, Free State Province (“the MEC”). The HOD
replied thereto. In deciding
the matter of urgency I applied the
principles as set out in
Commissioner, South African Revenue
Services v Hawker Air Services (Pty) Ltd; Commissioner, South African
Revenue Services v Hawker
Aviation Partnership [20
06] ZASCA 51
; 2006
(4) SA 292 (SCA)
. The parties agreed that in applying
these principles the only question to be determined is that of
urgency. I indicated that,
should I find that the matter is not
urgent, I will not consider myself with the merits but merely remove
the matter from the roll.
Mr Grobler (appearing on behalf of the
respondents) submitted that the application should be struck from the
roll with costs due
to a lack of urgency.
[3]
The relief sought by Grey SGB in the notice of motion reads as
follow:
“
1.
That the matter be heard as one of urgency and that, in terms of the
provisions of Rule 6(12) this Court
condones any non-compliance of
the rules pertaining to service and time periods.
2.
Declaring the decision of the First Respondent to withdraw the
“financial and other
related” functions of the Applicant
to be unlawful and invalid;
3.
Reviewing and setting aside the First Respondent’s decision to
withdraw the “financial
and related” functions of the
Applicant;
4.
Ordering the First and/or Second Respondents to bear the costs of
this application jointly
and severally, the one paying, the other to
be absolved.
5.
Granting further and/or alternative relief.
ALTERNATIVE RELIEF
IN THE EVENT THAT FINAL RELIEF IS NOT GRANTED
5.
That, the following order shall issue:
5.1
That, pending finalisation of the main review application, the court
grants an interim order interdicting
the First Respondent from
implementing the impugned decision for the withdrawal of the
functions of the Applicant;
5.3(sic)That, pending
finalisation of the main application, the court grants an interim
order for the restoration of the normal
performance of functions of
the Applicant to the state it previously existed prior to the
issuance of the decision to withdraw
the “financial and
related” functions of the Applicant.
5.3 The
order in paragraph 5.1 and 5.2 shall operate as an interim interdict
pending finalisation of the main
application on a date to be
determined by this Court.
5.3(sic)That the cost be
cost in the cause.
5.4
Further and/or alternative relief. ”
[4]
The nub of same therefore appears to be the decision made by the HOD
on 11 April 2019 in terms
of s 22(3) of the Schools Act 84 of 1996
(“the Act”), conveyed to Grey SGB in a letter (“the
letter”) to
withdraw the financial and related functions of
Grey GSB on an urgent basis due to allegations of maladministration
and mismanagement
of school funds. Grey SGB was invited to make
representations to the HOD why the said decision should be reversed
or suspended.
In a letter addressed to the HOD on 12 April 2019 Grey
SGB indicated that should the letter not be withdrawn within 24 hours
on
or before 15 April 2019 at 15h30, it will approach the court on an
urgent basis. Not being satisfied with the reply on 15 April
2019,
Grey SGB on 16 April 2019 appealed to the MEC in terms of s 22(5) of
the Act to withdraw the letter by the HOD. Grey SGB
afforded the MEC
one day to provide his decision by 17 April 2019 at 15h30. Grey
SGB served this application on the respondents
on 18 April 2018 at
10h00, shortly before the Friday public holiday on 19 April
2019 (Good Friday). The Easter weekend included
another public
holiday on Monday 22 April 2019. Grey SGB indicated that the
respondents had to file its opposing papers on Tuesday,
23 April
2019. Accordingly, taking into account the aforementioned
exposition of dates, the respondents were effectively
afforded one
day to reply. Opposing papers were filed on Wednesday, 24 April 2019,
and on the morning of the hearing of this application,
replying
papers were filed by Grey SGB.
[5]
In its founding affidavit Grey SGB states that the purpose of the
application is to restore
the
status quo ante
to enable Grey
SGB to fulfil its functions pending any investigation and/or receipt
of submissions by the HOD in respect of allegations
of financial
mismanagement. From the opposing papers it would appear that the the
HOD on 16 April 2019 as an interim measure (“the
interim
arrangement”) instructed that the principals of both Grey
College (“the school”) primary and secondary
schools must
oversee the financial workings of the school. Two senior officials of
the department, namely the district manager
of Motheo and circuit
manager, Mesrs Moloi and Cicilie, were mandated to assist the
principals with the operational and management
challenges that might
stem from the withdrawal of Grey SGB’s functions. This included
daily payments to be made and budgeted
expenses approved by the HOD.
The principal of Grey Secondary on 23 April 2019 relayed this
arrangement in an email to the Registrar
of Grey College Secondary
School, Mr Nico Maritz (an employee of the applicant who heads the
financial department of Grey) and
alluded to interim measures being
put in place. It is not disputed in the replying papers that these
measures had been put in place
by the HOD, but the Grey SGB denies
that these measures are adequate.
[6]
The interim arrangement put in place by the HOD pending the outcome
of an investigation
and/or receipt of submissions were done before
the application was launched, and having filed its opposing
affidavit, confirmed
by the HOD on 23 April 2019. Mr Maritz and
the financial staff of the school received the following instruction
from the
HOD : “
You are instructed and protected to
manage the finances of the schools with the co-operation of the
appointed teams until further
notice.”
On 24 April 2019 Mr
Maritz confirmed that he will proceed with the written instructions
from the HOD. Mr Grobler argued that the
urgency of the application
falls flat under these circumstances. Ms Engelbrecht, representing
the applicant, submitted that the
HOD’s confirmation cannot
address on going decisions that must be made by the Grey SGB and
which have a financial impact,
for instance the schools hosting of
the Craven week during the June/July holidays, building
projects and negotiations with
individuals to render services.
[7]
It is the applicant who must convince me that there are good reasons
to depart from the
prescribed time limits as set out in the Rules. It
is well established that there are degrees of urgency (See:
Luna
Meubel Vervaardigers (Edms) Bpk v Makin t/a Makin’s Furniture
Manufacturers 1977(4) SA (W)
) and an applicant should
carefully consider the way in which it decides to shorten the time
frames as prescribed in the Rules.
Mr Grobler submitted that the Grey
SGB truncated the time frames to such an extent that respondents were
not afforded a fair opportunity
to properly oppose the application
and have the issues fully ventilated. This the Grey SGB could have
achieved by enrolling the
matter in such a way that, although the
time frames had been shortened, the application could have been
enrolled with heads of
argument. He furthermore submitted that the
Grey SGB, praying for review relief, is fully aware that review
applications are heard
in this division on a Monday by two judges.
Urgent dates for the hearing of reviews may be granted as swiftly as
within two to
three weeks.
[8]
The Grey SGB in its papers avers the application is urgent in that
the school is not properly
administered from a financial point of
view. No examples are given of inadequate administration
substantiating this averment. Applicant
furnishes examples of events
or negotiations that have financial implications, but is silent on
alluding to actual inadequate financial
administration by the
appointed interim team. The interim measurements by the HOD in my
view made it unnecessary for the Applicant
to launch the application
on an urgent basis. The Grey GSB makes it clear in its papers that
the relief sought is reviewing and
setting aside the HOD’s
decision to withdraw the financial and related functions of the Grey
SGB and submitted that the application
is urgent “given the
impending Easter weekend to have an outcome before the end of April,
when various
payments
must be made (including the various
staff members employed by the Applicant)”. In my view the Grey
SGB,s fear that prompted
this application to be brought on an urgent
basis, has now in any event been alleviated for the time being by the
confirmation
letter of 23 April 2019 and that the school would not
find itself in distress due to financial uncertainties as indicated
by the
Grey SGB. Moreover, it has now been confirmed that an
investigation in terms of s 16A(2)(k) of the Act by the
Superintendent
General of the Free State, has been prioritised to
investigate the alleged mismanagement of school funds by the Grey
SGB. A meeting
in this regard with the Grey SGB is set to take place
between 6
and 10 May 2019. There was in view of the
measurements no reason for the applicant to request me to condone the
prescribed time
frames, nor is there any reason why I should allow
the applicant to have the matter urgently adjudicated. The interim
measurements
have the effect that the school’s finances would
be properly addressed pending any investigation and/or receipt of
submissions
by the HOD in respect of allegations of financial
mismanagement by the Grey SGB. I could see no reason therefore why
the matter
should be enrolled on such an urgent basis and why the
time limits should be shortened.
[9]
I in the said circumstances I came to the conclusion that the
applicant has not made out
a proper case or convinced me that the
matter should be heard on an urgent basis. In my discretion I
therefore made the orders
as I did.
[10]
For the above reasons I made the order removing the application from
the roll with costs.
C.
REINDERS, J
On
behalf of the Applicant:
Adv G Engelbrecht
Assisted by Adv J Merabe
Instructed by:
Horn & Van Rensburg
Attorneys
BLOEMFONTEIN
On
behalf of the Respondents:
Adv S Grobler
Instructed by:
State Attorneys
BLOEMFONTEIN