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[2019] ZAFSHC 200
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School Governing Body of Grey College v Head of Department of Education Free State Province and Another (1816/2019) [2019] ZAFSHC 200 (19 September 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE
DIVISION,
BLOEMFONTEIN
Case
no: 1816/2019
In
the matter between:
THE
SCHOOL GOVERNING BODY OF GREY COLLEGE
Applicant
and
THE HEAD OF THE DEPARTMENT OF
EDUCATION
FREE
STATE PROVINCE
1
st
Respondent
MEC FOR EDUCATION, FREE
STATE
2
nd
Respondent
HEARD
ON:
29 JULY 2019
CORAM:
CHESIWE, J
et
MURRAY AJ
JUDGMENT BY:
MURRAY AJ
DELIVERED ON:
19 SEPTEMBER
2019
[1]
This is an
application by the Grey College School Governing Body (“the
SGB”) to review and set aside the decision of
the Head of the
Department of Education in the Free State Province (“the HOD”)
to withdraw the SGB’s ‘
financial
and related functions’
without
prior notification and with immediate effect in terms of s 22(3) of
the Schools Act, 84 of 1996 (the “Schools Act”).
[2]
The application was instituted on a semi-urgent basis on 18 April
2019, but the Court removed it from
the roll on 26 April 2019 for
lack of urgency. It then came before us on 29 July 2019.
Adv G Engelbrecht, and with
her Adv J Merabe, acted for the Applicant
and Adv W R Mokhare SC appeared on behalf of the Respondents.
[3]
The application was based on the principle of legality, alternatively
on s 6(2) of the Promotion of
Administrative Justice Act No 3 of 2000
(“PAJA”). In its Founding Affidavit the SGB assailed the
HOD’s decision
as being contrary to the prescripts of
administrative justice and the attributes/requirements of legality.
Its implementation
was called an abuse of power.
[4]
The SGB sought final relief, praying for the HOD’s decision to
be declared unlawful and invalid
and set aside. In the alternative,
it asked for an interim order to interdict the HOD from implementing
its decision, and to restore
the normal performance and functions of
the SGB pending the finalisation of the main review application.
[5]
Ms Engelbrecht argued, in essence, that although the SGB accepts that
the HOD had the power in terms
of s 22(3) to withdraw any of the
SGB’s functions without prior communication in cases of
urgency, subject to his giving
reasons for his decision afterwards,
such powers are only to be invoked in unusual, exceptional cases. In
the SGB’s
view, she submitted, in addition to the absence of
the ‘jurisdictional fact’ of urgency, there were no
exceptional
circumstances to justify the use of s 22(3) and
accordingly there was no rational basis for the HOD’s
decision. The
HOD’s further non-compliance, she averred,
lay in his failure to give reasons for his decision.
[6]
The HOD and the MEC opposed the application, disputing, first of all,
its alleged urgency. The
SGB set the application down again
after its removal from the roll on 26 April 2019. The
Respondents’ two further arguments
were that the application
for review was premature, firstly because it was instituted without
the SGB first having exhausted all
its internal remedies, without
waiting for the MEC’s response to their appeal, and without
waiting for the investigation
into Grey Secondary’s financial
affairs to be finalised, and secondly, because the HOD’s
decision was not a final one
which meant that it was not susceptible
to review. All of these arguments were disputed by the SGB.
[7]
The SGB objected to the Opposing Affidavit’s being deposed to
by Mr Bafana Cecil Ngwenya, the
Acting Director: Legal Services of
the Department of Education on behalf of the HOD and the MEC “with
their knowledge and
consent” in the absence of confirmatory
affidavits from them. Ms Engelbrecht relied on
Arnaudov
& others v Minister of Home Affairs & Another
[1]
to aver
that the Opposing Affidavit was not properly before Court since the
HOD cannot simply delegate himself out of responsibility.
[8]
The circumstances in that case differ from this situation, however.
In that case the deponent’s
name did not appear in any of the
correspondence or documents and the Court stated that the opposing
affidavit was attested to
by a person who did not even allege that he
had personal knowledge of or had any dealings with the applicant’s
representations.
The Court, in the context of that case, stated
that no-one else than the person who took the decision, could depose
to the affidavit
and that it could take cognisance of only those
factors of which the deponent had personal knowledge.
[9]
That is not the situation in this matter. In the SGB’s
e-mail of 22 June 2018, Annexure
“HB3” to the founding
affidavit, the deponent, CB Ngwenya, is already copied. In the
HOD’s 11 April 2019
letter to announce the withdrawal of the
SGB’s financial functions, the SGB is requested to submit the
representations to
the Legal Department. Mr Ngwenya is the
Acting Director thereof. In the Confirmatory Affidavit of Mr
Maritz, the Registrar
of Grey College financial division, he refers
to the instructions which the Principal received from Adv Ngwenya
that the operational
management in relation to the finances of Grey
College Secondary had to resume with immediate effect; the
Principal’s 16
April 2019 e-mail regarding the operational
management is also addressed to Adv Ngwenya, and even the SGB’s
12 April 2019
response to the HOD is copied to CB Ngwenya. In
the Founding Affidavit, furthermore, Mr Ngwenya confirms that the
facts attested
to are within his personal knowledge.
[10] And,
significantly, furthermore, annexed to the Answering Affidavit, is
Annexure “D”, an internal report
compiled by the Legal
Services Department ‘recommending the withdrawal of functions
and a financial investigation by the
Department’s Internal
Audit Committee to be conducted at Grey Secondary School which Mr
Ngwenya himself signed. In
the affidavit he stated that the HOD
approved the report shortly thereafter on 11 April 2019.
[11] It is
therefore abundantly clear that Adv Ngwenya has personal knowledge of
all the issues and has been personally
involved in the dispute
between the SGB and the Principal, as well as in the HOD’s s
22(3) decision which was taken on his
legal advice. The
Applicant’s reliance on the
Arnaudov
-decision to impugn
Mr Ngwenya’s authority to depose to the answering affidavit is
therefore misplaced. In the circumstances
there is also no
reason to disregard the confirmatory affidavits which the HOD and the
MEC later filed in response to the SGB’s
complaint.
[12] The
statutory framework within which the HOD and the school governing
body need to function consists primarily
of the Schools Act and the
Constitution. The Constitutional Court in
Head
of Department, Department of Education, Free State Province v Welkom
High School and Another; Head of Department, Department
of Education,
Free State Province v Harmony High School and Another
[2]
(“Welkom (CC)”)
stated
that public schools are run by a partnership constituted of the
state, parents of learners and members of the community.
Each
partner represents a particular set of relevant interests with
corresponding rights and obligations, with the objective of
“providing education services to learners”.
[13] The
Court made it clear that the relationship and interactions, the
checks and balances and accountability mechanisms,
between the
partners are closely regulated by the Schools Act. In
Head
of Department, Mpumalanga Department of Education and Another v
Hoërskool Ermelo
[3]
(“Hoërskool Ermelo”)
the Court summarised the nature of the statutory partnership as
follows:
“
An overarching
design of the [Schools Act] is that public schools are run by three
crucial partners. The national government
is represented by the
Minister of Education whose primary role is to set uniform norms and
standards for public schools.
The provincial government acts
through the MEC for Education who bears the obligation to establish
and provide public schools and,
together with the Head of the
Provincial Department of Education, exercises executive control of
public schools through principals.
Parents of the learners and
members of the community in which the school is located are
represented in the school governing body
which exercises defined
autonomy over some of the domestic affairs of the school.”
[14] The
Constitutional Court
[4]
pointed
out that sections 22 and 25 regulate situations where an HOD’s
“supervisory authority manifests in the form
of a direct
intervention in a public school’s affairs”. As
stated, s 22 thus “empowers an HOD, on reasonable
grounds, to
withdraw any function exercised by a school governing body, subject
to certain procedural fairness requirements”.
The Court
added, furthermore, that “section 22 regulates the situation
where a school governing body has purported to exercise
its
functions, but has done so in a manner warranting intervention,
whereas section 25 obtains where a school governing body has
failed
to perform its functions, in whole or in part.”
[15] Section
22(1)
[5]
of the Schools Act
therefore authorises the HOD to withdraw SGB functions. The SGB
contends that the HOD should have relied on
s 22 (2) which determines
that the HOD may withdraw SGB functions only on reasonable grounds,
after having notified the SGB of
such intention and the reasons
therefore, and after having considered representations as to why he
should not withdraw the SGB’s
functions.
[16] The
Constitutional Court
[6]
,
however, with reference to s 22(3) held that:
“
In the event of an
urgent need to withdraw a school governing body’s functions,
compliance with the procedural fairness requirements
may be delayed
until after the withdrawal has occurred, provided that the governing
body is given sufficient opportunity at a later
stage to make the
appropriate representations to the relevant HOD.”
[17] As is
evident from S 22(3), in cases of urgency the HOD is indeed allowed
to only furnish reasons after the SGB’s
functions had already
been withdrawn. The condition to do so, according to the
Constitutional Court
[7]
is:
“that the governing body [be] given sufficient opportunity
at
a later stage
to make the appropriate representations to the relevant HOD”
(emphasis
added).
After
due consideration of the said representations, and should the HOD
have found sufficient reasons to do so, he may then in terms
of s
22(4) reverse or suspend the action which he took in terms of s
22(3).
[18] On that
basis, the Respondents contended, the HOD’s s 22(3) decision is
not a final one, since it is susceptible
to reversal or suspension
upon good reasons being supplied. As Mr Mokhare submitted, it
is then in the HOD’s discretion
to decide, after due
consideration of the representations made by the SGB and at a later
stage in the process, whether sufficient
reasons had been provided to
justify a reversal or suspension of his decision to withdraw some or
all of the SGB’s functions,
or whether to confirm the
withdrawal. At the time of the hearing, neither of these options has
been implemented yet.
[19] The Act,
furthermore, in s 22(5) affords any person who is dissatisfied with
any decision taken by the HOD in terms
of s 22(3), the opportunity to
appeal against that decision to the MEC. The Respondents
contend that the SGB not only failed
to make the representations
which the HOD invited them to make, but also paid mere lip-service to
the appeal-remedy that was statutorily
at their disposal.
[20] The
Constitutional Court
[8]
made it
clear, furthermore, that “An HOD’s powers of withdrawal
under s 22 are broad, and extend to “any function”
conferred on a school governing body” and that once an HOD
“withdraws a particular function, that function vests in
his or
her office and he or she is duty-bound to exercise it in furtherance
of a specified goal permitted by the Schools Act”
[9]
.
[21] It is
therefore clear that the HOD was empowered in terms of the Schools
Act to intervene in the functioning of
the SGB if he considered it
necessary to do so, and to do so in terms of s 22(3) if he considered
the need for such intervention
to be urgent. The Act does not require
exceptional or extraordinary circumstances for the application of s
22(3).
[22] The SGB
admits that, as an organ of state, in governing the affairs of Grey
College it may only perform the functions
and obligations and
exercise the rights conferred on it by the Schools Act and that it
may only do so subject to the relevant provisions
of the said
Act.
[10]
That its right
to administer the school fund is not unfettered, is clear from S
37(1) which determines that the SGB must
administer the school fund
‘in accordance with directions issued by the Head of
Department’.
[23] S 37(6)
clearly determines, furthermore, that the school funds of a public
school like Grey College
must
[emphasis added] be used only for
educational
purposes.
[11]
[24] The
Schools Act does not authorise the SGB to use school or reserve funds
for legal fees. It is only in the
Norms
and Standards for School Funding,
[12]
which has not been recognised as legislation yet, that it is
mentioned that services to be paid for by the SGB under s 21(1)(d)
may include legal fees. Logic dictates, however, in view of the
prescripts of s 37, and especially of s 37(6), that the use
of such
money for legal fees would only pertain to matters where legal
services are retained to serve an
educational
purpose, such as where the SGB needs to litigate or obtain legal
advice on behalf of a learner or educator or the school. It is
inconceivable that the legal services which the governing body
utilised to defend itself against the school principal’s
application and for which it paid with funds belonging to Grey
Secondary can rationally be regarded as having been used ‘for
educational purposes’.
[25] The SGB admits
that it stands in a position of trust towards Grey College. All
the more reason then that it should
be absolutely open, honest and
trustworthy not only in its dealings with the money belonging to the
school, but also in its dealings
with the other partners involved in
the so-called ‘golden thread’ running through the Schools
Act. The
provisions of which Act were held to be
‘carefully crafted to strike a balance between the duties of
the various partners
to ensure an effective education system’.
[13]
[26] This
current litigation needs to be viewed in its proper context since the
history of this matter undoubtedly contributed
to the HOD’s
decision. The factual background to this application, in short, is
that the SGB itself, as governing body of
both Grey College Secondary
School (“Grey Secondary”) and Grey College Primary
School (“Grey Primary”),
in 2018 unilaterally recalled
all delegated school governing body powers from Mr Scheepers, the
principal of Grey Secondary (“the
Principal”), and
appointed the principal of Grey Primary as interim school manager to
manage all Grey Secondary school activities
with the exception of
teaching and learning on behalf of the SGB.
[27] The
Principal instituted an urgent application (“the Scheepers
application”) to review and set aside
the decision of the SGB.
The SGB not only opposed the application but also filed a
conditional counter-application, and filed
a striking-out application
against the intervening party, the SAOU,
[14]
as well.
[28] Both the
Scheepers application and the requested SAOU-relief was granted.
This Court, by way of Musi AJP
(as he then was) and Van Zyl J, on 6
September 2018 dismissed the SGB’s counter-application and
ordered it to pay the costs
of both Mr Scheepers and the SAOU.
The SGB applied for leave to appeal, which application was dismissed,
again with
costs orders in favour of the Principal and the SAOU. The
SGB then applied to the SCA, which granted leave. That appeal
was yet to be heard when the SGB brought this review application.
[29] On 27
February 2019 the SAOU informed the HOD that Grey Secondary’s
Financial Statement for December 2018
reflected two SGB authorised
payments of R1 585 200.00 and R 163 490.00, respectively, for
‘Legal Costs’.
The SGB had authorised the said
payments without their having been discussed with or authorised by
the Principal as Grey Secondary’s
executive and accounting
officer. The SAOU requested the HOD to launch an urgent independent
forensic investigation into the school’s
finances and the SGB’s
possible mismanagement of the Grey school funds by using the latter
to fund its own litigation. The
SAOU pointed out that neither the
continued feud between the SGB and the Principal nor the use of
school funds to further litigation
was in the interest of the school
or its learners.
[30] The
Principal on 20 March 2019 in accordance with s 16A(2)(k)
[15]
of the Act formally reported to the HOD and to the SGB the
‘
maladministration
and mismanagement of a financial matter’
,
namely that the R 1 585 200.00 which was paid to the SGB’s
attorneys was taken from Grey Secondary’s school
fund while the
Scheepers application, in which both the SGB and the principal of the
primary school were respondents, involved
both schools. He
averred that on 8 October 2018 the Chairperson of the SGB assured
‘
hundreds
of concerned parents’
that
the legal costs would be paid from ‘
reserved
school funds’
,
rather than from Grey Secondary’s school funds.
[31] The
Principal in his report to the HOD stated, furthermore, that:
“
8.
The High Court made four cost orders against the SGB (two cost orders
in my favour and two cost orders in favour
of the SAOU) in the
current litigation, which I anticipate will have to be honoured in
the near future by the SGB. For this
reason, it is important
that the HOD intervenes as a matter of urgency, in order to prevent
similar maladministration and mismanagement.
9.
I believe that the most transparent and fair process to be followed
is that you have to be consulted before
any further payments are to
be made and approve the payments and that you deal with the payment
already released in the way you
believe to be appropriate.”
[32] It is
therefore clear from the Principal’s s 16A(2)(k) report, which
was delivered to the SGB on 20 March
2019, that the HOD was indeed
requested to act with urgency regarding this matter in view of the
four costs orders against the
SGB which still needed to be paid and
the apprehension that such payments might also be made out of Grey
Secondary’s school
funds.
[33] Of
particular concern to the HOD, according to the Opposing Affidavit,
was the fact that he had not been advised
of either the payment
resolutions or the payments made by the SGB. Even more so since
that happened while the SGB was aware
that the Scheepers matter,
concerning which the SGB itself had held parents’ meetings and
had pronounced the HOD to be a
necessary party in that litigation,
was “a controversial one”.
[34] Acting
on the advice of the Legal Services Department, the HOD on 11 April
2019 by letter informed the SGB of its
decision in terms of s 22(3)
of the Schools Act 84 of 1996 (“the Act”) to withdraw the
financial and related functions
of the SGB with immediate effect,
pending an investigation into the financial administration of Grey
College Secondary by the Department’s
Internal Audit Committee.
Paragraph 3 of the letter clearly stated:
“
The SGB is
afforded an opportunity to make representations, if it so elect, to
the HOD as to why the action should be reversed or
suspended.”
[16]
[35] On the
same day, 11 April 2019, the HOD appointed Mr Mokoena, the Director:
Internal Audit of the FS Department
of Education, to investigate Grey
College Secondary, as follows:
“
You are hereby
appointed for the above as a matter of urgency. This is to
collect and substantiate to [
sic
]
the allegations of mismanagement of school funds and irregularities
in the conduct of the Chairperson/SGB whose functions and
duties had
been withdrawn with immediate effect until your investigations are
complete or the decision is reversed or suspended.”
As at the date of the
hearing of this application, that investigation was still ongoing.
[36] It
cannot be disputed, therefore, that the HOD in its 11 April 2019
letter explicitly invited the SGB to make representations
as to why
the said decision should be reversed or suspended. However,
instead of accepting the invitation, the SGB, via its
attorney, on
Friday 12 April 2019 informed the HOD,
inter alia,
that his
“
purported withdrawal of functions are unlawful and
groundless
”. The SGB letter stated, furthermore:
“
You do not
expressly allege that the matter is urgent and that you have grounds
to act on an urgent basis as provided for in sec
22(3) Schools Act,
yet you dare withdraw an important function such as the financial
function outright.”
[37] Besides
containing several further accusations, such as that the HOD’s
‘
conduct
… tend
[sic]
to
go beyond irrationality and was intended to embarrass, on the face of
it was mala fide’,
annexed
to the letter was an extract from the SGB’s 22 June 2018 letter
to the HOD
[17]
in which it had
accused the HOD of ‘
irresponsibly’
undermining
the SGB’s activities by instructing the Principal to stop
attending SGB meetings until further notice, and of
the HOD’s
‘
unconditional
loyalty to Mr Scheepers [which] in this instance comes at the expense
of education at the school’.
[38] The SGB
afforded the HOD 36 hours to withdraw the alleged ‘
unlawful,
irrational and unconstitutional’
decision conveyed in his
11 April 2019 letter, failing which they would bring an urgent
application to review and set aside ‘
the purported
withdrawal of functions, with an appropriate costs order’
.
[39] The SGB
was not satisfied with the response on behalf of the HOD on 15 April
2019, in which it was reminded that
the HOD was awaiting the SGB’s
representation, if any. On 16 April 2019 it then appealed to
the MEC in terms of s 22(5)
of the Act, complaining that there was no
reason why the HOD could not have acted in terms of s 22(2) instead
of s 22(3) and why
it could not have given the SGB an opportunity to
make representations before taking his decision. The SGB set
out some of
the financial management functions it has to attend to,
then afforded the MEC one day to withdraw the HOD’s letter of
11
April 2019.
[40] When the
MEC did not withdraw the HOD’s decision, the SGB on 18 April
2019
[18]
filed its
application. In its Founding Affidavit it averred that
“although the opportunity to make submissions exists,
there is
simply no time to entertain this option whilst the school is not
properly administered from a finance point of view.”
The
SGB averred, furthermore, that “In any event the
withdrawal on an urgent basis constitutes unlawful conduct
which must
be set aside on the principle of legality alone.”
[41] In its
rush to file the application, the SGB simply ignored the interim
measures which the HOD had already instituted
on 16 April 2019 to
address the problems stipulated by the SGB in its and the MEC’s
letters to ensure the continued functioning
and management of the
financial affairs of Grey Secondary. By that time the Principal
on behalf of the HOD had already specified
the arrangements for the
interim financial management of the school.
[42] As
interim measures pending an investigation into the financial
management of the school, the HOD had mandated
two senior
Departmental officials, Messrs Moloi and Cicilie, to assist the
principals of the primary and secondary schools with
the operational
and management challenges that might stem from the withdrawal of the
SGB ’s financial functions. The
Principal also on behalf
of the HOD on 16 April 2019 instructed Mr Maritz, the Registrar and
head of Grey Secondary’s financial
department, but an SGB
appointment, to resume the operational management of the financial
affairs of the school with immediate
effect.
[43] From the
said Registrar’s undated Confirmatory Affidavit it appears that
the continued operational management
of the schools entails the
continued payment of all the daily budgeted payments, and the
pre-approval by the HOD of all unbudgeted
payments or payments in
excess of R10 000.00. Mr Maritz averred, however, that he
had been advised that, because of
the withdrawal of the SGB’s
financial functions, the SGB’s financial policy as a ‘related
function’ as
well as all its decisions and delegations had also
been undone. By implication, he averred, his financial
functions in the
employ of the SGB as well as his powers as
Registrar, for instance to make and receive payments, to withdraw
money from the school
account and to have access to internet banking,
were also terminated. In response to these allegations, the HOD on 23
April 2019
in writing confirmed his instructions to Mr Maritz to
continue as before.
[44] On 23
April 2019 the Internal Audit Directorate in writing informed the SGB
of its intended investigation. The
intended meeting to allow the SGB
to air its views was confirmed in the Directorate’s letter.
The affidavit filed by
the HOD’s legal team confirmed the
institution of the interim measures to facilitate the financial
decisions and management
of the school pending the outcome of the
investigation. The affidavit clearly stated that the withdrawal
of functions was
‘not a final step’ and that the SGB
would have a full opportunity to present its version to the Internal
Audit Committee
in a meeting scheduled for the second week in May. In
the affidavit it was made clear, furthermore, that the ‘
real
conflict in the matter’
(namely the acrimonious public
dispute between the SGB and the Principal) should be ‘
expediently
resolved’
. Evidently then, the withdrawal should be
regarded in the context of the said public dispute.
[45] Without
waiting for the MEC’s response to its appeal, and ignoring the
HOD’s interim measures, the
SGB persisted with its application
on 26 April 2019, alleging that its statutorily conferred functions
had been withdrawn unlawfully
and insisting that the
status quo
ante
be restored forthwith. The SGB claimed final relief,
alternatively interim restoration of its functions pending the
outcome
of the investigation. On 26 April 2019 the Court
removed the application from the roll for lack of urgency and by 29
July
2019 its alleged urgency was academic.
[46] The SGB
alleges that it did not know which ‘related’ functions
were withdrawn, and that, therefore,
such withdrawal was unlawful.
Apart from the Principal’s letter in which the continued
functions were stipulated, in the
Opposing Affidavit it is explicitly
stated that the HOD had instructed that the principals of Grey
Secondary and Grey Primary must
oversee their respective schools’
financial functions; that the SGB has in the interim been precluded
from making
ad hoc
financial decisions regarding expenditures
that have not been budgeted for; and that the budgeted expenditures
that had already
been approved as at date of the suspension of the
SGB’s financial functions were to remain intact and could
proceed.
[47] There is
no evidence in the SGB ’s founding papers of real financial
prejudice that the school has suffered
as a result of the HOD’s
decision, only averments of various financial tasks which the
governing body potentially had to
perform and/or approve payments
for. But, in the Opposing Affidavit, it was clearly stated that
there were none of those
that could not and would not be properly
dealt with.
[48] The SGB
averred that the HOD was biased, or reasonably suspected of bias,
when he took the decision to ‘
exercise
the extraordinary step’
of
withdrawing the financial and related functions of the SGB without
first investigating and/or providing the SGB an opportunity
to make
submissions when he himself had taken some time to make the
decision.
[19]
Apart
from stating that the HOD’s use of s 22(3), which they called
the ‘exception to the already exceptional
procedure” was
unlawful and irrational, the SGB alleged that the HOD did not give
reasons for his conduct. This despite
the explanation that the
withdrawal was urgent since the school was faced with continued
litigation by the SGB.
[49] It also
alleged
inter alia
that the HOD’s action was
procedurally unfair since there existed no urgent reason for the
withdrawal of SGB powers in the
absence of submissions, and since the
HOD ‘patently’ had knowledge of the state of affairs ‘for
a long period’
prior to taking the decision; that s 22(3) of
the Act is reserved for unusual, extraordinary or exceptional
circumstances; that
the HOD took into account irrelevant
considerations, such as the Principal’s non-attendance of SGB
meetings on the HOD’s
own instructions, and/or that the HOD
refrained from taking into account relevant considerations such as
the effect of his decision
on the school. The SGB averred that
the HOD’s exercise of his statutory power in terms of s 22(3)
was so unreasonable
that no reasonable person would have exercised
that power. It also alleged that the HOD took the decision in
bad faith and
should have given the SGB an opportunity to respond to
the allegations and should not have been ‘
moved to action on
the say-so of the principal that is publicly known to be engaged in
fractious legal disputes with the SGB’.
[50] Based on
all of the above, the SGB alleged that it was entitled to have the
decision reviewed under the various
provisions of s 6 of PAJA. In
argument, however, the reliance on PAJA was largely abandoned, with
Ms Engelbrecht concentrating
on the alleged infringements upon the
principle of legality. Mr Mokhare averred that this was
because the HOD’s
oversight function was executive in nature,
not administrative, and therefore not reviewable under PAJA.
[51] In
Welkom
(CC)
[20]
the
Constitutional Court indeed stated that:
“
it
cannot be denied that the Free State HOD exercises executive control
”
over the two public
schools relevant to that case. It has to be kept in mind that
the application in that case succeeded because
the HOD intervened in
policy making without exercising his powers of intervention in terms
of s 22 and without withdrawing governing
body functions before
appointing a committee to take over the governing body’s
functions and enforcing his own policy decision.
In those
circumstances his action was described as usurping the policy-making
power of the governing body. The Court made
it clear that the
Schools Act does not allow him to do so without having gone through a
process in terms of s 22 or s 25, or without
approaching a court for
appropriate relief.
[52] The
circumstances of this application are distinguishable. However, here
the HOD did exercise his powers in terms
of s 22(3), an option
provided to him by the Schools Act. From the correspondence
annexed to the Opposing Affidavit it is
clear that he was requested
and indeed advised to act urgently. On the SGB’s own version
there was a breakdown of trust between
it and the Principal. On
its own version the HOD requested that the dispute be kept out of the
public eye. If
the HOD’s action is considered in
the context of the history and nature of this public dispute between
the SGB and the Principal,
and in view of the damage it has already
done to the school’s reputation, I cannot find the decision to
be either unlawful
or unreasonable.
[53] The SGB,
presumably in an attempt to justify its actions, annexed
correspondence with FEDSAS
[21]
in which it asked whether the SGB had the power to decide to use the
school’s reserve funds “to initiate projects”
(‘
om
projekte aan te pak’).
There
is no evidence that FEDSAS was informed that the intended ‘project’
was actually to pay the SGB’s legal
costs incurred in opposing
the Scheepers application, however.
[54] It
appears from an unidentified document, purportedly two pages of
undated, unsigned minutes of a governing body
meeting annexed to the
Founding Affidavit that the SGB was then informed that it had to
apply an unbudgeted line-item to pay for
accumulated legal costs from
the school’s reserves in advance. The document indicates,
furthermore, that the meeting was
informed that according to FEDSAS
the SGB only needed a majority decision to apply the reserves for
anything it wished to, and
that the members were told that the money
would be repaid into the reserves should the case be won with costs.
[55] There is
no indication in the ‘minutes’ however, that such a
majority decision was indeed taken, or
indeed what ‘case’
it referred to. And according to the Principal’s s
16A(2)(k) report, the SGB did
not pay the legal costs from the
reserve funds, as the members of the SGB and the parents were told,
but from the Grey Secondary
school fund. Notably the SGB does
not deny the payment from the school funds but only denies any
financial mismanagement.
It is clear then why an investigation
was needed and indeed warranted.
[56] The need
for a proper investigation is further underscored in the SGB’s
own Supplementary Replying Affidavit
in which it revealed that on 3
May 2019, that is after this application had initially been removed
from the roll, it filed a formal
complaint against the Principal in a
matter which the SGB allegedly had initially decided ‘to keep
quiet’. In it the
SGB accused the Principal of the unlawful and
wilful mismanagement of finances at Grey Secondary, based on his
payment of an increase
in an employee’s salary which had not
been budgeted for and had not been approved by the SGB, and his claim
for travelling
expenses of R720 for his attendance of the Nedbank
Golf Challenge which the Registrar refused to pay.
[57] The
courts in
Mikro
[22]
and
Welkom
and
Harmony
[23]
made it clear that school governing bodies and HOD’s are organs
of state. Three peremptory relevant functions of the
governing
body
are set out in s 20, namely that it must:
(1)(a)
promote the best interests of the school…
………
.
(e) support
the
principal,
educators
and
other staff of the school
in the performance
of their professional functions
;
and
………
(f)
administer and control the school’s property, and buildings
and grounds occupied by
the school, including school hostels; but the exercise of this power
must not in any manner interfere with
or otherwise hamper the
implementation of a decision made by the Member of the Executive
Council or Head of Department in terms
of any law or policy.
[58] And s 41
of the Constitution
[24]
requires all spheres of government and all organs of state within
each sphere to cooperate. The Schools Act explicitly requires
all the partners in education, the Minister, the MEC, the HOD, the
Principal and the SGB to work together in the best interests
of the
school and the learners. The SGB relied heavily on this passage
in averring that the HOD, in intruding into the sphere
of the SGB and
stripping it of some of its functions, was unlawfully disturbing the
delicate balance intended by the Act.
In doing so, however, the
SGB lost sight of the fact that the same Act explicitly mandates the
HOD to do just that where a need
to step in arises in the
circumstances of a particular case. Evidently the HOD
considered the present matter to be
just such a case.
[59] In my
view the over-hasty institution of this application by the SGB
without making the representations it was
invited to make, and its
stubborn persistence with the application despite all the interim
measures which the HOD had put in place
to ensure the continued
proper functioning of the school until the investigation has been
completed, was not only premature but
failed to meet the standards
expected from a body which is in a fiduciary relationship to the
school and which is obliged by the
Act to promote the best interests
of the school and to cooperate with the other partners in education.
[60] In
failing to make use of internal remedies afforded by the Schools Act,
by ignoring the invitation to make representations,
by failing to
wait for a response from the MEC, and by disregarding the interim
measures put in place by the HOD to obviate potential
financial harm
to the school, in my view, the SGB itself violated the principle of
meaningful engagement in terms of the partnership
model encapsulated
in the Schools Act which it purported to rely on. In doing so,
it failed to comply with s 41(1)(h)(vi)
of the Constitution which
provides that all spheres of government and all organs of state
within each sphere must co-operate with
one another in mutual trust
and good faith by avoiding legal proceedings against one another.
[61] The
SGB’s own conduct, in my view, best serves to emphasise the
rationale for the HOD’s urgent intervention
in the damaging
public feud between two purported partners who are supposed to have
as common purpose the serving of the best interests
of the ‘flagship’
school Grey College.
[62] Even
should I be wrong about that, in my opinion the application was
indeed premature in view thereof that at the
time of its hearing the
appeal in the Supreme Court of Appeal was still pending, and the
investigation into the management of the
Grey finances was not yet
complete. Even more so since the HOD’s decision can still
be reversed or suspended, should
the SGB provide it with sufficient
reasons to do so.
[61] The
application therefore cannot succeed.
[62] There is
no reason to deviate from the normal order that costs should follow
the outcome.
WHEREFORE I make the
following order:
1.
The
application is dismissed with costs.
H MURRAY, AJ
I
concur and it is so ordered.
S CHESIWE, J
For
the Applicant: Adv G Engelbrecht
Adv J Merabe
Instructed by:
Mr MJ van Rensburg Horn & Van Rensburg Attorneys
4 Nobel Street
BLOEMFONTEIN
For
the Respondents: Adv W R Mokhare SC
Instructed
by: Mr
M A Mohobo
Office of the State
Attorney
10
th
Floor Fedsure Building
49 Charlotte Maxeke
Street
BLOEMFONTEIN
[1]
[2004] JOL 12901 (T)
[2]
(CCT 103/12)
[2013] ZACC 25
’
2013 (9) BCLR 989
(CC);
2014 (2)
SA 228
(CC) (10 July 2013) at par [49]
[3]
[2009] ZACC 32
;
2010 (2) SA 415
(CC);
2010 (3) BCLR 177
(CC) at par
[56]
[4]
Welkom (CC),
supra,
at par [47].
[5]
“
S
22
Withdrawal
of functions from governing bodies
.
-
(1)
The
Head
of Department
may, on reasonable grounds, withdraw a function of
a
governing body;
(2)
The
Head of Department
may not take action under subsection
(1) unless he or she has –
(a)
informed the
governing body
of his or her intention so to act
and the reasons therefore;
(b)
granted the
governing body
a reasonable opportunity to make
representations to him or her relating to such intention; and
(c)
given due consideration to any such representations received.
(3)
In cases of urgency, the
Head of Department
may act in terms
of subsection (1) without prior communication to such
governing
body
, if the
Head of Department
thereafter –
(a)
furnishes
the
governing
body
with
reasons for his or her actions;
(b)
gives
the
governing
body
a
reasonable opportunity to make representations relating to such
actions; and
(c)
duly
considers any such representations received.
(4)
The
Head of Department
may for sufficient reasons reverse or
suspend his or her action in terms of subsection (3
)
;
(5)
Any person aggrieved by a decision of the
Head of Department
in
terms of this section may appeal against the decision to the
Member
of the Executive Council.”
[6]
WELKOM (CC),
supra,
at par [47]
[7]
WELKOM (CC),
supra,
op cit.
[8]
WELKOM (CC),
supra,
at
par [47]
[9]
“
S 25
Failure by governing
body to perform functions-
(1)
If the Head of Department
determines on reasonable grounds that a governing body has ceased to
perform functions allocated to
it in terms of this Act or has failed
to perform one or more of such functions, he or she must appoint
sufficient persons to
perform all such functions or one or more of
such functions, as the case may be, for a period not exceeding three
months.
(2)
The Head of Department
may extend the period referred to in subsection (1), by further
periods not exceeding three months, but
the total period may not
exceed one year.
(3)
If a governing body has
ceased to perform its functions, the Head of Department must ensure
that a governing body is elected in
terms of the Act within a year
after the appointment of persons contemplated in subsection (3).”
[10]
S 16 (1)
of the Schools Act, 84 of 1996.
[11]
S 37(6) “
The
school
fund, all proceeds thereof and any other assets of the
public
school
must be used only for-
(a)
educational purposes, at or in connection with such school;
(b)
educational purposes, at or in connection with another public
school, by agreement with such other
public
school
and with the consent of the
Head
of Department
;
(c)
the performance of the functions of the
governing
body;
or
(d)
another educational purpose agreed between the
governing
body
and the
Head
of Department.
”
[12]
Government Notice 869 (GG 2917)
of 31 August 2006 as amended; as promulgated in terms of s 35 of the
SASA,
and regarding which it has not been declared to be legislation.
[13]
HOD, Department of Education,
Free State Province, v Welkom High School and Others
2014 (2) SA 228
(CC)
at
par [36]
[14]
The Suid-Afrikaanse Onderwysersunie, a union with 34,000 members,
including the Principal.
[15]
S16A
provides for the principal to
inter
alia:
“
(2)(h)
assist the
governing
body
with
the management of the
school’s
funds,
which
assistance must include –
the
provision of information relating to any conditions imposed or
directions
issued
by the
Minister,
the
Member of the Executive Council
or
the
Head of
Department
in
respect of all financial matters of the
school
contemplated
in
Chapter 4; and
the
giving of advice to the
governing body
on the financial
implications of
decisions
relating to the financial matters of the
school
;
(i)
take all reasonable steps to prevent any financial maladministration
or
mismanagement
by any staff member or by the
governing
body
of
the
school;
(j)
be a member of a finance committee or delegation of the
governing
body
in
order
to
manage any matter that has financial implications for the
school;
(k)
report any maladministration or mismanagement of financial
matters to the
governing
body
and
to the
Head
of Department.”
[16]
Paragraph 4 of the letter provided that written representations
should be forwarded to “Legal and Auxiliary
Services” of the
Department.
[17]
Annexed to the Founding Affidavit as Annexure “HB3”
[18]
Over the Easter Weekend with its two public holidays
[19]
On the Applicant’s version 15 business days. From the
Opposing Affidavit, however, it is clear that the
recommendation of the Legal Services Department was only signed on 4
April 2019 and the HOD’s
decision
issued
within 5 business days thereafter.
[20]
Supra,
at par [79]
[21]
The Federation of South African Schools
[22]
Minister of Education (Western
Cape) v Mikro Primary School Governing Body [2006] 3 All SA
438 (SCA).
[23]
Head of Department, Department
of Education, Free State Province v Welkom High School and Another,
Head of Department, Department
of Education, Free State Province v
Harmony High School and Another (Equal Education and Another as
amici curiae)
2013
(9) BCLR 9989 (CC).
[24]
The Constitution of the Republic
of South Africa, Act 108 of 1996.