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[2019] ZANCHC 50
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Khathu Primary School and Another v Head of the Department of Education, Northern Cape and Others ; Seodin Primary School and Another v Head of the Department of Education, Northern Cape and Others (308/2018, 561/2018) [2019] ZANCHC 50 (6 September 2019)
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IN THE HIGH COURT OF SOUTH
AFRICA
(NORTHERN CAPE HIGH COURT,
KIMBELEY)
Case
No: 308/2018 & 561/2018
Heard
On: 14/02/2019
Delivered:
06/09/2019
In the matters between:
Kathu Primary
School
1
st
Applicant
The School Governing Body of
Kathu Primary
School
2
nd
applicant
and
The Head of the Department
of
1
st
Respondent
Education, Northern Cape
The Member of the
Executive
2
nd
Respondent
Council for Education in the
Northern
Cape
Mr Carl Wilhelmus Du
Plessis
3
rd
Respondent
Mr John David
Wilson
4
th
Respondent
Mr Jasper Martin
Venter
5
th
Respondent
AND
Seodin Primary School
1
st
Applicant
The School Governing Body of
Seodin
Primary
School
2
nd
Applicant
and
The Head of the Department of
Education,
Northern
Cape
1
st
Respondent
The Member of the Executive
Council for
Education in the Northern
Cape
2
nd
Respondent
Mr Phillip Johannes Van
Schalkwyk
3
rd
Respondent
Mr MA Van
Zyl
4
th
Respondent
Mr Zacharias Petrus
Möller
5
th
Respondent
Mr G
Els
6
th
Respondent
Coram: Williams J et Pakati J
JUDGMENT
PAKATI J
[1]
The two applications concern the legality of the decision taken by
the Head of Department to decline the recommendations
by the School
Governing Bodies. They were argued the same day due to the
similarities in the relief sought against the respondent.
They
involve Kathu Primary School (“Kathu Primary”), and
Seodin Primary School (“Seodin Primary”), both
public
schools for learners from Grade 1 to 7 (Kathu Primary) and Grade R to
7 (Seodin Primary) possessed with juristic personality
by virtue of
the provisions of section 15 (1) of the South African School Act, 84
of 1996, as amended and both School Governing
Bodies duly elected and
constituted as envisaged in section 16 (1) of the South African
Schools Act
[1]
,
the first and second applicants. The first and second respondents in
both applications are the Head of the Department of Education,
Northern Cape (“HoD”), and the Member of the Executive
Council for Education in the Northern Cape (“MEC”).
[2]
In the Kathu Primary application Messrs Carl Wilhelmus Du Plessis,
John David Wilson and Jasper Martin Venter,
are the third to fifth
respondents, respectively.
[3]
Regarding the Seodin Primary School application, Messrs Phillip
Johannes Van Schalkwyk, MA Van Zyl, Zacharia
Petrus Möller and G
Els, are third to sixth respondents, respectively.
[4]
In Kathu Primary the HoD declined to appoint Mr Du Plessis as
departmental head in post number 20706/0097
and in Seodin Primary, Mr
Van Schalkwyk as departmental head in Afrikaans home language, Grade
4 and Social Science Grade 4, post
number 201706/0103 and Mr Möller
also as departmental head in Afrikaans home language, Grade 7 and
Economic and Management
Sciences, also Grade 7, post number
201706/0104. The SGBs contend that the HoD’s administrative
decision to decline their
recommendations for the appointments is
unlawful and ought to be reviewed and remedied in terms of section
6(2) of the Promotion
of Administrative Justice Act
[2]
(PAJA) and seek an order appointing the educators mentioned above in
the respective posts within seven days of the Court order.
No
relief and/or cost order is sought against the second respondent, the
MEC for Education in the Northern Cape. The MEC
accepts that no costs
order is sought against him and will abide the decision of this
court. No relief and/or costs order is sought
against Messrs Du
Plessis, Wilson and Venter (Kathu Primary) and van Zyl and Möller
(Seodin Primary). The HoD opposes both
applications.
[5] The applicants
record the following as grounds of review:
5.1
The action was
taken because irrelevant considerations were taken into account or
relevant considerations were not considered and/or
5.2. That the action itself is not
rationally connected to:-
(i)
The purpose for which it was taken and/or;
(ii)
The purpose of the empowering provision and/or;
(iii)
The reasons given for it by the administrator and
5.3 That the exercise of the power
or the performance of the function authorised by the empowering
provision, in pursuance of which
the administrative action was
purportedly taken, is so unreasonable that no reasonable person could
have so exercised the power
or performed the function.
[6]
The purpose of the Kathu application is that the first respondent be
directed and ordered to appoint in his
permanent employ, with
immediate effect, the third respondent, M Carl Wilhelmus Du Plessis,
as the Departmental Head in Mathematics
Grade 6-7 & Economic and
Management Science Grade 7 (post number 201706/0097), as per the
recommendation of the second applicant
dated 08 August 2017.
[7]
In the Seodin application the applicants seek the appointment of Mr
Phillipus Johannes Van Schalkwyk with
immediate effect as the
departmental head, Afrikaans home language, Grade 4 and Social
Science, Grade 5 (post number 201706/0103),
and Mr Zacharias Johannes
Möller, as departmental head, Afrikaans home language Grade 7
and Economic and Management Science,
Grade 7 (post number
201706/0104), as per the SGB’s recommendation dated 21 August
2017.
[8]
When a post of an educator becomes available a certain procedure as
provided for in Chapter B of the “Personnel
Administrative
Measures” (B5 Advertising and filling of educator posts)
commonly known as PAM has to be followed. PAM is
the consolidation of
the terms and conditions of employment of educators determined in
accordance with section 4 of the Employment
of Educators Act, No 76
of 1998 (“The Educators Act”). The procedure entails:
“
11.3.1
The vacant posts are advertised in a Vacancy List published by the
Department in the Government Gazette;
11.3.2 The Department
receives and acknowledges receipt of applications and conducts an
initial sifting process to eliminate applications
of those candidates
who do not comply with requirements for the post(s) as stated in the
advertisement and thereafter hand over
the applications to the
relevant school’s SGB. (It must be stated at this point already
that the minimum requirements for
a Post Level 2-post such as the
HOD-post at the school, as referred to in the applicable in the
Vacancy Circular, is an educational
qualification of Matric plus at
least a 3-year tertiary qualification, as well as registration the
South African Council of Educators
(SACE);
11.3.3 The SGB of the
public school appoints a Shortlisting and Interviewing Committee
(“the Shortlist Committee”),
which committee shortlists
the candidates according to certain criteria set by it, and according
to a score sheet, upon which interviews
are conducted by the
Shortlist Committee with those shortlisted candidates;
11.3.4 The Shortlist
Committee grades and scores candidates during the interviews on
certain key performance areas and a questionnaire
compiled by it,
after which it makes its recommendations in order of preference of
candidates, ranked from 1 to 3, to the SGB,
based on the performance
of each candidate during the shortlisting and interview process;
11.3.5
The SGB then
considers the Shortlist Committee’s recommendations and in turn
makes its recommendations in order of preference,
also ranked from 1
to 3, also based upon the terms of section 6 (3) (c) (i) of the
Educators Act to the HOD who then appoints the
suitable candidate in
the vacant post in terms of the provisions of section 6 (3) (d) of
the Educators Act.”
My underlining
[9]
The HoD employs educators in the public schools in the Northern Cape.
Among others, it is tasked with the
implementation of the education
law and policy in the province. It also supplies human resources
which include the appointment
of departmental educators at public
schools and appointment of principals, deputy principals and HoD’s.
The HoD receives
applications for advertised positions, a function
mostly delegated by the HoD to the applicable district office where
the school
is situated. Then a sifting process is subsequently done
by the Department and the applications. Those which comply with the
minimum
requirements are handed over to the SGB of the school
concerned.
[10] The
HoD is an appropriate functionary for the appointment of all
educators employed in the Department. Section 6 (3)
of the Educators
Act provides that
the
appointments at a public school can only be made on the
recommendation of the SGB of that specific public school
as
indicated above. My underlining
[11] The
refusal to make the appointments in respect of both schools was
conveyed to the applicants in letters dated 23 November
2017, the
contents of which are similar and read as follows:
“
Re:
Recommendation for appointment of a department Head at your school,
Post Number[s]: 201706/0097, [201706/0103 and 201706/0104]
We
refer to the abovementioned matter as well as your recommendation for
the appointment of a Departmental Head at your school.
After
thorough consideration of your recommendation for the appointment at
your school, my office hereby declines the recommendation
made for
such in terms of
section 6
(3) (e) of the
Employment of Educators
Act. It
has come to my attention that the available pool and quality
of candidates who applied for the post is not satisfactory enough to
take the school forward in terms of education outcomes.
My
office has further considered all the applications that were received
for the vacancy in terms of section 6 (3) (g) of the Act
and remains
unsatisfied that these applications will address the requirements as
mentioned above.
Given
this, and acting in terms of section 6 (3) (g) (iii) of the Act, it
is my decision that the vacancy will be re-advertised
to attract a
larger pool of applicants.”
[12] The
applicants contend that mere reference to section 6(3)(e) was the
only reason conveyed to them by the HoD for declining
their
recommendations without addressing the specific non-compliance with
the provisions of section 6(3)(b) of the Educators Act.
Instead
the HoD in the above letter specifically complains of the available
pool and
quality
of candidates who applied not being suitable
to advance the schools in terms of
education outcomes.
This attitude taken by the HoD is, so the argument goes,
incomprehensible in view of the fact that the HoD (or his department)
was in charge of the initial sifting process where the applicants
without the necessary qualifications were excluded from the process.
The candidates recommended by the SGBs therefore all complied with at
least the minimum requirements for the posts which is irreconcilable
with the stance taken by the HoD in declining the recommendations.
[13] The
applicants furthermore allege that the processes of shortlisting and
interviewing the qualifying applicants conformed
with the relevant
legislative prescripts. All the applicable attendees at the
shortlisting and interview meetings were given
proper notice
thereof. No disputes were declared by any of the Trade Unions
on behalf of their members.
[14] In
Kathu Primary School five candidates were interviewed and du Plessis
was recommended as the first choice, Wilson,
second and Venter,
third. In Seodin Primary Van Schalkwyk was the third choice for
the Grade 4 head of department post, while
Van Zyl and Möller
were ranked first and second.
Regarding the
Grade 7 head of department post, Möller was ranked first choice
with Els and Van Schalkwyk respectively second
and third trial.
[15] The
Kathu Primary SGB made its recommendation in order of preference to
the HoD on 08 August 2017 and the Seodin Primary
SGB, on 24 August
2017.
[16]
After receiving the letter from the HoD declining the recommendations
on 23 November 2017, the applicants made numerous
representations to
the HoD to reconsider his decision, but no responses were
forthcoming. Kathu Primary thereafter launched its
application on 08
February 2018 where after Seodin Primary’s application followed
on 12 March 2018.
[17] In
response to an enquiry from the SA Teachers Union (SATU) on 29
November 2017, regarding the non-appointment of their
member Mr Du
Plessis at Kathu Primary and the reasons therefor, the Director:
Legal Services in the Department of Education wrote
back on 14
February 2018 stating that:
“
Our
letter dated 23 November 2017 does not adequately capture the reasons
for the department declining the School Governing Body’s
recommendations.
The
Head of the Department has applied his mind and subsequently
concluded that the provided recommendation does not assist the
department in the achievement of a broad representation within the
said school. The current profile at the said school is
mainly
male and its Senior Management Team only consists of males.
In
our pursuit to comply with the democratic values and principles as
referred to in section 7(1) of the constitution and section
6(3)(b)
in stating that the aforementioned SGB did not consider the equity,
redress and representation component. The SGB
failed to outline
how the only female, who is also qualified and currently holds the
position of a departmental
head
at another school not fit and does not meet their standards.”
[18]
Thereafter and on 01 March 2018 the HOD himself responded to the SATU
enquiry as follows, after outlining the regulatory
framework:
“
.
. . Now, taking the above into account and the reasons for my office
acting in terms of section 6(3) (e) of the Act, the following
becomes
very clear. The educator establishment of the school consists
of 39 educator posts and of these posts 32 are post
level 1 posts, 4
Head of Department post (PL2) 2 deputy principal posts and 1
principal post.
The
incumbents of the posts are (i.3 PL1) are further broken down as
follows;
1.
26 white females,
2.
2 coloured females,
3.
4 white males.
Head
of Department posts are as follows;
1.
3 white females,
2.
1 white male
Deputy
principal
1.
2
white males
Principal
1.
1
white male
Learner
Population
The
school comprises of 1569 learners in total as at the time of the
interviews. Of the mentioned amount 625 are white learners,
455
African learners, coloured learners 482 and Indian learners are 7.
You
must appreciate that your educator component (i.e. PL1) is almost
entirely white while there is an under-representation of Africans
in
the school management team. What compounds the matter is that
your school management team is entirely white. Your
office must
appreciate that it is required of the governing body to adhere to the
principles of redress, equity and representivity.
The
recommendation of the school does not suggest that this has been the
case. The school merely states that the fifth ranked
candidate
was not up to the standard the governing body required.
The
letter that was dispatched to the school incorrectly conveys the
sentiments of my office. My office considerately holds
the view
that, since your recommendation does not address the principles as
set out in section 7 especially where it concerns equity
and
redress. The governing body has not demonstrated a concerted
effort to address equity.
My
office must concede that the contents of its letter dated 23 November
2017 creates the impression that it is about the quality
of
candidates when in fact we hold the view that the market has not been
adequately tested to throw equity and redress through
the window.
It is in light of this that my office is unable to provide you with
the information and documents as requested
since it has never been
our view that the current candidates are of poor quality. For
that we apologize for the misunderstanding”
[19] The HoD
dispatched a similar letter to the principal and chairperson of the
SGB, Seodin Primary on 24 April 2018 wherein the
current educator
component is set out as follows:
“
The
educator establishment of the school consists of 19 educator posts
and of these posts, 16 are post lever 1 posts, 1 head of
department
post (PL), 1 deputy principal post and 1 head of department post
(PL), 1 deputy principal post and 1 principal post.
The
incumbents of these posts are (i.e. PL1) are further broken down as
follows:
1.
10
White females;
2.
1 African female; and
3.
5 White males.
The
head of department post is as follows:
1.
1
White female
The
post of deputy principal:
1.
1
White Female
The
post of principal:
1
White
male
Learner
population:
The
school comprises of 845 learners in total as at the time of the
interviews. Of the mentioned number, 419 are White learners,
343 African learners and 83 Coloured learners.
You
must appreciate that your educator component is almost entirely white
while there is an under representation of Africans in
the school
management team while a significant number of learners are actually
African. What compounds the matter is that
your school
management team is entirely white. Your office must appreciate
that it is required of the SGB to adhere to the
principles of
redress, equity and representivity. The recommendation of the
school does not suggest that this has been the
case
The
letter that was dispatched to the school incorrectly conveys the
sentiments of my office. My office considerately holds
the view
that, since your recommendations in respect of both posts does not
address the principles as set out in section 7, especially
where it
concerns equity and redress. The SGB has not demonstrated a
concerted effort to address equity
.
My
office must concede that the contents of its letter dated 23 November
2017 creates the impression that it is about the quality
of
candidates when in fact we hold the view that the market has not been
adequately tested to throw equity and redress through
the window.”
[20] The
applicants dispute that the reasons relating to representivity,
equity and redress as contained in the letters of 14 February
2018,
01 March 2018 and 24 April 2018, had informed the HoD’s
decision to decline their recommendations. Had that been
the
case the HoD, who took 3 months to consider the recommendations,
would have stated so specifically in these letters declining
the
recommendations. These reasons as well as the points
in
limine
taken by the HoD (which will be elaborated upon herein),
so it is contended, are merely afterthoughts in an attempt to justify
the clearly irrational decision of the HoD.
[21]
According to the
applicants, they are entitled to the relief sought. They submit that
the HoD’s decision to decline the SGBs’
recommendations
and to re-advertise the posts constitutes an administrative action as
defined in section 1(a)(ii) of PAJA for which
the HoD remains liable.
The applicants allege that they exhausted all internal remedies in
order to resolve the issue to avoid
litigation, but all in vain. The
leaners have been prejudiced, the argument goes. These positions
would never be filled in the
near future taking into account that the
HoD wants it to be re-advertised. This is so because the vacancy
lists for promotional
posts are mostly published once a year.
[22] The Hod’s main
defences can be summarised as follows:
[22.1]
The
interview committees, in preparing their recommendations, failed to
take into account the need to redress the imbalances of
the past and
prepare and submit proper motivations, setting out clearly how the
appointment of each candidate it recommended would
promote equity,
redress representivity at the school in order for the HoD to apply
its mind;
[22.2] The
applicants failed to comply with the prescribed shortlisting and
interview procedures of the Department. Not
only was the SGBs’
motivation misleading and unclear, it was also non-compliant with the
obligations placed on the SGBs in
terms of the legislative and other
prescripts.
[22.3] Section
6(3)(d) of the Educators Act, states that when the HoD considers a
recommendation contemplated in subsection
6(3)(c) he must, before
making an appointment, ensure that the SGB has met the requirements
in subsection 6(3)(b) of the Act. In
terms of subsection 6(3)(e) the
HoD is obliged to decline the recommendation of the SGB if it has not
met the requirements in subsection
6(3)(b) of the Act;
[23] In addition the HoD took
certain points
in limine
i.e;
[23.1]
The relief sought by the applicants in seeking an order that the HoD
be directed
to appoint the recommended candidates is incompetent
since s 6(3)(e) of the Educators Act prohibits the HoD from accepting
a recommendation
by the SGB where the SGB has not met the
requirements contained in section 6(3)(b). In any event, even
if the recommendations
are acceptable, the HoD still retains a
discretion to appoint any of the alternative candidates instead;
[23.2] There
were no proper recommendations; and
[23.3]
Personal interest/bias.
[24]
During argument Mr Pietersen for the HoD however withdrew the
in
limine point
relating to recommendations most properly made.
[25]
The parties are
ad
idem
that the roles of both the HoD and the SGBs are governed by section
6(3) of the Educators Act. The authority to appoint, promote
or
transfer an educator employed by the provincial government of
education vests in the HoD in terms of section 6(1). This authority
is subject to section 6(3) of which the relevant portion provides:
“
(3)
(a)…any appointment, promotion or transfer to any post on the
educator establishment of a public school may only be made
on the
recommendation of the governing body of the public school…
(b)
In
considering the applications, the governing body or the council, as
the case may be, must ensure that the principles of equity,
redress
and representivity are complied with and the governing body…must
adhere to-
(i) the democratic
values and principles referred to in section 7 (1);
(ii) any procedure
collectively agreed upon or determined by the Minister for the
appointment, promotion or transfer of educators;
(iii) any requirement
collectively agreed upon or determined by the Minister for the
appointment, promotion or transfer of educators
which the candidate
must meet;
(iv) a procedure
whereby it is established that the candidate is registered or
qualifies as an educator with the South Africa Council
for Educators;
and
(v) procedures that
would ensure that the recommendation is not obtained through undue
influence on the members of the governing
body.
(c) The governing body
must submit, in order of preference to the Head of Department, a list
of-
(i) at least three
names of recommended candidates; or
(ii) fewer than three
candidates in consultation with the Head of Department.
(d) When the Head of
Department considers the recommendation contemplated in paragraph
(c), he or she must, before making an appointment,
ensure that the
governing body has met the requirements in paragraph (b).
(e) If the governing
body has not met the requirements in paragraph (b), the Head of
Department must decline the recommendation.
. . .”
[26]
Section 7(1) is
referred to in section 6(3)(b)(i) above and it provides:
“
7
(1) In making of any appointment or the filling of any post on any
educator establishment under this Act due regard shall be had
to
equality, equity, and the other democratic values and principles
which are contemplated in section 195 (1) of the Constitution
of the
Republic of South Africa, 1996 (Act 108 of 1996), and which include
the following factors, namely-
(a)
The
ability of the candidate; and
(b)
The
need to redress the imbalances of the past in order to achieve broad
representation.”
WHETHER OR NOT THE DECISION TO
DECLINE WAS TAKEN BECAUSE IRRELEVANT CONSIDERATIONS WERE TAKEN INTO
ACCOUNT OR RELEVANT CONSIDERATIONS
WERE NOT CONSIDERED.
[27]
Section 6(3)(e) provides that
if
the governing body has not met the requirements in paragraph (b), the
Head of Department must decline the recommendation.
As already indicated the parties know that the HoD and the SGBs
are governed by section 6(3). Section 6(3)(b) obliges the
SGB that it
‘
must
ensure’
that it complies with the requirements before the HoD makes any
appointment according to its recommendations. My underlining
[28] The
Educators Act obliges the SGB to ensure that the principle of equity,
redress and representivity are complied with
(section 6 (3) (b)) and
must adhere to the democratic values and principles referred to in
section 7(1). At the same time
the HoD has a duty to work
towards achieving a workforce that is broadly representative of the
people of South Africa. Section
195(1) of the Constitution provides
that our Public Administration must be governed by the following
democratic values and principles
enshrined in the Constitution-
“
(a)
A high standard of professional ethics must be promoted
and maintained
(b)
Efficient, economic and effective use of resources must be promoted.
(a)
Public
Administration must be development-orientated.
(b)
Services
must be provided impartially, fairly, equitably and without bias.
(c)
People’s
needs must be responded to, and the public must be encouraged to
participate in policy-making.
(d)
Public
administration must be accountable.
(e)
Transparency
must be fostered by providing the public with timely, accessible and
accurate information.
(f)
Good
human-resource management and career-development practices, to
maximise human potential, must be cultivated.
(g)
Public
Administration must be broadly representative of the South African
people, with employment and personnel management practices
based on
ability, objectivity, fairness, and the need to redress the
imbalances of the past to achieve broad representation.”
[29] In
terms of section 4 of the Employment Equity Act (“the Equity
Act”)
[3]
the HoD as the employer, must take steps to promote equal opportunity
in the workplace by eliminating unfair discrimination in
any
employment policy or practice. Section 15 (2) provides that
affirmative action measures implemented by a designated employer
must
include-
“
(a)
Measures to identify and eliminate employment barriers, including
unfair discrimination, which adversely affect people from
designated
groups;
(b)
Measures designated to further diversity in the workplace based on
equal dignity and respect of all people;
(c)
Making reasonable accommodation for people from designated groups in
order to ensure that they enjoy equal opportunity and are
equitably
represented in the workforce of a designated employer;
(d)
[subject to the provision that such measures include preferential
treatment and numerical goals but excludes quotas] measures
to
(i)
Ensure the equitable representation of suitably qualified people from
designated groups in all levels in the workforce;
(ii)
Retain and develop people from designated groups and to implement
appropriate training measures, including measures in terms
of an Act
of Parliament providing for skills development.”
[30] In
SOLIDARITY
AND OTHERS v DEPARTMENT OF CORRECTIONAL SERVICES AND OTHERS
[4]
the Constitutional Court as per Zondo J stated:
“
It
is accepted that the workforce that is required to be achieved is one
that is inclusive of all these racial groups and both genders,
the
next question is whether there is a level of representation that each
group must achieve or whether it is sufficient if each
group has a
presence in all levels no matter how insignificant their presence may
be. In my view, the level of representation of
each group must
broadly accord with its level of representation among the people of
South Africa.”
[31] In
HEAD
OF WESTERN CAPE EDUCATION DEPARTMENT AND OTHERS v GOVERNING BODY OF
POINT HIGH SCHOOL AND OTHERS
[5]
the Court held:
“
The
first step is for the governing body to make a comparative assessment
of the candidates and to compile a list of those whom
it recommends
for appointment in its order of preference. This it must do in
accordance with the precepts in section 6 (3) (b).
The HOD is then
required to consider whether the governing body has arrived at its
recommendation by a process which meets those
precepts. It does not
appear that he has a perceptible discretion in this regard. If he is
of the view that the requirements have
not been met, he is bound by
section 6 (3) (e) to reject the governing body’s recommendation
as a whole and to proceed in
terms of section 6 (3) (g). If he is
satisfied that the stipulated requirements have been complied with,
he may appoint a candidate
from the governing body’s list in
terms of the discretion vested in him by section 6 (3) (f). The law
is now clear that,
in exercising this discretion, the HOD is required
to act reasonably and, by taking into account all of the relevant
factors and
considering the competing interests involved, to arrive
at a decision which strikes a “
reasonable
equilibrium
”.
The court has no power to review this decision purely because there
may be another, perhaps better, “
equilibrium
”
which could have resulted by attributing more weight to some factors
and less to others. If that struck by the decision-maker
is
reasonable, then it must stand.”
[32] The
HoD in declining to make an appointment considered that after more
than twenty years into our democracy at the time,
of the thirty nine
educator posts at Kathu Primary only two were Black. The entire
management of the school comprises of White
educators. Notably, at
the time of the interviews the school (Kathu Primary) had 1569
learners in total, of which 625 were White
and 944, Black. The
appointment of du Plessis, especially taking into account that the
HoD has a constitutional and legislative
mandate to ensure that
transformation is adhered to when vacancies are filled would not
assist the HoD to achieve his mandate.
[33] At the
time of the interviews the school (Seodin Primary) comprised of 845
learners in total. Of this number, 419 were
White, 343, Black and 83,
Coloured. The SGB accepted the Shortlisting and Interview Committee’s
recommendations. It mentions,
inter
alia
,
that a particular candidate was recommended “
according
to merits
.”
No detail and full motivation was given as to why the candidates were
recommended. In respect of Möller for post 1
and Van Schalkwyk
and Els for post 2 the recommendation fails to state whether or not
these candidates were suitable for appointments
and why.
[34] The
HoD took into account the educator establishment of the schools. Of
39 educator posts in Kathu Primary 32 were post
level 1, 4 head of
department, 2 deputy principals and 1 principal. 26 educators were
White females, two Coloured females and four
White males. In Seodin
Primary on the other hand of 19 educator posts 16 were post level 1,
1 head of department, 1 deputy principal
and 1 principal. The HoD in
both schools made the following comment when he declined the
recommendations by the SGBs:
“
You
must appreciate that your educator component is almost entirely White
while there is an under-representation of Africans in
the school
management team. What compounds the matter is that your school
management team is entirely White. Your office must appreciate
that
it is required of the governing body to adhere to the principles of
redress, equity and representivity. The recommendation
of the school
does not suggest that this has been the case.”
In this regard it could not be said
that the SGBs fulfilled their role to ensure equity, redress and
representivity when it made
its recommendations.
[35] Zondo J in Solidarity
supra
at paras [41] and [42] added:
“
[41]
It would be unacceptable, for example, for a designated employer to
have a workforce of five hundred employees fifty of whom
occupy
senior management positions but only five of those senior management
positions are held by African people when twenty are
held by White
people, fifteen by Coloured people and ten by Indian people despite
the fact that in the population of South Africa,
African people are
by far the majority. Such a workplace could not conceivably be said
to be broadly representative of the people
of South Africa.
[42] Why do I say that
a designated employer is required to work towards achieving a
workforce that is broadly representative of
the people of South
Africa? I say so because, upon a proper construction of the [Equity
Act] read with the relevant provisions
of the Constitution the Public
Service Act…and the Correctional Services Act, that is what is
required.”
[36] Whilst it may be that the
HoD can be criticized for not properly elaborating on his reasons for
declining the recommendations
in his letter of 23 November 2017, he
was fully aware of the lack of representivity at the respective
schools as is obvious from
his follow-up correspondence. In my
view it therefore cannot be said that his decision to decline the
recommendations was
based on irrelevant considerations.
WHETHER OR NOT THE DECISION OF
THE HOD IS RATIONAL
[37] The applicants argue that
the HoD’s decision to decline their recommendations and
re-advertise the positions was
not rationally connected to the
purpose for which it was taken or the empowering provision and/or the
reasons given for it by the
administrator. The HoD submits that if
one has regards to Chapter 3 of the Employment of Educator Act read
with the Constitution,
the Equity Act, PAM and the Vacancy Circular
the legitimate government purpose is not merely to employ educators
but to ensure
that substantive equity is achieved.
[38]
Rationality, however, imposes a less onerous standard than
reasonableness.
[6]
In
TRINITY
BROADCASTING (Ciskei) v INDEPENDENT COMMUNICATIONS AUTHORITY OF SOUTH
AFRICA
[7]
Howie
P
held:
“
[20]
In requiring reasonable administrative action, the Constitution does
not, in my view, intend that such action must, in review
proceedings,
be tested against the reasonableness of the merits of the action
in the same way as in an appeal. In other words,
it is not required
that the action must be substantively reasonable, in that sense, in
order to withstand review. Apart from that
being too high a
threshold, it would mean that all administrative action would be
liable to correction on review if objectively
assessed as
substantively
unreasonable
:
Bel
Porto School Governing Body and Others v Premier, Western Cape, and
Another
. As made clear in
Bel
Porto
,
the review threshold is
rationality
.
Again, the test is an objective one, it being immaterial if the
functionary acted in the belief, in good faith, that the action
was
rational. Rationality is, as has been shown above, one of the
criteria now laid down in s 6(2)
(f)
(ii)
of the Promotion of Administrative Justice Act. Reasonableness can,
of course, be a relevant factor, but only where the question
is
whether the action is so unreasonable that no reasonable person would
have resorted to it (see s 6(2)
(h)
).”
[39] In
PHARMACEUTICAL
MANUFACTURERS ASSOCIATION OF SA AND ANOTHER: IN RE EX PARTE PRESIDENT
OF THE REPUBLIC OF SOUTH AFRICA
[8]
Chaskalson
P had this to say:
‘
[90]
Rationality in this sense is a minimum threshold requirement
applicable to the exercise of all public
power by
members of the Executive and other functionaries. Action that
fails to pass this threshold is inconsistent
with the requirements of our
Constitution and
therefore unlawful. The setting of this standard does
not mean that the Courts can or
should substitute their
opinions as to what is appropriate
for the opinions of those in whom the power
has been vested. As long as the purpose sought to be
achieved by the exercise of public power is
within the authority of the functionary, and as long
as the functionary's decision, viewed objectively,
is
rational, a Court cannot interfere with the decision simply
because it disagrees with it or considers that the power
was exercised inappropriately.
’
FURTHER
ASPECTS REGARDING THE SHORTLISTING AND INTERVIEW PROCEDURES
.
[40] It
is worth mentioning that letters inviting the shortlisted candidates
for interviews were dated 02 August 2017. The
said invitations were
inviting the candidates for interviews to be held on 04 August 2017,
giving the candidates only two days’
notice. It is clear from
the papers that the shortlisting took place on 01 August 2017.
Paragraph B.5.4.5 of PAM provides that
the SGB is responsible for
convening of the Interview Committee and they must ensure that all
relevant persons/trade unions are
informed
at least five working
days prior to the date, time and venue for the shortlisting,
interviews and the drawing up of the preference
list
. My emphasis
[41]
Mr Mok-Otto, one of the shortlisted candidates in Kathu Primary
stayed in Aliwal North, Eastern Cape. He was employed
as a PL2 HoD
teacher at Aliwal North Primary School. He withdrew from the
interviews due to the short notice period of two days.
In his
affidavit he states that he was unable to attend the interview due to
lack of sufficient time to generate funds for transport
from Aliwal
North to Kathu. Had he been given the normal five to seven days
period to attend the interviews he would have been
able to attend. He
did not inform the school of his withdrawal because he says he was
unaware that he could challenge the short
notice period.
[42]
According to Ms Samantha Mothibi, a legal administration officer in
the HoD’s office and Ms Anita Jansen, the Acting
Deputy
Director: Recruitment and section responsible for the recruitment and
selection of all teachers in the Department who were
asked to make an
objective scoring of the shortlisted candidates for the post found
that Mok-Otto was an equity candidate and could
have scored the
highest in the shortlisting. The two officials also found that some
of the candidates were underscored which made
the process unfair. It
would be correct to conclude that he was prejudiced by the two day
notice period that did not comply with
p
aragraph
B.5.4.5 of PAM. This, in my view, nullifies the whole interview
process.
[43] The
HoD was also concerned by the fact that two candidates, Ms Kivedo and
Mok-Otto were both highly academically qualified
and already teaching
at PL2 HoD level. To them, the post would only have resulted in a
lateral transfer. It also did not appear
correct that they could only
be scored one out of five for language.
[44] The
applicants insist that due process was followed at the shortlisting
and interview meetings. It became apparent that
Mr Titus, a SADTU
member, was not present during the interviews. The minutes of a
meeting held on 04 August 2017 reflect that he
apologised in advance
saying he was not going to be there early as he had another
commitment. On 02 August 2017 he telephonically
advised the school
that he would be unable to attend the interviews. The NCK 19 and 21
Forms clearly show that neither Mr Titus
nor any SADTU member was
present during the interviews conducted on 04 August 2017. The
absence of a SADTU member from the interviews
is said to have made Ms
Kivedo, the only African candidate, uncomfortable, taking into
account that the panel was all White. Ms
Kivedo confirmed this in an
affidavit dated 10 May 2018.
BIAS (KATHU AND SEODIN PRIMARY
SCHOOLS)
[45] The HoD points out to
what can be referred to as bias by Mr Louis Steyn, the deponent to
the founding affidavit in the
Kathu matter, who was a parent of a
Grade 7 learner at the same school and apparently a reference of du
Plessis. This clearly appears
on NCK1 Du Plessis’s CV. Mr Steyn
was also the chairman of the Shortlisting and Interviewing Committee
at the same school
for the very post. He took part in both committees
and did not recuse himself.
[46]
Regarding Seodin Primary Mr Laubscher, the headmaster, was the
reference of both Van Schalkwyk and Möller. He also
wrote
testimonials for them which were attached to their CVs. By virtue of
the fact that he was the headmaster of the school, he
is a member of
the Interview Committee. He was also appointed by the SGB as
ex
officio
member of the Shortlisting and Interview Committee. The minutes of
the Shortlisting and Interview Committee meeting held on 28
June 2017
show that Mr Laubscher was present and did not recuse himself.
[47]
Paragraph 6.13 of the Vacancy Circular published by the Department on
05 June 2017 in terms of section 5 of the Educators
Act read with
Measure 3 in Chapter B of the Personnel Administrative Measures (PAM)
(“the Vacancy Circular”) provides
that members of the
Interview Committee must recuse themselves for the duration of the
discussion and decision making on any issue
in which the members have
a personal interest. Section 26 of the South African Schools Act, 84
of 1996 (“the Schools Act”)
provides:
‘
A
member of a governing body must withdraw from a meeting of a
governing body for the duration of the discussion and decision making
in any issue in which the member has a personal interest.’
[48] Messrs
Steyn and Laubscher clearly had a personal interest in the career
advancement of du Plessis, Van Schalkwyk and
Möller as indicated
above. Both were present when the interviews were conducted and when
the Shortlisting and Interview Committee
made their recommendations
to the SGBs. The impression that as the candidates’ references
they felt strongly that these candidates
should succeed even before
the commencement of shortlisting and interview process, would not be
unfounded.
[49]
Regarding the applicants’ prayer that the HoD be directed and
ordered to appoint the recommended candidates Brand
JA had this to
say at p144i-145a of
Kimberley
Junior School v Head Northern Cape Educations Department
[2009]4 All SA 135 (SCA):
“
Apart
from the principle of separation of powers, which dictates that a
court should be hesitant to usurp executive functions, there
was in
this case not even a proper recommendation by the SGB as contemplated
by section 6 (3) (c). In the circumstances, both the
SGB and the HoD
should, in my view, be afforded the opportunity to perform their
respective functions in terms of section 6 (3)
(c) in a proper
manner.”
[50] In the
instant case the SGBs and the HoD should also be given an opportunity
to perform their respective functions properly
without the
interference of the court. Moreover, the demographics of the
educator establishment at Kathu Primary and the
recommendation of the
SGB of yet another White male and the fact that Van Schalkwyk and
Möller are relatively young (Seodin
Primary) would also affect
transformation in the schools for a considerable period of time. The
learners would not be prejudiced
because there have been educators
throughout.
[51] In my
view, for reasons mentioned above the HoD acted reasonably and
rationally in declining to appoint the recommended
candidates in
terms of section 6 (3) (d) due to non-compliance with sections 6 (3)
(c) of the Educators Act. He then had to comply
with section 6 (3)
(g). He already made his election, that of re-advertising the
positions, correctly in my view. In
INTERTRADE
TWO v MEC ROAD AND PUBLIC WORKS AND ANOTHER
[9]
Plasket J held:
“
These
constitutional principles mean that courts, when considering the
validity of administrative action, must be wary of intruding,
even
with the best of motives, without justification into the terrain that
is reserved for the administrative branch of government.
These
restraints on the powers of the courts are universal in democratic
societies such as ours and necessarily mean that there
are limits on
the powers of the courts to repair damage that has been caused by a
breakdown in the administrative process.”
[52]
Section 8 (1) (c) of PAJA provides:
“
Remedies
in proceedings for judicial review
(1)
The
court or tribunal, in proceedings for judicial review in terms of
section 6 (1), may grant any order that is just and
equitable,
including orders-
…
(c)
setting
aside the administrative action and-
(i)
remitting
the matter for reconsideration by the administrator, with or without
directions; or
(ii)
in
exceptional cases-
(aa)
substituting
or varying the administrative action or correcting a defect resulting
from the administrative action…”
[53] In
my view the applicants did not make out a proper case for the review
and setting aside of the HoD’s decision.
Therefore the
applications must fail.
COSTS:
[54] Mr
Merabe, who appeared for the applicants, contended that they raised
constitutional issues, ie, the principle of legality
and the right to
basic education and that therefore the principle in
BIOWATCH TRUST
V REGISTRAR, GENETIX RESOURCES AND OTHERS
2009(6) SA 232 (CC)
should be applicable. He submits that they should not be burdened
with a costs order if they are unsuccessful
and that each party
should pay its own costs and if successful there should be no reason
to deprive them of a favourable costs
order.
[55] Mr
Petersen for the HoD during argument conceded that a review in terms
of PAJA constitutes a constitutional issue.
(See
Harrielall
v University of Kwazulu-Natal 2018(1) BCLR 12 (CC) paragraph 17).
In accordance with the general principle applicable in
constitutional litigation, an unsuccessful litigant in proceedings
against the state ought not to be ordered to pay costs.
(
Biowatch
)
Whilst this
concession is correctly made, it would in addition be unfair to
saddle the applicants with a cost order where the applications
were
brought primarily as a result of the unclear reasons provided by the
HoD for declining the recommendations.
[56]
In my view a proper costs order is for each party to pay its own
costs.
In
the circumstances I grant the following order in respect of each of
applications no 308/2018 and no 561/2018
1.
The
application is dismissed.
2.
Each
party is ordered to pay its own costs.
BM
Pakati
I
Concur
CC
Williams
For
Applicants:
Adv MJ Merabe
M Janse Van
Rensburg
c/o Elliot Maris
Wilmans & Hay
For
1
st
Respondent: Adv F Petersen
Mjila &
Partners
[1]
84 of 1996 as amended
[2]
Act 3 of 2000
[3]
Act 55 of 1998
[4]
2016 (10) BCLR 1349 (CC)
[5]
[2008] 3 All SA 35
(SCA) at 41d-g
[6]
Bel Porto School Governing Body v Premier, Western Cape and Another
[2002] ZACC 2
;
2002 (3) SA 265
(CC) at para
[46]
[7]
2004 (3) SA 346
(SCA) at para [20]
[8]
2000
(2) SA 674 (CC) at para [90]
[9]
[2008] All SA 142
(Ck) at para 46