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[2019] ZAKZPHC 45
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Mpungose Traditional Council and Others v MEC for Education, KZN Province and Others (11279/2017P) [2019] ZAKZPHC 45; [2019] 3 All SA 817 (KZP) (17 July 2019)

THE
HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case No:
11279/2017P
In
the matter between:
THE
MPUNGOSE TRADITIONAL COUNCIL
First Applicant
MPUNGOSE,
ZAKHE DAVIDSON
Second Applicant
NKUNGUMATHE
NPO
Third Applicant
KHANYILE,
JIKILE PRINCESS
Fourth
Applicant
MCHUNU,
NOMBUSO HLUSHWAYINI
Fifth Applicant
MCHUNU,
MZIBENI
ROBERT
Sixth Applicant
and
THE
MEC FOR EDUCATION, KZN PROVINCE
First Respondent
HEAD
OF THE EDUCATION DEPARTMENT,
KZN
PROVINCE
Second Respondent
KHUBA
SECONDARY SCHOOL
Third Respondent
ITHALA
SECONDARY SCHOOL
Fourth Respondent
VELANGAYE
SECONDARY SCHOOL
Fifth Respondent
MPHATHESITHA
SECONDARY SCHOOL
Sixth Respondent
THE
MINISTER OF BASIC EDUCATION
Seventh Respondent
JUDGMENT
Vahed
J:
[1]
This
is a case about enforcing the fundamental right of access to basic
education under s 29 of the Constitution, and the foundational

principles of the rule of law and the principle of legality insofar
as the exercise of public powers are concerned.
INTRODUCTION
[2]
The
applicants are Inkosi Zakhe Mpungose, as Nkosi of and on behalf of
the Mpungose Traditional Council (“the Council”),

together with the Nkungumathe NPO, a non-profit organisation which is
a community representative organisation, and two parents
and one
grandparent who are members of the community and who act on behalf of
their children and grandchild respectively.
[3]
The
applicants act in their own interests, in the interests of the
Mpungose community who reside in the Nkungumathe area in the
Nkandla
district of the KwaZulu-Natal (“the Province”), and the
public generally. Importantly, the applicants jointly
act in the
stead of the children whose constitutional rights are directly at
issue. Standing in terms of s 38 of the Constitution
is not in doubt
and is, in any event, not challenged.
[4]
In
essence, the applicants want the first respondent, as the political
head of the Department of Education in the Province (“the

Department”), to make good on its promise to build and
provision the Khuba Secondary School (“Khuba”). I shall

refer to the first respondent as “the MEC” and the second
respondent as “the HOD”.
[5]
The
community applied to the Department for the establishment of a
secondary school in 1996, 2002 and then again in 2007.
[6]
During
or about May 2010, the incumbent MEC took the decision to establish
and register Khuba as a school, the effect of which was
that Khuba
was to be constructed and appropriately provisioned.
[7]
Nothing
happened. In June 2016 efforts were renewed to bring about the
construction of Khuba.
[8]
Then,
on 16 February 2017, without notice or consultation, the incumbent
MEC withdrew the decision of his predecessor to register
and
establish Khuba.
[9]
Thus,
the gist of the present application: a review in which the applicants
seek to have reviewed and set aside the MEC’s
decision of 16
February 2017 to deregister and disestablish Khuba on the basis that
it was irrational, procedurally unfair and
a breach of an enforceable
public promise.
[10]
The
consequence of this is that the original decision stands and should
be enforced.
[11]
In
what follows I take liberally from the very helpful heads of argument
delivered on behalf of the applicants by Mr
du
Toit SC
who, with Mr
Raizon
,
appeared for them, and on behalf of the respondents by Mr
Khan
who appeared for them. I am grateful for that assistance.
EDUCATION FACILITIES IN NKUNGUMATHE VIEWED THROUGH THE
PRISM OF BASIC EDUCATION UNDER THE CONSTITUTION
[12]
In
order to contextualise the material facts, a brief overview of the
right to basic education under the Constitution and the state
of
education in the Nkungumathe area is perhaps necessary.
[13]
Section
29(1)(a) of the Constitution provides that “… [e]veryone
has the right to a basic education, including adult
basic education…
”.
[14]
The
state has an obligation under section 7(2) of the Constitution to
fulfil the right to basic education. That much was made abundantly

clear in
Governing
Body of the Juma Musjid Primary School & Others v Essay N.O. and
Others
2011 (8) BCLR 761
(CC) at para 45.
[15]
In
para 37 in
Juma
Musjid
the court observed that the right to basic education provided for in
section 29(1)(a) of the Constitution is an unqualified right
which is
immediately realisable. The internal limitations in ss 26 and 27, the
other socio-economic rights in the Constitution,
requiring that those
rights be “progressively realised” within “available
resources” subject to “reasonable
legislative measures”
do not apply to the right to a basic education.
[16]
In
Madzodzo
and Others v Minister of Basic Education and Others
2014 (3) SA 441
(ECM) at para 17 Goosen J pointed out that “[t]his
has important implications for determining whether the state is in
compliance
with its constitutional obligations in respect of the
right to basic education. In the first instance the nature of the
right requires
that the state take all reasonable measures to realise
the right to basic education
with
immediate effect
.
This requires that all necessary conditions for the achievement of
the right to education be provided.”.
[17]
The
right to basic education must be understood in the context of our
fractured past. In
Juma
Musjid
(para 42) the Constitutional Court reminds us that “[t]oday,
the lasting effects of the educational segregation of apartheid
are
discernible in the systemic problems of inadequate facilities and the
discrepancy in the level of basic education for the majority
of
learners.”.
[18]
In
Head
of Department, Mpumalanga Department of Education and Another v
Hoërskool Ermelo and Another
2010 (2) SA 415
(CC), paras 45 to 47, Moseneke DCJ explained:
“
[45]
Apartheid has left us with many scars. The worst of these must be the
vast discrepancy in access to public and private resources.
The
cardinal fault line of our past oppression ran along race, class and
gender. It authorised a hierarchy of privilege and disadvantage.

Unequal access to opportunity prevailed in every domain. Access to
private or public education was no exception. While much remedial

work has been done since the advent of constitutional democracy,
sadly, deep social disparities and resultant social inequity are

still with us.”
[46]
It is so that white public schools were hugely better resourced than
black schools. They were lavishly treated by the apartheid

government. It is also true that they served and were shored up by
relatively affluent white communities. On the other hand, formerly

black public schools have been and by and large remain scantily
resourced. They were deliberately funded stingily by the apartheid

government. Also, they served in the main and were supported by
relatively deprived black communities. That is why perhaps the
most
abiding and debilitating legacy of our past is an unequal
distribution of skills and competencies acquired through education.
[47]
In an unconcealed design, the Constitution ardently demands that this
social unevenness be addressed by a radical transformation
of society
as a whole and of public education in particular.”.
[19]
Thus,
the right to basic education can also be understood, as it was in
Governing
Body of Rivonia Primary School v the MEC for Education: Gauteng
Province
[2012] 1 All SA 576
(GSJ)  at para 26.1 and at para 18 in
Madzodzo
,
as an “empowerment right” and basic education, as it was
in
Minister
of Basic Education v Basic Education for All
2016 (4) SA 63
(SCA) at para 40, that it “… should be
seen as a primary driver of transformation in South Africa.”.
As was
noted by the Constitutional Court at para 43 in
Juma
Musjid
(footnote omitted):
“
Indeed,
basic education is an important socio-economic right directed,
amongst other things, at promoting and developing a child’s

personality, talents and mental and physical abilities to his or her
fullest potential. Basic education also provides a foundation
for a
child’s lifetime learning and work opportunities. To this end,
access to school – an important component of the
right to basic
education guaranteed to everyone by section 29(1)(a) of the
Constitution – is a necessary condition for the
achievement of
this right.”
[20]
However,
the state’s obligation to provide basic education is not
limited to providing schools
per
se
.
The right to basic education requires the provision of a range of
educational resources: schools, classrooms, teachers, teaching

materials and appropriate facilities for learners.
[21]
The
courts have held, as in
Juma
Musjid
,
that the content of the right to basic education includes at least
access to schools, enough school places for every child to
attend
school, as was held in
Rivonia
Primary School
,
the provision of teaching and non-teaching staff (as was held in
Centre
for Child Law and Others v Minister of Basic Education and Others
(National Association of School Governing Bodies as amicus
curiae)
2013 (3) SA 183
(ECG)) and of adequate teaching resources (as was
held in
Madzodzo
),
including the provision of one textbook for every learner (as was
found in
Basic
Education for All
),
the provision of adequate and age and grade appropriate furniture
which will enable each child to have his or her own reading
and
writing space (as was held in
Madzodzo
),
the supply of transport for learners to and from school (as was found
in
Tripartite
Steering Committee and Another v Minister of Basic Education and
Others
2015 (5) SA 107
(ECG)) and the provision of adequate and safe toilets
for learners (as was held in
Komape
and Others v Minister of Basic Education
[2018] ZALMPPHC 18 (23 April 2018)).
[22]
Mr
du
Toit
submits
that the learners in the Nkungumathe area, for whom the applicant
organisations, parents and grandparents seek to hold government
to
its promise to build and provision Khuba, are the very learners, from
rural and impoverished backgrounds, that must as a priority
be
empowered through education. Absent Khuba, the state of education
facilities for secondary school learners in Nkungumathe is
dire.
[23]
Mr
Mthokozi McDonald Mchunu (“Mr Mchunu”), the deponent to
the affidavits delivered on behalf of the Nkungumathe NPO
(ie. the
third applicant), reveals that he is a primary school teacher in
science and technology and the Deputy Principal at Phalane
Primary
School in Nkandla. His affidavit discloses that he is a community
activist and a mentor to learners in the Nkungumathe
area and a
founder of the Nkungumathe Youth Centre.
[24]
Indicating
that he has engaged with primary school learners throughout the
Nkungumathe area, and taking account of his professional
experience,
Mr Mchunu’s evidence is that the resources and curricula
offered at surrounding secondary schools is severely
lacking. His
view is that learners deserve the best education possible but cannot
find it at the secondary schools in the vicinity
of the Nkungumathe
area or do not have the means to attend better schools further away.
[25]
Jikile
Khanyile, the fourth applicant, says the following:
“
I
only seek the best possible education for my child and the children
of the community, to enable them to make as much progress
as they can
as part of previously, and tragically still, disadvantaged persons in
South Africa.
I
was very happy when I learned in 2015 and then again in 2016 that the
Khuba school would be erected … Should the school
have come
into existence, I would have been happy to take my child from Ithala
[the fourth respondent] where she currently is and
place her in Khuba
even if it might mean the repetition of a year. Education in those
areas [the Nkungumathe area] would have broadened
the knowledge and
opportunities of children so educated which would have justified the
move.
There
is no public transport and service provided by the KZN education
department to convey learners to schools and back. From our
homestead
it takes more than an hour to walk to Ithala. The result is that the
children take a shortcut through the veld (still
almost taking an
hour) having to face the dangers in the veld such as snakes. The
longer, safer route is easily 3 kilometres further
than the shortcut.
…
I
am aware that there are far too many learners for the available space
of 10 classrooms at Ithala. The entire community knows this.
Philile
[my daughter] informed me that she has to share textbooks with 3 or
more learners. She cannot do her homework every day,
with others
sharing the [book] living far apart.
Philile
confirms that [there] are up to one hundred learners per class. Some
[have] to sit on their knees and others bring mats
to sit on. There
are no desks for every [learner].
I
simply do not have the funds to send my children to schools further
afield. I cannot afford daily commutes or hostel fees and
communing
to and from such a school.”
[26]
Apart
from denying those allegations and asserting that Ithala is within 5
kilometres of residences in Nkungumathe and that public
transport is
available in the area the HOD puts up no evidence to counter them.
[27]
Ithala’s
evidence (ie. the fourth respondent) as presented by its principal
reveals the following:
a.
The
purchase of textbooks is the responsibility of a section 21 school
and the relief against the MEC is misguided;
b.
the
school had not fully managed to replace all its learners’ text
books due to budget constraints;
c.
at
least two learners share one text book;
d.
desks
designed for two learners are being used by three; and
e.
it is
conceded that there are too few classrooms.
[28]
I
struggle to discern how this provides answers for Mrs Khanyile’s
troubles, or the plight of other similarly placed individuals.
It
acknowledges serious breaches of constitutional principles. The basis
for the HOD’s denial that Philile has to walk an
hour to and
from school every day, or that learners’ constitutional rights
are violated by the conditions at Ithala is not
understood.
[29]
Similar
concerns are raised by Mrs Nombuso Mchunu, the fifth applicant, about
her daughters’ experiences at Ithala.
Again, the HOD’s
denials are not understood in the absence of any countervailing
evidence being put by him or the MEC.
[30]
Simphiwe
Mchunu, the grandson of the sixth applicant, Mr Mzibeni Mchunu,
attends grade 9 at Mphathesitha Secondary School, approximately
15
kilometres from the Nkungumathe area. It was his grandfather’s
intention to enrol Simphiwe in Khuba, but the Department’s

alleged reneging on its promise made this impossible. The papers
reveal that currently, Mr Mchunu rents a space for Simphiwe to
live
near Mphathesitha. At school there are 81 learners in grade 9 and one
classroom to accommodate all learners. There are not
enough chairs
for all learners and four learners share one textbook.
[31]
The
sixth applicant’s allegations are not answered by the MEC or
the HOD. The principal at this school (the sixth respondent),
Mr
Ncama, reveals the following:
a.
He
admits that there is a shortage of text books and the evidence that
four learners share a text book is not refuted;
b.
desks
designed for two learners are being used by three; and
c.
it is
conceded that there are too few classrooms.
[32]
The
papers disclose that the position at the fifth respondent, Velangaye,
is similar with a shortage of text books and with desks
designed for
two learners being used by three.
[33]
In
fact, on the HOD’s own version, access to basic education in
the Nkungumathe area is severely lacking. The HOD attaches
to his
affidavit a list of the schools neighbouring Khuba. The list deals
with the number of learners and learning spaces at each
school and
reveals that, on the Department’s figures, the 712 learners at
Ithala (fourth respondent) are accommodated in
11 classrooms, i.e.
approximately 64 learners per classroom. The 1508 learners at
Velangaye (fifth respondent) utilise 26 learning
spaces which is the
equivalent of 58 leaners per classroom. At Mphathesitha (sixth
respondent) 532 learners have access to 10 classrooms,
making it 53
learners per classroom.
[34]
The
sixth applicant’s evidence is that, although there are a few
parents who can afford to arrange transportation for their
children
to schools like Velangaye, this option remains out of reach for the
vast majority of the Nkungumathe children. The HOD
denies this. In
this regard there is merit in Mr
du
Toit’s
submission
to the effect that it is astounding that a government official could
meet allegations of parents’ dire financial
situations with a
bald denial.
[35]
Accordingly,
on the uncontested evidence provided by the applicants, read with the
responses of the schools and the HOD, school
provisioning falls far
short of the norm required for basic education. The right of access
to basic education of the Nkungumathe
learners that have no choice
but to attend schools such as Ithala is severely violated. Any
improvements to the surrounding secondary
schools will assist only a
few children in Nkungumathe in view of the considerable distance
between these schools and the Nkungumathe
area.
THE RELEVANT FACTS – THE
RESULTING CONSEQUENCES
The application for the establishment of a secondary
school
[36]
Representatives
of the community have for nearly twenty years sought to establish a
secondary school in the Nkungumathe area, one
which would serve the
needs of the immediate community and provide access to basic
education. The first such application was made
in 1996 (at that time
the proposed name of the school was the Siphosethu Secondary School).
The community received no response
from the Department. The process
was repeated in 2002 and in 2004.
Again,
there were no responses from the Department.
[37]
A
final application was made in 2007. This one was successful.
[38]
On 20
March 2007 representatives of the Department visited the proposed
site for the construction of Khuba to verify the information
supplied
in the application form submitted by the community. On 18 April 2007,
the District Director for the Empangeni District
addressed a letter
to the Nkungumathe Youth Development Forum. There it is recorded that
–
“
RE:
PROPOSED NEW SCHOOL (SIPHOSETHU HS)
Please
be informed that the following steps have been taken in order to
speed up the process of registration and construction of
the
above-mentioned school:
1.
A
memorandum requesting EMIS number and a registration form has been
sent to the District Manager.
2.
The
MEC for Education has been informed about our visit to the proposed
school.
3.
Physical
planning has been informed to prioritise the school for the 2009
financial year.
4.
Construction
of school will probably begin in 2010.”
[39]
The
applicants submit that as at 18 April 2007 an unequivocal promise to
provide the school had been delivered to the community.
It is
difficult to fault that submission.
[40]
On 9
October 2007, in her motivation for the establishment of Siphosethu
(as Khuba was then known), the District Director for the
Empangeni
District noted
inter
alia
that “…the building of the school will be budgeted for
the financial year 2009 to the amount of R7 000 000.00…”,

and that a proposed site for the school had been identified, was
feasible and was within one kilometre of the Nkungumathe Primary

School.
[41]
That
motivation concluded with a proposal that the HOD “…
authorize the establishment and consequently the registration
of
[Khuba]. This action will not only enhance the educational efforts
but will foster societal participation in school-related
activities”.
Khuba – its registration and the allocation of an
EMIS number
[42]
Some
three years later, the recommendation of the District Director was
accepted. Khuba was allocated an EMIS number and registered
and
established on or about 26 May 2010. The fact of registration and the
allocation to Khuba of an EMIS number are not denied
by the HOD, who,
however, contends for different consequences. I deal with this later.
[43]
The
letter
issued
by the Department to the Circuit Manager, Nkandla, records the
following:
“
RE:
REGISTRATION OF KHUBA SECONDARY SCHOOL [EMIS No. 490731]
Attached
hereto please find the certificate of registration for the aforenamed
school. Kindly inform the applicant(s) that the school
has not been
commissioned to operate, but will be included in the Infrastructure
Plan of the department, whose function it is to
build classrooms,
ablution facilities, fencing and specialist rooms, and that the
school will start to operate when the department
has provided the
facilities mentioned.”
[44]
The
applicants submit that taken at face value, the letter means that
Khuba was formally registered and established and that facilities

would be built, in accordance with the Infrastructure Plan and funds
appropriated, in order for the school to commence operating.

The submission continues that accordingly, the promise of 18 April
2007 that a school would be built for the community was now

formalised by way of a decision to register and establish Khuba and
to provision it for operation.
[45]
However,
the HOD contends that the allocation of an EMIS number did not mean
that the construction and provisioning of Khuba had
been approved in
May 2010 (although the HOD admits the EMIS number was allocated). The
HOD says that the allocation of an EMIS
number “… is not
indicative of the full ‘establishment’ of Khuba as Khuba
does not have buildings, personnel,
furniture, equipment, text books
and stationary, which is necessary before a school can be
established.”.
[46]
The
question that must be asked is what then is the effect of registering
a public school and allocation of an EMIS number?
[47]
Mr
du
Toit
submits
that upon the allocation of an EMIS number, it was incumbent on the
department to take all steps necessary to construct
and provision
Khuba. This is so because, first, the Department explicitly says that
it will build the necessary facilities to allow
Khuba to operate,
and, second, because it presupposes budgetary provisioning.
[48]
In
terms of
s 12
of the
South African Schools Act, 1996
(“SASA”)
and s 16(4) of the KwaZulu-Natal School Education Act, 1996 (“KZN
Act”) the MEC may only establish
a state-subsidised school out
of monies appropriated for that purpose.
[49]
The
KZN Department of Education School Management Team (“SMT”)
Handbook clarifies the position for educators, departmental
officials
and community members. Chapter 3 is titled “Education
Management Information System [EMIS]”. Sections 3.5
and 3.6
deal with the “establishment” and “registration”
of schools respectively. They provide in relevant
part as follows:
“
3.5
Establishment of a School
(a)
The
need to establish a new school must be identified either by the
Department or by the school community. The involvement of the
Ward
Manager and the Physical Planning and EMIS Section is central to the
whole process.
(b)
The
responsible officials will verify the need for such a school and,
based on the findings, will advise accordingly. If the need
is
authentic, the necessary consultative processes will unfold.
(c)
The
consultation process initiated by the Department should involve
stakeholders such as,
Amakhosi,
Izinduna
,
local councillors, and the community.
…
(e)

In the case of a rural school, an ITB 1 form
(
Ingonyama
Trust
Tenure Option Application Form), a letter of consent from the
Inkosi
and a letter from the local municipality must accompany the
application form.
…
(g)

Before the new school is built, its curriculum
must be negotiated
with the relevant stakeholders and approval sought from the
Provincial Curriculum and Infrastructure units.
This will assist in
ensuring that the buildings match the needs of the curriculum.
3.6
Registration of Schools
…
(c)
The
Head of Department must approve registration of a school, and
allocate an EMIS number prior to its operation.
(d)
Registration
of schools before commencement of teaching and learning ensures that
the curriculum to be offered is approved by the
DoE and complies with
set standards.
(e)
The
school is budgeted for in terms of Norms and Standards,
infrastructure provisioning, staffing and other relevant resources.”
[50]
It
was submitted that that extract from the handbook demonstrates that
the required verification is nothing more than a feasibility
study by
another name and that a physical structure (ie. a school building) is
not required for the establishment of a school.
[51]
The
process, on the department’s own documentation, is thus
four-fold:
a.
First,
the need for a school is identified, and then verified;
b.
second,
what follows is a consultative process between stakeholders including
parents, community members and traditional authorities.
In the case
of a rural school, such as Khuba, the Department must apply to the
Ingonyama Trust to enter into a lease agreement
for the use of the
land for the development of a school, culminating in the
determination of the curriculum and completing the
establishment
phase;
c.
third,
and after the above, the HOD approves the registration of the school
and allocates an EMIS number; and
d.
finally,
a budget is prepared in terms of prescribed norms and standards.
[52]
On
the facts in this matter all of these steps were achieved:
a.
First,
and as indicated above, the need for Khuba was identified in 1996 and
the identification and verification process for the
school and the
site for its construction was completed by 18 April 2007.
b.
Second,
a lengthy consultative process followed, and because Khuba is a rural
school, it was the obligation of the Department –
and not the
community - to apply to the Ingonyama Trust for the use of land for
Khuba.
c.
The
papers reveal that the applicants are not in possession of the
Department’s application to the Ingonyama Trust. They are
also
not in possession of the letter required from Inkosi Mpungose
consenting to the use of traditional land to build a school
prior to
May 2010. What is known is that the material letter of consent was
provided by the first applicant to the Department during
or about the
end of June 2016. Whatever the case, it is submitted that it must be
accepted that the necessary processes were followed
up by the
Department, otherwise step three, the allocation of the EMIS number
could not, on the Department’s documentation,
have occurred. It
is accordingly submitted that regularity of the process is to be
assumed. The submission is attractive.
d.
Third,
by 9 October 2007 the Department had already commenced budgeting for
Khuba for the 2009 financial year and the Infrastructure
Plan was “to
prioritise [Khuba] for the 2008-2009 financial year”.
e.
Finally,
on 26 May 2010 the registration of Khuba was approved. Khuba was
allocated an EMIS number and had been budgeted for.
[53]
The
effect of an EMIS number is that a school has been established and is
registered. What remains is its construction and provisioning.
No
other reasonable explanation is on record for the award of an EMIS
number.
The period 2011 to 2015: More delays – more dashed
promises
[54]
Despite
the May 2010 decision no physical construction commenced.
[55]
On
7 April 2011 a meeting of community representatives and departmental
officials took place and considered a number of matters
relevant to
the Nkungumathe community, including the building of Khuba. The
minutes
of
the meeting record,
inter
alia
,
that:
a.
The
process to establish Khuba commenced in 1996 and that “no
action has taken place”;
b.
Khuba
has been registered and established as a public school;
c.
the
school was supposed to have been built in 2010, but fiscal
constraints prohibited this;
d.
the
Department now committed to commencing construction of the school in
the financial year 2011/2012;
e.
the
construction and provisioning of Khuba was on the Department’s
financial plan as at the date of the meeting; and
f.
the
community and Department district office would jointly meet to
formulate a curriculum.
[56]
Mr
du
Toit
submits
that this demonstrates that community had again been promised that
Khuba would be built.
[57]
There
having been no building activity in the ten months since the meeting
of 7 April 2011, the sixth applicant says that he headed
a delegation
of community members to meet with Departmental officials. That
meeting took place in February 2012. The community
was informed that
Khuba was still on the waiting list for construction, but that
building would not commence, as promised, by the
end of the 2012
financial year.
[58]
The
community then approached an attorney for advice in about July 2012.
The attorney wrote to the Department calling for
an explanation. Mr
Chonco, the District Director, responded on 13 August 2012
as
follows:
“
The
Department has an interest of ensuring that each and every school on
its waiting list for construction is attended to; the same
goes for
Khuba Secondary School. Unfortunately, the school in question is not
at the top of such list; however, the school is again
assured that
construction will take off in due course.”
[59]
Mr
du
Toit
submits
that again the community was made an official promise. He submits
further that again it was broken.
[60]
The
sixth applicant endeavoured to meet with the Department in the course
of mid-2013 but was not successful. The next meeting occurred
on 18
October 2014. The community was represented by,
inter
alia
,
the second and sixth applicants, and the Department by senior
management officials.
[61]
The
Department recommitted itself to provisioning Khuba. It promised to
commence provisioning in 2016, but in place of a formal
build, the
initial plan would be for mobile classrooms. This presented an
acceptable start.
[62]
On 20
July 2015, the sixth applicant met with representatives of the
Departmental Infrastructure Team, Messrs Smith and Mkhize.
They
reported that five mobile classrooms had been sourced and were
available for installation at Khuba to enable classes to commence
in
January 2016.
[63]
On 25
September 2015 another meeting took place between a community
delegation led by the sixth applicant and representatives of
the
Department led by Ms Judy Dlamini. The Department indicated that all
was on track for the commencement of the 2016 academic
year at Khuba.
[64]
On
the established facts accordingly, as at 25 September 2015, it
appeared that Khuba would be open to learners from January 2016.
The period 2015 to 2016: The Transversal Task Team
[65]
On 9
October 2015 the Transversal Task Team (“the TTT”) was
established by the erstwhile HOD, Dr Nkosinathi S P Sishi.
It
comprised members of the community and representatives of the
Department. The aim of the TTT was to realise the Khuba project
in
terms of the build, the provisioning and the curriculum.
[66]
The
TTT process was fraught with delays and, it seems, Departmental
mismanagement. The affidavits reveal that draft reports were

presented by the Department on 8 March 2016 and 20 May 2016. A final
report was also produced. The applicants were not provided
with the
reports and the Department has not provided the Court with copies.
[67]
On 30
June 2016 the TTT produced a Joint Management Plan. The plan set out
every stage and target date for the complete build and
provisioning
of Khuba, from the procurement of mobile classrooms, toilets,
fencing, and furniture, to the appointment of officials,
teachers and
the allocation of norms and standards, with a fully operational Khuba
completed by November 2016.
[68]
The
site where Khuba was to be built was the vacant land near the
Nkungumathe Youth Centre and Nkungumathe Primary School (“the

Khuba site”).
[69]
It
will be recalled (see para 40 above) that on 9 October 2007, in her
motivation for the establishment of Siphosethu, the District
Director
for the Empangeni District noted inter alia that the “land set
aside by the community leader for the proposed school
is suitably
positioned for the secondary school”. The proposed Khuba site
of four hectares had been identified, was feasible
and was within one
kilometre of the Nkungumathe Primary School. It is noteworthy that
this fact is not denied by the HOD. The HOD
only questions whether
the land was lawfully allocated. This aspect was, however, a matter
in the hands of the Department and which
was dealt with earlier when
discussing the processes of the Ingonyama Trust.
[70]
There
is, in my view, no substance in the point, as the HOD alleges, that
subsequent to the TTT report and the approval of the Khuba
site a new
site was identified as the potential land for the construction of
Khuba. The HOD does not say who identified this piece
of land. It was
not identified by the community, nor by any of the applicants nor by
the TTT.
The “new” feasibility studies
[71]
It
was submitted that the basis for the MEC’s decision on 16
February 2017 not to build Khuba appears now,
ex
post facto
from his letter of that date, to be that “…subsequent
feasibility studies revealed that the proximity of the proposed

school to another secondary school in the sparsely populated area,
would render one of those schools surplus to the requirement.”
.
[72]
It is
significant that the respondents’ papers do not contain
affidavits deposed to by anyone involved in any feasibility
study.
[73]
In
his affidavit, the HOD refers to a “feasibility study”
consisting in part of a “town planning report”
and an
“environmental management report”. These reports are
undated (they are not verified under oath), but are premised
on
alleged visits to the Khuba site on or about 16 August 2016. This is
some six weeks after the TTT report. They were never previously

disclosed to the applicants i.e. not until they were attached to the
answering affidavit.
[74]
I am
told that because the HOD’s affidavit implied that there were
further documents forming part of the feasibility study
and which
were not attached to the papers, in its letter to the state attorney
of 2 May 2018, the applicants’ attorneys requested
a copy of
the “feasibility study”. On 20 May 2018 the state
attorney responded that “‘…the feasibility
study’
is neither in a written document nor a report.”
[75]
The
applicants argue that this is a response begging for specificity. It
is a report on which the respondents intend to rely but
which they
cannot produce and evidently is not in existence apart from the
environmental management and town planning reports attached
to the
HOD’s affidavit. The implication that the report exists,
although not in written form is startling, to say the least.
[76]
Mr
du
Toit
submits
that given that the feasibility study apparently exists, but not in
writing, the HOD does not identify the official with
the requisite
knowledge to speak to the additional reasoning perhaps underpinning
the decision to deem the Khuba site not suitable
or that Khuba was
not necessary at all.
Crying foul, The dashed promise and the decision to
deregister and disestablish Khuba
[77]
Towards
the end of 2016, the community’s patience with the Department
appeared to wear thin with the result that on 4 November
2016 a
report entitled “Crying Foul: Report on Khuba Secondary School
Nkungumathe Area, Nkandla” (“the Crying
Foul Report”)
was produced.
[78]
The
report sets out much of the chronology canvassed herein. It
emphasised the community’s frustration with the persistent

delays and the rebuffs from the Department. The MEC was urged to take
all the steps necessary to build and provision Khuba.
[79]
The
Crying Foul Report was prepared by the community representatives on
the TTT and was submitted to the MEC and the HOD. It was
never
responded to.
[80]
MEC’s
letter of 16 February 2017 withdrawing the May 2010 decision to build
Khuba was then received and the present application
launched on 4
October 2017.
[81]
The
MEC’s letter of 16 February 2017 is pivotal to this
application. It was written in response to a letter of complaint
dated 6 February 2017. I repeat its contents:
“
COMPLAINT:
PROPOSED SCHOOL NOT ERECTED IN DECEMBER 2016
1.
The
above matter refers.
2.
I
hereby acknowledge receipt of your letter dated 6
th
February 2017.
3.
I
would therefore like to state the following:
3.1
Although
approval for the registration of the school was granted in 2007,
subsequent feasibility studies have revealed that the
proximity of
the proposed school to another secondary school in the sparsely
populated area, would render one of the schools surplus
to the
requirement.
3.2
The
number of households in the vicinity of the proposed school site are
not sufficient to grant building a new school
3.3
The
Department has no knowledge of any learners that are currently not
enrolled at any school.
4.
Taking
the above into account, unfortunately the Department is not in a
position to construct the proposed secondary school under
these
circumstances.
5.
We
however, remain committed to provide access to quality education to
all learners, within our available resources.”
[82]
Mr
Khan
contended that the
original decision of the first respondent was one simply to
register
the Khuba Secondary School, and no more. He said that the respondents
based this premise on the fact that when the applicants applied
for
the registration of Khuba, they did so on an application form
titled "APPLICATION FOR REGISTRATION OF PROPOSED NEW
SCHOOL".
He then submitted that the original decision and the February 2017
decisions are independent, each of the other,
as the former pertains
only to the process of
registration
of the school  whereas the latter pertains to commissioning the
school for
construction
.
Thus, he submitted that the decision of February 2017 does not amount
to a withdrawal or reversal of the original decision and
is therefore
not reviewable. As I demonstrate herein, I do not agree.
THE GROUNDS OF REVIEW
Review under PAJA
[83]
Under
the Promotion of Administrative Justice Act, 2000 (“PAJA”),
only “administrative action” so defined
is reviewable. In
Minister
of Defence and Military Veterans v Motau and Others
2014
(5) SA 69
(CC) the Constitutional Court analysed the definition of
administrative action in the following terms (footnotes omitted):
“
[33] The
concept of “administrative action”, as defined in section
1(i) of PAJA, is the threshold for engaging
in administrative-law
review.  The rather unwieldy definition can be distilled into
seven elements: there must be (a) a decision
of an administrative
nature; (b) by an organ of state or a natural or juristic person;
(c) exercising a public power or performing
a public function;
(d) in terms of any legislation or an empowering provision; (e) that
adversely affects rights; (f) that has
a direct, external legal
effect; and (g) that does not fall under any of the listed
exclusions. In the present matter there are
two elements in dispute:
whether the Minister’s decision under section 8(c) of the
Armscor Act is of an administrative nature
(element (a)) and whether
it falls under any of the listed exclusions (element (g)).
Both can be answered by interrogating
the nature of the power.
[34] To
determine what constitutes administrative action by asking whether a
particular decision is of an administrative nature
may, at first
blush, appear to presuppose the outcome of that enquiry.  But
the requirement has two important functions.
First, it obliges
courts to make a “positive decision in each case whether a
particular exercise of public power . . . is
of an administrative
character”. Second, it makes clear that a decision is not
administrative action merely because it does
not fall within one of
the listed exclusions in section 1(i) of PAJA.  In other words,
the requirement propels a reviewing
court to undertake a close
analysis of the nature of the power under consideration.
[35] As
a starting point, in
New
Clicks
Chaskalson
CJ suggested that the definition of administrative action under PAJA
must be “construed consistently” with
the right to
administrative justice in section 33 of the Constitution.
[40]
As section 33 itself contains no express attempt to delimit the scope
of “administrative action”, it is helpful
to have
reference to jurisprudence regarding the interpretation of that
section.
[36] It
is the function rather than the functionary that is important in
assessing the nature of the action in question. The
mere fact that a
power is exercised by a member of the Executive is not in itself
determinative.  It is also true that the
distinction between
executive and administrative action is often not easily made.
The determination needs to be made on a
case-by-case basis; there is
no ready-made panacea or solve-all formula.
[37] Executive
powers are, in essence, high-policy or broad direction-giving
powers.  The formulation of policy is a paradigm
case of a
function that is executive in nature.  The initiation of
legislation is another. By contrast, “[a]dministrative
action
is . . . the conduct of the bureaucracy (whoever the bureaucratic
functionary might be) in carrying out the daily functions
of the
state, which necessarily involves the application of policy, usually
after its translation into law, with direct and immediate

consequences for individuals or groups of individuals.”
Administrative powers are in this sense generally lower-level powers,

occurring after the formulation of policy.  The implementation
of legislation is a central example.  The verb “implement”,

which also appears in section 85(2)(a) of the Constitution and
distinguishes it from section 85(2)(e), may serve as a useful

guide: administrative powers usually entail the application of
formulated policy to particular factual circumstances.  Put

differently, the exercise of administrative powers is policy brought
into effect, rather than its creation.”
[84]
It
was submitted that the February 2017 decision was not administrative
action because the MEC did not take the decision “…in

terms of any legislation or an empowering provision”.
[85]
Section
33 of SASA provides as follows:
“
33.
Closure of public schools
(1)
The Member of the Executive Council may, by notice in the
Provincial
Gazette
, close a public school.
(2)
The Member of the Executive Council may not act
under
subsection (1)
unless he or she has—
(
a
)
informed the governing body of the school of his or her intention so
to act and his or her reasons therefor;
(
b
)
granted the governing body of the school a reasonable opportunity to
make representations to him or her
in relation to such action;
(
c
)
conducted a public hearing on reasonable notice, to enable the
community to make representations to him
or her in relation to such
actions; and
(
d
)
given due consideration to any such representations received.
(3)
If a public school is closed in
terms of
subsection (1) all
assets and liabilities of such school must,
subject to the conditions of any donation, bequest or trust
contemplated in
section 37 (4),
devolve
on the State unless otherwise agreed between the Member of the
Executive Council and the governing body of the school.”
[86]
The
submission continues that the only provision upon which the MEC could
have relied was section 33(2)(c) of SASA and it is clear
from the
papers that the MEC did not make the February 2017 decision, and does
not purport to have done so, pursuant to any power
under section
33(2)(c) of SASA.
[87]
Thus,
not having acted in terms of any empowering provision, the MEC’s
February 2017 decision cannot constitute administrative
action and is
not reviewable under PAJA. It thus can only be reviewed on the
principle of legality.
[88]
If,
however, I am wrong and it can be contended that the February 2017
decision does indeed constitute administrative action, then
it
nevertheless still falls to be set aside under PAJA.
[89]
The
applicants were given no notice of the impending decision, no
opportunity to engage with the MEC about the decision and its
effect
on the learners of the community, no clear statement of the
administrative action and no notice of their right to request
reasons
for the decision. These are clear breaches of section 3(2)(a) of
PAJA.
[90]
Assuming
also that the MEC had acted under section 33(2)(c) of SASA (which he
did not), that section provides that an MEC may not
close a public
school unless he or she has “…conducted a public hearing
on reasonable notice, to enable the community
to make representations
to him or her in relation to such actions.”
[91]
In
addition, it is established law that administrative action which
materially and adversely affects legitimate expectations must
be
procedurally fair under PAJA. It is arguable that the community had a
legitimate expectation that Khuba would be built and that
the
February 2017 decision materially affected that legitimate
expectation, and as such the community should have been afforded

notice and an opportunity to make representations to the Department.
Where a person has on the basis of a promise or a past practice

acquired a reasonable expectation as to an administrator's future
conduct, the administrator ought not to disappoint the expectation

without at least hearing the person. In
Premier,
Mpumalanga and Another v Executive Committee, Association of
Governing Bodies of State-Aided Schools, Eastern Transvaal
1999 (2) SA 91
(CC) at paras 36 to 42 the principle was discussed as
follows (footnotes omitted):
“
[36]
The concept of “legitimate expectation” employed in
section 24 of the interim Constitution
needs to be interpreted in the
light of the concept of “legitimate expectation” that
sprang from Lord Denning’s
judgment in
Schmidt
and
that has been adopted in a wide variety of jurisdictions as mentioned
above
.
Expectations
can arise either where a person has an expectation of a substantive
benefit, or an expectation of a procedural
kind. There are also
circumstances in which a legitimate expectation will arise which has
inter-related substantive and procedural
elements as Corbett CJ also
recognised in
Traub
(at
758F). Once a person establishes that a legitimate expectation
has arisen, it is clear from the language of section
24(b) of the
interim Constitution that he or she will be entitled to procedural
fairness in relation to administrative action that
may affect or
threaten that expectation.  It is not necessary for us to decide
in this case, in what circumstances, if any,
a legitimate expectation
will confer a right to substantive relief beyond that ordinarily
contemplated by a duty to act fairly.
[37]
In this case, there is no dispute between the parties that a system
whereby government paid tuition,
transport and boarding bursaries to
schools on behalf of needy pupils had been operating for some
years. That system originated
under the former government and
favoured white pupils at the expense of black pupils in the education
system. Bursaries were
generally paid quarterly in
arrear. Accordingly, debts had to be incurred by governing
bodies in the expectation that the
bursaries would be paid in due
course. There can be no doubt that this system could not
continue for long under the new constitutional
dispensation.
Nevertheless, governing bodies of schools were obliged to budget each
year for the operating costs incurred
by the school in the provision
of tuition, transport and boarding bursaries. Towards the end of
the 1994 school year, notice
was given to the governing bodies that
payment of transport and boarding bursaries would continue until the
end of 1995 or until
the new provincial governments decided
otherwise. As it happened, bursaries were paid for the first
term and at least in some
schools for the second term of 1995.
What is more, the budget proposed by the second applicant in May 1995
allocated sufficient
funds for the payment of bursaries until the end
of the 1995/6 year, although in his budget speech the second
applicant did state
that bursaries would be reviewed during the
course of the year.
[38]
In all these circumstances, it is clear that the governing bodies of
schools had a legitimate expectation
that government bursaries would
continue to be paid during the 1995 school year subject to reasonable
notice by the government
of its intention to terminate such
payment. Such legitimate expectation that bursaries would
continue to be paid subject to
reasonable notice meant that if the
second applicant wished to terminate the bursaries he could not do so
unless he gave reasonable
notice prior to termination. Once, however,
he had given reasonable notice there would have been no obligation to
consult with
the governing bodies or the schools concerned. This
legitimate expectation, therefore, is one which has intertwined
substantive
and procedural aspects as discussed above. There can
be no doubt that when the second applicant notified school principals

on 5 August 1995 that he intended to terminate bursaries with effect
from July 1995, no reasonable notice of termination had been
given to
the respondent’s members. It is equally clear that the
letter of 31 August 1995 does not constitute reasonable
notice
because, at best for the second applicant, it represented a decision
to terminate the payment of bursaries with effect from
a date more
than a month before the date of that letter.
[39]
The question that arises is whether the second applicant acted
procedurally fairly in the context of
the legitimate expectation that
the respondent and its members entertained. It needs to be
emphasised that section 24(b) requires
that administrative action
which affects or threatens legitimate expectations be procedurally
fair. That does not mean that
in all circumstances a hearing
will be required. It is well-established in our legal system and
in others that what will constitute
fairness in a particular case
will depend on the circumstances of the case.
[40]
In this case, it is clear that before the meeting of 5 August 1995,
no notice had been given to the
members of the respondent that a
termination of bursaries with effect from the beginning of the third
term was contemplated by
the second applicant. Nor did the
notice of the meeting itself intimate that the second applicant
intended terminating the
payment of bursaries.
The
members of the respondent were therefore given no opportunity to
restructure their contractual obligations with transport companies
or
suppliers or staff in the light of the diminished income that they
would receive as a result of the retroactive termination
of the
bursaries. At the meeting of 5 August 1995, or shortly
thereafter, they were afforded a period of two weeks in which
to make
representations to the second applicant, concerning the particular
financial difficulties they would face if the bursaries
were
summarily, indeed retroactively, terminated. It appears from the
papers filed in this case that many of them took advantage
of that
opportunity. However, before that period had ended, the second
applicant had reported to the provincial cabinet recommending
that
retroactive termination be approved. Although the second
applicant avers that he sought the approval of the provincial
cabinet
“in principle”only, it appears from the memorandum that
he prepared and circulated to his colleagues in the
provincial
cabinet that his recommendation went beyond a decision “in
principle”. He unqualifiedly recommended
termination of
the payment of bursaries. The respondent and its members were finally
informed by a letter dated 31 August 1995
of the second applicant’s
decision to terminate the bursaries with effect from 1 July 1995.
[41]
In determining what constitutes procedural fairness in a given case,
a court should be slow to impose
obligations upon government which
will inhibit its ability to make and implement policy effectively (a
principle well recognised
in our common law and that of other
countries). As a young democracy facing immense challenges of
transformation, we cannot
deny the importance of the need to ensure
the ability of the executive to act efficiently and promptly. On
the other hand,
to permit the implementation of retroactive decisions
without, for example, affording parties an effective opportunity to
make
representations would flout another important principle, that of
procedural fairness. This is a principle, which the second

applicant himself recognised as important in his speech on 5 August
1995
…
.
Indeed, it may be that in many cases a retroactive termination of
benefits will not be fair no matter what process is followed
unless
there is an overriding public interest, as the European Court of
Justice has held on several occasions. In the light of
the
conclusions I reach, it is not necessary to explore that issue
further in this case. Citizens are entitled to expect that government

policy will ordinarily not be altered in ways which would threaten or
harm their rights or legitimate expectations without their
being
given reasonable notice of the proposed change or an opportunity to
make representations to the decision-maker. In this regard,
there are
similarities between the facts of this case and those in the recent
decision of the English Court of Appeal,
R
v Devon County Council ex parte Baker and another; and R v Durham
County Council, ex parte Curtis and another
[1995]
1
All ER 73
(CA)
in which the court was faced with the closure of state-run
residential homes for old people. It was held that there was
a
duty on the county councils concerned to consult the permanent
residents in the homes before the decision to close the homes
was
taken. In one of the cases heard on appeal, the court held that
the failure to consult prior to the taking of the decision
rendered
the decision susceptible to judicial review.
[42]
I conclude that in the circumstances of this case the decision by the
second applicant to terminate
the payment of bursaries to members of
the respondent with actual retroactive effect and without affording
those members an effective
opportunity to be heard was a breach of
their right to procedural fairness enshrined in section 24(b) of the
interim Constitution. It
is not necessary, therefore, to
consider the merits of the respondent’s reliance on the
provisions of section 24(d) of the
interim Constitution. In this
case, in relation to the breach of section 24(b), no question of
justification in terms of section
33 can arise as the decision taken
by the second applicant did not constitute “a law of general
application” as required
by that provision.”
[92]
Accordingly,
the February 2017 decision must be reviewed and set aside under PAJA
for want of procedural fairness.
Legality review
[93]
The
rule of law is a founding value of our constitutional dispensation.
It encompasses the principle of legality which,
inter
alia
,
obliges public functionaries to act within their powers and also
requires that the exercise of all public power be rationally
related
to a legitimate government purpose. Rationality in this sense means
rational both as to process and as to the merits of
the action taken.
A decision can be irrational because the procedure by which it was
taken was unfair.
[94]
The
requirement of rationality is most often invoked to challenge
executive decisions. The requirement will only be met where,
objectively considered, there is a cogent link between the means
adopted and the end sought to be achieved. In
Albutt
v Centre for the Study of Violence and Reconciliation and Others
2010 (3) SA 293
(CC) at para 51 it was put thus:
“
The
Executive has a wide discretion in selecting the means to achieve its
constitutionally permissible objectives. Courts may not
interfere
with the means selected simply because they do not like them, or
because there are other more appropriate means that
could have been
selected. But, where the decision is challenged on the grounds of
rationality, courts are obliged to examine the
means selected to
determine whether they are rationally related to the objective sought
to be achieved. What must be stressed is
that the purpose of the
enquiry is to determine not whether there are other means that could
have been used, but whether the means
selected are rationally related
to the objective sought to be achieved. And if, objectively speaking,
they are not, they fall short
of the standard demanded by the
Constitution. This is true of the exercise of the power to pardon
under section 84(2)(j).”
The MEC lacked authority to withdraw the May 2010
decision
[95]
The
general principle in our law is that once an administrator has taken
a decision the administrator has no power to change it
or set it
aside. The administrator is said to be
functus
officio
.
[96]
In
general, the principle relating to an administrator being
functus
officio
applies only to final decisions. A decision is revocable before it
becomes final. Finality is a point arrived at when the decision
is
published, announced or otherwise conveyed to those affected by it.
As indicated in
President
of the Republic of South Africa v South African Rugby Football Union
2000
(1) SA 1
(CC), which concerned the President's power to appoint a
commission of inquiry,
“…the
appointment of a commission only takes place when the President's
decision is translated into an overt act, through
public
notification…”; the President would have been “…entitled
to change his mind at any time prior
to the promulgation of the
notice”. In order to be regarded as final the decision must
have passed into the public domain
in some manner.
[97]
In
the absence of a statutory corrective power, or the application by an
administrator to set aside its own decision, the decision
remains
final and cannot be revoked. In
MEC
for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd
2014 (3) SA 481
(CC)
it
was made clear that a formal review application was a condition
precedent, both as a matter of form and constitutional principle,

should a public body wish to disregard its own decisions (footnotes
omitted):
“
[64] Can
a decision by a state official, communicated to the subject, and in
reliance on which it acts, be set aside by a court
even when
government has not applied (or counter-applied) for the court to do
so?  Differently put, can a court exempt government
from the
burdens and duties of a proper review application, and deprive the
subject of the protections these provide, when it seeks
to disregard
one of its own officials’ decisions?  That is the question
the judgment of Jafta J (main judgment) [the
minority judgment]
answers.  The answer it gives is Yes.  I disagree.
Even where the decision is defective –
as the evidence here
suggests – government should generally not be exempt from the
forms and processes of review.  It
should be held to the pain
and duty of proper process.  It must apply formally for a court
to set aside the defective decision,
so that the court can properly
consider its effects on those subject to it.
[65] The
reasons spring from deep within the Constitution’s scrutiny of
power.  The Constitution regulates all public
power. Perhaps the
most important power it controls is the power the state exercises
over its subjects.  When government errs
by issuing a defective
decision, the subject affected by it is entitled to proper notice,
and to be afforded a proper hearing,
on whether the decision should
be set aside.  Government should not be allowed to take
shortcuts.  Generally, this means
that government must apply
formally to set aside the decision.  Once the subject has relied
on a decision, government cannot,
barring specific statutory
authority, simply ignore what it has done.  The decision,
despite being defective, may have consequences
that make it
undesirable or even impossible to set it aside.  That demands a
proper process, in which all factors for and
against are properly
weighed.”
[98]
I
agree with the applicants’ submission that here the final
decision was communicated at the latest by May 2010. The decision
to
budget for, build and provision Khuba had been taken and was final.
There is no statutory provision that would enable the incumbent
MEC
to reverse his predecessor’s decision; nor has the incumbent
MEC elected to have the May 2010 decision reviewed and set
aside as
he ought to have done.
[99]
In my
view in those circumstances the May 2010 decision stands.
The decision was irrational
[100]
Khuba
was established, registered in May 2010, and was to be built on a
site that the applicants have established that had already
been
identified in 2007.
[101]
It
was implicit in the May 2010 decision to register and establish Khuba
that it was preceded by a ‘feasibility study’
on the
basis of the requirements set out in the formal application form for
the registration of a proposed new school. After delivery
of the TTT
report at or about the end of June 2016 the community did not
participate in a further feasibility study and the leadership
was
unaware of any.
[102]
The
applicants submit that the environmental management and town planning
reports which form the basis for (and are the only “evidence”

put up by the HOD for) the MEC’s decision to disestablish and
deregister Khuba are materially flawed. The submission is underpinned

by the fact that the reports surveyed a site which was not the Khuba
site. The submission is undoubtedly correct.
[103]
The
Khuba site is approximately one kilometre from the Nkungumathe
Primary School. The site fits into the same cluster of buildings
as
the primary school, the Nkungumathe Community Centre and the
provincial library located across the road.
[104]
The
location referenced in the two reports is a considerable distance
from the Khuba site.  According to the Department’s
own
documents the distance between the site referenced in the two reports
and Nkungumathe Primary is three kilometres. Although
the GPS
coordinates mentioned in the two reports are the correct ones, the
site examined simply cannot be the site identified jointly
by the
Department, Inkosi Mpungose and representatives of the Nkungumathe
community.
[105]
The
applicants make the point that the two reports contain sparse
information and that as a consequence the HOD, in his affidavit,

resorts to generalisations and assumptions. They say that it is
simply not good enough for the HOD to make statements like “…the

number of households surrounding [the incorrect site] appear to be
very sparse…” or that Nkungumathe Primary “…appears

to be situated exactly…” between the Khuba site and
Ithala, or that he “…would estimate…”

approximate distances. All these calculations depart from the wrong
starting point, being the incorrect site.
[106]
The
obvious conclusion is that the means used (ie. environmental and town
planning reports which evaluated the incorrect site) are
not
rationally connected to the decision no longer to build on the
correct Khuba site.
[107]
The
environmental and town planning reports show that the decision of the
MEC not to construct and provision Khuba was made on the
basis of
wholly irrelevant material (the incorrect site was evaluated), which
immaterial information was in any event compiled
after Khuba had been
established and registered in May 2010.
[108]
The
MEC’s decision to withdraw the decision to register, establish,
construct and provision Khuba was accordingly arbitrary
and
irrational and falls to be set aside under section 172 of the
Constitution.
The decision was procedurally irrational
[109]
The
question of procedural fairness must be considered, first, as part of
the rationality enquiry into the MEC’s decision
and, second, in
the light of the community’s legitimate expectation that Khuba
would be built.
[110]
Executive
action, to be rational, must be procedurally fair.
[111]
Democratic Alliance v
President of South Africa and Others
2013
(1) SA 248
(CC)
concerned
the appointment by the President of the National Director of Public
Prosecutions (executive action). It was held that
both the process by
which the decision is made and the decision itself must be rational.
The position was explained at para 36:
“
The
conclusion that the process must also be rational in that it must be
rationally related to the achievement of the purpose for
which the
power is conferred, is inescapable and an inevitable consequence of
the understanding that rationality review is an evaluation
of the
relationship between means and ends. The means for achieving the
purpose for which the power was conferred must include
everything
that is done to achieve the purpose. Not only the decision employed
to achieve the purpose, but also everything done
in the process of
taking that decision, constitute means towards the attainment of the
purpose for which the power was conferred.”
[112]
Albutt
concerned
a special dispensation process established by the President to deal
with applications for pardon from persons convicted
for offences they
claim were politically motivated, but who did not participate in the
Truth and Reconciliation Commission.  In
the Constitutional
Court, Mr Albutt, an applicant for pardon under the dispensation,
together with the state parties, argued that
the victims of the
offences in respect of which pardon was sought were not entitled, in
a legality review concerning executive
action, to procedural fairness
before a decision to grant pardon was made. The respondent victims
submitted they had a right to
make representations.  Ngcobo CJ
(at para 50) held that (footnotes omitted):
“
To
pass constitutional muster … the President’s decision to
undertake the special dispensation process, without affording
victims
the opportunity to be heard, must be rationally related to the
achievement of the objectives of the process.
If
it is not, it falls short of the standard that is demanded by the
Constitution.”
[113]
Thus,
the question for determination was whether the decision to exclude
victims from participating in the special dispensation
process was
rationally related to the objectives that the President set out when
he announced the process. It was held that the
means could not be
rationally related to the purpose because the procedure by which the
decision was taken did not provide an opportunity
for victims or
their family members to be heard, in order to determine the facts on
which pardons are based, namely, whether the
offence was committed
with a political motive.
[114]
In my
view, when considered in that light, the MEC’s February 2017
decision was procedurally irrational.
[115]
The
manner in which the decision was taken, i.e. in the absence of
consultation with community representatives and learners, was
not
consonant with the purpose of the decision to halt construction of
Khuba and to deregister it.
[116]
As
explored earlier, it is in the first instance the community that
identifies the need for a school and then applies to the Department.

What is required in terms of the KZN Department of Education SMT
Handbook, and what in fact occurred here, was a lengthy, admittedly

halting, consultative process, from 2007 through to 2016.
[117]
As at
30 June 2016, it was agreed by all parties, in terms of the
Management Plan, that construction and provisioning would commence
on
8 July 2016, with Khuba being fully operational by November 2016 for
the start of the 2017 academic year. This was a direct
result of a
meaningful, albeit frustrating, consultative process.
[118]
The
decision to establish Khuba in May 2010 was based on the formal
consultative process that had been undertaken. The purpose of
that
decision was to build Khuba to fulfil the basic educational
requirements of secondary school learners in the Nkungumathe area.

The consultative process was necessary and foundational, not
incidental, to the purpose of the decision and to the manner in which

it was taken. If there was to be a change in the decision, in this
instance the purpose now being to disestablish Khuba, then to
be
rational a consultative process would likewise be a necessary
pre-condition.
[119]
In
the circumstances of this case, for the February 2017 decision to be
rational the Council and community should at the very least
have been
given notice of the MEC’s intention to close Khuba, information
as to how the decision was taken and why, and the
opportunity to
engage with Departmental officials on the nature of the decision and
its effect on learners’ rights.
[120]
The
decision was thus manifestly procedurally irrational and falls to be
set aside.
THE DECISION WAS AN UNCONSCIONABLE
BREACH OF PROMISE
[121]
The
applicants submit that this is a tale of promises made and promises
breached.
[122]
The
facts make plain that the community was promised a school. The
promise to build Khuba was first made on or about 18 April 2007.
The
May 2010 decision to establish, build and provision Khuba reinforced
that promise.
[123]
The
promise was again made on 7 April 2011 and 13 August 2012.
[124]
That
the members of the community understood that a promise had been made
is clear. Mr M Mchunu, the sixth applicant, says that
he and his
grandson “…have been seriously left in the lurch by the
breach of promises and undertakings…”
to establish Khuba
and that “…these broken promises caused real hardship”.
[125]
A
public promise is enforceable if it would be unconscionable for a
public body to renege on its promise. The decision in
KwaZulu-Natal
Joint Liaison Committee v MEC Department of Education, Kwazulu-Natal
and Others
2013 (4) SA 262
(CC) is relevant here. The KZN Department of
Education notified independent schools in September 2008 of the
subsidies payable
to them the following year. The first portion of
the subsidies was payable in April 2009. The Department did not make
this payment
and in May 2009 announced that it had decided to reduce
the subsidies with retrospective effect.
[126]
A
majority of the Constitutional Court (Cameron J) held that the
Department’s conduct was unlawful and that the independent

schools were entitled to hold it to its promise, not on the pleaded
contractual or administrative law grounds but “…on

broader public law and regulatory grounds…”. This was so
because the promise to pay “…created a legal
obligation
unilaterally enforceable at the instance of those who were intended
to benefit from…” it. Cameron J  (at
para 52) went
on to say:
“…
a
public official who lawfully promises to pay specified amounts to
named recipients cannot unilaterally diminish the amounts to
be paid
after the due date for their payment has passed. This is not because
of a legitimate expectation of payment. Legitimate
expectation
relates to expected conduct. Rather, this principle concerns an
obligation that became due because the date on which
it was promised
had already passed when it was retracted.”
[127]
The
principle is thus that a promise, seriously and lawfully made by a
public official, may be enforceable at public law by those
to whom it
was made if it would be “…both legally and
constitutionally unconscionable…” for the public

official to renege on the promise.
[128]
Whether
reneging on the promise is legally and constitutionally
unconscionable is measured against the public law standards of
reliance, accountability and rationality. This was also how Froneman
J, in his concurring judgment, saw matters (para 83, footnotes

omitted):
“
The
substantive justification the main judgment gives for preventing a
public official from retracting a lawful promise to pay an
amount to
someone after the date for payment has passed is that it is ‘legally
and constitutionally unconscionable’
when tested against the
standards of ‘reliance, accountability and rationality’.“.
[129]
The
Court concluded that the MEC’s conduct had been legally and
constitutionally unconscionable because he had reneged on
his promise
after the due date for payment of the subsidies.  But the
broader principle established by the judgment is that
a public
official may be held to his promise at public law if it would be
legally and constitutionally unconscionable for him to
renege on his
promise. The court proceeded to evaluate the state’s conduct
against the constitutional principles of reliance,
accountability and
rationality, to conclude that its failure to keep its promise was, in
the circumstances, legally and constitutionally
unconscionable. In
addition, it found that the schools’ reliance on the first
tranche of the promised subsidy payment had
“crystallised”
into an entitlement to that payment because, by that stage, the
schools could not counteract the prejudice
of non-payment.
[130]
Here
the community relied on the promise to build and provision Khuba. Mr
Mchunu explained how he had rearranged his affairs and
decided for
his grandson, at great cost, to attend a secondary school 15
kilometres away from Nkungumathe and had made arrangements
for his
accommodation and transport.
[131]
Each
year, when the promise is remade, parents order and plan their lives:
they must determine to which secondary school they will
apply on
their children’s behalf, and be able to account for the costs
that are incurred the further away a school might
be. They cannot act
with any degree of certainty when Khuba is planned to be operational
in 2012 or 2014 or 2016 and are in no
position to counter the
prejudice they suffer at the hands of a non-performing government
department. The nature of the community’s
reliance on the
Department’s promises is such that a breaking of the promise
would be legally and constitutionally unconscionable.
[132]
Turning
to rationality, the ability of the party relying on the promise to
“tailor behaviour and expectations to a promise”
is
fundamental to the rationality standard that informs the principle of
unconscionable state conduct.
[133]
The
Court in
KwaZulu-Natal
Joint Liaison Committee
said
that “…it is impossible to tailor behaviour and
expectations to a promise made in relation to a period that has

already passed. Revoking a promise when the time for its fulfilment
has already expired does not constitute rational treatment
of those
affected by it.”
[134]
In
her discussion of the
KwaZulu-Natal
Joint Liaison Committee
judgment,
Professor Hoexter explains that the Constitutional Court “…seemed
to have in mind a very particular kind
of ‘rationality’
here:  the rule-of-law idea that official behaviour ought to be
capable of guiding citizens and
informing their plans, or what one
may call reliance-based rationality.” (See
C
Hoexter: ‘
The
Enforcement of an Official Promise:  Form, Substance and the
Constitutional Court’
(2015) 132 South African Law Journal 207
at 210).
[135]
The
breaking of the promise to build Khuba was thus, in my view,
irrational and ought to be declared to be enforceable.
THE APPROPRIATE REMEDY
[136]
With
their amended heads of argument the applicants delivered an amended
Notice of Motion. The relief is described differently,
and, they
suggest, more clearly, with no new substantial relief claimed.
[137]
The
applicants submit that If PAJA is found to apply, then the review
application was not brought within 180 days as required by
section
7(1) of PAJA.
[138]
Mr
Khan submitted that the applicants have failed to furnish
a
full and reasonable explanation for the delay which covers the entire
duration of the 180 day period from 17th January 2017 to
16th July
2017 (on the respondents’ version), alternatively from 16th
February 2017 to 15th August 2017 (on the applicants’
version)
to the date when the application was instituted. ie. 04th October
2017. He submitted additionally that the delay should
be determined
together with the consideration that the applicants have poor
prospects of succeeding in the review application and
that the
application for review should be dismissed accordingly.
[139]
It
was submitted by the applicants that the delay was not unreasonable.
They have furnished an explanation of the circumstances
leading to
the delay. That, in large measure, has been canvassed with the facts
dealt with earlier. In addition, they stress the
important factor
that the first applicant and the first respondent are organs of state
as defined in section 239 of the Constitution,
and have a duty in
terms of section 41 of the Constitution to avoid litigation. Despite
repeated requests rather to consult about
the matter and reach
agreement, the MEC never responded to these attempts to act in
accordance with the demands of the Constitution.
They accordingly
submit that the applicants should not be non-suited. Condonation is
accordingly sought in terms of section 9(1)(a)
of PAJA. To the extent
necessary, my view is that it ought to be granted.
[140]
The
decision to deregister and disestablish Khuba made in February 2017
is unlawful. It must be set aside.
[141]
In
Pheko
and Others v Ekurhuleni Metropolitan Municipality and Others (No 3)
2016 (10)
BCLR 1308
(CC) the Court said:
“
Supervisory
orders arising from structural interdicts ensure that courts play an
active monitoring role in the enforcement of orders.
In an
appropriate case, this guarantees commitment to the constitutional
values of accountability, responsiveness and openness
by all
concerned, in a system of democratic governance. By granting the
structural interdict a court secures a response in the
form of
reports and thereby prevents a failure to comply with the positive
obligations imposed by its order. Generally, the court’s
role
continues until the remedy it has ordered in a matter has been
fulfilled.”
[142]
A
structural interdict in terms whereof organs of state are ordered to
perform their constitutional obligations and in terms whereof
this
court may perform a supervisory function to ensure compliance with
and proper implementation of the order is thus competent.
In this
matter one is required.
[143]
The
HOD has acknowledged that the original decision might stand. If so,
he says the Department cannot afford to implement it. This
he
contended notwithstanding the fact that the MEC did not raise
budgetary constraints as a reason for his decision.
[144]
In
terms of the Amended National Norms and Standards for School Funding
(31 August 2006), Departments of Education are compelled
to assess
capital expenditure on an on-going basis. The following provisions
are relevant here:
“
75.
Despite the current shortage of funds for capital development, as an
aid to planning and decision-making, each PED must:
(a)
maintain
an accurate, prioritised, annually updated database of school
construction needs, and
(b)
undertake
annually updated long-term projections of new school construction
targets and funding requirements, based on these norms.
77.
The scenario planning should initially estimate the
requirements to eliminate backlogs and provide sufficient school
places by the target year 2008. This must form part of the analytical
work required for the MTEF, and should be adjusted annually
in the
light of new data and performance in new school construction.
Depending on the availability of funds each year, and construction

performance, the plan may require acceleration or deceleration.
…
.
81.
Using these criteria, the PEDs must develop a ranking of
geographical areas from neediest to least needy, based on the
numbers
of children out of school or in existing crowded schools. Backlogs
must be eliminated by starting with the neediest, most
crowded areas,
and proceeding as quickly as possible down the list of priorities.”
[145]
Whatever
the Department’s position, moving forward it must be accepted
that the construction and provisioning of Khuba must
be prioritised
and accommodated within the Department’s user management plan
and budget.
[146]
In
City of Johannesburg
Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd
and Another
2012 (2) SA 104
(CC) at para 74
the
Constitutional court addressed an argument advanced by the City of
Johannesburg that it was not obliged to go beyond its available

budgeted resources to deal with emergency housing needs, in the
following terms:
“
This
court’s determination of the reasonableness of [housing]
measures within available resources [in the present case the
right to
education which is immediately realisable] cannot be restricted by
budgetary and other decisions that may well have resulted
from a
mistaken understanding of constitutional or statutory obligations. In
other words, it is not good enough for the City to
state that it has
not budgeted for something, if it should indeed have planned and
budgeted for it in the fulfilment of its obligations.”
[147]
As
was said in
Equal
Education and Another v Minister of Basic Education and Others
[2018] 3
All SA 705
(ECB)
at
para 195, budgetary and resource constraints cannot amount to “…
a lifetime indemnity against discharging the duty
[government] owes
in terms of section 29(1)(a)” of the Constitution.
[148]
It
must be accepted that the Department is under severe resource
constraints and that as a matter of policy the allocation of budgets

and the determination of priorities resides primarily with the
Department. This, however, cannot detract from the fact that the
2010
decision was to the effect that Khuba be established, registered,
constructed and provisioned.  This is the purpose of
the
structural interdict I propose granting. It will permit the
Department the time to determine the best way forward and to report

on how and when this will be achieved.
[149]
The
relief relating to the provision of resources at the respondent
schools must also undoubtedly be granted.
[150]
As
for costs, these must follow the result. Punitive costs were
originally sought when the proceedings commenced but at the hearing

Mr
du
Toit
was content with an Order that the applicants be awarded ordinary
costs.
I
make the following Order:
1.
The
identities of the minor children referred to in the affidavits filed
of record in this matter and in this judgment are to be
kept
confidential and are not to be made public.
2.
To
the extent necessary and relevant the delay in commencing this review
is condoned.
3.
The
decision of the first respondent taken on or about 16 February 2017
to withdraw the first respondent’s earlier decision
to
establish and construct the Khuba Secondary School (“the third
respondent”) for and within the Nkungumathe community
is
reviewed and set aside.
4.
The
decision of the first respondent, made on or about 26 May 2010, to
establish the third respondent must be implemented in accordance
with
the provisions of this Order.
5.
The
first and second respondents are ordered to:
a.
provide
the necessary budgetary provisions, infrastructure, equipment,
teaching and learning materials and personnel to construct
and
provision the third respondent in order to render it a functional
school in all material respects, including, but not limited
to, those
aspects identified in paragraphs 7(a), (b) and (c) of this Order;
b.
prepare
and deliver a Management Plan setting out the time periods and
targets identified to achieve progress towards and fulfilment
of the
objects set out in is sub-paragraph 5(a) above, such Management Plan
to be furnished, under cover of an explanatory affidavit,
to this
Court and to the first applicant by no later than 31 October 2019;
c.
on
a quarterly basis thereafter, prepare written reports in affidavit
form, to be delivered to this Court and to the first applicant,
on
the progress made in the implementation of that Management Plan.
6.
Within
one month of the receipt of the Management Plan and of each of the
subsequent written reports the first applicant shall be
entitled to
deliver written comment and make written submissions to the first and
second respondents on the contents of such Plan
or report.
7.
It
is declared that the first and second respondents are in breach of
section 29(1)(a), (read with sections 9 and 10), of the Constitution

by not ensuring that learners at the fourth, fifth and sixth
respondent schools each have access to or use of:
a.
a
textbook (where the curriculum prescribes one) in every subject taken
by such learner;
b.
adequate
age and grade appropriate furniture;
c.
sufficient
classrooms.
8.
The
first and second respondents are ordered to remedy the breaches
identified in paragraph 7 of this Order without delay, but in
any
event by no later than the commencement of the 2020 school year in
respect of paragraphs 7(a) and (b) and by no later than
the
commencement of the 2021 school year in respect of paragraph 7 as a
whole.
9.
The
reports identified in paragraph 5(c) of this Order shall, at the
appropriate times, include reports indicating and detailing

compliance with paragraph 8 of this Order.
10.
After
delivery of the Management Plan and after delivery of any of the
subsequent reports, or upon a failure to deliver such Plan
or
reports, if, after attempts at meaningful engagement with the first
and second respondents concerning any issue arising out
of such Plan
or report have failed, the applicants are given leave, on three
weeks’ notice to the first and second respondents,
and on the
same papers duly supplemented, for such additional relief as may then
appear appropriate and warranted in the then prevailing

circumstances.
11.
The
first respondent is ordered to pay the costs of the application, such
costs to include the costs of two counsel.
Vahed J
CASE
INFORMATION
Date
of Hearing:

26 October
2018
Date
of Judgment:
17 July 2019
Applicant’s
Counsel:
J du Toit SC with J Raizon
Applicant’s
Attorneys:
Hurter Spies Inc
(Ref:
D J Eloff/MAT127)
Locally
represented by:
Shepstone
& Wylie Attorneys
1
st
Floor, Absa House
15
Chatterton Road
Pietermaritzburg
(Ref:
JTM/mm/HURT23954.3)
Tel:
033 355 1780
Respondent’s
Counsel:          A R
Khan
Respondent’s
Attorneys:       State Attorney,
Kwazulu-Natal
(Ref:
Ms N E Peete/ 35/002097/17/M/P1B)
Locally
represented by:
Cajee
Setsubi Chetty Inc
195
Boshoff Street
Pietermaritzburg
(Ref:
Mr A Essa/ND)
Tel:
033 345 6719