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[2008] ZASCA 48
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Head of the Western Cape, Education Department and Others v Governing Body of the Point High School and Others (584/07) [2008] ZASCA 48; 2008 (5) SA 18 (SCA); [2008] 3 All SA 35 (SCA) (31 March 2008)
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THE SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
REPORTABLE
CASE NO: 584/07
In the matter between:
THE HEAD OF THE WESTERN CAPE
EDUCATION
DEPARTMENT ... FIRST APPELLANT
JOHAN GEORGE VAN DER MERWE ... SECOND APPELLANT
JACOBUS JOHANNES SWANEPOEL ... THIRD APPELLANT
and
THE GOVERNING BODY OF THE POINT HIGH SCHOOL ...
FIRST RESPONDENT
POINT HIGH SCHOOL ... SECOND RESPONDENT
JOHANNES JACOBUS DU TOIT ... THIRD RESPONDENT
FERDINAND PIETERSE ...
FOURTH RESPONDENT
________________________________________________________________________________________________________________________________
CORAM: HOWIE P, MTHIYANE, VAN HEERDEN JJA and HURT,
KGOMO AJJA
Date of hearing:
27 FEBRUARY 2008
Date of delivery:
31 MARCH 2008
Summary: Administrative action in terms of
s 6(3)
of
the
Employment of Educators Act 76 of 1998
â review by court â
failure by decision-maker to weigh competing interests â resulting
decisions unreasonable â decisions
set aside â when court will
give directive as to decision.
Neutral citation: Head of Western
Cape Education Department v Governing Body of Point High School
(584/2007)
[2008] ZASCA 48
(31 March 2008)
____________________________________________________________________________________
JUDGMENT
____________________________________________________________________________________
HURT AJA
[1] This appeal concerns the legitimacy of two administrative
decisions made by the Head of Department ('HoD') of the Western Cape
Education Department ('the Department') to appoint a principal and a
deputy principal to the Point High School, Mossel Bay ('the
School').
On an application brought by the governing body of the School ('the
Governing Body'), the Cape High Court (Potgieter AJ)
set aside the
appointments on the basis that the HoD had fallen foul of various
provisions of
s 6(2)
of the
Promotion of Administrative Justice Act 3
of 2000
. The learned judge also made an order directing the HoD to
appoint the two candidates who had been recommended by the Governing
Body
as its first choices for the posts. He dismissed an application
for leave to appeal, but leave was subsequently granted on petition
to this court. In this judgment it will be convenient to refer to the
parties by their names rather than by their designations in
the High
Court or in these proceedings.
[2] During the second half of 2006 the School advertised for
applications to fill the posts of principal and deputy principal on
its staff with effect from 1 January 2007. The two posts were due to
become vacant as a result of the retirement of the incumbents
at the
end of 2006. The applicant candidates were sifted and short-listed by
a committee specially constituted for that purpose in
terms of a set
of directives from the Department. The short-listed candidates were
interviewed and assessed by the committee during
September and
October 2006. The interviewing and assessment procedure was,
likewise, prescribed in detail by the Department. The
committee was
required to put a series of prescribed and approved questions to each
candidate, aimed at assessing the level of the
candidate's ability in
the fields of school and classroom management, knowledge of the
curriculum and learning programmes, inter-personal
relationships,
development and implementation of new systems and teaching methods,
administration, work ethic and leadership. For
the purpose of making
quantitative assessments of these aspects, the procedure agreed upon
by the committee was that each member
of the interviewing committee
would score the candidate's performance in each of the categories,
the scores would be collated and
averaged and an aggregate for each
candidate thus arrived at. It was also specifically prescribed that
the short-listing and interviewing
processes were to be supervised by
the Department's local representative, in this case the Circuit
manager for the Mossel Bay Region,
a Mr Anthony.
[3] In so far as the selection of a principal was concerned, the
three most successful aspirants were Mr J J du Toit (the third
respondent
in this appeal), Mr J J Bester and Mr J G van der Merwe
(second appellant) who was, at that time, the acting principal,
having taken
up the post when the principal became ill during April
2006. Both Mr du Toit and Mr Bester were principals at schools in
KwaZulu
Natal. On the scoring system devised for the purposes of
comparative assessment, Mr du Toit scored 118 points out of a
possible 125,
Mr Bester 108 points and the acting principal, Mr van
der Merwe, 86 points. The names and comparative scores of the most
successful
candidates for deputy principal were Mr F Pieterse (who is
the fourth respondent in this appeal) 111 points, Mr J J Swanepoel
(third
appellant) 97 points and a Mr G J Swart, 82 points. Mr
Pieterse was employed in Wolmaransstad, North West Province. Mr
Swanepoel,
who was employed at the School, had stepped into the shoes
of Mr van der Merwe, as acting deputy principal, in April 2006 and
had
occupied that post for the remainder of the year.
[4] It is convenient, at this point, to set out the provisions of
sections 6(3) and 7(1) of the Employment of Educators Act 76 of
1998
('the EEA'), since these contain the fundamental prescriptions, both
to the Governing Body and to the HoD, as to how the selection
and
appointment procedures were to be conducted. The relevant portions of
the sections read as follow:
'(3) (a) Subject to paragraph
(m), 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 . . . 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 for registration as an educator with the
South African Council for Educators;
(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 â
(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.
(f) Despite the order of
preference in paragraph (c) and subject to paragraph (d), the Head of
Department may appoint any suitable
candidate on the list.
(g) If the Head of Department
declines a recommendation, he or she must â
(i)
consider all the applications submitted for that post;
(ii)
apply the requirements in paragraph (b)(i) to (iv); and
(iii)
despite paragraph (a), appoint a suitable candidate temporarily or
re- advertise the post.
.
. . .
7
Appointment and filling of posts
(1)
In the 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 (Act 108 of 1996), and which include the
following factors, namely â
(a)
the ability of the candidate; and
(b)
the need to redress the imbalances of the past in order to achieve
broad representation.'
It is also important, for reasons which will become apparent later,
to note that the provisions of s 6(3)(f) created a situation
with
regard to the HoD's powers of selection which was materially
different that which had prevailed prior to the amendments which
took
effect in January 2006 (in terms of amending Act 24 of 2005). The
situation until the beginning of 2006 was that the HoD was
virtually
bound to appoint the preferred candidate nominated by a governing
body.
1
Only one name needed to be submitted, and if the HoD was disinclined
to appoint the nominee, he was required to afford the governing
body
the opportunity of nominating a different candidate. Accordingly,
before January 2006, a governing body's recommendation, if
made in
good faith and without the governing body being subjected to 'undue
influence', was almost invariably implemented by the
HoD. For
practical purposes, the effect of the amended s 6(3)(f) was that the
interviewing and assessment procedure yielded a 'condensed'
short-list of three or more 'suitable candidates' and the HoD was
given a discretion to select any of these, notwithstanding the
order
of preference referred to in s 6(3)(c).
[5] Initially, after the interviews and assessments had been
completed, the members of the Governing Body took the view that only
the names of Messrs du Toit and Bester should be submitted to the
HoD. However, it is accepted that Mr Anthony persuaded them that
the
HoD would not agree to accept a list of only two 'suitable
candidates', this notwithstanding the provisions of s 6(3)(c)(ii).
Accordingly, despite reservations about the suitability of Mr van der
Merwe in comparison with the other candidates for the post
of
principal, the Governing Body submitted the names of Messrs du Toit,
Bester and van der Merwe, together with a motivated recommendation
that Mr du Toit be appointed. In relation to the post of deputy
principal, the names of Messrs Pieterse, Swanepoel and Swart were
submitted, the Governing Body's recommendation being that Mr Pieterse
be appointed.
[6] The HoD announced, on 26th November 2006, that he had appointed
Mr Swanepoel to the post of deputy principal. As this appointment
was
contrary to the Governing Body's motivated recommendation, the HoD
was asked to furnish his reasons for making the appointment.
In
response, the following letter, dated 4 December 2006, was received
from the Department:-
'
Your fax of 27 November 2006
concerning the above-mentioned is hereby acknowledged. The Western
Cape Education Department (WCED) wishes
to emphasise that the
nomination was dealt with in terms of
section 6(3)
of the
Employment
of Educators Act, 1998
, as amended, as well as the relevant
regulations with regard to the filling of advertised posts, with
special reference to the Employment
Equity Directive issued under
Circular 18/2006 of 17 September 2006.
As you are aware, there is an
over-representation of males at post level three in the WCED. The
appointment of any of the other nominees
would not have promoted or
improved the EE targets of the WCED, therefore the appointment of Mr
Swanepoel was approved.'
W
ithin the next few days
the appointment of Mr van der Merwe to the post of principal was
announced. It appears that further requests
by the Governing Body for
reasons, or for elaboration of the reasons set out in the letter of 4
December 2006, were not formally
responded to and the urgent
application to review and set aside the appointments was lodged on 21
December 2006.
[7] The Governing Body based its application for review on
contentions that the HoD's decisions were reviewable under various
subsections
of s 6(2) of the Promotion of Administrative Justice Act
3 of 2000 ('PAJA'). In the founding affidavit, Mr C Fivas, the
Chairman,
complained that the Governing Body had been in a state of
perplexity relating to the Department's references, in explanation
for
the decision, to considerations of employment equity. This
perplexity is understandable. Standing on its own, the letter of 4
December is confusing. Mr Fivas stated that he could obtain no
clarity, in subsequent telephone conversations with officials in the
Department as to how employment equity could feature as a factor in a
decision as to which of three white males to appoint, since
no
members of so-called 'designated groups' were involved.
The Basis for the HoD's Decision.
[8] In defence of the decisions, a lengthy answering affidavit with
voluminous annexures reflecting, in the main, the Department's
policies relating to employment equity, was delivered. This main
answering affidavit was deposed to by an employee of the Department,
a Mr. N A Daniels, who described himself as a 'Director: Personnel
Management (Educators)'. There were very brief confirmatory
affidavits
by various members of the Department's administrative
staff and by Messrs van der Merwe and Swanepoel. The HoD himself made
a short
affidavit in disconcertingly general terms, in which, after
confirming the correctness of the statements in Daniels' affidavit in
so far as they related to him, he went on to say: -
'3. More particularly I confirm
having appointed [Mr van der Merwe] and [Mr Swanepoel] respectively
on 12 December and 24 November
2006 in terms of
section
6(3)(f) read together with
section 7
of the
Employment of Educators
Act 76 of 1998
, as amended. I confirm that having considered all
relevant matter, and having disregarded irrelevant matter, and having
applied my
mind to submissions made to me by the [Governing Body] in
relation to its preferred candidates, and having considered the
submissions
made to me by Messrs Daniels, Kirsten, Winegard, and
other officials employed in the WCED, I decided that the second and
third respondents
were indeed suitable for appointment, and that
their appointment would enhance employment equity in the WCD in the
education sector.
4. I deny having taken unfair
administrative action in one or more of the respects alleged in
paragraph 77 of the first applicant's
affidavit. I am moreover
confident that I at all material times had regard to the paramount
interests of learners at (the School),
and I confirm furthermore that
the appointment of the second and third respondents is indeed in the
best interests of learners at
[the School]. I have no doubt that the
other educators preferred by the first applicant, ie [Messrs du Toit
and Pieterse] are also
fine educators but I considered that not only
are [Mr van der Merwe] and [Mr Swanepoel] suitable appointments
having regard to a
variety of factors (including their competence,
ability, track record and service to (the School) over a long period
of time), but
that their employment would also promote employment
equity within the WCED.'
Given that the HoD was the person who had made the challenged
decision, it would obviously have been preferable for him to give an
explicit statement of the factors which he took into account.
However, for the purposes of this judgment it is not necessary to
elaborate
on this aspect as the matter can be decided simply on the
basis that Mr Daniels has correctly reported the factors which
weighed
with the HoD in deciding to appoint Messrs van der Merwe and
Swanepoel.
[9] What emerges from Daniels' affidavit is that the main reason for
rejection of the recommended candidates was that each of them
was
employed outside the Cape province. He stated:
'
In relation to the specific
case of the appointment of (Messrs van der Merwe and Swanepoel) to
the posts of Principal and Deputy Principal
. . . respectively, in
view of the broader Employment Equity Plan of the WCED, it was
obvious that the appointment of a white male
candidate from outside
the ranks of the WCED in effect would mean adding to an already
over-represented group (in) the establishment
whilst the aim is to
reduce the numbers of that specific group, i.e. white males. By
contrast, should a person from within the ranks
of the WCED be
appointed, it does not worsen the situation, and in effect it creates
another opportunity (where a vacancy now arises)
to afford a
designated person a chance of appointment, thus promoting equity. . .
. . Accordingly, in applying his mind to the matter,
(the HoD) took a
decision to appoint (Messrs van der Merwe and Swanepoel) thus
promoting broader equity in the WCED.'
What also emerges from
the answering affidavits is the distinct probability that this
approach only evolved during the discussions
referred to by the HoD
which took place subsequent to the receipt of the Governing Body's
recommendations. Certainly, Mr Anthony
did not mention to the
Governing Body before the recommendations were made, that white male
candidates from outside the Province
were at a distinct disadvantage
because of the employment equity policy.
2
If the Department, and the HoD in particular, held this view before
the selection process commenced, but Mr Anthony failed to disclose
it
to the interviewing committee or the Governing Body, then I think
that the decisions may well be reviewable on the basis that
they were
procedurally unfair as contemplated in
s 6(2)(c)
of PAJA. This issue
was not canvassed in argument and, for the purposes of this judgment,
I will accordingly assume, in favour of
the appellants, that it was
only when the recommendations to appoint candidates from outside the
Province were submitted to the HoD
that these employment equity
consequences were considered for the first time. The crisp question
is whether they were relevant to
the HoD's decision and whether it
was proper for him to have taken them into account.
[10] The appointments made by the HoD were plainly the result of
'administrative action' as defined in
s 1
of PAJA.
3
The empowering provisions were those set out in
s 6(3)
of the EEA.
The decision-making process contemplated in the section is a
dichotomous one. 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
s 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
s 6(3)(e)
to reject the governing body's recommendation as a
whole and to proceed in terms of
ss 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
ss 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'.
4
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 factor or factors and
less to others. If that struck by the decision-maker is reasonable,
then it must stand.
5
The significance of my reference to a 'dichotomous procedure' is
that, if he considers that the governing body has performed its
functions properly, the HoD must obviously attribute substantial
weight to the recommendations submitted to him. He is called upon
to
decide upon the appointment of a person from a list of people about
whom he may have no personal knowledge. The governing body
of such a
school, constituted (in terms of the South African Schools Act)
mainly by elected representatives of parents and staff,
would
naturally be expected to have a reliable comparative picture of the
various candidates and their suitability for appointment
at the
school. Its choice and recommendation would obviously be
better-motivated, and more reliable, than any that the HoD could
make
in the circumstances. While it is quite correct that he has a
specified discretion to disregard the governing body's motivated
recommendation and even its order of preference, he must clearly
exercise this discretion in a manner which conforms to the statutory
requirements of fair administration in the Constitution and in PAJA
and also, in general, with the Department's policy.
[11] I think it is fair to say that the main grounds advanced in the
answering affidavits to justify the HoD's decisions are as follows:-
(a) the Governing Body had misconstrued the meaning and effect of the
amendment to s 6(3) and in particular the change in scope of
the
discretion conferred on the HoD by the new s 6(3)(f);
(b) the Governing Body's comparative assessment of the respective
suitability of the various candidates was flawed because there
were
clear indications of subjective bias on the part of certain members
of the interviewing committee, demonstrated by the divergence
in the
scores allocated by them;
(c) the mere fact that the Governing Body had submitted the names of
Mr van der Merwe and Mr Swanepoel in its lists meant that they
were
regarded as 'suitable candidates' and the Governing Body could not
ex
post facto
be heard to say that any of them was not suitable;
(d) in any event, both Messrs van der Merwe and Swanepoel had proved
their worth between April and December 2006 by performing their
functions satisfactorily;
(e) in the light of the above, it was justifiable to give priority to
considerations of employment equity in deciding which candidates
to
appoint.
The Scope of the HoD's Discretion
.
[12] With regard to the HoD's contention in (a), above, to the effect
that the Governing Body misconstrued the scope of the HoD's
'new'
discretion, it actually seems that the boot is on the other foot. The
contentions on behalf of the HoD both in the answering
affidavits and
in argument by counsel were to the effect that there was now no
longer an onus on the HoD to make an appointment in
conformity with
the Governing Body's recommendation or, indeed, its list containing
its order of preference. It would be wrong, so
the contention ran, to
require the HoD to justify his decision to appoint anyone other than
the recommended candidate. The contention
that the amendment to the
EEA broadened the scope of the HoD's discretion is obviously correct.
But the contention that this wider
scope excused him from having to
furnish acceptable reasons for his decision is not. The duty to
justify the exercise of a discretion
such as this arises directly
from s 5 of PAJA and this duty has nothing to do with the scope of
the discretion itself. That the HoD
considered that he was free,
under the provisions of the amended section, to disregard the
Governing Body's recommendation in favour
of considerations of
employment equity, is clear. In taking this view he failed, signally,
to perform the balancing exercise referred
to in
Bato Star
by
weighing the (somewhat obscure) employment equity considerations
which had occurred to him, against the disparity in ability and
suitability between the candidates recommended by the Governing Body
and the candidates whom he decided to appoint.
[13] As to the matters mentioned in (b), (c) and (d) of para 11, I
can be brief. First, it did not lie in the mouth of the HoD to
criticise the basis of the Governing Body's assessment of the
candidates as a means of justifying his own decision. The assessment
had been carried out in terms of the Department's instructions and
under the general supervision of the Department's Circuit Manager.
If
the HoD had qualms about the propriety of the procedures adopted, his
only course was to decline to make an appointment in terms
of s
6(3)(e). Once he embarked upon the task of choosing a candidate for
appointment, he was bound to accept that the recommendations
before
him were validly made. As far as (c) is concerned, the HoD seized
upon the fact that Mr van der Merwe's name appeared on the
Governing
Body's list. His conclusion that this necessarily meant that the
Governing Body was putting Mr van der Merwe forward as
a suitable
candidate is somewhat naive. Accepting, for the moment, that the HoD
was unaware of the exchange between Mr Anthony and
the Governing Body
on the issue of the inclusion of Mr van der Merwe's name on the list,
the view allegedly taken by the HoD involves
ignoring the very
significant disparity between the assessed suitability of Mr van der
Merwe compared with Messrs du Toit and Bester.
Similar considerations
apply in relation to Messrs Swanepoel and Pieterse. Although the
difference of 14 points between these two
candidates was not nearly
as marked as that in the case of the candidates for the principal's
post, it was nevertheless substantial
and there would have to have
been weighty considerations for deviating from it for the purpose of
making an appointment. As to (d),
the papers reflect a difference of
opinion in regard to the performance of Messrs van der Merwe and
Pieterse in their acting capacities
during 2006. What is beyond
dispute, however, is that the Governing Body genuinely took the view
that its preferred candidates were
capable of performing their
respective functions more effectively than Messrs van der Merwe and
Pieterse. There would also have had
to be weighty considerations
necessary to justify the sacrifice of superior performance which the
HoD's decision entailed.
[14] It follows, from what I have set out in the previous paragraph,
that the considerations of employment equity which, according
to the
HoD, were regarded as outweighing the other factors relevant to his
decision, should necessarily have been weighty indeed.
In fact they
were not. In the first place it is apparent that the HoD overlooked,
or misunderstood, or failed to apply an important
provision of the
Department's own policy concerning the role of employment equity in
the making of appointments.
6
The passage to which I refer reads as follows:-
'The recruitment, selection and
appointment procedure will be utilized to achieve the goals of
representitivity. The following will
be used to create vacancies in
the department in line with the objectives of the Employment Equity
Plan:
natural staff turnover
(resignations, retirements, dismisssals, etc)
transfers and promotions;
expansion of the department;
restructuring of the public
service.
All
appointments will, however, be based on the inherent requirements of
the position. However, where an insignificant gap between
possible
candidates exists in terms of merit/performance, preference will be
given to an employee from a designated group, should
the appointment
contribute to the improvement of the representation of specific
designated groups.'
It seems that the word 'insignificant' may have been unfortunately
chosen, but it must obviously be construed in its context and
bearing
in mind the fundamental principles of employment equity. A difference
in actual ability between two candidates where one
is from a
so-called 'designated group', though marked, may be rendered
insignificant by the potential of the candidate from the designated
group. In other words the benefit of employing such a candidate may
only become perceptible with training and experience. I do not
intend
to embark upon an analysis of what precisely is meant by
'insignificant' in this particular passage, but the general intention
behind the precept is plain. Employment equity provisions should only
prevail in circumstances where there is approximate equality
between
the ability or potential ability of the two candidates. Counsel for
the appellants sought to avoid the effect of this passage
by
contending that it was only applicable in situations where there was
direct competition for appointment between candidates, one
of whom
was from a 'designated group'. That may possibly be so, but I think
that the effect of the policy applies
a fortiori
to a case
such as the present, where all of the candidates were white males. In
such a situation, if the differences in suitability
between them were
appropriately small, the HoD
may
(I express no firm view on
this) have been justified in appointing a governing body's second or
third choice on the basis that such
an appointment would leave a
vacancy in the Province which would open the way to employment of a
person from a designated group in
the appointee's place. But that is
a purely hypothetical situation. In making both appointments in this
case, the HoD ran roughshod
over the significant disparities in
suitability and effectively sacrificed the interests of the School on
the altar of employment
equity â and 'contingent employment equity'
at that.
7
[15] Potgieter AJ found, on separate bases, that the HoD's decisions
were impugnable under the provisions of s 6(2)(f)(ii) and 6(2)(h)
of
PAJA. Of course, the second of these includes within its broad ambit
situations where the first is applicable.
8
A decision which has no objectively rational connection to the
purpose of the empowering provisions must necessarily be one which
no
reasonable decision-maker could make, but an unreasonable decision
may not necessarily be so because of irrationality. While I
might be
inclined to agree with Potgieter AJ that the HoD's decision to make
contingent provision for increasing the proportion of
persons from
designated groups in the senior echelons of the teaching staff was
not a rational method of achieving the purposes of
the EEA and
Department Policy, I would prefer to base my conclusion that the
decision should be set aside on the broad ground of
unreasonableness
as contemplated in s 6(2)(h). In my view the HoD proceeded with out a
proper understanding of the scope of the discretion
which he was
called upon to exercise. He disregarded the necessity of actually
weighing the equity considerations to which he sought
to give effect,
against the interests of the Governing Body and the School (including
its pupils) to have the benefit of improved
ability in the teaching
staff. In doing so he omitted to reach a reasonable equilibrium
between these interests, rendering his decision
reviewable on the
basis described in
Bato Star.
[16] Potgieter AJ decided not to remit the matter to the HoD for
reconsideration. He said:
â
As indicated, the only reason for not appointing
first applicantâ is preferred candidates was first respondentâs
erroneous belief
that it was justified to make an appointment from
the ranks of his existing employees in order somehow to advance
employment equity.
But for this error, it is quite apparent that the
first respondent, acting rationally and reasonably as required by the
provisions
of PAJA, would have appointed the candidates who were
properly assessed to be best suited for the appointment.
It is obviously in the best interests of all parties
concerned, that the situation at the second applicant should be
regularised without
any further delay in view of the fact that the
academic year has well advanced. Little purpose would accordingly be
served by referring
the matter back to the first respondent to be
dealt with
de novo
.â
While it is trite that a court should always be chary of obtruding
its views and decisions into an administrative system when it
considers that there has been reviewable action, this is clearly a
case where the learned judgeâs approach was justified. Counsel
for
the respondents informed us that, due to the very passage of time
referred to by Potgieter AJ, Mr du Toit is no longer available
for the appointment. However, counsel confirmed that the Governing
Body still holds the view that, in the absence of Mr du Toit,
Mr Bester should be appointed. We were also assured that Mr Bester is
still available and willing to accept the appointment and that
it is
crucial for a decision to be made which will dispose of the
uncertainty which the Governing Body and the School have had to
face
over the past 14 months. Counsel for the appellants attempted to
persuade us that it was neither desirable nor competent for
this
court to make a directive as to the appointments, especially that of
Mr Bester who has not been joined in these proceedings.
Counsel did
not identify any prejudice which might be occasioned to anyone
arising out of the non-joinder of Mr Bester, and there
is no
substance in this or the other contentions put forward by counsel
against the proposal that this court should effectively make
the
appointment which should have been made by the HoD.
[17] The appeal is dismissed with costs, such costs to include those
occasioned by the employment of two counsel.
2. The order made by the court
a quo
is confirmed, save that
para (b) is amended to read:
âThe first respondent is directed to appoint Mr J J Bester as
principal and Mr F Pieterse as deputy principal.â
________________________
N V HURT
ACTING JUDGE OF APPEAL
CONCUR: ) HOWIE P
) MTHIYANE JA
) VAN HEERDEN JA
) KGOMO AJA
1
The
original s 6(3) provided that the HoD could only decline to give
effect to the recommendation in specific circumstances, viz
failure
by a governing body to follow the prescribed procedure, the
candidate not complying with minimum requirements for appointment
or
not being registered, proof of bias on the part of the governing
body and a failure by the governing body to have regard to
the
provisions of s 7(1).
2
Mr
Daniels states: 'Mr Anthony also denies that he would have given any
directions during the selection process regarding employment
equity.
As Mr Anthony did not know what the (Governing Body) would do, or
ultimately recommend, Mr Anthony did not discuss the
issue of the
appointment of two white males from outside of the Western Cape.'
3
'
Administrative
action'
means any decision taken, or any failure to take a
decision, by-
(a) . . .
(b) a natural or juristic person,
other than an organ of state, when exercising a public power or
performing a public function in
terms of an empowering provision,
which adversely affects the rights of
any person and which has a direct, external legal effect . . .'
4
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs
[2004] ZACC 15
;
2004
(4) SA 490
(CC) paras 45 and 49.
5
Loc
cit.
6
This
policy, updated to September 2006, is set out fully in a document
entitled ' Policy Implementation Directive for Compliance
with
Employment Equity Targets at Education Institutions', annexed to the
answering affidavit. The passage quoted is from the section
dealing
with the appointment of educators and headed ' Addressing
Representation'. The document is also referred to in the letter
of 4
December 2006 in para 6, above, as constituting the 'regulations'
with regard to the filling of advertised posts.
7
As
pointed out by Potgieter AJ, all that the HoD achieved by choosing
appointees from within the Province was to create vacancies
in the
vacated posts. The HoD had not shown that these would inevitably
have been filled by persons from designated groups.
8
Cf
Trinity Broadcasting v ICA
of SA 2004(3)SA 346 (SCA) paras 20 and 21.