Scheepers v School Governing Body, Grey College Bloemfontein and Others (Suid-Afrikaanse Onderwys-Unie Intervening) (2612/2018) [2018] ZAFSHC 210 (6 September 2018)

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[2018] ZAFSHC 210
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Scheepers v School Governing Body, Grey College Bloemfontein and Others (Suid-Afrikaanse Onderwys-Unie Intervening) (2612/2018) [2018] ZAFSHC 210 (6 September 2018)

IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case No.: 2612/2018
In
the matter between:-
DEON
SCHEEPERS
Applicant
and
THE
SCHOOL GOVERNING BODY, GREY COLLEGE
BLEOMFONTEIN
1
st
Respondent
THE
MEC: DEPARTMENT OF EDUCATION, FS PROVINCE (N.O.)
2
nd
Respondent
JURIE
GELDENHUYS
3
rd
Respondent
THE
NATIONAL MINISTER OF EDUCATION
(N.O.)
4
th
Respondent
SUID
AFRIKAANSE ONDERWYS UNIE
Intervening
Party
CORAM:
MUSI, AJP
et
VAN ZYL, J
HEARD
ON:
20 AUGUST 2018
JUDGMENT
BY:
MUSI, AJP
DELIVERED
ON:
06 SEPTEMBER 2018
[1]
When power, competency or authority is not properly delineated,
circumscribed or exercised, dysfunctionality will reign supreme.

Schools are not exempt from this truism.  Schools need to pay
careful attention to these issues if the democratisation and

participatory management of schools are to survive.  A
partnership such as that envisaged for public schools in the South

African Schools Act
[1]
(the
Act) can only flourish when there is mutual respect, trust and
cooperation.
[2] In
Welkom
and
Harmony
[2]
the
Constitutional Court said the following:
“
Given
the nature of the partnership that the Schools Act has created, the
relationship between public school governing bodies and
the State
should be informed by close cooperation, a cooperation which
recognises the partners’ distinct but interrelated
functions.
The relationship should therefore be characterised by consultation,
cooperation in mutual trust and good faith.
The goals of
providing a high quality education to all learners and developing
their talents and capacities are connected to the
organisation and
governance of education. It is, therefore, essential for the
effective functioning of a public school that the
stakeholders
respect the separation between governance and professional
management, as enshrined in the Schools Act.”
[3]
[3]
This case is about whether the School Governing Body, as one of the
partners, adhered to the qualities and values mentioned
by the
Constitutional Court, in
Welkom
and
Harmony
,
in its interaction with the principal.
[4]
The applicant is the principal of Grey College Secondary School since
1 January 2013. The first respondent is the governing
body of Grey
College. It serves both Grey College Secondary School and Grey
College Primary School. The second respondent is the
Member of the
Executive Council: Education, Free State Province. The third
respondent, Mr. Geldenhuys, is the principal of Grey
College Primary
School. The fourth respondent is the Minister of Basic Education.
[5]
The applicant approached this Court, on an urgent basis, seeking the
following relief:
“
1.
The applicant’s failure to adhere to this court’s rules
related to time periods and service is condoned and
the application
is heard as an urgent application in terms of Rule 6(12).
2. The decisions taken by
the Grey College Secondary School’s governing body at a special
meeting of 15 May 2018, as set out
in Annexure “A” hereto
and to the effect that:
2.1 All delegated
governing body powers are recalled from Mr Scheepers (the applicant);
2.2 Mr Jurie Geldenhuys
is appointed as interim school manager to manage all school
activities with the exception of teaching and
learning on behalf of
the governing body;
are hereby reviewed and
set aside alternatively declared to be unlawful and of no force and
effect…
4.
Costs of suit including the costs of two counsel against the
respondent and any respondent who opposes the order (jointly and

severally in such instance).”
[6]
The first respondent not only opposed the application but it also
launched a counter-application, which it amended to become
a
conditional counter application.  In essence, the
counter-application is conditional upon this court finding that a
school
governing body has no express or implied authority to delegate
any of its functions to a school principal such as the applicant.

In that case, the first respondent seeks an order declaring its
decision to delegate any of its statutory functions or powers
contained in the Act, to the applicant, whether impliedly or
expressly, unlawful and invalid.  Alternatively, that the first

respondent’s unlawful decision to delegate any of its statutory
functions or powers in the Act, to the applicant, whether
impliedly
or expressly, be reviewed and set aside, in terms of section 6(2) of
the Promotion of Administrative Justice Act.
[4]
[7]
The Suid Afrikaanse Onderwys Unie (SAOU), a registered trade union in
the education sector that represents 36,000 members, including
the
applicant, applied to intervene as a party to these proceedings.
It sought the following relief:
“
1.
That, insofar as necessary, the intervening party’s failure to
comply with prescribed rules pertaining to form, process
and time
periods for filing of papers and service of process be condoned;
2. That leave be granted
to the intervening party to intervene in the main and counter
application under civil case number: 2612/2018
and the affidavit
filed in support of this affidavit (sic) be allowed in support of the
following relief:
2.1 That the decisions
taken on 15 May 2018 and given effect to on 16 May 2018, as per
annexure “A” to the applicant’s,
in the main
application, notice of motion be reviewed and set aside as prayed for
by the applicant; and
2.2  Alternatively:
2.2.1  that it be
declared that the management functions which forms the subject matter
of the decision set out in annexure
“A” to the
applicant’s notice of motion, forms part of the professional
management of the school and cannot be
retracted from the principal
or delegated to another person by the school governing body of a
school and is
ultra vires
;
2.2.2 that the purported
decision to retract the functions of the principal is void
ab
origine
, alternatively unlawful and set aside;
3. That the costs of the
intervention application form part of the costs of the main
application, alternatively that such party
who opposes the
intervention application pays the costs of the application, including
the costs of two counsel;
4.
That in the event of the intervening party being successful in the
main application, the court orders its costs to be paid by
the
unsuccessful party or parties, including costs occasioned by the
employment of two counsel…”
[8]
The first respondent opposed the application to intervene. It
requested that some of the allegations in the union’s founding

affidavit be struck out on the basis that they are irrelevant. After
hearing the parties, we granted the application to intervene
and
dismissed the striking out application.  We reserved the costs
issue for later adjudication.  These are the reasons
for those
orders.
[9]
The union’s members comprises of employees and educators in the
education sector.  The applicant and a number of
other
principals are members of the union.  The union contended that
the stance taken by the first respondent, that it has
the power to
denude principals of their power and authority, directly and
materially affect the interests of its members who are
principals and
any member who has aspirations of becoming a principal.
[10]
It contended that the powers that were purportedly retracted by the
first respondent in terms of its decision, do not fall
within the
exclusive domain of the first respondent and it was therefore not
entitled to retract it.
[11]
The first respondent contended that the union does not have any
standing because it is a trade union and its functions should

therefore be limited to representing its members in labour relations
disputes in terms of the Labour Relations Act
[5]
.
It further contended that the union failed to indicate what its cause
of action was and whether it relies on PAJA or the
principle of
legality.
[12]
In
SA
Riding for the Disabled Association v Regional Land Claims
Commissioner
[6]
the
Constitutional Court reaffirmed the applicable test and principles as
follows:
“
[9]
It is now settled that an applicant for intervention must meet the
direct and substantial interest test in order to succeed.
What
constitutes a direct and substantial interest is the legal interest
in the subject-matter of the case which could be prejudicially

affected by the order of the court. This means that the applicant
must show that it has a right adversely affected or likely to
be
affected by the order sought. But the applicant does not have to
satisfy the court at the state of intervention that it will
succeed.
It is sufficient for such applicant to make allegations which, if
proved, would entitle it to relief.
[10]
If the applicant shows that it has some right which is affected by
the order issued, permission to intervene must be
granted. For it is
a basic principle of our law that no order should be granted against
a party without affording such party a
predecision hearing. This is
so fundamental that an order is generally taken to be binding only on
parties to the litigation.”
[13]
In
AfriForum
and Another v University of the Free State
[7]
it
was said that:
“
The
generosity or liberality of our standing provisions does not mean
that standing is there for the taking.  On the contrary,
closer
scrutiny is always called for, especially when standing is not
apparent from the nature of the party, its interest in or

relationship with the issues and the explanation offered to support
standing.  And courts ought to be circumspect in affording

standing to similarly-positioned parties where the grounds for
standing are weak. They must first be satisfied that factors are

relevant to determining whether a person is genuinely acting in the
interests of a group, that has legal interest in the matter,
have
been shown to exist…”
[8]
[14]
In terms of the union’s constitution its objectives are,
inter
alia, to
:
1.
establish a politically non-aligned and
independent union, which will promote and protect the collective
interests of its members
at all levels within any existing or future
labour relations dispensation;
2.
promote the interests of its members;
3.
promote, support or resist proposed
legislative or other measures, which affect the interests of its
members;
4.
strengthen educators in the discharge of
their professional duties and to assist them to guide learners and to
prepare them to be
responsible citizens in a democratic State;
5.
do everything within the power of the SAOU
to accomplish its objectives and to serve the general welfare and
interests of the members
in particular and of the teaching profession
in general;
6.
make a contribution to the accountable
development of education, legislation and education policy.
[15]
It is abundantly clear from the objectives of the union that it is
indeed a very important stakeholder in the education sphere.
It has
principals of public schools as its members and the applicant is one
of them. The relationship between a principal and the
school
governing body of a public school is of importance to it.  This
case is about that relationship.  The order in
this matter will
have a direct impact on other principals of public schools.
[16]
In any event, the union has standing in terms of section 38(e) of the
Constitution of the Republic of South Africa
[9]
which
states that:
“
Anyone
listed in this section has the right to approach a competent court,
alleging that a right in the Bill of Rights has been
infringed or
threatened, and the court may grant appropriate relief, including a
declaration of rights. The persons who may approach
a court are…an
association acting in the interest of its members.”
The
right implicated in this case is the right to administrative action
that is lawful, reasonable and procedurally fair.
[10]
There
is no doubt that the union has a direct and substantial interest in
the subject matter of this case. I now turn to deal with
the Uniform
Rule 6(15) application.
[17]
Rule 6(15) provides:
“
The
court may on application order to be struck out from any affidavit
any matter which is scandalous, vexatious or irrelevant,
with an
appropriate order as to costs, including costs as between attorney
and client.  The court may not grant the application
unless it
is satisfied that the applicant will be prejudiced if the application
is not granted.”
[18]
The first respondent’s ground for the ‘striking out’
application is that the affidavit contains irrelevant
matter. The
first respondent must also show that it will be prejudiced if the
impugned matter is not struck out.  Although
some of the
allegations in the union’s affidavit is repetitive in order to
bolster its point, I am not satisfied that the
applicant will be
prejudiced thereby. The union, in the circumstances of this case, had
to set out the factual matrix in order
to point out what it contends
the law ought to be on the issue. In as far as it repeated some of
the facts, it is clear that its
case differs from that of the
applicant on the reasons why the decision has to be reviewed and set
aside.
[19]
The first respondent’s complaint that the union does not
expressly plead whether it seeks to have the impugned decision

reviewed and set aside on the grounds of PAJA or legality is also
misplaced. The union clearly attacks the lawfulness of the decision

from the perspective that the first respondent is not empowered by
the Act to retract the functions which it purported to do from
the
principal’s competencies. It contended that the first
respondent’s decision is
ultra
vires
and unlawful. It also contended
that the school governing body may delegate its functions to the
principal only. In my view, nothing
turns around this point of the
first respondent. It is clear that the union based its case on PAJA
alternatively legality. It is
for these reasons that we granted the
application to intervene and dismissed the striking out application.
It is now time to consider
the other preliminary points taken by the
first respondent. That exercise must, however, be preceded by setting
out the factual
matrix.
[20]
The members of the first respondent were elected on 16 March 2018.
Some of them had been members of a differently constituted
Grey
College School Governing Body (SGB). There were already tensions
between some members of the SGB, notably its chairperson,
and the
applicant when it, as currently constituted, resumed office.
[21]
On 3 May 2018, the first respondent’s Executive Committee
issued a notice to SGB members to attend a special meeting
on 15 May
2018. The notice indicated that the only point on the agenda would be
the retraction of the rights and duties delegated
to the applicant by
the first respondent.
[22]
The applicant wrote various emails to the chairperson of the first
respondent wherein he enquired what powers it intended withdrawing.

The applicant indicated that he wanted to prepare himself in order to
make a positive contribution during the meeting. He intimated
that he
was not aware of any rights and responsibilities that were delegated
to him.
[23]
The chairperson responded to all the correspondence. He ultimately
indicated to the applicant that certain rights and responsibilities

were delegated to him in terms of the Act and that he was not
prepared to set out those rights and responsibilities because the

applicant was aware of the provisions of the Act.  He also
informed the applicant that there are certain functions that he

exercised that are not stipulated in the Act. He pointed out that
those functions were delegated to the applicant, expressly or

tacitly, by the first respondent.  The applicant indicated that
according to him, he exercised all his functions in terms
of the Act.
[24]
During the special meeting the chairperson informed the members about
the purpose of the meeting and that he had compiled a
list of
incidences which would demonstrate that the trust relationship
between the SGB and the principal has broken down. The applicant
was
accused of many indiscretions and misconduct. He requested, on
numerous occasions, time to prepare himself on the accusations,
but
these requests were denied. The chairperson painstakingly put all the
allegations to the applicant and he was requested to
answer thereto.
Despite his protestations of being unprepared, he was subjected to
cross-examination by some of the members
of the first respondent.
[25]
After the unnecessary laborious process the first respondent
concluded that the trust relationship between it and the applicant

had broken down. This decision was preceded by a secret ballot
conducted by members of the first respondent. They voted 14-3 in

favour of the motion that the powers, rights and privileges delegated
by the first respondent to the applicant be withdrawn with
immediate
effect. The first respondent decided to appoint the principal of Grey
College Primary School as the school manager of
Grey College
Secondary School and to inform the school community about its
decision.
[26]
On 16 May 2018 the first respondent issued the following notice:
“
Drastic
management decision following breakdown of trust between Grey College
governing body and school principal
Dear
Parent /Old Grey
The
relationship of trust between the school governing body of Grey
College and the secondary school principal, Mr Deon Scheepers,
has
irretrievably broken down and all efforts to resolve the issue were
unsuccessful.  For this reason the governing body
has decided on
15 May 2018 to recall all delegated governing body powers from Mr
Scheepers.
At a
public school such as Grey College the principal is an employee of
the Provincial Education Department.  The South African
Schools
Act determines that a school principal is responsible for teaching
and learning activities at a school.  The principal’s
duty
as employee of the Education Department is therefore to “manage”
academic activities at the school.  All
other functions, rights,
duties and powers exercised by a principal are delegated to him by
the governing body, and he is required
to report on all these matters
to the governing body.  While the Schools Act places the
responsibility of education management
on the principal, he is still
required to report back to the governing body in this regard as well.
The
governing body’s primary aim is to create an environment where
quality education can take place.  However, when the
governing
body has lost confidence in the principal this is no longer
possible.  This drastic measure was taken because the
governing
body always acts in the best interests of the school, and especially
the learners and teachers.
The
governing body also decided to appoint Mr Jurie Geldenhuys as the
interim school manager to execute these delegated functions
until a
long-term solution can be implemented.  This implies that Mr
Geldenhuys will manage all school activities, with the
exception of
teaching and learning, on behalf of the governing body.  The
aforementioned includes the following:
1. The management of the
school finances to the extent that those powers do not specifically
vest in the school principal in terms
of the Schools Act 84 of 1996;
2.   Management of
the extra-curricular activities, like sport and culture;
3.   Management of
the school campus and assets, including the hostels;
4.   Management of
the personnel, where they are not performing academic functions;
5.   Communication
and liaison, internally and externally;
6.   Representing
the school at all non-academic forums, for example the Reunie;
7.   Internal and
external liaising;
8.   Management of
the school’s ethos, mission, values and spirit within school
context;
9.
Management of discipline.
Mr
Scheepers, as an employee of the Free State Education Department,
will continue with his professional duty as school principal,
limited
to only those powers assigned to him in terms of the Schools Act.
This
decision was not taken lightly but we can assure you that we acted
exclusively in the best interests of each boy, teacher and
Old Grey…”
[27]
On 16 May 2018, the applicant instructed his attorney to request
reasons for the decision. The first respondent’s attorneys

responded that the breakdown in trust is the only reason why the SGB
resolved to withdraw its delegated functions.  Supplementary

reasons were later furnished for the decision.
[28]
The issues to be decided in this matter are as follows:
1. Urgency;
2. Non-joinder;
3. Pre-maturity;
4. Whether the SGB may
delegate any of its functions;
5. Whether the SGB may
retract its delegated functions;
6. Whether the decision
of the SGB was administrative action;
7. If so, whether the
decision withstands section 6 of PAJA scrutiny; and
8. If
not, whether it should be reviewed based on the legality principle.
[29]
The first respondent conceded that the issue of urgency has been
overtaken by events and that it is no longer a live issue.

Nothing more needs to be said about this issue.
[30]
The first respondent contended that the non-joinder of the Head of
Department of the Free State Department of Education (HoD)
is fatal
and the application should be dismissed on this ground.  The
applicant as well as the intervening party contended
that it is not
fatal.
[31] A
party must be joined in proceedings if that the party has a direct
and substantial interest in any order the court might
issue or where
an order cannot be effected without prejudicing such party. In
Judicial
Service Commission v Cape Bar Council
[11]
it
was said:
“
It
has by now become settled law that the joinder of a party is only
required as a matter of necessity - as opposed to a matter
of
convenience - if that party has a direct and substantial interest
which may be affected prejudicially by the judgement of the
court in
the proceedings concerned… The mere fact that a party may have
an interest in the outcome of the litigation does
not warrant a
non-joinder plea.  The right of a party to validly raise the
objection that other parties should have been joined
to the
proceedings, has thus been held to be a limited one…”
[12]
[32]
It has been said that the right to demand joinder is limited to
specified categories of parties such as joint owners, joint

contractors and partners and where the other party has a direct and
substantial interest in the issues involved and the order which
the
court might make.
[13]
This
is so because a court may not make findings adverse to any person’s
interest, without that person first being a party
to the proceedings
before it.
[14]
[33]
The applicant and the intervening party accepted that the HoD may
have an interest in the outcome of this litigation.
They
however contended that in the circumstances of this case there was no
need to cite the HoD.  They argued that the HoD
as an organ or
servant of state does not have a direct and substantial interest that
may be prejudicially affected by the judgment
of this court in these
proceedings.
[34]
Although it is preferable and advisable that the HoD should be cited
in matters where his or her power to appoint an educator
is
implicated or where a principal’s statutory power to act on
behalf of the HoD is implicated, his non-joinder in this case
is not
fatal.
[35]
I say this because the Member of the Executive Council (MEC)
responsible for education in the Free State Province as well as
the
Minister of Basic Education have been cited. The MEC is responsible
for the education portfolio in this province.  He
is the
executive authority of the Department of Education of this province.
[36]
Section 2 of the State Liability Act
[15]
provides
as follows:
“
(1)
In any action or other proceedings instituted against a department,
the executive authority of the Department concerned must
be cited as
nominal defendant or respondent.
(2) The plaintiff or
applicant, as the case may be, or his or her legal representative
must –
(a)
after any court process instituting proceedings and in which the
executive authority of a department is cited as nominal defendant
or
respondent has been issued, serve a copy of that process on their
department concerned at the head office of the Department…”
[37]
The executive authority of the Free State Education Department has
been joined in these proceedings and the papers were properly
served
on him.  He is responsible for all provincial functionaries
within the Provincial Department of Education, including
the HoD. The
HoD’s interests and those of the MEC and the Minister are
inextricably linked. In
Ermelo
[16]
the
Constitutional Court said that the provincial government acts through
the MEC for Education who bears the obligation to establish
and
provide public schools and, together with the Head of the Provincial
Department of Education, exercises executive control over
public
schools and principals.
[17]
They
act in tandem.
[38]
The HoD is aware of these proceedings and has knowledge of the relief
which the applicant and the union seek regarding the
impugned
decision.  As a matter of fact, he agreed with the contentions
of the applicant.  In my view the failure to
cite the HoD
separately in these proceedings does not constitute fatal
non-joinder.
[39]
The first respondent contended that the application ought to be
dismissed because there was non-compliance with section 41
of the
Constitution. It also contended that the application is premature
because it violates the principle of cooperative governance
and
meaningful engagement envisaged by the partnership model in the
Schools Act.
[40]
Section 41 of the Constitution provides:
“
(
1)
All spheres of government and all organs of state within each sphere
must-
(
a)
preserve the peace, national unity and the indivisibility of the
Republic;
(
b)
secure the well-being of the people of the Republic;
(
c)
provide effective, transparent, accountable and coherent government
for the Republic as a whole;
(
d)
be loyal to the Constitution, the Republic and its people;
(
e)
respect the constitutional status, institutions, powers and functions
of government in the other spheres;
(
f)
not assume any power or function except those conferred on them in
terms of the Constitution;
(
g)
exercise their powers and perform their functions in a manner that
does not encroach on the geographical, functional or institutional

integrity of government in another sphere; and
(h) co-operate with one
another in mutual trust and good faith by-
(i) fostering friendly
relations;
(ii) assisting and
supporting one another;
(iii) informing one
another of, and consulting one another on, matters of common
interest;
(iv) co-ordinating their
actions and legislation with one another;
(v) adhering to agreed
procedures; and
(
vi)
avoiding legal proceedings against one another.
(
2)
An Act of Parliament must-
(
a)
establish or provide for structures and institutions to promote and
facilitate intergovernmental relations; and
(
b)
provide for appropriate mechanisms and procedures to facilitate
settlement of intergovernmental disputes.
(
3)
An organ of state involved in an intergovernmental dispute must make
every reasonable effort to settle the dispute by means of
mechanisms
and procedures provided for that purpose, and must exhaust all other
remedies before it approaches a court to resolve
the dispute.
(
4)
If a court is not satisfied that the requirements of subsection (3)
have been met, it may refer a dispute back to the organs
of state
involved.”
[41]
The Intergovernmental Relations Framework Act
[18]
(Framework
Act) is one of the acts that give expression to section 41(2) of the
Constitution. The Framework Act’s application
is limited.
Section 2 thereof states the following:
“
(1)
This act applies to –
(a)  the national
government;
(b)  all provincial
governments; and
(c) or local governments.
(2)  This act does
not apply to –
(a) Parliament;
(b) the provincial
legislatures;
(c) the court and
judicial officers;
(d) any independent and
impartial tribunal or forum contemplated in section 34 of the
Constitution and any officer conducting proceedings
in such a
tribunal or forum;
(e) any institution
established by Chapter 9 of the Constitution;
(f)   any other
constitutional independent institution; and
(g)
any public institution that does not fall within the national
provincial or local sphere of government.”
[42]
Neither the SGB nor the principal fall within the scope of the
Framework Act.  In terms of the Framework Act local government

means a municipality. Provincial government means the provincial
executive established by Chapter 6 of the Constitution for each

province and includes all provincial organs of state in that
province.
[43]
Section 41 of the Constitution requires all spheres of government and
all organs of state within each sphere to cooperate.
The first
respondent contended that the applicant should have attempted to
resolve the dispute before approaching this Court. It
contended that
section 41(1)(h)(vi) of the Constitution, which  binds the
principal  and  the SGB, enjoins organs
of state to avoid
legal proceedings against one another. It pointed out that in
Welkom
and
Harmony
[19]
the
Constitutional Court said “the explicit provisions of section
41(1)(h)(vi) of the Constitution appears to require a form
of
exhaustion of internal remedies before organs of state within a
sphere of government should turn to the courts.”
[20]
[44]
Section 239 of the Constitution defines organ of state as follows:
“
(a)
any department of state or administration in the national, provincial
or local sphere of government; or
(b) any other functionary
or institution –
(i) exercising a power or
performing a function in terms of the constitution or a provincial
constitution; or
(ii)
exercising a public power or performing a public function in terms of
any legislation, but does not include a court or a judicial

officer;…”
[45]
In
Mikro
[21]
the
court held that a governing body is an organ of state.  It said
the following:
“
In
terms of the definition in the Constitution any institution
exercising a public power or performing a public function in terms
of
any legislation is an organ of state.  The second respondent a
public school, together with its governing body, the first

respondent, is clearly an institution performing a public function in
terms of the Act.  It follows that it is an organ of
state as
contemplated in the Constitution.”
[22]
[46]
In
Welkom
and
Harmony
it was said that ‘the school governing bodies and HoD are
organs of state’.
[23]
The
principal on the other hand fulfills a dual role.  She or he is
an educator appointed as the head of the school.
[24]
The
principal, in his official capacity, is also a member of the
SGB.
[25]
In
terms of section 16A(1)(a) of the Act the principal represents the
HoD in the governing body when acting in an official capacity.
[47]
When the principal acts in his or her official capacity as a
representative of the HoD he might be construed to be an organ
of
state.  It is however difficult to discern how he or she can be
said to be exercising a public power or performing a public
function
in terms of any legislation when he or she endeavours to protect or
promote his or her rights in his or her capacity as
an educator. The
principal in this matter came to court in order to vindicate his
right as an educator or employee to perform the
functions entrusted
on him by legislation or official policy and for administrative
justice. It can hardly be said that section
41 of the Constitution is
applicable under these circumstances.
[48]
In any event, it is a bit rich for the first respondent to argue that
there was a duty on the applicant to try and resolve
this matter
before approaching this Court. The first respondent was expressly
requested by the HoD to rescind its decision pending
an endeavour to
resolve the dispute amicably. It was unwilling to do so. The parties
unsuccessfully tried to resolve the dispute
after their respective
attorneys were engaged. The contention of the first respondent lacks
merit.
[49]
Every public school is a juristic person, with legal capacity to
perform its functions in terms of the Act.
[26]
The
governance of every public school is vested in its governing body and
it may perform only such functions and obligations and
exercise only
such rights as prescribed by the Act.
[27]
[50]
The Act bestows varied and extensive functions on governing bodies
including governance,
[28]
policy-making,
[29]
budget,
[30]
finance
sourcing and control,
[31]
administration
and control of school property,
[32]
establishing
posts for educators and non-educators, and the filling of such
posts.
[33]
It
may also apply to the HoD to be allocated additional functions
subject to it showing that it has the necessary capacity to perform

the additional functions.
[51]
Most of the functions of the SGB are original and are not merely
delegated.  The SGB will, in most cases, not be able
to perform
all those functions itself.  It would therefore be necessary for
it to delegate some of its functions.  Most
of its functions
being original functions; the SGB therefore has the right to delegate
such functions.
[52]
In
Schoonbee
[34]
the
court was also of the view that the SGB may delegate some of its
functions.  It said the following:
“
In
my view, the proper interpretation is to regard the principal as
having a duty to facilitate, support and assist the SGB in the

execution of statutory functions relating to  assets,
liabilities, property, financial management of the public school and

also as a person upon whom specified parts of the SGB’s duties
can properly be delegated.”
[35]
[53]
In terms of section 30 of the Act the SGB may establish committees.
Section 30 provides:
“
(1)
a governing body may –
(a)  establish
committees, including an executive committee; and
(b)  appoint persons
who are not members of the governing body to such committees on
grounds of expertise, but a member of
the governing body must chair
each committee.
(2)
a governing body of an ordinary public school which provides
education to learners with special educational needs must
establish a
committee on special education needs.”
[54]
It is clear that when the governing body tasks a particular committee
to investigate or do something on its behalf it would
be delegating
its functions to such committee. The Act recognises that the SGB will
not be able to perform all its functions itself.
The delegation of
its powers is therefore necessary for the SGB to function efficiently
and effectively. It is also necessary so
that the SGB can perform all
the functions incidental to its main functions.
[55]
In
Makhitshi
v School Governing Body Ntilini JSS
[36]
it was held that a “SGB has no right to delegate its statutory
powers.  It is simply not empowered to do so by the Employment

of Educators Act.”
[37]
The assertion that the SGB does not have the right to delegate its
statutory powers was stated in the context of the Employment
of
Educators Act (EEA) and not as a general statement applicable to all
the SGB’s functions.  We are dealing with the
SGB’s
right to delegate in terms of the Act.
[56]
Delegation ‘postulates revocable transmission of subsidiary
authority’.
[38]
Since
the SGB may delegate some of its functions it therefore has the right
to revoke such delegation.  If the delegation or
revocation has
to be preceded by a formality (such as it must be in writing) in
terms of legislation or policy then that legislation
or policy must
be complied with before a delegation may be said to be lawful.
Where no formality is prescribed the repository
of the power or
function may delegate or revoke it without complying with any
formality or the rules of natural justice.
[57]
However, when a function is conferred upon a statutory body it is
intended that that function should be exercised by that body.
[39]
Should
such body allow the power of function to be exercised by another who
was not chosen by it or the legislation it will have
abdicated its
power and functions and will not have complied with the law.
[40]
[58]
In this case, counsel for the SGB correctly conceded that there was
no express or tacit delegation of power by the SGB to the
principal.
The SGB therefore abdicated its power or functions in as far as the
principal exercised functions that were in the exclusive
preserve of
the SGB.  It can therefore be said that the principal usurped
the powers and functions of the SGB.  It must
however be noted
that the principal can only usurp powers or functions which are not
functions and responsibilities entrusted to
him by the Act, any other
legislation or policy.  If the Act, any other legislation or
policy allows him or her to exercise
a function or power that the SGB
is also empowered to exercise then there cannot be any unlawful
exercise of power.
[59]
As stated above, the SGB could not revoke a delegation that it did
not give.  The decision of the SGB was therefore not
a
revocation of a delegation but denuding the principal of certain
powers or functions. Was the decision todenude the principal
of those
powers or functions administrative action?
[60]
Administrative action is defined in the PAJA as follows:
“
administrative
action
means any decision taken, or any
failure to take
a decision,  by –
(a) an organ of state,
when –
(i) exercising a power in
terms of the constitution or a provincial constitution;  or
(ii) exercising a public
power or performing a public function in terms of any legislation;
or
(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,…”
[41]
[61]
In
Minister
of Defence and Another v Xulu
[42]
the
court said the following:
“
The
Constitutional Court, citing Grey’s Marine with approval, has
broken down the definition into seven components, namely
that ‘there
must be (a) a decision of an administrative nature; (b) by an organ
of state or 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.”
[43]
[62]
The first respondent’s counsel did not dispute that the first
respondent is an organ of state and that its decision was

administrative action as defined in PAJA, if PAJA was applicable.
He, however, contended that PAJA was not applicable because
the first
respondent merely revoked a delegation. The applicant’s and the
intervening party’s counsel on the other
hand contended that
PAJA was applicable.
[63]
The first respondent is an organ of state. When it took the decision
it exercised a public power, purportedly, in terms of
the Act. The
decision had an adverse effect on the applicant’s right to
manage the school.  The decision had a direct
external legal
effect because it is a binding decision. The principal lost his right
to manage the school in terms of legislation
and policy which gives
him a mandate to manage certain facets of the school. None of the
exceptions mentioned under the definition
of administrative action is
applicable in this matter. The decision constituted administrative
action. It is therefore subject
to review in terms of section 6 of
PAJA.
[64]
Section 6 of PAJA reads as follows:
“
(
1)
Any person may institute proceedings in a court or a tribunal for the
judicial review of an administrative action.
(2)
A
court or tribunal has the power to judicially review an
administrative action if-
(a)
the administrator who took it-
(i)
was
not authorised to do so by the empowering provision;
(ii)
acted
under a delegation of power which was not authorised by the
empowering provision; or
(iii)
was
biased or reasonably suspected of bias;
(b)
a
mandatory and material procedure or condition prescribed by an
empowering provision was not complied with;
(c)
the
action was procedurally unfair;
(d)
the
action was materially influenced by an error of law;
(
e)
the action was taken-
(i)
for
a reason not authorised by the empowering provision;
(
ii)
for an ulterior purpose or motive;
(iii)
because
irrelevant considerations were taken into account or relevant
considerations were not considered;
(iv)
because
of the unauthorised or unwarranted dictates of another person or
body;
(
v)
in bad faith; or
(
vi)
arbitrarily or capriciously;
...”
[65]
The effective management of the school requires all the partners to
work together in the best interests of the school and the
learners.
In
Welkom
and
Harmony
it
was said:
“
Given
this legacy, the state’s obligation to ensure “are”
is used in the judgment that the right to education
is meaningfully
realised for the people of South Africa are great indeed.  The
primary statute setting out these obligations
is the Schools Act.
That Act contains various provisions governing the relationship
between the Minister, Members of Provincial
Executive Councils
responsible for education (MEC’s), HOD’s, principals and
the governing bodies of public schools.
It makes clear that
public schools are run by a partnership involving school governing
bodies (which represent the interests of
parents and learners),
principals, the relevant HOD and MEC, and the Minister.  Its
provisions are carefully crafted
to strike a balance between the
duties of these various partners in ensuring an effective education
system.”
[44]
[66]
The decision of the SGB in this case fantastically achieves the
opposite.  It deliberately minimised the role and input
of one
partner: the principal.  It then inadvertently or by design
created, at the same school, an additional principal, to
not only
manage some of its functions but also most of the functions that are
reserved for the principal. The decision disturbs
the delicate
balance intended by the Act and in one foul swoop it created fertile
ground for tension, strife, discontent and mismanagement
of the
school.
[67]
The professional management of the school vests in the principal. His
or her duties, functions and responsibilities are inter
alia set out
in section 16A of the Act. Some of the functions of the SGB and the
principal have succinctly been captured in
Welkom
and
Harmony
,
where the court said:
“
A
principal must, in discharging his or her professional management
duties, amongst other things, implement educational programs
and
curriculum activities, manage educators and support staff, perform
functions that are delegated to him or her by the HOD under
whose
authority he falls and implement policy and legislation. In contrast,
a school governing body’s governance functions
include
promoting the school’s best interests and striving to ensure
the provision of quality education to all learners at
the school,
developing a mission statement for the school, adopting a code of
conduct for learners and administering school property
(subject to
certain constraints).”
[45]
[68]
This brief background leads me to an appraisal of the component parts
of the decision of the SGB.
A.
Management of school finances
.
[69]
The SGB gave Mr Geldenhuys the authority to manage the school’s
finances on its behalf, to the extent that those powers
do not
specifically vest in the principal in terms of the Act. What exactly
was delegated to Mr Geldenhuys? Was the intention that
Mr Geldenhuys
should be in charge of the functions set out in section 37 of the
Act? Section 37 of the Act reads as follows:
“
(1)
The governing body of a public school must establish a school fund
and administer it in accordance with directions issued
by the Head of
Department.
(2)   Subject to
subsection (3), all money received by a public school including
school fees and voluntary contributions must
be paid into the school
fund.
(3) The governing body of
a public school must open and maintain one banking account, but a
governing body of a public school may,
with the approval of the
Member of the Executive Council, invest surplus money in another
account.
(4) Money or other goods
donated or bequeathed to or received in trust by a public school must
be applied in accordance with the
conditions of such donation,
bequest or trust.
(5) All assets acquired
by a public school on or after the commencement of this Act are the
property of the school.
(6) The school fund, all
proceeds thereof and any other assets of the public school must be
used only for—
(a)
educational purposes, at or in connection with such school
;
(b)
educational purposes, at or in connection with another public school,
by agreement with such other public school and with the
consent of
the Head of Department
;
(c)
the performance of the functions of the governing body
;
or
(d) another educational
purpose agreed between the governing body and the Head of Department.
(7)
(a) Money from the school fund of a public school may not be paid
into a trust or
be used to establish a
trust.
(b)   If a trust was
established from a school fund of a public school or if such money
was paid into a trust prior to 1 January
2002, such trust or payment
is invalid and the money must be paid back into the school fund.
(c) A
governing body of a public school may not collect any money or
contributions from parents to circumvent or manipulate the
payment of
compulsory school fees and to use such money or contributions to
establish or fund a trust, and if such money or contributions
of
parents were paid into a trust prior to 1 January 2002, the trust
must pay such money or contributions into the school fund.
”
[70]
Was Mr Geldenhuys going to be responsible for the preparation of the
budget, if the interim period extended beyond the current
financial
year?
[46]
Section
42 of the Act provides:
“
The
governing body of a public school must –
(a)  keep records of
funds received and spent by the public school and of its assets,
liabilities and financial transactions;
and
(b)
as soon as practicable, but not later than three months after the end
of the financial year, draw up annual financial
statements in
accordance with the guidelines determined by the member of the
Executive Council.”
[71]
There are so many financial functions which vests in the SGB that
cannot just willy-nilly be delegated to someone else. In
terms of
section 16A(h) the applicant has a duty to assist the SGB with the
management of the school’s funds. Such assistance
includes the
provision of information relating to any conditions imposed or
directions issued by the Minister, the MEC or the HoD
in respect of
all financial matters of the school. He also has a duty to give
advice to the SGB and financial implications of decisions
relating to
financial matters of the school. How these functions were going to be
executed whilst the ‘school manager’
is still in charge
is not clear.
[72]
Hoexter says the following:
“
There
are a number of well-recognised ways in which one administrator may
abdicate power while another usurps it. The most common
of these, and
certainly the most important in practice, is the unlawful transfer or
delegation of power.  Another is ‘acting
under dictation’
and a third is unlawful referral or ‘passing the buck’.
These last two kinds of illegality are
so closely related as to be
indistinguishable in some cases, and indeed nothing turns on the
diagnosis of one or the other.”
[47]
[73]
Baxter says the following about ‘passing the buck’:
“
An
official who is expected to exercise his own discretion might be
tempted to avoid responsibility by referring the decision to
someone
else. This also constitutes an unlawful abdication of power.”
[48]
[74]
It is clear that the SGB did not apply its mind to the delegation of
its functions to Mr Geldenhuys at all. It deferred all
its financial
management or governance functions wholesale to Mr Geldenhuys. There
were no terms or limits regulating the delegation.
The Act does
not provide for delegation. I have found that the SGB may delegate
some of its functions.  The Act certainly
does not envisage an
unbridled delegation of functions as happened in this case.
[75]
In terms of the Personnel Administrative Measures (PAM)
[49]
the
principal’s professional management of the school includes
keeping various kinds of school accounts and records properly
and to
make best use of the funds of the school for the benefit of the
learners in consultation with the appropriate structures.
[50]
How
would he be able to perform these functions under the regime imposed
by the decision? The delegation of those functions was
vague,
unstructured and unlawful.
B.
Management of extra-curricular activities, like sport and culture.
[76]
School activity is defined in the Act as ‘any official
educational, cultural, recreational or school activity of the
school
within or outside the school premises’.
[51]
Sports
and culture can be extra-curricular activities. The veritable
question, however, is whether they are school activities.

Section 8A reads as follows:
“
(1)
Unless authorised by the principal for legitimate educational
purposes, no person may bring a dangerous object or illegal drug
onto
school premises or have such object or drug in his or her position on
school premises or during any school activity.
(2)  Subject to
section (3), the principal or his or her delegate may, at random,
search any group of learners, or the property
of a group of learners,
for any dangerous object or illegal drug, if a fair and reasonable
suspicion has been established –
(a)  that a
dangerous object or an illegal drug may be found on school premises
or during a school activity; or
(b)
that one or more learners on school premises or during a school
activity are in possession of dangerous objects or illegal
drugs…”
[77]
It is clear that a school activity is defined very widely in the
Act.  Whether it is an extra-curricular or extra-mural
activity
matters not, as long as it is a school activity. If it is a school
activity the principal has a duty to manage it, (by
inter-alia
ensuring the safety of learners and that the activity will be a
drug-free activity) or delegate somebody to manage it.
[78]
In terms of the PAM the principal must play an active role in
promoting extra and co-curricular activities in the school, plan

major school functions and encourage learners’ voluntary
participation in sports, educational and cultural activities
organised
by community bodies.
[52]
The
Act does not empower the SGB to strip the principal of these
functions.
C.
Management of school campus and assets including the hostels
[79]
In terms of the PAM, part of a principal’s general
administrative functions are to make regular inspections of the
school
to ensure that the school premises and equipment are being
used properly and that good discipline is maintained.  And to be

responsible for the hostel and all related activities including the
staff and learners, if one is attached to the school.
[53]
The
SGB could not strip him of these functions which were expressly given
to him in the PAM.
D.
Management of personnel, where they are not performing academic
functions
.
[80]
The principal must, in undertaking the professional management of a
school, carry out duties which include the management of
all
educators and support staff.
[54]
The
Act does not limit the principal’s management function with
regard to educators to their academic functions only.
The
principal may for example delegate and manage an educator who was
requested by the principal to perform the functions in section

8A(2).  This injunction seeks to strip the principal of those
powers too.  The Act does not allow this. Support staff
is
personnel. They do not necessarily perform academic functions. Does
this mean that the applicant may not manage them?
E.
Communication and liaison, internally and externally.
[81]
The PAM states that the principal’s duties and
responsibilities, with regard to communication,
inter
alia
, include to:
1. meet parents
concerning learners’ progress and conduct;
2. liaise with other
relevant government departments, e.g. Department of Health, Public
Works, etc., as required;
3. cooperate with
universities, colleges and other agencies in relation to learners’
records and performance as well as INSET
and management development
programs;
4. participate in
departmental and professional committees, seminars and courses in
order to contribute to or update professional
reviews/standards; and
5.
maintain contact with sports, social, cultural and community
organisations.
[82]
The policy on South African standard for principals
[55]
states
the following:
“
The
principal, working within the SMT and SGB, should build collaborative
relationships and partnerships within and between the
internal and
external school community for their mutual benefit.  Schools
exist within particular social and economic communities
that have an
influence on and may be influenced by the school.  The wider
community that the school serves can provide a source
of support and
resources for the school.  The school itself can play an
important role in the well-being and development of
the community.
School improvement and community development complement each
other.”
[56]
It
is clear that these various policies give the principal a duty to
communicate internally and externally on behalf of the school.
The
SGB did not have the power to strip the principal of those functions.
F.
Representing the school at all non-academic forums
[83]
As stated above, the principal has a duty to represent the school in
the community and to communicate with stakeholders.
He has a
duty to maintain communication with community organisations.
The community might create fora for interaction with
the school. Does
this mean that the principal may not interact with those community
fora?  This cannot be right.  The
SGB had no power to
denude the principal of representing the school at non-academic fora.
G.
Internal and external liaising.
[84]
I have already dealt with this issue.  Nothing more needs to be
said about it.
H.
Management of the school ethos, mission, values and spirit within
school context
.
[85]
The principal’s duty is set out in the policy on the South
African standard for principalship as follows:
“
The
principal works within the SGB, the SMT and with parents in the
school’s community to create and implement a shared vision,

mission and strategic plan to inspire and motivate all who work in
and with the school and to provide direction for the school’s

ongoing development.  The vision and mission identified by the
SGB, encapsulates the core educational values and moral purpose
of
the school and should take into account national educational values
and traditions of the school’s community  and
values
enshrined in the Constitution of the Republic of South Africa.
The strategic planning process is fundamental for shaping
and
sustaining school improvement on a continuum.”
[57]
How
can a principal professionally manage a school and not at the same
time manage the vision, mission and values of the school
as espoused
by the SGB?  The policy recognises that the principal is central
in the management and implementation of the vision
and mission as
developed by the SGB.  The SGB overreached in stripping the
principal of his management function in this regard.
The Act does not
allow it to do so.
I.
Management of discipline.
[86]
Section 16A(2)(d) of the Act states that the principal must assist
the governing body in handling disciplinary matters pertaining
to
learners.  Section 16A(2)(e) provides that the principal must
assist the HoD in handling disciplinary matters pertaining
to
educators and support staff employed by the HoD.  The Act
clearly enjoins the principal to assist the SGB in handling
disciplinary matters pertaining to learners.  The SGB has no
power to denude the principal of this competency.  In any
event
it is not clear what the SGB means by management of discipline.
Does this entail that the principal’s power to
assist the HoD
with disciplinary matters is also taken away?
[87]
It is clear that the SGB was not entitled to take the decision that
it took because the Act and other policy instruments which
covers the
role responsibilities and functions of the principal does not
sanction it.  The SGB therefore did not have the
necessary
authority to do what it did.  The SGB was not authorised by the
Act to take the decision that it did.
[88]
Furthermore it is clear that the decision was not preceded by a
procedurally fair process.  The applicant was for all
intents
and purposes ambushed.  When he requested time to prepare
himself that was refused.  He was faced with a myriad
of
accusations or allegations which he had to answer immediately.
Regardless of his protestations and request for time to
prepare
himself he was literally bulldozed into proceeding in the manner
elected by the first respondent.  The entire inquisition,
for
that is what it was, was unnecessary, because, as I indicated above,
if the purpose was to revoke a delegation that could have
been done
without humiliating the applicant.
[89]
He was put through an ordeal that was palpably hostile.  The
disrespect shown to him was done in front of learners at
the school.
That process must have eroded the respect that these learners had for
the applicant.  Many of the members
of the SGB were not even
aware of all these complaints or charges against the applicant.
The chairperson sat with a list
of charges and confronted the
applicant with them and he was expected to respond it.  It is
noteworthy that all the charges
pre-date the election of the current
members of the SGB. Many members of the SGB were therefore not aware
of the charges that will
be brought against the principal at the
meeting, yet they were requested to vote; which they did.
[90]
I have also indicated that the decision was taken without proper
consideration of the Act, other legislation and policy documents.

The decision effectively stripped the principal of powers duties and
functions which are entrusted to him by legislation and official

policy.
[91]
The unlawfulness of the act did not end there.  The SGB
summarily and unlawfully appointed Mr Geldenhuys as the school

manager of Grey College Secondary School.  There is no evidence
that there is such a post on the establishment of the school.

Mr Geldenhuys was the principal of Grey College Primary School. His
transfer or temporarily secondment to Grey College Secondary
School
was done without the intervention or authorisation of the HoD.
[92]
In terms of section 33(2) of the EEA
[58]
the
employer may order an educator to perform duties on a temporary basis
other than those duties ordinarily assigned to the educator
which are
appropriate to the grade, designation or classification of the
educators post.  The employer in terms of the EEA
in this
context is the HoD.  In terms of section 6 of the EEA the
appointment of any person, or the promotion or transfer
of any
educator in the service of the Provincial Department of Education
shall be made by the HoD.  In terms of section 8(1)(c)
of the
said Act the HoD may transfer any educator in the service of the
Provincial Department of Education to any other post in
that
department.  Nowhere in the EEA is the SGB given the power to
transfer or appoint, on a temporary or permanent basis,
an educator
who is in the employ of the Provincial Department of Education.
The decision to appoint Mr Geldenhuys as the
interim school manager
ought to be set aside.
[93]
Counsel for the SGB properly decided not to pursue the conditional
counter-application. The first respondent all but abandoned
the
counter-application because the antecedent condition was not
triggered. It ought to be dismissed.
[94]
In summary, a SGB is an organ of State.  PAJA is applicable to
its decisions.  The SBG may delegate some, not all,
of its
functions. It may delegate some of its functions to a principal.
The SGB
in
casu
did
not delegate any functions to the applicant, it abdicated its
functions and allowed the applicant to perform them.  The
Act
does not allow the SGB to denude the principal of functions entrusted
to him by legislation, policy or the HoD.  The SGB
in
casu
stripped
the principal of functions that he must perform in terms of the Act
and policies of the Department of Basic Education.
The SGB’s
decision fell afoul of section 6(2)(a)(i) of PAJA.  It must be
set aside because the Act does not authorize
the SGB to strip the
principal of his powers.  It therefore took a decision which it
may not take in terms of the Act. Even
if it had the power to take
the decision to strip him of his functions it may not do so without
giving him a reasonable opportunity
to be heard, because his rights
were affected by the decision. It did not give him a reasonable
opportunity to prepare. Preparation
is an essential element of
presentation. He was not given a reasonable opportunity to be heard.
It acted in a procedurally unfair
manner.
[59]
It
appointed Geldenhuys unlawfully.  It does not have the authority
to appoint, transfer or deploy educators in the employ
of the
Provincial Department of Education.
[95]
The applications of the applicant and the intervening party have the
same effect.  The success of the applicant and that
of the
intervening party coincide.  All the parties were in agreement
that whatever costs order is made should include the
costs occasioned
by the employment of two counsel.  The opposition to the
application to intervene was unreasonable and the
first respondent
should be ordered to pay the costs of that application.
Likewise it should be ordered to pay the costs of
the striking out
application.
[96]
I therefore make the following order:
1. The
first respondent is ordered to pay the costs, including the costs of
two counsel, of the intervening party in respect of
the application
to intervene and the striking out application.
2. The
conditional counter-application is dismissed with costs, including
the costs of two counsel.
3. Paragraphs 1 and 2
(excluding the alternative to paragraph 2) of the applicant’s
notice of motion and paragraph 2.1 of
the intervening party’s
notice of motion are granted with costs, including the costs
occasioned by each of them employing
two counsel. Such costs to
include the costs of 8 June 2018.
___________________
C.J. MUSI, AJP
I
concur.
___________________
C.
VAN ZYL, J
Appearances:
For
the applicant: Adv Kemp SC
Assisted
by Adv van Aswegen
Instructed
by Peyper Attorneys
Bloemfontein
For
the 1
st
respondent: Adv Du Toit SC
Assisted
by Adv Merabe
Instructed
by Horn & Van Rensburg Attorneys
Bloemfontein
For
the Intervening Party: Adv Snellenburg SC
Assisted
by Adv Pienaar
Instructed
by Lovius Block Attorneys
Bloemfontein
[1]
South
African Schools Act 84 of 1996
.
[2]
Head
of Department, Department of Education, Free State Province v Welkom
High School and Another; Head of Department, Department
of
Education, Free State Province v Harmony High School and Another
(Equal Education and another as amici curiae)
2013
(9) BCLR 989 (CC).
[3]
Ibid
para [124].
[4]
Promotion
of Administrative Justice Act 3 of 2000 (PAJA).
[5]
Labour
Relations Act 66 of 1995
.
[6]
SA
Riding for the Disabled Association v Regional Land Claims
Commissioner
and
Others
2017 (5) SA 1 (CC).
[7]
AfriForum
and Another v University of the Free State
(CCT101/17)
[2017] ZACC 48
;
2018 (2) SA 185
(CC);
2018 (4) BCLR 387
(CC).
[8]
Ibid
para [29].
[9]
The
Constitution of the Republic of South Africa Act 108 of 1996.
[10]
See
section 33 of the Constitution.
[11]
Judicial
Service Commission and Another v Cape Bar Council and Another
2013 (1) SA 170 (SCA).
[12]
Ibid
para [12].
[13]
Burger
v Rand Water Board and Another
2007 (1) SA 30
(SCA) para [7].
[14]
Matjhabeng
Local Municipality v Eskom Holdings
2018 (1) SA 1
(CC) para [92].
[15]
State
Liability Act 20 of 1957
.
[16]
Head
of Department, Mpumalanga Department of Education and Another v
Hoërskool Ermelo and Another
2010
(2) SA 415
.
[17]
Ibid
para [56].
[18]
Intergovernmental
Relations Framework Act 13 of 2005
.
[19]
Head
of Department, Department of Education, Free State Province v Welkom
High School and Another; Head of Department, Department
of
Education, Free State Province v Harmony High School and Another
2014 (2) SA 228 (CC).
[20]
Ibid
para [162].
[21]
Minister
of Education (Western Cape) v Mikro Primary School Governing Body
[2005] 3 All SA 436 (SCA).
[22]
Ibid
para [20].
[23]
See
footnote 3, para [141].
[24]
Section
1 of the Act.
[25]
Section
23(1)(b) of the Act.
[26]
Section
15 of the Act.
[27]
Ibid
section 16.
[28]
Ibid.
[29]
Ibid
section 6.
[30]
Ibid
section 38.
[31]
Ibid
section 36.
[32]
Ibid
section 20(g).
[33]
Ibid
section 20(4) and (5).
[34]
Schoonbee
and Others v MEC For Education, Mpumalanga And Another 2002 (4) SA
877 (T).
[35]
Ibid
at 884B-C.
[36]
Unreported Judgment Eastern Cape High Court Mthatha, Case no 615/08,
delivered on 20 March 2009.
[37]
Ibid para [17].
[38]
Executive
Council, Western Cape Legislature v President of the Republic of
South Africa
[1995] ZACC 8
;
1995 (4) SA 877
(CC) para [173].
[39]
Baxter
:
Administrative
law
,
Juta 1984 at 434.
[40]
Ibid.
[41]
Section
1 of PAJA.
[42]
Minister
of Defence and another v Xulu
(337/2017)
[2018] ZASCA 65
(24 May 2018).
[43]
Ibid
para [34].
[44]
See
footnote 2 para [36].
[45]
Ibid
para [39].
[46]
See
section 38 of the Act.
[47]
Hoexter
C :
Administrative
law in South Africa
,
2
nd
ed page 262.
[48]
Ibid
443.
[49]
Personnel
Administrative Measures which were gazetted by the Minister of Basic
Education and published in Government Gazette No.
39684 of 12
February 2016.
[50]
Clause
3.1.3.
[51]
Section
1 of the Act.
[52]
Clause
3.5.2 of PAM.
[53]
Clauses
3.1.5 and 3.1.6.
[54]
Section
16A(2)(a)(ii) of the Act.
[55]
Policy
on the South African Standard for Principalship: enhancing the
professional image and competencies school principals 2015.

Published in Government Gazette number 39827 on 18 March 2016.
Published in terms of section 3(4) of the National Education
Policy
Act 1996, (Act No 27 of 1996).
[56]
Clause
5.1.8.
[57]
Clause
5.1.2.
[58]
Employment
of Educators Act 76 of 1998
.
[59]
See
section 6(2)(c)
of PAJA.