About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2018
>>
[2018] ZANCHC 10
|
|
Alpha Primary School and Another v Head of Department, Department of Education, Northern Cape and Others (1120/2017) [2018] ZANCHC 10 (12 February 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division, Kimberley)
Saakno
/ Case number:
1120/2017
Datum
aangehoor / Date heard:
02/11/2017
Datum
beskikbaar/Date available:
12/02/2018
In
the matter between:
ALPHA
PRIMARY
SCHOOL
1st Applicant
THE
SCHOOL GOVERNING
BODY
2
nd
Applicant
OF
ALPHA PRIMARY SCHOOL
and
THE
HEAD OF
DEPARTMENT,
1
st
Respondent
DEPARTMENT
OF EDUCATION,
NORTHERN
CAPE
THE
DISTRICT
MANAGER
2
nd
Respondent
IN
THE PIXLEY KA SEME DISTRICT OF THE
NORTHERN
CAPE DEPARTMENT OF EDUCATION
THE
MEMBER OF THE EXECUTIVE COUNCIL
3rd Respondent
FOR
EDUCATION IN THE NORTHERN CAPE
MR
JOHNNY GERT
CLARKE
4
th
Respondent
MR
OXFORD PLAAITJIE
JACK
5
th
Respondent
MRS
GEORGINA
DUTHIE
6
th
Respondent
MRS
HELLEN DESIRY ALETTA BITTERBOSCH
7
th
Respondent
MRS
THERESA GETRUIDA CLARKE
8
th
Respondent
MRS
JOHANNA ELIZABETH LAMBERTS
9
th
Respondent
MR
DANNY
KAPEL
10
th
Respondent
MR
PIETER LAWRENCE
ANDRIES
11
th
Respondent
MR
DEON
SALTER
12
th
Respondent
Coram:
Williams J et Snyders AJ
JUDGMENT
SNYDERS,
AJ
1. This
is a review lodged by the applicants in terms of the Promotion
of
Administrative Justice Act, Act 3 of 2000 (PAJA) for the review and
setting aside of the decision by the first and second respondent
to
instruct the first and second applicant to re-advertise the posts for
Principal, Deputy Principle and HOD (Afrikaans first language
Grade
1- 7). The applicants alternatively requested that the first
respondent's failure to appoint educators in these posts be
reviewed
and set aside. The applicant further requested that the first
respondent be ordered and directed to permanently appoint
the third
respondent in the Principal post, the seventh respondent in the
Deputy Principal post, the tenth respondent in the HOD
post and the
twelfth respondent in the Post Level 1 Educator post.
2. The
grounds upon which this application is brought are that the decision
taken by the first and second respondent is procedurally unfair
and/or the decision was taken for ulterior purposes or motives
and/or
irrelevant considerations were taken into account and/or the decision
was taken in bad faith; alternatively that the first
respondent is in
failure to make a decision relating to the appointment of educators
in the specific posts.
3. Although
it was initially disputed that the conduct by the first respondent
was an administrative action, it was later conceded that the
provisions of s 6(2) of the
Promotion of Administrative Justice
Act 3 of 2000 ("PAJA")
are applicable and that the
application is to be adjudicated in terms thereof.
THE PARTIES
4. The
first applicant is Alpha Primary School ("the School")
and
the second applicant is the Governing Body (''SGB") of the
School. The first to twelfth respondents are:
4.1
The first respondent is the Head of Education ("the HOD")
for the Northern Cape Department of Education ("the
department");
4.2
The second respondent is the District Manager of the Pixley Ka
Seme District of the Northern Cape Department of Education ("the
District Manager");
4.3
The third respondent is the Member of the Executive Council
for Education in the Northern Cape Province ("the MEC") ;
4.4
The fourth respondent, Mr Johnny Gert Clarke ("Clarke"),
is the candidate who applied for the post of principal at Kakamas
High School;
4.5
The seventh respondent, Mrs Hellen Desiry Aletta Bitterbosch
("Bitterbosch"), is the candidate who applied for and was
recommended by the SGB for the post of Deputy Principal at the
School;
4.6
The tenth respondent, Mr Daniel Kapel, is the candidate
appointed in the Post Level 1 post but who applied for and was
recommended
by the SGB for the HOD post;
4.7
The eleventh respondent, Mr Pieter Lawrence Andries is the
recommended candidate by the SGB for an educator
post at the School.
He was appointed as such by the HOD during the process in issue in
these proceedings;
4.8
The twelfth respondent, Mr Deon Salter, is the candidate who
applied and was recommended for the Post Level 1 post;
4.9
The fifth, sixth, eighth and ninth respondents, respectively
are Mr Oxford Plaatje Jack, Ms Georgina Duthie, Mrs Theresa Getruida
Clarke and Mrs Johanna Elizabeth Lamberts. These respondents are
educators at the School.
THE FACTUAL
BACKGROUND
5. It
is common cause that on 09 June 2016, the Principal's post, Deputy
Principal's post, the HOD post and the Post Level 1 post of the
School were published in the Department's Vacancy circular.
6. It
is also common cause that from May 2015 to December 2015, the SGB
consisted of six parent members, one non-teaching member, three
teachers and the Acting Principal. In December 2015, one of the
parent members, Mrs Eksteen's 5GB membership automatically terminated
when her child completed Grade 7.
7. The
parties further agree that certain statutory prescripts are to
be
followed in appointment procedures, as governed by
Chapter B,
Section 3 of the Personnel Administrative Measures ("PAM").
These procedures entail receipt of the applications by the HOD;
the acknowledgement of receipt of the applications by the department
and the assurance that all applications which comply with the
requirements of the post are handed to the relevant SGB; the SGB
appoints a Shortlisting- and Interview Committee ("the Interview
Committee") who shortlist and interview candidates according
to
criteria set by the SGB; the committee grades and scores the
candidates and makes recommendations to the SGB of preferred
candidates,
which they rank from 1 to 3, in order of preference; the
SGB considers the recommendations and in turn make their
recommendations
in order of preference, ranked 1 to 3, to the HOD;
the HOD then appoints the suitable candidate in the vacant post.
8. It
is common cause that the SGB appointed an Interview Committee at
its
meeting of 13 August 2016. Mr Bekeer was nominated as the secretary
of the interview committee. The committee completed the
shortlisting
process and conducted the necessary interviews. Thereafter it made
recommendations to the SGB on the preferred candidates.
On 15
September 2016 the SGB met in order to consider the recommendations
made by the interview committee in order to make recommendations
to
the HOD of the preferred candidates for appointment.
9. The
5GB recommended ten candidates to the HOD and six appointments
were
filled. Five of these six candidates were appointed by the District
Manager and one of the six (Mr Andries, the eleventh respondent)
by
the HOD. The four remaining posts in question were not filled by the
HOD despite the recommendations of the respondents for
the posts set
out above.
10. It
is common cause that the applicant requested reasons from the HOD for
his
decision not to appoint the remaining four recommended candidates
and that there was no response from the HOD, save for an electronic
message in the form of a WhatsApp sent on 16 November 2016 to an
educator of the School. This message stated that all vacant posts
are
to be re-advertised.
11. The
applicant alleges that in these circumstances, the 5GB met on 17
November
2016 and resolved to institute the current proceedings
against the HOD, District Manager and the MEC.
12. The
HOD provided reasons for his decision for the first time in the
opposing
affidavit. He stated that while considering the application
of Bitterbosch, he recalled that he had previously ordered an
investigation
into the process of her appointment in the post that
she currently occupied. The HOD was not aware of the outcome of the
investigation
and was hesitant to proceed with the appointment in the
absence thereof. When he paused to consider Bitterbosch's
appointment,
he became more attentive to the process. It was at this
stage that he realised that there were irregularities in the process,
namely:
12.1
the
shortlisting and interview committee's recommendations were not
accompanied by a brief motivation as to why the candidates were
recommended;
12.2
the
candidates were not arranged in order of preference with a brief
motivation but merely stated which candidate was to be appointed.
13. As
a consequence of the above, the HOD contended that he could not
properly apply
his mind on the appointments and with the flawed
process, decided not to appoint any of the further candidates. (At
that stage,
the HOD had already approved the appointment of Mr
Andries).
14. In
addition to the HOD's reasons for not proceeding with any further
appointments,
the respondents have raised several further defences to
the review application,
inter alia
that the 5GB irregularly
proceeded with the short-listing and interview process after Ms
Eiman, a member of the 5GB, proposed that
the Department take over
the process, the Unions were not properly represented during the
short-listing and interview proceedings
and that Kapel in any event
did not meet the requirements for the post.
15. The
respondents have also raised certain points
in limine
which
related to the composition and authority of the 5GB when decisions
pertinent to the application were taken and which can for
the sake of
convenience be formulated as follows:
15.1
The SGB did not quorate when the recommendations were made to
the HOD on 15 September 2016; and
15.2
The SGB irregularly resolved, as it was not properly
constituted, to institute proceedings against the respondents and
therefore
does not have the necessary authority to bring these
proceedings.
16. Before
dealing with the points
in limine,
which determination may
obviate the necessity to traverse the other defences raised, one
further issue raised by the respondents
needs to be addressed. It is
common cause that a parent member of the SGB, a certain Mrs Eksteen,
ceased to be a member of the
SGB at the end of 2015 when her child
completed her primary schooling and that no other parent had been
co-opted to replace her
throughout the period leading up to the
application. The respondents thus contend that the SGB throughout
this period generally
conducted their business unlawfully.
17.
Section
23 of
The
South African School's Act 8 of 1996 ("the Schools Act")
and
Regulation
3 of the Regulations for the Constitution and Election of Governing
Bodies in Public Schools in the Northern Cape Province
("the
Regulations "
)
[1]
issued in terms of the Schools Act, provides that at all relevant
times, the parent component of the SGB should have consisted
of at
least six parent members. In terms of s 27 of
Northern
Cape School Education Act, 6 of 1996 ("the Northern Cape Schools
Act),
the
majority of members of a governing body shall be parents of learners
at that school.
18. With
Eksteen's departure from the SGB, the parent component only consisted
of
five parent members, namely Bekeer, Eiman, Duthie, Eksteen, Van
Nel and Mackay. The non-teaching member was Mr Mitchell. The three
teachers were Bitterbosch, Lamberts and Kapel, and Clarke in his
capacity as acting principal. Thus, the parent component, from
December 2015, equalled that of the total remaining members of the
SGB.
19. The
composition of the SGB during the relevant period is not a situation
which
was unknown to the respondents. As early as 14 March 2016 the
applicants informed the Department of the vacancy and undertook to
fill the vacant position on the SGB as soon as possible. Moreover, a
full Monitoring Instrument by the Circuit Manager, Ms Manana,
dated
27 October 2016, after investigating all matters at the School,
including the SGB, confirmed that the SGB was properly constituted.
That this was in fact not the correct position is obvious but the
point made by Mr Merabe, for the applicants, is well taken, that
it
is unfair of the respondents who initially apparently condoned the
state of affairs now take issue with the composition of the
SGB
generally. The position is, however, that although the SGB may have
conducted their business and made decisions unlawfully
during this
period, such decisions are not automatically invalid and its
consequences stand until such decision is set aside by
a competent
Court. (See
Camp's Bay Ratepayer's and Resident's Association and
Another v Harrison and Another
2011 (4) SA 42
(CC) at para 62; MEC
for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd
2014 (3) SA 481
(CC) at para 97 -101
).
20. I
now turn to the points
in limine.
Paragraph 7.10 of the
SGB's
Constitution
stipulates that a quorum for any meeting of the SGB
will comprise of the majority of SGB members. The SGB meeting of 15
September
2016 had as its purpose to consider and discuss the
recommendations of the interview committee. In the opposing
affidavit, Bekeer
states that only he; Mackay and Mitchell were
present at this meeting. The 5GB is silent on this issue in the
replying papers.
The consequence of that is that only three SGB
members were in attendance and the SGB meeting of 15 September 2016
therefore did
not quorate. The 5GB made the recommendations to the
HOD on the strength of the procedures followed at the meeting of 15
September
2016. It follows that the recommendations to the HOD were
unlawful. However, the same considerations apply as in paragraph 19
above.
21. At
its meeting on 17 November 2016, the 5GB allegedly resolved to
institute the current
proceedings against the HOD and further
respondents. However, Eiman, Bekeer and Duthie deposed to affidavits
in confirmation that
no such resolution was taken at that meeting and
that they were present at the meeting from its commencement to its
conclusion.
These three 5GB members did not sign the attendance
register for the meeting but stated that they refused to sign it as
they did
not receive the minutes of the previous meeting. The minutes
do not reflect any apologies or who was present and was only signed
by the Chairperson of the 5GB, Ms Mackay. All that stands in contrast
to this, is a factual denial by Ms Mackay that these three
members
were present at the said meeting.
22. Section
26 of the
Schools Act
stipulates that a member of a governing
body must withdraw from a meeting of such governing body for the
duration of the discussion
and decision-making on any issue in which
the member has a personal interest. This is confirmed in paragraph
7.11 of the SGB's
constitution which states that affected members of
an 5GB shall not be present when decisions are taken by such 5GB in
which the
affected member has an interest.
23. It
is not disputed that Clarke, Duthie, Bitterbosch, Kapel and Lamberts,
as members
of the 5GB, were present at the meeting when it was
resolved to institute legal action. These members had all applied for
the posts
in respect of which this matter relates. The applicants
state, however, that the process of short-listing and interviewing
had
been completed at the date upon which the decision to institute
legal proceedings was taken and that the affected 5GB members above,
did not have any material interest in the matter, save that they were
not appointed in the posts in question. This argument is
untenable.
The resultant legal action flowing from the resolution directly
affects these members and their presence at such discussion
is
contrary to thestatutory prescripts and their own constitution and is
unlawful. The 5GB was not properly constituted and therefore
did not
have the authority to institute proceedings herein.
24. The
argument by Mr Merabe that Uniform Rule 7 should have been used to
question
the authority of the 5GB is misplaced since the authority
challenged is not merely that of a person acting on behalf of the
applicants
(which is what Rule 7 governs) but an issue of
locus
standi
of the 5GB.
25. Having
determined the case on a point
in limine,
we do not intend to
deal with the other defences and it follows that the application must
fail. We do pause here to impress upon
the parties that the vacant
posts are re-advertised as a matter of priority to ensure that the
best interests of the affected children
are protected and advanced.
Taking into account the averments in the papers, it may be prudent
for the 5GB to accept the offer
of guidance and assistance by the
department as was tendered by Mr Petersen on behalf of the department
during argument.
COSTS
26. We
deem it fair and equitable that each party bear their own costs
because the
HOD should have provided reasons when he was called upon
to do so and not only at the stage when the application had already
been
launched. Had such reasons been provided, it may have obviated
the need to move the application.
We therefore make
the following order:
1.
THE APPLICATION IS DISMISSED.
2.
EACH PARTY IS TO PAY THEIR OWN COSTS.
JA
SNYDERS
ACTING
JUDGE
NORTHERN
CAPE DIVISION
I
concur
CC WILLIAMS
JUDGE
Northern
Cape Division, Kimberley
On
behalf of Applicants:
Adv MJ Merabe (Instructed by: Elliot Maris Wilmans & Hay)
On
behalf of 1
st
& 2
nd
Respondent:
Adv Petersen (Instructed by Office of the State Attorney)
[1]
Provincial Gazette No. 1860 dated 3 December 2014