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[2018] ZAECMHC 42
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Mdlankomo Junior Secondary School, Libode and Others v Member of Executive Council for Department of Education, Eastern Cape and Another (3743/2017) [2018] ZAECMHC 42 (7 August 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA)
CASE
NO. : 3743/2017
Heard
on: 03 May 2018
Date
delivered: 07 August 2018
In
the matter between:
MDLANKOMO
JUNIOR SECONDARY SCHOOL,
LIBODE
First
Applicant
SCHOOL
GOVERNING BODY, MDLANKOMO
JUNIOR
SECONDARY
SCHOOL
Second
Applicant
ANDISWA
MADULINI
Third
Applicant
And
MEMBER
OF EXECUTIVE COUNCIL FOR
THE
DEPARTMENT OF EDUCATION,
EASTERN
CAPE
First
Respondent
HEAD
OF DEPARTMENT, DEPARTMENT
OF
EDUCATION, EASTERN
CAPE
Second
Respondent
JUDGMENT
MAJIKI
J
[1]
The applicants approached court seeking an order in the following
terms:
That
the:
(1)
second respondent (HOD)’s
decision of 08 May 2017 declining the
second
applicant’s (SGB) recommendations of 8 August 2016 be
declared unlawful, invalid and
set aside;
(2)
second
respondent’s delay in appointing a permanent principal in
Mdlankomo Junior Secondary
School be and is hereby declared
unlawful,
invalid and accordingly set aside.
(3)
second
respondent be and is hereby directed to forthwith appoint a
permanent principal in Mdlankomo
Junior Secondary School,
Libode.
(4)
Second
respondent be ordered to consider and
decide the second
applicant’s
recommendation dated and submitted on 8 August 2016.
(5)
second
respondent be and is hereby ordered to advise the applicants of
his decision referred to in
paragraph 3 and 4 above within seven days
of
taking thereof.
The
application is opposed by the respondents, the second respondent has
filed opposing affidavit for that purpose.
[2]
The main support for the seeking of the orders is that the second
respondent’s decision of 8 August 2016, to decline the
recommendation to appoint the third applicant, is irrational, not in
accordance with the empowering statutes and inconsistent with
the
rule of law. Further, the applicants were not given notice of
the proposed decision, to enable them to make representations
against
the taking of the decision or afford them an opportunity to deal with
the shortcomings that were in the recommendation
form.
[3]
It is common cause that the third applicant applied and was
recommended by the second applicant for the position of the principal
of the first applicant. The position had not had a permanent
incumbent since about year 2014. In a letter addressed to the
district director, dated 8 May 2017, annexed to the founding
and answering affidavits, the department of education’s
superintendent general did not approve the second applicant’s
recommendations and instead made certain directives,
having the
effect of having the appointment process started afresh. This
constitutes a second round of re-advertisement of
the position after
a third court application that relates to the issues surrounding the
appointment of the principal for the school.
[4]
It is also common cause that the recommendation form and the process
of recommendation had certain shortcomings which will be
dealt with
later in this judgment. The reason for the declining to approve the
third respondent’s appointment appear in the
letter of 8 May
2017 but according to the second respondent those constitute only a
summary of the decision. The applicants did
not request the copy of
the record in terms of rule 53 of the Uniform Rules.
It
however appears that the review is brought in terms of the Promotion
of Administrative Justice Act 3 of 2000 (PAJA). Section
6(2)
(a)(i) provides:
“
A court or tribunal
has power to judicially review an administrative decision if the
administrator who took it was not authorised
to do so by the
empowering provision.”
[5]
The applicants made various averments pointing to the history of
challenges in the applicant school, caused by lack of leadership,
indecisiveness of the department and disingenuity of the respondents,
among others. I do not regard most of these as central to
the
determination of issues herein.
[6]
The respondents have referred to Employment of Educators Act
76/1998 (the Act) and Personnel Administration Measures
(PAM)
published by the Minister of Basic Education on 12 February 2016, as
legal and policy framework he acted in accordance
with, in
declining the recommendation for the appointment.
According
to the applicants, only a failure to comply with section 6(3)(b) of
the Act can constitute a valid basis for and empower
the third
respondent to decline the recommendation of the second applicant and
nothing else. In support hereof the applicants
rely of the
provisions of section 6(3) (e).
According
to the applicants section 6(3)(e) does not refer to section 6(3)(c).
Furthermore,
the decision was not preceded by a legal process, there is no
rational correction between the process and the decision.
There
being no legal process, there was no means by which the decision was
taken.
[7]
The issue to be determined in this matter is whether a decision based
on another legal framework other than the provisions of
section
6(3)(b) could give rise to a binding, lawful and valid decision
or only the one based on the said section can have
that effect.
Further, whether it was necessary to afford the applicants an
opportunity to make representations before
the second respondent’s
decision of 8 August 2016.
[8]
Section 6(3) of the Act provides:
“
(b)
in
considering the applications, the governing body or the council, or
the case may be, must ensure that the principles of equity
redress
and representivity are complied with and the governing body or
council, as the case maybe, must adhere to-
(i)
The democratic values
and principles refer to in section 7(1).
(ii)
Any
procedure collectively agreed upon on determined by the minister for
the appointment, promotion or transfer of educators;
(iii)
Any
requirement collectively agreed upon or determined by the minister
for appointment, promotion or transfer of educators with
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, and
(v)
Procedures that would
ensure that the recommendation is not obtained through undue
influence on the members of the governing body
or council as the case
may be (as amended by Further Education and Training Colleges (Act
16/2006)).
(c)
The
governing body or the council as the request may be (as amended)
must submit in order of
preference to the head of department at least three names of
recommended candidates; or fewer than three
candidates in
consultation with head of department.
(d) When head of department
considers the recommendations contemplated in paragraph (c), he or
she must before making an appointment
ensure that the governing body
or council as the case maybe (as amended) had met the requirements in
paragraph (b).
(e) If the governing body or
the council, as the case may be, has not met the requirements in
paragraph (b) the head of the department
the government must decline
the recommendation.
(f)
………………………………………………………………………
(g) If the Head of the
Department declines the recommendation he or she must –
Consider all the
applications, submitted for that post; apply the requirements in
paragraph (b) (i) to (iv) …”
Section
7(1) provides:
In making of any appointment
or the filling of any post on any educator establishment under this
Act due regard shall be had to
equality, equity and other democratic
values and principles which are contemplated in section 195 (1) of
the Constitution of the
Republic of South Africa, 1996 (Act No. 108
of 1996) and which include the following factors, namely-
(a)
the ability of the
candidate and
(b)
the need to redress
the imbalances of the post in order to achieve broad representation.”
Section
4 provides:
“
(1) Notwithstanding
anything to the contrary contained in any law but subject to the
provisions of this section, the Labour Relations
shall
determine the
salaries and
other
conditions of service of educators
.
(My emphasis). The government notice publishing PAM
government gazette number 396684 refers to PAM as consolidation
of
the terms of employment of educators determined in terms of section 4
of the Act.”
[9]
It is not clear from the papers what documents had been sent to the
second respondent. The respondents attached part A, which
is the
portion to be completed by the relevant SGB after interview process
and the verification of all documentation attached in
respect
of the third applicant only, who was the first ranking recommended
candidate, she had scored a total average score of 282
as scored by
the interview panel.
[10]
In respect of the second candidate only her names, persal and
identity numbers and her average score, indicated as 205 appeared
under paragraph (9). She was referred as being another remaining
shortlisted applicant recommended for the appointment. Another
page
contained a list signatures of interviewing panel consisting of:
Dlepu N- Educator
Zono N- Parent
Mampangashe- Secretary Parent
Mdikane A – Parent
Baliwe S- Chairperson, Parent
LL. Mgxigxa- His signature seems
to be the resource person.
The
paragraph of recommendation indicated the third applicant, it is
signed by the chairperson of the governing body and is dated
08
August 2016. The District director signed indicating that
the recommendation is supported, on 08 September 2016.
[11]
In the circumstances, I am not able to know what information was
before the second respondent when considering the application
of the
second recommended candidate. This would have been available
had the applicant utilised rule 53 of the Rules.
[12]
The relevant part of the letter of 8 May 2017 containing the decision
sought to be set aside is framed as follows;
“
on perusing the
submission and attachments, I have noted the
following:
1.
The bulletin was
published in 2015, with interviews only taking place more or less one
year later on 8 August 2016.
2.
There were only
two names recommended to the HOD - see PAM
paragraph B.5.4.13. There
was no consultation with the HOD to only submit two names.
3.
Form D does not
indicate the SACE registration number of the
applicant.
4. Questions 7, 8 and 9
were not completed by the candidate.
5.
Form D was not
signed by the SGB Chair.
6.
Appendix D was not
completed and not signed by the deputy director
HRA.
7. Form C1
page 4 was not
signed by union reps - see PAM paragraph
B.5.4.3.4.
8.
Form C1
page 5 was
not recommended by cluster Chief Director.
Due to these crucial
omissions, I therefore cannot approve the recommendation for the
appointment of Ms Madulini as principal of
Mdlankomo Junior Secondary
School.
I hereby direct that:
1.
The vacant post
for principal shall be advertised as soon as possible in the
bulletin, and ;
2.
The whole process
for the appointment for a principal shall start de novo, and;
3.
The District
Director shall personally ensure that the process of appointing a
principal for Mdlankomo Junior Secondary School shall
not be
unnecessarily delayed”.
[13]
As a start, I propose to measure the reasons appearing above, against
the provisions of section 6(3)(b). It is common cause
that the
application did not comply with 6(3)(b) (iv), in that the applicant’s
SACE registration number was not indicated.
As regards 6(3)(b)
(ii)(iii), they refer to procedure and requirement “
collectively
agreed upon or determined by the minister for appointment…….
of educators”.
PAM
in the government notice is set to be consolidation of terms and
conditions of employment of educators determined in terms of
section
4 of the Act. Term A.1.1. of PAM states that PAM is applicable
to all educators as defined in the Act.
Term
B.5.4 provides:
“
B.5.4.1 –
Interview Committees must be established at educational institutions
where vacancies are advertised.
B.5.4.2 – The Interview
Committee must comprise: ……..
B.5.4.3.4 - One union
representative per union that is a party to the provincial chamber of
the ELRC.
The union representatives
will be observers to the shortlisting, interviews and drawing of
preference list.
B.5.4.13 - repeats what is
required by section 6 (3)(c) of the Act.”
[14]
Section 4.1 of the Act on which PAM is said to be determined in terms
of …. Provides:
“
Notwithstanding
anything to the contrary contained in any law but subject to the
provisions of this section, the Labour Relations
Act or any
collective agreement concluded by Education Labour Relations Council,
the Minister shall determine the salaries and
other conditions of
service of educators’.
[15]
The applicant avers that, PAM is not binding; also, the outstanding
information regarding SACE registration could have been
requested or
is already in the department’s system. Further, with
regard to submitting fewer than three candidates,
the HOD was
represented by the acting principal Mr Dlepu in the process.
[16]
In my view the applicants seem to minimise the requirement of Section
6 (3)(c) by stating in reply that Mr Dlepu, the acting
principal
stood in as HOD delegated representative, in the process. It is
not the applicants’ case in the founding
affidavit that Mr
Dlepu was specifically consulted with a view of submitting two names
for recommendation. It is not clear
what the number of the
candidates who applied, shortlisted and interviewed was. In the
circumstances, I can accept that neither
the HOD nor Mr Dlepu was
consulted as required by section 6(3) (c) and 5.4.13 of PAM.
The
applicant says SACE Certificate with the registration number was
attached with documentation sent to the second respondent.
The
respondents disputes this. Even in the court papers such is not
attached nor is the registration number furnished,
therefore
section 6(3)(b)(iv) was not complied with. I have to
accept the version of the respondent that same was not
furnished.
I doubt that it would be expected that with educators already
in the system the second respondent has look
for their information
which is not furnished by the educator or him/herself. If the
intention was to exempt those educators,
such would not be a
requirement that it be established that they are so registered.
The provisions of section 6(3)(e) therefore
immediately kick in, the
second respondent has to decline the recommendation.
[17]
The issues that had to be dealt with
in
School Governing Body of Ntilini Junior Secondary School and Others v
Makitshi and Others [2009] ZAECMHC23 and Kimberly Junior
Secondary
School v Head of Northern Cape Education
Department
2010
(1) SA 217
SCA are different to the issue in this matter. In
both decisions it was found that the jurisdictional requirement of
the
existence of the SGB’s recommendation was not met, such
recommendation was lacking, therefore the HOD’s power in terms
of section 6(3)(a) could not be exercised. In the present case
the decision that is challenged is the one declining to appoint,
in
line with the recommendation.
[18]
As regards PAM being binding, PAM is said to be applicable to all
educators as defined in the Act. In
Godwin
vs Minister of Labour and Others
1951 (2) SA 605
, the phrase conditions of service had been considered
in the context of section 64 (1) of the
Industrial
Conciliation Act 26/1937
at
609 F–G
the wider meaning
comprehends
“all the circumstances of an employee’s employment…”
At
611 D-E it is stated “
the
engagement, suspension, discharge, etc., of the employees may fall
within the ambit of the expression conditions of employment
”
PAM represents terms and conditions of educators, in
National
Professional Teachers Organisation of South Africa (NAPTOSA)
website
page PAM is referred to as encapsulating collective agreements, of
coordinating Bargaining Council (PSCB) and Education
Labour Relation
Council. This is what is envisaged in section 6
(3)(b)(ii)(iii). In my view, there can be no conflict
between
PAM and the Act or provisions of Section 4 of the Act.
[19]
The requirement of a number of candidates to be interviewed is also
contained in the Act. The requirement of a trade union
representative
is an agreement that is sought to ensure that the provisions of
section 6 (3)(b)(v) are adhered to. It appears from
the applicant’s
case itself that
South African Democratic Teachers Union (SADTU)
exists in the area and has an interest in the matter, there is no
indication that it declined to participate.
In
my view, on these omissions alone, the second respondent was entitled
and justified to decline the recommendation. I therefore
do not agree
that the decision was not in accordance with the empowering statute.
This is over and above the failure to comply
with section
6(3)(b)(iv). The relevant parts of PAM provide a mechanism to
achieve what the statute requires, it is therefore
applicable and
binding to all educators defined in the Act.
[20]
With regard to whether the respondents should have called on the
applicants to make representations, the application and the
recommendations constitute representations on the basis of which a
decision to accept or decline them has to be made. It
is not
clear what further representations would be made. There was no
decision made to take away an existing right that was to
be affected
adversely by the decision. I therefore agree with the respondents
that there would have been no need to call for further
representations. The second respondent neither interfered with
an existing right of the second applicant to recommend nor
any in as
far as the third applicant is concerned.
[21]
The second respondent called on the district director to personally
ensure that the process of appointment is not unnecessarily
delayed.
This addresses prayer 3 of the notice of motion.
[22]
Prayers 4 and 5 of the notice of motion have no place. The letter of
8 May 2017 communicated a decision taken by the second
respondent.
With
regard to prayer 1 and 2 I am not persuaded that the applicant has
made out a case for the granting of the said order.
In
the circumstances,
The
application is hereby dismissed with costs.
____________________________
B
MAJIKI
JUDGE
OF THE HIGH COURT
Attorney
for the applicant: Mr A.S. Zono
Instructed
by: Messrs Zono & Associates
Suite
153 – 1
st
Floor
ECDC
Building
MTHATHA
Counsel
for the respondent : Mr Pitt
Instructed
by: State Attorney
Broadcast
House
No.
94 Sisson Street
Fortgale
MTHATHA