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[2018] ZAECELLC 4
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MEC for the Eastern Cape Department of Education and Others v Playways Pre-primary School and Others (EL240/2010; ECD540/2010) [2018] ZAECELLC 4 (29 May 2018)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EAST
LONDON CIRCUIT LOCAL DIVISION)
Case
No. EL 240/2010
ECD
540/2010
In
the matter between
THE MEC FOR THE
EASTERN CAPE
DEPARTMENT OF
EDUCATION
First
Plaintiff
DEBORAH ROBYN VAN
COEVERDEN DE
GROOT
Second
Plaintiff
LISOLOMZI
SIYABULELA
KALIMASHE
Third
Plaintiff
and
PLAYWAYS
PRE-PRIMARY
SCHOOL
First
Defendant
CINZACO 107 (PTY)
LIMITED
Second
Defendant
THE REGISTRAR OF
DEEDS,
KING WILLIAM’S
TOWN
Third
Defendant
JUDGMENT
HARTLE
J
[1]
The
plaintiffs
[1]
issued out an
application against the defendants
inter
alia
seeking an order setting aside the sale and subsequent transfer of
certain immovable property (“the Property”) which
had
been home to the Playways Pre-Primary School (“the school”)
and which had been sold to the second defendant on
1 December 2006 by
the voluntary association styled “Playways Pre-Primary School”
(“Playways”). Transfer
was registered by the third
defendant on 13 March 2007. A related order was sought
that the third defendant (“The
Registrar of Deeds”) be
ordered to effect transfer of the property back from the second
defendant to the first defendant.
[2]
The
entity which the plaintiffs envisage as the first defendant is the
juristic person which they say owned the property prior to
its sale
to the second defendant. At the outset Mr. Ford, who together
with Ms. Beard appeared for the first and second defendants
at the
trial, placed on record that they do not claim to represent the
entity cited in the way in which the first defendant is
cited by the
plaintiffs. The plaintiffs’ premise for their peculiar
citation of this defendant is that Playways was
at all relevant times
a public school and that it constituted the juristic person that
every public school is pursuant to the provisions
of section 15 of
the South African Schools Act, No. 84 of 1996 (“the Schools
Act).
[2]
The entity which
counsel say they represent instead is Playways, the voluntary
association governed by the terms of its own
constitution, albeit the
defendants plead that it no longer exists due to the fact that it was
wound up after disposing of the
school and all its property to the
second defendant.
[3]
The
third defendant did not oppose the application but abides this
court’s decision. Inasmuch as I refer to “the
defendants” herein, it excludes the latter defendant.
[4]
The
plaintiffs are respectively : the Member of the Executive Council for
the Eastern Cape Department of Education (“the Department”)
who is alleged to be the representative authority responsible for all
public schools within the Eastern Cape Province; a former
principal
of Playways who the plaintiffs say ought to have represented the head
of the department in respect of the purported sale
under the mantle
of the public school governing body they contend for (or
ex
officio
in terms of Playways’ constitution); and a parent and
vice-chairperson of the governing body of Playways at the time.
[5]
After
delivery of the second defendant’s answering papers in the
application, which pertinently raised an issue of prescription
because more than three years since the sale and before service of
the motion proceedings on them had passed, the plaintiffs gave
notice
of intention to amend their notice of motion to include among the
items sold in the impugned sale the school in addition
to the fixed
property which had been transferred to the second defendant.
The reason that was advanced for the amendment
is that the plaintiffs
were originally under the impression that all that was being sold by
the first defendant was the fixed property
of Playways and not
Playways itself, lock, stock and barrel. They claim that they
only became aware of the true situation
upon reading the defendants’
answering affidavits which clarified what had in fact been sold to
the second defendant.
This nascent awareness has a bearing on
the issue of prescription raised by the defendants. I clarify
that the first respondent
indicated that, in consequence of the
filing of the defendants’ answering affidavits in the motion
proceedings, the first
plaintiff became aware for the first time only
then of his “cause of action” available to him in terms
of section 58A
(2) of the School’s Act and that this claim had
certainly not become prescribed.
[3]
[6]
The
defendants objected to the plaintiffs’ proposed amendment of
the main prayer itself, resulting in the issue of a formal
application to amend and for leave to supplement the founding
affidavit. This application was in turn opposed but the upshot
of the matter is that the proposed amendment was allowed. In
delivering judgment the court, rather propitiously, remarked
upon the
fact that it was a matter which was most unlikely to be decided on
the papers given the extent of the disputed facts and
that it ought
to have been referred to oral evidence to ventilate these disputes.
[7]
It
is relevant to mention that the supplementation of the original
papers was delayed after the amendment was allowed, resulting
in an
application for condonation by the plaintiffs of the late filing of
their so-called “supplementary papers”, vehemently
opposed by the defendants, which formed the vehicle by the latter to
deal with a challenge to strike out,
inter
alia
,
the whole of the replying affidavit of one Mr. Riaan Van Rensburg
which had been filed in support of the applicants’ case
to
establish the status of Playways as a public school. This
included the annexures to his affidavit which are as follows:
Annexure
“RVR1”- an Institution Registration Report extracted from
the data base of the Eastern Cape Department of Education’s
Education Management Information System (“EMIS”) on 14
May 2010 which reflects Playways as a public sector school with
registration date 1 January 1983; Annexure “RVR2” -
a staff establishment report of Playways as at 9 April 1999
which
indicates that Playways qualified for one post of principal at the
relevant time;
[4]
Annexure
“RVR3” - another official staff establishment for 1
January 2003 which indicates the number of staff members
for which
Playways at the time qualified, viz three; and Annexure “RVR4”
- selective Persal Snapshots in respect
of Playways for the period
2005 – 2010, which indicates that over this period a principal
at Playways was remunerated by
the Department. All these
documents in the plaintiffs’ view cumulatively establish that
Playways is (and was at the
time of the impugned sale) a public
school which is what was hoped to be achieved by the introduction of
this deponent’s
affidavit and annexures, albeit only in their
replying affidavits.
[8]
The
basis for the objection by the defendants to the introduction of Mr.
Van Rensburg’s evidence - which had been foreshadowed
by an
earlier notice to strike out dated in 2010 already, is that his
testimony concerning the “facts” purported to
be
represented by these annexures amounted to hearsay evidence. In
addition, it was submitted that he had failed to demonstrate
that the
data sought to be introduced as evidence was or is inadmissible in
terms of the Electronic Communications and Transactions
Act, No. 25
of 2002 (“the ECTA”).
[9]
On
26 November 2013, when this aspect and others raised by the
interlocutory applications and notices to strike out fell to be
determined,
[5]
the court missed
the opportunity to come to grips with the application by the
plaintiffs to condone the introduction of several
so-called
supplementary affidavits, and the objections, resolving instead that
it was necessary to refer the various disputes which
has been raised
in the application to trial to be properly ventilated. As a result,
an order was issued in the following terms:
“
1.
The Application is referred to trial;
2. the Notice of
Motion shall stand as a simple summons;
3. the Notice of
intention to oppose shall stand as a notice of intention to defend;
4.
the Applicant (sic)
shall
deliver a declaration within 30 days of this order;
5. thereafter the
rules relating to actions shall apply;
6.
the cost to date shall be reserved for determination by the trial
court.”
[10]
The
relief sought by the plaintiffs’ in their declaration, post
compliance with the order aforesaid, accords with the prayers
sought
in the application as per the amended notice of motion and is
premised on the complaint that the deed of sale concluded
between
Playways and the second defendant, and the subsequent transfer of the
immovable property to it, was wrongful, void and
unlawful on the
following grounds, now in this reconstituted order of significance:
10.1
the
first plaintiff did not give his written consent to the alienation
and transfer of any of the property of Playways to the second
defendant as is required pursuant to the provisions of the section
58A(2) of the Schools Act;
10.2
the
sale of the school to the second defendant was precluded by the
provisions of the school’s constitution applicable at
the time,
alternatively was not consistent with such provisions, further
alternatively, was not authorized in accordance with such
provisions;
10.3
the
sale was not authorized by a properly constituted, quorate meeting of
the school governing body; and
10.4
the
entire transaction was fraudulent as the chairperson of the governing
body accepted a bribe from the second defendant to conclude
the deed
of sale.
[11]
The
last ground was ultimately not pursued upon trial or in argument.
The plaintiffs also failed to adduce any evidence regarding
the
alleged unconstitutionality of the sale of the school at the trial.
Instead the emphasis was placed firmly on the first
ground indicated
above, albeit the first plaintiff had been at pains in the
application papers to establish a basis for a complaint
even on the
earlier mistaken assumption that what had been disposed of to the
second defendant was only the fixed property and
without a
realization of his supposed cause of action premised on a
contravention of section 58A (2) of the School’s Act.
In
this respect, albeit only co-incidentally to deal with the point that
he lacked
locus
standi
in the matter, Mr. S S Zibi, a deputy director in the Department,
justified the first plaintiff’s interest in associating
himself
with the initial relief sought in his affidavit as follows:
“
It
is denied that even if this Honourable Court accepts that the school
was prior to its sale a private school, the First Applicant
has no
locus
standi
to interfere with its sale. As set out in the founding papers,
the School Governing Body acted
ultra
vires
the school’s own constitution in the manner in which the school
was sold. The First Applicant as the responsible official
for
the provision of education in the Eastern Cape, and as the employer
of the principal of the school, therefore has the continuing
locus
standi
to bring this application.”
[12]
After
the referral to trial it appears to me that the first plaintiff was
not as confident of his interest in the matter if it transpired
that
Playways was rather a private school. The allegations by the second
plaintiff in her initial founding affidavit that she was
acting in
both her personal capacity and
ex
officio
as the principal of the voluntary association pursuant to its
constitution, as well as that of the third defendant that he was
a
parent (and for that reasons an ordinary member) and vice-chairperson
of that voluntary association, also appeared to recede
into the
background in the action proceedings, the emphasis instead being on
the supposed statutory contravention.
[13]
In
the action the defendants filed three special pleas and pleaded
over. The plaintiffs replicated, and the defendants filed
a
re-joinder as well.
[14]
In
brief the special pleas are, firstly, that the plaintiffs’
claims constitute debts as contemplated in the Prescription
Act, No.
68 of 1969 (“the
Prescription Act&rdquo
;) which had become
prescribed. They assert in this respect that these claims arose
on 1 December 2006 when the school and
fixed property were sold,
whereas the proceedings were instituted by service of a notice of
motion and founding affidavit only
on 12 March 2010, a period in
excess of three years from the date upon which the alleged debts
became due and prescription commenced
to run. Secondly, the
defendants plead that the plaintiffs, for various reasons, lack
locus
standi in iudicio
to claim the relief sought in these proceedings
[6]
and, thirdly, that Playways was not and is not a public school as
contemplated in the Schools Act but is in fact an independent
school
conducted by a voluntary association with its own constitution which
was wound up and no longer exists in fact or in law.
The last
plea postulates by implication that even if this court were to find a
cause to set aside the sale, that Playways is incapable
of giving
effect to the relief sought. They plead that such relief is
accordingly not competent in law.
[7]
[15]
The
plea over asserts that Playways is not and never was a public
school. It was at all material times the name of an independent
school conducted by a juristic person, being a voluntary association
governed by the terms of its own constitution and that that
entity
has ceased to exist having been wound up in terms of its
constitution. It further denies any basis whatsoever to impugn
the sale.
[16]
In
respect of the plea of prescription, the plaintiffs deny the facts on
which the plea is based. They plead further that
the purported
sale of the school to the second defendant is a legal nullity from
which no legal consequences can flow. Accordingly,
the
provisions of the
Prescription Act do
not apply to their claims.
In any event, so they plead, prescription only commenced running on
or about the date of transfer
of the fixed property from the first
defendant to the second defendant, that is on 13 March 2007, and that
service of the notice
of motion, on 12 March 2010, occurred less than
three years thereafter. In the further alternative they allege
that they
only became aware of the purported sale during or about
August 2007, less than three years before the service of the notice
of
motion. In a further alternative they hold out that they
only became aware of the true nature of the sale between the first
and second defendants and the full nature of their cause of action on
or about 22 April 2010 when the first and second defendants
filed
their answering affidavits in the application (in which it was for
the first time apparent to the Department’s officials
that the
school in addition to fixed property had been sold) which is the date
they claim that prescription, if applicable, only
commenced to run.
[17]
In
respect of the second special plea of lack of
locus
standi
they aver that Playways was at all material times a public school;
was indeed conducted by a juristic person with its own constitution;
has not been wound up in terms thereof; and continues to exist.
They claim that the Department and the other two plaintiffs
vitally
have
locus
standi
because of their particular standing in relation to Playways as a
public school and the official roles played by them at the time
of
the impugned sale.
[18]
In
respect of the third special plea, the plaintiffs claim that Playways
was and remains a public school as contemplated in the
Schools Act.
[19]
It
appears that the following are the issues which are properly required
to be determined by this court namely:
19.1 what the status
of the entity was which sold the school to the second defendant, i.e.
whether a public or a private school;
19.2 whether the
plaintiffs have
locus standi
in either scenario to challenge
the sale;
19.3 assuming
locus
standi
, whether the sale of the school and its property falls to
be set aside on any basis following the court’s determination
of
its status at the relevant time whether as a public or a private
school;
19.4 whether the
plaintiffs’ claims have prescribed; and
19.5
what relief, if any, can be granted in the event I find cause to set
aside the sale and its consequences and that the relevant
claims have
not prescribed.
[20]
The
question whether Playways is, or rather was, a public or an
independent school impacts significantly on how the other issues
are
to be approached. I will accordingly commence with a
determination of this aspect. It is not hard to imagine that
if
this facet is determined in favour of the plaintiffs that their claim
(at least regarding the purported nullity of the sale)
raises a
rather nuanced matter of public interest and that their respective
legal standing will then have to be seen through a
different prism.
Although the second and third plaintiffs (and indeed the first
plaintiff for that matter) purported on the
pleadings to challenge
the sale even on the assumption that the school was the entity
contended for by the defendants, their real
interest resides in my
view in a public-school context and the Provincial Department of
Education is the real driver behind the
claim with them being the
necessary complainants.
[21]
It
is perhaps useful to begin with an examination of what the
plaintiffs’ primary claim is. Section 58A of the Schools
Act provides as follows:
“
58A.
Alienation of assets of public school. —
(1)
The
Head of Department has the right to compile or inspect an inventory
of all the assets of a public school.
[8]
(2)
No
person may alienate any assets owned by a public school to another
person or body without the written approval of the Member
of the
Executive Council.
(3)
Despite
subsection (2), the Member of the Executive Council may—
(a)
determine
that certain categories of assets below a certain value may be
alienated without his or her written approval; and
(b)
determine
and publish the value contemplated in paragraph (a) by notice in the
Provincial Gazette.
[9]
(4)
…”
[22]
The
raison
d’etre
for this provision, inserted by
section 6
of the
Education Laws
Amendment Act No. 24 of 2005
, as appears from the Memorandum on the
objects of the Bill which foreshadowed it, is as follows:
“
In
terms of the SASA
[10]
a public
school has a right of ownership of the assets of that public school.
The assets of public schools are acquired through
funds received from
the state, from school fees or donations to the public school.
These are public assets and must be used
by all role payers of the
school. The movable assets of the school consist of school
desks, equipment and similar assets
used in the professional delivery
of education programmes in the classroom.
In special schools
such as agricultural schools, the livestock and agricultural
equipment are an integral part of the educational
activities offered
by such schools. Currently there is no provision in the SASA to
regulate the alienation of these school
assets. It has been
shown that some public schools alienate school property without the
approval of the Member of the Executive
Council, and in many cases
such property is alienated without an actual value attached to it.
The
proposed new clause 6 seeks to ensure that assets that are needed for
providing proper educational programmes in a public school
are
protected. However, since such an approval might create a huge
administrative problem in the Provincial Education Department,
the
Bill seeks to allow the Member of the Executive Council to determine
categories of assets below a certain value that may be
alienated
without written prior approval.”
[23]
It
appears from the foregoing that the assets envisaged by
section 58A
(2) which fall to be protected against their unauthorized alienation
are movable assets only, the value of which are worthy of
vexing the
MEC with the administrative burden of signing off in respect of.
I am fortified in my view of this by the fact
that the Schools Act
deals differently and separately with immovable property in a public
school context.
[11]
[24]
The
prayers as stated in the declaration are somewhat confusing because
the plaintiffs seek the court’s intervention in respect
of both
movable and immovable property, also seeking an order of re-transfer
in effect. Prayer (b) envisages that the third
defendant effect
transfer of the property (which must be the land because otherwise
the Registrar of Deeds would not be nominated
to give effect to this
component of the relief) back from the second defendant to the first
defendant, which is complicated by
the fact that the land was
self-evidently never owned by the first defendant as envisaged in the
way cited by the plaintiffs, but
by Playways Pre-Primary School as
appears from the prior deed of transfer which forms part of the
agreed trial bundle.
[25]
Somewhere
else lurking in all of this is the second and third plaintiffs’
suggested cause of action (which the first plaintiff
was initially
hard pressed to suggest he might also have an interest in associating
himself with in the general interest of the
public) as members of the
voluntary association against it itself (it should have been against
the errant members of the voluntary
association although they were
not joined in the proceedings), premised on those members purportedly
acting in disregard of Playways’
constitution and which conduct
resulted in a transfer of its assets, a legal state of affairs which
is required to be reversed
in substance and form. The third claim is
however not something I need apply my mind to any further however
since, as indicated
above, the private constitutional challenge, if I
might call it that, appeared to have all but fizzled out by the time
of the trial.
[26]
For
present purposes I will focus on the effective relief sought by the
plaintiffs which is to restore the status
quo
ante
on the assumption that, if Playways was a public school, the
permission of the Member of the Executive Council (“MEC”)
for the sale ( at least of the movable assets regardless of their
nominal value) ought to have been sought, which self-evidently
did
not happen because the first defendants did not believe that the
voluntary association owed any fealty to the MEC to consult
him
regarding the sale.
[27]
On
the issue of onus, the plaintiffs, whilst seemingly accepting that
they bore the onus to prove that the school was a public one
and
purported to do so by adducing evidence towards this end were yet of
the view that the defendants had an obligation to prove
that it was
an independent as opposed to a public school at the time of the
purported sale and transfer by Playways to the second
defendant of
its property. In this respect they assert an onus on the
defendants to rebut the
presumption
that Playways is a public school on the premise of what their EMIS
records say
[12]
and based on
the doctrine of
praesumuntur
rite esse acta
which assumes the validity of those records, aspects I will shortly
deal with. The thought does not seem to have occurred
to them
however, inasmuch as
locus
standi
was also placed in contention, that Playways’ standing as a
public school had to be established by the first plaintiff also
in
order to assert his interest in the action on this premise.
[13]
[28]
The
plaintiffs also appear to have been under the misapprehension that
the defendants bore the onus to prove that the sale of the
school and
fixed property was not in conformity with the constitution of
Playways whereas in my view the onus is clearly on he
who alleges
such a fact to establish it according to the ordinary incidence of
the onus.
[29]
The
onus is of course properly on the defendants to prove when
prescription commenced to run and that the plaintiffs’ claims
had become prescribed before service of the application papers on the
plaintiffs on 12 March 2010.
[30]
Before
dealing with the evidence, I should perhaps make another preliminary
observation concerning the probative value of the affidavits
filed in
the motion proceedings since the proceedings were converted into a
trial.
[31]
The
proper approach to be adopted in this respect has been helpfully
stated by the Supreme Court of Appeal in Lekup Prop Co. No.
4 (Pty)
Ltd v Wright
[14]
as follows:
“
Before
making the appropriate order, I wish to say something about the
manner in which the trial was conducted. It will be recalled
that the
appellant initiated motion proceedings and that the matter was
referred to trial after the respondent had filed his answering
affidavit. At the trial, the respondent was allowed to read from that
affidavit and did so, extensively. That was not the correct
procedure. A witness who gives evidence in trial proceedings, must do
so in the ordinary way. In our practice, lay witnesses are
not
usually permitted to read from pre-prepared statements even if those
statements have been prepared by themselves. The learned
judge a quo
was under a misapprehension as to the status of the affidavits, as
appears from what he said whilst Legh was being
cross-examined,
namely: ‘I will accept that the affidavits in this application
are proper evidence before this court’.
Affidavits
filed may of course be used for cross-examination and also as proof
of admissions therein contained, but (save to the
extent that they
contain admissions) they have no probative value; and in the absence
of agreement, they do not stand as the witness’s
evidence-in-chief, or supplement it
.
And if, by agreement, they are to be treated as such, it is
unnecessary and a waste of time and costs for them to be read into
the record. A referral to trial is different to a referral to
evidence on limited issues. In the latter case, the affidavits stand
as evidence save to the extent that they deal with dispute(s) of
fact; and once the dispute(s) have been resolved by oral evidence,
the matter is decided on the basis of that finding together with the
affidavit evidence that is not in dispute.” (Emphasis
added)
[32]
Although
the parties were agreed as to the correct approach to be adopted in
the circumstances, each had their own view of what
the court might
rely upon as established facts at the end of the day. Mr.
Heunis submitted that because there was an absence
of oral evidence
by the defendants in respect of the issue of when the plaintiffs’
claims arose; that Playways was properly
wound up and no longer
exists; which constitution was the valid one; and because it failed
to refute, even on the defendants’
say so as to which
constitution was of application, that the sale could not have passed
muster, that I could take the plaintiffs
version as it were on these
issues as set out in the affidavits as established facts, but this
appears to me to be opportunistic
and based on an incorrect approach
concerning where the onus lies in respect of the last three aspects.
I am inclined to
agree with Mr. Ford that what
Lekup
[15]
envisages as going through to the body of accepted evidence
ultimately must be proper and unequivocal admissions and not assumed
admissions based on the other party’s apparent acceptance
thereof or failure to renounce it vociferously, i.e. non-denials.
It must be borne in mind that the plaintiffs’ version on the
crucial aspects in relation to the defendants’ is as far
as the
East is from the West, which is why my colleague found it necessary
to refer the matter to trial in the first instance.
The status
of various affidavits filed in the application is also unclear since
condonation and interlocutory applications were
not finalized despite
it being contended that certain evidence was inadmissible either for
want of compliance with the rules of
the court or because it was
hearsay or otherwise found wanting. Further, since much time
had passed between the issue of
the application and the commencement
of the trial, and concessions had been made along the way, it
appeared to me to be risky to
make assumptions in the absence of the
parties’ firm agreement as to what should or should not have
been carried forward
from the voluminous papers as proper
admissions.
[16]
[33]
To
demonstrate but one example, it came as a surprise to me that at the
trial the principal players in the whole fracas, the complainants
who
had sounded the warning to the Department that the terms of Playways’
constitution had been so egregiously and flagrantly
ignored, and who
evidently pressed upon the first defendant to interpose himself in
the sale transaction, did not give
viva
voce
evidence. The very serious allegations of fraud and bribery
were not given flesh in the evidence at all and this ground relied
upon to void the sale simply fell by the by, yet I was only informed
in reply when counsel argued before me that this aspect, which
I
perceived to be significant, had consciously been abandoned.
[34]
There
are of course aspects which are self-evidently not in contention and
which one can deduce using common sense and logic.
[35]
Further,
the parties have helpfully listed at least the following common cause
facts which appear from the pleadings:
35.1
the
identities of the plaintiffs and the second defendant;
35.2
that
the second plaintiff was a principal of the school from approximately
1 January 2001 to the end of December 2006;
[17]
35.3
that
the third plaintiff was the vice-chairperson of the governing body
for a limited period of time;
[18]
35.4
that
the school was conducted by a juristic person with its own
constitution capable of suing and being sued in its own name;
[19]
35.5
the
deed of sale annexed as Annexure “A” to the plaintiffs’
declaration;
35.6
that
the third defendant registered transfer of the property to the second
defendant in terms of Deed of Transfer T1236/2007 on
13 March 2007
and that a copy of the deed of transfer is annexed to the plaintiffs’
declaration as annexure “B”;
35.7
that
the first plaintiff did not give written approval for the alienation
of any of the school’s property to the second defendant
as
contemplated in the Schools Act, it being the defendants’
contention that such approval was not required; and
35.8
that
the plaintiffs demanded that the first and second defendants cancel
the deed of sale and that they have refused to restore
the status
quo
ante
.
[36]
The
trial commenced before me on 19 April 2016 but was postponed on the
second day because of the late discovery by the second defendant
of
certain documentation and a last minute formal objection by it to the
admission into evidence of the data printouts in respect
of which Mr.
Riaan Van Rensburg testifying on behalf of the plaintiff had
commenced giving evidence. I granted the application
and ruled
that each party had to bear its own costs of the postponement.
[37]
The
reason for the costs award is that both parties were in a sense to
blame for the state of affairs which had arisen. Whilst
the
plaintiffs were clearly prejudiced by the late discovery of
voluminous documentation days before, they equivocated before the
trial commenced about whether they would object or not and seek a
postponement. The second defendant, on the other hand had
not
bothered to indicate beforehand, though the pre-trial processes, that
it would raise a formal objection to the introduction
of the computer
printouts upon which the plaintiffs vitally relied to prove the
school’s status, well anticipating that Mr.
van Rensburg would
deal with these records in his oral testimony. Mr. Ford raised the
objection for the first time when Mr. Van
Rensburg commenced giving
his testimony notwithstanding what had been recorded in the minute of
the parties’ case management
conference regarding how
documentation was to be dealt with. The parties’ trial minute
provides,
inter
alia
,
that the plaintiffs would prepare the trial bundle; that copies in it
could be used without further proof; that each would serve
as
evidence of what they purported to be without being proof of the
truth of the contents; that extracts could be used; and that
each
party would have the right to call for the whole document or the
original, or to challenge the authenticity of a document,
on
reasonable written notice.
[20]
[38]
It
is common cause that no such notice of objection was raised by the
plaintiffs.
[39]
The
Draft Case Management Directive (“DCMD”) applicable to
this court in respect of trial litigation imposes upon the
parties
the obligation to limit issues as best they can and to streamline the
trial by alleviating technical objections.
[21]
It was held in Skom v Minister of Police & Others in re Singatha
v Minister of Police & Another
[22]
that case management is not merely facilitative, but in fact a vital
and necessary tool to ensure the enhancement of access to
quality
justice for all, not least of all though the effective, efficient and
speedy finalization of matters. It certainly
impedes access to
justice and hampers the finalization of an action when a trial grinds
to a halt mid testimony because the legal
representatives have become
embroiled in a side dispute about the status of documents which they
should have reached agreement
on through the case management
processes.
[40]
I
take Mr. Ford’s point that generally issues of inadmissible
hearsay evidence cannot be anticipated or dealt with in a pre-trial
forum because such challenges arise spontaneously during the trial
and must be determined by the rulings of the court, but the
circumstances here were very different. Ironically, he
submitted that it should have been abundantly plain to the plaintiffs
that the second defendant was vehemently opposed to the introduction
of the records sought to be introduced through the testimony
of Mr.
Van Rensburg as their objection had been foreshadowed in at least two
interlocutory applications and outlined in the notices
to strike out
filed during the course of the motion proceedings. He submitted
that, since this aspect had not been dealt
with by my colleague when
issuing the order referring the matter to trial, it was an “issue”
that obviously remained
alive and fell to be determined upon trial.
Whilst I do not agree that it simply followed that the script for the
motion
proceedings would prevail perfunctorily, it certainly behoved
the parties to pertinently deal with what might still be in
contention
going forward insofar as it would impact upon the trial.
In respect of the contentious evidence of Mr. Van Rensburg, which
was
reasonably anticipated by the defendants’ counsel at least,
they should in my view properly have pressed upon the plaintiffs’
representative that there would be issues of admissibility if the
deponent were to persist in introducing the contentious records
by
medium of his oral testimony, were they mindful of the objectives of
case management.
[41]
As
it transpired the plaintiffs were not merely objecting to Mr. Van
Rensburg’s evidence on the basis that it was hearsay
plain and
simple. Mr. Ford’s objection was that documents which he
anticipated the deponent would seek to introduce
through his
testimony are extracts from electronically stored documents, i.e.
“data messages” as envisaged in the ECTA
and that because
of this the plaintiffs were expected to follow the prescripts of the
act, more particular section 15 (4), which
requires a certificate to
be produced concerning the nature of the data message and its
production. The further objection
that the documentation sought
to be relied upon was by obvious implication of a hearsay nature, or
at least not in its original
form, and that reliance could not be
placed thereon unless application was made for its admission pursuant
to the provisions of
the Law of Evidence Amendment Act, No. 45 of
1998 (“the Evidence Act”) was merely co-incidental.
His complaint
was that the plaintiffs had made no attempt to bring
the evidence sought to be admitted within the parameters of section
15 (4)
of the ECTA. I expect that the provisions of
section 15 (4) of the ECTA had not even occurred to the first
plaintiffs’
representatives as no certificate to this effect
had been put up by the time of the trial. To the contrary they
were blindsided
by the fact that no objections to the admissibility
of the documentation in the trial bundle had been noted pursuant to
the pre-trial
minute aforesaid.
[42]
It
became plain that the parties had thus reached an impasse. Mr.
Ford insisted that the defendants’ objection be argued
and
ruled upon (as an ordinary objection to hearsay evidence sought to be
introduced), failing which Mr. Van Rensburg could not
give the
anticipated testimony. I stood the matter down until the
following morning to enable the first plaintiff to consider
his
position and/or to prepare an argument in rebuttal.
[23]
By the next day the plaintiffs felt themselves pressed into a corner
and having reached their “tipping point”,
as Mr. Heunis
put it. Until then they had been prepared to countenance the
defendant’s late discovery but having regard
to what they now
perceived to be an obstructive attitude on the part of the defendants
regarding the issue of the admissibility
of the Department’s
EMIS records, became disinclined to pursue the matter further without
the safety net of a postponement.
[43]
Since
this issue of admissibility continued to take centre stage, I digress
briefly to outline the relevant legislative provisions
in this
regard.
[44]
Section
15 of the ECTA provides as follows:
“
15.
Admissibility and evidential weight of data messages
(1) In any legal
proceedings, the rules of evidence must not be applied so as to deny
the admissibility of a data message, in evidence-
(a) on the mere
grounds that it is constituted by a data message; or
(b) if it is the
best evidence that the person adducing it could reasonably be
expected to obtain, on the grounds that it is not
in its original
form.
(2) Information in
the form of a data message must be given due evidential weight.
(3) In assessing the
evidential weight of a data message, regard must be had to-
(a) the reliability
of the manner in which the data message was generated, stored or
communicated;
(b) the reliability
of the manner in which the integrity of the data message was
maintained;
(c) the manner in
which its originator was identified; and
(d) any other
relevant factor.
(4)
A data message made by a person in the ordinary course of business,
or a copy or printout of or an extract from such data message
certified to be correct by an officer in the service of such person,
is on its mere production in any civil, criminal, administrative
or
disciplinary proceedings under any law, the rules of a self
regulatory organisation or any other law or the common law,
admissible
in evidence against any person and rebuttable proof of the
facts contained in such record, copy, printout or extract.”
[45]
“
Data”
is defined in section 1 of the ECTA as “electronic
representations of information in any form” and a “data
message” as “data generated, sent, received or stored by
electronic means and includes … a stored record;”
[46]
It
is common cause
in
casu
that all four documents generated by Mr Van Rensburg and which were
ultimately introduced
via
his testimony constitute “data messages”.
[47]
From
a reading of the ECTA’s purpose and objects its aim is not to
disqualify electronic communications and transactions as
evidence,
but rather to facilitate the use thereof as such.
[48]
In
essence section 15 (4) of the ECTA (if applicable) creates a
statutory exception to the hearsay rule in favour of data messages
made during the ordinary course of business, and it further creates a
rebuttable presumption that such records are correct.
[49]
In
Ndlovu v Minister of Correctional Services and Another,
[24]
the court carefully interpreted its provisions. Firstly, on a
proper reading, section 15 (1) (a) does not proscribe the exclusion
from evidence of a data message on the mere ground that it was
generated by a computer and not by a natural person, and section
15
(1) (b) on the mere grounds that it is not in its original form.
Secondly, section 15 (1) does not do away with the three
requirements
with which documentary evidence generally has to comply with in order
to be rendered admissible in evidence.
Statements contained
therein still have to be relevant and otherwise admissible. The
authenticity of the document must still
be proved, and the original
document must normally still be produced. This is of course
unless section 15 (1) (b) applies.
[25]
[50]
Thirdly,
a data message, once it has been admitted in evidence, has to be
given due evidential weight pursuant to the provisions
of section 15
(2), the assessment of which requires regard to be had to the factors
set out in section 15 (3), as set out in paragraph
[44] above.
[51]
Fourthly,
section 15 (4) provides an exception to the manner of proof and
evidential weight ordinarily to be accorded to a data
message.
There are two situations in which a data message may on its mere
production be admissible in evidence. The
first is where it is
made by a person in the ordinary course of business which, when
juxtaposed with the words which follow, clearly
refers to an original
data message which is required to have been made “in the
ordinary course of business”.
The second is where a copy
or printout of or an extract from such data message is put up, which
is certified to be correct by an
officer in the service of such
person, the latter being the one who made the data message in the
ordinary course of business,.
[52]
Once
either of these two situations is present, the data message is on its
mere production admissible in evidence and rebuttable
proof of the
facts contained therein. Thus viewed, section 15 (4) of the
ECTA, which appears to be a self-contained provision,
creates a
statutory exception to the hearsay rule in favour of data messages
made during the ordinary course of business.
In such event the
“qualitative enquiry” envisaged by sections 15 (2) or (3)
in regard to the weight to be attached
does not arise. It
further creates a rebuttable presumption that the facts contained
therein are correct.
[53]
At
the resumed hearing the plaintiffs’ counsel was by now ready to
deal with the objection, but Mr. Ford surprisingly contended
instead
that an assessment of Mr. Van Rensburg’s testimony and the
probative value of the relevant annexures could be dealt
with at the
end of the hearing. The first plaintiff had also, in the
meantime filed a section 15(4) certificate which provides
that:
“
[I]
confirm that the copies of extracts and/or printouts which appear on
pages 73, 74, 75, 76,
[26]
80,
81, 82, 83, 84,
[27]
117
[28]
and 118
[29]
of the Trial
Bundle were extracted from the Department of Education’s data
bases and I confirm and certify that they are
correct.
I
further confirm that I have access to the Department’s data
bases in the ordinary course of the performance of my
responsibilities;
that I am responsible for updating and maintaining
those data bases; and, that I made the aforementioned extracts and/or
printouts
during the ordinary course of the discharge of my
responsibilities.”
[30]
[54]
If
the application had proceeded to its logical conclusion, I might have
been inclined to provisionally admit the annexures by reason
of the
fact that it was revealed by Mr. Heunis during the course of replying
to Mr. Ford’s argument in the application for
postponement
after all of that that he was “not presenting the document(s)
about which Mr. Van Rensburg (was testifying)
… as proof of
the contents thereof, but as a reflection of information that may not
be correct of what is at the Department’s
disposal”.
[55]
Far
from the first plaintiff maintaining this position regarding the
status of the Department’s EMIS records however, the
filing of
the section 15 (4) certificate appeared to provide the impetus for
Mr. Heunis to argue, at the end of the trial, that
since the first
plaintiff had put up the relevant certificate in proper form in
compliance with the sub-section, which had said
all that needed to be
said, a rebuttable presumption came to the fore that the records
produced by Mr. Van Rensburg are therefore
correct. It is
on this basis that he argued that the second defendant bore the onus
to rebut the presumption “that
Playways is a public school”,
a duty which it failed to discharge. Alternatively, he
submitted that the provisions
of sections 15 (4) (a) and (b) of the
ECTA applied and that that it was vitally in the interests of justice
in terms of sections
5 (3) (1) (c) and (4) of the Evidence Act to
admit the data messages introduced through his testimony. I will say
more about this
later when I evaluate the evidence.
THE
PLAINTIFFS’ EVIDENCE:
Mr
Van Rensburg:
[56]
Mr.
Van Rensburg was the principal witness in support of the plaintiffs’
case that Playways was and indeed still is, at least
according to the
Department’s records, a public school. He is in the
employ of the Department as a Chief Education
Specialist in EMIS, in
which capacity he is responsible for maintaining its information
systems. This includes inputting
and maintaining information
regarding schools and learner and educator information. In 2000
he was seconded to EMIS from
the East London Teachers Centre (where
he was then engaged in instructing educators on computer practice and
literacy) to resolve
a problem experienced by the Department
concerning the instability of the platform on which its management
information system was
hosted. The Department was attempting at
the time to capture the results of annual and snap surveys, which
both public and
private schools are required to conduct, but the
system in use at the time was not suited for such large quantities of
data.
It was also lagging two years behind.
[57]
When
he arrived at EMIS there was a list of all schools in the province,
but it was not well managed. EMIS was required in
the ordinary
course to consolidate the list and to verify the information going
into the master file. The master list is
critical, so he
explained, because there are many resource intensive activities that
depend on the information generated by the
system, so for example
post establishments, allocation of funding etc. Practically how
they consolidated was to take the
most recent update of the master
list which they had had at their disposal at the time. They
obtained downloads from persal
and then went through a manual process
of linking schools (identified by unique EMIS reference numbers
allocated to each institution)
to persal pay points and by verifying
this information.
[58]
He
conceded that he had not seen any original documentation for Playways
when he was asked in 2010 to report on the school’s
sector
status despite requesting the archive headquarters for the former
Cape Education Department in Cape Town to search their
records for
any information in this respect. He suggested that these vital
records may have been lost pre-amalgamation. The master
file however
listed Playways as being a public school which settled the matter for
him. He explained that he examined only
two sources to
determine whether or not this information was correct, namely the
staff post establishments for public schools and
the persal records,
which is the government payroll system.
[59]
Post
establishment or provisioning is a critical source in his view.
These allocations of resources to public schools is in
turn based on
an annual survey in which only public schools are expected to
participate to determine the post establishment for
each year.
[60]
The
questionnaires that inform the survey are completed by the school
principal of each school. The information provided in
these is
captured on the EMIS and thus becomes electronic data. The hard
copies of the surveys are kept but destroyed after
five years.
[61]
Persal
has their own strict controls and source documentation for every
transaction. So, for example, in the event of the appointment
of an
employee the source document is the actual appointment letter.
[31]
These would be filed on each staff member’s file kept by the
registry of the Department.
[62]
Independent
schools do not feature on the payroll system according to him because
their appointments are done independently by the
relevant school
governing body.
[63]
Since
2000 EMIS has a document to support every transaction that happens on
the master file. The auditor-general will have
regard to these
documents when auditing the EMIS itself. Even if a school is
closed, EMIS must have written authorization
from the relevant
functionary to reflect that status before being able to commit such a
transaction on their data base.
[64]
The
official staff establishment issued in 1999 which he produced for
Playways, indicated in his view from the information reflected
therein that Playways was a standalone public pre-primary school with
twenty-eight Grade R learners at the time and that the school
was
allocated one principal post according to the relevant distribution
formula applied, signed off by the acting permanent secretary
at the
time. This allocation would have been based on the annual
survey completed in March the year before. Staff establishments
for schools are declared by 30 September before the ensuing year.
This staff establishment would have been used as one of
the sources
employed by EMIS in 2000 to verify the authenticity of their master
file. Once the post establishments are declared,
persal loads
this information to its own system so that the educator is in due
course paid.
[65]
The
institution registration report (Annexure “RVR1”) is a
document which he claims to have generated himself in 2010
when he
became involved in the motion proceedings and which indicates the
relevant information that is on the master file for Playways.
It is merely a “graphical layer” that extracts
information from the master file.
[66]
In
this case it showed Playways to be a standalone Early Childhood
Development (“ECD”) site. Such a site is one
which
after the amalgamation of the different school departments in 1994
were sites that only offered the pre-primary schooling
phase but had
teachers appointed at these that were government appointed. Presently
Grade R forms part of ordinary public schools
and its practitioners
(which are not fully-fledged educators) are paid from persal.
By a process of attrition,
the Department is no longer
filling posts at standalone sites once they become vacant.
[67]
The
document also reflects the name of the pre-school (even a name change
must be accommodated by an official approval), that it
is situated in
the East London district in Circuit 3; its telephone and telefax
details; the geographic information system detail
of its location;
its non-section 21 status (only applicable to primary and secondary
schools), its operational status (as at 14
May 2010 when the
registration report was printed) - namely still operational, that it
is in the public sector, the persal pay
point reference number, and
the school manager’s name (which name incidentally did not
appear to be significant to any of
the witness who testified). Each
facet of the report would have come from different sources he
explained. So, for example,
the section 21 status information
would have been apprised to them from the finance section. The
geographic information system
coordinates would come from
infrastructure, and so on.
[68]
Most
critically, the document also reflects the registration date of
Playways as being 1 January 1983. This would indicate,
so he
explained, when the school started to operate or became an education
institute. Asked where this detail would have
been extracted
from, he volunteered that it was sourced from the national school
register of needs infrastructure survey conducted
at the request of
Treasury in 2000. The objective was that that census would inform
budgeting and planning going forward for school
infrastructure
nationally.
[69]
Annexure
“RBR3” is similar to “RBR 2”, but just a
later adapted template of the staff establishment for
educators in
2003. This establishment indicates that according to the
Department’s formula, Playways qualified for
three posts for
that year, but given the progression by then of Grade R classes being
attached to primary schools they had already
started the process of
attrition and did not fill the second and third posts the school
qualified for despite the targets reached.
He again stressed
that such an establishment would only have applied to a public
school. The source of their information
and result produced in
this instance would again have been the annual survey conducted in
March of that year.
[70]
Annexure
“RBR4”, he explained, was a printout from the EMIS
reflecting a snapshot of the school’s pay point for
the period
2004 – 2010 derived from persal text files imported into their
data base. The persal component number correlated
to a post
level of principal. The other details corresponded to those of
the profile of the recipient of remuneration, who
it is common cause
is the second plaintiff.
[32]
[71]
Although
persal has its own system of checks and balances (he assured the
court of the integrity of the master file which is a read
only file
except for two people who have the right to update or change it), it
transpires that the information which is captured
and uploaded to it
is only as good as the information given by those who are responsible
for filling out the survey forms.
He conceded that sometimes
the information was incomplete or incorrect such as where, for
example, schools think they are independent
whereas as they not, or
vice
versa
,
or where a principal overstates a school’s learner numbers to
achieve a better post outcome. He emphasized that there
are
however quality assurance processes in place to ensure that the data
accords with the reality and is consistent with the integrated
information at their disposal.
[72]
Referred
to a document discovered by the second defendant which is a tenth day
return dated 4 February 2002 by the Little Beacon’s
Pre-Primary
school principal, Ms. Leonard, to indicate that that school, also a
standalone ECD is independent, he asserted that
she was mistaken in
her assessment of the sector of Little Beacons. This was one of
those examples in his view where the
school was not 100% sure and
under the impression that it was independent whereas it is in fact a
public school. He motivated
his answer on the basis that Ms.
Leonard had indicated in the return that she was paid by the
Department. This means in his
view that it is a public school
because a private school does not have state paid employees on its
payroll or, put differently,
the persal system does not allow for
educators employed at independent schools to be paid from the persal
system. Ms. Leonard
had purportedly made this mistake
consistently in other forms put up by the second defendant in
discovery.
[73]
He
conceded the possibility that independent schools do qualify for
subsidies according to policy, which EMIS calculates, but he
disavowed that the Department provides them with paid staff in lieu
thereof.
[74]
He
described the Department’s system of registration of schools as
a positive one, meaning that a school must come forward
to register.
In the case of Playways he could find no trace of the school ever
having been registered as an independent school.
[75]
Under
cross examination he acknowledged that on 5 March 2007 already he had
generated a letter signed by him, addressed “to
whom it may
concern”, which confirmed the status of Playways to be public
insofar as the Department’s EMIS goes.
The letter gave
cover to a profile of the school printed by him off the EMIS
reflecting this information, in response to a request
by the
Department at the time.
[76]
He
gave a context to how the date of registration of the school
reflected on EMIS must have been obtained. The census referred to
above had entailed the National Department sending out field workers
to all the schools to interview the school principals.
The data
captured from this exercise by the National Department was thereupon
given to EMIS. He could not say what had been
recorded at the
time on the original documentation on which this information was
based. He agreed, in respect of the census,
that he had no
control over the data captured by the National Department arising
from the exercise neither could he guarantee the
correctness
thereof. The detail canvassed by the census had however related
to infrastructure needs on the part of schools
generally.
[77]
Whilst
being generally knowledgeable of the Education Information
Policy,
[33]
he had no
knowledge of the legislation which preceded the Schools Act, and
which would have been of application from time to time.
He also
had no independent knowledge that Playways was founded in 1940, the
history of the school or that in 1976 the Cape Education
Department
purportedly took over the payment of teachers’ salaries in lieu
of a general subsidy until these were withdrawn
in1994. He
could not gainsay what Mr. Ford suggested the evidence would be in
this respect neither did he have any comment
to offer as to the
import or significance of the defendants’ anticipated evidence
being in contradiction to his opinion that
persal only pays educators
at public schools. Indeed, as far as he is concerned the
pre-dominant and only indicator in his
view which distinguishes a
private from a public school is that in respect of the latter, an
educator is paid by persal. He could
say this with conviction because
people he interacted with from persal had “assured” him
that this is so.
[78]
It
transpires that he does not have authority to transact on the persal
system neither does he have access to anything except authorized
text
files downloaded from their system to EMIS.
[79]
He
agreed that both the registration of an independent school and a
change to a public school involved extensive processes which
had to
be undergone. He clarified that EMIS only became involved at the end
of such developments.
[80]
He
clarified that when he had been asked to generate the profile report
of Playways in March 2007 his brief had not been to check
whether the
status of the school was private or public, but rather to establish
only if the school was registered on the EMIS,
firstly, and,
secondly, to see if the second plaintiff was indeed on the persal
system. He claims that they did not have
any information to
verify at that point in time whether the school was independent or
public. It was only on 14 March 2010
however that he generated
the comprehensive registration report for Playways which indicated
that the sector of the school was
public.
[34]
[81]
At
the time he generated the registration report in 2010, he had the
school down as still being operational. As a matter of
course,
schools are never deleted from the system but would change to
“pending close” or “closed” once
they
received authorization from the MEC to capture such a change.
According to him Playways was also as at the date of his testimony
on
19 September 2016 still registered on the master file as a public
school.
[82]
After
it was pointed out to him by Mr. Ford that the second plaintiff had
by the date his registration report was generated already
been
excluded from the school and that changes had taken place which
self-evidently were not in line with EMIS’ records,
he
explained that sometimes it takes a while for the relevant and
necessary documents authoring any changes to filter through to
them
for their purposes. The master file also runs independently of
the annual surveys and data entries generated in that
context.
He agreed though that changes to email addresses effected since he
generated the profile in 2007 would have been
prompted by the school
introducing such changes when completing the usual annual survey,
which information would in the ordinary
course have been captured on
the master file.
[83]
In
2010 the sector indicated on the master file would have come from a
combination of persal downloads and the 1999 staff establishment.
He agreed that these two base lines were effectively linked and did
not really constitute separate sources of information.
[84]
It
became apparent when pressed concerning the information pertaining to
the second defendant on the staff establishment that he
deferred to
persal as having the specialized knowledge, particularly regarding
the common cause fact that from January 2007 she
was no longer at
Playways but continued to be employed and paid by the Department
until April 2016.
[35]
He
also deferred to the human resources department concerning the
allegation put to him that the second plaintiff had been
charged with
a criminal offence relating to the theft of money from Playways and
that she had been convicted and sentenced pursuant
thereto.
[85]
He
was not inclined to agree that teachers paid pursuant to the
provisions of sections 5A and B of Ordinance No. 20 of 1956, inserted
by section 55 of Ordinance No. 15 of 1979,
[36]
might also be on the persal system despite the school obviously being
a private one, neither was he prepared to be drawn on the
suggestion
that his insistence that persal paid educators only occur in public
school scenarios was not a reliable indicator.
[86]
He
was unable to engage with Mr. Ford regarding the suggestion that Ms.
Leonard would testify that despite EMIS’ indications
to the
contrary, Little Beacons was also a private pre-primary school and
was dealt with by the Department as such.
[87]
Asked
to indicate the source for the contention in his affidavit filed in
the motion proceedings that no departmentally employed
educators were
allocated to private schools and that it was in fact impossible for
this to happen in terms of departmental policy,
he clarified that he
was deferring to the persal system in that regard “where they
have assured me that no private school
staff member can be employed
on the persal system”.
[88]
He
conceded, with reference to newspaper reports he was referred to
which convey that the Department was having a problem with ghost
employees based on false input from those responsible for completing
the annual surveys (although qualifying that it is an issue
dealt
with by persal and not EMIS), that it was always possible that a data
system could be found to be incorrect based on wrong
or corrupt
information captured. He assured the court however that EMIS
regularly undergoes general audits on a standard
basis as required.
What the standard basis was he never sought to explain.
[89]
He
was not prepared to comment on Mr. Ford’s final submission put
to him that there would be evidence, despite EMIS records
to the
contrary, that Playways and Little Beacons were independent schools
and regarded as such by the Department thus rendering
his sole
reliance on the master file as misguided and wrong.
Mr.
Nxele:
[90]
The
plaintiffs also adduced the testimony of Mr. Ntsele Thomas Nxele, now
retired but previously in the employ of the Department
as Chief
Education Specialist. He was based in East London at the
relevant time and dealt with issues of school governance.
His
testimony was focused on the issue of prescription, but he indirectly
touched upon the aspect of the status of the Playways
School.
In 2006 the second plaintiff made a report to him that the school
(the land) was being sold by the chairperson of
the school governing
body and that she was going to be out of work. In the course of
trying to resolve the issue he stated
that he had visited the school
on a number of occasions and had also tried unsuccessfully to set up
meetings with the relevant
governing body trustees to discuss the
matter. Ironically, despite the professed status of the school
as a public one and
his authority by virtue of his position at the
time, it appears that he made the lackluster attempts which he did
only really to
“assist the principal”, being aware of the
difficulty she was going through. He thought he should attempt
to
meet and try and resolve the matter “so that (they) can have
a kind of understanding where (they) stand on the issue”.
[91]
He
had been informed in no uncertain terms when addressing a then
trustee of Playways, Mr. Schultz, that he had no
locus
standi
to insist that he meet with him because the Department was not a
trustee, shareholder or the owner of the school or of the property
on
which it was situated.
[92]
He
added his own pennies’ worth of why he thought the school was
public, which appears to accord with Mr. Van Rensburg’s
peculiar reasoning:
“
Why
do you say that? --- One thing was that you know, with the staff
establishment schools are allocated posts by the Department
of
Education, so this was one school that was also allocated a post by
the Department of Education and therefore I felt it was
Public School
and secondly they did receive learner support material from the
Department, I think those two issues I felt were
enough to convince
me that it was a Public School.”
[93]
As
it turns out, his resolve of the situation, given that the committee
members of Playways were not prepared to entertain him or
give the
second plaintiff access to the school, was to have her report
(officially) to his office to work there for a few months
until she
went on incapacity leave and was thereafter medically boarded
[37]
.
[94]
He
claimed to be unaware by the time he was agitating to be of
assistance to the second plaintiff of the fact that she had been
prosecuted in relation to the theft of money from school funds and
convicted on the basis of her guilty plea.
[95]
He
appeared to concede that at the time of his purported intervention
and based on what was happening that they did not have the
“capacity”
to deal with the problem (an alarming proposition if on their version
they believed Playways to be a public
school under the control of the
first defendant), although he insisted that there was a lack of
clarity on their part as to what
the legal position was.
[38]
[96]
He
could not dispute Mr. Ford’s submission that the defendants’
evidence would be that Playways had not been provided
with learner
support material. He conceded that he had been so informed by
the second plaintiff and bore no personal knowledge
of this fact.
Dr.
Sipho Lombo:
[97]
The
plaintiffs adduced the evidence of Mr. Sipho Lombo, in the employ of
the Department as director in a program entitled Quality
Promotion
and Standard in Education. He had previously been a director in
the office of the Head of Department as a technical
advisor but it
transpired that he had only been so employed from 1 April 2008 to
November 2009. He could obviously not assist
the court at all,
even in respect of the issue of prescription regarding what had
happened between the time of the report to Mr.
Nxele by the second
and third plaintiffs and the decision taken to litigate ultimately.
Mr.
Eric Jabulani Nbeje:
[98]
Next
the plaintiffs adduced the testimony of Mr. Eric Jabulani Nbeje, who
was in service as a legal advisor to the Department on
secondment
from the office of the Premier from 3 August 2008. His evidence
pertained to the issue of prescription, but he
formed the legal
opinion after the fact (although the plaintiffs did not qualify him
as an expert) that based on his own investigations
Playways was a
public school. What tipped the balance for him is the post
establishment (or the resource target list) declared
in respect of
Playways in accordance with the norms and standards relating to post
provisioning, because, in his considered view,
departmentally paid
posts are only provided to public schools.
[99]
Despite
professing to have formed such opinion, he had no idea concerning the
prior legislative provisions preceding the coming
into operation of
the Schools Act, or when Playways was established, neither was he
aware that there was a time, as it was put
to him by Mr. Ford under
cross examination, when the relevant education authorities indeed
paid educators at private schools.
Ms.
Maritha Alberts:
[100]
The
plaintiffs also led the evidence of Ms. Alberts, a retired former
Director of Human Resources Administration for the Department
of
Education in Zwelitsha who claimed to have considerable experience in
matters of personnel since she had been employed in education
since
1980. According to her the persal system was started in 1993/4
by the Western Cape Department of Education whereafter,
in 1996, the
other departments followed suit. All employees that were paid
by the Cape Education Department and who held
an approved post on the
staff establishment of an institution were transferred onto the
Department’s persal system.
[39]
[101]
According
to her knowledge the Department does not provide departmentally paid
educators to private schools. Rather she proclaimed
that at a
private school the school governing body is the employer and “never
ever will a person employed by a school governing
body be remunerated
by the persal system”.
[40]
[102]
Ms.
Alberts too could not dispute that Playways started in 1940 or
contradict a statement to the effect that the school has always
been
regarded, certainly by those operating it, as a private school.
Neither could she comment on the assertion put to her
that the
Department paid not only one, but two educators at other independent
pre-primary schools. She readily conceded however,
despite her
statement to the effect that departmentally paid educators are not
provided to private schools, that this was possible
in terms of the
earlier Cape Education Ordinance, 20 of 1956.
[103]
I
point out that under examination by the court it transpired that she
no longer has access to persal, albeit she is a consultant,
post
retirement, to the Department in Port Elizabeth. She provided
an archived salary record in respect of Ms. Leonard, the
principal of
Little Beacons while being led in chief but significantly could not
bring the same introspection to the second plaintiff
because she is
not authorized to get information from persal any longer.
[41]
[104]
She
clarified that she was a “Johnny-come-lately” to the saga
of Playways. She was further self-evidently not
qualified as an
expert on persal matters, instead offering the views she did based on
her own personal experience. One would
have thought that that
the plaintiffs would adduce the testimony of someone with authority
in persal in order to bring home the
conviction that it never happens
that staff of independent schools are, or at least were, paid by
persal, and to shed light on
the important changes that were ushered
in by the introduction of the national system of education.
[42]
[105]
As
an aside it emerges from the facts set forth in M J Schentke v The
Member of the Executive Council, Department of Education,
Eastern
Cape Province & Others
[43]
that current day stipends for Grade R practitioners are for
convenience paid by persal directly to practitioners. Paragraph
[11] of the judgment of Stretch J is instructive in this respect:
“
According
to the Department’s legal representative, the Department had
initially paid the stipends which I have referred to
into school bank
accounts to be transferred to the individual practitioners.
However, the money was not always paid over,
which resulted in the
Department registering the payments on its staff salaries system
(PERSAL) to be paid directly to the practitioners.
An
unintended consequence of this step was that the PERSAL system
generated a salary advice and automatically deducted a monthly
contribution to the GPSSBC.”
[44]
THE
DEFENDANTS’ EVIDENCE:
Mrs.
Judith Hollis:
[106]
The
defendant led the evidence of Mrs. Judith Hollis, principal of
Playways for over a decade from 1989 to 2000. She regarded
the
school as private and clarified that she never received any
documentation from the Department referring to the school as public.
Indeed, had she received such, she would have queried it.
According to her, the school was self-funded and received no subsidy
from the Department of Education, which only paid the salaries of
three teachers until 1993, where after they reduced the payment
to
one teacher’s salary. The school was started in a garage
and was thus, from the outset, obviously a private and
later an
independent school.
[107]
Regarding
her appointment to Playways, she related that she had applied
directly to the governing body and was interviewed by trustees
at the
time who hired her on probation at first for a period of six months.
Until then she had worked various educator jobs
and had obtained the
then new requisite pre-primary qualification that would allow her to
teach or to take a post in either sector.
Her first
appointment, post pre-primary school qualification, was as a teacher
at Wonderland Pre-Primary, a private school in Gonubie,
where she was
paid by the Cape Education Department. When her appointment to
Playways was approved, the governing body informed
the Cape Education
Department of their decision and once they were assured of her
pre-primary qualifications, she was put down
on that Department’s
payroll.
[108]
In
spelling out the past of Playways she confirmed that this had been
sourced from a history recordal in a leather-bound book which
the
school had retained. Contributions were made in it by herself,
previous principals, trustees and people who had been
on the school’s
committee from time to time. The most notable and relevant
milestones for present purposes are that
the school started out as a
nursery school in the garage of one Marge Taylor in 1940 until they
moved to their last location in
Berea and erected a proper building
on municipal land; Playways was granted a provincial government
subsidy in 1959; and that the
Cape Education Department took over the
payment of teachers’ salaries along the way (probably thirty
years ago she suggested)
[45]
at a time when pre-primary teachers were expected to get the
necessary pre-primary qualifications. When she commenced
teaching
at Playways there were two other departmentally paid staff
apart from herself. In 1993 the Cape Education Department
withdrew
the salaries of two teachers.
[109]
She
referred to an information circular notice given to new parents of
prospective children coming into school under her reign as
principal,
in which a brief history of Playways is stated amongst other
aspects.
[46]
Two matters
of significance arise from it. Firstly, the abbreviated history
of the school is related as follows:
“
The
school was founded by a group of parents in 1940 and later joined
forces with a school run by Mrs M. Taylor and became Playways.
It is still run by a committee of parents on a non-profit basis.
Until 1957, the School subsisted entirely on fees from parents,
but
by then Playways had reached a sufficiently high standard for
application to be made for a Provincial subsidy which was granted.
In 1976 the Cape Education Department took over the paying of
teachers’ salaries, instead of a general subsidy. In
1994
the Department withdrew the payment of the salaries of two teachers
and they are now employed by the Management Committee.
[110]
Parents
are also informed in the circular that the school is registered by
the Cape Education Department, hence the name “Playways
Pre-Primary”. The circular goes on to note that:
“
Unless
a school is registered with the Department it may NOT call itself a
Pre-Primary. We are not a Creche nor a Day Care
Centre nor an
Educare Centre. Our aim is to help develop the child as a whole
so that when he moves on to Primary School
he is school ready.
We aim to develop the concepts and skills he will need for formal
learning and
ALL
staff members are qualified Pre-Primary teachers.”
[111]
She
claims that there was little interaction with the relevant education
departments in carrying on the school’s existence.
There
was a Ms. Koekemoer in the employ of the Department who would visit
the school once a year and who would occasionally organize
a workshop
for educators of private pre-primary schools on a Saturday.
[112]
All
the movable assets of the school were purchased by the governing body
through funds raised at the school.
[113]
Governance-wise
the school was run by a governing body that consisted of a chairman,
vice-chairman, a treasurer and a secretary,
a representative from the
mothers’ group and herself. Meetings happened monthly.
Annual General Meetings were
held at the beginning of the second
term, budgetary matters were determined towards the end of the year.
The relevant education
department played no role whatsoever in
these matters and conversely no information regarding the school’s
affairs or finances
were reported to them.
[114]
There
would have been a ten-day report (the so-called “Snap survey”
on a pink form) which surfaced from the Department
near the beginning
of each school year and another which was completed annually in which
she is quite sure she would have recorded
Playways as a private
school.
[47]
[115]
Under
cross examination she asserted that she had no knowledge of the
registration date of Playways in the records of EMIS given
as 1
January 1983. She explained that she would have queried this
information if had she seen it along the way because it
was
self-evidently incorrect.
Mrs.
Louise Joy Leonard:
[116]
Mrs.
Leonard gave evidence on behalf of the defendant to the effect that
she consistently reflected Little Beacons, a school like
Playways, as
an independent school on documentation sent to the Department and
that it was never queried.
[117]
Under
cross examination she was at pains to explain why when completing the
annual survey for schools
[48]
on 16 May 2002
[49]
she checked
the box for “public school” and then changed this to
check the box for “independent school”.
She
explained how this came about. Prior to completing the annual
survey for schools, on 14 May 2002 she completed a form
styled “Data
Base For ECD Sites” which on the second page thereof required
one of three options to be selected to indicate
the status of the
Grade R class. The three options are “Grade R class
attached to public primary school”, “class
in community
based centre” or “Class in freestanding public ECD
Centre”. She checked the Grade R class
in freestanding
public ECD Centre as she believed that this was the correct
designation for an independent school such as Little
Beacons, as it
was a freestanding ECD centre. There was according to her no
option for an independent freestanding ECD centre.
[50]
The form then continued “Full Name of ECD Care Provider”,
after which she inserted her name, as that was the
position in which
she was employed. The form then required her to answer the
following question: “Is the ECD provider
on the persal system
of the Department (only for public primary schools and freestanding
ECD centres)?” She stated
that she answered in the
affirmative as she could not have answered “no” to this
question.
[118]
She
made no pretence of the fact that she was employed by the Department
and on its persal system. She also regarded Little
Beacons as
being a freestanding centre. As a result
,
to answer otherwise would have been incorrect.
[119]
She
was however resolute that Little Beacons was not in the public
sector.
THE
LEGISLATIVE PROVISIONS:
[120]
During
argument counsel referred me to the relevant legislative provisions
which have applied in the South African education arena
over the
years since 1940 when the defendants say Playways was established.
Two threads were explored in examining these.
The one focus is
on the so-called positive system of registration of independent or
private schools which the plaintiffs contend
for. They submit
that, absent a registration certificate proving that Playways was a
private school, that an inference falls
to be drawn in this respect
that it was instead a public-sector school as the Department’s
EMIS and persal records suggest.
The second focus is on
provisions in the legislation which lend support to the defendants’
version that educators of private
schools were in fact remunerated by
government despite this status as a means of subsidizing these
schools.
CAPE
CONSOLIDATED EDUCATION ORDINANCE 5 OF 1921
[121]
One
must begin with the Cape Consolidated Education Ordinance 5 of 1921
(“the Consolidated Ordinance”) on the basis
that Playways
commenced as a nursery school in 1940 because this is the legislation
which pertained at the relevant time.
Although Mr. Heunis
flirted with the proposition that the evidence given by Mrs. Hollis
concerning the recordal of the history
of the school was in the
nature of hearsay evidence, it was put before the court without
objection. Moreover the history
was recorded in circumstances
long before it was ever imagined that Playways would be embroiled in
litigation and self-evidently
reveals the natural chronistic
evolvement of the school since its establishment. The key
events remembered which bear on
the action, as well as other
minutiae, are supported by certain of the other documents in the
trial bundle, such as financial and
chairperson’s reports, Mrs.
Hollis’ own circular letter to prospective parents dated around
1992, the deed of sale
entered into between it as an “education
institution” and the municipality in 1987 when it purchased the
fixed property,
and a copy of a mortgage bond dated in 1992. I
accordingly find no reason to reject the premise of the school’s
origin
in 1940 rather than accepting the later date of inception
contended for by the Department in its EMIS records which is
unsubstantiated
by any source documentation.
[122]
Chapter
25 of the Consolidated Ordinance deals with private schools in
general. Section 321 provides that:
“
321.
It shall be the duty of the proprietor or principal teacher of every
school which is not aided on the registers of which 5
or more pupils
were enrolled:
(i)
to
register such school at the office of the Superintendent General;
(ii)
to
keep a register of enrolment and a register of daily attendances of
pupils;
(iii)
to
keep a register of teachers employed thereat showing the
qualification and emoluments of such teachers.
Any
such register shall be in such form and kept in such manner, and such
returns shall be furnished, as may be required by the
Superintendent
General.”
[123]
Section
323 provided for the inspection of private schools and read as
follows:
“
323.
It shall be lawful for the Superintendent-General or any inspector of
schools, or any medical inspector of schools specially
authorized
thereto by the Superintendent-General, to visit and inspect any such
school as is in this chapter described for the
purpose of
ascertaining the condition of such school, including the premises,
furniture and equipment, the nature of the instruction
given and the
manner in which the school is conducted.”
[51]
[124]
Section
322 provided that the proprietor or principal teacher of such schools
could request an examination or inspection of the
school.
[125]
Evidently
this Ordinance did not provide for pre-primary schools at all.
Section 86(a) thereof, which dealt with the establishment
and
classification of schools provided for a host of different types of
schools, including training colleges, training schools,
secondary
schools graded as high schools, secondary schools not graded as high
schools, primary schools, farm schools and part-time
schools.
[126]
Chapter
2 of the Consolidated Ordinance further provided for the
establishment of special schools and in terms of section 134 (a)
thereof technical schools, commercial schools, art schools, and music
schools for students of “European parentage or extraction”
were classified as special schools. Section 2 defined a school
as being “aided” by the Provincial Administration.
These types of school listed above were thus, by definition, schools
aided by the Provincial Administration.
[127]
It
follows that since the Consolidated Ordinance did not apply to
nursery or pre-primary schools whether public or private, that
they
were thus not required, in terms of the Consolidated Ordinance, to be
registered.
THE
CAPE EDUCATION ORDINANCE 20 OF 1956
[128]
Initially,
the Cape Education Ordinance 20 of 1956 (“the Education
Ordinance”), which repealed the Consolidated Ordinance
and came
into effect on 1 January 1957, did not deal with pre-primary schools,
but referred to nursery schools. Prior to
its amendment,
section 239 thereof read as follows:
“
239.
The Administrator may grant aid, in accordance with regulations made
by him, to any nursery school for European or Coloured
pupils who
have attained the age of 2 years but have not attained the age of 6
years.”
[129]
This
section was then amplified by Ordinance 14 of 1966 to provide that:
“
239.
The Administrator may grant aid, in accordance with regulations made
by him, to any nursery school for European pupils in respect
of
pupils who are enrolled at such schools and are of such age as may be
prescribed in such regulations, provided that such aid
shall not be
granted in respect of a pupil during any period before he attains the
age of 2 years or after the end of the year
in which he attains the
age of 6 years.”
[130]
The
Education Ordinance was then amended by Ordinance 10 of 1971, which
introduced definitions for ‘pre-primary class’
and
‘pre-primary education’. As a consequence of this
amendment, the Education Ordinance defined a ‘pre-primary
class’ as “… a class which forms part of a primary
school or of the primary section of either a high school
or a
secondary school and in which pre-primary education is provided”.
‘Pre-primary education’ was defined
to mean “instruction
which is exclusively below the level of syllabuses for the primary
school course of the department”.
[131]
Section
58 of the Education Ordinance 20 of 1956 was amended three times,
first by section 3 of Ordinance 10 of 1971, then by section
4 of
Ordinance 16 of 1973 and finally by section 35 of Ordinance 15 of
1979. The final result was that the section read:
“
58.
(1) The Department may establish and maintain schools for European
pupils, classified as high schools, secondary schools, primary
schools or pre-primary schools; provided that the board shall be
consulted before any such school is established in an area; and
provided further that with effect from the first day of January,
1974, no secondary school shall be established.
(2)
In respect of any such school the Department shall decide whether
boys or girls or both boys and girls are to be enrolled therein
and
shall –
(a)
in the case of a pre-primary school or pre-primary class, determine
the nature and extent of the pre-primary education to be
provided
therein, and
(b)
…”
[132]
Evidently
this section governed schools classified as public schools.
[133]
Following
thereon and also dealing with public pre-primary schools is section
62A of the Education Ordinance 20 of 1956, inserted
by section 7 of
Ordinance 10 of 1971. This section deals with pre-primary
schools in the most general of terms and reads
as follows:
“
62A.
(1) Pre-primary schools shall be schools organized, staffed and
equipped exclusively for pre-primary education.
(2)
The Administrator may make regulations not inconsistent with this
ordinance in regard to pre-primary schools, including-
(a)
the minimum number of children required for the establishment of such
a school;
(b)
the minimum average enrolment to be maintained by such a school and
the closing of such a school on failure to maintain such
enrolment;
and
(c)
the minimum and maximum ages of children who may be enrolled at such
a school.
(3)
The power to make regulations for any purpose referred to in
sub-section (2) shall include the power to restrict or prohibit
any
matter or thing in relation to that purpose either absolutely or
conditionally.
(4)
Any regulations made in terms of sub-section (2) may be made with
retrospective effect to a date not earlier than date of commencement
of the Education and School Board Service Amendment Ordinance, 1971.”
[134]
Section
240 (1), which dealt with “private schools”, until its
amendment by section 10 of Ordinance 23 of 1969, initially
read as
follows:
“
240.
(1) No person shall establish, control or maintain a private school,
including a nursery school, for European children in which
5 or more
pupils are enrolled, unless such school is registered with the
Department.
[52]
(2)
The registration of a private school shall be in the discretion of
the Department, and shall be subject to the management thereof-
(a)
keeping or causing to be kept, in such form or in such manner as the
Department may from time to time require, a register of
enrolment and
a register of daily attendances of the pupils and a register of
teachers employed in such school showing their qualifications
and
emoluments;
(b)
furnishing or causing to be furnished to the Department such returns
which may from time to time require; and
(c)
complying with such other conditions as the Administrator may
generally or specifically prescribe.
(3)
…
[53]
(4)
Whenever the management or principal of a private school makes a
request in writing for an examination or inspection of such
school,
the Department may cause such examination or inspection to be made
and a report thereon to be transmitted to such management
or
principal free of charge.
(5)
Any private school may be visited and inspected by the Department for
the purposes of ascertaining the condition of such school,
including
the premises, furniture and equipment, the nature of the instruction
given and the manner in which the school is conducted.
(6)
If the Superintendent-General is not satisfied in regard to the
condition of a private school which is registered with the
Department, the qualifications of the teacher, or the nature of the
instruction given therein, or if it appears to the Department
that
the condition subject to which such private school was registered are
not being complied with, the Department may cancel the
registration
of such school from a date determined by him, and from such date the
school shall for the purposes of sub-section
(1) be deemed not to be
registered.
(7)
Any person who contravenes the provisions of sub-section (1) of
sub-section (3) shall be guilty of an offence.
(8)
For the purposes of the foregoing provisions of this section ‘private
school’ means an education institution not
being a university,
university college, college or school established, maintained, aided,
registered or required to be registered
under a provision of any
other law or under any other provision of this ordinance.”
[135]
Section
18 of Ordinance 10 of 1971 amended section 240 (1) by substituting
the words “nursery school” for the words
“pre-primary
school”. Section 54 of Ordinance 15 of 1979 deleted
section 239 of Ordinance 20 of 1956, I expect
because private
pre-primary schools had by then become accepted as being subsumed
under private schools as a collective.
[136]
Sections
240 (5A) and (5B), significant in their import and timing for present
purposes, were then inserted by section 55 of Ordinance
15 of 1979.
These sections read as follows:
“
5A.
The Administrator may make regulations providing for the granting of
aid to private schools by means of –
(a)
the
payment of a subsidy in respect of pupils enrolled at any other
school and who, in the case of a private pre-primary school,
are of
the age prescribed in such regulations, or
(b)
the
appointment and remuneration by the Department of teachers at any
private school for the instruction of pupils of such school.
5B
Any teacher appointed at a private school in accordance with the
regulations contemplated by sub-section (5A)(b) shall be deemed
to
have been appointed in terms of section 81 and the provisions of
chapter 2 shall apply in respect of any such teacher.”
[54]
[137]
A
further amendment to section 240 followed by the insertion of
subsection (6) in the following terms:
“
(6)
If the director is not satisfied in regard to the condition of a
private school which is registered with the Department, the
qualifications of the teacher or teachers therein, the nature of the
instruction given therein or that the conditions subject to
which the
school was registered are not being complied with, the Department
may-
(a)
notwithstanding
any provision to the contrary and any regulations made under
sub-section (5A), reduce, cancel or terminate from
a date determined
by it any aid to such school in terms of such regulations, or
(b)
cancel
the registration of such school from a date determined by it and from
such date such school shall for the purposes of sub-section
(1) be
deemed not to be registered.”
[138]
As
an obvious consequence of the insertion of section 240 (5A) (b), the
Department could now grant aid to a private school in the
form of the
appointment and remuneration by the Department of teachers at a
private school.
[139]
From
the above date it is evident that, prior to 9 August 1968, which is
the promulgation date of Ordinance 23 of 1968 (the Ordinance
that
initially amended section 240 (1)), private nursery or pre-primary
schools were not required to be registered.
[140]
Of
further significance, section 240 of the Ordinance does not provide
for a registration certified to be issued, even assuming
registration
as a private school in terms of this section.
[55]
THE
PRIVATE SCHOOLS ACT (HOUSE OF ASSEMBLY) 104 OF 1986:
[141]
The
Private Schools Act (House of Assembly) 104 of 1986 (hereinafter
referred to as the “Private Schools Act”) was ostensibly,
according to its preamble, enacted to provide for the registration
of, the control over, and the making of financial grants to
private
schools and for matters connected therewith.
[142]
Section
1 of the Private Schools Act sets out the following definitions of
relevance for present purposes:
“
(iii)
“Education Ordinance” means the Education Ordinance, 1956
(Ordinance no. 20 of 1956 of the Cape of Good Hope)
…
(iv)
“
Head
of Department” means the Head of the Department; …
(viii) “Private
school” means any school other than a school maintained,
managed and controlled by a Provincial Education
Department, but-
(a)
does
not include a church primary school, farm school or private special
school or class mentioned in an education ordinance; and
(b)
for
the purposes of section (2), (3), (4), (5) and (7), does not include
a private school attended by less than 20 pupils;
…”
[143]
Section
2 of the Private Schools Act provides that no person shall maintain a
private school unless that private school is registered
in terms of
the Private Schools Act, which became effective on 1 April 1986.
Section 3 deals with applications for the registration
of private
schools and provides that they are to be made in writing to the Head
of Education and that any applicant for the registration
of a private
school must furnish such additional particulars in connection with
the application as the Head of Education may require.
[144]
Section
4 deals with the consideration of applications for the registration
of private schools by the Head of Education and confers
upon him a
discretion in that it provides that:
“
(1)
The Head of Education may at his discretion grant or refuse an
application referred to in section 3, but he shall not grant
any
application if he is of the opinion that the private school does not
comply with the prescribed requirements.”
[145]
Once
an application for the registration of a private school has been
granted by the Head of Education, in terms of section 5 he
is obliged
to register the private school and issue to the applicant a
registration certificate in such form as he may determine.
The
registration of the private school is subject to the prescribed
conditions in terms of section 5 (2). Section 7 makes
it a
criminal offence for any person to maintain, manage, or control a
private school not registered in terms of the Private Schools
Act.
[146]
Turning
to issues of finance, section 6 provides that a registered private
school may apply to the Head of Education in writing
for “the
prescribed financial grant”. The Head of Education may at
his discretion grant or refuse such an application,
but may not grant
any application for the prescribed financial grant if he is of the
opinion that the registered private school
does not comply with the
prescribed requirements for the financial grant.
[147]
Section
11 is headed “Exclusions of Provisions of Education Ordinances”
and reads as follows:
“
11.
(1) Subject to the provisions of this section, any provision of an
education ordinance shall cease to be of force insofar as
it deals
with any matter provided for in this Act.
(2)
Any private school registered in terms of any provision of an
education ordinance which ceases to be of force by reason of
sub-section (1) shall be deemed to be registered in terms of section
5(1) of this Act.
(3)
A reference in any education ordinance –
(a)
to a private school registered in terms of any provision which ceases
to be of force by reasons of sub-section (1), shall, unless
inconsistent with the context or otherwise clearly inappropriate, be
construed as a reference to a private school situated in a
relevant
province and registered in terms of this Act;
(b)
to such private school receiving grants in aid or subsidized or aided
under any provision of that education ordinance, shall,
unless
inconsistent with the context or otherwise clearly inappropriate, be
construed as a reference to a private school situated
in the relevant
province and to which any financial grant is made under this
Act.”
[56]
[148]
It
follows logically from this that any private school established in
terms of, or registered at the office of the Superintendent
General
in accordance with section 240 of the Education Ordinance 20 of 1956,
as amended, is thus deemed to be registered in terms
of section 5 (1)
of the Private Schools Act. As is set out above, registration
in terms of section 5 (1) of the Private Schools
Act requires the
Head of Education to issue to the applicant a registration
certificate in such form as he may determine.
[149]
There
is no such similar requirement in section 240 of the Education
Ordinance, as amended. As a result, no such registration
certificate would have existed for a private pre-primary school
established in terms of section 240 of the Ordinance and such a
registration certificate would most certainly not exist for a private
pre-primary school established prior to 9 August 1968.
[150]
Owing
to the fact that section 3 (2) is a deeming provisioning, it does not
appear that the Legislature intended that the Head of
Education
furnish a private school deemed to be registered in terms of the
Private Schools Act with a certificate confirming the
registration as
a private school. This is because section 5 (1) specifically
refers to a registration certificate being issued
upon a successful
(new) application for registration. It provides as follows:
“
If
the Head of Education grants an application referred to in section 3
,
he shall register the private school in question and issue to the
applicant a registration certificate in such form as he may
determine.”
(Emphasis
added)
[151]
Thus,
where the school is deemed to have been registered in terms of
section 5 (1), there would have been no need for an application
for
its registration and consequently, no registration certificate would
issue.
[152]
The
Private Schools Act was amended by the Private Schools Amendment Act
(House of Assembly) 60 of 1990. The definition of
“private
school” was amended to mean:
“
any
school other than-
(a)
(i)
a public school;
(ii) a state aided
school;
(iii) a private
school for specialized education;
(v)
a
private pre-primary school,
as defined in
section 1 of the Education Affairs Act (House of Assembly), 1988; and
(b)
a
church pre-primary school or farm school as mentioned in section 40
of that Act.”
[153]
The
result of this is that the Private Schools Act was no longer of
application to private pre-primary schools with effect from
29 June
1990 by virtue of the amendment to the definition of private schools,
this being the commencement date of the amending
act.
THE
EDUCATION AFFAIRS ACT (HOUSE OF ASSEMBLY) 70 OF 1988:
[154]
The
Education Affairs Act (House of Assembly) 70 of 1988 (“the
Education Affairs Act”)
[57]
defines a private pre-primary school in section 1 (xxii) as being “a
private pre-primary school registered or deemed to be
registered in
terms of section 25”. A private school is defined in
section 1 (xxiii) as being a “private pre-primary
or a private
school for specialized education, and for the purposes of paragraph
(b) of the definition of “school”
and sections 38, 39, 40
and 99, also a private school registered or deemed to be registered
in terms of the Private Schools Act
(House of Assembly) 1986 (Act No.
104 of 1986)”. Section 1 (xxix) defines a school as being
“
a
public school, private pre-primary school, private school for
specialized education or state-aided school, except-
(a)
in
sections 51 and 52, where it means a pre-primary school, primary
school or secondary school; or
(b)
in
the definition of “compulsory school attendance” and
sections 2, 11, 53, 54, 55, 57, 59, 60, 61 and 104, where it
means a
public school, private school or state-aided school.”
[155]
Accordingly,
insofar as sections 8 and 9 of the Education Affairs Act are
concerned, a school includes a private pre-primary school.
These sections are relevant as they provide for the submission of
information by these schools and the inspection of them.
They
read:
“
8.
Submission
of information by schools.
For the purposes of
this Act the Head of Education may direct a principal of a school in
writing to submit to him, within the period
mentioned in the
direction, such information as he may require in connection with the
affairs of the school and as the school has
available.
9.
Inspection
of schools and hostels.
(1)
The Head of Education may, either in general or in a specific case,
authorize in writing a person employed by the Department
to inspect a
school or hostel.
(2)
A person authorized under subsection (1), may-
(a)
at any reasonable time and without prior notice enter upon the
grounds of the school or hostel concerned;
(b)
question under oath or otherwise any person who in his opinion may be
able to furnish information on a matter to which this
Act relates;
(c)
require a person who has in his possession or custody or under his
control a register, book or document on a matter to which
this Act
relates, to submit such a register, book or document to him;
(d)
examine such a register, book or document or make an extract
therefrom or a copy thereof, and require from any person or
explanation
under oath or otherwise of any entry therein; and
(e)
attach such a register, book or document as in his opinion may
provide proof of an offence or irregularity.
(3)
A person authorized under subsection (1) shall not conduct an
inspection under this section, unless he is, while he is conducting
that inspection, in possession of his written authorization referred
to in that subsection, which shall be produced by him at the
request
of any person affected by that inspection.”
[156]
The
Education Affairs Act thus specifically makes provision for the
submission of information by a private pre-primary school to
the Head
of Education, who is defined as being the Head of Department, and for
the inspection of private pre-primary schools.
[157]
Chapter
5 of the Education Affairs Act deals with private schools.
Sections 21, 23, 24, 25, 26, and 27 thereof relate specifically
to
private pre-primary schools. The starting point is to be found
in sections 23 to 25, which deal with the registration
of private
pre-primary schools. These sections, in so far as they are
relevant, provide as follows:
“
23.
Application
for registration.
(1)
Any
person who intends to register as a private pre-primary school or
private school for specialized education, shall apply in writing
to
the Head of Education for such registration.
(2)
An
applicant for such registration shall furnish such additional
information in connection with his application as the Head of
Education may require.
24.
Consideration
of applications for registration.
(1) The Head of
Education may at his discretion grant or refuse an application
referred to in section 23, but he shall not grant
an application if
he is of the opinion that the applicant concerned does not comply
with the prescribed requirements.
(2) If the Head of
Education refuses an application referred to in section 23, he shall
notify the applicant in writing of such
refusal and the reasons
therefor.
25.
Registration
as private pre-primary schools and private schools for specialized
education.
(1)
If
the Head of Education grants an application referred to in section
23, he shall register the applicant as a private pre-primary
school
or private school for specialized education, as the case may be, and
issue a certificate of registration to the applicant
in such form as
he may determine.
(2)
The
registration as a private pre-primary school or private school for
specialized education shall be subject to the prescribed
conditions.
(3)
The
registration as a private pre-primary school or a private school for
specialized education in terms of this Act shall not exempt
any
person from any other obligation in respect of registration in terms
of any other law.
(4)
A
private nursery school or private pre-primary school registered in
terms of a law repealed by this Act and which existed immediately
prior to the fixed date, shall from that date be deemed to be a
private pre-primary school registered in terms of this Act.
(5)
…”
[158]
In
summary, in order to register as a private pre-primary school, a
written application is required to be submitted to the Head
of
Education, who will then consider the application and make a
decision. If the application is approved, the private
pre-primary
school is then registered and a registration certificate
is issued to the applicant in a form determined by the Head of
Education.
This registration is subject to the prescribed
conditions.
[159]
Section
25 (4) contains a deeming provision to the effect that if any private
pre-primary school is registered (or, plainly, established
or deemed
to be registered), as such under a law repealed by the Education
Affairs Act which existed immediately prior to the fixed
date, it is
deemed to have been registered in terms of the Education Affairs
Act. There is no requirement that a certificate
be issued under
such circumstances.
[160]
Section
21, whilst it does not relate to the registration process, provides
that “[n]o person shall for reward keep in his
custody or under
his control 20 or more children of three years or older but not yet
subject to compulsory school attendance, unless
“he”
(sic) has been registered as a private pre-primary school in terms of
this Act.” Section 103 renders
a contravention of this
section a criminal offence.
[58]
[161]
Section
27 provides for the withdrawal or lapsing of the registration of a
private pre-primary school “in the prescribed circumstances”,
which circumstances are not set out in the Education Affairs Act.
[162]
The
Education Affairs Act further makes provision, in section 26 thereof,
for the payment of subsidies under two categories to private
pre-primary schools. This section reads as follows:
“
26.
Subsidies to private pre-primary schools.
(1)
A
private pre-primary school may apply in writing to the Head of
Education to be classified for subsidy purposes as a departmentally
controlled pre-primary school.
[59]
(2)
A
private pre-primary school which has not been classified as
contemplated in subsection (1) may annually or prior to the
prescribed
date apply in writing to the Head of Education for a
subsidy.
[60]
(3)
The
Head of Education may at his discretion grant or refuse an
application referred to in subsection (1) or (2), but he shall not
grant an application if he is of the opinion that the private
pre-primary school does not comply with the prescribed conditions
for
subsidization or classification, as the case may be.
(4)
As
from the date on which an application for classification as
contemplated in subsection (1) is granted under subsection (3), the
persons employed in teaching posts at such departmentally controlled
pre-primary school shall be deemed to be employed in teaching
posts
at a departmental institution.
(5)
A
provincially controlled nursery school or pre-primary school
classified or maintained in terms of a law repealed by this Act and
which existed immediately prior to the fixed date, shall from that
date be deemed to be a departmentally controlled pre-primary
school
which has been classified in terms of this Act.”
[163]
This
section thus makes allowance for the provision of financial
assistance to private pre-primary schools on two bases: the first
when the school makes application to be classified as a
“departmentally controlled pre-primary school”, and the
second
where the school remains private and makes application
annually for the payment of a subsidy to it by the Head of
Education.
It appears that in the former instance, the school
will lose its private character, as it becomes departmentally
controlled and
the teachers then employed at that school are deemed
to be employed in teaching posts at a departmental institution.
The
deeming provision subjected those teachers to the provisions of
Chapter 7 of the Education Affairs Act, which made provision
(largely)
for Ministerial control over their conditions of service,
promotions, salaries and the like (see sections 67 – 69).
Despite this, it does not appear that the classification as
“departmentally controlled” in terms of this section
would
have rendered the school public, as this is not expressly
provided for in the section as it is in section 38.
[164]
Section
38 provides expressly for the declaration of private schools (which
includes pre-primary schools as per the definition of
private school)
as public schools as follows:
“
38.
Declaration of private schools and state-aided schools as public
schools.
(1)
The
Minister may enter into an agreement with the owner of a private
school or the governing body of a state-aided school in terms
of
which such a school is declared to be a public school.
(2)
No
agreement shall be entered into under subsection (1), except with the
concurrence of the Minister of the Budget.
(3)
If
an agreement has been entered into under subsection (1), the Minister
may by notice in the Gazette declare the private school
or
state-aided school concerned, as the case may be, to be a public
school with effect from a date mentioned in the notice.”
[165]
Such
a declaration has certain consequences which are fully spelt out in
section 39. The provisions of section 39 (1) delineate
these as
being:
“
39.
Consequences of declaration as public school.
(1)
As
from the date mentioned in the notice contemplated in section 38(3)-
(a)
the
school concerned shall be deemed to be a public school established
under section 12;
(b)
there
shall no longer vest in the previous owner or governing body any
rights, powers, duties or functions in respect of the school
concerned;
(c)
the
rights obtained and obligations incurred by the owner or governing
body concerned, for purposes of or in connection with the
school
concerned, shall vest in the State; and
(d)
the
ownership and control of movable and immovable property which
immediately prior to that date vested in the owner or governing
body
concerned, and which relates to the school concerned, shall vest in
the State, unless otherwise agreed upon in terms of section
38(1).”
[61]
[166]
The
remaining subsection deals with giving effect to the provisions of
section 39 (1)(d) by transfer/endorsement of the school’s
immovable property and regulates the position regarding lawful
actions taken by the owner or governing body prior to the
declaration.
[167]
In
terms of section 113 (1) read with Schedule 3 of the Education
Affairs Act, the whole of the Cape Education Ordinance 20 of 1956
was
repealed, except in so far as it related to the establishment and
maintenance of training colleges for the training of European
student
teachers, excluding Part C (Chapters 11 to 16).
[168]
Sections
3, 65 and Chapter 7 of the Education Affairs Act was then repealed by
the South African Schools Act 84 of 1996 (hereinafter
referred to as
“the
South African Schools Act&rdquo
;).
EASTERN
CAPE SCHOOLS EDUCATION ACT 1 OF 1999
[169]
According
to section 2 of the Eastern Cape Schools Education Act 1 of 1999
(“the Eastern Cape Act”) the provisions of
the Eastern
Cape Act “… shall, subject to national policy and to the
provisions of the Constitution or any other law
or Act applying to
education in general in the whole of the Republic of South Africa,
apply in relation to education provided in
schools in the Province.”
Section 3 thereof provides:
“
3.
Control of school education in the Province
As
from the fixed date, school education in the Province shall be
controlled by the Department, acting in accordance with the policy
determined by the MEC.”
[170]
The
Eastern Cape Act defines a school as “a public school or an
independent school which enrolls learners in one or more grades
between grade zero and grade twelve”. The Act makes no
mention of a private school, but rather makes use of the nomenclature
of the Schools Act and defines an independent school as a school
other than a public school. A pre-primary school is defined
as
one “for children who are not younger than three and not older
than seven years but who are not yet subject to compulsory
school
attendance”.
[171]
Section
7 of the Eastern Cape Act permits the Head of Department, through the
district manager, to authorize in writing visits to
schools for
administrative purposes. ‘School’ in this section
would, by virtue of the definition, include an
independent school.
Section 8 permits the MEC, if it is in the interests of education in
the province, “to appoint
any appropriate person to conduct an
inquiry on a matter specified in written terms of reference”
provided only that the
provisions of any applicable law be taken into
account. The section then specifies the powers of a person so
appointed.
[172]
Sections
27 – 30 of chapter 5 of the Eastern Cape Act deals with the
establishment of independent schools. These sections,
in so far
as they are relevant, are couched in the following terms:
“
27.
Establishment, conduct or maintenance of independent schools
prohibited unless registered.
—
(1)
A person, body or bodies may establish, at their own cost, an
independent school based on a common culture, language or religion,
provided that there shall be no discrimination on the grounds of
race.
(2) No person shall establish,
conduct or maintain an independent school unless that independent
school is registered in terms of
this Act.
(3) No person shall for reward
keep in his or her custody or under his or her control 20 or more
children of 3 years or older unless
he or she has been registered as
an independent school in terms of this Act.
(4) No person shall accept at an
independent school keep in his or her custody or under his or her
control children to provide specialized
education to them for reward
unless he or she has been registered as an independent school in
terms of this Act.
28.
Application for registration.
—
(1)
Any person intending to establish, conduct or maintain an independent
school shall apply to the head of Department in writing
for the
registration of that independent school.
(2) An applicant for the
registration of an independent school shall furnish such additional
particulars in connection with his
or her application as the head of
Department may require.
29.
Consideration of applications for registration of independent
schools.
—
(1) The
head of Department may grant an application referred to in section
28, if he or she is of the opinion that the
provisions of section 46
of the 1996 Act and other prescribed requirements have been complied
with.
(2) If the head of Department
refuses an application referred to in section 28, he or she shall
notify the applicant in writing
of such refusal and the reasons
therefor.
30.
Registration of independent schools.
—
(1)
If the head of Department grants an application referred to in
section 28, he or she shall register the independent school in
question and issue to the applicant a registration certificate in
such form as he or she may determine. Such registration certificate
must be prominently displayed and produced on request.
(2) The registration of an
independent school shall be subject to the prescribed conditions.
(3) An independent school
registered in terms of a law repealed by this Act and which existed
immediately prior to the fixed date,
shall from that date be deemed
to be an independent school registered in terms of this Act.
(4) The owner of an independent
school may manage such school himself or herself or he or she may
appoint or authorise any person
to manage the school on his or her
behalf subject to the provisions of this Act.
(5) Any person who contravenes the
provisions of subsections (1) and (2) of section 27 and any person
who admits anyone to a school
which is not registered or exempted
from registration in terms of this Act shall be guilty of an offence.
(6) The above provisions shall not
apply to—
(
a
) a correspondence
college registered in terms of the Correspondence Colleges Act, 1965
(Act No. 59 of 1965), and providing tuition
exclusively by means of
correspondence;
(
b
) a school established,
maintained or controlled by a church solely for the purposes of
providing theological training to prospective
ministers of religion
or evangelists or any schools providing exclusively, religious
tuition;
(
c
)
any person providing, for reward, informal education which does not
lead to the acquisition of any diploma, certificate or statement.”
[173]
Section
54 renders the contravention of any prohibition contained in section
27 a criminal offence.
[174]
Section
32 provides that the registration of an independent school “shall
lapse or may be withdrawn under the prescribed circumstances
and
subject to the prescribed legal requirements”, but that “(n)o
withdrawal or lapse of registration of an independent
school shall be
valid unless the owner of such an independent school has been
furnished with written notification and reason for
such lapse or
withdrawal.” Section 33 makes provision for an appeal
against the refusal or withdrawal of registration
as an independent
school.
[175]
Section
35 of the Eastern Cape Act makes provision for the declaration of an
independent school as public. Before such a declaration
can be
made, the MEC must enter into “an agreement with the owner of
an independent school or the governing body thereof
in terms of which
such a school may be declared to be a public school after
consultation with the school community and other interested
parties”. Further:
“
(a)
no agreement shall be entered into under this section, except with
the concurrence of the financial head;
(c)
if
an agreement has been entered into under this section, the MEC may by
notice in the Provincial Gazette declare the independent
school
concerned to a public school with effect from a date mentioned in the
notice.”
[176]
Section
36 sets out the consequences of such a declaration which are
substantially similar to those contained in section 39 of the
Education Affairs Act.
[177]
Section
31 permits an independent school to apply annually in writing to the
Head of Department for the payment of the prescribed
subsidy.
[178]
Section
74, read with Schedule 1, repeals Part C of the Cape Education
Ordinance 20 of 1956; the whole of the Private Schools Act,
with the
exception of section 1A; and the whole of the Education Affairs Act,
with the exception of sections 3 and 65.
[179]
It
would appear therefore that if a school was registered as a private
school pursuant to one of these pieces of legislation, in
terms of
section 30 (3) it is deemed to be an independent school registered in
terms of the Eastern Cape Act and no registration
certificate would
have been provided.
LEGISLATIVE
REQUIREMENTS REGARDING THE ESTABLISHMENT OF PUBLIC PRE-PRIMARY
SCHOOLS:
Consolidated
Education Ordinance 5 of 1921:
[180]
As
noted above, section 86 of the Consolidated Ordinance deals with the
establishment and classification of schools and provides,
in so far
as this goes, merely that “schools may be established for the
purpose of affording education to pupils of European
parentage or
extraction”. There are thus no formal registration
requirements for the establishment of public schools
in terms of this
Ordinance.
Education
Ordinance 20 of 1956:
[181]
Section
58 (1) of the Education Ordinary provides for the establishment and
maintenance of undenominational schools for European
pupils, which
are to be classified as high schools, secondary schools, primary
schools and farm schools. This section was
then amended by
Ordinance 10 of 1971 to include pre-primary schools. A
consequential addition in the form of section 62A
was also introduced
by Ordinance 10 of 1971. This section provided, in sub-section
(1) thereof, that pre-primary schools
were to be “organized,
staffed and equipped exclusively for pre-primary education”.
The remainder of the section
dealt with the Administrator’s
power to make regulations.
[182]
There
was thus no requirement that public pre-primary schools be
registered.
Education
Affairs Act (House of Assembly) 70 of 1988:
[183]
Section
12 (1) of the Education Affairs Act provides for the establishment of
certain categories of public schools as follows:
“
12.
Establishment and maintenance of public schools.
(1)
The
ministry may, out of moneys appropriated for this purpose by the
House of Assembly, establish and maintain the following public
schools …”
[184]
Included
in the listed categories of schools is a pre-primary school.
[185]
Section
12 (2) contains a deeming provision in the following terms:
“
2(a)
A provincial nursery school and pre-primary school or class;
…
established, founded
or classified in terms of a law repealed by this Act, or deemed to be
established, founded or classified in
terms of such law, and which
was controlled and managed by the Department immediately prior to the
fixed date, shall with effect
from that date be deemed to be –
(i)
A
pre-primary school;
…
respectively,
established under this section.”
[186]
Once
again, there is no requirement for registration of a public
pre-primary school.
THE
SOUTH AFRICAN SCHOOLS ACT 84 OF 1996
:
[187]
Under
the current relevant provisions of the Schools Act, which came into
operation on 1 January 1997, “school” means
both a public
school as well as an independent school which enrolls learners in one
or more grades from Grade R (reception year)
to Grade 12.
[62]
A distinction is made between a public school and an independent
school in section 1. “Public school” means
a school
contemplated in Chapter 3, whereas an independent school means a
school registered or deemed to be registered in terms
of section 46.
[188]
Chapter
5, which incorporates section 46, deals with independent schools.
Section 45 provides that any person may at his or
her own cost
establish and maintain an independent school. Section 45A
provides for the admission age to such a school.
Section 46
deals with the registration of an independent school and provides
that no person may establish or maintain an independent
school
unless
it is registered by the head of department
.
[189]
The
definition of an independent school in section 1 should draw the
reader’s attention to the provisions of section 53, a
transitional provision, which provides that:
“
a
private school which was registered or deemed to have been registered
under the provisions of the law regulating school education
in the
Republic of South Africa and which existed immediately prior to the
commencement of this act, is deemed to be an independent
school”.
[190]
Thus
the nomenclature of a “private” as opposed to an
independent school no longer pertains.
[191]
This
section must be read together with section 52, also under Chapter 6
dealing with the transitional provisions. It provides
that any
school which was established or deemed to have been established in
terms of any law governing school education in the
Republic and which
existed immediately prior to the commencement of the Schools Act,
other than a private school referred to in
section 53, is deemed to
be a public school.
[192]
Subsection
2 provides that the assets and liabilities which vested in such a
school immediately prior to the commencement of the
Schools Act vest
in the public school in question and that funds and other movable
assets used by, or held for on or its behalf
and which in law are the
property of the state, remain at the disposal of the school and
devolve on the school on a date and subject
to conditions determined
by the Minister by notice in the Government Gazette after
consultation with the Council of Education Ministers
(subsection 3).
Subsection 4 provides that any transaction entered into prior to the
commencement of the Schools Act by a
school contemplated in
subsection 1, which had the effect of transferring funds or other
assets of such school to another person
or body without value, is
invalid.
[193]
The
transitional provisions negate a requirement of registration post
commencement of the current Schools Act of already existing
private
schools.
[194]
The
manner and process for registration or withdrawal of registration of
an independent school by the head of department is provided
for in
sub-sections 2 to 4 of section 46. Section 47 provides in what
circumstances a withdrawal of the registration by the
head of
department is valid. Vitally it is an open and transparent
process and cannot happen without the involvement (and
indeed
knowledge) of the owner of the independent school.
[195]
Section
48 provides that the minister may subsidize independent schools. It
is apposite to repeat section 48 below:
“
48.
Subsidies to registered independent schools.—
(1) The Minister
may, by notice in the Government Gazette, determine norms and minimum
standards for the granting of subsidies to
independent schools after
consultation with the Council of Education Ministers and the
Financial and Fiscal Commission and with
the concurrence of the
Minister of Finance.
(2) The Member of
the Executive Council may, out of funds appropriated by the
provincial legislature for that purpose, grant a subsidy
to an
independent school.
(3) If a condition
subject to which a subsidy was granted has not been complied with,
the Head of Department may terminate or reduce
the subsidy from a
date determined by him or her.
(4) The Head of
Department may not terminate or reduce a subsidy under subsection (3)
unless—
(a) the owner of
such independent school has been furnished with a notice of intention
to terminate or reduce the subsidy and the
reasons therefor;
(b) such owner has
been granted an opportunity to make written representations as to why
the subsidy should not be terminated or
reduced; and
(c) any such
representations received have been duly considered.
(5)
The owner of an independent school may appeal to the Member of the
Executive Council against the termination or reduction of
a subsidy
to such independent school.”
[63]
[196]
“
Subsidy”
or “subsidize” is not defined in the act but, having
regard to the ordinary grammatical meaning of the
word, it appears to
endorse the financial support of such schools subject to the norms
and minimum standards for the granting of
same.
[64]
[197]
Subsection
(4) provides that a subsidy to an independent school may not be
withdrawn except subject to compliance with the
Audi
alteram partem
rule.
[198]
Section
50 provides the duties of the MEC to determine by notice in the
Provincial Gazette requirements for independent schools,
inter
alia
,
regarding the determination of criteria of eligibility, conditions
and manner of payment of any subsidy to an independent school.
[65]
Subsection 2 provides further that different requirements may be made
under subsection 1 in respect of different independent
schools.
Subsection 3 also provides that the MEC must allow the affected
parties a reasonable period to comment on any requirement
he or she
intends to determine under subsection (1).
[199]
Section
49 is again of some significance because it determines the only basis
upon which an independent school can become a public
school.
This section provides as follows:
“
49.
Declaration of independent school as public school.—
(1) The Member of
the Executive Council may, with the concurrence of the Member of the
Executive Council responsible for finance,
enter into an agreement
with the owner of an independent school in terms whereof such
independent school is declared to be a public
school.
(2)
Notice of the change of status contemplated in subsection (1) must be
published in the Provincial Gazette.”
[200]
It
is evident from the foregoing that such a change could not happen
stealthily.
[201]
Section
54 deals with transitional provisions relating to governing bodies.
From the context this section applies to public
schools. Given
the Schools Act’s stated objects,
inter
alia
,
to ensure the organized and democratic governance of schools in
partnership with the state, the Minister’s reach in bringing
those schools in line after the commencement date of the Schools Act
by determining dates by which the election of members of governing
bodies at all public schools in a province had to be be finalized and
from when those governing bodies were compelled to function
in terms
of the Schools Act would be another “in your face”
manifestation as it were that a school is considered a
public
school.
[202]
Section
55 is a transitional provision dealing with the immovable property of
certain schools which were state-aided under section
29 (2A) of the
Education Affairs Act, 1998.
[66]
It was never suggested by the plaintiffs that Playways was such a
school. If indeed it was, the Department would certainly
have a
public record of how its property was dealt with pursuant to the
extensive provisions of section 55 and the State’s
title would
have been endorsed against the relevant deed of transfer. The
provisions of section 55 are reproduced below:
“
55.
Transitional provisions relating to immovable property of certain
schools.—
(1) The immovable
property of a school which was declared to be a state-aided school
under section 29 (2A) of the Education Affairs
Act, 1988 (House of
Assembly) (Act No. 70 of 1988), devolves upon the State on a date
determined by the Minister by notice in the
Government Gazette.
(2) The Minister may
determine different dates in respect of different schools under
subsection (1).
(3) Any notice
determining a date or dates referred to in subsection (1) or (2) must
grant all interested parties a period of not
less than 30 days in
which to make written submissions.
(4) The Minister
must consider all such submissions received, and thereafter may alter
any notice referred to in subsection (1).
(5) Any transfer
duty, stamp duty, other fees or costs payable as a result of the
transfer of the immovable property contemplated
in subsection (1)
must be paid in full or in part from funds appropriated by Parliament
for that purpose.
(6) The Minister
may, with the concurrence of the Minister of Finance, direct that no
transfer duty, stamp duty, other fees or costs
contemplated in
subsection (5) be paid in respect of a particular transfer under this
section.
(7) The rights of
third parties with claims against the school in respect of the
immovable property affected by the transfer contemplated
in this
section are not extinguished by the transfer and—
(a) a third party
acquires no right of execution against the immovable property as a
result of such transfer alone;
(b) a third party is
obliged to excuse the school in question if the school fails to meet
its commitments to the third party; and
(c) the State
indemnifies such a third party in its claims against the school which
were secured by the immovable property, but
the third party does not
acquire a greater right against the State than that which it had
against the school prior to the transfer.
(8) The fact that
compensation for any land and real rights in or over land
expropriated in terms of subsection (1) has not been
finalised or
paid, does not impede the transfer of such land and real rights in or
over land to the State.
(9) Until the date
contemplated in subsection (1), a public school referred to in that
subsection may not let, sell or otherwise
alienate its immovable
property, or grant to any person any real right thereon or servitude
thereon without the written consent
of the Member of the Executive
Council.
(10) Any claim for
compensation arising from subsection (1) must be determined as
contemplated in the Constitution.
(11) The officer in
charge of the deeds office or other office where the immovable
property of a school is registered, must, on
submission of the title
deed in question, make such endorsement on the title deed and such
entry in the register as may be required
to register the transfer of
the immovable property.
(12) Any immovable
property belonging to the State which was used by a school and not
transferred or endorsed into the name of the
school contemplated in
subsection (1) remains the property of the State.
(13)
Any immovable property which was transferred into the name of a
school contemplated in subsection (1) must, if such school
is
subsequently closed in terms of this Act or any other applicable law,
devolve upon the State.”
[67]
[203]
Section
56 is also relevant to mention. It contains transitional
provisions relating to public schools on private property
and
provides as follows:
“
56.
Transitional
provisions relating to public schools on private property
.—If
an agreement contemplated in section 14 does not exist at the
commencement of this Act in respect of a school, standing
on private
property and which is deemed to be a public school in terms of
section 52 (1), the Member of the Executive Council must
take
reasonable measures to conclude such an agreement within six months
of the commencement of this Act.”
[204]
Section
14 in turns deals with public schools on private property. It
provides as follows:
“
14.
Public
schools on private property.—
(1)
Subject
to the Constitution and an expropriation in terms of section 58 of
land or a real right to use the property on which the
public school
is situated, a public school may be provided on private property only
in terms of an agreement between the Member
of the Executive Council
and the owner of the private property.
(2)
An
agreement contemplated in subsection (1) must be consistent with this
Act and in particular must provide for—
(a)
the
provision of education and the performance of the normal functions of
a public school;
(b)
governance
of the school, including the relationship between the governing body
of the school and the owner;
(c)
access
by all interested parties to the property on which the school stands;
(d)
security
of occupation and use of the property by the school;
(e)
maintenance
and improvement of the school buildings and the property on which the
school stands and the supply of necessary services;
(f)
(f)
protection of the owner’s rights in respect of the property
occupied, affected or used by the school.
(3)
The
provisions of the Deeds Registries Act, 1937 (Act No. 47 of 1937), do
not apply to a real right, excluding ownership, acquired
by the
State, a public school or another party in terms of an agreement
contemplated in this section.
(4)
The
right contemplated in subsection (3) is enforceable against any
successor in title to the owner of the immovable property in
question.
(5)
Despite
subsection (3), a Registrar of deeds must endorse on the title deed
of the affected property that the property is subject
to an agreement
contemplated in this section, if the Registrar of deeds receives—
(a)
an
application for such endorsement by the owner of the property, or the
Member of the Executive Council or any other holder of
a right
contemplated in subsection (3), together with the title deed of the
property; and
(b)
affidavits
by the owner of the property and the Member of the Executive Council
stating that an agreement contemplated in this section
has been
concluded.
(6)
The
Minister must, after consultation with the Council of Education
Ministers, make regulations regarding the minimum requirements
of an
agreement contemplated in this section.
(7)
The
Registrar of deeds may cancel any endorsement made in accordance with
subsection (5) if the owner of the property submits an
affidavit from
the Member of the Executive Council of the province in which the
public school is situated to the effect that such
public school has
been closed in terms of section 33.
(8)
Any
transfer duty, stamp duty, fees or costs payable in respect of the
registration of a right in terms of subsection (3) may be
paid in
full or in part from funds appropriated by the provincial legislature
for that purpose, but the public school contemplated
in subsection
(1) is not responsible for such duties, fees or costs.”
[205]
It
is common cause that such an agreement was not entered into
in
casu
.
[206]
Section
58 deals with expropriation of land or real rights in or over land
for any purpose relating to school education in a province.
It
provides that the MEC may, if it is in the public interest to do so,
expropriate land or a real right in or over land for any
purpose
relating to school education in a province. This requires
notice to be given in the prescribed format and a fair
process to be
adhered to. It is not relevant for present purposes except to
highlight that Playways’ fixed property
could not have fallen
into the state coffers on this basis, unbeknown to it.
[207]
There
are various other sections in the Schools Act generally which dictate
to schools on issues of compliance or duties etc. which
would
obviously set a public school dramatically apart from an independent
one. Some expectations are common to both schools
since the act
applies to school education in the Republic of South Africa as a
whole, but it is in these nuances that the public
nature of a school
stands out by comparison by the Department’s dealing with
then.
[68]
The Department
would, for example, dictate to a public school regarding its
admission criteria and policy
[69]
and the determination of norms and standards for basic infrastructure
and capacity,
[70]
language
policy,
[71]
managing
non-discriminatory language practices,
[72]
requirements in respect of religious observances,
[73]
requiring the adoption of a code of conduct for learners by the
school’s governing body,
[74]
dealing with the suspension and expulsion from school of its
learners,
[75]
the expectation
of a representative council of learners at high schools,
[76]
the various unique aspects of control of public schools mentioned
under Chapter 3 as well as the funding of public schools in terms
of
Chapter 4, calling to order under-performing schools,
[77]
the overall compliance by the governing bodies with the various norms
and standards
[78]
and limiting
the liability of the state in the specified instances provided for in
respect of the activities of a public school.
[79]
[208]
All
these aspects or features of rights and obligations would roundly
manifest whether a school is regarded by the department as
a public
or an independent school. Playways does not appear however to have
been regulated by these demanding standards.
[209]
What
stands out about the legislative provisions outlined above, even
before the coming into effect of the current Schools Act,
is the
consistency over the years concerning the distinction drawn between
public and the erstwhile private schools and the differences
in their
interaction with the relevant education department. The
Department’s stand-offish yet interested interaction
with an
independent school is consistent with the Constitutional imperative
on the State to provide a basic education as provided
for in section
29 of the Constitution,
[80]
although making allowance for independent education institutions to
be established and maintained at own expense subject to certain
requirements and watchful oversight for compliance and quality
control.
[210]
Section
29 (3) dictates the elementary conditions for independent schools to
professionally co-exist with public schools.
These are that the
schools must be racially non-discriminatory, be registered with the
State, maintain standards that are not inferior
to standards at
public educational institutions and be maintained at own expense,
provided that this does not preclude state subsidies
for independent
educational institutions.
[81]
These two features of controlled state oversight and financial
aid/assistance, or the payment of subsidies to independent
education
institutions has been a consistent theme over the years even before
the dawn of Democracy. Despite subsidization the
line between public
and independent schools has always been a stark one.
The
relevant norms and standards for School Funding:
[211]
It
is necessary briefly to have regard to the National Norms and
Standards for School Funding
[82]
published in 1998 pursuant to the provisions of section 35 of the
Schools Act and section 3 (4)(g) of the National Education Policy
Act, No. 27 of 1996 (“NEPA”)
[83]
which set the background to the changes that were rung in after the
new national system for schools was introduced. This gives
a context
in my view to Mr. Van Rensburg’s early involvement in the new
features sought to be implemented by the Department
and efforts to
gear up the EMIS to meet education’s post-apartheid aims of
redress and equity in the provisioning of quality
education.
[212]
In
its introduction the norms clarified the obvious that they comprised
the national norms and minimum standards for school funding
in terms
of the School Act. In addition, the document purported to deal
with the procedures to be adopted by provincial education
departments
(“PEDs”) in determining resource allocation to their
schools. It also intended to deal (as it did)
not only with the
funding of public schools and the exemption of parents who are unable
to pay school fees, but with the payment
of subsidies to independent
schools.
[213]
It
recognized the broad consultation that had happened to make it a
reality including the input of organizations representing independent
schools and public school governing bodies.
[214]
The
norms were to have become national policy on 1 April 1999 and would
effectively have been implemented in the school year starting
in
January 2000, which was the year in which Mrs. Hollis retired as
principal.
[215]
Certain
teething problems were envisaged by the national education department
in the implementation of the norms and standards,
and obligations
placed on the heads of department in turn who:
“
(would)
be expected to verify that the national norms are being complied with
in allocating funds, or that acceptable alternatives
are being
implemented after consultation with the DoE. If the PED is unable to
comply with the norms because of a lack of expertise
or for any other
reason, the DoE must be informed without undue delay, so that the
problem can be examined, and remedies sought.”
[84]
[216]
The
norms warned that, since government was “grappling with the
necessity to stabilise and reprioritize provincial education
budgets,” the reality was to be faced that provincial education
budgets from which subsidies could be paid were extremely
constrained. It cautioned further that subsidy allocations had
to show preference for independent schools that met very specific
targets.
[85]
[217]
I
n
order to establish policy targets for the number of educators and
non-educator personnel at schools the document proposed the
following:
“
The
national Department of Education (DoE) will work with provincial
education departments, using existing databases, to ensure
that they
can track the number and location of personnel engaged in teaching
and nonteaching activities, in order to assist planning
towards this
target.”
[86]
[218]
In
implementing the new funding system, it noted the need to develop
capacity for intensive data use and more specifically it recognized
that systems had to be developed to guide planning and resource
allocations which involved schools in timeously providing sufficient
information by 30 September each year.
[219]
It
also described how “comprehensive data” had to be
ascertained:
“
Comprehensive
data on schools have been created through the national School
Register of Needs survey, whose databases have been
incorporated in
provincial data systems, and the new, provincially-based national
Education Management Information System (EMIS).
The 1996 national
Census reports will provide reliable and up-to-date demographic
information. Provincial education departments
may have access to
other data sources, and the national Department will augment these
wherever possible.”
[87]
[220]
It
related how accuracy was to be achieved:
“
The
MTEF
[88]
provides a
co-operative mechanism for improving the accuracy of budget-related
data and undertaking relevant analytic studies.
The DoE and PEDs are
active participants in these processes.”
[89]
[221]
It
reflected how it would accomplish the task at hand with the necessary
skills set:
“
Skill
requirements
73. To attempt to
accomplish the new tasks without high-level skills is absolutely
unrealistic, especially given the size of provincial
education
budgets. Each provincial education department must, therefore,
acquire the services of:
(a) At least one,
and preferably several, highly-skilled strategic financial analysts
who understand the use of data-intensive planning
and analysis
techniques in public financial management. If not already deeply
familiar with education issues and policies, they
must be willing to
make a careful study and acquire the necessary knowledge.
(b) Several
high-level accounting experts who understand the national
computerized public financial and management information systems.
Both accounting expertise and strategic financial management
expertise are necessary if PEDs are to apply the norms
satisfactorily.
(c) Several
highly-skilled information systems experts to improve the functioning
of the education databases (including the MIS).
This will include the
decentralization or devolution of such functions and the training of
regional and district officers.
(d) At least one
senior statistician or applied numerical analyst.
(e) At least one
person skilled in educational planning and forecasting techniques.
(f)
Computer systems and databases.”
[222]
It
proposed that provinces having challenges making the necessary
appointments were to explore the secondment of persons skilled
in
this area with EMIS expertise to assist with the introduction of the
new, high-level analysis.
[223]
It
acknowledged that it would probably be a slow process and that it
would take time for PEDs to achieve the required capacity and
to
enable their specialists to become fully conversant with the new
requirements. It made allowance for the national norms
to be
applied in a progressive manner while PEDs were developing their data
systems, and their capacity to apply them. It suggested
how the norms
were to be implemented by reaching specific goals:
“
Implementing
the norms
78. Certain tasks
have priority and must be undertaken or continued even before the
norms and minimum standards come into effect.
These are:
(a) creating a
computerized method of tracking and documenting the targeted
allocations and subsidies, according to the norms;
(b) creating
appropriate accounting and financial mechanisms to allocate and track
funds in terms of the norms, and to inform schools
of their
allocations as required by section 34 of the Act;
(c) helping SGBs to
understand how to advise parents on whether to set fees, to calculate
the level of fees, to determine exemption
criteria and procedures,
and to handle appeals (SASA, sections 38-40).
79.
Analytical and budgetary preparation for January 2000 must start not
later than the beginning of the school year 1999….”
[224]
The
document purported to set out the first uniform national norms and
standards for independent school subsidies and conditions
of
eligibility as indicated below:
“
14
3.
The norms that follow are the first uniform national norms for
independent school subsidies. They are intended to provide
a stable
and principled basis for MECs in all provinces, to decide the
eligibility for subsidy and the level of subsidies for registered
independent schools.
144. The national
norms apply uniformly in all provinces. However, a provincial MEC may
vary them, so long as their intent and spirit
are maintained. The
Head of Department must consult the national DoE on this matter.
145. The following
norms embody conditions of eligibility for subsidy, and funding
criteria for allocating subsidies.
Conditions of
eligibility
146. An independent
school may be considered for subsidy if it-
(a) is registered by
the PED;
(b) has made an
application to the PED in the prescribed manner;
(c) has been
operational for one full school year;
(d) is not operated
for profit;
(e) is managed
successfully according to a management checklist determined by the
PED, as described in paragraph 149;
(f)
agrees to unannounced inspection visits by officials of the PED; and
(g)
has not been established in direct competition with a nearby
uncrowded public school of equivalent quality.”
[225]
Schools
eligible on this basis were required to “toe the line” as
follows:
“
149.
Each school requesting funding will be subject to a management
checklist (which may be the same as, or based on, the checklist
referred to in paragraph 107 above), which will be approved by the
HQD after consultation with representatives of independent schools.
This checklist will determine whether the school is able to manage
public funding responsibly. It must include indicators of sound
management, such as whether the school keeps proper admissions and
attendance registers and maintains fee payment and other financial
records. To be eligible for funding a school must subscribe to the
checklist and must allow unannounced inspections by officials
of the
PED, to ensure that the practices in the checklist are up-to-date.
Refusal to allow an unannounced visit will result in
forfeiture of
further funding.”
[90]
[226]
It
was significantly elucidated at that time that Grade R funding by way
of subsidy was not within the contemplation of the National
Education
Department:
“
153.
Subsidies may be paid only in respect of grades 1-12. No other grades
are eligible for subsidy for the time being. ….”
[227]
It
was further apparent that subsidy payments, calculated on a per
learner basis according to verified enrolment in the school (such
as
were warranted), were to be paid at the beginning of each term by no
later than 1 April in each school year for the first term,
and
subsequently thereafter by no later than six weeks after the
beginning of each term. The monthly payment of an educator’s
remuneration in lieu of a subsidy (assuming eligibility) does not
feature as an authorised manner of subsidization at all.
[228]
The
brief outline above certainly raises a question mark concerning how,
if Playways was an independent school, the Department,
certainly
after January 2000, could have continued to pay the principals’
remuneration in lieu of subsidizing it on the basis
contended for by
the defendants.
[229]
The
payment of Mrs. Hollis’ remuneration was probably still
acceptable (on the defendants’ version that she had come
onto
the persal system as a means of subsidizing the school in the same
way as teachers who had gone before her) coming in
at the tail
end of what had been a permissible practice by government up until
then and the fact that the implementation of the
new system was by
then just imminent, but what is less clear is how the second
defendant could have been remunerated by persal
relative to Playways
after the implementation date of the 1998 Norms and Standards.
The answer could be that the Department
made a mistake by creating or
perpetuating a resource allocation for Playways, whereas it was not
eligible for public funding any
longer at all.
[230]
It
is unfortunate that there was an absence of documentation or evidence
concerning the circumstances under which the second defendant
came to
be appointed as a persal paid educator in association with Playways
at a crucial time when funding and other changes in
the introduction
of formal Grade R education were in the pipeline. The only fact
that emerges from a financial report of
the school in 2001 is that
there was a seven-month delay in her going on to persal in that year
which had caused a burden because
her salary had to be funded from
school fees. It would have been helpful to know why, what the
Department was grappling with, and
how they came to a decision to pay
her remuneration on the basis that she was associated with Playways,
a pre-primary school that
had consciously elected not to align itself
with a public primary school, which appeared to be the only basis
upon which the Department
could provision a post of principal.
Whether public or independent in the Department’s estimation,
it called for an explanation.
EDUCATION
WHITE PAPER 5 ON EARLY CHILDHOOD DEVELOPMENT:
[231]
It
is also relevant to mention the Education White Paper which saw the
introduction of the National Department of Education’s
groundbreaking pilot project on the provision of the Reception Year
(Grade R) in formal education. It was declared national policy
in
2001 under section 3 (4) (
l
)
of the NEPA, by notice published in the Gazette.
[91]
The main ECD policy proposed was the establishment of a national
system of the provision of Grade R for children aged five
turning six
so that all children entering Grade 1 would have an opportunity to
participate in an accredited reception year programme.
The intention
was to achieve this through a phased poverty-targeted approach that
makes use of grants-in-aid to primary schools
and subsidies to
selected community-based ECD sites within conditional grants and
provincial budgets.
[232]
To
improve the quality of the ECD programmes, it was required that all
centres offering reception year programmes be registered
with PEDs,
that accredited reception year educators be registered with the SA
Council of Educators and that educators who did not
have a
specialized qualification to teach Grade R would need to undergo
approved training programmes. In identifying the types
of ECD
provision in the country which had gone before, the Paper
acknowledged the great variety of ECD services which existed in
the
category of independent ECD institutions, included among them being
Grade R at independent schools, and Grade R attached to
public
schools, but managed by the school governing body and operated by
private individuals or the community. Significantly it
recognized
that these had been funded through parents’ fees, community
fundraising and/or donations of material, “with
some or no
financial support from government.” In Education’s
analysis of these sites it picked up on the stark difference
in
quality between them
inter
alia
based on inequitable funding and the resourcing of ECD services.
[233]
The
Paper revealed further that the Department of Education had in 1996
adopted the
Interim
ECD Policy
which had provided for the implementation at the time of a National
Reception Year Pilot Project which was funded by government
at a cost
of R125 million in which 2,730 ECD sites participated to make and
test innovations in the ECD field related to the accreditation
of
practitioners, policy and subsidy systems, and to research the most
effective means of delivering Grade R education. 1997 saw
the launch
of the Interim Policy on ECD. It appears that the Eastern Cape
had amongst other PEDs experienced “serious
problems in project
implementation.”
[234]
One
of the results of the research is that whilst it was indicated that
independent pre-primary schools and reception year programmes
that
are attached to independent schools provide an important service and
should continue to do so, a conscious decision was reached
that these
programmes would however not receive a government subsidy.
Nonetheless they were required to adopt and carry out
national
policy and norms and standards on the provision of reception year
programmes on the same basis as was applicable to public
providers.
The provision of the reception year in public primary schools was to
take place via direct grants-in-aid from provincial
departments of
education to school governing bodies under the “coverage”
of section 21 of the Schools Act. These grants
would flow on a
per-learner basis and would be “poverty-targeted.”
[235]
We
learn from all of this that, in order for any kind of subsidization
to have continued after 2000 in respect of the kind of school
that
the defendants say Playways was, that it was required to attach
itself to a public primary school to qualify for grants-in-aid,
and
that such subsidization could certainly not by that stage have
entailed the payment of an educator’s remuneration. It
is
common cause that Playways turned down the invitation to associate
itself with Hudson Primary.
[236]
It
is harder to process that the second defendant was paid in
association with Playways for more than a decade afterwards even on
the assumption that it was a standalone ECD site in the public sector
in the Department’s estimation. This only serves to
heighten
the probability that the payments made by persal on this basis were a
mistake and self-evidently against policy.
EVALUATION
AND DISCUSSION:
[237]
It
is evident from the legislative outline above that registration
denotes an independent school’s legal authority to operate
and
its certificate mere proof of the fact of its registration as such.
I cannot conclude for the reasons stated below that
the first
defendant’s inability in this litigation to provide a
certificate of registration
per
se
warrants a finding that it is accordingly, or therefore must have
been, a public school. There is in any event as I have
indicated above no onus on the defendants to establish that it was in
fact an independent school, but on the plaintiffs instead
to prove
that it is (as its records even presently maintain), and was, a
public school at the time of the impugned sale.
The fact that
the Department’s EMIS says it is a public school in its records
is not an overwhelming probability in its favour
as I indicate below.
[238]
The
unchallenged evidence is that the school has been in existence since
1940 when the authorities did not require such an institution
to be
registered. Indeed, the concept of a nursery or pre-primary school in
an official school context only emerged much later
so it could not
have been a public institution from its inception as claimed by the
plaintiffs
[92]
. Further the
school’s recorded history that in 1959 the Cape Education
Department paid a provincial subsidy to it, and thereafter
in 1976
took over the payment of educators’ salaries (certainly
possible and consistent with the relevant legislation which
pertained
at the time) cannot be gainsaid. Indeed, in the circular note
to parents referred to above, Mrs. Hollis had it
down that the school
was “registered with the Cape Education Department,” a
representation most unlikely to have been
published to prospective
parents as the school’s manifesto if it were untrue, especially
since it appears to have conducted
itself professionally over the
years in every other respect. Moreover, since subsidies were
paid to it under the old dispensation
and later educators’
salaries, the Cape Education Department’s recognition of it as
a lawful school must be assumed
otherwise it would not have parted
with the funding as even then private schools were operated subject
to strict conditions and
only for so long as the education department
was satisfied that the school was compliant with the conditions
imposed on it at all
material times. The school must further
have had some credibility as an independent facility for the
municipality to have
sold land to it in 1987 as an educational
institute in the form of a voluntary association. It also
registered a bond in
1992 with Absa Bank as “Playways
Pre-Primary School,” which assumes that it existed as such a
private juristic entity
at the relevant time.
[239]
It
is against the probabilities that Playways was only registered as an
educational institute on 1 January 1983. This information
on
EMIS does not accord with the unchallenged evidence that the school
existed before and was indeed recognized by the Cape Education
Department as an education institute by the payment of subsidies and
educators’ salaries to the school. If anyone should
have had
the duty to produce paperwork in substantiation of such establishment
it is the Department that maintains that the school
came into being
on this date as its records suggest. The best that Mr. Heunis could
assert on behalf of the plaintiffs in this
respect is that since
other details on the Department’s EMIS ring true, that this
random fact, being the purported date of
its installation, must have
emanated from the school itself. Inasmuch as Mr. van Rensburg
suggested that this peculiar information
would have come from the
school itself on the occasion of the census conducted in 2000
(through the mouth of the principal I expect)
Mrs. Hollis, who was at
the helm at the time, has disavowed that she would have given such an
indication.
[240]
There
were no significant developments related by Mrs. Hollis on the basis
of which it can be concluded that the school changed
its status from
private, the terminology retained at the time, to public.
Had it done so this would have attracted
publicity and left a paper
trail which would vouch for the change. Similarly, if Playways
had sought to declare itself a
state aided school before the coming
into operation of the Schools Act that too would have been a very
public about turn that would
be manifest from the relevant paperwork
and publication of the relevant notice in the Government Gazette.
[93]
Even assuming that Playways had taken on the mantle of becoming a
“departmentally controlled” institution by choosing
that
form of subsidy in terms of section 26 (1) under the Education
Affairs Act, this would not have impacted its status as an
independent school.
[241]
What
is significant however, and which is certainly consistent with the
legislative frameworks which applied in both 1959 and 1976,
is that
it was permissible for educators at private schools to be remunerated
by the Cape Education Department.
[242]
In
my view there is no merit in Mr. Heunis’ submission that the
possibility of the payment of educators’ salaries in
lieu of a
general subsidy is to be discounted by the absence of any regulations
promulgated pursuant to section 240 (5A) of the
Education Ordinance,
which was probably the dispensation under which the manner of
subsidization by means of the appointment and
remuneration by the
Cape Education Department of teachers at Playways as a private school
for the instruction of its pupils first
commenced in the school’s
case. Mrs. Hollis’ evidence that she and others before her were
so paid in fact, over a lengthy
period and despite the absence of
regulations having been promulgated in this respect, cannot be
gainsaid. This also accords
with the history of the school. I
mention that in any event, and since we are only concerned with the
later years, section 26 of
the Education Affairs Act did not require
the promulgation of any regulations to give effect to the obligation
of the then Head
of Education to classify a school for subsidy
purposes as
a
departmentally controlled pre-primary school, after which the persons
employed in teaching posts at such schools would be deemed
to be
employed in teaching posts at a departmental institution
.
The point is that the legal framework clearly allowed for
subsidization of private schools in this manner and that it would
have
been the most natural thing for such educators to have come onto
persal on this ticket.
[243]
There
is also the unchallenged evidence that the school operated in every
sense of the word as a private school. The concession
that Mrs.
Koekemoer, an emissary of the Department, involved herself to the
limited extent related by Mrs. Hollis and Mrs. Leonard
is in
conformity with Department’s oversight responsibility in
respect of independent schools. For the rest Playways
used its
own funds other than the limited support it got from the education
department to subsist and acquire the assets which
it did.
Governance wise it never subscribed to the public school governing
body model and it did not report its financial
or internal affairs to
the Department. The only regulation by the Department which it
submitted itself to was that pertaining to
the standard monitoring
and cooperation of independent schools prescribed by the relevant
legal dispensation from time to time
relating to inspections and the
submission of mandated information.
[244]
I
turn now to deal with the evidence of Mr. van Rensburg. At best his
evidence that Playways is and was a public school derives
from
information stored on EMIS’ databases.
[245]
The
premise is that the EMIS’ records introduced through his
testimony are correct since they constitute data messages within
the
meaning contemplated by section 15 (4) of the ECTA, but it is not
clear from the “certificate” put up by the first
plaintiff to bring himself within the parameters of the subsection
whether he intended to assert that the first or second situation
applies. The alternate data message that is admissible in evidence on
its mere production in civil proceedings and which purportedly
constitutes rebuttable proof of the facts contained in such records,
copies, printouts or extracts, is a copy or printout or extract
from
a data message
made
by another person in my view in the ordinary course of that person’s
business, which the person who is an officer in the
service of such a
person and who is doing the certifying has certified to “be
correct”.
[94]
Perhaps it was meant to suggest that Mr. van Rensburg himself made
the data messages because the phrase: “in the course
of his
employment” is used, but he could certainly never claim to have
had any input in making the data messages that emanate
from persals’
records.
[95]
The certificate
is not in clear terms but I will assume for present purposes
that the data message emanating from EMIS’
records (the
Institution Registration Report) was “made” by EMIS
officers in the ordinary course of business (in the
sense that EMIS
and persal records are mandated to be established and maintained for
every provincial education department) and
that Mr. van Rensburg was
an officer in service going about EMIS’ business when he
extracted the printout which he did from
EMIS’ electronic
storage databases.
[246]
Although
Mr. van Rensburg is self-evidently not in persal and has limited
access to files imported into EMIS from persal’s
data bases
such as to cast doubt on his being able to certify those records as
correct, it is unnecessary to evaluate the status
of annexures RVR 2,
3 and 4 introduced through his testimony. They are not
contentious in the sense that it is common cause
that post
establishments were declared in respect of Playways for 9 April 1999
and for 1 January 2003 respectively purportedly
by the Department
following the prescripts of the 1998 Norms and Standards for School
Funding applicable at the time. It is also
not in issue that when the
Department conducted a persal snapshot relative to the school over
the period 2005 – 2010 it revealed
that a principal of post
level 4 had been provisioned to it and that such principal, being the
second defendant, was remunerated
by persal throughout this time,
this being represented by Annexure “RVR 4”.
[247]
I
mention though that, except to repeat the Department’s view
that this by default means that Playways was a public-sector
school
because persal only pays educators employed in public sector schools,
no evidence was presented to say how these resource
allocations came
to be made relative to Playways on the basis of either contention
that it was a public or an independent school.
The changes heralded
by the 1998 Norms and Standards for the funding of schools was a
recent development so the source documentation
that led to the
resource allocations should still all have been available to give a
context to especially the 1999 Staff Establishment,
which no doubt
established the pattern going forward post amalgamation. No one from
persal, at least no authorised person, came
forward to testify in
this respect. As an aside I mention that Mrs. Hollis in
her testimony expressed surprise that
in the staff establishment for
2003, after her retirement, the number of Grade R learner could be 70
because of the school’s
limited capacity. The likelihood
therefore exists that the information given as the premise for this
approved establishment was
incorrect even on this basis.
[248]
Another
absolute distortion of the reality is that the second defendant was
(I hope no longer is) shown on persal to be a paid educator
in
association with Playways for years after it was plainly known by the
Department’s authorities that she had not shown
her face at the
school since January 2007 after its sale to the second defendant. It
certainly begs the question how this could
have happened if the
procedure is for the school principal of a public school to annually
update and or verify this information?
What, and more
importantly who, from 2007 to 2010 informed the Department that an
educator was needed at Playways for the resource
allocation to have
been perpetuated long after the sale of the school? All of this
confirms overwhelmingly to me that despite
what persal’s
records indicate, they could not have provided a reliable basis upon
or against which EMIS could have validated
the information reflected
in its master list concerning Playways, whether in respect of the
sector of the school or its date of
registration.
[249]
That
brings me to the Institution Registration Report (Annexure RVR 1). It
would be admissible in evidence, all other requirements
being in
place, despite the fact that it was generated by a computer and not a
natural person. But where the probative value of
the information in
the message (in this instance the facts in contention represented in
the report being that the school was registered
as a public school on
1January 1983 and that its status is that of a public school)
[96]
depends upon the credibility of a natural person other than the
person giving the evidence, there is no reason to suppose that
section 15 seeks to override the normal rules relating to hearsay
evidence. This is clearly not a situation where the probative
value
depends upon the “credibility” of the computer because we
are here dealing only with an electronic storage database.
[97]
The information in the printout probably passes the grade on a
technical score except that its content, in respect of the first
contentious issue highlighted above, is by Mr. van Rensburg’s
own admission based on hearsay evidence and other unreliable
factors
I will shortly relate.
[250]
There
appears to be no issue with the report’s authenticity as
computer reports go. Mr. van Rensburg was himself involved
from the
outset post amalgamation with the team responsible for setting the
templates and capturing the information relative to
the core data
fields that EMIS’ records represent. Indeed, he had himself
perfected or adjusted its platform in use at the
time so that it
could accommodate what was necessary for the data base to store and
communicate information. There also appeared
to be no technical
reason, once EMIS got over its original problems in setting up a
workable data system, to suggest that there
was anything lacking in
the
manner
in
which the integrity of its data was or is being maintained.
[251]
But
the concern is with the content that has gone into the core fields on
the master list of institutions which represents Playways
as a public
school whereas all the other evidence points in the opposite
direction. I consider the fact that in gearing up
the EMIS
system in 2000 there were no independent source documents to confirm
the premise adopted about the school that it was
a public school save
for the fact that an established post had been provisioned to it and
that it boasted a persal paid educator
in the form of a principal. It
is common cause that the Cape Education Department could not come to
the party in providing crucial
documentation and that the existing
data basis were in effect consolidated and validated against persal’s
records. The disputed
information concerning the school’s
purported registration as a public school on 1 January 1983 was
obtained second hand
from the results of a census concerning needs
infrastructure that was conducted by an entirely different government
department
whose data was shared with EMIS. No one can say who
said this, or whether a document constituted the source of this
information,
which has also never been forthcoming.
[252]
Even
if Mr. van Rensburg had put up a word perfect section 15 (4)
certificate this does not magically transform the recordal in
EMIS’
records, in essence based on hearsay evidence (which I find no basis
to admit against the defendants’ acceptable
evidence that
Playways was established in 1940 and has carried on its existence as
a private or independent school since then)
or conjecture, to an
established or proven fact that it was a public school which was
registered on 1 January 1983. It is a circular
argument to suggest
that EMIS’s record are authenticated or validated by persal’s
records when all the indications
are that the Department should not
have provisioned a post a Playways at all after Mrs. Hollis’
retirement. The fact that
it is inherently improbable that a persal
paid educator would be appointed to an independent standalone ECD
centre cannot redound
to the defendants’ disadvantage in this
bizarre situation. I am certainly not inclined to give the
Institution Registration
Report any validity other than that it
constitutes a recordal in EMIS’s records of what in its
estimate and best guess constitutes
a public school. Mr. Heunis was
correct in noting that this information may or may not be correct.
I find no basis to accept
that it is correct for the various reasons
indicated above.
[253]
Mr.
Heunis sought to persuade me that the presumption
omnia
praesumuntur rite esse acta
somehow
came to the plaintiffs’ rescue to confirm the validity of EMIS’
records but their reliance upon the maxim is
to my mind misplaced.
The presumption only operates when a mere formality or detail
required by procedure is involved. It
permits a party to
dispense with proof of compliance with necessary formalities, if
there is evidence of the act having been legally
and regularly
done.
[98]
I agree with Mr.
Ford that the presumption cannot operate to infuse with legal
validity the recordal of a school as public on its
EMIS master file
database as the creation of a reliable database under these
circumstances, post amalgamation, was by no means
a mere formality or
detail of required procedure routinely undertaken. It applies to an
act having been legally and regularly done,
not to the creation of a
new database under these peculiar circumstances.
[254]
In
the premises the plaintiffs have failed to establish on a balance of
probabilities that the entity that the sold the school and
its fixed
property to the second defendant was a public school. In
consequence the first plaintiff had no legal standing
to interpose
himself in the sale. It is unnecessary to determine the rest of
the issues
vis-à-vis
the first defendant. As for the second and plaintiffs’ private
constitutional challenge they failed to present any evidence
to meet
the burden of proof on them and their separate claim in this respect
must also fail.
[255]
In
the result I issue the following order:
1.
The
action is dismissed, with costs, such costs to include the costs of
second counsel, as well as the reserved costs of the application
in
March 2014 when the matter was referred to trial.
________________
B
HARTLE
JUDGE
OF THE HIGH COURT
DATES
OF HEARING: 19 April, 19, 20 & 21 September 2016 and 27 February
2017
DATE
OF JUDGMENT: 29 May 2018
APPEARANCES
:
For the first and
second plaintiffs: Messrs. J C Heunis SC & B Boswell
instructed by Bax Kaplan Russell Inc., East
London (ref. Mr. S
Clarke).
For the
defendants: Mr. E A S Ford SC & Ms. M L Beard instructed by
Wesley Pretorius & Associates, East London (ref. Mr.
Smith).
[1]
Although the
matter commenced as an application, I will refer to the applicants
in their respective order as the plaintiffs and
the respondents in
their respective order as the defendants.
[2]
The
plaintiffs plead that Playways “was at all relevant times a
public pre-primary school as defined in Chapter 3”
of the
Schools Act. Chapter 3 deals with public schools under its own
heading.
[3]
See
paragraph 14 of the replying affidavit of Mr S S Zibi, the Deputy
Director-General of the Provincial Education Department,
as well as
paragraph 34 of the applicants’ heads of argument filed in the
motion proceedings.
[4]
In
terms of the Employment of Educators’ Act, No. 76 of 1998
(“EEA”), which has applied since 2 October 1998,
a post
has to be created on any educator establishment under the act, in
the case of a provincial department of education, by
the relevant
Member of the Executive Council. In terms of section 5,
subject to the norms prescribed for the provisioning
of posts,
educator establishments are to consist of the posts created by the
Member of the Executive Council. The EEA applies
only in
respect of the employment of educators at public schools and
departmental offices. These provisions must be read
together
with section 12 of the Schools Act which provides that the MEC must
provide public schools for the education of learners
out of funds
appropriated for this purpose by the provincial legislature and that
he must
inter
alia
determine norms and standards for school funding and educator
provisioning for public schools. It is apparent from those
norms and standards and general education policy that the state aims
to meet its Constitutional imperative to provide basic education
to
public schools from public revenue on a fair and equitable basis and
that it does so practicably according to a distribution
formula and
certain policy targets. See also sections 34 and 35 of the
Schools Act which articulates the responsibility
of the state to
fund public schools and how this is to be effected in accordance
with norms and standards for school funding.
The underlying
significance of this annexure, and “RVR3” is that
because of the post establishments it must follow
that Playways
is/was a public school.
[5]
The
plaintiffs had also filed a notice to strike out which is irrelevant
for present purposes.
[6]
The first
plaintiff is alleged to have no interest in Playways because it is
not a public school. The complaint against
the second
plaintiff is that she was not a member of the juristic person which
then existed, and which conducted Playways. The
premise in the
application is that she was “under a cloud” so to speak
because she had been convicted of theft of
school funds, albeit she
was officially, at the time of the sale at least, still the school’s
principal. The third
plaintiff, although vice-chairperson of
the governing body at the relevant time of the sale, is said to have
no
locus
standi
because Playways has been wound up. Whilst the argument against the
first plaintiff’s
locus
standi
,
if it transpires that the school was private and not public, is
certainly defensible, those against the second and third plaintiff’s
locus
standi vis a vis
the voluntary association lack basis as far as I am concerned. (See
footnote 7 below).
[7]
Although
this is not an aspect I need consider given the view I take herein,
I can hardly conceive of a situation where aggrieved
members of a
voluntary association would be denied an audience to court on the
basis that the association has been wound up and
its core assets
disposed of on the ground that one or more of its members has acted
fraudulently or flouted the rules of the
constitution in respect of
the very disposition and winding up that “terminates it”.
Notionally there would
be an entity still capable of giving effect
to the relief once the illegality complained of is reversed by a
court.
[8]
Evidently
the Head of Department had no inkling when push came to shove of the
movable assets of Playways despite its regard of
the school as a
public one. If not an indictment of their record keeping, it
is a probability in favour of the defendants
that Playways was
instead an independent school and the provisions of the section
therefore not applicable to it.
[9]
The
MEC appears not to have done so to date. If one has regard to the
huge resources thrown after this litigation to protect a
handful of
movable assets evidently of nominal value according to the deed of
sale (leaving aside the issue whether Playways
is or isn’t a
public-sector school), the imperative to do so without delay is
brought into sharp focus.
[10]
This
is a reference to the Schools Act.
[11]
See
sections 13, 14, 35(5) and 55 of the Schools Act.
However,
in
any event, the prohibition only applies to the sale of assets of a
public school
.
[12]
On
the premise of a section 15(4) ECTA certificate.
[13]
Mars
Incorporated v Candy World (Pty) Ltd
[1990] ZASCA 149
;
1991 (1) SA 567
AD at 575H.
[14]
2012
(5) SA 246
(SCA) at par [32].
[15]
Supra
[16]
I
believe it was incumbent on the parties before the trial commenced,
as part of the case management processes at least, to have
prepared
a list of admissions and not to have left it to the court to have
had to traverse more than a thousand pages filed in
the motion
proceedings to gauge the essence of the matter or to determine what
was in contention and what not.
[17]
In
fact, it can be assumed from Annexure “RVR4”, which
covers the period from October 2005 to March 2010, that the
second
plaintiff continued to be paid as a principal of Playways well
beyond the date on which the school and its property was
sold, or
conversely stated, that she remained a persal paid educator relative
to the school for the entire period. This raises
a concern in itself
that the Department’s EMIS records do not reflect the true
reality.
[18]
It
is not clear why the defendants chose to limit their admission in
this respect. It is common cause that at least as at
the date
of the sale of the property the third plaintiff was
de
facto
the vice-chairperson of the voluntary association.
[19]
Mr.
Ford submitted during argument that the admission by the plaintiffs
of this allegation that the school was conducted by a
juristic
person with its own constitution as opposed to a juristic person
envisaged by section 15 of the Schools Act, is dispositive
of the
matter because one cannot have entities existing in different
dimensions. It either was who the defendant says it
is, or it
was the section 15 juristic person. Although expressed
awkwardly it appears to me to be plain from the general
tenor of the
plaintiffs’ case, however, that the entity they had in mind
when making this admission is the public school
one.
[20]
Ironically
in my experience of case management the parties agree as of rote to
such effect, but in this instance the defendants,
by counsel’s
own admission, reasonably anticipated that a challenge would come
against the authenticity of the documents
concerning which Mr. van
Rensburg would testify.
[21]
The
Directive behoves the parties in peremptory terms to address certain
issues at the initial case management conference already,
including
how documentation is to be dealt with at the trial. They are
also obliged to consider matters which may facilitate
the just and
speedy disposal of the case (Par 6 (4)). By the time of the
final pre-trial conference, the parties should
have considered and
tried to reach agreement
inter
alia
on
the question of what exhibits are to be introduced into evidence
during the trial, must identity these documents and objections
in
respect thereof are required to be stated. Indeed, issues and
objections not specified in a final pre-trial order shall,
according
to the Directive, not be available to the parties at trial (Par
11). The Directive provides further that the
final pre-trial
order shall be amended “only to prevent manifest injustice”
(Par 13). The Directive also provides
sanctions for a
litigant’s failure to meaningfully engage in pre-trial efforts
or to meet the case management objectives
(Par 15).
[22]
(285
& 284/2014) [2014] ZAECBHC 6 (27 May 2014)
[23]
Defendants’
counsel had come ready and prepared with extensive heads of argument
on the issue of the admissibility of the
relevant documentation.
[24]
[2006] 4 All
SA 165
(W) at 172 – 173
[25]
In
casu
the third requirement did not have to be complied with according to
Mr. Heunis by reason of the agreement reached between the
parties at
the initial case management conference which envisaged that copies
could be used subject to the proviso that the parties
would have the
right to call for the original document or challenge the
authenticity thereof on reasonable written notice, which
was not
given. Evidently, he assumed wrong.
[26]
These
comprise the original Annexure “RVR1” – “RVR
4” referred to in paragraph 7 above.
[27]
The
documents at pages 80 – 84 are a more comprehensive version of
the registration report Mr. Van Rensburg referred to
it in a
covering letter as the “profile” of the school.
[28]
The
first plaintiff added a salary advice of the second plaintiff which
self-evidently persal and not EMIS would have generated.
[29]
This page
number must be a mistake as it does not relate to Mr. Van Rensburg’s
collection of documents.
[30]
In
my view the “certificate” put up by the witness does not
strictly say what the subsection provides. One is
not sure if
he means that he was the maker of the data messages in the ordinary
course of business, or that he was purporting
to certify copies from
the electronic database as correct in the sense that they were true
copies. Instead he seems to
be saying that the contents are
correct.
[31]
The
source documentation in respect of the second defendant, which would
have been useful to show the circumstances under which
she came to
be incorporated on the persal system, relative to Playways, was not
produced. The only background concerning
the payment of her
salary by persal comes from a financial report of the school dated
in 2001 which laments the fact that the
school took strain having
had to pay her salary out of its own coffers for seven months until
her appointment by the Department,
which only kicked in in August
2001.
[32]
Counsel
did not interrogate the import of this information much. The
question begs itself how the second plaintiff could
have continued
to be paid as a principal in association with Playways until 2010
whereas it was known by the Department, by at
least March 2007, that
she was not reporting at that school any longer. This appears
from the evidence of Mr. Ngxele.
The other puzzling question
is whether staff establishments were completed routinely after this
and if so based on what information,
and by whom. I understood
Mr. Van Rensburg’s evidence to mean that the surveys were
vital to justify staff establishments.
[33]
Despite
professing himself to be eminently qualified in the maintenance of
the Department’s EMIS it struck me as odd that
he not once
referred the court to the formal protocol or standards, published
under the title “Master List of Institutions
Providing
Education Services” per GN 573 in GG 35526 dated 17 July 2012
(which would have been applicable at the dates
of his testimony at
least). The purpose of the standard is to specify the relevant data
elements that must be managed and maintained
to describe each
educational institution in a standardised manner for the Department
of Basic Education. Technical specifications
for the data fields or
elements follows a script. Among core data is “the
official full name of the institution in
accordance with the
registration or establishment documents of the institution.”
The owner of the land and the buildings
are separate core detail
that is required to be denoted under separate fields. An
institutions subsector to which it belongs
must be captured in
accordance with the requirements of “Code List Table 6.17 of
SC009; Standard for Data Coding”
which the court was never
privy to. An ex education department field is also required to be
maintained with institutions registered
between 1996 and 2009 being
allocated a unique PED or Code 16. Whist Mr Van Rensburg certainly
did his best to apprise the court
of what he knew best, there was no
professional point of reference for some of the conclusions drawn by
him.
[34]
This
narrative doesn’t make sense. Nothing had happened
in-between to allow him to say with conviction in 2010 that
Playways
was a public-sector school.
[35]
See
footnote 32.
[36]
The
legislative outline, and its import, is dealt with below.
[37]
This
official deployment was ironically never captured on the persal
system. The persal snapshots which Mr Van Rensburg introduced
show
her to have been associated with Playways as its principal until
2010 at least, an untrue reflection of the reality.
[38]
I
accept the Department’s
bona
fides
regarding the lack of clarity. It also prevailed in the minds
of the trustees and members of Playways themselves, not that
they
equivocated regarding whether they could or could not sell Playways,
but rather how they were defined. In the minutes
of the
Special General Meeting held at the school on 29 November 2006 in
which the seminal decision was taken to sell the school,
included in
the trial bundle, they considered the options available to them in
troubleshooting the problems which had brought
them to the brink of
selling and noted that:
“
What
were the options available to rectify these problems?
a)
Report
the misadministration to the department of education and await their
action.
A parent who
works in the department of education confirmed that if anything did
happen it would take years!
It was also
understood that the department of education is not in support of
individual Pre-Primary School’s like Playways
and it was quite
a concern that they might hand it over to a school of their choice,
if they were aware of problems at the school
There is no
disciplinary action Playways Pre-Primary can take against the
offender as she is employed by the department of education
and not
Playways Pre-primary School.
b)
Thus
option B is to sell Playways Pre-Primary School according to
conditions set out in the constitution of the School.”
Elsewhere in the
minute they also refer to themselves as being a “Government
School”, albeit the only benefit that
this attracted was that
the principal’s salary was paid by the Department. Then comes
the clanger:
“
A
lot of discussion followed and it was agreed that while the school
is a government school, a principal employed by the department
is in
place who is responsible for the management of the school. The
principal is in control of the daily running of the
school and thus
can manipulate matters, especially where the governing body is a
group of unsuspecting individuals.
Alternatively if
the school were privately owned a business person would take a keen
personal interest in the efficient management
of the school.
This person would also have the necessary management skills and
teaching would be left in the hands of the
capable teachers.”
[39]
The
fact that Mrs. Hollis held an approved post at Playways by the date
of takeover, according to her version that teachers at
the school
were paid by the Cape Education Department in lieu of a general
subsidy, would account for how she came to be on the
Department’s
persal system post amalgamation.
[40]
According
to her, she knew of no such instance in her numerous years of
experience with the Department.
[41]
The
court’s interests would have been better served by
understanding the profiles of Mrs. Hollis and the second plaintiff
and having access to the Department’s paper trail in respect
of them from their respective appointments to exit, and on
what
basis each of them came to be paid by the relevant education
departments more specifically in relation to Playways.
[42]
Indeed,
the testimony of someone from the erstwhile Cape Education
Department would have been helpful.
[43]
Eastern
Cape Local Division, Bhisho, Case No. 57/2015, dated 19 February
2016.
[44]
It
is noteworthy in my view that this was contended on behalf of the
Education Department itself as being the predicament it faced,
being
hoist by its own petard as it were.
[45]
The
history records it as being in 1976.
[46]
This
would have been around 1992.
[47]
Both
these surveys would have been required to be completed by public and
independent schools alike.
[48]
These
forms on the face of it were obviously only required to be completed
by ECD sites in the public sector. Counsel appeared
to be
focused on information detailed in it, but did not interrogate why
the principal of the Little Beacons was filling it in
at all, given
her professed status of the school as being independent.
Perhaps this is where the confusion has come in
from the
Department’s point of view that Little Beacons is in the
public sector.
[49]
This
particular return was held up the plaintiffs to demonstrate her
supposed uncertainty regarding Playways’ sector status.
[50]
See
footnote 48 above.
[51]
This
oversight of private schools by the relevant education department,
ostensibly to maintain control and to ensure quality,
is a
consistent feature of the education legislation which has pertained
over the years.
[52]
This
ties in with Mrs. Hollis’ circular that,
circa
1959,
the school had subsisted entirely on school fees, but had “reached
a sufficiently high standard for application to
be made for a
provincial subsidy which was granted”. This assumes
registration as a premise before (or together with)
an application
for financial aid and compliance with the requisite requirements
that would make it eligible for such aid. In
other words, Playways
must have registered and it probably happened under this
dispensation which applied at the time.
[53]
This
section deals with the admission ages of children attending private
nursery schools and is irrelevant for present purposes.
[54]
This
change is significant from the defendants’ point of view as it
confirms Mrs. Hollis’ and Mrs. Leonard’s
evidence that
at a point in time and despite their schools being private, their
teachers were paid by the erstwhile Cape Education
Department.
The best argument the plaintiffs can raise against this as a
possibility is that the envisaged regulations,
which the then
Administrator was required to make, were never forthcoming.
The date is also a bit off, as far as Mrs. Hollis’
testimony
went, but perhaps the history recorded in the linen history book was
a tad off. This would not be a material
mistake in my view.
[55]
I
expect however that the fact of its existence must have been
recorded with the Cape Education Department because how else would
it have been able to apply for a provincial subsidy and later for
the payment of educators’ remuneration.
[56]
Following
my comment in footnote 55 above that the school must have registered
with the Cape Education Department to qualify for
a subsidy and
educator salaries in lieu of a general subsidy later on, its
standing as such a school in receipt of financial
aid would have
been preserved to it by these provisions.
[57]
The
commencement date of this act is 1 April 1990.
[58]
The
mere fact that the education department was paying the salaries of
staff at Playways over the entire period since 1976 is
against the
probability that it was ever an unregistered or unlawful private
education institute.
[59]
The
evidence did not canvass whether the school might have made such an
application. Incidentally none of the plaintiffs’
witnesses
described what the import of this classification as a
“departmentally controlled pre-primary school”
entailed. Perhaps the only effect of it is as outlined in
sub-section (4).
[60]
Neither
of the defendants’ witnesses were drawn on the issue of how
the payment of subsidies (or educator’s salaries
in lieu
thereof) were renewed each year if this was the manner of
subsidization the school elected to go with. The consistent
theme in all the legislation appears to be though that application
for aid or subsidies or financial assistance was made annually
on or
before a prescribed date.
[61]
None
of these drastic implications were suggested to have taken effect in
the case of Playways. It could certainly not have
happened
under the radar considering what would have had to precede the
vesting in the State in terms of section 38. A written
agreement
would exist as well as proof of publication in the Government
Gazette.
[62]
It
appears that an ordinary playschool or crèche not offering
Grade R would not constitute a school within the meaning
of a school
in the Schools Act. Such a “school” or facility
would instead be governed by the terms of Chapter
6 of the
Children’s Act, 32 of 2005, well at least since the
commencement date of that act, which is 1 April 2010.
[63]
The
Schools Act brought a whole new and much more transparent, approach
to the provisioning of both the funding of public schools
as well as
the payment of subsidies to independent schools, no doubt to achieve
the desired equity and to redress the inequalities
of the past under
Apartheid
.
[64]
The
National Norms and Standards for school funding (1998 and 2006) do
not appear to contemplate the payment of salaries in lieu
of a cash
payment to a school where they are so eligible. To the
contrary, subsidies are paid at certain intervals once
a term.
[65]
Independent
ECD centres were not eligible for funding under the 1998 Norms and
Standards. There appears to have been a shift change
under the
current Norms and Standards however which is dealt with in Chapter
9. Only “targeted” independent
schools will
however come in for the reckoning. Paragraph 253 provides that
“(i)n accordance with the proposals of
Education White Paper
5, the state will fund Grade R in non-public institutions where
there is a need for the piloting of new
approaches or there is a
need to reduce the distance travelled by poor Grade R learners
between home and the institution.”
[66]
These
would have been what were commonly known as “Model C”
schools.
[67]
If
a situation under section 55 pertained, one would have expected the
plaintiffs to have relied instead on the prohibition referred
to in
sub-section (9) as a basis to impugn the sale, at least in respect
of the immovable property.
[68]
See
section 2 of the Schools Act as well as its object and preamble.
The Act uses the terms “
school
”
to refer to both categories, versus “
public
school
”
to single out those aspects of its oversight and responsibility
which pertain strictly to the latter category.
[69]
See
section 5.
[70]
Section 5A.
[71]
Section 6.
[72]
Section 6B.
[73]
Section 7
[74]
Section 8
[75]
Section 9
[76]
Section 11
[77]
Section 58B
[78]
Section 58C
[79]
Section 60.
[80]
Constitution
of the Republic of South Africa, 1996.
[81]
See
Chapter 5 of the Schools Act which also endorses these conditions.
[82]
These
were published in Government Gazette 19347 dated 12 October 1998 per
Notice No. 2362 of 1998. They were later replaced
by
Government Notice 869 (GG 29179) of 31 August 2006, as corrected by
GN 1282 (GG 29473 of 14 December 2006). A difference between
the
former and the later that is worth mentioning is that public funding
for Grade R in independent schools is back in the offing
but only
for select schools. The objective is to target poorer schools though
where the need to advance equity and redress in
the provisioning of
services is profoundly required.
[83]
The
commencement date of the NEPA is 24 April 1996.
[84]
Paragraph
16 of the Norms and Standards for School funding.
[85]
Playways
would not have met those targets or been eligible for subsidization
because, for one, it was a standalone ECD centre
that chose not to
align itself with a primary school.
[86]
Paragraph
30 refers.
[87]
Paragraph
71 refers.
[88]
This
is an acronym for Medium Term Expenditure Framework.
[89]
Paragraph
72 refers.
[90]
These
requirements were not strictly relevant for present purposes because
Playways was self-evidently not a school that after
2000 qualified
for subsidies at all as an independent standalone ECD centre.
[91]
GN
1043 (GG 22756) of 17 October 2001, amended by GN1369 (GG 22938) of
13 December 2001
[92]
In
response to a request for trial particulars the plaintiffs clarified
that the school had been public from its inception.
[93]
Section
29 (2A) of the Education Affairs Act.
[94]
To
my mind such a situation arises where the maker of the original data
message is himself unable to say that he made the message
in the
ordinary course of business, but someone else can produce a copy of
it and is in the unique position of being an officer
in the service
of the maker who can by reason thereof vouch for the fact that it is
correct in the sense that it is a true copy.
[95]
He
was quite clear that persal had its own system and that he could
only download text files from persal with the necessary
authorisation with a view to importing it into EMIS’ records.
[96]
Although
it appears to be one contentious fact the sources for each fact are
distinct. One emerges from evidence collected
in the needs
infrastructure survey and the other on the premise of persal’s
records that given the payment of the principal’s
remuneration
by the Department, and the provisioning of such an educator to the
school in the first place, this gives rise to
a presumption as it
were that it must therefore be a public-sector school otherwise
neither the provisioning or payment would
have happened.
[97]
See
the approach adopted in
Ndlovu
,
Supra
,
at 173d-f.
[98]
Thornhill
v S [1997] 4 All SA571 (C) at 557; Kellerman v Minister of the
Interior
1945 WLD 179
at 193.