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[2016] ZANCHC 28
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Federation of Governing Bodies of South African Schools v Head of Department: Department of Education, Northern Cape Province and Others (887/2016) [2016] ZANCHC 28 (8 July 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
Reportable:
YES
Circulate
to Judges:
YES
Circulate
to Magistrates:
NO
Circulate
to Regional Magistrates:
NO
CASE NO:
887/2016
DATE HEARD:
14/06/2016
DATE DELIVERED:
08/07/2016
In
the matter between:
FEDERATION OF GOVERNING
BODIES OF
SOUTH
AFRICAN
SCHOOLS
Appellant
and
THE HEAD OF DEPARTMENT:
DEPARTMENT OF
EDUCATION,
NORTHERN CAPE
PROVINCE
1
st
Respondent
THE
MEMBER OF THE EXECUTIVE COUNCIL FOR
EDUCATION,
NORTHERN CAPE
PROVINCE
2
nd
Respondent
Coram:
Williams
J
et
Olivier
J
JUDGMENT
Olivier
J
[1.]
The
applicant is the Federation of Governing Bodies of South African
Schools. It represents 108 school governing bodies (“
SGB’s
)
as contemplated in section 16(1) of the
South
African Schools Act
[1]
(“
SASA
”).
[2.]
The
first respondent is the Head of the Northern Cape education
department and the second respondent the Member of the Executive
Council responsible for education in the Northern Cape Province, both
as envisaged in section 1 of SASA.
[3.]
On
16 March 2016 the first respondent issued circular number 26/2017
[2]
,
dated 14 March 2016 and titled “
MANAGEMENT
OF LEARNER ADMISSIONS TO PUBLIC SCHOOLS IN THE NORTHERN CAPE FOR
2017
”.
It was addressed to,
inter
alia
,
school principals and SGB’s.
[4.]
Three
of the four paragraphs under the heading “
INTRODUCTION
”
deals with enrolment and admission of learners, the first referring
to the importance of early enrolment, the second to
problems
experienced in the past with the admission of learners to schools and
the third stating that the Department had the duty
to “
admit
all learners who apply for admissions in schools without
discriminating on any ground
”.
The fourth paragraph under the heading deals with the role of school
principals in the prevention of illegal practices
at schools.
[5.]
In
paragraph 2 of the circular its purpose is set out as being aimed at,
inter
alia
,
the “
procedure
for enrolment of learners for the 2017 school year
”,
support in the development of admission policies and the facilitation
of the manner and administration of the admission
of learners to
schools.
[6.]
Paragraph
5 of the circular is titled “
ADMISSION
TO PUBLIC SCHOOLS
”.
The applicant’s challenge is aimed at statements under this
heading (and also in paragraph 1.3 of the circular)
that the first
respondent has the responsibility and duty to admit learners
[3]
,
that SASA places “
admission
decisions squarely in the hands of the Head of Department of
Education in the Province and not the School Governing Body
”
[4]
and that “
the
implementation of the admission policy at the school level is the
responsibility of the principal (and not the governing body),
acting
under the authority of the head of department
”
[5]
.
[7.]
In
paragraph 8 of the circular, under the heading “
AGE
REQUIREMENTS FOR ADMISSION TO A PUBLIC SCHOOL
”,
the first respondent makes reference to minimum age requirements and
then proceeds to lay down compulsory age requirements
for the
admission of certain learners.
[8.]
In
paragraph 9.6 the first respondent prescribes the type of admissions
register to be kept by schools.
[9.]
Paragraph
11 of the circular deals with the issue of the re-registration of
learners and prescribes the form of application to be
used for
re-registration, thereby implying the necessity of such applications
for learners to remain enrolled in schools attended
by them.
[10.]
Paragraph
6 is titled “
UNLAWFUL
PRACTICES
”.
It states that school principals are to be responsible for the
prevention of certain illegal practices listed in
sub-paragraphs 6.1
to 6.7, “
or
any other illegal practices
”,
and that principals who make use of any of the listed practices “
will
be charged with misconduct
”.
Paragraph 1.4 of the circular also states that principals are
responsible for “
ensuring
that illegal practices do not take place at a school
”.
[11.]
It
is not in dispute that the applicant represents those SGB’s in
the Northern Cape that are members of it and that on this
basis it
has standing in respect of issues concerning the interests of those
SGB’s.
[12.]
The
respondents have taken issue with the applicant’s standing in
respect of issues concerning the interests of school principals.
In my view there is no merit in this objection. Principals are
members of SGB’s
[6]
.
One of the responsibilities of SGB’s is in fact to support
principals “
in
the performance of their professional functions
”
[7]
.
[13.]
On
12 April 2016 the applicant addressed a letter to the first
respondent. Attached to it was a legal opinion obtained by
the
applicant to the effect that the abovementioned contents of the
circular were reviewable on the grounds that the principle
of
audi
alteram partem
was not observed in issuing the circular and that the circular
included provisions that purport to take away powers of schools
and
SGB’s and to vest those powers in the first respondent; which
provisions the first respondent had according to the applicant
not
been entitled to prescribe and/or were inconsistent with existing
legislation. The first respondent was invited to withdraw
the
circular and was requested to respond to the letter within 7 days.
It is common cause that the first respondent never
responded to the
letter.
[14.]
The
applicant then launched this application on a semi-urgent basis, in
that the notice of motion contains shorter time limits than
normally
provided for the filing of a notice of opposition and answering
affidavits.
[15.]
The
relief sought, apart from condonation for the non-compliance with the
provisions pertaining to service and time periods, includes
rescission of the circular on the basis that the principle of
audi
alteram partem
was not observed, alternatively an order declaring the particular
paragraphs of the circular invalid or setting them aside, further
alternatively an interdict preventing the implementation of the
particular paragraphs pending the review thereof.
[16.]
The
application was set down for hearing on 13 May 2016, but was on that
day postponed to 26 May 2016 for hearing, costs to be costs
in the
application. On 26 May the application was, however, again
postponed to 14 June 2016, costs standing over for later
determination. The reason for the latter postponement was that
arrangements had not been made for the application to be heard by
two
Judges, as is the practice in this Division in applications for
review. No reason has been advanced why the applicant
should
not bear the wasted costs occasioned by that postponement. It
had been the applicant’s duty to ensure that the
application
could be heard on that day.
[17.]
On
14 June the application was heard and judgment was reserved.
The applicant was represented by Adv J Du Toit SC, and with
him Adv M
J Merabe, who eventually presented the argument for the applicant,
while the respondent was represented by Adv Tshavhungwa.
[18.]
Mr
Tshavhungwa argued that the Uniform Rules provide only for the notion
of urgency, and not for the semi-urgency relied upon and
employed by
the applicant. There is absolutely no merit in this
submission. Applications brought with shortened periods
for the
filing of notices of opposition and answering affidavits are common.
It is trite that different degrees of urgency
would require different
approaches
[8]
.
[19.]
If
the applicant’s interpretation of the particular provisions of
the circular were to be correct, the application would indeed
have
been sufficiently urgent to have justified the periods provided for
in the notice of motion. The date from which the
provisions
were supposed to be implemented was imminent.
[20.]
The
applicant’s explanation for the time that expired between the
issue of the circular and the filing of the application
is in my view
sufficient to show that the applicant has not caused its own
urgency. There was no undue delay in first obtaining
advice
internally and then from counsel. The applicant can also
certainly not be blamed for then first seeking the cooperation
of the
first respondent before approaching the court
[9]
.
The application was lodged within a week of the expiry of the period
within which the first respondent had been requested
to respond and
had failed to do so.
[21.]
It
is in any event important to keep in mind that ultimately the issues
concerned in this matter would impact on children, whose
best
interests should be decisive
[10]
.
[22.]
We
were not informed of any prejudice that the respondents have suffered
because of the way in which the application was brought.
The
answering affidavit was filed within the shortened period provided in
the notice of motion and it was not argued that the respondents
had
been prejudiced by that in any way.
[23.]
An
undertaking to afford an opportunity to be heard would give rise to a
legitimate expectation of such an opportunity
[11]
,
and in such circumstances the
audi
alteram partem
principle would be applicable to administrative actions
[12]
.
[24.]
The
contents of the circular have the potential of affecting the legal
rights of SGB’s and, at least as far as the contents
pertain to
the manner in which applications for admission are to be made for the
2017 school year, the issue of the circular constituted
the
performance by the first respondent of his duty to prescribe such
procedure. The issue of the circular therefore constituted
administrative action that is reviewable in terms of the
Promotion
of Administrative Justice Act
,
3 of 2000
[13]
.
[25.]
It
is, however, clear that the contents of the circular cover far more
than the manner in which applications for admissions are
to be made
and in respect of which the first respondent would indeed be supposed
to determine the procedure
[14]
,
the argument for the first respondent being that he was entitled and
competent to do so. Much of it is couched in peremptory
language, purporting to create obligations and restrictions, and in
the case of principals who do not comply, even a sanction
[15]
.
In paragraphs 8.2.3 and 8.3.3 of the circular, for example, it is
provided that schools “
must
only
”
admit learners of prescribed age groups to respectively Grades R and
1. This has nothing to do with the manner in
which parents are
to apply for the admission of learners and would limit the right of
schools to admit learners of the minimum
age groups prescribed in
section 5(4)(a) of SASA.
[26.]
Paragraph
9.6.1 of the circular states that principals “
must
ensure
”
that admissions are recorded on SA-SAMS, apparently an electronic
system different from the one used by schools at the moment.
[27.]
The
procedure prescribed for re-registration of learners (who are already
attending a school to which they had previously been admitted;
as
opposed to the initial admission of learners to a school) would also
create new obligations for schools.
[28.]
It
is the applicant’s case that at a meeting of the Provincial
Consultative Forum (“
the
PCF
”)
on 1 March 2016 an undertaking had indeed been given to afford it the
opportunity to comment on the proposed circular.
[29.]
According
to the founding document of the PCF it consists of the second
respondent (represented by one or more persons) and any
“
provincial
organisation representing governing bodies of public schools
”
(represented by one or more persons).
[30.]
According
to the founding document the PCF was established “
in
pursuance of the notion of partnership to education between the State
and stakeholders in public schools, as represented by governing
bodies
”
and to “
enhance
communication
”
between the second respondent and organisations like the applicant,
and parties to agreements reached in the forum would
be “
enjoined…
to take all steps necessary to implement any such agreement
expeditiously…
”.
[31.]
In
her supporting affidavit Mrs Strydom, who had attended the meeting as
a representative of the applicant, confirms that the “
issue
concerning admissions to schools
”
had been raised at the meeting and that the chairperson, Ms Modise,
had given “
the
assurance that a draft circular concerning the manner in which
admissions would be administered in 2017 would be submitted to
(the
applicant)
for
its input prior to it being officially published
”.
[32.]
I
must say that it is difficult to discern from the unnecessarily
aggressive and insulting contents of the answering affidavit by
Mr O
G Mogatle what exactly the respondents’ case is as regards what
happened at the meeting.
[33.]
Although
Mr Mogatle at first accused the applicant of relying on “
some
undertaking made by the
(second
respondent)
and/or
her representative at some unidentified meeting
”,
apparently because Mr Mogatle was unaware of the copy of the minutes
of the meeting attached to the affidavit of Mrs Strydom,
it soon
enough appeared that he knew full well what meeting the applicant was
referring to.
[34.]
Mr
Mogatle then went on to accuse Mrs Strydom of having “
misrepresented
what was agreed on at the said meeting
”,
but he failed to point out in what way. It is in any event
difficult to understand the allegation, because Mrs Strydom
from the
outset disclosed a copy of the minutes of the meeting. She
specifically made reference to Item B.9 thereof.
What she could
in the circumstances have attempted to misrepresent is not clear.
[35.]
Mr
Mogatle did not claim that any part of the contents of the minutes
were wrong. He also did not claim to have himself attended
the
meeting, and could therefore not have had personal knowledge of what
had been said and agreed upon there.
[36.]
The
respondents chose not to obtain the comments of Ms Modise on this and
there can therefore not really be any meaningful challenge
by the
respondents to what Mrs Strydom has said about the meeting and about
the contents of the minutes.
[37.]
Mr
Mogatle furthermore made the point that the applicant, according to
the minutes, had undertaken to “
give
inputs
”
on,
inter
alia
,
“
the
Admission Circular in relation to responsibilities determining
Admission Policies…”
.
He stated that the applicant had failed to do so or to inform the
court of what input it would have given had the circular
not been
issued, and he also submitted that the circular in any event does not
deal with any of the issues in respect of which
the applicant had
according to him been supposed to give its input.
[38.]
These
submissions were clearly based on the remarks in the columns titled
“
DISCUSSION
TOPIC
”
and “
RESPONSIBILITY/TIME
FRAME
”
of Item B.9 of the minutes, but in my view those remarks should be
read with the rest of the remarks in respect of Item
B.9, and more
specifically also those in the column “
ACTION
POINTS
”.
[39.]
Item
B.9 appears as follows in the minutes:
ITEM NO.
DISCUSSION TOPIC
ACTION POINTS
RESPONSIBILITY /
TIMEFRAME
B.7
…
…
…
B.8
…
…
…
B.9
Admission
of learners:
FEDSAS
to give inputs on the Admission circular in relation to
responsibilities determining Admission Policies. The
aspect
of closure and merging of schools to also be included in the
Admission circular.
The departmental
admission policy to be reviewed and consultation to take place
before it is circulated.
FEDSAS
[40.]
It
is very clear that the word “
policy
”
in the column “
ACTION
POINTS
”
was a mistake and that the intention had been to refer to the
“
departmental
admission circular
”,
and more specifically the intended circular for the 2017 school year.
[41.]
The
only
admission
“
policy
”
provided for by SASA is the admission policy to be formulated by
SGB’s
[16]
. Mr
Tshavhungwa never attempted to argue otherwise, and the respondents
have not made any attempt to explain or to justify
the use of the
phrase “
departmental
admission policy
”
in any other way than as in fact referring to a draft of this
circular.
[42.]
It
is only a circular like the one concerned here which would be
“
circulated
”
as envisaged in the column “
ACTION
POINTS
”
of Item B.9.
[43.]
It
is only when the word “
policy
”
in the column titled “
ACTION
POINTS
”
is substituted with the word “
circular
”
that the remarks in the column titled “
DISCUSSION
TOPIC
”
would make sense. The reference to a “
departmental
admission circular
”
would then clearly have been a reference to the “
Admission
Circular
”
referred to in the column “
DISCUSSION
TOPIC
”,
and in respect of which the applicant would have given its input.
[44.]
In
my view it is clear that the agreement had been that a draft circular
on admissions would be circulated to all concerned, in
respect of
which the applicant would then have given its input before the
circular was finally issued and circulated (after review
of and
consultation about its contents).
[45.]
This
is clearly how Mrs Strydom understood the agreement and the contents
of the minutes. Ms Modise has not deposed
to an affidavit
to the contrary and, as already said, Mr Tshavhungwa made no attempt
to attach any other meaning to the remarks
in Item B.9, read as a
whole.
[46.]
There
is therefore no merit in the suggestion that the circular was issued
when the applicant failed to give its input. It
is in any event
important to keep in mind that the circular was issued only
approximately 2 weeks after the meeting, and it was
not suggested by
what date the applicant had been supposed to give its input
[17]
.
[47.]
It
is common cause that the circular concerned in this matter had never
been preceded by a draft version, or by any consultation
at all.
[48.]
Mr
Mogatle stated that there is “
no
single provision in the entire scheme of
(SASA)
that
stipulates that the
(first
respondent)
should
first consult any person
”
before issuing a circular like this.
[49.]
I
am not convinced that this is necessarily correct, given the fact
that the scheme of SASA envisages a partnership between the
Minister
for Education, the Head of a Provincial Department of Education and
Governing Bodies
[18]
, and it
is difficult to conceive of a partnership functioning properly
without any consultation and communication amongst its partners
[19]
.
[50.]
It
is, however, not necessary to decide this. It is clear that,
even if the first respondent would not otherwise have been
required
to grant the applicant an opportunity to be heard on the contents of
the proposed circular before its issue, the undertaking
to do so had
led to such a legitimate expectation on the part of the applicant,
and a corresponding duty on the first respondent
[20]
.
[51.]
It
is not clear what point the respondents and Mr Tshavhungwa attempted
to make by emphasising that Ms Modise had represented the
second
respondent at the meeting, but it was fortunately never pursued to
the point of suggesting that the first respondent would
not have been
bound by such an undertaking, or that he would not in the
circumstances have had to satisfy the expectation raised
by such an
undertaking.
[52.]
The
first respondent, as Head of a Department for which the second
respondent is ultimately responsible, is clearly a subordinate
of the
second respondent and it would have been ludicrous to suggest that
the first respondent would not be bound to execute an
undertaking
which the second respondent had, through her representative/s, given
at a meeting of a forum intended to enhance cooperation
between “
the
State
”
[21]
and governing bodies of schools.
[53.]
In
Item A.4 of the minutes of the meeting it was in fact recorded that
the PCF would be a “
structure
where communication
(would)
take
place between schools in the form of SGB associations
and
the Department
”
[22]
(of which the first respondent is the Head).
[54.]
There
is therefore also no merit at all in Mr Tshavhungwa’s argument
that there is no indication in the founding document
of the PCF of
the first respondent or his department being a member of that forum.
It is inconceivable, to the point of absurdity,
that the second
respondent could consult and negotiate on matters like “
education
issues affecting the interests of public schools
”
and the “
governance
of public schools
”
without any involvement of the first respondent in such process.
[55.]
An
undertaking by or on behalf of the first respondent to grant the
applicant the opportunity to comment on a draft circular would
not
have amounted to an abdication by the first respondent of any right
or discretion of his
[23]
.
[56.]
I
am therefore of the view that the applicant, and any other like
organisations that may have been represented at the meeting, should
in the circumstances have been granted the opportunity to be heard on
the contents of the proposed circular. Some of the
challenged
contents of the circular are so entwined and interwoven with the rest
of its contents that the only practical approach
would be to set
aside the circular as a whole.
[57.]
As
regards the costs of the application there is no reason why it should
not follow the result. The respondents were afforded
the
opportunity of avoiding litigation, but instead chose to ignore the
applicant’s letter and to answer to the applicant’s
founding affidavit in an abrasive tone.
[58.]
In
the premises the following orders are made:
1.
THE
APPLICANT IS ORDERED TO PAY THE WASTED COSTS OCCASIONED BY THE
POSTPONEMENT OF 26 MAY 2016.
2.
CIRCULAR
NUMBER 26/2017, DATED 14 MARCH 2016 AND SIGNED BY THE FIRST
RESPONDENT ON 16 MARCH 2016, IS SET ASIDE.
3.
THE
RESPONDENTS ARE ORDERED TO PAY THE COSTS OF THE APPLICATION JOINTLY
AND SEVERALLY, THE ONE TO PAY THE OTHER TO BE ABSOLVED PRO
TANTO.
______________________
CJ
OLIVIER
JUDGE
NORTHERN
CAPE DIVISION
I
agree.
______________________
CC
WILLIAMS
JUDGE
NORTHERN
CAPE DIVISION
For the
Appellant: Adv J Du Toit SC, with him Adv M J
Merabe
Instructed
by:
Elliott Maris Wilmans & Hay,
Kimberley
For the Respondent:
Adv T C Tshavhungwa
Instructed
by:
Mjila & Partners, Kimberley
[1]
84 of 1996
[2]
It is not clear why the number refers to 2017, and not 2016.
It may be because it pertains to the 2017 school year.
[3]
Paragraph 5.2.1
[4]
Paragraph 5.2.4
[5]
Paragraph 5.2.5
[6]
See section 23(1)(b) of SASA
[7]
See section 20(1)(e) of SASA, and also
Stutterheim High School v The Member of
The Executive Council, Department of Education, Eastern Cape
Province
2007 JDR 0586 (E) para [4]
[8]
Compare
Luna Meubel
Vervaardigers (Edms) Bpk v Makin and Another (t/a Makin’s
Furniture Manufacturers)
1977 (4) SA
135
(W);
Victoria Park Rate Payers’
Association v Greyvenouw CC and Others
2004 JDR 0498 (SE), para [28];
IL &
B Marcow Caterers (Pty) Ltd v Greatermans SA Ltd and Another; Aroma
Inn (Pty) Ltd v Hypermarkets (Pty) Ltd and Another
1981 (4) SA 108 (C)
[9]
Compare
Head of Department, Department of Education, Free State
Province v Welkom High School and Others
2014 (2) SA 228
(CC)
paras [132], [135] and [141]
[10]
See section 28 (2) of the
Constitution
of the Republic of South Africa
, 108
of 1996
[11]
Compare
Claude Neon
Ltd v Germiston City Council and Another
1995 (3) SA 710
(W) at 719;
Park-Ross v
Director-Office for Serious Economic Offences
1998 (1) SA 108
(C) paras [29] and [30]
[12]
Compare
Administrator,
Transvaal and Others v Traub and Others
[1989] ZASCA 90
;
1989 (4) SA 731(A)
;
President of The
Republic of South Africa and Others v South African Rugby Football
Union and Others
2000 (1) SA 1
(CC)
para [159]
[13]
Compare
Grey’s
Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works and
Others
[2005] ZASCA 43
;
2005 (6) SA 313
(SCA), paras
[23] and [24]
[14]
See section 5(7) of SASA.
[15]
Compare
Minister of
Education v Harris
2001 (4) 1297 (CC)
paras [12] and [13]
[16]
Section 5(5) of SASA.
[17]
Even if it is, in other words, for the moment
assumed that there had never been an agreement that the draft
circular would be
made available by the Department.
[18]
Compare
Head of
Department, Mpumalanga Department of Education and Another v
Hoërskool Ermelo and Another
2010
(2) SA 415
(CC) para [56]
[19]
Compare
Stanmaker
Mining (Pvt) Ltd v Metallon Corporation Ltd
2007 (JOL) 19107 (ZH) at p.30;
Goldberg
v Trimble and Bennett
1905 TS 255
at
275
[20]
Administrator, Transvaal and Others v Traub
and Others, supra
, at 756 I
[21]
Of which the first respondent would obviously in
any event in his official capacity be part, regardless of his
subordinate position
vis-à-vis
the second respondent.
[22]
My emphasis
[23]
Compare
Minister of Environmental
Affairs and Tourism and Another v Scenematic Fourteen (Pty) Ltd
[2005] ZASCA 11
;
2005
(6) SA 182
(SCA) para [20]