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[2013] ZAECBHC 2
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South African Democratic Teachers Union (SADTU) and Others v MEC for the Department of Basic Education: Eastern Cape Province and Others (573/12) [2013] ZAECBHC 2; [2013] 2 All SA 474 (ECB) (18 February 2013)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION – BHISHO
Case
no: 573/12
Date
Heard: 7/12/12
Date
Delivered: 18/02/13
In
the matter between:
SOUTH
AFRICAN DEMOCRATIC TEACHERS’ UNION
1
st
APPLICANT
(SADTU)
FEDERATION
OF GOVERNING BODIES OF SOUTH
2
nd
APPLICANT
AFRICAN
SCHOOLS (FEDSAS)
SUID-AFRIKAANSE
ONDERWYSERSUNIE
3
rd
APPLICANT
(SAOU)
NATIONAL
PROFESSIONAL TEACHERS’
4
th
APPLICANT
ORGANISATION
OF SOUTH AFRICA (NAPTOSA)
AND
THE
MEMBER OF THE EXECUTIVE COUNCIL
1
st
RESPONDENT
DEPARTMENT
OF BASIC EDUCATION
EASTERN
CAPE PROVINCE
THE
HEAD OF DEPARTMENT
2
nd
RESPONDENT
DEPARTMENT
OF BASIC EDUCATION
EASTERN
CAPE PROVINCE
THE
MINISTER OF BASIC EDUCATION
3
rd
RESPONDENT
THE
DIRECTOR-GENERAL
4
th
RESPONDENT
DEPARTMENT
OF BASIC EDUCATION
THE
PREMIER
5
th
RESPONDENT
EASTERN
CAPE PROVINCE
THE
MEMBER OF THE EXECUTIVE COUNCIL
6
th
RESPONDENT
DEPARTMENT
OF TREASURY
EASTERN
CAPE PROVINCE
CENTRE
FOR CHILD LAW
INTERVENING
PARTY
REASONS
FOR ORDER
SMITH
J:
Introduction
[1]
On 7 December 2012 I granted an order dismissing the application and
ordered the Applicants to pay the Respondents’
costs. I
indicated at the time that the reasons for my decision would follow.
I adopted this approach because of the urgency of
the matter and at
the behest of counsel. Here follow my reasons for the order.
[2]
The Applicants seek an order reviewing and setting aside the educator
post establishment for the 2013 school
year declared by the Member of
the Executive Council for Education, Eastern Cape Province (“the
MEC”) in terms of section
5(1)(b) of the Employment of
Educators Act, 76 of 1998 (“the Act”), as well as the
2013 educator post establishment
for public schools declared by the
head of the Eastern Cape Education Department (“the HOD”)
in term of section 5(2)
of the Act.
[3]
The Applicants initially relied on the following review grounds:
(a)
the MEC purported to reduce the 2013 post establishments for public
schools on the
basis of an “illusory” budget reduction of
R1.6 billion, which did in fact not exist;
(b)
the MEC failed to adequately consult with trade unions and school
governing bodies
in determining the 2013 post establishment;
(c)
the MEC failed to comply with the Memorandum of Agreement entered
into by the
Respondents and other trade unions on 8 February 2012;
(d)
the HOD had failed to convey the post establishment to public schools
in the province
prior to 30 September 2012 as required in terms of
the law; and
(e)
to the extent that the post establishments are at variance with the
previous establishments,
they are irrational, in that they are not
linked to the relevant number of learners at the relevant schools.
[4]
At the hearing of the matter, however, counsel for the Applicants, Mr
Smuts SC,
indicated that they would only persist with the
review grounds mentioned in paragraphs (d) and (e) above. His
submissions therefore
related to those review grounds only. In my
view the abandoned review grounds were clearly without any merit and
the Respondents
were well advised not to proceed with them.
The
Parties
[5]
The First, Third and Fourth Applicants are teachers’
organisations, and the Second Applicant represents
the governing
bodies of schools recognised in terms of the South African Schools
Act, 84 of 1996 (“the Schools Act”).
[6]
The Respondents are: the Member of Executive Council for the
Department of Basic Education Eastern Cape; the Head
of the
Department of Basic Education; the Minister of Basic Education; the
Director- General of Basic Education; the Premier of
the Province of
the Eastern Cape; and the Member of the Executive Council for the
Department of Treasury of the Eastern Cape. The
Centre for Child Law
(“the Intervening Party”), a Law Clinic established by
the University of Pretoria, was granted
leave to intervene in the
proceedings. The main objectives of the Intervening Party are the
establishment and promotion of Child
Law and to uphold the rights of
children in South Africa.
Statutory
framework
[7]
Section 5(1)(b) of the Act provides that the educator establishment
of a provincial department
of education shall consist of posts
created by the MEC. In terms of section 5(2) of the Act the educator
establishment of,
inter alia,
any public school shall “
subject
to the norms prescribed for the provisioning of posts”
,
consist of the posts allocated to a school, by the HOD from the
educator establishment of the department.
[8]
The prescribed norms are contained in the regulations published in
Government Gazette R1676 (dated 18 December 1998). In terms
of these
Regulations the MEC is enjoined to consult with unions in the
province, who are members of the Education Labour Relations
Council,
as well as organisations representing governing bodies who are active
in the province. The MEC must thereafter determine
a post
establishment having regard to,
inter alia,
the following
criteria:
(a)
the budget of the department;
(b)
the effect that the post establishment will have upon the employment
security of educators;
(c)
the need to redress the implementation and promotion of curriculum
policy in
keeping with the basic values and principles set out in
section 195 of the Constitution;
(d)
the fact that the division between expenditure on personnel and
non-personnel costs
in the budget should be educationally and
financially justifiable in accordance with national policy that may
exist;
(e)
the fact that the division between expenditure on educator and
non-educator personnel
costs in the budget should be educationally,
administratively and financially justifiable and in accordance with
national policy
that may exist in this regard.
[9]
Regulation 2 requires the HOD to determine post establishments for
individual schools by applying the post distribution
model set out in
Annexure 1 thereto, by taking into account the post establishment
declared by the MEC, and the need to redress
the implementation and
promotion of curriculum policy. Clause 8 of the distribution model
provides that where a school’s
post establishment is likely to
change in any school year, the adjusted post establishment should be
communicated to the relevant
school “
as far as possible”
on or before 30 September of the preceding school year.
[10]
Section 58C(6) of the Schools Act provides that the HOD must
determine the minimum and maximum capacity of a public
school in
accordance with the norms and standards contemplated in section 5A:
(a)“
in relation to the availability of classrooms and
educators as well as the curriculum programmes of such schools”,
and “(b)
in respect of each public school in the
province, communicate such determination to the chairperson of the
governing body and the
principal, in writing,
by not later
than 30 September of each year
”
(my
underlining).
[11]
Section 29(1) of the Constitution guarantees the right to basic and
further education. The Government’s statutory obligations
to
determine the educator needs of schools must therefore be exercised
with due regard to this right and the provisions of section
7(2)
which enjoins the state to “
respect, protect, promote and
fulfil the rights in the Bill of Rights”.
Has
Clause 8 of the distribution model been repealed?
[12]
It was contended on behalf of the Applicants that the provisions of
the Regulations, in so far as they prescribe a flexible
date for the
communication of adjusted post establishments to public schools, have
been “overtaken” and impliedly repealed
by section 58C of
the Schools Act, which was introduced in 2007. The latter section now
prescribes the 30
th
of September as an inflexible and
mandatory deadline – or so the argument went.
[13]
Mr
Smuts
submitted that it is significant that the 30
th
of September is not set as a target date in some policy document or
regulation. It is rather stipulated by statute and “
the
system breaks down”
if the MEC does not complete the
prescribed function by the stipulated date. He argued that
governing bodies have various
statutory responsibilities, including
preparation of the budget and appointment of additional teachers,
which they can only perform
once they know the educator establishment
of the school. The statutory structure of the system for the
organisation, governing
and funding of schools can therefore only be
achieved if the MEC complies with the statutory function by the 30
th
of September of each year.
[14]
Mr
Smuts
has
put heavy reliance for his submissions in this regard on the
unreported judgment of Eksteen J in respect of an urgent
interim
interdict in
Federation
of Governing Bodies of Southern African School and 3 others v MEC for
Department of Basic Education and another.
[1]
In that matter Eksteen J had found that
[2]
:
“
It is readily
apparent that the structure of the system provided by the legislature
for the organisation, governance and funding
of schools in the
Schools Act cannot be achieved unless the head of the department
complies with his obligations in terms of s.
58C (6) by advising each
school of a maximum and minimum capacity in relation to the
availability of,
inter alia,
educators, by no later than 30
September 2007. It is significant that the date of 30 September is
not set as a target date in some
policy document or regulation,
rather it is stipulated by statute as the latest date by which the
HOD must complete that function.
If he does not do so the system
breaks down.”
[15]
And in regard to the provisions of clause 8 of the
distribution model he held as follows
[3]
:
“
These regulations
were promulgated in 1998. Section 58 C of the Schools Act was
introduced in the Schools Act by section 11 of Act
31 of 2007. I am
accordingly of the view that the target date set out in the post
distribution model annexed to the regulations
promulgated in 1998 as
amended in November 2002 has been overtaken by provisions of the
Schools Act which prescribe 30 September
of the preceding year as an
inflexible deadline. This, as shown above, is essential if the system
for the organisation, governance
and funding of schools is to work.”
[16]
Mr
Gauntlett
SC,
appearing
on behalf of the Respondents, has in my view correctly submitted that
in our law, in construing a statute, the existing
law is not presumed
to have been altered unless the language used clearly evinces such an
intention
.
(Johannesburg Municipality v Cohen’s Trustees
[4]
)
[17]
In
Kent
NO v South African Railways and Harbours
[5]
,
Watermeyer CJ said the folowing:
“…
it is
necessary to bear in mind a well-known principle of statutory
construction,
viz.,
that Statutes must be read together and
the later one must not be so construed so as to repeal the provisions
of an earlier one,
or to take away rights conferred by an earlier one
unless the later statute expressly alters the provisions of the
earlier one
in that respect or such alteration is a necessary
inference from the terms of the later Statute. The inference must be
a necessary
one and not merely a possible one.”
[18]
It is only where the provisions of a later statute are so
inconsistent with, or repugnant to, those of the earlier
statute that
the two cannot stand together, that the earlier statute stands
impliedly repealed. (Kent
supra)
[6]
[19]
This principle has again recently been applied by the Supreme Court
of Appeal in
Nedbank
Ltd v National Credit Regulator,
[7]
where
Malan JA said the following:
“
The rule of
interpretation is that a statutory provision should not be
interpreted so at to alter the common law more that is necessary
unless the intention to do is clearly reflected in the enactment,
whether expressly or by necessary implication.”
[20]
In my view it is significant that section 58C of the Schools
Act is concerned with compliance with norms and standards
promulgated
under section 5A, while clause 8 of the distribution model sets a
flexible date (being “
as far as possible by the 30
September
”) for the communication of adjusted post
establishments to schools. Section 58C (6)(a) requires the HOD
to determine
the maximum and minimum capacity of a public school “
in
relation to the availability of classrooms and educators”,
as well as the curriculum of each school. In terms of subsection
6(b) that determination must be communicated to the chairperson
of
the governing body and the principal “
in writing by not
later than 30 September of each year”.
This must be done in
accordance with the norms and standards contemplated in section 5A.
It is common cause that these have not
yet been promulgated.
[21]
Mr
Ngcukaitobi,
who appeared for the Intervening Party, has in
my view correctly submitted that the process contemplated by section
58C of the
Schools Act is distinct from the determination of the post
establishment made in terms of section 5 of the Act. The former
process
entails the application of national norms and standards while
the latter regulates the communication of post establishments to
schools. He argued that until such time as these norms and standards
had been promulgated, it is in any event not possible for the
HOD to
comply with the section and the only applicable time limit is that
which is set in terms of clause 8 of the post distribution
model.
[22]
There are in my view several insurmountable difficulties with the
argument that the provisions of clause 8 of the
distribution model
had been impliedly repealed by section 58C of the Schools Act.
[23]
First, as Mr
Gauntlett
has argued, such an approach presumes
that the legislature intended to interfere with the Minister’s
and MEC’s statutory
powers to formulate policy in terms of
norms and standards, and the determination of the model which governs
the distribution for
allocation of educator posts. Second, if it had
indeed been the purpose of the statutory scheme to divest the MEC and
HOD of their
powers at midnight, on 30 September, the Regulations
would not have stipulated that the post establishment should be
distributed
“
as far as possible by 30 September”.
Third, if indeed the intention of the legislature was to divest
the MEC and HOD of their powers by 30 September in a different
statute
it would have said so explicitly. Fourth, the deadline of 30
September, which is stipulated in the Schools Act, is not only in a
different statute but also refers to a different statutory
obligation,
viz
the communication of a determination relating
to the minimum and maximum capacities of a public school. It is in my
view improbable
that the legislature would have intended a repeal of
a different statute through such an oblique and circuitous route.
Are
the provisions of section 58C of the Schools Act peremptory?
[24]
The Applicants’ contention that the provisions of s. 58C
of the Schools Act must be interpreted to
require the declaration of
the educator post establishment, and communicate them to public
schools before 30 September of the preceding
year, rests on the
following rather fragile hypotheses:
(a)
section 58C was introduced into the Schools Act in 2007, while the
regulations were
promulgated in 1998;
(b)
section 58C enjoins the HOD to determine the minimum and maximum
capacities of public
schools, having regard,
inter alia,
to
the educator post establishment, before 30 September of each year;
(c)
the HOD can only comply with this statutory obligations if the
educator post
establishment is declared and communicated to the
schools before the 30
th
September;
(d)
school governing bodies can also only comply with their statutory
obligations if the
HOD communicates the post establishment to schools
by the aforesaid date; and
(e)
the statutory structure of the system for the organization,
governance and funding
of schools can therefore not be achieved
unless the HOD complies with his obligations in terms of section 58C
(6) of the Schools
Act by the stipulated date.
[25]
This argument is in my view premised on the erroneous assumption that
in our law all powers exercised outside the period
prescribed by the
empowering provision of a statute are invalid. There is however
a plethora of earlier and more recent authorities
in support of the
proposition that in our law non-compliance with prescribed time
limits does not automatically lead to invalidity.
In
Gokal
v Moti,
[8]
Centlivres JA interpreted a provision in an ordinance which provided
that:
“
The local
authority or the board, as the case may be shall, not later than two
months after the receipt of any application as aforesaid
grant or
refuse a certificate under the provisions of section seven hereof.”
to be merely directory
notwithstanding the use of the word “shall” because:
“
If one were to
hold that the sub-section is imperative, the extraordinary result
would follow that the Council could, by the
simple expedient of
refusing to consider an application within the prescribed period of
two months, deprive an applicant for a
certificate of the right given
him by the Ordinance to require the Council to consider and decide on
the application. Such an intention
could never have been intended by
the Legislature.”
See
also
Hercules
Town Council v Dalla.
[9]
[26]
Similarly In
Motorvoertuigassuransiefonds
v Mavundla
[10]
,
Van Dyk J quoted, with approval, the following dictum of Malan J in
Volschenk
v Volschenk
[11]
:
“
I am not aware of
any decision laying down a general rule that all provisions in
respect of time are necessarily obligatory and
that failure to comply
strictly therewith results in nullifying all acts done pursuant
thereto. The real intention of the Legislature
should in all cases be
enquired into and the reasons ascertained why the Legislature should
have wished to create a nullity. An
important consideration would be
whether by failure to adhere to strict compliance with the time
provisions substantial prejudice
will result to the persons or
classes intended to be protected and if prejudice may result, whether
it is irremediable or whether
it may be cured by allowing an
extension of time.”
[27]
And in Baxter: Administrative Law
[12]
,
the learned author states that:
“
Administrative
action based on formal or procedural defects is not always invalid.
Technicality in the law is not an end in itself.
Legal validity is
concerned not merely with technical but also with substantial
correctness. Substance should not always be sacrificed
to form; in
special circumstances greater good might be achieved by overlooking
technical defects.”
[28]
Statutory provisions cannot be categorized as either peremptory or
directory merely by reference to the use of
words such as “shall”
or “may”, or what may appear, upon first consideration,
to be inflexible time-limits.
In
Leibbrandt
v South Africa Railways
[13]
,
De Wet CJ, quoting Lord Penzance in
Howard
v Bodington
[14]
,
stated that the approach of courts should rather be in each case to
look at the subject matter, consider the importance of the
provision
that has been disregarded and the relation of that provision to the
general object intended to be secured by the Act,
and upon a review
of the case in that aspect, decide whether the matter is what is
called “imperative” or only directory.
[15]
[29]
In any event in our law the imperative nature of a statutory
provision is not necessarily decisive. (
Bezuidenhout
v AA Mutual Assurance Association Lt
[16]
).
Even a peremptory statutory provision may be renounced by a person
for whose benefit it has been introduced. And in
Nkisimane
and Others v Santam Insurance Company
[17]
,
Trollip JA held that the clear cut distinction between “peremptory”
and “directory” statutory provisions
has become somewhat
blurred and that“
[c]are
must therefore be exercised not to infer merely from the use of such
labels what degree of compliance is necessary and what
are the
consequences of non- or defective compliance.”
He
further held that consequently:
[18]
“
In between those
two kinds of statutory requirements it seems that there may now be
another kind which, while it is regarded as
peremptory, nevertheless
only requires substantial compliance in order to be legally
effective.” (…cf Maharaj and
others v Rampersad
1964 (4)
SA 638
(A) 646C – E)”
[30]
In
Leibrandt
(supra) De Wet CJ held that it is impossible to lay down any
conclusive test as to when a legislative provision is directory and
when it is peremptory. He quoted with approval the following
dictum
by Lord Campbell in
Liverpool
Bank v Turner
[19]
“
No universal rule
can be laid down as to whether mandatory enactments shall be
considered directory only or obligatory with an implied
nullification
for disobedience. It is the duty of Courts of Justice to try to get
at the real intention of the Legislature by carefully
attending to
the whole scope of the statute to be construed.”
[31]
At page 13 of the judgment, quoting Voet, he concludes that
where a law prohibits certain acts and does not nullify
what is done
contrary thereto nor fix a penalty, the maxim “
that many
things are prohibited in law which yet hold good”
came
“
into vogue”
because:
“
The
reason of all this I take to be that in these and the like cases
greater inconveniences and greater impropriety would result
from the
rescission of what was done than would follow the act itself which
has been done against the law.” (Voet 3.1.16)
[32]
The test to be applied in order to determine the real intention of
the legislature has been summarised as follows by
Herbstein J in
Pio
v Franklin NO and another.
[20]
(a)
The word “shall” when used in a statute is rather to be
considered as
peremptory, unless there are other circumstances which
negative this construction;
(b)
If a provision is couched in a negative form, it is to be regarded as
a peremptory
rather than a directory mandate;
(c)
If a provision is couched in positive language and there is no
sanction added
in case the requisites are not carried out, then the
presumption is in favor of an intention to make the provision only
directory;
and
(d)
If upon consideration of the scope and objects of a provision, it is
found that its
terms would, if strictly carried out, lead to
injustice and even fraud, and if there is no explicit statement that
the act is to
be void if the conditions are not complied with, or if
no sanction is added, then the presumption is rather in favour of the
provision
being directory. The history of the legislation will also
afford a clue in some cases.
[33]
Eksteen J’s ruling that the provisions of section 58C of the
Schools Act are mandatory was based on
his finding that “
the
system would break down
” if the post establishment for the
department and for individual schools are not declared and
communicated to schools by
30 September of each year. While this
finding was clearly justified within the context of the facts before
him, I cannot agree
with the line of reasoning adopted by Mr
Smuts
that, as a general proposition, all instances of non-compliance,
regardless of the degree thereof, would vitiate the determinations
by
the MEC and HOD. In the case before Eksteen J, the HOD had only
commenced the process to determine the post establishment in
November, the MEC and HOD had undertaken to announce the final post
establishment only by March of the following year and would
have
provided post establishments to the individual schools only by April.
There was therefore a justifiable factual context for
the finding
that the system would break down if the department were allowed to
implement the post establishment under those circumstances.
[34]
To hold, however, that in all cases of non-compliance “
the
guillotine falls
” at midnight, 30 September, and that
whatever happens thereafter becomes invalid, would result in absurd
consequences which
could never have been foreseen or intended by the
Legislature. This line of reasoning would have it that a post
establishment communicated
to schools on the 1
st
of
October would still be invalid simply because the “
magic
hour
” of midnight on 30 September had come and gone. That
the consequences of such an approach could have far-reaching
financial
ramifications for the department is not difficult to
conceive. It may conceivably, in effect, be compelled to implement
the post
establishment of the previous year regardless of budgetary
constraints. In this case the post establishment for 2012 was 64 752
educators while that for the 2013 school year is 60 820. In
order to avoid retrenchments the department had to budget for
a
deficit of some R800 million rand.
[35]
There is in my view also no legal basis for considering the statutory
deadline of 30 September as the “tipping point”
beyond
which the system would break down, without considering the degree of
non-compliance. When schedule 1 to the regulations
was amended in
2002 a deadline of 1 January was imposed for post provisioning.
Schools were nevertheless able to function properly
even when post
establishments were communicated to them as late as 1 January.
[36]
In summary therefore:
(a) I am of the
view that there is no legal or factual basis for a conclusion
that the legislature had intended to impliedly
repeal the provisions
of clause 8 of the post distribution model contained in the
regulations when it introduced s. 58C into
the Schools Act
during 2007;
(b) in any event
the provisions of s. 58C of the Schools Act cannot be interpreted to
be mandatory in the sense that any post
establishment declared and
communicated to schools after 30 September of the preceding year
would automatically be a nullity;
(c) substantial
compliance with the provisions of section 58C would therefore be
sufficient, and each case must be considered
on its merits; and that
(d) both the MEC
and HOD have substantially complied with the provisions of section
58C. The MEC announced the post establishment
for 2013 on 28
September 2012. On 16 October 2013 the HOD issued ‘pre-trial
post establishments” for schools and requested
their input for
the final post allocation. The final post allocations were
communicated to District Directors on 1 November and
to schools the
following day. Their non-compliance was in my view therefore not so
egregious that it had made it impossible for
schools to function
optimally.
Rationality
[37]
Mr
Smuts
furthermore argued that the MEC’s determination
of the post establishment was, by his own admission, based on the
number of
”
warm bodies”,
being the number of
educators currently within the department system. He submitted that
the MEC has therefore ignored other relevant
factors to which he was
compelled to have regard in terms of the law. He relies in this
regard on the following statement in the
MEC’s answering
affidavit:
“
Furthermore the
option selected for the 2013 post declaration was favourable in terms
of job security. This was indicated to me
in the consultation meeting
of 27 September 2012 (page 311 of the review record) when I
specifically mentioned that the 60 820
post establishment
represented the current “
warm bodies
” in the
system including protected temporary educators.”
[38]
In my view however the MEC’s statement was clearly made in
reply to an allegation contained in the Applicants’
founding
papers to the effect that the 2013 post establishment will result in
retrenchments. The MEC’s reference to “
warm bodies”
was therefore primarily intended to gainsay that allegation.
[39]
The MEC pertinently states in his answering affidavit that he has
considered all relevant factors such as,
inter alia
: the
learner numbers; curriculum needs; budget allocation and job security
of educators. The record is also replete with documents
which
demonstrate that these factors were indeed given due consideration.
There is therefore in my view no factual basis for the
submission
that the MEC had been solely motivated by the desire to preserve
“
warm bodies”.
[40]
It is trite law that the court cannot set aside administrative acts
of a public functionary simply because it does
not agree with the
decision. In
Bato
Star Fishing (Pty) Lt v Minister of Environmental Affairs
[21]
O’Regan
J said the following:
“
Although the
review functions of the Court now have a substantive as well as
procedural ingredient, the distinction between appeals
and review
continue to be significant. The Court should take care not to usurp
the functions of administrative agencies. Its task
is to ensure that
the decisions taken by administrative agencies fall within the bounds
of reasonableness as required by the Constitution.”
[41]
Annexure N to the Applicant’s founding papers, which is a
memorandum from the HOD to the MEC motivating and
recommending the
post provisioning for the 2013 school year, is a comprehensive
document which details all the relevant factors
which had been taken
into account for the recommendation that the post establishment for
the 2013 school year consist of 60 820
posts. These were,
inter
alia
, the legal provisions, budgetary implications, learner
numbers, educator job security and curriculum requirements. In my
view that
comprehensive motivation established a rational basis for
the recommendation, and accordingly, also for the resultant
determination
by the MEC.
[42]
These are in any event considerations which are peculiarly within
the knowledge of the relevant functionaries and
where there is a
clear, logical and rational link between the reasons provided and the
administrative decision (as is the case
here), the courts are called
upon to show:
“…
judicial
willingness to appreciate the legitimate and
constitutionally-ordained province of administrative agencies;
to admit
the expertise of those agencies in policy - laden or
polycentric issues; to accord their interpretations of fact and law
due respect; and to be sensitive in general to the interests
legitimately pursued by administrative bodies and the practical and
financial constraints under which they operate.
[22]
”
[43]
I am therefore of the view that this review ground can also not be
upheld.
Just
and Equitable order
[44]
Both Mr
Gauntlett
and Mr
Ngcukaitobi
have argued that
even if I were to find that the “
temporal target
”
prescribed in terms of section 58C of the Schools Act is peremptory,
I still retain a discretion in terms of
section 8(1)
of the
Promotion
of Administrative Justice Act 3 of 2000
not to set aside the 2013
post establishment.
[45]
In terms of the latter provision a court is empowered,
inter alia¸
to grant any order “
that is just and equitable”
and
may “
in exceptional cases”,
substitute or vary the
administrative action or correct a defect resulting from the
administrative action.
[46]
In
Bengwenyama
Minerals (Pty) Ltd v Genorah Resources
[23]
,
the Constitutional Court held that the enquiry as to whether factual
certainty requires “
the
amelioration of legality, and if so to what extent”
will depend on the interests involved in each case and the extent or
materiality of the breach of the constitutional right to just
administrative action.
[47]
Similarly in
Oudekraal
Estates (Pty) Ltd v City of Cape Town
[24]
,
the Supreme Court of Appeal held that the discretion whether or not
to set aside irregular administrative action must be exercised
where
considerations of certainty and practicality override the interests
of legality. Also in
Chief
Executive Officer, South African Social Security Agency and Others v
Cash Paymaster Services (Pty) Ltd
[25]
,
the
court held that in deciding whether or not to set aside irregular
administrative action courts should be guided by considerations
of
public interests, pragmatism and practicality.
[48]
In my view the facts of this case present compelling reasons
for not setting aside the impugned administrative
action, even if I
had found it to be irregular. First, the extent of the
non-compliance by the Respondents was not so egregious
as to make it
impossible for schools to comply with their statutory obligation, in
respect of the 2013 school year. Under these
circumstances there was
in my view no reason why schools would not be able to comply with
their statutory obligations before the
commencements of the new
school year.
[49]
Second, the ramifications for the Department, if it were to be
compelled to implement the 2012 post establishment,
would be
far-reaching and perhaps even catastrophic. In their attempts to
avoid retrenchments the Respondents had to budget for
a shortfall of
some R800 m. The order sought by the Applicant will therefore
undoubtedly have serious prejudicial budgetary implications
for the
Department.
[50]
Third, and more importantly, the order sought by the Applicants will
effectively preclude the Respondents from implementing
post
provisioning based on prevailing circumstances and budgetary
constraints, and the need to address the continuing problem of
inequitable distribution of teachers throughout the province, which
may cause many schools to be left with critical educator vacancies.
[51]
And finally, the respondents have already commenced
implementing the 2013 post establishments in accordance with an
order
granted by Plasket J in
Centre
for Child Law and others v Minister of Basic Education and others
[26]
which
will result in the filling of educator and non-educator vacancies by
February 2013.
[52]
There can be little doubt therefore that the setting aside of the
2013 educator post establishment will indeed result in “
greater
inconvenience and impropriety”
than would follow the
implementation thereof. Moreover, I am satisfied that there are
compelling reasons why the consideration
of certainty and
practicality would have inclined me to exercise my discretion in
favour of the Respondents.
Plasket
J’s order
[53]
But there is yet another reason why the application
cannot succeed.
[54]
Both Mr
Gauntlett
and Mr
Ngcukaitobi
submitted
that the order granted by Plasket J on 3 August 2012 (and amended by
agreement on 8 November 2012) impels the Respondents
to implement the
2013 post establishment.
[55]
The Intervening Party brought those proceedings in June 2012,
and sought an order to compel the Respondents to implement
the 2012
post establishments in the Eastern Cape. On 3 August 2012 Plasket J
gave a judgment upholding the application. The amendment
to the
order, which was effected by consent, compelled the Respondents to
fill all vacant substantive posts on the 2012 post establishment
with
permanent appointments by 20 December 2012, “
insofar as they
do not conflict with and/or exceed posts declared in terms of the
2013 post establishment.”
[56]
The Applicants were given notice of the application but have failed
to intervene, and have not brought an application to have
it
rescinded or set aside.
[57]
Counsel for the Respondents and the Intervening Party
submitted that the order sought by the Applicants in this matter
would render Plasket J’s order nugatory. They submitted that
Plasket J’s un-appealed order trumps this application
because
even if the Respondents had forfeited their statutory authority after
30 September, they had been authorised (and indeed
impelled) by
Plasket J’s order to implement the 2013 educator post
establishment despite the non-compliance with the prescribed
time
limit. It is clear that the amendment to the order, granted during
November 2012, was intended to allow the Respondents to
implement the
2013 post establishment. It thus seems to me that the effect of
Plasket J’s order is to compel the Respondents
to implement the
2013 post establishment. That order is still valid and binding on the
Respondents and I am not at liberty to grant
any relief which would
have the effect of rendering it nugatory. I was therefore of the view
that the application must fail for
this reason also.
[58]
The Intervening Party did not ask for costs and I accordingly ordered
the Applicants to pay the Respondents’ costs only.
SMITH
J
JUDGE
OF THE HIGH COURT
Appearances
Counsel
for the Applicants
Advocate
Smuts SC
Attorney
for the Applicant
Hutton
& Cook Attorneys
King
Williams Town
Counsel
for the Respondents
Advocate
Gauntlett SC,
Advocate
Collett,
Advocate
Pelser
Attorney
for the Respondents
State
Attorney,
King
William’s Town
Counsel
for the intervening party
Advocate
Ngcukaitobi,
Advocate
Bleazard
Attorney
for the Intervening Party
Legal
Resource Center, GHT
Date
Heard
12/07/12
Date
Delivered
02/18/13
[1]
(case no: 60/2011)
[2]
At par. 24
[3]
At par. 29
[4]
1909 TS 811
at 818
[5]
1946 AD 405
[6]
At 405
[7]
[2011] 4 ALL SA 131
(SCA) at par.38
[8]
1941 AD 304
at 314
[9]
1936 TPD 229
[10]
1989 (1) SA 558
(T) at 564
[11]
TPD 486 at 490
[12]
At 446
[13]
1940 AD 9
at 12
[14]
2
P.D. 203
[15]
At
13
[16]
1978(1)
SA 703 (A) at 710A
[17]
1978(2)
SA 430 (A) at 434H-444A
[18]
Nkisimane
(supra) at 444C
[19]
30 L.J., Ch. 379
[20]
1948 CPD 442
at 451
[21]
2004(4)
SA 490 (CC) at par. 45
[22]
C. Hoexter: The future of Judicial Review in South-African
Administrative Law,
(2000) 117 SALJ 484
at 501-502, cited with
approval by O’ Regan J in Bato Star (supra) at par. 46
[23]
2011
(4) SA 133
(CC) at par. 85
[24]
2004
(6) SA 222
(SCA) at par.36
[25]
2012
(1) SA SA 216 (SCA)
[26]
[2012] 4 ALL SA 35
(ECG)