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[2013] ZAECMHC 22
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Silence Matta t/a Idutywa School of Excellence v MEC of Department Education and Another (1474/12) [2013] ZAECMHC 22 (31 May 2013)
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE HIGH COURT: MTHATHA
CASE NO: 1474/12
Heard on: 31/05/13
Delivered on: 31/05/13
In the matter between:
SILENCE MATTA t/a IDUTYWA
SCHOOL OF EXCELLENCE
...................................................................
Applicant
and
THE MEMBER OF THE EXECUTIVE
COMMITTEE, DEPARTMENT OF
EDUCATION
....................................................................................
1
st
Respondent
THE HEAD OF DEPARTMENT,
DEPARTMENT OF EDUCATION,
EASTERN CAPE
.............................................................................
2
nd
Respondent
_____________________________________________________________
JUDGMENT
____________________________________________________________
NHLANGULELA J:
[1] The applicant seeks, in the main, a relief that the
first respondent be directed to consider and decide an appeal against
the
decision which had been made by the second respondent in the
following terms: “ The approval awarded to Idutywa School of
Excellence to be an Examination Centre for full time NSC [National
Senior Certificate] Grade 11 and 12 shall be Revoked from 2012.”
[2] The background facts, which are common cause, are
these: The applicant is an independent school duly registered as such
in terms
of
s 46
of the
South African Schools Act 84 of 1996
. As it
was registered to do business in Idutywa, Eastern Cape it qualified
for and it was granted by the first respondent, in terms
of a
provincial legislation, a privilege of being an Examination Centre
for Grade 11 and 12 learners who are registered for tuition
in the
school. The underlying policy governing the privilege is regulated in
terms of Chapter 6 (29)(3) of National Policy on the
conduct,
administration and management of the National Senior Certificate
referred to as: A qualification at Level 4 on the National
Qualification’s Framework (NQF), which was published by means
of Government Notice No. 564 in Government Gazette No. 30048
of 06
July 2007 aa. The policy reads as follows:
“An examination centre may be deregistered if there is evidence
that the integrity of the examination is being undermined
at the
centre. Examination centres will be deregistered if: there is
fabrication of School-Based Assessment marks; if there is
any other
serious irregularity that warrants deregistration.”
[3] The genesis of the dispute which led to these
proceedings is the alleged breach by the applicant of the policy as
aforementioned.
The first respondent, duly represented by the second
respondent, had complained in 2009 that the registration by the
applicant
of Grade 12 learners in excess of the agreed maximum of 500
learners to sit for examinations in one session was tantamount to
conduct
compromising the integrity of examinations within the purview
of the national policy. Although the applicant undertook that it will
not repeat its offending conduct it circumvented the policy by
registering 500 learners for tuition but registered 291 of those
learners in another examination centre (a school) situated in East
London for the purposes of writing examinations there. This
it did in
2010 and 2011. It would appear that a permission of the department
was not sought by the applicant to register the 291
learners in East
London. As a result a decision was taken by the department to
withdraw the privilege earlier granted to the applicant
to offer
National Senior Certificate examinations to grade 11 and 12 learners.
[4] Much has been debated by both parties in affidavits
and during arguments with regards to
locus standi
of Matta,
who is the founder/owner of Idutywa School of Excellence, to note an
appeal against the decision to down-grade/de-register
the School as
well as the merits and de-merits of the decision. With respect to the
parties I do not believe that the occasion
has arrived for this Court
to decide these disputes, which I consider to be pending a decision
of the appeal tribunal of the first
respondent. The relief sought by
the applicant relates only to the failure by the first respondent to
consider and decide the appeal
that was placed before it on 25
January 2012. It is to this issue that I must now turn.
[5] Certain submissions made on behalf of both parties
have to be dealt with in
limine. Mr Vutula
, counsel who
appeared on behalf of the applicant, submitted that Mr Mzimhle Elvin
Mabona, the deponent in the answering affidavit,
has no authority to
file an affidavit on behalf of the first respondent because the
latter is prohibited in terms of the provisions
of
s 47(2)
of the
Act, read with
Regulation 6(2)(f)
made in terms of the Eastern Cape
Schools Education Act 1 of 1999, from delegating his power to
entertain an appeal based on the
decision of the Head of the
Department (the second respondent being such a Head). This submission
is ill-conceived because the
issue before this Court is whether the
first respondent should be compelled to consider and decide the
appeal. It does not pertain
to the appeal itself. For this reason
alone the point in
limine
must be dimissed.
[6] Similarly, the point in
limine
raised on
behalf of the respondents that the applicant has no
locus standi
to prosecute this application has no merit. In so far as the
submission undermines the direct and substantial interest Mr Matta
has in the relief sought and the final order to be made in these
proceedings the point in
limine
may safely be dismissed.
[7] The merits of the matter turn only on the facts. It
being common cause that the decision affecting the interest of the
applicant
was made on 08 January 2012, appeal against it was noted on
25 January 2012, the first respondent was enjoined to consider the
appeal in terms of Regulation 6(2)(f) but failed to do so within 30
days time provided for in the Regulation as aforesaid, the relief
sought falls to be granted. The ancillary relief will be granted as
well.
[8] In the result the following order shall issue:
The points in
limine
raised be and are hereby dismissed.
Paragraphs 1, 2, and 3 of the Notice of Motion be and are hereby
granted.
___________________________________
Z.M. NHLANGULELA
JUDGE OF THE HIGH COURT
Counsel for the applicant : Mr S.C. Vutula of
Vutula & Co
MTHATHA.
Counsel for the respondents : Adv M. Bodlani
Instructed by : The State Attorney
MTHATHA.