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[2012] ZAFSHC 3
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Diphetoho School Governing Body and Others v Department of Education and Others (4218/2010) [2012] ZAFSHC 3 (12 January 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 4218/2010
In the matter between:-
DIPHETOHO SCHOOL
GOVERNING BODY
…...............
First
Applicant
LOREME PETRUS
MASENGA
…................................
Second
Applicant
THULOANA MAJOE
…....................................................
Third
Applicant
and
THE DEPARTMENT OF
EDUCATION
….....................
First
Respondent
THE MEC: DEPARTMENT
OF EDUCATION
…......
Second
Respondent
HEAD OF DEPARTMENT
….......................................
Third
Respondent
LEJWELEPUTSOA
DISTRICT OFFICE
…................
Fourth
Respondent
LESLEY GAPE LEGOPO
….........................................
Fifth
Respondent
_____________________________________________________
HEARD ON:
8
DECEMBER 2011
_____________________________________________________
JUDGMENT BY:
VAN DER MERWE, J
_____________________________________________________
DELIVERED ON:
12 JANUARY 2012
_____________________________________________________
[1] This is an
application to review and set aside the decisions of the third
respondent to:
(i) appoint the fifth
respondent as the principal of the Diphetoho Secondary School (the
school);
(ii) withdraw the
functions of the governing body of the school.
[2] The school is a
public school in terms of the
South African Schools Act 84 of 1996
.
The first applicant is the governing body of the school and the
second applicant is the chairperson thereof. The third applicant
(Mr.
Majoe) is an educator at the school who apparently during February
2010 was appointed as acting principal of the school, pending
the
appointment of a permanent principal. At the hearing of the
application the applicants abandoned the claim that the head of
the
department be directed to appoint Mr. Majoe as acting principal.
[3] The first respondent
is the Department of Education of the Free State (the department).
The second respondent (the MEC) is the
member of the executive
council of the Free State responsible for the department. The third
respondent is the head of the department.
The fourth respondent is
cited as the relevant district office of the department and the fifth
respondent (Mr. Legopo) is presently
the principal of the school.
[4] The school had been
without a permanent principal since 2006. After futile attempts to
fill this post, it was re-advertised
in terms of a notice dated 22
September 2009. The closing date for applications for the post was 23
October 2009 and the date of
commencement of duty was 1 January 2010
or as soon as possible thereafter.
[5] In terms of standard
procedure the governing body established a panel for the purpose of
shortlisting and interviewing of candidates
in order to make a
recommendation to the head of the department. A meeting of this panel
took place on 1 December 2009. In terms
of standard procedure this
meeting was attended, as observers, by representatives of two
recognised trade unions as well as an
official of the department. The
panel firstly set criteria for the shortlisting of candidates. The
criteria so set were that only
a person who had acted as the
principal of the school and was from Bothaville would be shortlisted.
This resulted therein that
only Mr. Majoe met the criteria. These
criteria were strenuously objected to by the representatives of the
trade unions and cautioned
against by the official of the department.
As a result, in the words of the chairperson of the governing body,
“
... the
processes was stopped and could not be proceeded with”.
[6] On 19 February 2010
the head of the department directed a letter to the governing body.
In this letter it was emphasised that
it was critical to fill the
post of principal of the school and that it was the duty of the
governing body to promote the best
interest of the school and to
strive to ensure its development through the provision of quality
education for all learners at the
school. The letter continued to
state that despite a request by an official of the department
representing the head of the department
to the governing body to make
a recommendation to the head of the department in respect of the
filling of the post of the principal
of the school, made at a meeting
held on 23 November 2009 at 08h00, the governing body failed to make
such recommendation. The
head of the department accordingly informed
the governing body that he will proceed to make the appointment
without the recommendation
of the governing body, in terms of
section
6(3)(l)
of the
Employment of Educators Act 76 of 1998
.
[7] The head of the
department proceeded to appoint an independent panel to consider the
candidates that applied for the post of
principal of the school in
response to the notice of 22 September 2009, to shortlist suitable
candidates, to interview the shortlisted
candidates and to make a
recommendation to the head of the department. Six candidates were
shortlisted. Mr. Majoe failed to make
the shortlist. On 23 June 2010
interviews were conducted with the shortlisted candidates. The panel
unanimously recommended Mr.
Legopo for appointment as principal of
the school and this recommendation was accepted by the head of the
department. On 25 July
2010 Mr. Legopo assumed his duties as such.
[8] As a result of
various complaints and reports indicating poor governance of the
school, the head of the department (and the
MEC) personally became
involved in finding a solution. This eventually led to meetings held
with the governing body and other stakeholders
of the school on 11
May 2010 and 3 June 2010. However, by letter dated 21 July 2010 the
head of the department informed the governing
body as follows:
“
Kindly be
informed that owing to a litany of unsatisfactory conducts to
discharge your fiduciary duties in respect of the above
school and
submissions received, I regrettably have to invoke the provisions of
section 22
of the
South African Schools Act (Act
No. 84 of 1996) in
withdrawing your school governing functions.
This has been necessitated by,
including but not limited to:
1. your failure to adopt a
constitution that was due on 31 April 2009 [section 20(1)(b)].
2. failure to
develop a mission statement for the school [section 5(5)].
3. failure to
adopt a code of conduct for learners at the school [section 8(1)].
4. poor
administration and management of the school’s finances.
5. division
amongst your ranks.
6. failure to
make recommendations for the appointment of a permanent principal
within given period [section 20(1)(l)].
Please
be
advised that the above withdrawal applies with
immediate
effect.”
An
appeal to the MEC in terms of section 22(5) of the Schools Act
against this decision, was dismissed on 30 July 2010.
WITHDRAWAL
OF FUNCTIONS
[9]
In terms of section 15 of the Schools Act every public school is a
juristic person with legal capacity to perform its functions
in terms
of the Act. Section 16 provides that the governance of every public
school is vested in its governing body and that the
governing body
may perform only such functions and obligations and exercise only
such rights as prescribed by the Schools Act.
In this manner
governing bodies of public schools became important components of our
participatory democracy.
[10]
Section 20 deals with the functions of governing bodies. Section
20(1) provides as follows:
“
(1)
Subject to this Act, the governing body of a public school must-
(a)
promote the
best interests of the school and strive to ensure its development
through the provision of quality education
for all learners at the
school;
(b)
adopt a
constitution;
(c)
develop
the mission statement of the school;
(d)
adopt
a code of conduct for learners at the school;
(e)
support the
principal, educators and other staff of the school in the performance
of their professional functions;
(e
A
)
adhere
to any actions taken by the Head of Department in terms of
section
16
of
the
Employment of Educators Act, 1998
(
Act
76 of 1998
),
to address the incapacity of a principal or
educator
to carry out
his or her duties effectively;
(f)
determine times
of the school day consistent with any applicable conditions of
employment of staff at the school;
(g)
administer
and control the school
's
property, and buildings and grounds
occupied by the school, including school hostels, but the exercise of
this power must not in
any manner interfere with or otherwise hamper
the implementation of a decision made by the Member of the Executive
Council or Head
of Department in terms of any law or policy;
(h)
encourage
parents, learners, educators and other staff at the school to render
voluntary services to the school;
(i)
recommend
to the Head of Department the appointment of educators at the school,
subject to the Employment of Educators Act, 1998
(
Act
76 of 1998
),
and the Labour Relations Act, 1995 (
Act
66 of 1995
);
(j)
recommend to
the Head of Department the appointment of non-educator staff at the
school, subject to the Public Service Act, 1994
(
Proclamation
103 of 1994
),
and the Labour Relations Act, 1995 (
Act
66 of 1995
);
(j
A
)
make
the recommendation contemplated in paragraph
(j)
within the
time frames contemplated in
section
6 (3) (l)
of
the
Employment of Educators Act, 1998
(
Act
76 of 1998
).
(k)
at the
request of the Head of Department, allow the reasonable use under
fair conditions determined by the Head
of Department of the
facilities of the school for educational programmes not conducted by
the school;
(l)
discharge
all other functions imposed upon the governing body by or under this
Act; and
(m)
discharge other
functions consistent with this Act as determined by the Minister by
notice in the
Government Gazette
, or by the Member of the
Executive Council by notice in the
Provincial Gazette
.”
[11] The functions of the
governing body referred to in section 20(1)(l) include to determine
the admission policy of the school
(section 5(5)), to determine the
language policy of the school (section 6(2)) and to issue rules for
religious observances at the
school (section 7). Section 21 provides
that the head of the department may allocate additional functions to
a governing body as
stipulated therein. It does not appear from the
papers that such additional functions were allocated to the governing
body of the
school.
[12] Section 22 provides
as follows:
“
22
Withdrawal of functions from governing bodies
(1) The Head of Department may, on
reasonable grounds, withdraw a function of a governing body.
(2) The Head of Department may not
take action under subsection (1) unless he or she has-
(a)
informed
the governing body of his or her intention so to act and the reasons
therefor;
(b)
granted
the governing body a reasonable opportunity to make representations
to him or her relating to such intention;
and
(c)
given due
consideration to any such representations received.
(3) In cases of urgency, the Head of
Department may act in terms of subsection (1) without prior
communication to such governing
body, if the Head of Department
thereafter-
(a)
furnishes
the governing body with reasons for his or her actions;
(b)
gives the
governing body a reasonable opportunity to make representations
relating to such actions; and
(c)
duly
considers any such representations received.
(4) The Head of Department may for
sufficient reasons reverse or suspend his or her action in terms of
subsection (3).
(5) Any person aggrieved by a decision
of the Head of Department in terms of this section may appeal against
the decision to the
Member of the Executive Council.”
[13] The head of the
department says that he orally granted the governing body a
reasonable opportunity in terms of section 22(2)(b)
at the meeting of
11 May 2010 and/or 3 June 2010 and that he acted on reasonable
grounds. The applicants attack the decision of
the head of the
department to withdraw the functions of the governing body on two
grounds, namely that the governing body was not
granted a reasonable
opportunity to make representations relating to the withdrawal of its
functions and that the decision was
not reasonable. (In respect of
the last mentioned aspect the real test of course is whether the
decision to withdraw the functions
of the governing body was a
decision that a reasonable decisionmaker could not make.) To my mind
however, the first question for
decision is whether the head of the
department was in the circumstances entitled to invoke the provisions
of section 22 at all.
[14] In this regard it is
necessary to also refer to the provisions of section 25 of the
Schools Act which provides as follows:
“
25
Failure by governing body to perform functions
(1) If the Head of Department
determines on reasonable grounds that a governing body has ceased to
perform functions allocated to
it in terms of this Act or has failed
to perform one or more of such functions, he or she must appoint
sufficient persons to perform
all such functions or one or more of
such functions, as the case may be, for a period not exceeding three
months.
(2) The Head of Department may extend
the period referred to in subsection (1), by further periods not
exceeding three months each,
but the total period may not exceed one
year.
(3) If a governing body has ceased to
perform its functions, the Head of Department must ensure that a
governing body is elected
in terms of this Act within a year after
the appointment of persons contemplated in subsection (1).
(4) If a governing body fails to
perform any of its functions, the persons contemplated in subsection
(1) must build the necessary
capacity within the period of their
appointment to ensure that the governing body performs its
functions.”
[15] In
HEAD OF
DEPARTMENT, MPUMALANGA DEPARTMENT OF EDUCATION AND ANOTHER v
HOËRSKOOL ERMELO AND ANOTHER
2010 (2) SA 415
(CC) three
matters were decided that are important for the determination of this
question. First, it was decided that any function
of a governing body
may be withdrawn in terms of section 22 of the Schools Act. Second,
it was explained that there is no direct
connection of interrelation
between section 22 and section 25. Section 25 regulates failure by a
governing body to perform its
functions. The jurisdictional
requirements or the invocation of section 25 are that the governing
body must have ceased or failed
to perform one or more of its
allocated functions. The two provisions regulate unrelated situations
and may not be selectively
or collectively applied to achieve a
purpose not authorised by the statute. (See p. 444 – 445, paras
[84], [85] and [88].)
Third, the following was said at 445 G –
H in respect of section 22:
“
Section
22 regulates the withdrawal of a function, but only on reasonable
grounds. Its purpose is to leave the governing body intact,
but to
transfer the exercise of a specific function to the HoD for a
remedial purpose. This means that the HoD must exercise the
withdrawn
function, but only for as long as, and in a manner that is necessary,
to achieve the remedial purpose. That explains
why s 22(3) (sic)
provides that the HoD may, for sufficient reason, reverse or suspend
the withdrawal. In my view, it is a power
which may be exercised only
to ensure that the peremptory requirements of the Constitution and
the applicable legislation are complied
with.”
[16] I accept that more
than one function or even all functions of a governing body may be
withdrawn in terms of section 22, provided
that it is done on
reasonable relevant grounds and for a remedial purpose, only for as
long as and in a manner that is necessary
to achieve the remedial
purpose.
[17] It is clear that the
head of the department came to the conclusion that the governing body
failed to perform all or most of
its functions. There appears to be
reasonable grounds for such determination, but it is in the
circumstances not necessary to make
a finding in this regard. Points
1, 2, 3 and 6 of the letter of the head of the department of 21 July
2010 expressly refer to failures
to perform specific functions. The
reference to poor administration and management of the school’s
finances is just another
way of saying that the governing body failed
to properly administer and manage the finances of the school.
Division amongst the
members of the governing body on the one hand
constitutes a reason for the failure to perform its functions and on
the other hand
amounts to a failure to perform its fiduciary duties
in terms of section 16(1) of the Schools Act. A reading of the
answering affidavit
confirms that the decision to withdraw the
functions of the governing body was essentially based on failure of
the governing body
to perform its functions.
[18] In my judgment, in
such a case, the head of the department is obliged to invoke section
25 and cannot act in terms of section
22. Section 25 provides that if
the head of department makes a determination that the governing body
has ceased or failed to perform
one or more of its functions, the
head of department
must
appoint sufficient persons to perform
all such functions for a period not exceeding three months. The head
of department may extend
the period of three months by further
periods not exceeding three months each, but the total period may not
exceed one year. The
express purpose hereof is to build the necessary
capacity of the governing body. If a governing body has however
ceased to perform
its functions, the head of the department must
ensure that a governing body is elected within a year after the
appointment of the
persons contemplated in subsection 25(1). Section
22 is intended to deal with situations other than cessation or
failure to perform
functions. It is not necessary or desirable to
attempt to define the circumstances in which section 22 may be
invoked. Essentially
such decision can be based on any reasonable
ground other than cessation or failure to perform functions by the
governing body.
A possible example of such instance is afforded by
the
ERMELO
-case, namely the adoption by the governing
body of an admission policy that is unconstitutional. The
understandable frustration
of the head of the department with the
inaction of the governing body could therefore not form the basis of
a decision to withdraw
functions, but should have been dealt with in
terms of section 25. My conclusion therefore is that the head of
department did not
in the circumstances have the power to act in
terms of section 22.
[19] But there is another
ground for concluding that the head of the department could not
exercise the power in terms of section
22. As mentioned already, the
purpose of section 22 is the temporary withdrawal of a function of a
governing body for a remedial
purpose. The head of the department at
no stage articulated that he withdrew the functions of the governing
body temporarily or
for a remedial purpose or what the remedial
purpose would be. On the contrary, a close reading of the answering
affidavit of the
head of the department shows that the purpose of the
head of the department was to dissolve or disband the governing body,
permanently
or indefinitely. (See especially paras 65 – 67, 69
– 71, 89 and 94.4 of the answering affidavit of the head of the
department.) Counsel for the respondents also submitted:
“
... that the
third respondent was legally entitled to take away the functions of
the first applicant and disband it as he did.”
[20] This is unlawful.
The Schools Act contains no provision for the dissolution or
disbandment of a governing body. A public power
may not be used for a
purpose other than that it was intended for. See
section 6(2)(e)(i)
of the
Promotion of Administrative Justice Act 3 of 2000
. Whilst I
have no doubt that the head of the department was
bona fide
,
his action was not authorised by
section 22.
[21] The decision of the
head of the department to withdraw the functions of the governing
body must therefore be set aside. It
follows that the same must apply
to the confirmation of the decision by the MEC on appeal to him. It
also follows that it is unnecessary
to consider whether the governing
body was afforded a reasonable opportunity to make representations in
respect of the intention
to withdraw its functions or whether the
decision was one that a reasonable decisionmaker could not make in
the circumstances.
APPOINTMENT OF
PRINCIPAL
[22]
Section 6(3)(a)
of
the
Employment of Educators Act 76 of 1998
, provides as follows:
“
(3)
(a)
Subject
to paragraph
(m)
,
any appointment, promotion or transfer to any post on the educator
establishment of a public school may only be made on the
recommendation
of the governing body of the public school and, if
there are educators in the provincial department of education
concerned who
are in excess of the educator establishment of a public
school due to operational requirements, that recommendation may only
be
made from candidates identified by the Head of Department, who are
in excess and suitable for the post concerned.”
[23] It is common cause
that Mr. Legopo was appointed by the head of the department without
the involvement of the governing body.
The head of the department
states that this was justified by
section 6(3)(l)
of the
Employment
of Educators Act. The
section provides as follows:
“
(l)
A
recommendation contemplated in paragraph
(a)
shall be made within two months from the date on which a governing
body was requested to make a recommendation, failing which the
Head
of Department may, subject to paragraph
(g)
,
make an appointment without such recommendation.”
Section 6(3)(g)
is no
applicable in the circumstances.
[24] It is trite law that
a real factual dispute in an application must be determined on the
version of the respondent, unless that
version can be rejected on the
papers as farfetched or clearly untenable. The evidence of the
respondents is that the governing
body was requested to make a
recommendation on 23 November 2009 and/or on 1 December 2009. This
evidence can certainly not be rejected
out of hand and must be
accepted for present purposes.
[25] It is common cause
that the governing body made no such recommendation within two months
and had not made a recommendation
by 19 February 2010. In this regard
the governing body relies on what took place at the meeting of 1
December 2009 as well as a
letter directed to the head of the
department by the governing body, dated 3 December 2009.
[26] This is to no avail.
The meeting of 1 December 2009 and the process for making a
recommendation for the appointment of a principal
failed either
because the panel of the governing body did not have the capacity to
handle a relatively simple matter or because
it insisted on criteria
for shortlisting of candidates that were clearly objectionable. In
neither case the governing body is provided
with a lawful excuse for
the failure to make a recommendation. The respondents deny that any
of them received the letter of 3 December
2009 and that denial cannot
be rejected on the papers. But this letter in any event constitutes
no more than a helpless and vague
call for the head of the department
to intervene on the ground that the observers at the meeting
“
... were no
longer observers”.
[27] The subsequent use
by the head of the department of an independent panel to make a
recommendation to him cannot be faulted
in the circumstances. In my
judgment the decision to appoint Mr. Legopo as principal of the
school is unassailable.
COSTS
[28] The applicants fail
on the question of the appointment of the principal of the school.
They succeed on the question of withdrawal
of powers, but on a ground
not relied upon. The grounds that the applicants did rely upon, do
not appear to be clearly established,
to say the very least. In the
exercise of my discretion in respect of costs, I believe that each
party should pay his or its own
costs. The parties are agreed that
the costs that were reserved on 21 April 2011 should be costs in the
cause.
[29] In the result the
following orders are made:
1. Prayer 1 of the notice
of motion is dismissed.
2. The decision of the
third respondent to withdraw the functions of the first applicant and
the confirmation of this decision by
the second respondent on appeal
to him, are reviewed and set aside.
3. Each party pays his or
its own costs, including the costs reserved on 21 April 2011.
________________________
C.H.G. VAN DER MERWE,
J
On behalf of applicants:
Mr. M. Khang
Mphafi Khang Attorneys
BLOEMFONTEIN
On behalf of respondents:
Adv. M. Khoza SC
Instructed by:
The State Attorney
BLOEMFONTEIN
/sp