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[2008] ZAWCHC 56
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Mose v Minister of Education in the Provincial Government of the Western Cape: Gabru (13018/08) [2008] ZAWCHC 56; 2009 (2) SA 408 (C) (13 October 2008)
Republic
of South Africa
-
REPORTABLE -
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE NO.: 13018/08
In
the matter between:
NOMGQUIBELO
CYNTHIA MOSE
Applicant
and
MINISTER
OF EDUCATION IN THE PROVINCIAL
GOVERNMENT
OF THE WESTERN CAPE:
MR
YOUSUF GABRU
First
Respondent
HEAD
OF THE WESTERN CAPE EDUCATION
DEPARTMENT:
MR R.B. SWARTZ
Second Respondent
FAIRBAIRN
COLLEGE SCHOOL GOVERNING BODY
Third
Respondent
Counsel for the
Applicant: Adv A Kantor - 021 424 6312
Applicant’s
Attorneys: Cliffe Dekker Inc
Counsel for the
Respondents: Adv D Jacobs (SC) - 021 423 4655
State Attorney: S
Chothia
Matter was heard on
18 September 2008.
Judgment was handed
down on 13 October 2008
Republic
of South Africa
“
REPORTABLE”
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
Case
No:
13018/08
In the matter between:
NOMGQIBELO
CYNTHIA MOSE
Applicant
(as the legal guardian of LUZUKO
MOSE)
And
MINISTER OF EDUCATION IN THE
PROVINCIAL
GOVERNMENT OF THE WESTERN CAPE:
MR YOUSUF
GABRU First Respondent
HEAD OF THE WESTERN CAPE
EDUCATION
DEPARTMENT: MR R.B. SWARTZ
Second Respondent
FAIRBAIRN COLLEGE SCHOOL GOVERNING
BODY Third Respondent
JUDGMENT:
13
OCTOBER 2008
Le
Grange J
:
[1] This is an
extended return date of a rule
nisi
,
issued by Allie J in August 2008. In this matter the Applicant, on an
urgent basis, sought certain relief
inter alia,
reviewing and
setting aside the decisions of the Three Respondents relating to her
minor son Luzuko Mose (“LM”), a pupil
at Fairbairn
College, Goodwood.
[2] The relief sought by the
Applicant was framed as follows:
“
2. That
a rule nisi be issued calling upon Respondents and all interested
parties to appear and show cause on a date to be determined
why an
Order should not be granted in the following terms:
2.1 Reviewing
and setting aside Third Respondent’s finding that Luzuko
Mose had sold dagga and its recommendation to
expel Luzuko Mose
from Fairbairn College.
2.2 Reviewing
and setting aside Second Respondent’s decision to expel
Luzuko Mose from Fairbairn College.
2.3 Reviewing
and setting aside First Respondent’s decision to uphold
Second Respondent’s decision to expel Luzuko
Mose from
Fairbairn College.
2.4 That
any party opposing this application pay the costs thereof.
2.5 Further
and or alternative relief.
3. That
pending the determination of this application it be ordered and
directed that Luzuko Mose attend school at Fairbairn College.”
[3] By agreement between the parties
it was ordered that (LM) continue attending the Fairbairn College
(“the School”)
pending the determination of the main
application.
[4] The relief essentially sought by
Applicant is aimed at preventing
the
expulsion of her son, LM, from the School. The School Governing Body
(SGB) preferred certain charges against LM. The charges
relate to the
allegations that LM sold dagga to fellow learners at the School. He
also allegedly smoked and provided dagga to learners
whilst in the
School’s uniform, at a nearby public park in Goodwood.
[5] It is not in dispute that Third
Respondent, as a precautionary measure suspended LM on 22 May 2008
and that the suspension was
operative until 30 May 2008. The Third
Respondent, after a fact finding hearing, then made a recommendation
on 7 June 2008 to Second
Respondent to expel LM. The Second
Respondent after considering the recommendation of First Respondent
expelled LM. An appeal was
then lodged against the decision of Second
Respondent. The appeal was however dismissed by the First
Respondent.
[6] The Applicant in her founding
affidavit concentrated heavily on the SGB’s meeting of 22 May
2008. She contended that
the meeting was not properly convened or
constituted and that the decisions taken and processes embarked upon
pursuant thereto
are invalid. It is not in issue that LM was
suspended as a cautionary measure and that the suspension was only
operative until
30 May 2008. Mr. A Kantor, who appeared on behalf of
the Applicant, conceded that the suspension has run its course and
that no
relief is sought relating to the suspension of LM in the
present application.
[7] In
casu
,
the relief Applicant seeks is an order reviewing and setting aside
the decisions of the three Respondents relating to the expulsion
and
subsequent appeal of her son. The substratum of the Applicant’s
complaint is firstly, the expulsion of LM was procedurally
unfair.
Secondly, the Respondents did not properly apply their minds to the
matter and their decisions were grossly unreasonable.
Thirdly, the
rules of natural justice were not complied with. Fourthly, Third
Respondent was not quorate and acted in bad faith
and lastly First
Respondent made a decision to uphold the appeal and was
functus
officio
when he thereafter
decided to dismiss the appeal.
[8] Mr. Kantor’s principal
contentions were that the expulsion of a learner must be a measure of
last resort but in the instant
matter it was a measure of first
choice and pre-judged. Furthermore the procedures adopted by the SGB
at the hearing to consider
the evidence against Applicant’s son
were inherently flawed as,
inter
alia
, t
he
witnesses were not sworn in, a parent was allowed to answer on behalf
of his daughter whose testimony was used against LM, the
Applicant
and their attorney were waiting outside of the room where the hearing
took place and the prosecutor, Mr. Koffeman, and
his main witness Mr.
Marchand were present when deliberations as to guilt of LM allegedly
took place. Moreover, there was perceived
bias on the part of Third
Respondent’s members and they did not apply their minds to the
facts of this matter. It was also
contended that the Third Respondent
was not properly constituted as two members, who are pupils at the
School, were not present
at the SGB hearing. With regard to the issue
whether First Respondent was
functus
officio
, Mr. Kantor
conceded on the papers filed this attack seems questionable.
[9] Mr. D Jacobs, the Respondents’
Counsel, main submissions were that on a proper perusal of the
proceedings conducted by
Third Respondent on 7 June 2008, the attack
by the Applicant that the proceedings are procedurally fatally flawed
and biased, is
untenable and misconceived. He also argued that the
hearing of Third Respondent was properly constituted and the record
of proceedings
reflects that the prosecutor, Mr. Koffeman and the
witness M, was excused from the deliberations of the SGB. It was also
contended
that the Applicant’s reliance on the suspension of LM
on 22 May 2008 by Third Respondent as the foundation for her review
is misplaced and that First Respondent was not
funtus
officio
when he decided to
dismiss the appeal.
[10] At the hearing of the SGB of 7
June 2008 the Applicant and LM was assisted by an attorney. It is not
in dispute that LM at
this hearing pleaded guilty to smoking dagga
whilst in the School’s uniform at a nearby public park in
Goodwood. In issue
was the selling and provision of dagga to fellow
learners of the School. It needs to be mentioned that six other
learners faced
similar charges at the same hearing. Some of these
learners, besides their parents being present, also had legal
representation
at the hearing.
[11] Mr. Koffeman, a member of the
SGB who acted as the prosecutor, firstly called Mr. Marchand, the
Headmaster of the School who
gave a report on the order of events
since the School became aware that certain of its learners were
involved in smoking and selling
dagga. He also stated that the
learners who were implicated during the preliminary interviews were
sent for tests of illegal substances.
[12] It appears not in issue that the
urine test of LM showed high levels of the drug cannabis (dagga). On
a proper perusal of the
record, Mr. Marchand was extensively
cross-examined by the Applicant’s attorney with regard to the
procedure that was adopted
during the initial interview process that
led to the suspension of LM on 22 May 2008. Mr. Koffeman thereafter
called three fellow
learners, whose parents were also present, to
give evidence against LM. All three gave unsworn testimonies,
individually, implicating
LM of selling dagga at School. Their
testimony in summary is that everyone at School knows LM sells dagga
cigarettes. In one instance
during a Mathematics Literacy class, two
dagga cigarettes were sold by LM for R10 to a classmate and it was
noticed that he had
a bank bag which contained approximately 20 dagga
cigarettes on his person. All three learners, one whom have been
friends with
LM for approximately six to seven years, were also
cross-examined by the attorney. During the cross-examination of one
of the learner’s,
the parent asked if he can reply on behalf of
his visibly distraught daughter. The parent then continued to state
what his daughter’s
testimony in chief was. Applicant’s
attorney objected to the parent’s reply and the chairperson
intervened, stating
that the parent of the learner will not allow his
daughter to be intimidated by the questions posed by the attorney.
The attorney
decided to summarily stop his cross-examination in
protest and attacked the fair process of the hearing.
[13] The grounds the Applicant are
relying on to review and set aside the decisions of the Respondents
is in my view misconceived
and do not support the conclusion that the
Respondents in exercising their discretion acted in an arbitrarily,
capricious or irrational
manner. The contention that First
Respondent was
functus
officio
when he dismissed
the appeal of LM is also without merit.
[14] The proceedings conducted by
Third Respondent can hardly be described as procedurally unfair. The
argument advanced by the
Applicant that the disciplinary hearing
should have been conducted as if it was a Court of Law does not
accord with the generally
accepted approach to administrative
tribunals. What is required is that the administrative tribunal
should act fairly in affording
the affected individual the
opportunity of a fair hearing. The concept “Fairness”
may be a highly contested concept
and not easy to ascertain nor may
it be easy to find agreement upon what it means in any specific
situation. The correct approach
is that
“fairness”
must be deduced from the circumstances of each case having regard to
the factors, namely the nature of the inquiry, the rules governing
the tribunal and the subject-matter. The classic statement, which has
been adopted and accepted by courts in South Africa, is that
made by
Lord Loreburn LC in the English case of
Board
of Education v Rice,
1911
AC 179
,182.
“
In
the present instance, as in many others, what comes for determination
is sometimes a matter to be settled by discretion, involving
no law.
It will, I suppose, usually be of an administrative kind … In
such cases the Board …. will have to ascertain
the law and
also to ascertain the facts. I need not add that in doing either
they must act in good faith and listen fairly to
both sides, for that
is a duty lying upon everyone who decides anything. But I do not
think they are bound to treat such a question
as though it were a
trial. They have no power to administer an oath, and need not
examine witnesses. They can obtain information
in any way they think
best, always giving a fair opportunity to those who are parties in
the controversy for correcting or contradicting
any relevant
statement prejudicial to their view
”.
See further:
Baxter:
Administrative Law
at pp.
542-3 and the authorities referred to therein.
[15] It follows that the evidence of
the witnesses, who gave oral evidence at the hearing, cannot in my
view be regarded as an
irregularity
or
illegality
merely because it was not under oath. The Applicant’s attorney
had, in my view, a fair and reasonable opportunity to cross-examine
the witnesses who testified against the Applicant’s son. Mr.
Marchand was extensively cross-examined as to the preliminary
interview of the various learners and Applicant’s son.
Questions were also asked about the procedure of the urine tests that
the learners in particular LM, was subjected to. The three learners,
who implicated the Applicant’s son in the selling of
dagga
cigarettes, were also cross-examined. It was only when one of the
parents wanted to reply on behalf of his distraught daughter
that an
objection was raised by the attorney and thereafter he stopped his
cross-examination. Despite this incident, the rest
of the
proceedings can hardly be described as procedurally unfair. In fact,
the record of the proceedings reflects that the attorney
apologized
to the SGB for the offensive manner in which he addressed the
committee. Even if the evidence of the father who replied
on behalf
of his daughter is ignored, the bulk of the evidence overwhelmingly
supports the conclusion that LM was selling dagga
cigarettes to his
fellow learners at the School. The SGB’s finding in this regard
was therefore correct. Moreover, according
to the evidence of Mr
Marchand, the Applicant’s son, out of his own volition admitted
during the preliminary interviews the
allegations against him. The
evidence tendered by certain learners against the Applicant’s
son whilst they were waiting outside
mainly referred to usage of
dagga, where LM was also present. This evidence can hardly be
regarded as prejudicial to LM as he admitted
and pleaded guilty to
the charge of smoking dagga.
[16] The further objection by
Applicant that the Third Respondent was not quorate is ill founded.
In terms of the provisions of
the Province of Western Cape:
Provincial Gazette Extraordinary 6519 dated 20 May 2008, Regulation
21 (4) provides as follows:-
“
The
majority of the enfranchised members of a governing body shall
constitute a quorum for any meeting of the governing body.”
[17] In this instance, the absence of
the two school learners at the SGB did not affect its quorum. The
majority of the SGB members
were present and the board was quorate.
On the papers filed the Applicant’s son had previously, in
March 2007, admitted to
smoking dagga during the School’s
annual Big Walk and was given counseling and taken for drug tests.
Two drug tests taken
in 2007 also show the Applicant’s son had
high levels of cannabis in his urine samples. The Applicant’s
suggestion
that the recommendation to expel LM amounts to
discrimination was pre-judged and should be set aside in accordance
with
section 6(2)(a)(iii)
of the
Promotion of Administrative Justice
Act 3 of 2000
is therefore without substance.
[18] The Applicant also suggested
that deliberations of Third Respondent were tainted because the
prosecutor, Messrs Koffeman and
Marchand took part in the
deliberations of the SGB. The record of proceedings does however not
support this suggestion. The record
at page 135 reflects that
Koffeman and Marchand, including the Applicant, her son and their
Attorney, were excused where after
the SGB deliberated the evidence
and concluded that LM was guilty of the offences preferred against
him. The matter was then postponed
to consider a suitable punishment.
[19] The contention that First and
Second Respondent did not go further than to implement the
recommendation of Third Respondent
is without merit. Second
Respondent at pages 291 and 292 of the record clearly states that
after careful consideration of the relevant
information he decided to
expel LM. Moreover, it was also suggested that should placement
assistance be requested the Circuit Manager
of Second Respondent
could arrange alternative placement or provide LM with advice on
further educational options and assist with
referral to therapeutic
support including drug counseling.
[20] The First Respondent filed an
affidavit with regard to the averment that he was
functus
officio
when deciding to
dismiss the appeal of LM. He denies that he was
functus
officio
and set out what
steps he has taken to come to an appropriate decision. On the papers
filed I am satisfied that First Respondent
considered all the
relevant fact and could not have been
functus
officio
when he made his
decision to dismiss the appeal of Applicant’s son.
[21] Mr. Kantor correctly conceded
that the Applicant’s son has been found guilty of a serious
misconduct. It appears from
the facts of this matter the ills of our
society have spilled over onto the grounds of our schools, which
ordinarily should be
safe havens for education and training. The
Applicant’s son like any other learner has undoubtedly a
constitutional right
to proper basic education. In my view, a learner
and in particular learners at high school institutions cannot place
in jeopardy
his or her fellow learner’s equally important right
to proper basic education in a safe environment by indulging in
serious
misconduct, like selling and abusing illegal drugs at school
premises. With rights come responsibilities. Our learners and more
importantly, at high school institutions, must appreciate and
understand that misconduct, like in open society, attracts sanctions
and in appropriate circumstances, may include expulsion. The
overwhelming majority of parents in South Africa at great cost and
personal sacrifice only want the best education for their children.
The Applicant in this instance is no different. The offences
Applicant’s son have been found guilty of is very serious. His
further presence at the school does compromise the safe environment
for his fellow learners, and the sanction of expulsion is not
disturbingly inappropriate in the circumstances of this case.
[22] For the reasons stated herein
the Rule
nisi
cannot be confirmed and it follows that the application cannot
succeed.
[23] In the result the following
order is made.
“The Rule
nisi
is discharged. The
application is dismissed with costs.”
______________________
LE GRANGE, J