Hartswater High School and Another v Head of the Department of Education: Northern Cape (765/2996) [2006] ZANCHC 67 (8 December 2006)

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[2006] ZANCHC 67
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Hartswater High School and Another v Head of the Department of Education: Northern Cape (765/2996) [2006] ZANCHC 67 (8 December 2006)

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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
Case
Nr: 765/2006
Heard:
30/10/2006
Delivered:
08/12/2006
In
the matter:
Hartswater
High School First Applicant
The
Governing Body of the
Hartswater
High School Second Applicant
and
The
Head of the Department of
Education:
Northern Cape First Respondent
Paul
Roux Steenkamp Second Respondent
Stephan
Phillip Paulus Third Respondent
Deon
Joubert Fourth Respondent
Louis
Eugene von Below Fifth Respondent
Mrs
C M Van Zyl Sixth Respondent
David
Petrus Jason Seventh Respondent
Coram:
Tlaletsi AJP
et
Molwantwa AJ
JUDGMENT
Tlaletsi
AJP:
INTRODUCTION
The
first applicant, Hartswater High School (Hartswater High) is a
public school in the Northern Cape Province. In terms of the
South
African Schools
Act
,
Act no 84 of 1996 (“the Schools Act”), section 15 thereof, it is
clothed with juristic personality. The second applicant,
the School
Governing Body of Hartswater High School (“SGB”), is also
authorized to bring this application because in terms
of section 16
of the Act the governance of the school is vested in it.
The
First Respondent is the Head of the Department of Education (“HOD”)
in the province who, in terms of Section 3(1)(b) of
the
Employment
of Educators Act
, Act
no: 76 of 1998 (“the Employment Act”) is the employer of all the
educators in the Northern Cape Province.
The
second Respondent, Mr Paul Roux Steenkamp(“ Steenkamp”), was one
of the candidates who applied for the post of principal
at
Hartswater High, was shortlisted for an interview, was interviewed
and recommended by the SGB as their preferred candidate for
the
appointment. The recommendation was however not accepted by the
HOD.
The
Third Respondent, Mr Stephan Phillip Paulus (“Paulus”) was a
competitor for the said principal’s post, was shortlisted
for an
interview, was interviewed and not recommended by the SGB as their
preferential candidate for appointment. He was however,
notwithstanding, appointed by the HOD as principal of Hartswater
High.
The
Fourth to the Seventh Respondents were also competitors for the
post. They were also shortlisted, interviewed and not recommended
by the SGB.
The
relief sought by the two applicants as contained in the Notice of
Motion is divided into “Part A” and “Part B”. “Part
A”
is an urgent interdictory relief in terms whereof the applicants are
seeking the following orders:-
that
the appointment of Paulus by the HOD as principal of Hartswater
High be suspended;
that
costs of this part of the application stand over for later
determination with “part B”.
The order in paragraph
6.1 was to be operational with immediate effect pending the
determination of “Part B” of the application.
In
“part B” the applicants seek the relief that the two decisions
described below be reviewed, nullified and set aside:
The
decision embodied in a letter dated 5 December 2005 (Annexure “H”)
in which the HOD rejected the SGB’s recommendation
that Steenkamp
be appointed principal of Hartswater High.
The
decision incorporated in a letter dated 10 May 2006 from the HOD in
terms whereof Paulus is appointed principal of Hartswater
High with
effect from 1
st
June 2006.
On
7 July 2006 the application was before
Lacock
J.
With the agreement
of the parties the entire application was postponed to 11 September
2006. Further papers were filed by the
parties to give substance to
Part B of the application.
BRIEF
BACKGROUND
As
a brief background on 25 July 2005 the Department of Education,
Northern Cape Province (“the Department”) advertised the
position of principal at Hartswater High. From the applications
received from the Department, the SGB’s Selection Committee
(“the
Committee”) shortlisted six candidates. These are the second to
seventh respondents. Interviews were conducted with
the candidates.
The committee’s recommendation for the appointment was approved by
the SGB on 7 October 2005. Recommendations
by the SGB was
communicated to the HOD. In a letter dated 5 December 2005 which
was received by the SGB chairperson on 12 December
2005, the HOD
rejected the recommendation of the SGB, and
inter
alia
, referred the
matter back to the SGB to make another recommendation. A series of
events happened until the appointment of Paulus
by the HOD. I will
revert to these events at a later stage.
PROCEDURE TO BE
FOLLOWED
For
convenience and better comprehension of the issues and the
regulatory aspects, the applicable prescribed procedure to be
followed
at the time, from the stage that a vacancy occurs or exists
at a public school in the province throughout the various phases
until
the deserving candidates, preferentially ranked, are
recommended by the SGB for appointment by the HOD, is necessary.
These are
the steps that are extrapolated from the “Personnel
Administration Measures” (“PAM”) which have been issued by the
Minister
of Education
1
.
The procedure has now been amended
2
.
Section 7(2) of the Amendment Act provides as follows:
“
Any
vacant post that was advertised before the commencement of this
section must be filled in terms of the provisions of the
Employment
of Educators Act, 1998
, as it existed immediately before the
commencement of this section if interviews in respect of the vacant
post were held before such
commencement.”
It
is common cause that the regime provided for in the Amendment Act is
not applicable in
casu.
The procedure that is
applicable is as hereunder.
The
School notifies the Department of the existence of a vacancy.
Vacancies
in public schools are advertised in what is basically an education
gazette, a bulletin or circular and in the public
media.
The
advertisement must clearly state that the state is an affirmative
action employer and must be non-discriminatory and in keeping
with
the provisions of the Constitution
3
of the Country.
The
Department is tasked with the Sifting Process of the applications.
This sifting must not be confused with the shortlisting
of
candidates which latter function resorts under the competency of
the SGB. The sifting process is a check and balance process
to
eliminate applications of candidates who do not comply with the
minimum requirements for the post as reflected in the
advertisement.
At
the sifting stage “Trade Union parties to the council” have to
be given a full report at a formal meeting of who were eliminated
and who made it to the shortlisting stage
4
.
The
Education institution then establishes an Interview Committee. The
Committee shall comprise of
5
:
One
departmental representative (who may be the school principal), as
an observer and a human resource official;
The
school principal (if he/she is not the departmental
representative). Such a principal is obviously disqualified to
fulfill
these tasks if he/she is a candidate;
Members
of the SGB, excluding an educator member who is an applicant;
One
Union representative per union that is a party to the provincial
chamber of the
Education
Labour Relations Council
(“ELRC”). These union representatives shall be observers of
the process of shortlisting of interviews and the drawing
up of a
preference list.
The
Interview Committee shall appoint a chairperson and a secretary
from amongst its members;
All
the applications that meet the minimum requirements and provisions
of the advertisement will be handed over to the SGB of
the
affected school;
It
is the obligation of the SGB to convene the Interview Committee
and ensure that all relevant persons and organizations are
notified at least 5 (five) working days prior to the date, time
and venue of the shortlisting, interviews and drawing up of
the
preference list.
The
Interview Committee may conduct the shortlisting according to the
following guidelines:
The
criteria used must be fair, non-discriminatory and in keeping
with the Constitution;
The
particular needs of the school must be had regard to;
The
obligation of the Department towards the serving educators must
be taken into account; and
The
list of shortlisted candidates for interview purposes should not
exceed 5 (five) candidates per post.
The
interviews shall then be conducted according to agreed guidelines.
These guidelines are to be jointly agreed upon by the
parties to
the provincial chamber.
The
SGB must then submit their recommendation to the HOD in their
order of preference.
PAM
requires that before the HOD make his final decision he must be
satisfied that the agreed procedures were followed and the
decision is in compliance with the Employment Act, the
Schools
Act
, and the Labour
Relations Act, Act 66 of 1995 (“the LRA”)
6
.
LEGISLATIVE
FRAMEWORK
It
is not in dispute that the Department and the SGB followed the
procedure prescribed, at least up to the stage when their
recommendation
was rejected by the HOD. What poses a problem is the
substantive compliance. The relevant legislative framework
provisions deserve
reference for better understanding of the issues:
Sections
6 and 7 of the Employment Act at the relevant time stipulated that
7
:
“
6
Powers
of employers
(1)
Subject to the provisions of this section,
the
appointment of any person
,
or the promotion or transfer of any educator-
(a) in
the service of the Department of Education shall be made by the
Director-General; or
(b) in
the service of a provincial department of education
shall
be made by the Head of Department
.
(2)
Subject to the provisions of this Chapter, the Labour Relations Act
or any collective agreement concluded by the Education Labour
Relations Council, appointments in, and promotions or transfers to,
posts on any educator establishment under this Act shall be made
in
accordance with such procedure and such requirements as the Minister
may determine.
(3)
(a) Subject to paragraph (d), any appointment, promotion or transfer
to any post on the educator establishment of a public school
or a
further education and training institution, may only be made on the
recommendation of the governing body of the public school
or the
council of the further education and training institution, as the
case may be, and, if there are educators in the provincial
department
of education concerned who are in excess of the educator
establishment of a public school or further education and training
institution 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.
(b)
The
Head of Department may only decline the recommendation of the
governing body of the public school
or
the council of the further education and training institution,
if
-
(i) any
procedure collectively agreed upon or determined by the Minister for
appointment, promotion or transfer has not been followed;
(ii) the
candidates does not comply with any requirements collectively agreed
upon or determined by the Minister for the appointment,
promotion or
transfer;
(iii) The
candidate is not registered, or does not qualify for registration, as
an educator with the South African Council of Educators;
(iv) sufficient
proof exists that the recommendation of the said governing body or
council, as the case may be, was based on undue
influence; or
(v)
The
recommendation of the said governing body council, as the case may
be, did not have regard to the democratic values and principles
referred to in section 7(1).
(c)
If the Head of Department declines a recommendation in terms of
paragraph (b),
the
governing body or council concerned shall make another recommendation
in accordance with paragraph (a), for consideration by the
Head of
Department.
(d) A
recommendation contemplated in paragraph (a)
shall
be made within two months form the date on which a governing body or
council was requested to make a recommendation, failing
which the
Head of Department may make an appointment without such
recommendation.
(e) Until
the relevant governing body or council, is established, the
appointment, promotion or transfer in a temporary capacity to
any
post on the educator establishment must be made by the Head of
Department where a-
(i) new
public school is established in terms of the
South African Schools
Act, 1996
, and any applicable provincial law;
(ii) new
further education and training institution is established in terms of
the Further Education and Training Act, 1998, and any
applicable
provincial law; or
(iii) new
public adult learning centre is established in terms of the
Adult
Basic Education and Training Act, 2000
, and any applicable provincial
law.”
“
7.
Appointments and filling of posts
(1)
In the making of any appointment or the filling of any post on any
educator establishment under this
Act
due regard shall be had to equality, equity and the other democratic
values and principles which are contemplated in section 195
(1) of
the Constitution of the
Republic of South Africa, 1996 (Act 108 of 1996), and
which
include
the following factors, namely-
(a)
the
ability of the candidate; and
(b)
the
need to redress the imbalances of the past in order to achieve broad
representation.
(2)
A person may be appointed under this Chapter-
(a) in
a permanent capacity, whether on probation or not;
(b) in
a temporary capacity for a fixed period, whether in a full-time, in a
part-time or in a shared capacity; or
(c) on
special contract for a fixed period or for a particular assignment,
whether in a full-time or in a part-time capacity.”
(My
underlining).
Section
195(1) of the
Constitution
Act 108 of 1996(“the Constitution”)
decrees that:
“
(1)
Public administration must be governed by the democratic values and
principles enshrined in the Constitution, including the following
principles:
(a) A
high standard of professional ethics must be promoted and maintained.
(b) Efficient,
economic and effective use of resources must be promoted.
(c) Public
administration must be development-oriented.
(d) Services
must be provided impartially, fairly, equitably and without bias.
(e) People's
needs must be responded to, and the public must be encouraged to
participate in policy-making.
(f) Public
administration must be accountable.
(g) Transparency
must be fostered by providing the public with timely, accessible and
accurate information.
(h) Good
human-resource management and career-development practices, to
maximise human potential, must be cultivated.
(i)
Public
administration must be broadly representative of the South African
people, with employment and personnel management practices
based on
ability, objectivity, fairness, and the need to redress the
imbalances of the past to achieve broad representation.”
(My
underlining).
THE ISSUES
The
main issues to be decided are whether the applicants are entitled to
the order to have the decision of the HOD dated 5 December
2005
declining to appoint Mr Steenkamp reviewed as well as the decision
of 10 May 2006 by the HOD appointing Mr Paulus as principal
of the
first applicant with effect from 1
st
June 2006.
The
applicants bear the onus to establish that there are grounds on
which this court should review the decisions of the HOD. There
is
no onus on the body whose conduct is the subject of review to
justify its conduct
8
.
The
authority of the court to review a decision of a functionary was
authoritatively stated by the Constitutional Court in Bato
Star
Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism
and Others
9
as follows
.
“
In
Pharmaceutical
Manufacturers
Association of SA and Another
:
In
re
Ex
parte President of the Republic of South Africa and Others
,
the question of the relationship between the common-law grounds of
review and the Constitution was considered by this Court. A
unanimous court held that under our new constitutional order the
control or public power is always a constitutional matter. There
are
no two systems of law regulating administrative action-the common law
and the Constitution- but only one system of law grounded
in the
Constitution. The courts’ power to review administrative action no
longer flows directly from the common law but from PAJA
and the
Constitution itself. The grundnorm of administrative law is now to
be found in the first place not in the doctrine of ultra
vires, nor
in the doctrine of parliamentary sovereignty, not in the common law
itself, but in the principles of our Constitution.
The common law
informs the provisions of PAJA and the Constitution, and derives its
force from the latter. The extent to which
the common law remains
relevant to administrative review will have to be developed on a
case-by case basis as the courts interpret
and apply the provisions
of PAJA and the Constitution.”
The
grounds upon which administrative action may be judicially reviewed
are listed in section 6 of Promotion of Administrative Justice
Act 3
of 2000(“PAJA”)
10
.
The Grounds of
Review
The
grounds of review relied upon by the applicants are set out in
paragraph 51 of the founding affidavit by
Christoffel
Johannes Van Vuuren
.
These are:
that
the HOD erred in finding that regard was not had to Sec 7(1) of the
Employment Act, as well as sec. 195(1) of the Constitution.
That
there was no basis for the HOD to decline the appointment of
Steenkamp in terms of sec. 6(3)(b),(v) of the Employment Act;
That
the HOD erred in his approach that white candidates from outside
the Northern Cape Province are not suitable for appointment
in that
this is an irrelevant factor and ignored a factor that is relevant
which is the ability of the candidate.
That
the HOD erred in concluding that there is no proof that Steenkamp
contributed towards transformation.
That
the HOD erred in taking the statistics into consideration without
appreciating that during the past few years, no so-called
previously disadvantaged individuals applied for appointment.
17. Van Vuuren
concludes, in somewhat wide terms, with a catch all phrase that
taking into account all factors set out above the HOD’s
decision is
reviewable and should be set aside on one or more of the grounds
listed in sections 6(2)(a)(iii), 6(2)(b), 6(2)(c); 6
(2)(d),
6(2)(e)(i), (ii) (iii) and (vi), 6 (1)(f)(i), (ii) (aa)-(dd) en 6(h)
of PAJA.
THE PARTIES’
ARGUMENT
18.
Adv.
Heunis SC
, who appeared
on behalf of the applicants, argued inter alia, that the HOD’s
conduct fails to pass muster at the first level of
enquiry, i.e. if
it is measured against the clear and unambiguous wording of the main
Act which provides that he may only decline
the recommendation of the
SGB if the recommendation “did not have regard to the democratic
values and principles referred to in
section 7(1)”. Secondly the
HOD, he argued, has disavowed the scores which the various candidates
obtained which action makes
his decision to be tainted and liable to
be set aside. Thirdly, the HOD grossly underestimated the
requirements concerning the ability
or inability of a candidate.
19.
Adv.
Dansfuss SC
, who appeared
on behalf of the respondents, raised both technical and substantive
defences. Firstly, he argued that the applicants
have not complied
with the provisions of sec. 6(3)(c) of the Employment Act. The SGB
failed to make another recommendation after
the HOD declined its
recommendation. Secondly, that the SGB in form NCK2 only recommended
one person although it referred to three
names in the form. Thirdly,
that it is abundantly clear from the papers that no attention was
paid in the process to redressing
the imbalances or to archieve broad
representation. As a result the recommendation and the process which
preceded it does absolutely
nothing to redress the imbalances of the
past in order to achieve broad representation in the school staff
establishment for compliance
with sec. 7(1) of the Employment Act as
well as sec.195(1) of the Constitution. The HOD therefore, he
argued, was justified in declining
the recommendation, and was
entitled to make an appointment in terms of sec.6 (3)(d) of the
Employment Act without any recommendation,
and that the appointment
was in any case justified in terms of sec. 7 of the Employment Act.
ANALYSIS
20. It is common cause
on the papers and as confirmed during argument, that other than the
technical points raised, all the formal
steps and requirements listed
in paragraph 10 above, were properly complied with by the first
Respondent, the Second Applicant and
its interviewing committee. It
is further common cause that the Department as well as Union
representatives were part of the process,
playing their respective
roles as required by the agreed procedures set out above. None of
the parties or interested person(s) raised
any objection of whatever
nature when a recommendation to the SGB was made by the interviewing
Committee. The process followed by
the SGB in considering the
recommendation of the interviewing Committee and finally making a
recommendation to the HOD was not challenged
or queried.
21. It is not in
dispute that the points allocation yielded the following results: PR
Steenkamp 83.9, D Joubert- 77.9, LE Van Below
62.6, C M Van Zyl
60.31, DP Jason 57.5 SP Paulus 53.61. These points explain why they
were ranked one up to six and why the second
Respondent became the
preferred candidate of the SGB.
22. In declining the
recommendation of the SGB the HOD in a letter dated 5 December 2005
gave the SGB the following summarized reasons:
That
they only paid lip service to the democratic values and principles
mentioned in sec. 7(1);
22.2 Referred them to
the Kimberley Girls High School judgment and the fact that what is
called for is more than a mechanical allocation
of points and a mere
say-so that regard has been had to the democratic values and
principles;
22.3 That none of the
candidates referred to in NCK 2 form were employed by him;
22.4 That there is no
evidence that the second respondent has made a contribution to
transformation;
22.5 That he (HOD) owes
his employees a duty in terms of sec. 195 of the Constitution;
22.6 That too much
emphasis was placed on the ability of the second respondent at the
expense of an equally important requirement
that appointments also
redress the imbalances of the past. This is of great importance when
regard is had to the fact that all but
one(at that stage) educator at
the school are white.
That
there is a striking imbalance in the demographics at the school and
in the province.
23. The HOD thereafter
concluded by stating that the reasons advanced by the SGB for their
recommendation have not satisfied him that
sufficient regard to the
democratic values and principles referred to in sec. 7(1) as required
by sec. 6(3) (b)(v) of the Employment
Act and referred the matter
back to the SGB for it to make another recommendation in terms of
sec. 6(3)(c).
24. It
is not disputed that there were various attempts to have a meeting
between the representatives of the SGB, the member of the
Executive
Council(“MEC”) responsible for Education in the province and the
first respondent. Not all these attempts, for reasons
that are not
entirely relevant for the purposes of this matter, were successful.
It is however, common cause that Van Vuuren wrote
a letter marked
Annexure ‘L’ addressed to the HOD in which they fully motivate
their desire for the appointment of the second
Respondent as
principal. The record revealed that a letter dated 4 May 2006
written by C Kgotlaemang Head: Legal Services advised
that the SGB
has
“failed, neglected
or refused to make another recommendation as contemplated in
sec.
6(3)(c)
of the
Employment of Educators Act, consequently
the Head of
Department may make an appointment without such a recommendation as
prescribed by
section 6(3)(d)
of the afore-mentioned Act. In the
light hereof you may proceed with the appointment of Mr S P Paulus.”
In a letter dated 10 May
2006 Paulus was then appointed as principal with effect from 1 July
2006.
25. It
is appropriate at this stage to deal with the issue relating to
failure to exhaust the internal remedies raised by the HOD.
I say
this because should the respondent succeed on this aspect it may
potentially bring the matter to an end. The thrust of Mr
Danzfuss’
argument is that the provisions of sec. 6(3)(c) of the Employment Act
are peremptory that once the HOD declines a recommendation
the SGB
has to make another recommendation within two months, failing which
the HOD may make an appointment without such a recommendation.
This
argument is indeed correct. However, he contended that annexure ‘L’
does not constitute another recommendation because
in annexure ‘L’
a different person, other than Steenkamp is not recommended. The
applicants were insisting on the appointment
of Steenkamp. He
referred us to Concise Oxford English Dictionary p.54 where the word
‘another’ is defined as “
one
more; a further. 2. used to refer to a different person or thing from
one already referred to.”
I
am not of the view that this argument is entirely correct. The
section does not say the SGB should recommend another person. It
merely refers to another recommendation. Nothing in my view
precludes the SGB from recommending the same person if they feel
strong
about such a person based on sound reasons and having followed
proper procedures. Mr Danzfuss’s concession in this regard is in
my view well considered.
26. This brings me to
the second leg of the argument relating to another recommendation.
In this regard the argument was that the
procedure set out in PAM
includes a process of shortlisting and interviewing of candidates.
When the SGB has to make ‘another’
recommendation so goes the
argument, it had to follow the entire process i.e repeating the
entire process that brought about the
first recommendation. Because
it is not the applicants case that they repeated the process, the
recommendation if any does not comply
with sec. 6(3)(d) of the
Employment Act. Once again I am not of the view that this argument
holds any water. Annexure ‘L’ on
the face of it supports the
applicants’ contention that the SGB met and considered the
candidates as well as the recommendation
made by the interviewing
committee once again. They also considered the objections raised by
the HOD and concluded that Steenkamp
remained their choice. To
suggest that the entire process should be repeated in the absence of
an express term being provided in
the PAM or elsewhere would be
cumbersome. The interviewing committee is merely to assist the SGB
and the SGB is the body which
is entrusted with the authority to make
a recommendation.
27. However, I must
state that the HOD’s argument that there is a possibility that a
further meeting was not held is not far-fetched.
It is indeed
correct as he contends that in the founding affidavit no mention
whatsoever was made of the meeting of 1 February
2006. At that
stage, the SGB had already been requested to make another
recommendation in the letter dated 5 December 2005, as well
as in a
letter dated 1 February 2006. In the latter letter the HOD expressly
advised the chairperson of the SGB that he will be
left with no
option but to invoke the provisions of sec. 6(3)(d) of the Employment
Act. Subsequent to that, in the first opposing
affidavit the HOD
raised the contention that the applicants have failed to make another
recommendation. Furthermore, Annexure ‘L’
which contains
‘another recommendation’ does not refer to the meeting of 1
February 2006 at all. It was only in the supplementary
founding
affidavit filed on 8 August 2006 for the first time reference is made
to the meeting of 1 February 2006. The reasons advanced
for this
initial omission is that seeing that Van Vuuren had just relocated
when he deposed to the founding affidavit he could not
trace the
minutes timeously and he only later in the process traced the
minutes. Although this explanation is not entirely convincing,
we
are faced with the reality that a document purporting to be the
minutes of that meeting has been filed. The respondents on their
own
actions, managed to independently obtain a copy of these minutes from
the present Acting Principal of the school. In the absence
of any
evidence to the contrary, I cannot find that the meeting did not take
place. At best for the respondent, the argument may
be that the
applicants did not during the inception of the proceedings disclose
their case fully and was mainly made out in the supplementary
founding affidavit. This aspect however, will also depend on the
findings regarding the decision of the HOD to decline the first
recommendation.
28. It is now clear
that the HOD when appointing Paulus acted in terms of sec 6(3)(d) of
the Employment Act. He was acting on the
advice of C Kgothaemang
that the SGB failed or neglected to make another recommendation.
Logic therefore dictates that he did not
take into account the
contents of Annexure L. The procedure that was followed to appoint
was therefore incorrect. On this basis
the decision was irregularly
made and should be reviewed and set aside.
29. Once the decision
to appoint Paulus is set aside we are left with the decision
declining the initial recommendation together with
another
recommendation by the SGB. The option available is to refer the
matter back to the HOD to make a decision taking into account
the
recommendation of the SGB. This option is in my view not a proper
one under the circumstances. Firstly, the applicants are
also
challenging the decision declining the recommendation, and the
respondents have already given reasons why the recommendation
was
declined. Secondly the matter was fully argued and need to be
decided. Lastly it will not be in the best interests of the parties
as well as the children at the school to cause any further delay. I
say so because the HOD may arrive at the same conclusion and
the
applicants will be forced to take the second decision on review based
on the same set of facts and argument. I now proceed to
consider the
decision declining the recommendation.
30. The
argument raised on behalf of the applicants is that the Employment
Act does not permit the HOD to decline a recommendation
if the SGB,
in his view, did not have sufficient regard to the democratic values
and principles referred to in section 7(1). It
was submitted that it
only mandates that if the governing body did not have ‘any’
regard to the democratic values and principles
referred to in section
7(1). I am not of the view that this submission is correct. If that
was the case, it would mean that the
HOD is merely a rubber stamp and
not a meaningful employer of educators in the province
11
.
In my view the HOD should independently and objectively ascertain
whether a recommendation indeed has regard to the democratic
values
and principles referred to in sec 7(1). It is the statutory duty of
the HOD in making appointments in terms of sec 7(1) to
have due
regard to the factors listed, including sec 195(1) of the
Constitution. He cannot leave it only to the SGB to have due
regard
without himself being satisfied. These regards will depend on the
circumstances of each case. To expect the SGB to comply
on its own
with all the values contained in sec 195(1) of the Constitution will
be to place a heavy burden on it as the information
relevant is not
within its domain. The HOD as the employer is in my view correctly
suited to satisfy these requirements. The information
and
considerations necessary for some of the values is not necessarily
limited to the operational scope of the SGB, which is within
the
first Respondent. It will therefore depend on the circumstances of
each case.
31. The
point is correctly summarised by Mr Danzfuss, that the HOD must in
the first place decide whether the recommendation did have
regard to
these values, and in the second place in terms of sec 7(1) he may
only appoint if in the making of the appointment due
regard shall be
had to equality, equity and the other democratic values and
principles
12
.
32. The
main reason advanced by the HOD for declining the recommendation
relates to the democratic values and principles
13
.
Of these values it was not the respondents’ case on the papers or
during argument that the requirements of equality and equity
are in
issue. As I understood the argument it was contended that the SGB
placed too much emphasis on the ability of Steenkamp at
the expense
of an (equally) important requirement that appointments also redress
the imbalance of the past. In the letter dated
5 December 2005 the
HOD states inter alia:
“I
also cannot help noticing that you have placed to much emphasis on
the ability of Mr Steenkamp, that at the expense of an equally
important requirement that appointments also redress the imbalances
of the past. This is particularly poignant in your case when
regard
is had to the fact that all but one state-employed educators at your
school are white. This undue emphasis on the ability
that has been
subjectively determined by the interview process does absolutely
nothing to redress this striking imbalance. Mr Steenkamp’s
transformation credentials will not assist the elimination of this
gap.”
33. Mr
Danzfuss contended that the second applicant followed the process of
allocation of points based on the abilities and characteristics
of
the candidates. By so doing, goes the argument, the SGB claims to
have complied with the duty to have due regard to equality,
equity
and the other democratic values and principles contemplated in
section 195(1) of the Constitution and section 7(1) of the
Employment
Act. They only made provision by allocating 3 points additional for a
candidate from a previously disadvantaged group.
He submitted that
this can never be compliance with either section 7(1) of the
Employment Act or section 195(1) of the Constitution.
Basing his
argument in the
Kimberley
Girls’ High
judgment
14
he submitted that the SGB completely missed the point that when the
opportunity arises to correct the imbalances of the past by filling
a
post left vacant by a resignation, a concerted effort should be made
(and importantly, should clearly be seen to be made) to comply
with
the obligations imposed on a school governing body by section
6(3)(b)(v) of the Employment Act.
34. The
facts of this case however do not entirely support this submission.
Mr Van Vuuren in his affidavit states that they could
not access any
help or guidance from the department to enable them to fully comply
with the democratic values set out in sec.7 of
the Employment Act.
He avers that the district manager who was present was specifically
asked as to what the SGB could possibly
do to give effect to
transformation in a fair and just manner. He was not in a position
to assist. He states further that during
the shortlisting session he
asked the two departmental representatives present for guidance and
they also were not in a position
to assist. All these averments are
not disputed. The SGB therefore in the absence of any guidance on
its own devised a means of
allocation of points. The respondent has
confirmed that there is no formula in existence to be followed by
schools and that the
decision is a value judgment based on all the
relevant facts and considerations keeping in mind not only the
interests of the specific
school but the interests of education and
training in the entire process.
35. It is therefore not
entirely correct that no attempt was made to comply with the
democratic values provided for in sec 7 of the
Employment Act. The
question can rather be was this sufficient. Of course it cannot.
However, the SGB should not be blamed if
the departmental
representatives who were part of the process failed to provide
guidance and leadership. These officials themselves
did not raise
any query or problem during the process. Neither did they give any
negative report to the HOD about the process.
The situation at
Hartswater High is, to say the least, alarming. As the respondent
has shown, during the year 2005, 59.5% of the
learners at this school
were black and at present there is not even one black educator at the
school. This situation is unacceptable
given the unenviable
historical background of this country.
36. Mr
Heunis, argued that in the context of appointment of educators,
transformation is not primary. It ranks, at best, with the
other
considerations to which section 7 refers. In my view, the
circumstances of a particular institution should dictate the weight
to be attached to a particular value, also taking into account the
interests of the learners which are paramount in all matters
affecting
the rights of children
15
.
The same would apply to the question whether the provisions of Sec.
7(1)(b) dictate that a candidate from a previously disadvantaged
community ought to be preferred in cases where the evaluation of such
candidate and a competitor from a previously privileged group
leads
to a comparative parity in the assessment of their suitability for
the post
16
.
This cannot be a rigid rule and should depend on the circumstances
of each case. A number of factors, some of which may be historical,
would play a role. Such approach may in some instances go against
the spirit and the values contained in the constitution.
37. In
this case I am of the view that the decision declining the
recommendation is reviewable. The SGB did what it could under the
circumstances to comply with the imperatives prescribed in section
7(1) of the Employment Act. It may not be enough. However, the
issue is that on the facts of this case they received no assistance
from the Department. To find otherwise would be unfair, not
only to
Steenkamp but to the learners at the school. In
Stoman v
Minister
of Safety and Security and Others
17
,
Van der Westhuizen J correctly said the following:
“In
order to honour constitutional ideals and values, and to strive to
truly move towards the achievement of substantive equality,
proper
plans and programs must be designed and put into place. Mere random
and haphazard discrimination would achieve very little,
if anything,
and might be counter-productive.”
38. In
the light of the view I take, it is therefore not necessary to decide
suitability or otherwise of Paulus in the light of the
additional
information obtained by the SGB regarding his creditworthiness. On
the facts, Steenkamp is by far well suited for appointment
regard
being had to the process that was followed. The applicants are, in
my view, entitled to the relief they seek. As a general
rule, a
court will not substitute its own decision for that of the public
authority, but will refer the matter back for a fresh decision.
One
must guard against an unwarranted usurpation of the powers entrusted
to the public authority by the legislature
18
.
COSTS
39. Mr
Heunis argued that the first respondent must bear a heavy burden of
public approbrium for his conduct and that approbrium should
be
reflected in the special costs order
19
.
I see no reason why I should make such a special order. One should
also bear in mind, my remarks relating to failure by the applicants
to disclose timeously the existence of the meeting held in order to
make another recommendation in their founding affidavit, and
the fact
that the minutes thereof were available. Their conduct has
contributed to the respondent’s sceptical challenge of the
existence of the meeting. An ordinary order of costs will under the
circumstances be appropriate.
ORDER
In
the result I make the following order:
The
decision by the HOD enbodied in a letter dated 5 December 2005
rejecting the SGB’s recommendation that Paul Roux Steenkamp
be
appointed principal of Hartswater High is hereby reviewed and set
aside.
The
decision by the HOD incorporated in a letter dated 10 May 2006 in
terms whereof Stephen Phillip Paulus is appointed principal
of
Hartswater High with effect from 1
st
June 2006 is hereby reviewed and set aside.
The
matter is referred back to the HOD to make the appointment as per
the recommendation of the Second Applicant.
Should
the HOD fail to appoint as per order 3 above, the applicants are
granted leave on the same papers, supplemented if need be,
to
approach this court for appropriate relief.
The
First Respondent is ordered to pay the costs of this application.
___________________
L
P TLALETSI
JUDGE
OF THE HIGH COURT
NORTHERN
CAPE DIVISION
I
concur:
________________________
B
C MOLWANTWA
ACTING
JUDGE OF THE HIGH COURT
NORTHERN
CAPE DIVISION
For
the Applicant: Adv J C Heunis SC
Instructed
by: Duncan & Rothman
For
the Respondents: Adv F W A Danzfuss SC
Instructed
by: Haarhoffs Inc.
1
See
:
Douglas Hoërskool v Premier Noord-Kaap en Andere
1999(4) SA 1131 (NC) at 1138H – 1139F;
Kimberley
Girls High School and Another v Head of Department of Education,
Northern Cape Province and Others
[2005]
1 All SA 360
(NC) at 362b-c.
2
Section
6 of the Act has now been amended by EDUCATIONAL LAWS AMENDMENT ACT
24 of 2005. The relevant preamble states that ‘to
amend the
Employment of Educators Act 1998
, so as to provide for the
refinement of the process of the appointment of educators. Section
7 of the Amendment Act amends section
6 of the Act by substituting
subsections (3).
3
PAM
Chapter B paragraph 3.1.
4
PAM
Chapter B paragraph 3.2.
5
PAM
Chapter B paragraph 3.3.
6
PAM
Chapter B paragraph 3.4.
7
PAM
Chapter B paragraph 3.1.
8
See:
Darlies
v Chairman, Committee of the Johannesburg stock Exhange
1991(4) SA 43(W) at 47H,
Kimberley
Girls High School and Another v The head of Department of Education,
Northern Cape Province and two Others
[2005] 1 ALL SA 360(NC)
at 364 d-e and JR de Ville
“Judicial
Review of Administrative Action in South Africa”
Lexisnexus Butterworths p313-315.
9
2004(7)
BCLR 687(CC) at 702-703; 2004(4) SA 490(CC) at 504f-505b.
10
Sec
9(2) reads: A court or tribunal has the power to judicially review
an administrative action if-
(a) the
administrator who took it-
(i) was
not authorised to do so by the empowering provision;
(ii) acted
under a delegation of power which was not authorised by the
empowering provision; or
(iii) was
biased or reasonably suspected of bias;
(b) a
mandatory and material procedure or condition prescribed by an
empowering provision was not complied with;
(c) the
action was procedurally unfair;
(d) the
action was materially influenced by an error of law;
(e) the
action was taken-
(i) for
a reason not authorised by the empowering provision;
(ii) for
an ulterior purpose or motive;
(iii) because
irrelevant considerations were taken into account or relevant
considerations were not considered;
(iv) because
of the unauthorised or unwarranted dictates of another person or
body;
(v) in
bad faith; or
(vi) arbitrarily
or capriciously;
(f) the
action itself-
(i) contravenes
a law or is not authorised by the empowering provision; or
(ii) is
not rationally connected to-
(aa) the
purpose for which it was taken;
(bb) the
purpose of the empowering provision;
(cc) the
information before the administrator; or
(dd) the
reasons given for it by the administrator;
(g) the
action concerned consists of a failure to take a decision;
(h) the
exercise of the power or the performance of the function authorised
by the empowering provision, in pursuance of which
the
administrative action was purportedly taken, is so unreasonable that
no reasonable person could have so exercised the power
or performed
the function; or
(i) the
action is otherwise unconstitutional or unlawful.
11
See
Seodin Primary School v MEC of Education, Northern Cape and Others
[2006] 1 ALL SA 154(NC)
at 184h-I Federation of the Schools
Governing Bodies of South Africa: Northern Cape & Others v The
Head of Department of Education:
Northern Cape & Others case
no:1246/03(unreported).
12
Kimberley
Girls High case (supra) at 258(par.15).
13
In
the letter dated 5 December 2005 he states that “The reasons that
you have advanced for your recommendation have not satisfied
me that
you had sufficient regard to the democratic values and principles
referred to in section 7(1) as required by section 6(3)(b)(v)
of the
Act.”
14
Ibid
at 262 D
15
See
sec. 28(2) of the Contitution.
16
c/f
Settlers Agricultural High School & Another v Head of
Department: Department of Education, Limpopo Province & Others
[2002]JOL 10167(T) AT p21.
17
2002(3)
SA 468(TPD) at 480 C-D. See also Public Servants Association of
South Africa and others v Minister of Justice 1997(3) SA
925(T).
18
See:
Bél Poto School Governing Body Premier, Western Cape
[2002] ZACC 2
;
2002 (3) SA
265
(CC) at 292; Bato Star fishing (Pty) Ltd v Minister of
Eviromental Affairs and Tourism and others
[2004] ZACC 15
;
2004 (4) SA 490
(CC)
514G-B (2004(7) BCLR 687 (CC).
19
See:
Governing Body, Mikro Primary School and Another v Minister of
Education, Western Cape, and Others 2005(3) SA 504(C).