Governing Body of Bopasetjaba and Other v Premier of the Free State Province and Others (2238/2003_) [2005] ZAFSHC 77; ; (17 March 2005)

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[2005] ZAFSHC 77
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Governing Body of Bopasetjaba and Other v Premier of the Free State Province and Others (2238/2003_) [2005] ZAFSHC 77; ; (17 March 2005)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case No. : 2238/2003
In
the matter between:
THE
GOVERNING BODY OF BOPASETJHABA
1
st
Applicant
RICHARD
ALAN MAGAU
2
nd
Applicant
DANIEL
MOLEJANE
3
rd
Applicant
SIMON
NKOE
4
th
Applicant
MOLATLHEGI
WILLIAM DITLHAKANYANE
5
th
Applicant
GONEEMANG
MAGDELINE GIBSON
6
th
Applicant
JOSEPH
PHUTHA
7
th
Applicant
CHRISTINA
MATLA
8
th
Applicant
MOSENYEHI
LETHOPO
9
th
Applicant
SYLVIA
MAHLANKU - TU
10
th
Applicant
and
THE
PREMIER OF THE FREE STATE
1
st
Respondent
PROVINCE
MEMBER
OF THE EXECUTIVE COUNCIL
2
nd
Respondent
FOR
EDUCATION, FREE STATE PROVINCE
THE
HEAD OF EDUCATION, FREE STATE
3
rd
Respondent
PROVINCE
_____________________________________________________
CORAM:
VAN
COPPENHAGEN J
et
WRIGHT
J
JUDGMENT:
VAN
COPPENHAGEN J
et
WRIGHT
J
_____________________________________________________
HEARD ON:
7
MARCH 2005
DELIVERED ON:
17
MARCH 2005
[1] In the notice of
motion the applicants move for an order in the following terms:
“
1. The
decision of the first,
alternatively
the second,
alternatively
,
the third respondents determining not to erect school buildings for
the Bopasetjhaba Primary School is reviewed and set aside.
2.
2.1 The respondents are ordered to
take all such actions as may be necessary to erect the buildings in
the current financial year,
alternatively
the 2004/5 financial year.
ALTERNATIVELY
2.2 The respondents are ordered to
grant the applicant a hearing on all relevant issues in regard to any
decision not to erect buildings
for the Bopasetjhaba Primary School.
3.
3.1 It is declared that the
Bopasetjhaba Primary School is not closed, merged or amalgamated,
alternatively
has not been lawfully closed, merged or amalgamated.
3.2 The
decision to close, merge or amalgamate the Bopasetjhaba Primary
School is reviewed and set aside
4. The decision to withdraw the
functions of the first applicant is reviewed and set aside.
5. Such
of the respondents as oppose the relief sought are ordered, jointly
and severally the one paying the other to be absolved,
to pay the
applicant’s costs of this application.”
[2] The respondents in
their opposing affidavit deposed to by one T.N.T. Lioma duly
authorised to do so, conceded the relief claimed
in paragraphs 3 and
4 of the notice of motion. No concession was made regarding costs
which issue remains alive.
[3] The facts relevant,
which are mostly common cause and on which the matter must be
adjudicated, are uncomplicated. (cf.
NGQUMBA
EN ‘N ANDER/DAMONS NO EN ANDERE/JOOSTE v STAATSPRESIDENT EN ANDERE
1988 (4) SA 224
(AA) at 259 C – 261 H)
[4] Bopasetjhaba Primary
School in Tumahole (Bopasetjhaba) is a primary school as contemplated
in section 1 of the Free State Schools
Education Act, Act 2/2000.
First applicant is the
governing body of Bopasetjhaba.
For a variety of reasons,
the most obvious being a shortage of accommodation, Bopasetjhaba was
platooned (the sharing of the same
facilities albeit during different
periods per day by different schools) with another school to wit
Lembede Primary School. Since
2001, the classes of the two schools
have simply sat together, leading to classes, in some instances, of
over fifty learners. To
overcome the untenable situation occasioned
by the platooning, the Free State Department of Education over a
period of at least a
year made repeated and numerous representations
to first respondent and other interested parties that a new school
with
inter
alia
twenty classrooms would be erected for Bopasetjhaba. In fact, by
January 2002 the Free State Education Department had decided, and
so
advised first applicant, to erect buildings for Bopasetjhaba and that
construction should commence by March 2003.
However, in a letter by
the Member of the Executive Council, i.e. second respondent, dated
the 12
th
March 2003, to the Premier of the Free State, i.e first respondent,
it was advised that “the process of merging the school with
Lembede
Primary School has been successfully completed”.
Shortly thereafter, it is
during April 2003, first applicant was advised that it was
“withdrawn” and that seventh applicant was
suspended as principal
of the school.
Subsequent to the service
of the application the “withdrawal” of first applicant and the
suspension of seventh applicant were
revoked.
[5] The only issue
remaining is respondents’ decision not to erect buildings for
Bopasetjhaba.
Applicant
contends that the unilateral decision not to erect the buildings
should be construed as an “administrative action”.
So construed,
applicant submits that it should at the very least have been afforded
the opportunity to be heard before the decision
was taken.
[6] Respondent contends
that a decision to erect school buildings is the prerogative of the
second respondent and the decision not
to erect school buildings
likewise. In exercising the prerogative, so respondents contend, a
policy, commercial and financial decision
was made which was not
susceptible to judicial review either under the common law or the
provisions of the Promotion of Administrative
Justice Act, Act
3/2002.
As rationale for the
change in policy respondents refer to the decline in the number of
learners at Bopasetjhaba School, thus obviating
the need for the
construction of a new school with new buildings.
[7] To be judicially
reviewable in terms of section 33 of the Constitution, Act 108/1996
and section 3(1) of the Promotion of Administrative
Justice Act, Act
3/2002, the decision of respondents, particularly the second
respondent, not to erect buildings for Bopasetjhaba
School must
qualify as an “administrative action”. The definition of
administrative action in section 1 of Act 3/2002, (hereinafter
referred to as “the Act”) relevant to the issue under
consideration reads:
“’
Administrative action
’
means any decision taken, or any failure to take a decision, by –
an organ of state, when –
exercising a power in terms of the
Constitution or a provincial constitution or
exercising a public power or
performing a public function in terms of any legislation; or
a natural or juristic person, other
than an organ of state, when exercising a public power or performing
a public function in terms
of an empowering provision,
which adversely affects the rights of
any person and which has a direct, external legal effect, but does
not include - ……”
[8] Assuming, without so
deciding, that the Provincial Government can be obliged to make
schools available, it does not follow that
the Provincial Government
can be dictated to as to the size and type of facilities that must be
made available. The latter function
is the prerogative of the MEC
for Education (section 12(1) of South African Schools Act, Act
84/1996).
In
PERMANENT
SECRETARY OF THE DEPARTMENT OF EDUCATION, EASTERN CAPE v ED-U-COLLEGE
(P.E.) INC
[2000] ZACC 23
;
2001 (2) BCLR 118
(CC) at 130 paragraph 21 O’Regan J, in dealing
with the argument that the allocation of subsidies to a school by the
MEC should
not be considered and interpreted as administrative
action, held:
“
[21] In
the present case, section 48(2) of the Schools Act empowers the MEC
to grant subsidies to independent schools from money allocated
for
that purpose by the Legislature. Clearly, therefore, unless money is
allocated by the Legislature for this purpose, no subsidy
may be
granted. The principle of subsidy allocation to independent schools
is determined in the first instance by the Legislature.
Once it has
allocated money for independent schools, the MEC is then empowered to
determine the manner of how it is to be spent.
Although there are a
range of ways in which this power can be exercised, it must always be
exercised within the constraints of the
budget set by the
Legislature. Furthermore, it is not a power which the Legislature
would be suited to exercise. The determination
of which schools
should be afforded subsidies and the allocation of such subsidies are
primarily administrative tasks. The determination
of the precise
criteria or formulae for the grant of subsidies does contain an
aspect of policy formulation but it is policy formulation
in a narrow
rather than a broad sense. The decision apparently constitutes a
broad policy decision because it purports to determine
how the
allocated budget is to be distributed and not the amount to be given
to each school. However on closer scrutiny it is in
fact not so
broad because the MEC determines not only the formula but also in
effect the specific allocations to each school. This
case may be
close to the borderline. However I am persuaded that the source of
the power, being the Legislature, the constraints
upon its exercise,
and its scope point to the conclusion that the exercise of the
section 48(2) power constitutes administrative
action, not the
formulation of policy in the broad sense as suggested by the
applicants. This conclusion is consistent with the
decision of this
Court in
Premier,
Mpumalanga
referred to
above.”
The decision to have the
buildings erected for Bopasetjhaba School and the revocation of that
decision by the MEC, it is second respondent,
in
casu
,
cannot, as far as the status thereof is concerned, be differentiated
from the actions of the MEC in the dictum quoted above.
The decision by second
respondent not to erect a school building for Bopasetjhaba is clearly
or clearly constitutes an administrative
action as provided for and
contemplated in the Act.
[9] The aforegoing
conclusion is not an end in itself; the Constitution dictates that an
enquiry into the fairness of the procedure
adopted by the respondents
and the reasonableness and lawfulness of the action be undertaken.
[10] Applicants aver that
over a period extending from January 2001 to December 2002 in
particular second respondent and officials
of the Free State
Provincial Administration not only presented but confirmed the
promise that buildings would be erected for Bopasetjhaba
School.
These averments by applicants are fully confirmed by the undisputed
correspondence and records.
Applicants’ averments
that they subjectively held the expectation that the undertaking
would be honoured, were not disputed.
Adopting the approach by
Corbett C J in
ADMINISTRATOR,
TRANSVAAL, AND OTHERS v TRAUB AND OTHERS
[1989] ZASCA 90
;
1989 (4) SA 731
(AD) 756 who with apparent concurrence referred to
the speeches of Lord Fraser and Lord Roskill in
ATTORNEY
GENERAL OF HONG KONG v NG YUEN SHIU
[1983] UKPC 2
;
1983 (2) ALL ER 346
(PC) stating:
“
But
even where a person claiming some benefit or privilege has no legal
right to it, as a matter of private law, he may have a legitimate
expectation of receiving the benefit or privilege, and, if so, the
court will protect his expectation by judicial review as a matter
of
public law . . . . .Legitimate, or reasonable, expectation may arise
either from an express promise given on behalf of a public
authority
or from
the
existence of a regular practise which the claimant can reasonably
expect to continue
…….”
it must follow that in
view of the promises and representations made in this matter,
applicants could have had a legitimate expectation
that the buildings
would be erected for Bopasetjhaba School (or at the very least would
have the legitimate expectation that they
would be heard before a
decision to the contrary was taken). See
ADMINISTRATOR,
TRANSVAAL, AND OTHERS v TRAUB AND OTHERS
(
supra
)
at 758 F and, in general,
SOUTH
AFRICAN VETERINARY COUNCIL AND ANOTHER v SZYMANSKI
2003 (4) BCLR 378
(SCA)
[11] Mr. Gough, on behalf
of respondents, argued that before a legitimate expectation is
created, a right must be effected. He also
argued that a benefit or
privilege must have been obtained and that before a legitimate
expectation can arise the person in question
must have suffered
prejudice and that the decision maker must have acted to the person’s
detriment. The view that a right must
be affected (which was
evidently the view of Goldstone J in
MOKOENA
AND OTHERS v ADMINISTRATOR, TRANSVAAL
1988 (4) SA 912
(WLD)), was specifically disapproved by Corbett C J
in the
TRAUB
-case
where he came to the conclusion (on page 754 F) that the respondent’s
refusal to appoint the applicants did not effect an
existing right.
His views with regard to the correct understanding of a legitimate
expectation appear from the following paragraph
on page 758 D – F:
“
As
these cases and the quoted extracts from the judgments indicate, the
legitimate expectation doctrine is sometimes expressed in
terms of
some substantive benefit or advantage or privilege which the person
concerned could reasonably expect to acquire or retain
and which it
would be unfair to deny such person without prior consultation or a
prior hearing; and at other times in terms of a
legitimate
expectation to be accorded a hearing before some decision adverse to
the interests of the person concerned is taken..........
In
practice the two forms of expectation may be interrelated and even
tend to merge. Thus, the person concerned may have a legitimate
expectation that the decision by the public authority will be
favourable, or at least that before an adverse decision is taken he
will be given a fair hearing.”
Special emphasis must be
placed on the fact that the privilege or benefit is referred to which
could
be obtained (which is triggered by a regular practice or a specific
representation or promise as in the present application) and
to the
use of the word
and
before the words “which it would be unfair to deny such a person
without prior consultation or a prior hearing”. These
considerations
dispose of Mr. Gough’s submissions and confirm that
the consequences of a legitimate expectation are generally limited to
the implementation
of procedural fairness (as set out in the next
paragraph). Compare also the specific wording of the Act where
section 3 dealing
with “procedurally fair” administrative action,
specifically refers to legitimate expectations, in comparison with
say section
5 and certain other sections of the Act.
[12] Once a legitimate
expectation is established as
in
casu
,
procedural fairness in relation to administrative action that may
affect that expectation is a constitutional and legal imperative.

(Per O’Regan J in
PREMIER
OF MPUMALANGA AND ANOTHER v EXECUTIVE COMMISSIONER OF STATE-AIDED
SCHOOLS, EASTERN TRANSVAAL
1994 (1) BCLR 151
(CC) at 164 – 165 paragraph 36.)
[13] In the present
matter it is common cause that the decision not to erect the
buildings was taken unilaterally and without reference
to applicants.
“
Citizens are entitled to expect
that government policy will ordinarily not be altered in ways which
would threaten or harm their rights
or legitimate expectations
without their being given reasonable notice of the proposed change or
an opportunity to make representations
to the decision maker.”
Per O’Regan in
PREMIER
OF MPUMALANGA AND ANOTHER v EXECUTIVE COMMITTEE OF STATE-AIDED
SCHOOLS, EASTERN TRANSVAAL,
(
supra
)
at page 167 paragraph 41 – an opinion which we respectfully
endorse.
As appears from a
document dated 31 January 2003 emanating from second respondent’s
departments, it was foreseen that proper consultation
with the
shareholders had to take place before acceptance of the
recommendation not to proceed with the building of the school should
be implemented.
Applicants’
expectations were breached
in
casu
by
reason of not being afforded the opportunity to be heard.
[14] Advocate Campbell,
for applicants, confronted with the realities, i.e. the
impracticality or near impossibility of executing
of an order
enforcing the erection of buildings, conceded that the order as
prayed for cannot be justified.
He, however, asked that
the decision not to erect buildings for Bopasetjhaba School be
rescinded and set aside and that first and
second respondent with the
exclusion of officials in the Provincial Administration for the Free
State be ordered to consider the
erection of the buildings for
Bopasetjhaba School and in so doing to afford applicants’ the
opportunity to make representations
and to take into account
applicants’ legitimate expectation that buildings would be erected
for Bopasetjhaba School.
[15] The highhanded
conduct by at least third respondent to illegally “withdraw”
first applicant and illegally suspend seventh
applicant, merely
because they endeavoured to protect what they considered to be their
rights in a legitimate manner, i.e. requesting
intervention and/or
mediation by approaching first respondent, the Human Rights
Commission and ultimately obtaining legal representation,
is in my
opinion sufficient reason to doubt the objectivity and the
impartiality of second respondent or any of the officials of
the
Provincial Administration to adjudicate on the relevant issues. A
likelihood of prejudging the issue seems on probabilities
to be
possible.
[16] It
seems doubtful whether an order, as requested by Mr. Campbell (see
paragraph [14]), can be made in a case like the present
where the
applicant’s legitimate expectation can only entitle him to be heard
before the decision is made.
If we are wrong in this
respect, section 8(1)(c) of the Act specifically provides that the
reviewing court may only in exceptional
cases grant an order
“substituting or varying the administrative action or correcting a
defect resulting from the administrative
action”. The general
principle is set out as follows in
MASAMBA
v CHAIRPERSON, W CAPE REGIONAL COMMITTEE, IMMIGRANTS SELECTION BOARD
2001 (12) BCLR 1239
(C) at 1259 D – G:
“
The
purpose of judicial review is to scrutinise the lawfulness of
administrative action in order to insure that the limits to the
exercise of public power are not transgressed, not to give courts the
power to perform the relevant administrative function themselves.
As
a general principle, therefore, a review court, when setting aside a
decision of an administrative authority, will not substitute
its own
decision for that of the administrative authority, but will refer the
matter back to the authority for a fresh decision.
To do otherwise
would be contrary to the doctrine of separation of powers in terms of
which the legislative authority of the State
administration is vested
in the Legislature, the executive authority in the Executive, and the
judicial authority in the courts.
The Constitutional Court has held
that both the interim and the final Constitutions provide for such a
separation of powers and
that this separation must be vigilantly
upheld, ‘otherwise the role of the courts as an independent arbiter
of issues involving
the division of powers between the various
spheres of government, and the legality of legislative and executive
action measured against
the Bill of Rights and other provisions of
the Constitution, will be undermined’ (per Chaskalson P in
South
African Association of Personal Injury Lawyers v Heath and Others
[2000] ZACC 22
;
2001 (1) SA 883
(CC) at
paragraph 26, further paragraphs 21-25 and the other authorities
there cited……”
The question whether a
departure from the Act is justified, depends on the entire context of
the case as well as fairness to all the
parties concerned. Factors
mentioned by De Ville Judicial Review of Administrative Action in
South Africa 2003 pp 336 – 337 include
the question of the
competence of the court
vis-à-vis
that of the administrator in deciding the matter. See also
COMMISSIONER,
COMPETITION COMMISSION v GENERAL COUNCIL OF THE BAR SOUTH AFRICA AND
OTHERS
2002 (6) SA 606
(SCA) paragraph 15 and
BATO
STAR FISHING (PTY) LTD v MINISTER OF ENVIRONMENTAL AFFAIRS AND
TOURISM AND OTHERS
[2004] ZACC 15
;
2004 (7) BCLR 687
(CC) paragraph 48.
The question of the
courts ability to decide the question on the (in various respects
disputed) material before it is decisive against
applicants’
contentions in this matter.
[17] No reason suggests
why second to tenth applicant should not be awarded their costs up to
the stage when the opposing affidavit
conceding their claims was
filed.
Likewise
no reason suggests itself why first applicant should, as
substantially successful party, not be entitled to its costs.
[18] The following order
to issue:
First, second and third
respondents are ordered, jointly and severally, to pay second to
and inclusive of tenth applicants’
costs up to the stage of the
filing of the opposing affidavit.
18.2 The decision by
second and third respondents or either of them not to erect school
buildings for Bopasetjhaba Primary School
be rescinded and is set
aside.
First and second
respondent, with the exclusion of any official in the Free State
Provincial Administration, be ordered to consider
the erection of
school buildings for Bopasetjhaba School and in so doing to afford
first applicant and any interested party to
make representations
with regard to its decision.
Second and third
respondents to pay the costs of the first applicant.
_______________________
G. VAN COPPENHAGEN, J
I
concur.
______________
G.F.
WRIGHT, J
On
behalf of applicants: Adv. J. Campbell
Instructed
by:
c/o
Horn & Van Rensburg
BLOEMFONTEIN
On
behalf of respondents: Prok. I.P. Gough
Instructed
by:
c/o
State Attorney
BLOEMFONTEIN
/sp