Federation of the Schools Governing Bodies of South Africa: Northern Cape and others v Head of Department of Education: Northern Cape and Others (1246/03) [2004] ZANCHC 83 (15 October 2004)

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[2004] ZANCHC 83
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Federation of the Schools Governing Bodies of South Africa: Northern Cape and others v Head of Department of Education: Northern Cape and Others (1246/03) [2004] ZANCHC 83 (15 October 2004)

Reportable: Yes /
No
Circulate to
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Magistrates: Yes / No
IN THE HIGH COURT
OF SOUTH AFRICA
(Northern
Cape Division)
Case
no: 1246 /03
Date heard: 20/08/2004
Date delivered: 15/10/ 2004
In the matter between:
THE
FEDERATION OF THE SCHOOLS
GOVERNING
BODIES OF SOUTH AFRICA:
NORTHERN
CAPE
1
st
Applicant
DIAMANTVELD
HIGH SCHOOL
2
nd
Applicant
THE
SCHOOL GOVERNING BODY
OF
DIAMANTVELD HIGH SCHOOL
3
rd
Applicant
POSTMASBURG
HIGH SCHOOL
4
th
Applicant
THE
SCHOOL GOVERNING BODY
OF
POSTMASBURG HIGH SCHOOL
5
th
Applicant
DE
AAR JUNIOR PRIMARY SCHOOL
6
th
Applicant
THE
SCHOOL GOVERNING BODY
OF
DE AAR JUNIOR PRIMARY SCHOOL
7
th
Applicant
and
THE
HEAD OF DEPARTMENT
OF
EDUCATION: NORTHERN CAPE
1
st
Respondent
C.
M VAN ZYL
2
nd
Respondent
A.A
VAN ZYL
3
rd
Respondent
S.M
WESSELS
4
th
Respondent
Coram:
Majiedt J
et
Tlaletsi J
JUDGMENT
TLALETSI J:
The appointment of
educators in certain schools within the Northern Cape Province has
become a highly litigious matter. This is
one of such cases. The
First Applicant is the Federation of School Governing Bodies of
South Africa: Northern Cape, an association
which by virtue of its
constitution, has legal capacity, capable of acquiring assets and
liabilities and capable of suing and being
sued in its name and
having its principal place of business at 10 Dennis Street,
Kimberley.
The Second Applicant is
Diamantveld High School a public school with legal capacity in terms
of Section 15 of the South African
Schools Act, (Act 84 of 1996 as
amended) hereinafter “the Schools Act”, of 2 Voortrekker Street,
Kimberley.
The Third Applicant is
The Governing Body of the Diamantveld High School established and
constituted in terms of the provisions
of Section 16(1) of the
Schools Act as the governing structure of the second applicant.
The Fourth Applicant is
Postmasburg High School a public school with legal capacity in terms
of the provisions of Section 15 of
the Schools Act of Hout Street,
Postmasburg.
The Fifth Applicant is
the Governing Body of the Postmasburg High School established and
constituted in terms of Section 16(1) of
the Schools Act as a
governing structure of the fourth Applicant.
The Sixth Applicant is
De Aar Junior Primary School, a public school with legal capacity in
terms of the provisions of Section 15
of the Schools Act, of Oxford
Street, De Aar.
The Seventh Applicant is
the Governing Body of De Aar Primary School a body constituted and
established in terms of section 16(1)
of the Schools Act as a
governing structure for the Sixth Applicant.
The First Respondent is
the Head of the Department (“HOD”) of the Department of
Education, Northern Cape Province.
The Second Respondent is
Christa Marie Van Zyl an adult female of 2 Frans Lategan Street,
Winburg, Free State Province.
The Third Respondent is
Arnold Auret Van Zyl an adult male residing at 26 Collin Street,
Ladybrand, Free State.
The Fourth Respondent is
Susanna Maria Wessels an adult female residing at the farm
Kinkelspruit, Biesiesvlei, North West Province.
The applicants have
instituted an application against the HOD on urgent basis in which
they seek orders to the following effect:
That a Declatory order
in terms of the provisions of Section 33, 38 and 172 of the
Constitution of the Republic of South Africa
Act, Act 108 of
1996(“the Constitution”) be granted whereby the administrative
action by the HOD, that applications by the
candidates from outside
the Northern Cape province (“province”), for vacant teaching
posts in public schools in the province
which are published in the
vacancy list: -
are to be adjudicated
differently from those of the candidates from within the province.
12.1.2 by refusing to
appoint candidates from outside the province who have been
recommended for appointment by the school governing
bodies, solely on
the basis that they are not from within the province.
or
that candidates from
outside the province who have in the process of applications,
sifting, short listing, interviewing, recommendations
and
appointment for posts in public schools in the province in any way
whatsoever be penalised or prejudiced solely on the basis
that they
are from outside the province, or;
by making relocation
allowances payable to applicants for vacant posts of educators from
outside the province at public schools
within the province by
virtue of uniform norms and standards applicable to civil servants
and more specifically to educators,
in any manner a factor for
consideration for the appointment of educators by governing bodies
of public schools in the Northern
Cape,
is
declared inconsistent with the provisions of Sections 195 and 197
read with Section 33 of the Constitution and that such action
is
therefore invalid.
12.4 That the decision of
the HOD in refusing to accept: -
12.4.1 the recommendation
by third applicant that second respondent be appointed as an educator
at Diamantveld High School;
the recommendation of
fifth applicant that third respondent be appointed principal of
Postmasburg High School; and
the recommendation of
seventh applicant that fourth respondent be appointed principal of
De Aar Junior Primary School,
be
reviewed, nullified and set aside.
That it be declared,
with immediate effect that: -
12.5.1 second respondent
is entitled to be appointed as an educator at second applicant as
recommended by the third applicant;
third respondent is
entitled to be appointed principal of fourth applicant as
recommended by fifth applicant; and
fourth respondent is
entitled to be appointed principal of sixth applicant as
recommended by seventh applicant.
That first respondent
is ordered to effect the appointments as ordered within seven days
of the order.
That first respondent
be ordered to pay the costs of the application.
The second to the fourth
respondents are cited on the basis that they have an interest in the
outcome of the application. No order
is sought against them and
they are also not opposing the application.
The application is
opposed by the HOD. At the time of the hearing of the application
the
lis
between fourth and fifth applicants and the HOD had been settled and
therefore does not require adjudication in this judgment.
What
triggered the dispute in this matter is the refusal of the HOD to
appoint second to fourth respondents as educators and principal
on
the recommendations of third, fifth and seventh applicants
respectively. The procedure to be followed in the appointment of
educators to public schools within the province is set out in
Section 6 of the
Employment
of Educators Act 76 of 1989
(“the Act”), regulations and collective agreements contemplated
in Section 6 of the Act as well as the Education Gazette (“the
gazette”). A detailed summary of the procedure can be found in
Douglas
Hoërskool v Premier Noord-Kaap en Andere
1999(4)
SA 1131 (NK) at 1135B-F.
A full repetition of the selection procedure is not necessary as it
is common cause. Suffice it to state that it briefly consists
of
advertising of the post, sifting of candidates by the Department of
Education (“the department”), the short listing of the
sifted
candidates by the governing body, interviews conducted by the
governing body or its selected subcommittee, and the recommendation
for appointment by the governing body to the HOD.
FACTUAL BACKGROUND
On 15 September 2003 a
number of vacant posts at various public schools in the province
were advertised in the gazette. Included
in the gazette, which was
distributed to various interested organisations were the following:
-
Vacancy lists;
Instructions;
Procedures when
applying for a teaching post;
Minimum qualifications
for service requirements;
Appointment
requirements for persons not presently employed in a State
Department;
Short Listing;
16.7
Regulations for short listing and interviewing;
16.8 Interviews;
16.9
Nominating Procedures;
16.10 Appointments;
16.11 Various forms to
be used in the entire process.
16.12 Management plan for
appointments, which had target dates.
Among
the posts advertised were the posts of teacher (PL1) at second
applicant (“Diamantveld”) and Deputy Principal (PL3) at
sixth
applicant (De Aar Junior). Second respondent (“Van Zyl”) was
among the educators who applied for the Diamantveld post
and fourth
respondent (“Wessels”) was among those who applied for the De
Aar Junior post.
It is common cause that
the prescribed process of sifting, short listing, interviewing and
recommendation was followed. In the
case of Diamantveld third
applicant recommended to the HOD that Van Zyl be appointed to the
post. In the case of the De Aar Junior,
seventh applicant
recommended to the HOD that Wessels be appointed to the post.
It is further common
cause that the HOD found himself unable to accept both
recommendations. In the case of Diamantveld the HOD
stated the
following reasons in his letter declining the recommendation:
“
1. The
recommendation did not have regard to the democratic values and
principles referred to in Section 7(1) of the Employment of
Educators
Act in that:
The recommendation ignored my
responsibility in terms of Section 195(1) of the Constitution to
cultivate good human resource management
and career development
practices to maximise the human potential of my employees. One of
the candidates Ms Lubbe, is temporarily
employed in the post, and
according to my records there is nothing to suggest that she has
not performed satisfactorily during
her incumbency.
The appointment of Ms Van Zyl
will not promote the efficient, economic and effective use of the
resources of the department.
Having regard to the above, I do
not believe that circumstances justify a departure from the
principles expressed in Section 195(1)
of the Constitution read with
Sections 7(1) of the Employment of Educators Act.
I
am accordingly referring the recommendation back to you in terms of
Section 6(3)(c) of the Act.
Yours
faithfully”
In the case of De Aar
Junior, a similar letter was written except that the specific
portion relating to the candidate reads as follows:
“…
One of the candidates, Ms
Moolman, is currently acting principal in your school and there is no
evidence before me to suggest that
she has not performed her
functions satisfactorily. She has also, according to the
documentation you have supplied, acquitted herself
satisfactorily
during the selection process.”
The applicants, having
been aggrieved by the decision of the first respondent not to accede
to their recommendations, launched this
application.
ISSUES
The issues to be
determined are firstly whether the first applicant is entitled to
the orders set out in paragraphs 12.1, 12.2 and
12.3 above. The
second issue is the review of the HOD’s decision not to accept the
recommendations of third and seventh respondents.
CLASS ACTION
Paragraphs 12.1, 12.2
and 12.3 above are in the form of a class action. The class action
is based on the provisions of Section
38(c) of the Constitution.
Firstly it is brought by the first applicant on behalf of and in the
interests of all the school governing
bodies for public schools in
the province. In the first alternative the application is brought
by third and seventh applicants
(the governing bodies) in their
capacity as members of the class and also in terms of Section 38(c)
of the Constitution. In the
second alternative it is all the
applicants’ contention that they are acting in the public
interest.
The effect of the order
sought is widely couched and seeks a declaratory order in general
terms that: -
candidates from outside
the province for vacant posts not be treated differently from
candidates within the province,
their appointment
should not be refused
solely
because they are from outside the province; and
that such candidates
should not be penalised or disadvantaged
solely
because they are from outside the province.
The question at this
stage is whether the applicants have established that the HOD has
refused or declined to appoint second and
fourth respondents,
solely
on the grounds that they are not from within the province. What has
been presented is a blanket and unsubstantiated allegation
that
first respondent is declining to appoint candidates from outside the
province. On the contrary, the HOD has vehemently denied
that he
has at any stage declined to appoint candidates solely because they
are from outside the province. He further undertakes
not to do so
in the future. He states that the test applied is exactly the same,
but naturally other considerations such as costs
and his
responsibility to his own employees come into play. He has
mentioned at least three instances where candidates from outside
the
province have been appointed to public schools in the province.
Applying the test in
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984(3)
SA 623(A) at 634E-635C
this
aspect must be decided in favour of the HOD. This would accord with
Mr Danzfuss’ argument that the granting of a declaratory
order on
the terms of paragraphs 12.1, 12.2 and 12.3 will be of academical
value only as there is no dispute on this aspect between
the
parties. See:
ASBRO
Investments Co. Ltd v Minister of Interior and Others
1961(3)
SA 283 (T) at 285D
where
it was held as follows: -
“…
some tangible and
justifiable advantage in relation to the applicant’s position with
reference to an existing future or contingent
legal right or
obligation must appear to flow from the grant of the declaratory
order sought.”
In paragraph 12.3 above,
applicants are seeking an order in terms whereof it is declared that
the HOD is not entitled, in the case
of open vacancies, to take into
account in any manner whatsoever, relocation costs as a factor when
he considers appointment of
educators. Once again this order is
worded in general terms and is intended to have general application.
For the reasons above
and what will be discussed hereafter it
cannot be countenanced.
The
onus
of establishing that there are grounds on which a court can review a
functionary’s decision is on an applicant. There is no onus
on the
body whose conduct is the subject matter of review to justify its
conduct. See:
Davies
v Chairman, Committee of the Johannesburg Stock Exchange
1991(4)
SA 43 (W) at 47H and
Kimberley
Girls High School and Another v the Head of Department of Education,
Northern Cape Province and two Others
(Unreported case no.: 32/2003 NCD at paragraph 10).
The power to appoint any
person in the Department is vested in the HOD. This power is to be
exercised in accordance with the procedures
and requirements
determined by the Minister (of Education) (Section 6(1) and (2) of
the Act). Section 6(3) (b) of the Act provides
that:
“
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
–
any procedure collectively agreed
upon or determined by the Minister for the appointment, promotion or
transfer has not been followed;
the candidate does not comply with
any requirement collectively agreed upon or determined by the
Minister for the appointment, promotion
or transfer;
the candidate is not registered,
or does not qualify for registration, as an educator with the South
African Council for Educators;
sufficient proof exists that the
recommendation of the said governing body or council, as the case
may be, was based on undue influence;
or
the recommendation of the said
governing body or council, as the case may be,
did
not have regard to the democratic values and principles referred to
on section 7(1)
.”
(my underlining).
Section 7(1) provides
that: -
“
(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: -
the ability of the candidate; and
the need to redress the imbalances
of the past in order to achieve broad representation.”
Section 195(1) of the
Constitution, which prescribes the basic values and principles
governing public administration, reads as follows:
-
“
(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.”
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
,
2004(7) BCLR 687 (CC) at 702-703 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 of 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, nor 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. ”
Section 6 of the
Promotion
of Administrative Justice Act 3
of
2000
(PAJA) lists the grounds upon which administrative action may be
judicially reviewed.
The grounds upon which
the applicants are seeking to review the decision of the HOD are
contained in the founding affidavit. They
are based on various
subsections of Section 6 of PAJA. These are that: -
the HOD was not
authorised to take the decision, as he was not authorised to do so
by the empowering legislation, or that he contravened
a law.
the decision does not
take into account the mandatory and material procedure or condition
prescribed by the legislation (the Act
and Personnel Administration
Measures (PAM) and the regulations).
the action was
materially influenced by an error of law, his interpretation of the
Act, PAM, Regulations and the Constitution.
the decision was taken
because of irrelevant considerations being taken into account or
relevant considerations not taken into account
and is also arbitrary
and capricious.
the action is not
rationally connected to the purpose for which it was taken, the
purpose of the empowering provision, the information
before the HOD
and the reasons given for it by the HOD.
the decision is so
unreasonable that no reasonable person could have taken it.
that the decision is
contrary to the interests of the learners of second and sixth
applicants whose rights are guaranteed by Section
28(2) of the
Constitution.
that the decision took
into account factors which should not have been taken into account,
which are totally outside of the provisions
of Section 7(1) of the
act.
the HOD misconstrued his
role in applying the provisions of Section 195(1) of the
Constitution by being provincially biased.
the HOD erred by
deciding not to appoint a person from outside the province based on
the provisions of Section 195(1) of the Constitution,
when such
appointment is not in conflict with the provisions of the said
Section.
that the HOD erred by
considering without any law or norm that forces him to do so, the
interests of his employees favourably contrary
to the provisions of
Section 195(4) read with Section 197 of the Constitution, which
demand that such favourable consideration
should be authorised by
national legislation before the HOD can take such steps.
the HOD erred by not
taking into account the provisions of Section 197(1) and (4) of the
Constitution in terms whereof, recruitment,
appointment, promotion,
transfer and dismissal of members of the public service should be
made within a framework of uniform norms
and standards applying to
the public service.
It will not be necessary
for the purpose of this judgment to discuss each specific ground
separately as they are all linked to each
other and based on the
same set of facts which are largely common cause. Some of the
grounds are so far removed from the facts
of the case that a
suggestion of a fishing expedition may not be unjustified.
The factual argument of
Mr Du Toit on behalf of the applicants is that the HOD has published
in the gazette, countrywide what the
requirements or rules are for
the appointment to the positions, and encouraged educators to see
the vacancies as an opportunity
to contribute towards reconstruction
of education in the country. That all role players were advised to
familiarise themselves
with the contents of the gazette, which he
submitted, contained the rules to be followed; that second to fourth
respondents responded
to the advertisement, and that the entire
process was followed as prescribed and that second and fourth
respondents were identified
as suitable candidates for appointment.
He argued that it was only after this stage and unbeknown to all the
role players that
the HOD changed the rules and introduced new rules
when the process was almost 99% complete. He introduced economic
considerations
and his responsibility to his employees. Mr Du Toit
argued that these considerations should have been made known in
advance so
that all the role players should have considered their
position to participate under the circumstances. It is this
conduct, which
according to him amounted to unfair and unjust
administrative action and contravened second and fourth respondent’s
constitutional
rights. The HOD, he argued, did not take into
account democratic values and principles enshrined in the
Constitution.
It is common cause that
the process that was followed by the interviewing panel of the
respective applicants was the allocation
of points based on the
abilities and characteristics of the candidates. It is very clear
from the score or comparison sheets that
no other considerations
were taken into account. The governing bodies accepted the
recommendations of these subcommittees based
on the abilities and
characteristics of the candidates. They too, did not take into
account any other factor. This is evidenced
by the minutes of the
meetings at which the decisions were taken. They should not be
blamed for their approach. All that they
are concerned with is the
best candidate for their respective schools. They may not have
access to information pertaining to other
factors relating to
education.
This may be one of the
reasons why the final decision to appoint is vested in the HOD who,
in terms of the Constitution and the
Act, has wider responsibilities
than those of the governing bodies. The HOD is better placed than
the governing bodies to take
into account the interests of the
learners in the province as a whole, efficient, economic and
effective use of the resources,
and the employees` needs, to name
but a few. These are imperative considerations that ought not to be
ignored by the HOD.
The notion of equating
the role of an HOD to that of a track and field officer in a race,
or a referee in a soccer or rugby game
is in my view undermining his
role and ignorant of the HOD’s imperative responsibilities. The
role of the HOD cannot be limited
to a passive assessment as to
whether the school governing bodies have complied with the
guidelines issued by the department.
He is also required to
independently and objectively ascertain whether a recommendation
does indeed on the facts and prevailing
circumstances accord with
the democratic values and principles. (See:
Kimberley Girls’ High School
case
(supra) at paragraph 21).
The HOD has, in the case
of Diamantveld established
inter
alia
,
that Ms Lubbe was at the time occupying the post in issue in an
acting capacity, and is already in the employ of the department.

The relocation costs for Van Zyl would amount to R 165 936-59. In
the case of De Aar Junior, it has been shown inter alia, that
Ms
Moolman was already occupying the post in issue in an acting
capacity and that the relocation costs for Wessels were estimated
at
R 120 788-69.
In my view nothing
prohibits the HOD from taking these factors into account. As the
head and accounting officer of the department
he cannot ignore the
impact an appointment would have on the budget of the department as
well as on the efficient and economic
use of financial resources in
the province as a whole. He is also duty bound to cultivate good
human resource management and career
development process in order to
maximise the human potential of his employees.
Mr Du Toit has referred
us to a passage in
Laerskool
Gaffie Maree v MEC for Education Northern Cape Province
2003(5) SA 357 (NC) at 373 I-J (par.14) whereat Majiedt J
stated as follows:
“
So, for example, however
laudable it may be for him or his Department to prefer that
candidates from within the Northern Cape Province
be appointed in
vacant posts, it is abundantly clear on the authorities and on the
statutory provisions that that is not a consideration
on the strength
of which he could decline a recommendation.”
Mr Du Toit has,
correctly, conceded during argument that the quoted passage is
obiter
dictum
.
The learned Judge quite clearly made this statement in general
terms. In any event, there is no basis on which it can be said
that
the two educators in the present case were declined appointment by
the HOD solely by reason of the fact that they are from outside
the
province, as I have already shown herein.
The test that is
applicable is whether there is a rational objective basis justifying
the connection made by the HOD between the
material made available
and the conclusion he arrived at. (See:
Trinity
Broadcasting (Ciskei) v ICA of SA
2004(3) SA 346 (SCA) at.354 G – 355 A).
Simply put, the enquiry
is not whether the HOD has taken the best decision under the
circumstances, but rather whether the decision
taken falls within
the range of the decisions he can take, and that there is a rational
connection between the decision taken and
the material before the
HOD, i.e. whether the decision is justified taking into account the
material before him and the applicable
legislative imperatives.
I therefore take the
view that the HOD took a decision which is authorised by the
empowering legislation; that the decision took
account of the
material and conditions prescribed by the legislation; that he did
not commit an error of law or fact in the interpretation
and
application of the legislation; that he did not take into account
irrelevant considerations; and finaly that the decision is
reasonable and justifiable and that he is entitled to take into
account the interests of the learners and educators in the province
as well as economic and financial considerations. The application
therefore ought to be dismissed.
What remains is the
issue of costs. Both counsel submitted that costs should follow the
result. I am in agreement that this approach
is fair, reasonable
and justified under the circumstances.
I
therefore make the following order.
The application is
dismissed with costs.
_______________
L P TLALETSI
JUDGE
(Northern Cape Division)
I concur
________________
S A MAJIEDT
JUDGE
(Northern Cape Division)
Attorneys for the Applicants
Counsel
for the Applicants
VAN DE WALL & PARTNERS
Adv.
I J DU TOIT
Attorneys for the Respondents
Counsel
for the Respondents
HAARHOFFS INC.
Adv.
F.W.A DANZFUSS (
SC
)