Kimberley Girls High School and Another v Head of the Department of Education, Northern Cape Province and Others (32/2003) [2003] ZANCHC 35; 2005 (5) SA 251 (NC); (2005) 26 ILJ 2305 (NC); [2005] 1 All SA 360 (NC) (30 May 2003)

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[2003] ZANCHC 35
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Kimberley Girls High School and Another v Head of the Department of Education, Northern Cape Province and Others (32/2003) [2003] ZANCHC 35; 2005 (5) SA 251 (NC); (2005) 26 ILJ 2305 (NC); [2005] 1 All SA 360 (NC) (30 May 2003)

Reportable: Yes /
No
Circulate to
Judges: Yes / No
Circulate
to Magistrates: Yes / No
IN THE HIGH
COURT OF SOUTH AFRICA
(Northern Cape
Division)
Case no: 32/2003
Date
heard: 2003-05-02
Date
delivered: 2003-05-30
In
the matter of
:
KIMBERLEY
GIRLS’ HIGH SCHOOL FIRST APPLICANT
THE
GOVERNING BODY OF THE KIMBERLEY
GIRLS’ HIGH SCHOOL SECOND
APPLICANT
and
THE
HEAD OF THE DEPARTMENT OF
EDUCATION, NORTHERN CAPE PROVINCE FIRST
RESPONDENT
TANYA
MATTHEWS SECOND RESPONDENT
AYESHE
WILLIAMS THIRD RESPONDENT
Coram:
KGOMO
JP
et
MAJIEDT
J
JUDGEMENT
MAJIEDT
J:
In
this matter the applicants seek to have the first respondent’s
decision to decline the recommendation made by the second applicant
for the appointment of the second respondent in post number
02/10/0079 as a post level 1 educator at the first applicant
reviewed
and set aside.
2.1 The
first applicant is the Kimberley Girls’ High School, a public
school with full juristic personality in terms of
sec. 15
of the
South African Schools Act, 84 of 1996
(
“the
Schools Act”
).
For
the sake of convenience I shall refer to the first applicant herein
as
“the
school”.
2.2 The
second applicant is the governing body of the school, which is vested
in terms of sec. 16(1) of the Schools Act with the governance
of the
school. I shall refer to the second applicant as
“the
governing body”
.
2.3 The
first respondent is the Head of the Department of Education in the
Northern Cape, who is the employer of all educators in
the Northern
Cape in terms of the provisions contained in sec. 3(1)(b) of the
Employment of Educators Act, 76 of 1998 (
“the
Employment Act”
).
I
shall refer to the first respondent as
“the
Head of Department”
.
2.4 The
second respondent is Ms. Tanya Matthews (
“Ms.
Matthews”
)
an educator with full legal capacity.
2.5 The
third respondent is Ms. Ayeshe Williams (
“Ms.
Williams”
)
also an eductor with full legal capacity.
3. A
post for an educator for English higher grade first language for
grades 10-12 had become vacant at the school. The procedure
for the
filling of such a post at a public school is prescribed by statute
and entails the following:
The
advertising of the post;
The
sifting of candidates by the Department of Education;
The
shortlisting of the sifted candidates by a subcommittee of the
governing body or the governing body itself;
Interviews
with the shortlisted candidates by an interviewing committee of the
governing body and recommendations to the governing
body by such
interviewing committee.
Deliberations
by the governing body and recommendations following such
deliberations to the Head of Department with regard to
the filling
of the vacant post. A useful summary of the procedures to be
followed in the filling of vacant posts can be found
in
Douglas
Hoërskool v Premier Noord-Kaap en andere 1999(4) SA 1131 (NK)
at 1138 H - 1139 F. It is common cause in this matter that the
aforementioned is the statutorily prescribed procedure and it
is
not necessary to deal with it any further.
4. It
is common cause that the governing body had followed the
aforementioned procedures and had made a recommendation for the
appointment
of Ms. Matthews in the vacant post. Such a
recommendation was made in terms of section 6(3)(a) of the Employment
Act. The Head
of Department declined to make the appointment as
recommended by the governing body, hence this review application.
5. The
reasons for the Head of Department’s decision to decline the
recommendation is to be found in Annexure “FA 9” of
the
founding affidavit. These reasons can be summarized as follows:
That
the governing body had failed to adhere to a process collectively
agreed upon in that it has failed to give preference
to candidates
disadvantaged by the injustices of the past; (i.e. that the
recommendation is declined in terms of sec. 6(3)(b)(i)
of the
Employment Act); and
That
the governing body’s recommendation did not have regard to the
democratic values and principles referred to in section
7(1) of
the Act (i.e. that the recommendation is declined in terms of
sec. 6(3)(b)(v) of the Employment Act).
In
respect of both (a) and (b) above it is the Head of Department’s
contention that suitably qualified candidates from previously
disadvantaged backgrounds were completely overlooked to the extent
that they had not even been shortlisted and invited for interviews.
6. Most,
if not all, of the facts which I set out as background herein are
common cause or at least not seriously disputed.
6.1 The
vacant post for English first language higher grade in respect of
grades 10 to 12 at the school was advertised and attracted
a number
of applications.
6.2 The
Department undertook the process of sifting the candidates and
thereupon furnished the governing body with a list of twelve
suitably
qualified candidates and their applications.
6.3 An
interviewing committee was established by the governing body. This
committee shortlisted three of the twelve candidates for
an
interview. These candidates were Ms. Matthews, Ms. Williams and one
Ms A. Fourie. All three of them are White women. In the
shortlisting process, the interviewing committee purportedly applied
the prescribed norms and criteria.
6.4 Personal
interviews were thereafter conducted by the interviewing committee
with the three shortlisted candidates. The prescribed
norms and
scoring system were again purportedly applied in the selection
process during this phase. Ms. Matthews significantly outperformed
the other candidates, with Ms. Williams placed a distant second and
with Ms Fourie in third place.
6.5 The
interviewing committee recommended the two top candidates (Ms.
Matthews and Ms. WIlliams) to the governing body. At a meeting
of
the governing body, this recommendation was unanimously endorsed and
a recommendation for the appointment of Ms. Matthews as first
choice
was made to the Head of Department.
7. The
reasons for declining the recommendation as set forth in paragraph 4
supra
,
were amplified and motivated by the Head of Department in his
answering affidavit as follows:
7.1 The
interviewing committee, when shortlisting the candidates, completely
overlooked or accorded little or no weight to the excellent
academic
(more specifically English) qualifications of three Black candidates
-- Ms Malebo, Ms Selebogo and Ms Mokgalagadi (“the
three
disadvantaged candidates”). In contrast, full or nearly full marks
were awarded in the scoring process to other candidates
(including
the three who were eventually shortlisted) who were not of a
disadvantaged background and whose academic qualifications
were
comparable to or of a lower standard than that of the three
disadvantaged candidates.
7.2 In
a letter to the Head of Department pursuant to his refusal to accept
its recommendation, the governing body averred that:
a) it
had correctly applied the criteria as laid down by the Department in
the course of the shortlisting process; and
b)
the
governing body regarded it as reasonable to have set as an absolute
prerequisite for the filling of the vacant post that a candidate
must
be an English first language speaker to be considered for the post.
7.3 The
three disadvantaged candidates were excluded on paper alone (i.e. on
their applications and accompanying
curricula
vitae
)
- in this way their proficiency in English could not be objectively
ascertained at all.
8. It
is abundantly clear
ex
facie
the
papers that the three disadvantaged candidates are, at the very
least, on par with the three shortlisted candidates as far as
their
academic qualifications, more particularly in English, is concerned.
Their
exclusion from the interviewing phase can, on this score alone,
hardly be justified in my view.
Mr.
Du Toit, for the applicants, has sought to persuade us that even if
the three disadvantaged candidates’ scores in respect of
their
academic qualifications were to be corrected, they would still not
have scored sufficient points to advance to the interviewing
phase.
This
begs the question however --
why
were they not afforded an equal opportunity with the other
shortlisted candidates to demonstrate their proficiency in English
and their competence as educators at the interview?
9. In
a review of the Head of Department’s decision, this Court has to
determine whether his decision is irregular, not whether
it is
correct or not.
See:
Ferreira
v Premier, Free State & Others 2000(1) SA 241 (O)
at
251 I.
Schoch
NO & others v Bhettay & others 1974(4) SA 860 (A)
at
866 E-F.
Liberty
Life Association of Africa v Kachelhoffer NO & others 2001(3)
SA 1094 (C)
at
1110 J - 1111 A.
10. The
onus of establishing that there are grounds on which a court can
review a functionary’s decision is on an applicant.
See:
Jockey
Club of South Africa v Feldman
1942 AD 340
at
359.
Davies
v Chairman, Committee of the Johannesburg Stock Exchange 1991(4) SA
43 (W)
at
47 H.
11. In
considering whether the Head of Department’s decision to decline
the recommendation is reviewable or not, a careful analysis
of the
provisions contained in sec. 6(3)(b)(v) and sec (7(1) of the
Employment Act is required. Section 6(3)(b)(v) reads:
“
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 the
appointment, promotion or transfer has not been followed;
(ii) the
candidate does not comply with any requirement 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 for 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 or council, as the case may
be, did not have regard to the democratic values and
principles
referred to in section 7 (1).”
Section
7(1) reads as follows:
“
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.”
12. The
Head of Department has the power to appoint educators in this
province [sec. 6(1)(b)]. His power to do so is regulated by
sec.
6(3)(a) which provides that an appointment may only be made on the
recommendation of a governing body. It is further regulated
by sec.
6(3)(b) which sets out the limited grounds upon which a head of
department may decline a recommendation. The Head of Department’s
discretionary power is thus severely curtailed under sec. 6(3)(b);
See:
High
School Carnarvon v MEC for Education, Training, Arts and Culture of
the Northern Cape Provincial Government & another [1999]
4
All SA 590
(NC)
at
602 a-b;
Douglas
Hoërskool en ‘n ander v Premier, Noord-Kaap 1999(4) SA 1131
(NK)
at
1140 G.
13. In
the
High
School Carnarvon
case,
supra,
Alkema AJ in considering the provisions of sec. 6(3)(b)(v), held
that:
“
Having regard
to the ordinary grammatical meaning of the above quoted words, the
enquiry is directed at the recommendation, and not
at the democratic
values and principles. Of course, regard must be had to those values
and principles in order to assess the recommendation,
but the Head of
Department is only required to consider whether or not the governing
body took those values and principles into account
in arriving at its
recommendation. If it did take those values and principles into
account, the recommendation must be accepted;
if not, the
recommendation must be declined.
In
my view, the discretion conferred upon the Head of Department under
section 6(3)(b) does not extend to the power to sit in judgment
on
the recommendation of the governing body. He is not concerned with
the merit of the recommendation; he is only concerned with
whether
or not it meets with the requirements of section 6(3)(b). The
question is not whether the recommendation accords with those
values
and principles, but simply whether or not the recommendation had
regard thereto.”
14. In
an unreported judgment,
Hoërskool
Namakwaland & ‘n ander v LUR Opleiding, Kuns en Kultuur,
Noord-Kaapse Provinsiale Regering en ‘n ander,
case no. 1241/2001, delivered on 15 November 2002, I had expressed
strong reservations in an
obiter
dictum
about the correctness of the aforementioned decision of Alkema AJ.
It was, however, not necessary to make a finding on the correctness
of that decision, given the facts in the
Hoërskool
Namakwaland
case.
In
the instant matter however, it is pertinent to the enquiry before us
to assess the correctness of the judgement in the
High
School Carnarvon
case.
15. Mr.
Danzfuss for the respondents has, correctly in my view, emphasized
the fact that the provisions of sec. 6(3)(b)(v) and sec.
7(1) of the
Employment Act should be interpreted in consonance with each other.
This is clearly necessary since they deal with the
exact same
subject, namely whether the appointment of a particular educator will
have due regard to equality, equity and the other
democratic values
and principles contemplated in sec. 195(1) of the Constitution. Mr.
Danzfuss is in my view correct when he refers
to these sections as
two sides of the same coin.
16. I
find myself in respectful disagreement with Alkema AJ that the Head
of Department is “.....
not
concerned with whether or not it meets the requirements of sec
6(3)(b).
The
question is not whether the recommendation accords with those values
and principles, but simply whether or not the recommendation
had
regard thereto
.”
(emphasis
supplied). This approach completely negates the positive obligations
imposed upon a head of department in terms of sec.
7(1).
It
furthermore reduces the role of a head of department in making the
appointment of an educator into a rubber stamping exercise.
No
enquiry as to whether a governing body has paid mere lip service to
the democratic values and principles referred to in sec.
7(1) is
permitted on the part of a head of department on this approach.
17.1 Section
7(1) requires that there must be due regard to
equality,
equity
and
the
democratic values and principles contemplated in sec. 195(1) of the
Constitution (which importantly includes in sec. 195(1)(i)
the
requirement that the “
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”
and taking into account;
the
ability of the candidate and
the
need to redress the imbalances of the past in order to achieve broad
representation.
17.2 It
can hardly be said, in my view, that there had been equitable and
equal treatment afforded to the three disadvantaged candidates
(whose
ability on their application forms and
curricula
vitae
cannot be questioned) in refusing them an opportunity to compete on
an even footing at an interview with the three shortlisted
candidates.
17.3 Moreover
and most importantly, the governing body’s 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’s staff establishment.
18. The
aforesaid difficulties for the governing body are further greatly
exacerbated by the shortlisting of the candidate Ms A.
Fourie,
which I find startling, to put it mildly.
This
candidate is an Afrikaans first language speaker and should therefore
not even have been considered at all, based on the governing
body’s
prerequisite that candidates are required to have English as their
home language to be even considered for the post.
The
inference is inescapable and indeed compelling that the governing
body had completely failed to grasp the opportunity to redress
the
imbalances of the past at the school as far as personnel is
concerned.
19. In
George
v Liberty Life Association of Africa Ltd. [1996]
8 BLLR 985
(IC)
Landman P examined the concept of affirmative action in the workplace
and stated that:
“
Affirmative
action, viewed positively, is designed to eliminate inequality and
address systemic and institionalised discrimination
including racial
and gender discrimination. It is a mechanism which is capable of
eventually ensuring equal opportunities
(at 1005
H).
See
also:
Department
of Correctional Services v Van Vuuren [1999]
11 BLLR 1132
(LAC)
at
1135 G-H.
20. The
imperatives contained in sec. 6(3)(b)(v), sec. 7(1) of the Employment
Act and more importantly, sec. 195(1) of the Constitution
are of the
utmost importance in this matter. In addition, it has to be borne in
mind that all legislation now has to be interpreted
and measured in
accordance with the constitutional imperatives,
inter
alia
the need to redress the imbalances of the past.
See:
Matiso
v Commanding Officer, Port Elizabeth Prison and another 1994(4) SA
592 (SE)
at
597 F:
“
The
interpretative notion of ascertaining ‘the intention of the
Legislature’ does not apply in a system of judicial review based
on
the supremacy of the Constitution, for the simple reason that the
Constitution is sovereign and not the Legislature. This means
that
both the purpose and method of statutory interpretation in our law
should be different from what it was before the commencement
of the
Constitution on 27 April 1994.
The
purpose now is to test legislation and administrative action against
the values and principles imposed by the Constitution
.
This purpose necessarily has an impact on the manner in which both
the Constitution itself and a particular piece of legislation
said to
be in conflict with it should be interpreted. The interpretation of
the Constitution will be directed at ascertaining the
foundational
values inherent in the Constitution, whilst the interpretation of the
particular legislation will be directed at ascertaining
whether
that legislation is capable of an interpretation which conforms with
the fundamental values or principles of the Constitution
.
Constitutional interpretation in this sense is thus primarily
concerned with the recognition and application of constitutional
values
and not with a search to find the literal meaning of statutes.
(emphasis
supplied).
Burns,
in her work
Administrative
Law under the 1996 Constitution
,
cautions that:
“
The
approach that administrative law is nothing more than the
interpretation of statutes is limited and incorrect and it must
constantly
be remembered that the principles of administrative law
have a constitutional and common law foundation.”
(at 82).
21. The
notion that a head of department may not, in terms of the provisions
contained in sec. 6(3)(b)(v) of the Employment Act, independently
and
objectively ascertain whether a recommendation does indeed on the
facts and prevailing circumstances accord with the democratic
values
and principles, is untenable in my view. In the present case the
Head of Department was fully justified in my view to decline
the
recommendation and to remit the matter to the governing body. It
follows that I am of the respectful view that the
High
School Carnarvon
case,
supra
,
has been wrongly decided.
22. In
par. 4
ante
,
I had set out the reasons for the Head of Department’s decision as
furnished by him to the governing body. Based on my findings
on the
issue regarding sec. 6(3)(b) it is abundantly clear that the Head of
Department’s decision is not reviewable.
I
may add that, although it is not strictly necessary to decide same,
there is no merit in the first ground advanced by the Head of
Department (see par. 4(a)
ante
).
The
Head of Department contends that the governing body had failed to
adhere to a process collectively agreed upon in that it has
failed to
give preference to candidates disadvantaged by the injustices of the
past. This purports to be a declining of the recommendation
in terms
of the provisions contained in sec. 6(3)(b)(i) of the Employment Act.
The crisp answer to this contention is that no procedure
has been
collectively agreed upon or determined by the Minister in terms
whereof candidates disadvantaged by the injustices of the
past has to
be given preference. That imperative is, on the contrary, derived
from the provisions contained in the Employment Act
[sec 6(3)(b)(v)
and sec. 7(1)] and from the Constitution [sec. 195(1)].
23. Mr.
Danzfuss has, with very little conviction it must be said, contended
that the Education Gazette contains a collective agreement
in par.
7.7 (2002 Gazette) to the effect that:
“
Preference has
to be given to race and gender representivity in order to be
proportional and reflect the learner population of the
school”.
Buys
J has, correctly in my view, decided in the
Douglas
Hoërskool
case that the Education Gazette is not a collective agreement (at
1142 B-F). It follows that, insofar as it is necessary to make
a
finding thereon, there is no merit in the first ground advanced by
the Head of Department.
24. I
now turn to the submission advanced by Mr. Du Toit for the applicants
that the governing body’s recommendation is, in any
event,
justified by the provisions contained in the
Employment Equity Act,
55 of 1998
. His argument goes as follows:- because the Department of
Education has no employment equity plan in place, there is no
guidance
in matters of employment practices where uncertainty may
exist. In addition, women as a group (without any racial
connotation) is
a “designated” group in terms of the
aforementioned Act who should be given preference in employment
practices (it will be recalled
that the recommended candidate, Ms.
Matthews, is a woman).
Consequently,
so the argument goes, effect has been given to the fullest extent to
all the factors enumerated in terms of sec. 7(1)
of the Employment
Act.
25. As
Mr. Danzfuss has correctly pointed out, the applicants’ reliance on
sec. 6(2)(b)
of the
Employment Equity Act is
completely misplaced.
Section 6(2)(b)
provides that:
“
It is not
unfair discrimination to-
(a) take
affirmative action measures consistent with the purpose of this Act;
or
(b) distinguish,
exclude or prefer any person on the basis of an
inherent
requirement of a job
.”
(my emphasis).
I
fail to comprehend how an educator (who is otherwise suitably
qualified and has the requisite experience) can be excluded on the
basis that it is an “inherent requirement” of the post in this
matter that he or she must be an English first language speaker
(as
opposed to being
proficient
in English). Furthermore, the interview committee itself has set
only the following two criteria in the shortlisting process as
far as
language is concerned, namely
proficiency
in English and whether the candidate has already taught through the
medium of English -- that much is clear from Annexure “O9”
to the
Head of Department’s answering affidavit.
26.1 Moreover
and importantly, there is a further aspect which militates against
this argument advanced by Mr. Du Toit. The preamble
of the
Employment Equity Act reads
as follows:
“
Recognising-
that as a result
of apartheid and other discriminatory laws and practices, there are
disparities in employment, occupation and income
within the national
labour market; and
that
those disparities create such pronounced disadvantages for certain
categories of people that they cannot be redressed simply
by
repealing discriminatory laws,
Therefore,
in order to-
promote the
constitutional right of equality and the exercise of true democracy;
eliminate
unfair discrimination in employment;
ensure
the implementation of employment equity to redress the effects of
discrimination;
achieve
a diverse workforce broadly representative of our people;
promote
economic development and efficiency in the workforce; and
give
effect to the obligations of the Republic as a member of the
International Labour Organisation” .......
26.2 The
Head of Department alludes in his answering affidavit to the striking
racial imbalance in the educator establishment of the
school namely
19 Whites, 4 “Coloureds” and 1 African. In contrast thereto
there are 272 African, 130 “Coloured”, 30 Indian,
86 White and 2
“other” learners at the school.
In
reply thereto the applicants sought refuge in:
(a) the
fact that the racial composition of the school (i.e. the learner
component thereof) develops organically, whereas unless there
is
intervention through death, transfer or resignation, the school is
“stuck with educators previously appointed”; and
(b) the
argument concerning Ms. Matthews as a member of a “designated”
group in terms of the
Employment Equity Act, discussed
above.
26.3 The
applicants’ reply in 26.2(a) above is no more than a feeble excuse.
It completely misses 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
sec. 6(3)(b)(v) of the Employment Act. This has clearly not
happened
in this matter.
26.4 I
have already to an extent dealt with the reply furnished in 26.2(b)
supra
.
A further aspect which requires emphasis is the fact that it has
never been the applicants’ case that they strove, through the
recommendation for appointment of Ms. Matthews, to correct past
imbalances of
gender
representivity
on
their educator establishment. There is in any event no evidence, nay
not even a suggestion, of such an imbalance. What is clear,
however,
is that there is a serious imbalance in racial/demographic
representivity in the school’s educator establishment. The
shortlisting process, culminating in the recommendation as had
occurred in the present matter, whereby the three (suitably
qualified)
disadvantaged candidates were not even afforded the
opportunity to compete on an equal footing at an interview, does
nothing at all
to begin to redress the racial imbalance of educators
at the school as required by sec. 6(3)(b)(v) of the Employment Act
read with
sec. 7(1) of the Employment Act and sec. 195(1) of the
Constitution.
26.5 In
Stoman
v Minister of Safety & Security & others 2002(3) SA 468 (T)
,
the successful (Black) candidate had scored lower than the aggrieved
(White) candidate during the evaluating phase. The latter
had been
recommended for appointment in the post by the evaluating committee,
but was not appointed by reasons of employment equity
(or more
correctly, the lack thereof). Unlike in the matter before us, the
respondent department (Safety and Security) had an employment
equity
plan in place. In reaching his decision to dismiss the unsuccessful
candidate’s application for a review of the decision
not to appoint
him, which review was primarily based on alleged unfair
discrimination, Van der Westhuizen J undertook a detailed
analysis of the concept of substantive equality and the questions of
affirmative action and representivity in the public service.
With
regard to substantive equality the learned Judge states at 477 J
- 478 D:
“
The
Constitutional Court recognises the concept of substantive equality
and has linked its understanding of substantive equality to
the need
to address and remedy South Africa's history of deep racial
inequality and other forms of systemic discrimination. In National
Coalition for Gay and Lesbian Equality and Another v Minister of
Justice and Others
1999 (1) SA 6
(CC) paras [60] - [61] at 38H - 39D
the Court agreed that equality has a remedial and a restitutionary
purpose and stated, inter
alia, that it is necessary to comment on
the nature of substantive equality, a contested expression which is
not found in either
of our Constitutions. Particularly in a country
such as South Africa persons belonging to certain categories have
suffered considerable
unfair discrimination in the past. It is
insufficient for the Constitution merely to ensure, through a bill of
rights, that statutory
provisions which have caused such unfair
discrimination in the past are eliminated. Past unfair discrimination
frequently has ongoing
negative consequences, the continuation of
which is not halted immediately where the initial causes thereof are
eliminated, and unless
remedied, may continue for a substantial time
and even indefinitely. The need for remedial measures has been
recognised in ss 8(2)
and 9(3) of the interim and final
Constitutions. The notion of substantive as opposed to formal
equality has been encapsulated, according
to Ackermann J. See also
President of the Republic of South Africa and Another v Hugo
1997 (4)
SA 1
(CC). “
In
emphasizing the need to act positively to advance the ideal of
equality as envisaged in sec. 9 of the Constitution, Van der
Westhuizen
J says the following at 482 G-I:
“
Efficiency and
representivity, or equality, should, however, not be viewed as
separate competing or even opposing arms. They are linked
and often
interdependent. To allow equality or affirmative action measures to
play a role only where candidates otherwise have the
same
qualifications and merits, where there is virtually nothing to choose
between them, will not advance the ideal of equality in
a situation
where a society emerges from a history of unfair discrimination. The
advancement of equality is integrally part of the
consideration of
merits in such decision-making processes. The requirement of
rationality remains, however, and the appointment
of people who are
wholly unqualified, or less than suitably qualified, or incapable, in
responsible positions cannot be justified.”
26.6 It
bears repeating that the three disadvantaged candidates are suitably
qualified for the vacant post - that much is common cause
or, at the
very least, not seriously placed in issue on the papers. The
requirement of rationally justified administrative action
demands
that a candidate can only be appointed by virtue of affirmative
action or by the demand of representivity if such a candidate
is
suitably qualified and capable of doing the work.
See:
Public
Servants Association of South Africa and others v Minister of Justice
1997(3) SA 925 (T)
at 989 J - 990 H.
Stoman
v Minister of Safety and Security and others,
supra
,
at 482 I.
26.7 One
last point needs to be made -- it has been obliquely suggested that
even if the entire process of filling the vacant post,
as set out in
par. 2
ante
is repeated, Ms. Matthews may very well turn out to be the top
candidate and be recommended for appointment again. To engage in
conjecture of this nature is not only unnecessary but also
inadvisable. The crisp answer is simply that the governing body has,
as I have already found herein, failed to carry out its statutory
obligations imposed by the Employment Act and by the Constitution.
27. In
conclusion I deem it necessary to refer to one last troubling aspect.
Mr. Du Toit has laid much emphasis on the fact that
the governing
body has been extremely diligent and conscientious in its application
of the rules, norms, prescripts and criteria
laid down by the
Department of Education or collectively agreed upon. The emphasis is
misplaced:
firstly
because these are mere guidelines;
See:
Douglas
Hoërskool en ‘n ander v Premier Noord-Kaap,
supra
at
1142 B-G; 1144 E-I; and
in
the second place, a school governing body should more importantly
be acutely aware of the prescripts contained in sec. 6(3)(b()v)
of
the Employment Act, read with sec. 7(1) of the Employment Act and
sec. 195(1) of the Constitution.
Regardless
of how much compliance there may have been with regard to procedural
guidelines, norms, criteria, regulations and prescripts
in the
selection process, the entire exercise is rendered completely futile
if the constitutional and legislative imperatives contained
in the
aforementioned sections are overlooked. What is called for is more
than a mere mechanical allocation of points and a mere
say-so that
regard has been had to the democratic values and principles.
The
Schools Act has brought about a drastic change in the governance of
public schools. Extensive new powers have been allocated
to school
governing bodies in terms of the Schools Act as part of the process
of the democratisation of school governance in order
to give parents
a bigger say in the education of their children. These powers are,
inter alia:
the
governance of a public school has now been entrusted to its
governing body (sec. 16(1) of the Schools Act);
the
governing body must develop a mission statement for the school, a
code of conduct for learners; determine times of the
school day,
administer the school’s property; recommend the appointment of
educators and non-educator staff (sec 20(1) thereof);
it
may even be allocated functions with direct financial implications
upon application to the Head of Department (sec. 21 thereof).
With
these vast new powers and functions, however, come vast new
responsibilities and obligations. One of these is to recognise and
address the need to correct the imbalances of the past as far as
recommendations for the appointment of educators are concerned.
In
the matter before us the governing body has clearly failed to meet
this responsibility and statutory obligation.
28. There
are therefore no grounds, either as advanced by the applicants or any
other grounds, to review the Head of Department’s
decision to
decline the governing body’s recommendation for the appointment of
Ms Matthews to the vacant post.
By
letter dated 19 December 2002 (Annexure FA 11 to the founding
affidavit) the Head of Department had advised the governing
body to
act in accordance with section 6(3)(c) of the Employment Act (i.e. to
make another recommendation for consideration by the
Head of
Department) or to pursue any other remedy.
The
applicants have elected to pursue these review proceedings,
accordingly it would not be competent for us to remit the matter in
terms of sec. 6(3)(c) of the Employment Act.
29. As
far as costs are concerned, there is no reason why we should not
order that costs follow the result.
The
Department of Education had offered to make a temporary educator
available to the school, which offer had been refused. In addition
there is a great deal of merit in Mr. Danzfuss’ submission that
much of the urgency which had prompted the initial urgent application
had been caused by the applicants themselves. The urgency was mostly
contrived.
It
behoves the applicants not, in my view, to argue that it had been
necessary to approach this Court on an urgent basis for relief.
30.
I
would dismiss the application with costs.
___________
SA
MAJIEDT
JUDGE
I
concur and it is so ordered.
___________
F.D.
KGOMO
JUDGE-PRESIDENT
ADVOCATE FOR THE
APPLICANTS : ADV JI DU TOIT
ADVOCATE
FOR THE FIRST RESPONDENT : ADV FWA DANZFUSS
ATTORNEY FOR THE
APPLICANTS : HUGO, MATTHEWSON & THEUNISSEN INC.
ATTORNEY
FOR THE FIRST RESPONDENT : HAARHOFFS INC.
DATE
OF HEARING : 2003-05-02
DATE OF
JUDGEMENT :