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[2000] ZAWCHC 7
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Bel Porto School Governing Body and Others v Premier of the Province, Western Cape and Another (12126/99) [2000] ZAWCHC 7 (21 September 2000)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO:
12126/99
DATE:
21-9-2000
In
the matter between:
BEL
PORTO SCHOOL GOVERNING BODY
First
Applicant
VERA
SCHOOL GOVERNING BODY
Second
Applicant
DOMINICAN-GRIMLEY
SCHOOL GOVERNING
BODY
Third
Applicant
JAN
KRIEL SCHOOL GOVERNING BODY
Fourth
Applicant
ALTA
DU TOIT SCHOOL GOVERNING BODY
Fifth
Applicant
TAFELBERG
SCHOOL GOVERNING BODY
Sixth
Applicant
PIONEER
SCHOOL GOVERNING BODY
Seventh
Applicant
ELJAPA
SCHOOL GOVERNING BODY
Eighth
Applicant
GLENDALE
SCHOOL GOVERNING BODY
Ninth
Applicant
PAARL
SCHOOL GOVERNING BODY
Tenth
Applicant
DE
LA BAT SCHOOL GOVERNING BODY
Eleventh
Applicant
and
THE
PREMIER OF THE PROVINCE,
WESTERN
CAPE
First
Respondent
THE
MINISTER OF EDUCATION OF THE
PROVINCE
OF THE WESTERN CAPE
Second
Respondent
JUDGMENT
BRAND,
J;
This
is an application for review. The 11 applicants are governing bodies
of schools within the Province of the Western Cape. All
of them are
schools for learners with special education needs referred to by the
acronym "Elsen Schools". The learners
involved all suffer
from learning disorders or from physical and/or mental disabilities
such as autism, epilepsy, cerebral palsy,
blindness and deafness.
First and second
respondents are respectively The Premier and the Minister of
Education for the Province of the Western Cape.
Initially applicants
.sought an order under section 32 of the Constitution, No. 108 of
1996 ("the Constitution") that
respondents be compelled to
provide them with certain reports and information concerning the
appointment of so-called "general
assistants" at
applicants' schools. By general assistants is meant non-teaching
members of the applicants' staff, such as
drivers, class aids,
clerks, labourers etcetera.
After
respondents filed their answering affidavits, applicants amended
their notice of motion. The.import of the amendment is that
the
applicants no longer seek any reports or information. The relief
they now seek appears from prayers
1 and 2 of the amended notice of motion. The relevant part of these
prayers reads as follows:
"1.
Declaring the respondents' failure to employ the general assistants
presently employed by the applicants to be in conflict
with the
fundamental rights entrenched in Chapter 2 of the Constitution.
2. Directing the
respondents to employ the general assistants presently employed by
the applicants."
Applicants also seek an
order that respondents be directed to pay the cost of the
proceedings, including the costs pertaining to
the relief sought in
the notice of motion, as originally formulated.
Background
The
exact nature of the issues between the parties and the factual
background against which these issues are to be decided appear
from
what follows.
The Western
Cape Education Department ("WCED") has a Directorate
dealing specially with Elsen Schools. At present there
are 78 such
schools involving approximately 12 400 learners who fall under the
auspices of this special Directorate. Learners in
Elsen Schools have
special needs. What is pertinent for the purposes of this case, they
need assistance - depending to a certain
extent on the
nature
of their disability - with things such as dressing, bathing,
travelling and assistance to teachers in classes. These functions
are
all performed by so-called general assistants.
During
September 1995 the WCED took over responsibility
for
all schools and educational
institutions in the Western
Cape. Prior thereto these schools
and institutions had been administered by four separate departments,
based on the previously existing
Tricameral system, namely the Department of Education and Training
and the three departments of
education of the House of Assembly, the
House of Delegates and the House of Representatives respectively.
Each of these four separate
education departments had a
sub-department dealing with Elsen Schools. The 11 applicant schools
all provided for white children
only and they were thus attached to
the Department of Education of the House of Assembly. At present
these schools areattended
by learners from all races.
Prior
to the merger of the different departments of education in September
1995, the Department of the House of Assembly had an
arrangement with
Elsen Schools regarding the employment of general assistants, which
was different to the system employed by the
three other departments.
Whereas the three other
departments
employed and paid the general assistants at their Elsen Schools
directly, the general assistants at the House of Assembly
schools
were employed and paid by the governing bodies of the schools. The
Department provided the schools with a subsidy to reimburse
them in
part for the expenses incurred in paying the salaries of the general
assistants.
After
the merger in September 1995, the differences regarding the
employment of general assistants persisted. At the 12 former House
of
Assembly Elsen Schools, including the 11 applicants, the general
assistants were still employed and paid by the governing bodies
while
at the other 66 Elsen
Schools
these workers were paid by the WCED. The former House of Assembly
schools were disadvantaged by the system in
that
the subsidy
they received
for salaries did not
cover
the salaries
of the general
assistants in full. This, in
substance, was the factual position when the application was
launched.
The applicants felt that
they were unfairly discriminated against. They therefore sought
information from respondents which would,
so they hoped, serve as a
basis for a further application by them to compel the WCED to treat
applicants on the same footing as
all other Elsen Schools, by
employing their general assistants directly, or as it was succinctly
stated on behalf of first applicant:
"Although the
applicants only seek information at this stage of the application,
the applicants in the final instance merely
wish to be treated on the
same footing as all other Elsen Schools in the Western Cape."
In their answering
affidavits, respondents agreed with applicants that they were
entitled to the same treatment as other Elsen Schools.
In fact, so
respondents state, one of the very first objectives of the WCED,
after the merger of the schools from different departments,
was to
create a system of parity between all schools.
The
main answering affidavit .on behalf
of respondents was deposed to
by
the Superintendent-General of the WCED, Mr Brian O'Connell. When the
WCED took over the functioning of the four erstwhile departments,
O'Connell explains, it was confronted with many wide-ranging
disparities between the schools administered by them. Consequently,
the WCED was confronted with the formidable task of pooling
resources, staff and finances in order to ensure that education, in
the Western Cape will be conducted on a fair and proper
basis.
This rationalisation programme, he states, has been ongoing for over
four years and has .not yet been finalised.
What also appears from
O'Connell's affidavit is that, as with all other government
departments, the WCED also has to operate within
the budgetary
constraints imposed on it by Government. As with most, if not all
other provincial government departments, the WCED
simply does not
have sufficient funding. It has to utilise the amount allocated to it
to the best of its ability. It is also obliged
to give effect to the
constitutional imperatives of promoting equity within the educational
context for previously disadvantaged
communities. In practical terms
the WCED was and is thus confronted,
inter alia
, with a
shortage of classrooms, books and other educational resources. The
consequent problems were exacerbated in that the WCED
had to comply
with national policies and agreements which involved the Department
in an unprecedented staff rationalisation exercise
and payment in
excess of R416 million in respect of voluntary severance benefits.
The
employment and restructuring of staff within the budgetary
constraints of .the Department, O'.Connell says, was an aspect of
great complexity and sensitivity which necessitated the careful
balancing of the needs of various schools and other institutions.
O'Connell then proceeds to deal at length with the extended process
of consultation and deliberation which has gone into determining
the
staffing levels at the various education institutions operated by the
WCED.
Inter alia
,
task teams were appointed to investigate the position of all
non-teaching
staff at these
institutions and to make
recommendations
as to the norms that should be
applied in the so-called
"provisioning
of posts".
It
appeared that the task team interviewed many people and considered
and discussed numerous documents. Eventually they brought
out their
report containing suggested guidelines for personnel provisioning
scales. These guidelines formed the basis of further
discussions with
various interested parties, including school principals.
Consequent upon these discussions,
the
guidelines for personnel
provisioning were revised and amended in subsequent drafts. These
subsequent drafts then formed the subject
of further discussions with
trade unions attached to the Provincial Bargaining Commission.
Thereafter, personnel provisioning scales
were prepared for approval
by the various officials and functionaries within the Provincial
Government and eventually by the Cabinet
of the Western Cape itself.
The Cabinet's final approval of these scales was only conveyed to the
WCED on 2 November 1999 i.e.
shortly before the present application
was launched.
The
personnel provisioning scales or measures, as finally approved by-the
Cabinet, is
annexed to
O'Connell's affidavit as Annexure BC22. For the sake of convenience I
will refer to this important document simply as
"BC22". The
general plan embodied in BC22, so O'Connell stated in his affidavit
deposed to on 14 February 2000, now stands
to be implemented. BC22
has certain Annexures. Three of these Annexures are relevant for
present purposes, namely Annexure A3,
A4 and A5.
As an introduction to A3
and A4 it is stated that:
"Owing to the fact
that schools for special education have additional needs to those or
ordinary schools, weighting factors
have to be taken into
consideration when allocating posts to these schools. These factors
are essentially to make provision for
the performing of functions
such as giving assistance with bathing, dressing and feeding of
learners with special needs."
It appears that these
weighting factors had been determined in consultation with the
sub-department within the WCED responsible
for Elsen Schools.
Annexure A3 contains a list of all Elsen Schools together with a
weighting factor attributed to every particular
school. So, for
example, second applicant (which is a school for autistic learners)
has a weighting factor of 9. The same weighting
factor is also
attributed to other schools for autistic learners, formerly governed
by other departments.
The
consequence of applying this weighting factor, for example, is that
second applicant, with its enrolment of 77 learners, will
be entitled
to the same number of non-teaching staff as a mainstream school with
an enrolment of
693
learners.
To give another
example, the weighting
factor
allocated to first applicant that provides education for learners
with cerebral palsy and/or learners who are severely mentally
handicapped is 4, while the weighting factor for 7
th
applicant, a school for the blind,
is 5.
Annexure
A4 provides the norms for determining the number of staff for hostels
attached to Elsen Schools. It also employs the principle
of weighting
factors, although the weighting factors differ from those set out in
Annexure 3. Thus, for example, the weighting
factor for second
applicant in Annexure 4 is 4.5 as opposed to the 9 in Annexure 3 and
for 7
th
applicant, 2.5 as opposed to 5 in
Annexure 3.
Apart
from the
benefits derived
from the system of weighting factors, further benefitsfor Elsen
Schools are provided for in Annexure A5 to be BC22.
The introduction
to this Annexure reads as follow:
"Besides the
abovementioned post allocation, a need exists for drivers and class
aids at schools for special education. The
need for such posts differ
from institution to institution as well as from year to year, subject
to the enrolment of needy pupils
who require their services. It has
been accepted that an allowance be paid to these schools so that
these services can be purchased."
Annexure 5 contains, in
table form, the different amounts pertaining to learners with
different needs. By way of example,
I give the first three
entries in these tables:
"
Type of school:
Mentally handicapped
Class aid: R700 per
learner.
Driver:
R700 per learner.
Autistic
Class
aid:
R2 100 .per learner.
Driver:
R1
700 per learner.
Sight/hearing impaired
Class
aid:
R500 per
learner.
Driver:
R700 per learner."
Finally,
O'Connell responded to applicants' complaint that they i.e.
applicants themselves are compelled to raise funds in order
to pay
the salaries of their general workers. O'Connell's answer to this is
a reference to:
"The
sad fact that
the State
simply does not have sufficient funds to meet all of the needs of all
of the educational institutions and pupils in the
country."
As a consequence, he
states, all education institutions in the Western Cape have to
participate in various fund-raising activities
in order to meet their
requirements.
The
answering affidavits were filed on 15 February 2000. Applicants filed
their replying affidavits on 26 April 2000. On 8 August
2000,
applicants effected the fundamental amendment to their notice of
motion that I have already alluded to. The consequence of
the
amendment was, in substance, that applicants are no longer seeking
information but that they are seeking an order compelling
the WCED to
employ the general workers who are at present
employed
by applicants. In support of the relief sought in their amended
notice of motion, supplementary affidavits were filed by
applicants
on 1 September 2000. The supplementary affidavits are primarily based
on the contents of Annexure BC22 to O'Connell's
answering affidavit.
The first complaint by some of the applicants on the basis of this
document is that upon implementation of
the personnel provisioning
measures contained in BC22, the WCED will provide them with a lesser
number of general assistants than
the number "currently employed
by. applicants themselves. This complaint is not shared by all the
applicants because it appears
from applicants' own calculations that
some of them will have more general assistants than currently
employed by them when BC22
comes into operation.
Applicants'
second complaint pertains to all of them. It is formulated as follows
in the supplementary founding affidavit on behalf
of first applicant
and echoed almost
verbatim
on behalf of the other applicants:
"The implementation
of this formula (i.e. BC22) at other Elsen Schools where all general
assistants are in the employ of WCED
would mean that many general
assistants would have to be redeployed or otherwise retrenched. If
the WCED redeploys these workers
at the applicant schools, loyal
workers with many years' service would have to be retrenched by the
applicant schools, which would
be most unfair and would probably lead
to a serious drop in morale amongst the remaining workers."
Furthermore,
applicants alleged:
"It is important to
bear in mind that general assistants at applicant schools assist
learners with most intimate tasks (like
personal hygiene) and that
the personal relationship that exists between assistants and learners
is important for the effective
functioning of these schools."
In
response to applicants' supplementary affidavits,
respondents
filed supplementary answering affidavits deposed
to
by the Director Personnel Management of the WCED, Mr
Gerald
Elliott. As to the objections by some of the applicants that the WCED
will provide them with a lesser number of general assistants
than
those at present employed by applicants themselves, the answer by
Elliott on behalf of respondents is two-fold.
Firstly,
that the formulae reflected in BC22 are the result of an exhaustive
process of investigation, consultation and input
by
e
xperts;
that these formulae apply to all schools in the
Western
Cape and that the WCED is not at liberty to negotiate exceptions
thereto on an
ad hoc
basis
with individual
schools. Such
ad hoc
exceptions, Elliott
states, will give, rise to great satisfaction among various interest
groups that the WCED had to consider. Secondly,
with reference to the
objection that applicants will have to lose general assistants when
BC22 becomes operative, Elliott again
points out, as O'Connell did in
the original answering affidavit, that applicants are not only at
liberty, but indeed under an
obligation, to make an attempt to
generate their own funds so as to supplement
the
personnel complement provided by the WCED, where necessary.
As
to the applicants' apprehension that the implementation of the
personnel provisioning measures provided for by BC22 may result
in
the retrenchment of the general assistants currently employed by
applicants, Elliott concedes that this apprehension is well-founded.
More particularly, he concedes that the implementation of the BC22
measures will have the effect of reducing posts at schools where
general assistants are currently employed by the WCED; that that in
turn will result in certain general assistants who are WCED
employees being declared "in
excess of staff requirements" and attempts will have to be made
to
have these
access
staff members redeployed at other schools,
including
applicants' schools.
Such
redeployment or
transfers to
other schools, Elliott states, will however be effected in
consultation with the governing body of the recipient schools.
The
governing body concerned will be entitled to decline to accept a
particular transfer, provided that the governing body will
be
required to motivate its objection to the candidate concerned.
Elliott's
further answer to the applicants' objection
that
they will be compelled to employ general, assistants
from
other schools is that this objections is both exaggerated and
unreasonable. The objection is unreasonable, Elliott says,
essentially
because it requires the WCED to renege on an agreement
and to retrench its own employees so as to accommodate the
applicants' present
employees. It is exaggerated for two reasons;
first, the staff who are to be redeployed will be perfectly capable
of performing
their duties at applicants' schools. Those staff, after
all, will be performing exactly the same functions as at the school
to
which they were previously attached. Secondly, the probabilities
are that applicants will continue to employ some of their present
general assistants who cannot be employed by the WCED from their own
resources.
At
the hearing of the matter, applicants were represented by Mr
Van
Rooyen
. who appeared
with Mr
Van der Berg
while Mr
Oosthuizen
appeared on behalf of the respondents.
Administrative justice
The
first basis.for applicants' case relied upon by Mr
Van
Rooyen
was applicants'
fundamental right enshrined by section 33 read with section 22 of
Schedule 6 of the Constitution i.e "the
right to administrative
action that is lawful, reasonable and procedurally fair". With
reference to these constitutional provisions,
Mr
Van
Rooyen
contended that
the finalisation of the present policy in respect of the appointment
of general assistants by the WCED was both unreasonable
on the merits
as well as procedurally unfair.
In
support of his .contention that the WCED acted procedurally unfairly,
Mr
Van
Rooyen's
submission was that the WCED had
failed to give the applicants a proper opportunity to make
recommendations with regard to its policy
in respect of the
appointment of general assistants prior to the finalisation of this
policy.
I will first deal with
the contention that the policy is unreasonable on the merits. In this
regard it must be borne in mind that
the Courts have traditionally
been reluctant to interfere with administrative decisions regarding
affairs of budgetary policy.
I can see at least two reasons for this
reluctance. Firstly, such decisions usually amount to what has aptly
been described, with
reference to spiders' webs as "polycentric"
by Professor Lon Fuller in the
(1978) 92
Harvard Law Review
353
when he explained the effect of interference with these
polycentric decisions as follows:
"A pull on one
strand will distribute tensions after a complicated pattern
throughout the web as a whole. Doubling the original
pull will, in
all likelihood, not simply double each of the resulting tensions, but
will rather create a different complicated
pattern of tensions. This
would certainly occur for example if the double pull caused one or
more of the weaker strands to snap.
This is a polycentric situation
because it is many-centred. Each crossing of the strands is a
distinct centre for distributing
tensions."
The
second reason for the mentioned reluctance on the part of the Courts
to interfere with budgetary decisions is that administrative
authorities are notoriously under-budgeted in the sense that they
cannot meet all their financial needs and consequently, have
to make
difficult determinations of priority and consequent sacrifices. These
sentiments appear
from
the following statement by Sir
Thomas
Bingham
,
Master of the Rolls in
R
v Cambridge Health Authorities
1995(2) All ER 129 (CA) 137d-f:
"I
have no doubt that in a perfect world any
treatment
which a patient or patient's family
sought
would be provided if doctors were willing
to
give it, no matter how much it costs,
particularly
when a life was potentially at stake.
It
would, however, in my view, be shutting one's
eyes
to the real world if the Court were to
proceed
on the basis that we do live in such a
world.
It is common knowledge that health authorities of all kinds are
constantly pressed to make ends meet. They cannot pay their
nurses as
much as they would like. They cannot provide all the treatments they
would like. They cannot purchase all the extremely
expensive medical
equipment they would like. They cannot carry out all the research
they would like. They cannot build all the
hospitals and specialist
units they would like. Difficult and agonising judgments have to be
made as to how a limited budget is
best allocated to the maximum
advantage of the maximum number of patients. That is not a judgment
which the Court can make. In
my judgment it is not something that a
health authority such as this authority can be fairly criticised for
not advancing before
the Court."
It
is clear, in my view, that both these fundamental truisms find
application in this case.
Having
regard thereto I find myself unpersuaded
that
I can interfere with the decisions of the WCED which are
embodied in Annexure BC22. In fact,
Mr
Van Rooyen
made it clear in argument that applicants are not asking for BC22 to
be set aside. To the contrary, applicants specifically want
BC22 to
be implemented with the exception that they want all the general
assistants currently employed by them to be employed by
the WCED. The
first problem I have with this approach is that insofar as some
applicants are employing more general assistants
than they will be
entitled to in terms of BC22, the effect of the order sought by the
applicants will be to prefer these applicants
to other Elsen Schools
in the same position.
My second problem is that
it will compel the WCED to renege on their agreement with trade
unions and their present employees individually.
I am simply not
persuaded that such order will be competent.
As
to the applicants' reliance on procedural unfairness, Mr
Oosthuizen's
argument was that if it is to be accepted that applicants were
entitled to be heard and to be consulted prior to the finalisation
of
the policy embodied in BC22, their remedy would be to have
the
whole scheme embodied in BC22 to be set aside. That, however,
Mr
Oosthuizen
pointed out is the very order that applicants do not seek. They want
BC22, but as amended in their favour. Such an order, Mr
Oosthuizen
submitted, cannot be granted. I agree with this submission. As I
understand the
audi
alteram partem
rule, the
infringement thereof justifies the setting aside of a particular
administrative decision. The administrative authority
must then
reconsider the matter and take a new decision after the provisions of
the
audi
rule have been complied with. An infringement of the
audi
rule does not justify an amendment to the decision in favour of
the aggrieved party, particularly not when such amendment
will result
in another breach of the
audi
rule, vis-a-vis those who are also affected by the polycentric
decision.
Infringement
of other constitutional rights
As
a further basis for the relief sought by applicants, Mr
Van
Rooyen
contended that
refusal by the WCED to employ the general assistants currently
employed by applicants constitutes an infringement
of the
constitutional rights of the learners in applicants' schools. In
amplification of this contention, Mr
Van
Rooyen
submitted that
the respondents conduct amounted to an infringement of the following
fundamental rights of learners:
(a)
The fundamental rights of children,
section
28 of the
Constitution.
(b)
The right to dignity, section 10.
(c) The right to life,
section 11.
(d) The right to freedom
and security of the person, section 12.
(e) The right to housing,
section 26.
(f) The right to health
care, section 27.
(g) The right to
equality, section 9.
In the view that I hold
of the matter I find it unnecessary to fully record Mr
Van
Rooyen's
argument as to why and how each of these fundamental
rights of the learners have been infringed. I believe that the answer
to Mr
Van Rooyen' s
submissions are to be found on a different
level.
The
conduct of the WCED complained of by the applicants is the
Department's failure to appoint the general assistants currently
employed at applicants' schools. According to applicants'
supplementary papers they will be prejudiced in two ways as a result
of this conduct. Firstly, they will not have enough general
assistants. Secondly, they will have different general assistants of
a lesser quality. As to the .first complaint regarding the number of
assistants, Mr
Van Rooyen
conceded that in order for applicants to obtain more assistants than
they will be entitled to in terms of the BC22 formula, one
of two
things will have to happen; namely, the whole of BC22 will have to be
set aside, or they will have to be preferred to other
Elsen Schools
who will be subject to the BC22 formula. Mr
Van
Rooyen
also conceded
that an order of this Court that would have any one of these two
results would not be acceptable.
The consequence of these
two concessions is, however, that it is no longer open for applicants
to contend that they will not have
enough general assistants if BC22
is implemented. As a further consequence, it is no longer open to
applicants to rely on constitutional
infringements which are
dependent on the supposition that applicants will have an
insufficient number of general assistants.
Applicants'
second complaint alluded to in argument is
that
as a result of the scheme adopted by the WCED they will
have
assistants of a lesser quality. I believe that on the
papers
before me there is more than one answer to this
complaint.
First,
according
to the uncontroverted
testimony
on behalf of respondents, the WCED employees who are to be redeployed
are currently performing the very same functions
that they will be
performing at applicants' schools. Secondly, if an applicant school
can properly motivate its view that a particular
candidate for
redeployment is not of the required standard, he or she will not be
appointed at that school: Thirdly, applicants
have not made out a
case that they will not be financially able to appoint any of their
present general assistants from their own
resources. In this regard
it should be pointed out that on the original founding papers,
applicants' case was that they cannot
afford to pay
all
their general assistants. On respondents' answering papers it is
clear, however, that applicants will not be required to pay all
their
general assistants when BC22 is implemented. From applicants'
supplementary papers it appears that although che position
of the
different applicants are not the same in this regard, the WCED will,
at worst, pay the majority of the general assistants
currently
employed by every applicant. That is why I say that on the papers as
a whole, applicants have not made out a case that
they cannot afford
to pay at least some of these present general
assistants
from their own funds.
The result of all this is
that applicants have failed to make out a case that upon
implementation of Annexure BC2 2 the standard
of their full staff
complement of general assistants will be so low that the life,
health, dignity or interest of the children
for whom they are
responsible, will be endangered or compromised.
There
is another reason why, in my view, applicants' reliance on an alleged
infringement of constitutional rights
cannot
succeed. It relates to the general approach by the Courts to the
constitutional protection of socio-economic or so-called
"second
generation" rights. In this regard it appears that our Courts
will show the same deference to administration
when it comes
to budgetary policy as it has shown
under the common law. Thus, it is stated by
Chaskalson,
P
in
Soobramoney
v The Minister of Health,
Kwa-Zulu
Natal
1993(1) SA 765 CC
in paragraph 11 at 771H:
"What is apparent
from these provisions is that the obligations imposed on the State by
sections 26 and 27 in regard to access
to housing, health care, food,
water and social security are dependent upon the resources available
for such purposes and that
the corresponding rights themselves are
limited by reason of the lack of resources. Given this lack resources
and the significant
demands on them that have already been referred
to, an unqualified obligation to meet these needs would not presently
be capable
of being fulfilled. This is the context within which
section 27(3) must be construed."
In paragraph 29 at page
776C:
"The Provincial
Administration which is responsible for health services in Kwa-Zulu
Natal has to make decisions about the funding
that should be made
available for health care and how such funds should be spent. These
choices involve difficult decisions to
be taken at the political
level in fixing the health budget and at the functional level in
deciding upon the priorities to be met.
A Court will be slow to
interfere with rational decisions taken in good faith by the
political organs and medical authorities whose
responsibility it is
to deal with such matters."
It
is also significant, in my view, that in paragraph 30 of the judgment
in the
Soobramoney
case,
Chaskalson,
P
refers, with approval
to the
dictum
by the Master of the Rolls in the
Cambridge
Health Authority
case
that I have quoted above. This, in my view, is a clear indication
that the constitutional approach is not much different from
the
common law approach to these difficult matters where the
administrative authority is compelled to make a choice between
unsatisfactory
options.
On the facts before me,
respondents have made out a case that they do not have sufficient
resources to satisfy everybody's needs,
but that they have over a
period of some four years of consultation and deliberation, worked
out a scheme of general application
that will be equally fair (or
unfair) to everybody concerned and that they have the genuine
intention to implement that scheme
as soon as practically possible.
In these circumstances, and although I have great sympathy with the
applicants and the unfortunate
children for whom they care with
obvious dedication, I cannot interfere with respondents scheme of
general application in a manner
that may throw the whole scheme out
of kilter.
For these reasons the
application for the relief sought in paragraphs 1 and 2 of the notice
of motion cannot succeed.
The information
application
This brings me to the
question of costs, more particularly the costs of the application for
information which was abandoned after
respondents filed their
answering papers. Mr
Van Rooyen's
argument in this regard was,
in substance, that applicants were entitled to the information sought
in their original notice of
motion and that if such information had
not been provided in respondent's answering papers, applicants would
have been entitled
to proceed with their original application.
Consequently, Mr
Van Rooyen
contended, even if applicants were
to be unsuccessful in the outcome of the proceedings as a whole, they
are entitled to costs until
the filing of the answering affidavits.
In motivating these submissions, Mr
Van Roover.
went into a
detailed analysis of the correspondence between the parties,
stretching over a period of some four years. I find it
unnecessary to
perform the same exercise. I confine myself to the general remarks
that follow.
The
application for information was based on section 32 read with Item 23
(2) (a) of Schedule 6 of the Constitution. As was pointed
out by
Davis, J
in
Inkatha Freedom Party
& Another v The Truth and Reconciliation Commission
2000(5) BCLR 534 (C) 550, the right to information guaranteed by
these provisions of the Constitution is not a right that exists
in
the abstract or, as it is formulated by
Davis,
J
:
"In short, the
context of the right must be examined within the context within which
it is claimed. The very wording of section
3 2 which contains the
phrase 'required for the exercise of rights' points in the direction
of such an enquiry, for what is required
is dependent on the facts."
Prayer
1 of the notice of motion, in its original form,
reads
like a notice for further and better discovery in terms of Rule
35(3). In the context of that request it is clear that the
information sought was required for purposes of further litigation.
For the sake of the present enquiry I will assume that applicants
were entitled to such detailed information for the purposes of
further litigation, since that
information was in any event .provided to applicants' apparent
satisfaction in respondents' answering
affidavits. For purposes of
deciding the costs issue the question is, however, whether the same
detailed information was sought
by the applicants for the same
purpose before they launched their application, i.e. in the preceding
correspondence between the
parties. Upon my reading of such
correspondence it was not. The tenor of the applicants' letters to
the WCED, in general terms,
are complaints that applicants are
discriminated against in that their general assistants are not paid
by the WCED and enquiries
as to what the WCED intended doing to
rectify this. These complaints and enquiries were answered in the
same general terms on behalf
of the WCED. An example of such response
appears from a letter to third applicant (i.e. the Dominican Grimley
School) dated 30
September 1997. The relevant portion of the letter
reads as follows:
"As
stated in our letter of 30 May 1997, the South African Schools Act
made it possible for all general assistants to become
civil servants
irrespective of their former status as employees of governing bodies
of State subsidised schools. This rule will
also be applicable to the
general assistants at the Dominican Grimley School. However, due to a
number of factors this issue could
not be finalised yet. The various
trade unions and other stakeholders must still be consulted. A
cut-back of 12% of all non-educator
posts must be implemented and the
financial implications must be taken into consideration before a
final decision could be taken
on this complicated issue. The Western
Cape Education Department will, however, try to accommodate as many
general assistants as
possible but no guarantee of'the number can be
given."
Another
example
appears from a
letter written on 27 October 1998 by the then Minister of Education
for the Western Cape to the first applicant.
The relevant part of
this letter reads:
"I wish to reiterate
that the Western Cape Education Department policy with regard to the
funding of schools is based on the
principle of equity. In the light
of this policy the WCED had identified disparities existing between
schools belonging to different
departments of the previous education
dispensation as a matter for urgent attention. Whilst I concur that
inequities in the provision
of staff at schools exist, it is
important that you locate your argument concerning the issue within
the broader historical context.
Schools in the ex House of Assembly
and the ex House of Representatives were funded differently. In the
case of Bel Porto and all
ex House of Assembly Education Department
Schools for Learners with Special Education needs, subsidies were
paid for both their
running costs and also for the salaries of
general assistants appointed by the governing bodies of the schools.
In
the light of the new dispensation and the creation of a single
education department, the WCED is committed to working towards
uniform policy practices pertaining to all schools. In the case of
non-teaching staff, my hands and that of the WCED are in fact
tied,
as the scales used to determine these allocations have to be
negotiated in the Provincial Chamber as the WCED is bound by
legislation and various collective agreements. You also should note
that the Western Cape is in the process of down-sizing and
therefore the creation of posts at
Bel Porto can
only
take place upon the abolition of poses elsewhere. There is also the
question of redeploying employees who may be in excess,
into
vacancies thus created. At this stage any vacancy that arises is
immediately frozen and only essential posts are filled."
As
we have learnt with hindsight, the ultimate approval of the general
scheme introduced in BC22 was only communicated to.the WCED
on 2
November 1999 i.e. shortly before the application, was launched. It
might be that applicants were quite justified to become
frustrated by
what one of them described as "the languid pace at which urgent
matters are addressed" by the WCED. That,
however, is not the
point. The point is that I am not persuaded that respondents failed
to provide applicants with the information
which they sought and to
which they were entitled.
For these reasons the
application should, in my view, be dismissed with costs.
BRAND,
J