Laerskool Gaffie Maree and Another v Member of the Executive Council forEducation, Training, Arts and Culture: Northern Cape Province and Others (1240/01) [2002] ZANCHC 22 (2 August 2002)

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[2002] ZANCHC 22
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Laerskool Gaffie Maree and Another v Member of the Executive Council forEducation, Training, Arts and Culture: Northern Cape Province and Others (1240/01) [2002] ZANCHC 22; 2003 (5) SA 367 (NC); [2002] 12 BLLR 1228 (NC) (2 August 2002)

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:
1240/01
Date
heard: 2002-06-21
Date
delivered: 2002-08-02
In
the matter of
:
LAERSKOOL
GAFFIE MAREE FIRST APPLICANT
THE
GOVERNING BODY OF THE LAERSKOOL
GAFFIE
MAREE SECOND APPLICANT
and
MEMBER
OF THE EXECUTIVE COUNCIL FOR
EDUCATION,
TRAINING, ARTS AND CULTURE:
NORTHERN
CAPE PROVINCE FIRST RESPONDENT
HEAD
OF THE DEPARTMENT OF EDUCATION,
TRAINING,
ARTS AND CULTURE: NORTHERN
CAPE
PROVINCE SECOND RESPONDENT
JOHN
LUCAS EDWARDS THIRD RESPONDENT
Coram:
MAJIEDT
J
JUDGEMENT
MAJIEDT
J:
The
Applicants’ papers as well as the heads of argument of both
Counsel in this matter are in Afrikaans, however the answering
affidavits of the Second Respondent are in English. Given the end
result of this matter, I have decided to deliver my judgement
in
English.
The
dispute between the parties concerns the appointment of a headmaster
to the vacant post on the staff establishment of the First
Applicant. Only the First and Second Respondents are in opposition
to the application. The Third Respondent has been joined as
a party
by virtue of his interest in the matter, as will appear more fully
later herein. The Applicants seek an order as follows:
That
the Second Respondent’s decision not to appoint the Third
Respondent in the aforesaid vacant post as the principal of the
First Applicant be rescinded and set aside;
A
declaratory order that the Third Respondent is entitled to be
appointed as headmaster of the First Applicant with effect from
July 1 2001, on the basis of the recommendation to that effect made
by the Second Applicant;
That
Second Respondent be ordered to do the following within seven days
from the date of this order:
to
advise the Applicants in writing that the recommendation of the
Second Applicant that Third Respondent be appointed in the
vacant
post as headmaster of the First Applicant is accepted with effect
from July 1 2001;
That
the Third Respondent is appointed accordingly and that all things
necessary are done to give effect to such appointment;
That
the First and Second Respondents pay the costs of this application
jointly and severally on the scale as between attorney
and client.
In
his heads of argument Mr Du Toit, who appears for the Applicants,
has conceded that since it is apparent on the papers
that no
decision has as yet been taken, the Applicants cannot proceed
with the relief sought in paragraph 2(a) above.
The
Applicants, however, persist in seeking relief in terms of the
balance of paragraph 2 above.
The
Second Respondent has deemed fit to raise a number of points
in
limine
,
all but one of them devoid of any substance whatsoever. The only
point
in
limine
which has some merit and which requires adjudication at this
stage is the alleged non-joinder of certain other respondents.

This is an important aspect and I shall deal with in considerable
detail later.
The
following aspects are common cause in this matter:
A
vacancy for the post of headmaster of the First Applicant had
arisen; this fact was reported to the Second Respondent who had
then
advertised it in the Education Gazette of April 2001.
A
selection committee of the Second Applicant compiled a shortlist of
applicants on 24 May 2001 consisting of five candidates who
were
then invited for interviews.
The
selection committee conducted interviews with the five candidates
and awarded points to each of the candidates. The selection
committee submitted a list of three names to Second Applicant with
the Third Respondent’s name on top followed by those of a
Mr Van
der Westhuizen and a Mr N Sauer.
The
Second Applicant, utilizing a standard form known as NCK2, submitted
the name of the Third Respondent to the Second Respondent
as its
first choice for appointment to the vacant post. Mr JMP van
der Westhuizen was listed as the second choice and Mr
NE Sauer as
the third choice.
On
25 June 2001 a regional director of the Department of Education
advised the Applicants that the recommendation of the Second
Applicant was referred back to it for the following reasons:
Preference
should be given to candidates within the Province, and
An
indication should be given why Mr Sauer (the third choice) had
not been recommended for appointment, since he had been
acting
in that post at the particular school where he was still a
member of staff.
Until
date hereof the Second Respondent has not made any appointment
to the vacant post.
It
is the Applicants’ case that, having regard to the
provisions contained in sec 6(3)(b) of the Employment
of
Educators Act (No. 76 of 1998, “
the
Employment Act
”)
the Second Respondent has no basis in law on which to decline
the recommendation made to him by the Second Applicant.
The
Applicants further aver that the Second Respondent’s
refusal to implement the Second Applicant’s recommendation
and to make an appointment accordingly, contravenes
sec 6(3)(a) of the Promotion of Administrative Justice

Act (No 3 of 2000).
It
is convenient at this stage to deal with the point of non-joinder
which has been taken
in
limine
by the Second Respondent. The Second Respondent avers that the
non-joinder of the other two candidates recommended as second
and
third choices by Second Applicant, namely Messrs Van der Westhuizen
and Sauer, constitutes a fatal defect in the proceedings.
The
Applicants on the other hand aver that, while these candidates may
have an indirect interest in the matter, their interest
is not of
the nature that requires them to be joined in these proceedings.
It
is now trite law that a party must of necessity be joined in
proceedings if he/she/it has a
substantial
direct and legal interest
in
those particular proceedings; a mere commercial or financial
interest itself is not sufficient.
See
inter
alia
:
Amalgamated
Engineering Union v Minister of Labour 1949(3) SA 637 A
at
659;
Hartland
Implemente (Edms) Bpk v Enal Eiendomme Bk en andere 2002(3) SA 653
(NC)
at
663 F-G and cases there cited.
Section
6(3)(b) of the Employment Act reads as follows:
“
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).”
Counsel
for the Second Respondent, Mr Danzfuss, has submitted that any one of
the three candidates nominated (and not only the first
choice, the
Third Respondent), could still be appointed by the Second Respondent
in the vacant post of headmaster. Mr Du Toit, for
the Applicants,
holds a contrary view and has argued strongly that sec 6(3)(b)
above, read in context with the rest of the provisions
of the
Employment Act, of necessity implies that the first choice
recommendation (Third Respondent) has to be appointed by the Second
Respondent.
The
aforementioned provision has been pronounced upon in this Division
in two reported judgments namely:
High
School Carnarvon and another v MEC for Education, Training, Arts &
Culture of the Northern Cape Provincial Government and
another
[1999]
4
All SA 590
(NC);
Douglas
Hoërskool en ‘n ander v Premier, Noord-Kaap
1999 (4) SA 1131 (NC).
In
neither one of these cases, however, has the question arisen as to
whether sec 6(3)(b) obliges the Head of Department to appoint
a
governing body’s first choice recommendation. What these two
decisions clearly outline is that a Head of Department, such as
the
Second Respondent, is obliged to act within the confines of
sec 6(3)(b) or, put differently, he can only decline a
recommendation
made to him if any of the five scenarios postulated in
sec 6(3)(b)(i)-(v) exists.
8.1 While
there is much to be said for Mr Danzfuss’s submissions, I am of the
view that the Applicants’ failure to join the two
candidates, Van
der Westhuizen and Sauer, does not render the application fatally
defective. I am of the view that Van der Westhuizen
and Sauer cannot
at this stage lay claim to appointment to the post. The Third
Respondent has clearly been joined in these proceedings
by the
Applicants, since they seek a declaratory order from this Court that
Mr Edwards is entitled to be appointed as headmaster
of the
First Applicant. If, for example, I should at the end of the day
heed the request of the Applicants for a declarator as
aforementioned,
then that is the end of the matter as far as the
other non-joined candidates are concerned. Conversely, should I
decline to do so
and refer the matter back to the Second Respondent
to take a decision on the matter, it does not in my view follow that
any one of
the other recommended candidates are entitled to be either
recommended again by the Second Applicant or more importantly, to be
appointed
by the Second Respondent. I shall in due course provide
further reasons for my last mentioned view, since this lies at the
crux
of this matter.
8.2 Consequently
there is no merit in the point
in
limine
,
in my view.
The
Respondents’ case, as far as the merits of the matter is
concerned, can be summarized as follows:
9.1 The
minutes of the meeting of the interviewing committee merely lists
three recommendations for the filling of the posts, namely
Messrs
Edwards, Van der Westhuizen and Sauer.
9.2 The
Second Applicant’s recommendation, set forth in the form NCK2 to
which I have already alluded, reads as follows under the
heading
RECOMMENDATIONS
BY GOVERNING BODY
:
“We recommend that one of the applicants mentioned in item 12 be
appointed to fill the vacancy”. Item 12 referred to in the
aforegoing passage lists Edwards as first choice, Van der Westhuizen
as second choice and Sauer as third choice.
9.3 According
to the Respondents’ submissions, the Second Respondent is at
liberty to appoint any one of the three educators recommended
as
aforementioned. They submit that there is no provision in law which
compels the Second Respondent to appoint the Second Applicant’s
first choice (i.e. the Third Respondent).
The
Applicants’ case is that there is only one recommendation from the
Second Applicant, namely that of the Third Respondent,
for
appointment to the vacant post. They further submit that on a
proper interpretation of the provisions contained in sec 6(3)(b)
of the Employment Act, there can
de
jure
only be one such recommendation.
11.1 It
is noticeable that the aforementioned provision in the Employment Act
refers to recommendation in the singular: “The Head
of Department
may only decline the
recommendation
of
the Governing Body of the Public School .....” (my emphasis). I
have considerable difficulty with Mr Danzfuss’s interpretation
that
the word
recommendation
as quoted aforesaid in the present case means the recommendation of
three candidates. In my view the extract quoted, read in context
with the provisions in the Employment Act which are applicable to the
present matter, do not support that submission. A similar
use of the
word
recommendation
in the singular, is of course to be found in sec 6(3)(b)(iv) and
(v).
11.2 Mr
Du Toit, for the Applicants, has correctly in my view, laid emphasis
on the fact that sec 6(3)(b)(ii) and (iii) of the
Employment Act
refers to
candidate
in the singular. This again in my view supports the interpretation
that what is envisaged is the recommendation of one candidate
for
appointment to a vacant post. There is, as far as I could ascertain,
no decided cases on this particular provision in the Employment
Act.
Counsel for the parties have also not referred me to any such
decisions.
When
one considers the provisions contained in sec 6(3)(b) of the
Employment Act in context and bearing in mind the objects
of the
Act, I am of the view that the interpretation which Mr Danzfuss
seeks to place on the said provision is untenable. In applying
the
ordinary principles in the interpretation of a statute, one is
constrained to afford to the words their ordinary grammatical
meaning and to bear in mind the context in which the words are being
used. There is, to my mind, no ambiguity whatsoever within
the
provision. I am accordingly of the view that what is envisaged in
this section is the recommendation of one person to be appointed
in
the post and in the instant case it would be the recommendation of
the Third Respondent for appointment.
Having
come to the aforesaid conclusion, the question arises as to what
relief I should grant to the Applicants. As I have indicated,
Mr Du
Toit, for the Applicants, has conceded that since no decision has
been taken as yet, the Applicants cannot proceed with the
relief
sought in par 1 of the Notice of Motion. It is clear that this
is not a matter where this Court ought to make an appointment.
The
approach by the Court in the
Hoërskool
Douglas
-case,
to which I have referred in paragraph 7.4
supra,
to
make the appointment itself, was apposite given the circumstances
and the facts of that case. The approach in the
High
School Carnarvon
-case,
also referred to in paragraph 7.4
supra
,
is the one which commends itself to me, given the fact that no
decision has as yet been taken in this matter. It is clear,
however,
on the papers before me and given the statutory duties
which the Employment Act imposes upon the Second Respondent, that it
is
imperative for the Second Respondent to take a decision in this
matter. It would therefore appear to me to be proper to refer this
matter back to the Second Respondent with a
mandamus
to
take a decision within a stipulated period, failing which the
Applicants should be authorised to return to Court on these papers,
supplemented as far as may be necessary, for further relief.
Mr
Du Toit has urged me to issue an order that, in the event that the
Second Respondent appoints a person other than the recommended
candidate, namely Third Respondent, Second Respondent should furnish
reasons for that decision. I do not think that that is an
appropriate order in this matter, given the fact that no decision
whatsoever has been taken as yet. There are other considerations
which may inform the view of the Second Respondent, which I may not
be aware of at this time. It is clear from the authorities
(the
Carnarvon
High School
and
Hoërskool
Douglas
-cases
cited herein) that the Second Respondent is severely curtailed by
the statute as to what decision he can take on the recommendation
forwarded to him by a school governing body of a public school. 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.
I am,
however, prepared to assist the Applicants to the extent that I
would issue an order that they be granted leave to approach
this
Court again on the same papers, duly supplemented insofar as may be
necessary, in the event that they continue to feel aggrieved
with
whatever decision the Second Respondent may take.
As
far as the costs is concerned, Mr Du Toit for the Applicants has
argued strenuously for a punitive costs order on the basis that
the
High
School Carnarvon
-
and
Hoërskool
Douglas
-cases
contain clear authority in this Division which authority should have
informed the Second Respondent of his statutory duties
and
responsibilities in this matter. The matter is, however, not that
simple. As I have indicated herein, there is no decided
authority
as far as I could ascertain, regarding the material aspect which
required adjudication in this matter, namely as to whether
sec 6(3)(b) of the Employment Act compels a head of department
to accept a governing body’s first choice of recommendation,
or
whether he is at liberty to make a choice from any one of a number
of candidates, nominated in order of preference. In effect,
therefore, the Second Respondent’s opposition in this matter
cannot be said to be spurious or frivolous; on the contrary, I am
of
the view that he was fully entitled to test his own interpretation
of the applicable provision. On the other hand, the Applicants
were
compelled to approach this Court in order to compel the Second
Respondent to take a decision on the recommendation forwarded
to him
by the Second Applicant. I am therefore of the view that the
Applicants are entitled to their normal party and party costs.
In
the premises I issue the following order:
This
matter is referred back to the Second Respondent and he is ordered
to make a decision on the recommendation of the Second
Applicant
dated 30/5/2001 in respect of the filling of the vacant post of
headmaster of the First Applicant.
The
Second Respondent is ordered to take such decision within 10 (ten)
days from the date of this order.
In
the event that the Second Respondent fails to take such decision
within the time period stipulated as aforesaid, or in the
event of
the Applicants seeking further relief as a consequence of such
decision, the Applicants are granted leave to approach
this Court
on the same papers, duly supplemented as may be necessary, for such
further relief as they may require.
The
First and Second Respondents are ordered to pay the costs of this
application jointly and severally, the one paying the other
to be
absolved.
___________
SA
MAJIEDT
JUDGE
ADVOCATE FOR
THE APPLICANTS:
JI
DU TOIT
ADVOCATE
FOR FIRST AND SECOND RESPONDENTS:
FWA
DANZFUSS
ATTORNEY FOR
THE APPLICANTS:
VAN
DE WALL
ATTORNEY
FOR THE RESPONDENTS:
HAARHOFFS
DATE OF HEARING: 21 June 2002
DATE
OF JUDGEMENT: 2 August 2002