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[2024] ZALMPPHC 38
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School Governing Body of Sekgopo Primary School v Limpopo Department of Education and Others (6402/2022) [2024] ZALMPPHC 38 (23 April 2024)
REPUBLIC
OF SOlITH AFRJCA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 6402/2022
In
the matter between:
SCHOOL
GOVERNING BODY OF SEKGOPO PRIMARY SCHOOL Applicant
And
HEAD
OF DEPARTMENT:
LIMPOPO
DEPARTMENT OF
EDUCATION First
Respondent
MEMBER
OF EXECUTIVE COUNCIL
FOR
THE EDUCATION, LIMPOPO
PROVINCE Second
Respondent
MORONGWA
SALOME
RAMMALA Third
Respondent
JUDGEMENT
LEDWABAAJ
Introduction
[1] As
the School Governing body referred to in section 1 read with
section
16
OF THE
South African Schools Act 84 of 1996
, the applicant is
praying for the declaratory order that the appointment of the third
respondent as the principal of Sekgopo Primary
School (the school) be
reviewed, declared unlawful and set aside. The applicant also prays
that the first respondent be ordered
to start the principal
appointment process afresh.
[2] The
first and the seconds respondent (the respondents) have filed the
opposing papers.
[3] The
appointment of the third respondent by the first respondent as the
school principal followed the
shortlisting and interview of three
candidates. In terms of the three name list submitted by the
applicant as required by
section 6(3)(c)
of the Employment of
Educators 76 of 1998( the Act) , the names submitted to the first
respondent in order of preference are Mamabolo
MA as the first
candidate with 88 score points, Maluleke NR the second candidate with
79 points and the third respondent as the
third candidate
with
72 points.
[1]
[4]
It
is not clear what prompted the investigations by the first
respondent. The investigation found that the first candidate
committed
fraud by misrepresenting her profile. This disqualified
this candidate for appointment. The second candidate was in the
meantime
appointed the principal in another school with the result
the she was no longer available for the post. In accordance with the
applicant's recommendation, the first respondent appointed the third
respondent to the post.
[5] The
appointment of the third respondent by the first respondent to the
post aggrieved the applicant.
It submits that in terms of
section
6(3)
2
of the Act read with
section 3(2)
of the
Promotion
of Administrative Justice Act 3 of 2000
( PAJA) , the third
respondent's appointment constitutes an administrative action which
affects its fair administrative rights and
that the first respondent
should have started the appointment process afresh to give the
applicant an opportunity to make representation.
The applicant avers
that it is common cause that the applicant's recommendation did not
comply with the requirement collectively
agreed upon or determined by
the National Education Minister. It reasons that because the first
candidate misrepresented her profile,
that tarnished the whole
appointment process with the result that the applicant's
recommendation that the candidates be appointed
in the recommended
preference constituted an irregularity resulting in the need that the
appointment process should have started
afresh to give the applicant
an opportunity to make an informed recommendation. Based on the fact
that the first candidate committed
fraud, the applicant submits that
its recommendation to the District Office and then to the first
respondent did not comply with
the requirements collectively agreed
upon or determined by the National Minister of Education.
[6] The
first respondent's case is that it appointed the third respondent in
accordance
with the applicant's
recommendation. It says that when it transpired that the first and
second candidates could not be appointed
to the post, it appointed
the third candidate as recommended by the applicant, with the result
that there was no need to start
the process afresh and invite the
applicant to make any representation it had already made.
[7] Apparently
because the only relevant record of the proceeding is the applicant's
record which reflected
how the third respondent was appointed, there
was no need to file any additional record referred in
Rule 53(1)(
b)
of the Uniform rules.
Discussion
[8] This
is not the legality review brought by the applicant to set aside its
administrative action. It is
expressly a review application brought
in term of
Rule 53
of the Rules of this court to review and set aside
the first respondent's decision to promote the third respondent to be
the principal
of the school.
[9] The
first respondent accepted the list submitted by the applicant and its
order of preference.
[10] The
alleged common cause that the applicant's recommendation did not
comply with the requirement collectively
agreed upon or determined by
the Education Minister is not expressly mentioned. The applicant
avers that in terms of
section 6(3)(e)
, if the government body has
not met the requirements in paragraph (b), the Head of the Department
is obliged to decline the recommendation.
[11] In
terms of
section 6(3)(b)
and
section 7
of the Act
[2]
,
the government body is required to ensure that the principles of
equality, equity, redress and representivity as well as basic
democratic values and principles governing public administration as
contemplated in section 195 of the Constitution are complied
with.
[12] I
make
the
distinction
between the
constitutional
principles of
equality,
equity,
redress and
representivity and basic values and principles governing public
administration as contemplated in section 195 of the
Constitution on
the one hand (the Constitutional principles and values) and other
considerations referred to in section 6(3)(b)
of the Act
[13] If
the Constitutional principles and values have not been complied by a
governing body, such a process
is nullity, with result that the Head
of Department has no option but to decline the recommendation for the
appointment process
to start afresh. This is because Constitutional
principles and values are foundational to our Constitution as stated
in section
1 of the Constitution. In terms of section 2 of the
Constitution, the Constitution is the supreme law of the Republic and
any conduct
inconsistent with it is invalid. It is not the
applicant's case that in its recommendation, it did not comply with
the Constitutional
values and principles of the Constitution.
[14] On
the
other
hand,
noncompliance
with other
non-Constitutional
requirements should
not necessarily lead to the Head of Department declining a governing
body's recommendation.
[15] Even
if it is conceded that it is common cause that the applicant's
recommendation did not comply with
the requirement collectively
agreed upon or determined by the Minister,
such
noncompliance does
not
offend
Constitutional
values and
principles for the
first respondent's appointment of the third respondent to be set
aside as an invalid conduct.
[16] The
respondents' case is that in filling the principal post, the first
respondent's starting point was
the applicant's recommendation. When
the investigation revealed that the first preferred candidate
committed fraud, the first respondent
sought to appoint the second
preferred candidate, only to discover that the candidate was in the
meantime promoted to another principal
post. The first respondent
then appointed the third respondent as the next preferred candidate.
The respondents correctly dispute
the applicant's assertion that
because the first preferred candidate committed fraud, that tainted
the whole recommendation process
that the whole appointment process
was
to
start afresh. If that was the intention of the Act, the applicant
would not be legally obliged by section 6(3)( c) of the Act
to submit
the candidates' names in order of preference. There is no basis to
start the appointment process afresh, in the process
risking the
appointment of the qualifying third respondent.
[17] The
applicant bases its case on the Act as the empowering legislation. In
terms of section 39(2) of
the Constitution, when interpreting
legislation, the courts are obliged to promote the spirit, purport
and objects of the Bill
of Rights. This section has introduced a new
approach to the interpretation of statutes.
[3]
The starting of the appointment process afresh while there is
qualifying third respondent cannot be in line with the section 29
education Constitutional right.
[18] Noncompliance
with the Constitutional principles is the basis on which the Head of
the Department is
obliged to decline the governing body's
recommendation. Even if there is a qualifying candidate,
noncompliance with Constitutional
principles dictates that the
recommendation be declined and the appointment process starts
de
novo.
This is because the Constitution does not allow
unconstitutional conduct to stand.
[19] The
applicant has complied with the recommendation requirements and there
is no evidence that it has
contravened the Constitutional values and
principles for the first respondent to decline the recommendation.
[20] The
applicant submits that because the first respondent did not decline
its own recommendation to allow
the appointment process to be started
afresh to give it an opportunity to make representation as an
interested party, its right
to an administrative action that is
procedurally fair was denied.
[4]
The complaint is that when the first respondent decided against
appointing the first candidate to the post, the applicant should
have
been informed and invited to make representations. The finding that
the first respondent rightly decided to accept the applicant's
recommendation makes it unnecessary to consider whether there was
compliance with the procedurally fair administrative action referred
to in section 3 of PAJA. The first respondent's decision meant it
acted on the applicant's recommendation with the result that
the
applicant cannot be heard to be complaining that the first respondent
acted on the applicant's own recommendation. From the
bar, on behalf
of the first respondent it was stated that it is acceptable that the
applicant has no capacity to investigate fraud
allegation against the
first preferred candidate.
[21] The
applicant's application fails. The applicant is the governing body
referred to in section 1 read
with
section 16
of the
South African
Schools Act 84 of 1996
. In terms of
section 16(1)
of the
South
African Schools Act 84 of 1996
, the governance of every public school
is vested in its governing body. There is no evidence as to how the
applicant raises funds
that can be used to pay the costs. The
applicant did not vexatiously pursue this application. This is not
the case where the costs
follow the results.
Order
(a) On
the balance of probabilities, the applicant has failed to prove that
the first respondent was obliged
to decline the applicant's
recommendation for the principal post of Sekgopo Primary School.
(b) The
applicant's application is dismissed.
(c) Each
party is ordered to pay its
LEDWABA
AJ
ACTING
JUDGE
OF
THE
HIGH
COURT
LIMPOPO
DIVISION: POLOKWANE
APPEARANCES
For
the applicant : Adv
SS Tebeila TA
Makela
Instructed
by:
Israel
Maenetja
Attorneys
26
Thabo Mbeki Street
Polokwane
For
the
first
respondent:
Mr
T
Nkwana
Instructed
by: State
Attorney
Polokwane
Heard
on:
26
th
February 2024
Judgement
delivered electronically on 23
rd
April 2024:
[1]
Page
66 of the bundle
22 The paraphrased
relevant part of the provision is to the effect that any promotion
to any post may only be made on the recommendation
of the school
governing body. In considering the applications, the governing body
must ensure that the principles of equity.
redress and
representivity are complied with and among others, the it must
adhere to the democratic values and the principles
refe.rred in
section 7(1)
of the Act. any procedure and requirement collectively
agreed upon or determined by the Minister for the promotion of
educators
[2]
Section
7
requires that in making appointment or filling of any post. due
regard be had to equality, equity and other democratic values and
principles contemplated in section 195 of the Constitution.
[3]
Liesching
& Others v S& Another
(2016) ZACC 41
; 2017(4) BCLR 454 (CC);
2017(2) SACR 193(CC)- paragraphs 21 and 30
[4]
Section
33 of the Constitution gives everyone the right to
administrativeaction tha1 is lawful, reasonable and procedurally
fair. Section 3 of PAJA is the empowering provision.