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[2024] ZANCHC 100
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Kotzee v Department of Education Northern Cape: Head of Department and Others (286/2022) [2024] ZANCHC 100 (11 October 2024)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN CAPE
DIVISION, KIMBERLEY
CASE NO:
286/2022
Reportable: YES / NO
Circulate to Judges: YES
/ NO
Circulate to Magistrates:
YES / NO
Circulate to Regional
Magistrates: YES / NO
In
the matter between:
AVRIL
CONSTANCE KOTZEE
Applicant
and
DEPARTMENT
OF EDUCATION NORTHERN
CAPE:
HEAD OF DEPARTMENT
First Respondent
ORANJEZICHT
HIGH SCHOOL
Second Respondent
CHAIRPERSON
OF THE SCHOOL GOVERNING
BODY:
ORANJEZICHT HIGH SCHOOL
Third
Respondent
ESTELLE
BEUKES
Fourth Respondent
ANDY
BEUKES
Fifth Respondent
FABIAN
KOTZE
Sixth Respondent
Coram: Stanton J
et
Chwaro AJ
Heard on:
16/09/2024
Delivered on:
11/10/2024
Summary:
Judicial review - Decision of
provincial head of department of education to appoint a school
principal - Grounds of review based
on PAJA and the principle of
legality- Condonation for late prosecution of the review application-
Exemption from exhausting internal
remedies-Reviewable irregularities
not established -Application dismissed.
ORDER
1.
The applicant’s failure to institute judicial review
proceedings within
the time period contemplated in
s 7(1)
of the
Promotion of Administrative Justice Act 3 of 2000
is condoned in
accordance with
s 9
of the said Act and the applicant is granted an
extension of time up to and including the date of institution of this
application.
2.
The
application
is dismissed.
2.
Each party is ordered to bear its own costs.
JUDGMENT
CHWARO
AJ
:
Introduction
[1]
This application concerns a dispute about the decision of the Head of
Department,
Northern Cape Department of Education, (the first
respondent) to appoint a school principal at Oranjezicht High School,
a public
school situated at Keimoes, (the second respondent).
[2]
Aggrieved by the decision of the first respondent above, Ms Avril
Constance Kotzee
(the applicant) launched this application for the
judicial review of the impugned decision in terms of the provisions
of the Promotion
of Administrative Justice Act 13 of 2000 (“PAJA”)
alternatively on the principle of legality.
[3]
Except for the usual costs order against those who oppose her
application, the applicant
seeks relief in the following terms:
‘
1.
Declaring that the First Respondent’s appointment of the Fourth
Respondent to the post of Principal
of the Second Respondent be ruled
irregular, invalid and accordingly set aside.
2.
Ordering that the Fourth Respondent (or any person(s) who took over
from her and/or who replaced her,
if any) is to be removed by the
First Respondent from the post of Principal of the Second Respondent
with immediate effect and
that such appointment be set aside.
3.
Ordering that the Applicant be appointed by the First Respondent
retrospectively from 01 January 2021
into the post of Principal of
the Second Respondent with immediate effect.
4.
Ordering that the Applicant be paid all salaries, bonuses, increases
and such other related benefits
associated with the post of Principal
of the Second Respondent retrospectively from 01 January 2021 or such
other date as the above
Honourable Court considers just and
equitable.
5.
Ordering that the Applicant’s appointment to the post of
Principal of the Second Respondent be
designated a ‘protected
appointment’ in order to protect the Applicant against any form
of retaliation and/or unfair
treatment on account of the Applicant
having pursued this route to nullify the First Respondent’s
decision.
6.
Condoning the late filing of this application in terms of
section
9(2)
of the
Promotion of Administrative Justice Act, No. 3 of
2000
....’
[4]
The application is opposed by the first respondent on the bases that
their
[1]
decision to appoint Ms
Estelle Beukes, (the fourth respondent) was lawful and unassailable
as it was premised on the recommendations
of the school governing
body of the second respondent (SGB) that they properly considered and
exercised their discretion to appoint
the fourth respondent as so
empowered by
s 6(3)
(a)
and
(f)
of the Employment of Educators Act 76 of 1998, (the EEA).
Background facts
[5]
The applicant is an educator by profession. She previously served as
principal of
the second respondent for a period of four years until
her resignation on 31 December 2018. Since 2019, the fourth
respondent was
appointed to hold fort on an acting capacity as
principal. On or about 7 September 2020, the Northern Cape Department
of Education
(the department) issued a vacancy circular inviting
prospective candidates to apply for a vacant position of principal of
the second
respondent.
[6]
In preparation for the recruitment process that was to ensue after
the closing date
of applications, the department constituted a panel
of members who were going to sift, shortlist and interview suitable
candidates
who would in turn be recommended by the SGB for
appointment by the first respondent.
[7]
The panel consisted of the following members of the SGB: V Kakuyi who
acted as chairperson,
FHJ Kock, G Van Neel, AM Damon and REJ Klaaste.
The departmental representative in the panel was S Ferrus who also
served as a
resource person in her capacity as the Circuit Manager
and the two teacher unions, SADTU and CTU-ATU were represented by BJ
Dywili
and J Blom respectively.
[8]
The department received six applications for the post. At its meeting
held on 23 October
2020, the shortlisting committee found that only
five candidates met the requirements of the post. The shortlisted
candidates were
the applicant, the fourth respondent, Mr Andy Beukes
(the fifth respondent), Mr Fabian Kotze (the sixth respondent) and Mr
LP Harnoster.
[9]
Shortlisted candidates were invited to attend interviews scheduled
for 30 October
2020. The rest of the shortlisted candidates, except
for Mr Harnoster, underwent an interview process predicated on a set
of questions
agreed upon by the interviewing committee. The
individual candidates were allocated average scores by both the
shortlisting and
interview committees, which scores were later
combined to constitute a total average for each candidate after the
interview process.
[10]
The applicant obtained a total of 81,9 points, the fifth respondent
received 80,2 points, the
sixth respondent was allocated 79,1 points
and the fourth respondent scored a total of 77,8 points.
[11]
The interview committee resolved to submit the outcome of the
interview process to the department,
though the SADTU representative
registered his dissatisfaction with the way the individual candidates
were allocated points. He
indicated that his union would lodge a
formal dispute with the department.
[12]
Ordinarily, the names of the candidates found to be suitable for
appointment would have been
submitted to the SGB for deliberation and
recommendation of a minimum of three candidates to the first
respondent in accordance
with the provisions of s6(3)
(c)(i)
of
the EEA.
[13]
Pursuant to its deliberation, the SGB recommended the fourth, fifth
and sixth respondents for
possible appointment by the first
respondent. It is common cause that first respondent eventually
appointed the fourth respondent
as principal of the second respondent
with effect from 1 February 2021.
[14]
On 2 February 2021, the applicant became aware of the appointment of
the fourth respondent as
principal of the second respondent through
the latter’s Facebook page. Perturbed by the turn of events, on
17 February 2021
she lodged a dispute with the Education Labour
Relations Council (ELRC) in relation to her non-appointment as
principal of the
second respondent.
[15]
Despite numerous communications exchanged between her and the
officials of the ELRC, nothing
came out of that process. During
August 2021, the applicant managed to obtain the services of her
present attorneys of record who
advised her that the ELRC was the
wrong forum and that she ought to approach this Court for relief.
[16]
Due to lack of funds, she only managed to pay the full deposit
required of her during November
2021. This application was launched
on 11 February 2022, a period of almost 360 days since she gained
knowledge of the decision
of the first respondent to appoint the
fourth respondent as principal and the alleged irregularities
beseeching the recruitment
process.
Contentions by the
parties
[17]
The nub of the applicant’s complaint is that a gross procedural
irregularity was committed
by the SGB in the process of making its
recommendation to the first respondent in that:
(a)
At the behest and insistence of Mrs S Ferrus, a departmental
representative in the interview committee,
the SGB convened a meeting
during December 2020 to discuss motivations for candidates that were
to be recommended to the first
respondent for appointment.
(b)
The said meeting manipulated the interview committee’s
recommendations by including the
name of the fourth respondent in the
list of candidates who were to be considered for recommendation to
the first respondent under
circumstances where her name was not put
forward by the interview committee.
(c)
Mrs Ferrus and Mr Dywili unduly influenced SGB members to nominate
three names that were to be
recommended to the first respondent and
made the SGB to determine the list of the three candidates through a
secret vote, resulting
in the fourth, fifth and sixth respondents
being recommended by the SGB for possible appointment by the first
respondent.
[18]
In the opposing affidavit filed on behalf of the first respondent, it
is contended that the applicant
is seeking to assail a wrong decision
in that
ex facie
the notice of motion, the applicant only
seeks to review and set aside the decision of the first respondent to
appoint the fourth
respondent. The process undertaken by the SGB,
leading to the recommendation of the three candidates to the first
respondent is
not challenged.
[19]
It is further submitted that the first respondent acted well within
the purview of the empowering
legislation in deciding to appoint the
fourth respondent. To this effect, the SGB made a recommendation of
the minimum number of
candidates for consideration by the first
respondent and after the latter was satisfied about the process’
compliance with
the prescripts, exercised the statutory discretionary
powers vested on them to appoint the fourth respondent.
The issues
[20]
The competing contentions by the parties herein require this Court to
determine the following
issues:
(a)
whether condonation for
the late prosecution of the review ought to be granted ,
(b)
whether the applicant was obliged to exhaust internal remedies,
(c)
whether the conduct forming part of the applicant’s complaint
is reviewable on the grounds of PAJA as pleaded by the applicant
or
the principle of legality and
(d)
in the event of a
declaration of invalidity, what would be a just and equitable remedy.
[21]
In the scheme of this Court’s jurisdictional limitations to
review an administrative decision
on the grounds anchored on PAJA or
principle of legality, the determination of the first two issues
listed as
(a)
and
(b)
above against the applicant would
result in there being no need to further traverse the remainder of
the issues outlined as
(c)
and
(d)
above.
Preliminary issues
Undue delay
[22]
Our law is settled in relation to what constitutes undue delay in the
institution of judicial
review proceedings. If the review is premised
on the provisions of s 6(1) of PAJA, such an application must be
brought within a
period of 180 days after becoming aware of the
administrative action and the reasons for such an action. If the
review is based
on the principle of legality, such a review must be
brought within a reasonable time.
[23]
In
Khumalo
and Another v MEC for Education, Kwazulu-Natal
[2]
the court described the determination of an undue delay in legality
reviews in the following terms:
‘
..
Nevertheless,
it is a long-standing rule that a legality review must be
initiated without undue delay and that courts
have the power (as part
of their inherent jurisdiction
h[...]
to regulate their own proceedings) to refuse a review application in
the face of an undue delay in initiating proceedings or
to
overlook the delay.....’
[24]
The above position was expanded upon in
Altech
Radio Holdings (Pty) Ltd and Others v Tshwane Metropolitan
Municipality
[3]
in the following terms:
‘
A
legality review, unlike a PAJA review, does not have to be brought
within a fixed period. However, whilst the 180-day bar set
by s 7(1)
of PAJA (which may be extended under s 9) does not apply to a
legality review, in both the yardstick remains reasonableness.
It is
a long-standing rule that a legality review must be initiated without
undue delay and that courts have the power (as part
of their inherent
jurisdiction to regulate their own proceedings) to either overlook
the delay or refuse a review application in
the face of an undue
delay.’
[25]
In as far as a review premised on the provisions of PAJA is
concerned, the time limitation is
prescribed in s
7(1)
(a)
and
(b)
of PAJA which provides as follows:
‘
7
Procedure for judicial review
(1)
Any proceedings for judicial review in terms of section 6 (1) must be
instituted without unreasonable delay
and not later than 180 days
after the date-
(a)
subject to subsection (2)
(c)
, on which any proceedings
instituted in terms of internal remedies as contemplated in
subsection (2)
(a)
have been concluded; or
(b)
where no such remedies exist, on which the person concerned was
informed of the administrative action, became
aware of the action and
the reasons for it or might reasonably have been expected to have
become aware of the action and the reasons...’
[26]
In
Cape
Town City v Aurecon SA (Pty) Ltd
[4]
the court analysed and explained the interpretation of s 7(1)
(b)
of
PAJA as follows:
‘
Section
7(1) of PAJA does not provide that an application must be
brought within 180 days after the City became aware that
the
administrative action was tainted by irregularity. On the contrary,
it provides that the clock starts to run with reference
to the date
on which the reasons for the administrative action became known (or
ought reasonably to have become known) to an applicant.’
[27]
The above proposition was endorsed and applied in subsequent cases to
mean that the proverbial
clock begins to run only after the aggrieved
party has knowledge of the decision and the
reasons
for such a decision.
[5]
[28]
In
casu
, it is common cause that the applicant became aware of
the first respondent’s decision on 2 February 2021, when she
saw the
Facebook page of the fourth respondent notifying her
followers to that effect. She was soon thereafter informed by one of
the interview
committee members about the irregularities that
beseeched the process.
[29]
In terms of s 5(1) of PAJA, the applicant had a period of 90 days,
within which to request reasons,
calculated from 2 February 2021,
being the date when she became aware of the decision. It does not
appear that the applicant availed
herself of this option.
[30]
In terms of s 5(2), an administrator has a period of 90 days within
which to furnish the requested
reasons. Where there are no reasons
provided after the expiry of the said days, s 5(3) provides that
unless there is proof to the
contrary, it is presumed that the
decision was taken without good reason. The statutory periods to
request reasons and to provide
same would have expired on 1 August
2021. It follows that the clock in respect of the 180 days prescribed
in s 7(1) would have
started to run from 1 August 2021 until 1
February 2022.
[31]
At the time when the review application was instituted on 11 February
2022, the applicant was
ten days out of time. On the strength of the
guidance articulated in
eThekwini
Municipality v Ingonyama Trust
,
[6]
I have duly considered the nature of the relief sought by the
applicant herein, being to ventilate her right to a fair and
lawful
process of appointment. The explanation proffered by the applicant is
in my view, reasonable given the efforts she took
soon after learning
of the appointment of the fourth respondent, coupled with the
restrictive measures that were put in place during
the mid stages of
the Covid pandemic. It is important that this Court pronounces on the
main issue underlying this application
to bring finality and
certainty to all involved, despite the strength or otherwise of the
prospects of success.
[32]
In the premises, I am of the considered view that the interests of
justice dictate that the period
of 180 days contemplated in s7(1) of
PAJA be extended by a period up to and including the date of the
institution of this review
application as contemplated in s 9(2) of
PAJA.
Internal remedies
[33]
The relevant provision dealing with the need for a party seeking to
attack an administrative
action through judicial review to firstly
exhaust internal remedies is s
7(2) of PAJA which provides:
'(2)
(a)
Subject to paragraph
(c)
, no court or tribunal shall
review an administrative action in terms of this Act unless any
internal remedy provided for in
any other law has first been
exhausted.
(b)
Subject to paragraph
(c)
, a court or tribunal must, if it
is not satisfied that any internal remedy referred to in
paragraph
(a)
has been exhausted, direct that the
person concerned must first exhaust such remedy before instituting
proceedings in a court
or tribunal for judicial review in terms of
this Act.
(c)
A court or tribunal may, in exceptional circumstances and on
application by the person concerned,
exempt such person from the
obligation to exhaust any internal remedy if the court or tribunal
deems it in the interest of justice.’
[34]
In
Koyabe
and Others v Minister of Home Affairs and Others
[7]
the Constitutional Court recognised the need to utilise internal
appeal mechanisms provided for by any statute so as to afford
decision-makers an opportunity to reflect on their decisions, rectify
same and thus providing an often quick and cost-effective
remedy to
those who are materially affected by administrative decisions.
However, the court cautioned that the utilisation of internal
remedies should not be abrogated to a rigid procedure intended to
frustrate those who are affected by their decisions or as a tool
to
shy away from being subjected to judicial scrutiny.
[35]
The applicant submits that when she lodged her grievance with the
ELRC during February 2021,
she also submitted a copy of such form at
the district offices of the department on 17 February 2021, where it
was received for
the attention of the District Director. She did not
receive any response from the department in relation to the dispute
that she
has since withdrawn. Upon being able to secure the services
of an attorney, the latter sent a letter dated 17 November 2021
outlining
her dispute and similarly seeking resolution of the dispute
internally before opting for judicial review. Similarly, no reaction
was received from the department.
[36]
In an opposing affidavit filed on behalf of the first respondent, the
deponent, Mr O Mogatle,
Director: Legal Services in the department,
submits that upon receipt of the letter from the applicant’s
attorneys referred
to above, he embarked upon a process of
establishing relevant facts with a view to advise the first
respondent and appoint legal
representatives. The opposing affidavit
does not state what efforts, if any, were taken to resolve the
applicant’s dispute
internally and whether the process of
establishing facts bore any fruit. The deponent only states that
these efforts were shunned
by the applicant who chose to ignore other
possible avenues.
[37]
As explained elsewhere in this judgment, the first respondent nor any
of the department’s
functionaries, ever provided the applicant
with reasons for the decision taken to appoint the fourth respondent.
This failure leads
to an ineluctable conclusion that the applicant
would not have been expected to meaningfully engage the first
respondent with a
request for exhaustion of internal remedies in the
absence of cogent reasons.
[38]
The EEA does not provide for statutory internal remedies that a party
who is aggrieved by the decision of
the first respondent to appoint a
candidate to a position of a school principal could explore. The only
internal remedy found in
the said Act, in the form of an appeal to
the MEC, is in relation to the decision of the first respondent to
appoint a candidate
on a temporary basis
[8]
.
[39]
On the conspectus of the facts above, I find that the applicant was
contrived by the non-provision
of reasons for the decision taken by
the first respondent to meaningfully and substantially explore any
possible internal remedy
to the impasse. The applicant was further
not obligated by the EEA regulating her appointment to exhaust
internal remedies.
[40]
It follows that this is a case where this Court is entitled to
exercise its discretion in favour
of the applicant and hold that
there was no obligation, either on the basis of the established facts
or in terms of the prevailing
legislative prescript governing her
dispute, placed on her to have embarked on a process of seeking
internal remedies prior to
instituting this review application or to
apply for exemption from doing so.
[41]
Even if I am wrong in the above conclusion, the utilisation of any
available internal remedy
would not have amounted to an adequate
remedy for the applicant having regard to the primary relief sought
by the applicant herein,
being to review and set aside the
appointment of school principal who has already assumed duties with
effect from 1 February 2021.
[42]
It is trite that only this Court has the inherent power to review and
set aside an administrative
decision
[9]
and therefore in the absence of any statutory powers specifically
given to an internal body, it is only a court of law that has
the
requisite powers to review and set aside the decision of the first
respondent.
[10]
[43]
On this point alone, there was no need for the applicant to have
exhausted any internal remedy
prior to launching this application and
equally, there was no need for the applicant to have sought exemption
contemplated in s
7(2)(c) of PAJA.
Process leading to the
decision of the head of department
[44]
In the realm of administrative law, it is generally accepted that an
objective process undertaken
to enable the repository of a public
power to make an ultimate decision, sometimes referred to as a
jurisdictional fact or a precursor,
is not a decision on itself which
may be subjected to judicial review under PAJA.
[45]
Nonetheless, our jurisprudence recognises the fact that being part of
the broader fair and lawful
decision-making requirement within the
spectrum of legality, the means towards the end must also be
subjected to the scrutiny of
rationality and lawfulness. In
Democratic
Alliance v President of the Republic of South Africa and Others
[11]
the court explained the above position of our law as follows:
‘
The conclusion
that the process must also be rational in that it must be rationally
related to the achievement of the purpose for
which the power is
conferred, is inescapable and an inevitable consequence of the
understanding that rationality review is an evaluation
of the
relationship between means and ends. The means for achieving the
purpose for which the power was conferred must include
everything
that is done to achieve the purpose. Not only the decision employed
to achieve the purpose, but also everything done
in the process of
taking that decision, constitute means towards the attainment of the
purpose for which the power was conferred.’
[46]
The applicant mounts her attack on the decision of the first
respondent to appoint the fourth
respondent premised on the principle
articulated above, and what Mr Snyders, counsel for the applicant,
referred to as ‘the
fruit of a poisoned tree’ in
that the process undertaken by the SGB was not in line with what was
allegedly an agreed upon
process of recruitment and contrary to the
provisions of s 6(3)(
b)
of the EEA.
Outcome of the
interview process
[47]
The appointment of school principals is highly regulated. Before an
SGB could make its recommendation
to the head of department for
appointment of any of the recommended candidates in accordance with
the provisions of s 6(3)
(a
)
- (
c)
of the EEA, the process undertaken by the interviewing committee must
be in compliance with, amongst others, the provisions of
the
Collective Agreement No. 5 of 1998
[12]
( ‘the collective agreement’) read with the Personnel
Administrative Measures determined by the Minister of Basic Education
and published on 12 February 2016 (‘the PAM’).
[13]
[48]
Clause 3.9 of Schedule 1 to the collective agreement provides as
follows regarding the role of
the interviewing committee after
concluding its business:
‘
At the conclusion
of the interviews the interviewing committee shall rank the
candidates in order of preference, together with a
brief motivation,
and submit this to the school governing body for their recommendation
to the relevant employing department.’
[49] On
the other hand, clause 5.4.12 of Chapter B of the PAM mirrors clause
3.9 of the collective agreement and
provides thus:
‘
At the conclusion
of the interviews the Interview Committee must rank the candidates in
order of preference, together with a brief
motivation, and submit
this to the SGB for their recommendation to the relevant employing
department.’
[50]
The applicant seeks to assail the process undertaken by the SGB by
relying on the assertion that at the conclusion
of its business on 30
October 2020, the interviewing committee “agreed” on a
process that they were going to follow,
being to recommend only the
top three candidates to the SGB for its consideration and
recommendation. This “agreed”
process resulted in the
fourth respondent, who was ranked as number four, not being
recommended to the SGB.
[51] On
a cursory perusal of the clauses contained in the collective
agreement and the PAM respectively and referred
to above, it becomes
apparent that the “agreement” reached by the interviewing
committee to only recommend three out
of four candidates was clearly
in contravention of these clauses. The interviewing committee was
expected to rank all candidates
in order of preference and motivate
each candidate to the SGB.
[52]
Contrary to what is asserted by the applicant, the administrative
decision record filed in terms of rule
53 of the Uniform Rules of
Court, (“the record”), reveals that the interviewing
committee did in fact rank the four
candidates in order of preference
and submitted the names to the SGB. This reality is captured in the
handwritten minutes of the
committee at its sitting on 30 October
2020 as well as in form NCK15, which contains the names of
recommended candidates in order
of preference, which was sent to the
SGB.
[53] It
is the finding of this Court that this ground of attack cannot be
sustained as the interviewing committee
fully complied with the
collective agreement and the PAM in fulfilling its mandate. The SGB
did in fact submit names of four candidates,
including that of the
fourth respondent, for consideration by the SGB.
Recommendation by the
school governing body
[54]
The role of the SGB after receipt of the names of recommended
candidates from the interviewing committee
is to independently
consider the candidates and make its own recommendation, in order of
preference and with a motivation, to the
head of department. This is
clearly articulated in the provisions of s 6(3)
(a)
to
(c)
of the EEA, which I find apposite to reproduce below:
‘
(3)(a) Subject to
paragraph
(m)
, any appointment, promotion or transfer to
any post on the educator establishment of a public school may only be
made on the recommendation
of the governing body of the public school
and, if there are educators in the provincial department of education
concerned who
are in excess of the educator establishment of a public
school due to operational requirements, that recommendation may only
be
made from candidates identified by the Head of Department, who are
in excess and suitable for the post concerned.
(b)
In considering the applications, the governing body or the council,
as the case may be, must ensure
that the principles of equity,
redress and representivity are complied with and the governing body
or council, as the case may
be, must adhere to-
(i)
the democratic values and principles referred to
in section 7 (1);
(ii)
any procedure collectively agreed upon or determined by the Minister
for the appointment,
promotion or transfer of educators;
(iii)
any requirement collectively agreed upon or determined by the
Minister for the appointment,
promotion or transfer of educators
which the candidate must meet;
(iv)
a procedure whereby it is established that the candidate is
registered or qualifies for registration
as an educator with the
South African Council for Educators; and
(v)
procedures that would ensure that the recommendation is not obtained
through undue influence on
the members of the governing body.
(c)
The governing body must submit, in order of preference to the Head of
Department, a list of-
(i)
at least three names of recommended candidates; or
(ii)
fewer than three candidates in consultation with the Head of
Department.’
[55]
The record shows that at its meeting held on 2 November 2020, the SGB
sat to deliberate on the names of four
candidates that were submitted
to it by the interviewing committee. The SGB opted for a secret vote
to determine the ranking order
of three names that were to be
submitted to the first respondent for his consideration and
appointment.
[56]
The first round of votes resulted in the applicant and the fourth
respondent being tied on the first position,
followed by the fifth
and sixth respondents on the second and third positions respectively.
As a deadlock breaking mechanism, the
SGB conducted a second vote for
the candidate who was to be ranked as the preferred candidate and the
fourth respondent obtained
the highest votes.
[57]
The SGB recommended the fourth, fifth and sixth respondents to the
first respondent and submitted form NCK2,
which makes provision for
the names of three candidates to be recommended for appointment.
Acting in accordance with the provisions
of section 6(3)
(f)
[14]
of the EEA and presumably having been satisfied that the process
complied with the law and all other prescribed formalities, the
first
respondent appointed the fourth respondent as a successful candidate.
[58]
The applicant seeks to assail the process undertaken by the SGB by
suggesting that her name was miraculously
taken out of the three
recommended candidates and replaced by the fourth respondent through
the undue influence of the departmental
circuit manager and a trade
union observer who insisted on a secret vote to determine the three
names of candidates who were to
be recommended.
[59] It
is trite law that in a review application of this nature, the onus
rests on the applicant to demonstrate
that a public functionary has
committed a reviewable administrative action
[15]
.
[60] On
the synopsis of the facts detailed above, there can be no suggestion
that the SGB was unduly influenced
to reach its recommendation as the
record clearly demonstrates the due process undertaken by the SGB
until its recommendation was
placed before the first respondent. The
interviewing panel submitted four names of candidates who were found
to be suitable for
appointment to the SGB.
[61] As
it is statutorily empowered, the SGB engaged on its own independent
decision-making process in considering
the names of the four
candidates and eventually voted on the three candidates who were to
be recommended to the first respondent.
[62] To
the extent that the applicant seeks to assail voting as a means to
determine the recommended candidates,
she has not adduced facts to
demonstrate that either the prevailing legislative prescripts,
policies or circulars of the department
or the constitution of the
SGB itself disavow voting as a deadlock breaking mechanism.
[63]
The decision of the first respondent cannot be said to have been
taken contrary to what the court in
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and Others
[16]
held to be the standard of assessing the reasonableness of the
decision-making process in the following terms:
‘
....
That
decision must strike a reasonable equilibrium between the different
factors but the factors themselves are not determinative
of any
particular equilibrium. Which equilibrium is the best in the
circumstances is left to the decision-maker. The Court's
task is
merely to determine whether the decision made is one which achieves a
reasonable equilibrium in the circumstances.
[64]
The process and the actual decision made by the first respondent was
thus done in a procedurally fair and
reasonable manner as there are
no grounds, either relied upon by the applicant or that could
possibly be garnered from the facts,
for the review of the first
respondent’s decision based on PAJA or the principle of
legality. The application falls to be
dismissed.
[65]
En
passant
, I have observed that the department’s form NCK2
makes provision for the insertion of only three names of candidates
to be
recommended to the head of department for possible appointment.
On the face of it, this form seems to confine the SGBs to recommend
a
maximum of three candidates only.
[66]
Applying the fundamental tenant of statutory interpretation as
expounded in
Cool
Ideas 1186 CC v Hubbard and Another
[17]
the ordinary grammatical meaning of s 6(3)
(c)(i)
of the EEA which directs SGBs to recommend ‘
at
least’
three candidates does not support the stance taken by the compilers
of form NCK2.
[67] An
interpretation of the ordinary meaning of the provisions of
s6(3
)(c)(i
) entails that the minimum of three candidates must
be recommended without restricting the maximum number of candidates
that may
be recommended in each situation. It is hoped that the
department and all stakeholders will attend to this seemingly impasse
before
it leads to further disputes in the future.
Costs
[68] In
the normal course, the costs would follow the results. However, it is
trite that the determination of
costs requires an exercise of a
judicial discretion based on the facts and circumstances placed
before a court in respect of a
particular case.
[69]
The applicant took all conceivable efforts that could be undertaken
to assert her right to a fair administrative
justice. In that
process, the department failed to act as an exemplary organ of state
in discharging its obligations towards its
potential employee by
failing to provide her with the written reasons on her unsuccessful
contestation for a post of principal
of the second respondent.
[70]
Despite the substantive appointment having been made by the
department during or about January 2021, the
applicant only came to
know of the reasons of her non-appointment upon being served with the
record of the administrative decision
in terms of the provisions of
rule 53 of the Uniform Rules of Court, after having launched this
application on 11 February 2022.
[71]
This conduct amounts to a failure to uphold its obligations to
provide the applicant with written reasons.
As a demonstration of
this Court’s displeasure, it is my finding that the first
respondent is not entitled to their costs.
Resultantly, I am of the
view that an appropriate order is to the effect that each party must
bear its own costs.
Order
[72]
In the premises, the following order is made:
1.
The applicant’s failure to institute
judicial review proceedings within the time period contemplated in
s
7(1)
of the
Promotion of Administrative Justice Act 3 of 2000
is
condoned in accordance with
s 9
of the said Act and the applicant is
granted an extension of time up to and including the date of
institution of this application.
2.
The application is dismissed.
3.
Each party is ordered to bear its own
costs.
OK CHWARO
ACTING JUDGE OF THE
HIGH COURT
NORTHERN CAPE
DIVISION, KIMBERLEY
I agree, and it is so
ordered.
A STANTON
JUDGE OF THE HIGH
COURT
NORTHERN CAPE
DIVISION, KIMBERLEY
APPEARANCES:
For
the Applicant:
Adv T
W Snyders
With
him: Adv K Maponya
Instructed
by:
Elton
De Bruyn Inc.
Pretoria
Towell
Groenewald Attorneys
Kimberley
For
the First Respondent
:
Adv M
Motlogelwa
Instructed
by:
Mkhokheli
Pino Inc.
Kimberley
[1]
I
adopt the neutral pronouns to refer to the Head of Department of
Education in this judgment as the gender identity of the incumbent
who took the decision at the relevant time is not apparent
ex
facie
the pleadings and record.
[2]
2014
(5) SA 579
(CC) para 44
[3]
2021
(3) SA 25
(SCA) para 18
[4]
2017
(4) SA 223
(CC) para 41
[5]
See
Sasol Chevron Holdings Limited v
Commissioner,
South African Revenue Service
2024 (3) SA 321
(CC) para 31 and
Centre for Child Law and Others v South African Council for
Educators and Others
2024 (4) SA 473
(SCA) paras 9-10
[6]
2014
(3) SA 240
(CC) para 28
[7]
2010
(4) SA 327
(CC) paras 35-38
[8]
See
s 6(30(h)-(k) of the EEA
[9]
Merafong
City Local Municipality v AngloGold Ashanti Ltd
2017 (2) SA 211
(CC)
para 41
[10]
DPP
Valuers (Pty) Ltd v Madibeng Local Municipality (233/2015)
[2015]
ZASCA 146
(1 October 2015) paras 16-26
[11]
2013
(1) SA 248
(CC) para 36.
See
also Minister of Home Affairs and Others v Scalabrini Centre and
Others
2013 (6) SA 421
(SCA) para 69
[12]
This
is a collective agreement concluded by the parties to the Education
Labour Relations Council, a bargaining council for public
education
sector at a national and provincial level.
[13]
These
are determinations for salaries and other conditions of employment
made by the Minister of Basic Education in terms of section
4(1) of
the Employment of Educators Act 76 of 1998
[14]
(f)
Despite
the order of preference in paragraph
(c)
and
subject to paragraph
(d)
,
the Head of Department may appoint any suitable candidate on the
list.
[15]
See
Kimberley Girls’ High School and Another v Head, Department of
Education, Northern Cape Province and Others
2005 (5) SA 251
(NC)
para 10 and cases referred therein.
[16]
[2004] ZACC 15
;
2004
(4) SA 490
(CC) para 49
[17]
2014
(4) SA 474
(CC) para 28