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[2020] ZASCA 82
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School Governing Body Grey College, Bloemfontein v Scheepers and Another (506/19) [2020] ZASCA 82; [2020] 3 All SA 704 (SCA); 2025 (6) SA 98 (SCA) (3 July 2020)

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 506/19
In
the matter between:
THE SCHOOL GOVERNING
BODY GREY COLLEGE,
BLOEMFONTEIN
APPELLANT
and
DEON
SCHEEPERS                                                                          FIRST

RESPONDENT
SOUTH
AFRICAN TEACHERS’
UNION
SECOND
RESPONDENT
FEDERATION OF
GOVERNING BODIES OF                                          AMICUS

CURIAE
SOUTH
AFRICAN SCHOOLS
Neutral
citation:
The
School Governing Body Grey College, Bloemfontein v Scheepers and
Another
(Case no
506/19)
[2020] ZASCA 82
(03 July 2020)
Coram:
Navsa, Schippers
and Nicholls JJA and Koen and Eksteen AJJA
Heard:
18 May 2020
Delivered:
This judgment was
handed down electronically via e-mail to the parties’ legal
representatives on 03 July 2020. It has been
published on the Supreme
Court of Appeal website.
Summary:
Education
South African Schools Act 84
of 1996 (the Act) – Employment of Educators Act 76 of 1998 (the
EEA) – professional management
of school – what it
entails
– role of principal contrasted with role of governing body –
principal executing functions and duties under
provisions of the Act
and not in terms of delegation by governing body – in
withdrawing principal’s functions governing
body acting beyond
its statutory authority.
ORDER
On
appeal from
:
Free State Division of the High
Court, Bloemfontein (Musi AJP and Van Zyl J, sitting as court of
first instance): judgment reported
sub
nom
Scheepers v School Governing
Body, Grey College Bloemfontein and Others (Suid-Afrikaanse
Onderwys-Unie Intervening)
[2018] ZAFSHC 210
The
appeal is dismissed with costs, including the costs of two counsel.
JUDGMENT
Navsa JA (Schippers
and Nicholls JJA and Koen and Eksteen AJJA concurring):
[1]
From the perspective of the first respondent, Mr Deon Scheepers, the
question to be addressed in this appeal, expressed sardonically,

would be the following: Is a school principal still a school
principal when he or she is no longer to perform the key functions

attached to that role? The question appears rhetorical because the
answer seems self-evident. Not so, would be the instant retort
from
the appellant, the School Governing Body of Grey College,
Bloemfontein (the SGB), for that would be a mischaracterisation
of
their dispute with Mr Scheepers, who was employed as the school
principal.  All it did, said the SGB, in a decision it
made,
which is at the centre of this appeal, was to withdraw some of the
powers and functions it had delegated to Mr Scheepers
as principal.
He was still free to continue conducting teaching and learning
activities at the school.
[2]
Technically, the question to be addressed in this appeal is whether
the SGB, established in terms of the provisions of the South
African
Schools Act 84 of 1996 (the Act),
[1]
acted within its powers when, at a special meeting held on 15 May
2018, it purported to recall all delegated SGB powers from the
then
principal, the first respondent, and simultaneously appointed Mr
Jurie Geldenhuys as interim school manager to manage, on
behalf of
the SGB, all school activities, with the exception of teaching and
learning activities. The second respondent, the South
African
Teachers’ Union (the SAOU), a registered trade union in the
education sector, representing some 36 000 members, including
Mr
Scheepers, had sought and was granted leave to intervene by the court
below, the Free State Division of the High Court, Bloemfontein
(Musi
AJP and Van Zyl J, sitting as court of first instance). It also
sought a declaratory order. More about that later. The Federation
of
Governing Bodies of South African Schools (FEDSAS), a national
representative organisation of public schools’ school governing

bodies, was admitted as
amicus
curiae
in relation to this appeal.
[3] I shall, in due
course, deal with the detailed background and the full reasoning of
the court below when it adjudicated an application
brought by Mr
Scheepers to review and set aside the SGB’s aforesaid
decisions. For the moment, it suffices to set out its
essential
conclusions in relation to the application:
‘
It
is clear that the SGB was not entitled to take the decision that it
took because the Act and other policy instruments which covers
the
role, responsibilities and functions of the principal does not
sanction it. The SGB therefore did not have the necessary authority

to do what it did. The SGB was not authorised by the Act to take the
decision that it did.
Furthermore
it is clear that the decision was not preceded by a procedurally fair
process. [Mr Scheepers] was for all intents and
purposes ambushed.
When he requested time to prepare himself that was refused. …
…
The
decision effectively stripped the principal of powers, duties and
functions which are entrusted to him by legislation and official

policy.
…
In
summary, a [school governing body] is an organ of State. [The
Promotion of Administrative Justice Act 3 of 2000 (PAJA)] is
applicable
to its decisions. [A school governing body] may delegate
some, not all, of its functions. It may delegate some of its
functions
to a principal. The SGB
in
casu
did not delegate any functions to [Mr Scheepers]; it abdicated its
functions and allowed [Mr Scheepers] to perform them. The Act
does
not allow the SGB to denude the principal of functions entrusted to
him by legislation, policy or the [Head of Department
of the Free
State Department of Education (HOD)]. The SGB
in
casu
stripped the principal of functions that he must perform in terms of
the Act and policies of the Department of Basic Education.
The SGB’s
decision fell afoul of s 6(2)(a)(
i
)
of the PAJA.’
[2]
[4]
The court below went on to grant the application with costs,
including those occasioned by the costs of two counsel. It also

issued a declaratory order sought by the SAOU, the details of which
will be dealt with in due course. The court below also dismissed
the
SGB’s conditional counter-application
[3]
with costs, including the costs of two counsel. In addition, the SGB
was ordered to pay the SAOU’s costs. It is against the

conclusions referred to above and the resultant order that the
present appeal is directed. The detailed background is set out
hereafter.
[5]
Grey College in Bloemfontein (Grey) is a public school for boys. Mr
Scheepers had matriculated at Grey. It is one of the oldest
and most
well-known schools in South Africa. After obtaining his education
degree at the University of Stellenbosch, Mr Scheepers
taught at Grey
for six years. He subsequently taught at Michaelhouse, in
KwaZulu-Natal, and in 2000 took up a post in the same
province at
Hilton College. In 2012 Mr Scheepers was head-hunted by Grey. The SGB
recommended his appointment as principal of Grey
to the Head of the
Free State Department of Education (the HOD), in terms of s 20(1) of
the Act, and he was appointed by the Department
as principal of the
secondary school at Grey from 1 January 2013. He took up his
appointment and had served in that position until
May 2018.
[6]
On 3 May 2018 Mr Scheepers was invited by email to attend a special
meeting of the SGB, scheduled to take place on 15 May 2018.
The email
indicated that the only item on the agenda was the withdrawal of
‘rights’ and ‘duties’ that the
SGB had
delegated to him. Mr Scheepers, via email, enquired of the
chairperson of the SGB, Mr Büchner, which rights and duties
were
being withdrawn. The response, by email, was a terse statement that
no delegated rights and duties had been withdrawn.
[7] Mr Scheepers
persisted, and by way of a further email enquired, once again, which
rights and duties were in contemplation. The
response from the
chairperson bears repetition:
‘
Beste
Deon
Dankie
vir jou e-pos van 11 deser. As skoolhoof in diens van die Vrystaatse
Departement van Onderwys het jy sekere regte en verpligtinge
wat uit
hoofde van die Skolewet aan jou toegedig is. Ek is nie van voorneme
om al daardie regte en verpligtinge hierin uiteen te
sit nie
aangesien jy op hoogte is van die bepalings van die Skolewet.
Soos
jy weet is alle ander regte, verpligtinge, funskies en bevoegdhede
wat jy tans uitoefen en wat nie uit hoofde van die Skolewet

voortspruit nie, deur die Beheerliggaam, hetsy uitdruklik en/of
stilswyend, aan jou gedelegeer.
Die
doel van die spesiale Beheerliggaam vergadering en die enigste punt
op die agenda is duidelik, naamlik die terugtrekking van
die
Beheerliggaam se regte en verpligtinge wat aan jou gedelegeer is.
Vriendelike
groete…
’
[4]
[8]
To this Mr Scheepers responded by stating, in an email, that as far
as he was concerned he was executing all of his duties in
terms of
the Act and that he required clarity on the specific functions the
SGB had in mind to withdraw.
[9]
The chairperson did not respond to the last-mentioned email and Mr
Scheepers attended the meeting to which he had been invited,
still in
the dark.  He had no idea of what the SGB required of him. At
the meeting the chairperson commenced by informing
those in
attendance that the SGB’s executive had identified certain
issues which potentially impacted on the trust relationship
between
Mr Scheepers, as principal, and the SGB. He went on to state that the
Act conferred distinct functions on the principal
and the SGB,
respectively, and that the functions assigned to the principal were
limited to managing the academic activities of
the school, while all
other functions had been delegated to the principal by the SGB. Mr
Büchner went on to indicate that
the purpose of the meeting was
to determine whether the SGB was ‘comfortable’ with the
manner in which Mr Scheepers
had discharged those delegated functions
and duties.
[10]
Mr Scheepers placed it on record that he had received no prior
clarification on the rights and duties that were in contemplation
for
withdrawal by the SGB. He sought a postponement to enable him to deal
with what was put to him at the special meeting.
He adopted the
attitude that all his functions were being executed in accordance
with the provisions of the Act and his contract
of employment with
the Department.
[11]
The SGB debated the matter and adopted the position that Mr Scheepers
simply had to look at the applicable provisions of the
Act to
appreciate the distinction between his professional duties and those
that were within the preserve of the SGB. The SGB urged
him to accept
that all of the functions and responsibilities that s 20 of the Act
assigned to a school governing body were at least
tacitly delegated
to him by the SGB.
[12] Mr Scheepers’
request for a postponement of the meeting was refused. Instead, he
was confronted with a list of complaints
to which he was invited to
respond. To his mind the complaints that were listed were as follows:
‘
[T]hat
[Mr Scheepers] treated staff harshly and aggressively pursuant to a
meeting that the Chairman and Mr Grobbelaar, also a SGB
member, had
with educators of Grey College on 22 November 2016. In that meeting
staff members of Grey College aired certain grievances
which [he] did
not – or was unwilling to resolve;
that
[he] victimized educators and bullied them;
that
there was a lack of visible discipline at Grey College, Grey
College’s code of conduct was not an effective tool to manage

discipline and there was an increase in disciplinary issues which
impacted on the academic part of Grey College;
that
[he] was not equipped to handle complex racial issues;
that
[he] sought to manipulate the outcome of the appointment of the SGB’s
annual office bearers in the run-up to the March
2018 elections;
that
[his] wife had canvassed the voting roll for the 2017 annual office
bearers with third parties before the voting roll was announced;
that
[he] broke [his] trust and contractual obligations with the
Department by prematurely informing certain candidates that they
were
unsuccessful in their bid to become deputy principal of Grey College;
that
[he] was unable to instil the Grey College values and traditions to
learners;
that
[he does] not enjoy the respect of learners because [he is] not
emotionally connected to them;
that
[he is] not approachable to parents and parents are concerned about
Grey College’s academics.’
[13]
Mr Scheepers was aggrieved that he had not been given any prior
notice of any of these complaints and was not provided with
an
opportunity to adequately prepare to meet them. Towards the end of
the meeting Mr Scheepers was asked how he viewed the relationship
of
trust he was supposed to enjoy with the SGB. He responded by stating
that he did not have a strong trust relationship with the
chairperson
and ascribed this to personal grievances being entertained by the
chairperson behind his back. Mr Scheepers acknowledged
that this
breakdown had occurred a long time ago.
[14] The SGB then
proceeded to vote by secret ballot on whether the functions and
responsibilities delegated to Mr Scheepers by
the SGB should be
withdrawn. Fourteen of the seventeen SGB members present at the
special meeting voted in favour of the motion.
The following
resolution was subsequently adopted:
‘
[T]hat
the Federation of Governing Bodies of South African Schools and [Mr
Scheepers’] representative engage in a process
to manage the
relationship between the parties in the best interest of Grey
College;
that,
pending the finalisation of said process, the functions,
responsibilities and duties of the SGB that were either expressly
or
tacitly delegated to [Mr Scheepers] be withdrawn with immediate
effect;
that
the SGB appoint Mr Geldenhuys as interim school manager to execute
the delegated functions of the SGB until a long-term solution
could
be implemented;
that
Mr Geldenhuys would manage all school activities, with the exception
of teaching and learning, on behalf of the SGB, which,
according to
the SGB, entail the following:
(i)
the management of school finances to the extent that those powers do
not specifically vest in [Mr Scheepers] in terms of the
provisions of
the Act;
(ii)
the management of the extra-curricular activities, such as sport and
culture;
(iii)
the management of the school campus and assets, including the
hostels;
(iv)
the management of the personnel, where they are not performing
academic functions;
(v)
communication and liaison internally and externally;
(vi)
representing Grey College at all non-academic forums;
(vii)
internal and external liaising;
(viii)
management of Grey College’s ethos mission, values and spirit
within the school context;
(ix)
the management of discipline;
(x)
that [Mr Scheepers], as an employee of the Department, would continue
with [his] professional duty as school principal, limited
to only
those powers as assigned to [him] in terms of [the Act].’
[15]
Thereafter, the resolution was publicised by way of a memorandum
addressed to the Grey community, namely, learners, parents
and
personnel, under the heading ‘
Drastic
management decision
following
breakdown of trust between Grey College Governing Body and School
Principal’. (Emphasis added).
[16]
Mr Scheepers was aggrieved at what he considered to be a process that
was procedurally unfair, that is, that he was given inadequate
notice
and information concerning the contemplated action by the SGB and
thereby deprived of a reasonable opportunity to make representations

in relation thereto. Furthermore, as far as he was concerned, he was
not provided with adequate or clear reasons for the decision
made by
the SGB. The SGB’s belated reliance on the breakdown of trust,
according to Mr Scheepers, did not avail it because
that had not been
foreshadowed as a ground upon which the decision was going to be
based. He was not informed that he was going
to be confronted with
the litany of complaints presented at the meeting. Some of the
complaints referred to at the meeting were
related to incidents that
dated back to 2016.
[17] Mr Scheepers
contended that if, in effect, what was being contemplated by the SGB
was a disciplinary enquiry based on misconduct,
then it ought to have
followed the disciplinary procedures in Grey’s code of conduct.
The following are the pertinent parts:
‘
[A]
determination by the Deputy Chairperson of the SGB that there is a
prima facie case to take action;
the
appointment of an investigative committee consisting of at least
three (3) individuals to investigate allegations against a
member;
furnishing
the member with written description of the charges of misconduct
against [them];
an
opportunity to direct written representations;
the
making of representations by the investigative committee to the SGB
whether to impose a reprimand or recommend to the HOD to
either
suspend the member or to terminate his or her membership of the SGB.
’
That
process was clearly not followed.
[18]
According to Mr Scheepers, insofar as any part of the public was to
be affected by the contemplated decision, a public enquiry
ought to
have been held, or a notice and comment procedure resorted to, or
some other fair procedure adopted. None of these measures
was taken.
Those members of the public that the decision would affect were not
consulted.
[19]
Mr Scheepers was adamant that there was no substantive basis for the
decision of the SGB. He insisted that the SGB could not
deprive him
of his statutory role, as provided for by the Act, more particularly
by s 16(3).  In taking the decision under
discussion, he
submitted, the SGB acted contrary to the principle of legality. Mr
Scheepers did not contest that he was obliged
to execute lawful
instructions of the SGB. However, according to him, the decision in
question fell outside the scope of the SGB’s
powers.
[20]
The aforementioned formed the basis of Mr Scheepers’ approach
to court. Given the apparent hostility between the chairperson
and Mr
Scheepers, and the manner in which events unfolded, including written
exchanges between the contesting parties’ legal
representatives
prior to the commencement of litigation, it was predictable that the
application launched by Mr Scheepers would
be vigorously opposed. It
is to the basis of that opposition that I now turn.
[21]
In its opposition, the SGB raised a number of procedural points that
did not find favour with the court below and which, advisedly,
were
not persisted with on appeal. Before us, the SGB criticised the court
below for finding that its decision to ‘denude’
the
principal of his powers was administrative action, as defined in s 1
of the PAJA. It submitted that the court below should
have held, in
the light of Mr Scheepers’ assertions that it had acted
unlawfully in revoking his powers, functions and duties,
that it was
faced with a ‘legality’ review. Thus, so it contended,
procedural irregularities did not arise.
[22] The SGB, in opposing
the application by Mr Scheepers, adopted the position it had adopted
prior to the litigation, namely,
that the powers, functions and
duties that the principal had exercised before its impugned decision
had been delegated to him by
the SGB. It was adamant that, as the
repository of the original power and functions, it could revoke them
at will. In this regard
it relied on s 16(1), read with ss 5, 7, 8,
9, 12A, and 20 of the Act. Paragraph 58.3 of Grey’s founding
affidavit reads
as follows:
‘
I
have been advised that there is nothing wrong, if the SGB no longer
requires professional staff to act on its behalf, to simply
say so
and get somebody else to act on its behalf.
’
That,
so it was contended, was made clear at the commencement of the
meeting at which the impugned decision had been taken.
[23]
In the view of the SGB, any complaints Mr Scheepers might have had in
relation to the infringement of his labour law rights
were to be
taken up with his employer, the Department. It reiterated that all it
did, in revoking Mr Scheepers’ powers and
functions, was to
retake the control that vested in it in terms of the provisions of
the Act. There was thus no unlawful withdrawal
of Mr Scheepers’
powers, functions or duties.
[24]
In support of its fundamental premise, set out in the immediately
preceding paragraphs, the SGB pointed to the ultimate responsibility

it held, in terms of the provisions of the Act, for managing and
controlling the finances of the school.  Furthermore, it
was
contended that in terms of the Personnel Administrative Measures
(PAM),
[5]
gazetted by the
Minister of Education, the principal’s role in relation to
managing the school’s accounts and records
is one in terms of
which he is required to act in consultation with the governing body.
This meant that Mr Scheepers could continue
to fulfil these
functions, despite the decision by the SGB. The SGB contended that
the decision did not impact on the exercise
of Mr Scheepers’
statutorily conferred powers and functions.
[25]
Before us it was submitted, on behalf of the SGB, that the court
below had erred in rejecting its core submissions, set out
above, by
reliance, inter alia, on provisions such as s 8A of the Act, which
conferred on the principal the power to conduct random
searches of
learners or their property during school hours. It was asserted that
this defined power did not confer an entitlement
to manage school
activities in the general sense. It was notable, so counsel for the
SGB asserted, that there was no power to be
found in the provisions
of the Act conferring a general power to manage school activities.
Instead, so it was argued, the Act provides
only for the
‘professional management of the school’, and this relates
to the implementation of educational programmes
and curriculum
activities, in respect of which a principal is required to report to
the Department.
[26]
Before us, in support of the essence of its case, it was submitted
that the provisions of PAM, which envisages the principal
having an
active role in promoting the extra-curricular activities and
encouraging learners’ voluntary participation in sporting

activities, do not militate against the lawfulness of the decision to
revoke the delegated powers. In short, so the argument went,
although
the power to manage such activities vests in the SGB, the principal
is not precluded from promoting or encouraging extra-curricular

activities. All that was revoked was the management function, which,
in any event, resides in the governing body.
[27]
The same applied, so the SGB submitted, in relation to the provisions
of PAM, which enable a principal to conduct regular inspections
of a
school to ensure that the school premises and equipment were being
used properly and that good discipline was being maintained
and, in
addition, to be responsible for the hostel and all related activities
The court below was criticised for relying on these
provisions in
holding against the SGB. The SGB took the view that the PAM and the
Act vested the management of the school in respect
of those aspects
in the SGB.
[28]
Similarly, so it was contended on behalf of the SGB, the provisions
of PAM, in terms of which the principal was responsible
for
communication and liaison on behalf of the school and for
representing the school at non-academic fora, have to be seen in
the
light that they concern delegated powers which the SGB could withdraw
at any time. In respect of the assistance that a principal
provides
to the governing body in handling disciplinary matters, it was
submitted that the obligation only exists if a principal
is called
upon to fulfil it. This, it submitted, supported the position adopted
by the SGB, namely, that a school principal exercises
all these
functions at the behest of the governing body and that all such
functions entrusted to the principal could be withdrawn
at the
instance of the governing body.
[29]
It was accepted on behalf of the SGB that a principal has a duty to
manage educators and support staff. However, it was submitted
that
this must be seen in the light of the obligation that a principal
undertakes, namely the professional management of a school,
which
relates to the exercise of academic and support functions. I pause to
record that a letter from the Head of Department, dated
4 July 2018
and addressed to the SGB, makes it clear that the Department did not
side with it in the conflict with Mr Scheepers.
Furthermore, it
considered the SGB to be mistaken about its view of the provisions of
the Act and considered Mr Scheepers to be
the principal of Grey. It
is also clear from that letter that it considered FEDSAS to be on the
wrong side of the conflict. For
completeness, it is also necessary to
note that the litany of complaints, presented to Mr Scheepers at the
meeting at which the
impugned decision was taken, was repeated in the
SGB’s answering affidavit, with specific incidents referred to
in some detail.
We are not called upon to decide on the correctness
of those allegations by the SGB. I now turn to deal with the judgment
of the
court below.
[30]
Musi AJP (as he then was), at the outset, had regard to the judgment
of the Constitutional Court in
Head
of Department, Department of Education, Free State Province v Welkom
High School and Others; Head of Department, Department
of Education,
Free State Province v Harmony High School and Another
[6]
at para 124, where the following appears:
‘
Given
the nature of the partnership [the Act] has created, the relationship
between public school governing bodies and the state
should be
informed by close cooperation, a cooperation which recognises the
partners’ distinct but interrelated functions.
The relationship
should therefore be characterised by consultation, cooperation in
mutual trust, and good faith. The goals of providing
high-quality
education to all learners and developing their talents and capacities
are connected to the organisation and governance
of education. It is
therefore essential for the effective functioning of a public school
that the stakeholders respect the separation
between governance and
professional management, as enshrined in [the Act].
’
[31]
The court below recorded that the SAOU had sought and been granted
leave to intervene in support of Mr Scheepers. The position
of the
SAOU was uncomplicated and direct. It had intervened in support of
its members, amongst whom there were school principals
and people
aspiring to that position, and it contended that the SGB had no power
to retract, as it purported to do, the principal’s
statutory
powers, functions and duties, which were statutorily mandated. The
court below had rejected the SGB’s submission
that the SAOU had
no standing.
[32]
The court below had regard to the relevant provisions of the Act. It
commenced by noting that in terms of s 15 every public
school is a
juristic person with legal capacity to perform its functions in terms
of the Act. Musi ADP went on to consider s 16
and s 23, which
make it clear that the governance of public schools is vested in
governing bodies.
[7]
He
also had regard to ss 6, 20, 36 and 38, in terms of which governing
bodies performed a number of functions, such as policy
making, the
setting, implementation and control of budgets, the sourcing of
finance and the administration and control of school
property.
[33]
In the view of the court below, a governing body, by its very nature
and setting, is unable to perform all of its functions
by itself and
that in the ordinary course it would delegate some of its functions.
This, it was held, is countenanced by the Act.
The court took into
account that in terms of s 30, a governing body may establish
committees to perform some of its functions.
With reference to
Schoonbee and Others
v MEC for Education, Mpumalanga and Another
2002
(4) SA 877
(T), it held that in appropriate circumstances and within
the statutory framework, a governing body could delegate some of its
functions to a principal.
[34]
Musi ADP recognised that delegation ‘postulates a revocable
transmission of subsidiary authority’.
[8]
In other words, if a delegator is able to delegate some of its
functions it has a corresponding right to revoke such delegation.
If
the revocation has to be preceded by a formal requirement, in terms
of a statute or policy, then that has to be complied with
before the
revocation can take place. Where no such requirement has to be
fulfilled, the delegator can revoke the delegation without
more. The
court below looked to see whether the principal had in any form
usurped any of the SGB’s functions, duties or powers.
In that
exercise it considered whether there were statutory provisions or a
policy that enabled a principal to co-exercise functions,
duties or
powers with a governing body. If the answer was in the affirmative,
so it reasoned, there could be no talk of an unlawful
exercise of
powers, functions or duties on the part of the principal.
[35] The court below
considered s 16A of the Act and took into account what the
Constitutional Court, in
Welkom
, had said in relation thereto:
‘
A
principal must, in discharging his or her professional management
duties, amongst other things, implement educational programmes
and
curriculum activities, manage educators and support staff, perform
functions that are delegated to him or her by the HOD under
whose
authority he falls and implement policy and legislation. In contrast,
a school governing body’s governance functions
include
promoting the school’s best interests and striving to ensure
the provision of quality education to all learners at
the school,
developing a mission statement for the school, adopting a code of
conduct for learners and administering school property
(subject to
certain constraints).’
[9]
[36] Against the SGB’s
assertion that it had delegated to the principal the administration
of school funds, the court below
had regard to the provisions of s 37
of the Act, which reads as follows:
‘
(1)
The governing body of a public school must establish a school fund
and administer it in accordance with directions issued by
the Head of
Department.
(2)
Subject to subsection (3), all money received by a public school
including school fees and voluntary contributions must be paid
into
the school fund.
(3)
The governing body of a public school must open and maintain one
banking account, but a governing body of a public school may,
with
the approval of the Member of the Executive Council, invest surplus
money in another account.
(4)
Money or other goods donated or bequeathed to or received in trust by
a public school must be applied in accordance with the
conditions of
such donation, bequest or trust.
(5)
All assets acquired by a public school on or after the commencement
of this Act are the property of the school.
(6)
The school fund, all proceeds thereof and any other assets of the
public school must be used only for—
(a)
educational
purposes, at or in connection with such school;
(b)
educational
purposes, at or in connection with another public school, by
agreement with such other public school and with the consent
of the
Head of Department;
(c)
the
performance of the functions of the governing body; or
(d)
another
educational purpose agreed between the governing body and the Head of
Department.
(7)
(a)
Money from the school fund of a public school may not be paid into a
trust or be used to establish a trust.
(b)
if a trust
was established from a school fund of a public school or if such
money was paid into a trust prior to 1 January 2002,
such trust or
payment is invalid and the money must be paid back into the school
fund.
(c)
A governing
body of a public school may not collect any money or contributions
from parents to circumvent or manipulate the payment
of compulsory
school fees and to use such money or contributions to establish or
fund a trust, and if such money or contributions
of parents were paid
into a trust prior to 1 January 2002, the trust must pay such money
or contributions into the school fund.’
[37] Alongside ss 16A and
37 the court below considered s 42 of the Act, which reads as
follows:
‘
The
governing body of a public school must—
(a)
keep records
of funds received and spent by the public school and of its assets,
liabilities and financial transactions; and
(b)
as soon as
practicable, but not later than three months after the end of each
financial year, draw up annual financial statements
in accordance
with the guidelines determined by the Member of the Executive
Council.
’
[38] Completing its
conspectus of provisions of the Act relating to the administration of
school funds, the court took into account
that, in terms of s
16A(2)
(h)
, the principal of a school has a duty to assist a
governing body with the management of school funds. That subsection
provides:
‘
The
principal must—
…
(h)
assist
the governing body with the management of the school’s funds,
which assistance must include ­—
(i)
the provision of information relating to any conditions imposed or
directions issued by the Minister, the Member of the Executive

Council or the Head of Department in respect of all financial matters
of the school contemplated in Chapter 4; and
(ii)
the giving of advice to the governing body on the financial
implications of decisions relating to the financial matters of
the
school…
’
The
court below held that was unclear how these functions were to be
executed while the newly appointed school manager, Mr Geldenhuys,
was
in charge. This becomes all the more glaring, so the court below
reasoned, when regard is had to the PAM, in terms of which
a school
principal’s professional management of a school includes the
keeping of various kinds of accounts and records in
relation to the
use of school funds.
[39]
Musi ADP went on to explore other provisions of PAM, including those
that authorise school principals, in relation to school
activities,
to prohibit drugs and dangerous objects from being brought onto
school premises. PAM provides for a school principal
to play an
active role in promoting extra and co-curricular activities. The
court below held that the Act does not permit the SGB
to strip the
principal of these functions and duties.
[40] The court below took
into account that PAM also provides for a school principal to ensure
that school premises and equipment
are properly utilised and that
discipline is maintained. So, too, a school principal is tasked with
managing educators and support
staff. In doing so he/she is not
restricted to managing only in relation to academic functions. PAM
also imposes a duty on school
principals to represent the school in
communications with stakeholders. The court below asked the following
question:
‘
How
can a principal professionally manage a school and not at the same
time manage the vision, mission and values of the school
as espoused
by the SGB?’
[10]
It
went on to hold that the SGB
overreached in stripping Mr Scheepers of these management functions.
[41] The court below,
having regard to what is set out in the preceding paragraphs, reached
the conclusions set out in para 3 above.
It went on to add the
following:
‘
The
unlawfulness of the act did not end there. The SGB summarily and
unlawfully appointed Mr Geldenhuys as the school manager of
Grey
College Secondary School. There is no evidence that there is such a
post on the establishment of the school. Mr Geldenhuys
was the
principal of Grey College Primary School. His transfer or temporary
secondment to Grey College Secondary School was done
without the
intervention or authorisation of the HOD.
’
[11]
[42]
It is against the conclusions set out in para 3 above and the
resultant order that the present appeal, with the leave of this

court, is directed. To consider whether the SGB acted within its
powers, it is necessary to consider the applicable legislative

framework and then to decide whether the conclusions reached by the
court below are justified.
[43]
There can be no doubt that the Act is transformative. It says so in
the preamble, which records that the achievement of democracy
has
consigned to history the past system of education, based as it was on
racial inequality and segregation. It notes that a new
national
system for schools is required that will redress past injustices and
provide a progressively high-quality education for
the nurturing and
ultimate realisation of the talents and capabilities of all our
people.  The long title indicates that its
purpose is to provide
a ‘uniform’ system for the ‘organisation,
governance and funding of schools’.
[44]
As referred to above, every public school, in terms of s 15 of the
Act, is recognised as a juristic person with legal capacity.
Section
16(1) states that ‘subject to this Act, the governance of every
public school is vested in its governing body’
(emphasis
added). Significantly, the remainder of the section states that a
governing body ‘may perform only such functions
and obligations
and exercise only such rights as prescribed by the Act’.
[45]
Section 16(2) provides that a governing body stands in a position of
trust towards the school. In terms of s 18, a governing
body is
obliged to function in terms of a constitution, which must comply
with minimum requirements set by the MEC of the applicable
province.
Such a constitution is required to provide for a meeting of a
governing body ‘at least once every school term’.
[12]
Furthermore, a governing body is required, in terms of 18(2)
(b)
,
to meet with parents, learners, educators and other staff at least
once every year. Section 18(2)
(c)
and
(d)
also obliges a governing body to keep minutes of its meetings, which
it must make available for inspection by the HOD. Finally
on this
score, a governing body is required at least once a year to render a
report on its activities to parents, learners, educators
and other
staff of the school.
[46]
In terms of s 18A(1) the MEC ‘must’, by notice in the
Provincial Gazette, ‘determine a code of conduct for
the
members of the governing body of a public school’, which must
be ‘aimed at establishing a disciplined and purposeful
school
environment dedicated to the improvement and maintenance of a quality
governance structure at a public school’.
[13]
The code of conduct must be observed by all members of a governing
body, contravention of which may lead to a member’s suspension

or even termination by the relevant HOD.
[14]
[47] Section 20 is
extensive. It sets out the functions of a governing body. The
relevant parts are set out hereafter:
‘
(1)
Subject to this Act, the governing body of a public school must—
(a)
promote the
best interests of the school and strive to ensure its development
through the provision of quality education for all
learners in the
school;
(b)
adopt a
constitution;
(c)
develop
the mission statement of the school;
(d)
adopt
a code of conduct for the leaners of the school;
(e)
support
the principal, educators and other staff of the school in the
performance of their professional functions;
(e
A
)
adhere
to any action taken by the Head of Department in terms of section 16
of the Employment of Educations Act [76 of 1998 (the
EEA)], to
address the incapacity of a principal or educator to carry out his or
her duties effectively;
(f)
determine
times of the school day consistent with any applicable conditions of
employment of staff at the school;
(g)
administer
and control the school’s property, and buildings and grounds
occupied by the school, including school hostels,
but the exercise of
this power must not in any manner interfere with or otherwise hamper
the implementation of a decision made
by the Member of the Executive
Council or Head of Department in terms of any law or policy;
(h)
encourage
parents, learners, educators and other staff at the school to render
voluntary services to the school;
(i)
recommend
to the Head of Department the appointment of educators at the school,
subject to the
Employment of Educators Act, 1998
, and the
Labour
Relations Act, 1995
;
(j)
…
(k)
at
the request of the Head of Department, allow the reasonable use …
of the facilities of the school for educational programmes
not
conducted by the school;
…’
Subject
to certain conditions a governing body may, in terms of the
provisions of
s 20
, establish posts for educators and
non-educators.
[15]
Section 20(8)
, in turn, provides that the employment of these
educators and non-educators must be in compliance with the values and
principles
enshrined in s 195 of the Constitution and, when making
appointments, a candidate’s ability, the principle of equity,
the
need to redress past imbalances and representivity are all
factors which must be taken into account.
[16]
[48]
Section 23 of the Act deals with membership of governing bodies of
ordinary public schools. It comprises elected members, the
principal
and co-opted members. Elected members are comprised of parents of
learners, both educators and non-educators at the school,
and school
learners in the eighth grade or higher. Section 11 of the Act
provides for the establishment of a representative council
of
learners at every public school, while s 23(4) provides that the
learner on the governing body is to be elected by that council.
[49]
Section 29 provides for office bearers of a governing body, which
include at the least a chairperson, a secretary and a treasurer.

Section 30 permits a governing body to establish committees,
including an executive committee, and it may appoint persons who are

not members of the governing body to serve on such committees,
provided that each committee is chaired by a member of the governing

body.
[50]
In terms of s 34 of the Act the state is obliged to fund public
schools from public revenue. The responsible Minister, in terms
of s
35, is responsible for setting norms and standards for school
funding. In terms of s 36 a governing body is required to take

reasonable measures within its means to supplement the resources
supplied by the state. In terms of s 37, set out in para 36 above,
a
governing body must establish a school fund and administer it in
accordance with directives from the HOD. In terms of s 42, as

referred to above, the governing body is required to keep records of
funds received and spent by the school and of its assets,
liabilities
and financial transactions. It must draw up annual financial
statements in accordance with directions of the MEC.
[51] What, then, of the
role of the principal? In terms of s 16(3) the ‘professional
management’ of a public school
must
be undertaken by the
principal
under the authority
of the Head of Department’
(emphasis added). Section 16A(1)
(a)
and
(b),
under the
title ‘Functions and responsibilities of principal of public
school’, read as follows:
‘
1
(a)
The principal of a public school represents the Head of Department in
the governing body when acting in an official capacity as

contemplated in sections 23(1)
(b)
and 24(1)
(j)
.
(b)
The principal
must prepare and submit to the Head of Department an annual report in
respect of—
(i)
the academic performance of that school in relation to minimum
outcomes and standards and procedures for assessment determined
by
the Minister in terms of section 6A; and
(ii)
the effective use of available resources.’
[52] The Act has more in
mind for a principal. Section 16A(2) provides:
‘
The
principal must—
(a)
in
undertaking the professional management of a public school as
contemplated in section 16(3), carry out duties which include,

but are not limited to—
(i)
the implementation of all the educational programmes and curriculum
activities;
(ii)
the management of all educators and support staff;
(iii)
the management of the use of learning support material and other
equipment;
(iv)
the performance of functions delegated to him or her by the Head of
Department in terms of this Act;
(v)
the safekeeping of all school records; and
(vi)
the implementation of policy and legislation;
(b)
attend and
participate in all meetings of the governing body;
(c)
provide the
governing body with a report about the professional management
relating to the public school;
(d)
assist the
governing body in handling disciplinary matters pertaining to
learners;
(e)
assist the
Head of Department in handling disciplinary matters pertaining to
educators and support staff employed by the Head of
Department;
(f)
inform the
governing body about policy and legislation;
(g)
provide
accurate data to the Head of Department when requested to do so;
(h)
assist the
governing body with the management of the school’s funds, which
assistance must include—
(i)
the provision of information relating to any conditions imposed or
directions issued by the Minister, the Member of the Executive

Council or the Head of Department in respect of all financial matters
of the school contemplated in Chapter 4;
[17]
and
(ii)
the giving of advice to the governing body on the financial
implications of decisions relating to the financial matters of
the
school;
(i)
take all
reasonable steps to prevent any financial maladministration or
mismanagement by any staff member or by the governing body
of the
school;
(j)
be a member
of a finance committee or delegation of the governing body in order
to manage any matter that has financial implications
for the school;
and
(k)
report any
maladministration or mismanagement of financial matters to the
governing body of the school and to the Head of Department.’
[53] Section 16A(3)
provides:
‘
The
principal must assist the governing body in the performance of its
functions and responsibilities, but such assistance or participation

may not be in conflict with—
(a)
instructions of the Head of Department;
(b)
legislation or policy;
(c)
an obligation he or she has towards the Head of Department, the
Member of the Executive Council or the Minister; or
(d)
a provision of the Employment Educators Act, 1998, and the Personnel
Administration Measure determined in terms thereof.'
[54] Section 8A(1) reads
as follows:
‘
Unless
authorised by the principal for legitimate educational purposes, no
person may bring a dangerous object or illegal drug onto
school
premises or have such object or drug in his or her possession on
school premises or during any school activity.’
The relevant part of s
8A(2) provides:
‘
Subject
to subsection (3), the principal or his or her delegate may, at
random, search any group of learners or the property of
a group of
learners, for any dangerous object or illegal drug, if a fair and
reasonable suspicion has been established …’
Subsection
3 sets out factors that must be taken into account when such a search
is being contemplated.
[55] The EEA deals with
the employment of educators by the State, the regulation of their
conditions of service, disciplinary matters,
the retirement of
educators and matters connected therewith. ‘Educator’ is
defined in section 1 as follows:
‘
[A]ny
person who teaches, educates or trains other persons or who provides
professional educational services, including professional
therapy and
education psychological services, at any public school, departmental
office or adult basic education centre and who
is appointed in a post
on any educator establishment under this Act …’
[56]
Section 3 of the EEA provides that the Director-General: Basic
Education is the employer of educators in the service of the
national
department and that the Head of Department is the employer of
educators in the service of the provincial department of
education in
posts on the educator establishment of that department for all
purposes of employment. Section 4 provides for conditions
of service
to be determined by the Minister, subject to the
Labour Relations Act
66 of 1995
and collective agreements. Different salaries and
conditions may be determined by the Minister in respect of different
ranks and
grades of educators.
Section 7
, consonant with the
provisions of the Act, provides that, in making appointments, regard
must be had to the values and principles
enshrined in s 195 of the
Constitution, and that the factors of candidate ability, the need to
redress the imbalances of the past
and achieve broad representation,
shall be taken into account. Section 6 states that any appointment
may only be made on the recommendation
of the governing body of a
public school. In the present case the SGB had recommended the
appointment of Mr Scheepers who was then
appointed by the provincial
Head of Department.
[18]
[57] The provisions of
PAM elaborate on the role of a school principal in a public school,
consonant with the provisions of the
Act and the EEA. Under the title
‘AIM OF THE JOB’, the following appears:
‘
2.1
To ensure that the school is managed satisfactorily and in compliance
with applicable legislation, regulations and personnel
administration
measures as prescribed.
2.2
To ensure that the education of the learners is promoted in a proper
manner and in accordance with approved policies.’
The
provisions of PAM then proceed to reiterate the functions of a
principal as encapsulated in the Act, the specific provisions
of
which are referred to above
.
The clause dealing with
‘Personnel’ reads as follows, in relevant part:
‘
3.2.1
To provide professional leadership within the school.
3.2.2
To guide, supervise and offer professional advice on the work and
performance of all staff in the school and, where necessary,
to
discuss and write or countersign reports on teaching, support,
non-teaching and other staff.
3.2.3
To ensure that workloads are equitably distributed amongst the staff.
3.2.4
To be responsible for the development of staff training programmes,
both school-based, school-focused and externally directed,
and to
assist educators, particularly new and inexperienced educators, in
developing and achieving educational objectives in accordance
with
the needs of the school. …’
Other provisions of PAM
deal with a principal’s role in relation to the academic
performance of the school, and in teaching.
Clause 3.6 is entitled
‘Interaction with stakeholders. The relevant parts read as
follows:
‘
3.6.1
…
3.6.2
To participate in community activities in connection with educational
matters and community building
.’
Para 3.7 bears the title
‘Communication’. The relevant clauses appear hereunder:
‘
3.7.4
To meet parents concerning learners’ progress and conduct.
…
3.7.8
To participate in departmental and professional committees, seminars
and courses in order to contribute to and/ or update
professional
views/standards.
3.7.9
To maintain contacts with sports, social, cultural and community
organisations.’
[58] Chapter 5 of the EEA
deals with incapacity and misconduct of educators. Section 17 deals
with categories of so-called serious
misconduct, none of which is
applicable here, in respect of which dismissal is mandatory. The
relevant parts of s 18(1) read as
follows:
‘
(1)
Misconduct refers to a breakdown in the employment relationship and
an educator commits misconduct if he or she—
…
(f)
unjustifiably
prejudices the administration, discipline or efficiency of the
Department of Basic Education, an office of the State
or a school or
adult learning centre;
(g)
misuses his
or her position in … a school … to promote or to
prejudice the interests of any person;
…
(l)
performs
poorly or inadequately for reasons other than incapacity;
…
(q)
while
on duty, conducts himself or herself in an improper, disgraceful or
unacceptable manner;
…
(t)
displays
disrespect towards others in the workplace or demonstrates abusive or
insolent behaviour;
(u)
intimidates
or victimises fellow employees, learners or students…’
[59]
Section 18(2) provides that ‘[i]f it is alleged that an
educator committed misconduct as contemplated in subsection (1),
the
employer must institute disciplinary proceedings in accordance with
the disciplinary code and procedures contained in Schedule
2’.
[60]
What is apparent is that the statutory architecture is to ensure
symmetry and to provide a platform for synergies between the

different role players. In
Welkom
[19]
Khampepe J, referring to the Act, said the following (at para 36):
‘
[T]he
state’s obligations to ensure that the right to education is
meaningfully realised for the people of South Africa are
great
indeed. The primary statute setting out these obligations is [the
Act]. That Act contains various provisions governing the

relationships between the Minister, members of provincial executive
councils responsible for education (MECs), HODs, principals
and the
governing bodies of public schools. It makes clear that public
schools are run by a partnership involving school governing
bodies
(which represent the interests of parents and learners), principals,
the relevant HOD and MEC, and the Minister. Its provisions
are
carefully crafted to strike a balance between the duties of these
various partners in ensuring an effective education system.’
[61]
Welkom
noted
that the Act did not define ‘governance’, even though it
placed the responsibility for governance in the hands
of governing
bodies. It considered the essential governance functions to be those
listed in s 20(1), set out in para 47 above,
and although the Act
placed ‘professional management’ of a public school in
the hands of the principal, it did not
define that either.
[20]
The Constitutional Court had regard to the provisions of s 16A(2)(a),
set out in para 52 above, which lists the functions and
responsibilities of a public-school principal. These were an
essential part of his or her professional management duties.
[21]
It took the view that although the principal is a member of the
governing body, he or she occupies that position as a representative

of the HOD.
[62] In para 41 of
Welkom
Khampepe J said the following:
‘
In
addition to s 16A’s general delineation of a principal’s
duties, each provision of [the Act] dealing with a specific
aspect of
a school governance or administration provides further guidance on
the roles and responsibilities of the relevant actors.’
[63]
In
Welkom
the
Constitutional Court recognised a governing body’s authority to
determine a public school’s admission policy, subject
to
express stipulations aimed at preventing the imposition of unfair
admission requirements and further subject to regulation prescribed

by the Minister. A Head of Department, on the other hand, is
empowered to administer admissions. The Constitutional Court also

appreciated that governing bodies are entitled to set a language
policy, again subject to certain prescripts. So, too, is a governing

body entitled to adopt a code of conduct, subject to guidelines that
might be determined by the Minister. In certain instances
a governing
body may, as a precautionary measure, suspend a learner for up to
seven days.
[22]
The court had
regard to the power of a HOD, under certain circumstances, to
intervene directly in the affairs of the school.
[23]
It will be recalled that a principal’s duties in relation to
the relevant HOD was dealt with earlier in the judgment.
[64] In para 49 of
Welkom
, the Constitutional Court returned to the theme of the
manner in which public schools are meant to function as a
partnership. It
said the following:
‘
Under
[the Act], two things are perspicuous. First, public schools are run
by a partnership involving the state, parents of learners
and members
of the community in which the school is located. Each partner
represents a particular set of relevant interests and
bears
corresponding rights and obligations in the provision of education
services to learners. Second, the interactions between
the partners –
the checks, balances and accountability mechanisms – are
closely regulated by [the Act]. Parliament
has elected to legislate
on this issue in a fair amount of detail in order to ensure the
democratic and equitable realisation of
the right to education. The
detail must be respected by the executive and the judiciary.’
[24]
The
Constitutional Court also stated that the Act must be read in
conjunction with other applicable legislation, in this context
the
EEA, which provides that an HOD is the employer of public-school
educators who are appointed to provincial departmental posts,

including principals.
[65]
The Constitutional Court had regard to the
Oxford
English Dictionary
which defines ‘governance’ as, amongst other things,
‘(t)he action or manner of governing’, ‘(c)ontrolling,

directing or regulating influence’ and ‘(t)he manner in
which something is governed or regulated; method of management,

system of regulations’.
[25]
In
Ermelo
the Constitutional Court stated that a governing body’s primary
function is to serve the interest of the school and its learners.
[26]
In
Welkom
the distinction was noted between the ‘governance’ and
the ‘professional management’ of a school. It said
the
following:
‘
As
is evident from s 16A(2)(
a
),
the professional management of a public school consists largely of
the running of the daily affairs of a school by directing
teachers,
support staff and the use of learning materials, as well as the
implementation of relevant programmes, policies and laws.’
[27]
[66] Continuing, the
court returned to the role of a governing body and contrasted it with
the role of the principal. The court
said the following:
‘
To
my mind, therefore, a governing body is akin to a legislative
authority within the public school setting, being responsible for
the
formulation of certain policies and regulations, in order to guide
the daily management of the school and to ensure an appropriate

environment for the realisation of the right to education. By
contrast, a principal’s authority is more executive and
administrative
in nature, being responsible (under the authority of
the HOD) for the implementation of applicable policies (whether
promulgated
by governing bodies or the Minister, as the case may be)
and the running of the school on a day-to-day basis. It is this
understanding
of a governing body’s governance obligations
which must inform our interpretation of [the Act].’
[28]
[68]
As presaged by the question posed at the commencement of this
judgment, the SGB’s case is built on a house of cards.
The SGB
ignores the statutory architecture and does not distinguish between
the different roles played by the governing body and
the principal.
It does not appreciate the distinction between its
governance/legislative function and the managerial/executive
function
of the principal. It is clear from its answering affidavit that it
sees the principal as having no original authority
and adopts the
position that all his functions and duties derive from it. Paragraph
58.3 of the answering affidavit, quoted in
para 21 above, makes it
clear that the SGB holds the view that it can dispense with the
principal’s professional role if
and when it chooses. The
foundation of the SGB’s case is that s 20 of the Act is
extensive in relation to its role, that
that section puts it in
overall charge of the school, and that in performing his task as
principal, Mr Scheepers is merely acting
on delegated authority. The
SGB is unjustifiably dismissive of the provisions of the Act, the EEA
and the PAM that deal with the
role of the principal. It contended
that the provisions of the Act restrict the principal’s role to
academic functions. That
is palpably fallacious.
[69]
Section 16 (3), in express terms, bestows a professional management
authority in relation to a public school on the principal.
In that
capacity he or she is not restricted to managing only the academic
programme of the school. Section 16A(2)
(a)
reaffirms the professional management function of a principal and,
far from restricting it, says that what is listed thereunder
as the
duties of a principal is not exhaustive. In terms of
s 16(2)
(a)
the principal is required to manage all academic
and
support staff.
Furthermore, he is required to ‘manage’ the use of
learning support material and other equipment. These
are functions
that exist not because of the SGB’s delegation, but by virtue
of the provisions of the Act. The principal’s
role in terms of
s 8A(1), in controlling what is brought onto school premises, is yet
another aspect of his management function
and it does not derive from
the SGB but from the provisions of the Act. When the SGB recommended
Mr Scheepers to be appointed principal
it was obliged, both in terms
of the provisions of the Act and the EEA, to consider his ability to
perform
that
function which, by its nature, is managerial. It is, as indicated in
the provisions of PAM referred to above, and as one would
expect, a
position with a specific ranking within the post of educators.
[70]
Moreover, the resolution of the SGB, set out in para 14 above, in
terms, confers ‘management’ functions on Mr Geldenhuys.

These functions are encompassed within the ‘professional
management’ of the school, as envisaged in the Act, the EEA
and
the PAM. This is what Mr Scheepers’ letter of appointment
envisaged he would do. The functions and duties assigned to
Mr
Geldenhuys are those within the remit of a school principal. It is
that list of functions that the SAOU sought to have declared
as part
of a principal’s management functions and that relief was
granted by the court below. One need not be a lawyer or
be versed in
the specifics of the applicable legislation to understand the role
that a school principal plays. He or she is the
day-to-day face of
the school; the first port of call for parents, learners, educators,
other staff and the community. Given the
express terms of the
applicable statutes and the incisive and clear guidance from the
Constitutional Court in
Welkom
,
the attitude of the SGB, with which FEDSAS aligned itself, is
baffling. The SGB’s case is premised on a fundamentally
contorted
view of the functions of a principal and a school governing
body. Sections 5, 6, 7 and 8 of the Act, on which the SGB relied for

its view that the principal exercised delegated powers, are of no
assistance to it. Those sections deal with the governing body’s

authority in relation to admission to schools, the setting of its
language policy, religious observances and the adoption of a
code of
conduct. This is in accordance with its ‘legislative’ and
governance function. It was never the SGB’s
case that, in
relation to that function, the principal impinged on its
jurisdictional territory. The SGB, on the other hand, sought
to
restrict the role of the principal to strictly academic functions,
despite the clear wording of the relevant provisions of the
Act and
in the face of clear guidance from the Constitutional Court in
Welkom
.
[71]
More accurately, the fundamental premise on which the impugned
decision is based is not only false but also contrived. It is
clear
that the relationship between the chairperson of the SGB and Mr
Scheepers has soured. It is equally clear form the documents
filed of
record that there is tension between camps on either side. The
principal might be the victim of unjustified criticism
by those
opposed to him or he might be conducting himself as described by
them. The accusations by each camp are serious. If there
is a basis
for a disciplinary case to be pursued against Mr Scheepers by the SGB
then that should be the route that is followed,
rather than the
stratagem adopted here. It is disingenuous to suggest that whatever
labour law complaints Mr Scheepers might have
he must take up with
his employer, the HOD. In taking the impugned decision the SGB not
only acted beyond its statutory authority,
but also negated Mr
Scheepers’ labour law rights. Wherever lies the fault for the
breakdown in the relationship, it cannot
be in the school’s
best interests that it continues. What is required is sober
reflection by all concerned. More often than
not, in situations such
as the present it is difficult to persuade parties to retreat from
entrenched positions. The school’s
interests are not best
served by protracted litigation, with attendant financial
implications for all, and continuing tensions
and uncertainty. There
should be a sustained effort to arrive at a solution that best serves
the school and any attempt at mediation
should involve parties
without a leg in either camp. This ongoing tension might also be part
of a greater turf war, including organisations.
In this instance the
interest of FEDSAS and the SAOU diverge. The legislation is there as
a beacon. We must, all of us, get down
to the real and urgent
business of realising the right to education, which is the pathway to
the development of the full potential
of our learners and
communities. This will only occur if every role player understands
its role and fulfils it. Put differently,
the message to all the role
players is simply this: Put the learners first.
[72]
The conclusion of the court below that the SGB lacked the statutory
authority to act in the manner complained of, by effectively

preventing the principal from fulfilling his statutory functions and
duties, is correct. The assertion that the court below erred
in
holding that the decision by the SGB constituted administrative
action is also unfounded. In
Minister
of Education, Western Cape, and Others v Governing Body, Mikro
Primary School, and Another
[2005]
ZASCA 66
;
2006 (1) SA 1
(SCA)
3 All SA 436
(SCA) para 20 this court
held that a public school, along with its governing body, is an organ
of state.
[29]
In
Minister
of Defence and Military Veterans v Motau and Others
[30]
the Constitutional Court, referring with approval to the decision of
this court in
Grey’s
Marine
,
[31]
divided the definition of ‘administrative action’
in s 1 of PAJA into seven elements to be used as a practical

guideline
:
‘
[T]here
must be
(a)
a decision of an administrative nature;
(b)
by an organ of state or a natural or juristic person;
(c)
exercising a public power or performing a public function;
(d)
in terms of any legislation or an empowering provision;
(e)
that adversely affects rights; (f) that has a direct, external legal
effect; and
(g)
that does not fall under any of the listed exclusions.’
[73]
The decision in question is quite clearly administrative action. But
in this case that issue is a red herring. All parties
accepted that
if it were to be held that the SGB did not have the statutory
authority to make the decision, that would be dispositive
of the
appeal, irrespective of whether the decision constituted
administrative action or not.
[32]
The challenge by the SGB on this point might have been motivated by
the need to avoid having to deal with procedural fairness issues.

This appears to be premised on the view that a legality challenge
necessarily avoids questions related to procedural impropriety.
Even
in that regard the SGB appears to be mistaken.
[33]
However, having regard to the conclusion reached above we need not
entertain any of these issues any further.
[74]
A further issue raised on behalf of the SGB concerned the right of
the SAOU to intervene. It was contended on its behalf that
the SAOU
did not have a direct and substantial interest but that in reality in
only had a contingent interest and that none of
its rights were
potentially adversely affected by the SGB’s decision. In short,
it submitted that the court below should
not have allowed the
intervention by the Union and should not have ordered the SGB to pay
its costs. It was contended on behalf
of the SGB that the present
application did not implicate labour issues, which was all the more
reason not to permit the intervention.
I disagree. The SAOU was clear
about its motivation. It has membership of tens of thousands, which
includes principals and deputy
principals, and people who aspire to
those positions and educators in general. The SAOU exists to serve
the interests of its members.
For them it must be important that
there be clarity on the rights and statutory authority of important
role players within the
public education sector. It also seeks to
make a contribution to the development of education legislation and
policy. The declaratory
order sought by the union falls within the
jurisdiction of the high court in terms of
s 21(1)
(c)
of the
Superior Courts Act 10 of 2013
, which states that the court,
at the instance of any interested party, can enquire into and
determine any existing, future or contingent
right. In
Cordiant
Trading CC v Daimler Chrysler Financial Services (Pty) Ltd
[34]
this court, in referring to that subsection’s predecessor, said
the following:
‘
Put
differently, the two-stage approach under the subsection, consists of
the following. During the first leg of the enquiry the
Court must be
satisfied that the applicant has an interest in an ’existing,
future or contingent right or obligation’.
At this stage the
focus is only upon establishing that the necessary conditions
precedent for the exercise of the Court’s
discretion exist. If
the Court is satisfied that the existence of such conditions has been
proved, it has to exercise the exercise
the discretion by deciding
either to refuse or grant the order sought. The consideration of
whether or not to grant the order constitutes
the second leg of the
enquiry.’
[75]
It is of course so that an applicant for leave to intervene must
satisfy the direct and substantial interest test. In
SA
Riding for the Disabled Association v Regional Land Claims
Commissioner and Others
[35]
the Constitutional Court said:
‘
This
means that the applicant must show that it has a right adversely
affected or likely to be affected by the order sought. But
the
applicant does not have to satisfy the court at the stage of
intervention that it will succeed. It is sufficient for such
applicant to make allegations which, if proved, would entitle it to
relief.’
[76]
In this case it must be borne in mind that the SGB sought relief in a
conditional counter-application and sought to resist
relief that
implicated the rights of the SAOU’s membership. In my view
there can be no doubt that the declaratory order sought
by the SAOU
and granted by the court below will lead to greater certainty for all
concerned. The court below was also correct in
having regard to s 38
of the Constitution, which deals with the right to approach a court
for the enforcement of rights. It recognises
the rights, inter alia,
of anyone acting as a member, or in the interest of a group or class
of persons, anyone acting in the public
interest and an association
acting in the interests of its members. Thus, the court below cannot
be faulted for allowing the intervention
by the Union, granting it
relief and costs.
[77]
Finally, in my view, FEDSAS contributed very little to the
proceedings before us. It will be recalled that the resolution
adopted by the SGB sought to involve FEDSAS as a
facilitator/mediator, even though it is an organisation for school
governing bodies.
The contemplated mediation exercise was predictably
doomed to fail. FEDSAS successfully sought to be admitted as amicus
in this
appeal. In its heads of argument it was emphatic that it did
not seek to take sides in the present dispute. Much of its heads of

argument was devoted to repeating the applicable provisions of the
Act. Despite disavowing partisanship it echoed the delegation

argument made by the SGB. It is very difficult to discern a different
coherent thread to the submissions on behalf of FEDSAS.
[78]
For all the reasons set out above the following order is made:
The
appeal is dismissed with costs, including the costs of two counsel.
________________________
M S NAVSA
JUDGE OF APPEAL
APPEARANCES:
For
Appellant:

Adv G Engelbrecht SC, with Adv J Meraba
Instructed
by:

Horn & Van Rensburg Prokuruers, Bloemfontein
For
First Respondent:
Adv Kemp J Kemp SC, with Adv W van
Aswegen
Instructed
by:

Peyper Attorneys, Bloemfontein
For
Second Respondent:        Adv N
Snellenburg SC, with Adv T Pienaar
Instructed
by:

Lovius Block Attorneys, Bloemfontein
Amicus:

Adv J du Toit SC
Instructed
by:

Hill McHardy & Herbst Attorneys, Bloemfontein
[1]
See ss 16 and 23 of the Act.
[2]
See paras 87-88, 90 and 94 of the judgment of the court below:
Scheepers v School
Governing Body, Grey College Bloemfontein and Others
(Suid-Afrikaanse Onderwys-Unie Intervening)
[2018]
ZAFSHC 210.
[3]
The counter-application was conditional upon the court below finding
that a school governing body has no express or implied authority
to
delegate any of its functions to a school principal. In that event
the SGB sought an order declaring that its decision to
delegate any
of its functions in terms of the Act to Mr Scheepers was unlawful
and invalid, alternatively, that such decision
be reviewed and set
aside in terms of s 6(2) of the PAJA.
[4]
‘Dear Deon
Thank
you for your email of the eleventh instant. As school principal in
the service of the Free State Department of Education,
you have
certain rights and obligations that flow from the Schools Act. I do
not intend to set out all of those rights and obligations
here, as
you are aware of the provisions of the Schools Act.
As
you know, all of the other rights, obligations, functions and powers
that you presently exercise, and that do not flow from
the Schools
Act, have been either expressly and/or tacitly delegated to you.
The
purpose of the special SGB meeting and the only point on the agenda
is clear, namely, the withdrawal of the SGB’s rights
and
obligations that have been delegated to you.
Kind
regards’ [translation my own].
[5]
As
determined by the Minister in terms of
s 4
of the
Employment of
Educators Act 76 of 1998
. See
GN 170 in
GG
39684
of 12-02-2016.
[6]
Head of
Department, Department of Education, Free State Province v Welkom
High School and Others; Head of Department, Department
of Education,
Free State Province v Harmony High School and Another
[2013]
ZACC 25; 2014 (2) SA 228 (CC).
[7]
Section
16(1) of the Act states: ‘
Subject
to this Act, the
governance
of every public school is vested in its governing body and may
perform only such functions and obligations and exercise only
such
rights as prescribed by the Act.’ (Emphasis added).
[8]
See in this regard
Executive
Council, Western Cape Legislature and Others v President of the
Republic of South Africa and Others
[1995] ZACC 8
;
1995
(4) SA 877
(CC) para 173.
[9]
Welkom
op
cit fn 3 para 39. (Citations omitted.)
[10]
See the
high court’s judgment in
Scheepers
,
o
p cit fn 1, para 85.
[11]
Ibid para 91.
[12]
See s 18(2)
(a)
.
[13]
See s
18A(2)
[14]
See s 18A(4) and (5).
[15]
See ss 20(4), 20(5), 20(6) and 20(7).
[16]
Listed in paras
(a)
-
(d)
of s 20(8).
[17]
Sections 34, 35, 36, 37 and 42, referred to in para 48 above, are
located within Chapter 4 of the Act.
[18]
The letter of appointment states that Mr Scheepers has been
appointed ‘in the post of Principal (Post Level 4) –

Salary Level 11 at Grey College Secondary School. The contract
subsequently signed confirms that. On the duties to be performed
in
terms of that contract, clause 7 records the following: “The
employee shall be expected to satisfactorily carry out
all the tasks
and duties normally associated with the position…’
[19]
Op cit fn 3.
[20]
Ibid paras 37 and 38.
[21]
See para 39.
[22]
See paras 43-46.
[23]
See paras 47-48 and the provisions of the Act there referred to.
[24]
See also,
in this regard,
Head
of Department, Mpumalanga Department of Education and Another v
Hoerskool Ermelo and Another
[2009]
ZACC 32
;
2010 (2) SA 415
(CC) para 56.
[25]
Welkom
op
cit fn 3
para 60.
[26]
See
para
57 of
Ermelo
,
op cit fn 21.
[27]
Welkom
op
cit fn 3 para 62. (Citations omitted.)
[28]
Ibid para 63. The definition of ‘management’ in the
Oxford English Dictionary
(2008), applicable in the
present context, is also useful: ‘Organisation, supervision,
or direction; the application of
skill or care in the manipulation,
use, treatment, or control (of a thing or person), or in the conduct
of something’.
[29]
See also
Welkom
op
cit fn 3 para 141.
[30]
Minister
of Defence and Military Veterans v Motau and Others
[2014] ZACC 18
;
2014 (5) SA 69
(CC) para 33. (Citations omitted.)
[31]
Grey’s
Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works and
Others
[2005] ZASCA 43; 2005 (6) SA 313 (SCA).
[32]
See
Minister of Education,
Western Cape and Another v Beauvallon Secondary School and Others
[2014] ZASCA 218
;
2015 (2) SA 154
(SCA) para 16
[33]
See
Democratic Alliance v
President of the Republic of South Africa and Others
[2012] ZACC 24
;
2013 (1) SA 248
(CC) paras 33-37.
[34]
Cordiant Trading CC v
Daimler Chrysler Financial Services (Pty) Ltd
[2005] ZASCA 50
;
2005 (6) SA 205
(SCA) para 18.
[35]
SA Riding for the Disabled
Association v Regional Land Claims Commissioner and Others
[2017] ZACC 4
;
2017 (5) SA 1
(CC) para 9. (Citations omitted.)