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[2013] ZALCJHB 66
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Head of the Department of Education v Mofokeng and Others (JR 633/10, J 277/13) [2013] ZALCJHB 66 (30 April 2013)
REPUBLIC OF SOUTH AFRICA
IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGEMENT
Reportable
Case no: JR 633/10
J
277/13
In
the matter between:
HEAD
OF THE DEPARTMENT OF EDUCATION
.
...........................................
Applicant
and
M
J MOFOKENG
..................................................................................
First
Respondent
THE
EDUCATION LABOUR RELATIONS COUNCIL
....................
Second Respondent
K
C MOODLEY
....................................................................................
Third
Respondent
Heard
:
25 April 2013
Delivered
:
30 April 2013
Edited:
13 May 2013
Summary
:
Review – combination of two schools to one – issue of
merger or absorption and consequence thereof – award not
reviewable.
_____
JUDGMENT
_____
CELE
J
Introduction
[1]
The applicant seeks a review of the arbitration award dated 5 March
2010 issued by the third respondent under the auspices of
the second
respondent. An order remitting the matter to the second respondent
for a
de novo
determination
of the issues is a consequential order sought in the event the
application is granted. This application is brought
in terms of
section 158 (1) (g) of the Act
1
.
The application is opposed by the first respondent as a beneficiary
of the assailed arbitration award. In the event the application
is
dismissed, the first respondent seeks to have the award made an order
of Court.
Background
facts
[2]
The first respondent, Mr Mofokeng was in the employ of the applicant
as an Educator. On 1 March 1994 Mr Mofokeng was appointed
the
Principal at Credo Primary School within applicant’s area of
operation. On 1 January 2001 Credo Primary School was combined
with
another public school, called Somerspos Primary School, whose
Principal was Mr Msibi.
[3]
On 19 January 2001 Mr Mofokeng received a letter issued by the
District Manager: Sasolburg Education District, Mr M R Mthombeni
addressed to the Principal Credo Primary School and for his personal
attention stating that:
‘
ABSORPTION OF SOMERSPOS PERSONNEL ON YOUR
SCHOOL ESTABLISHMENT
Please be informed hereby that all educators of Somerspos have been
absorbed in your school establishment. Mr Msibi will be utilised
as a
Deputy Principal and you will remain the principal of Credo.’
[4]
As a result of the change Mr Msibi was transferred to Credo School
but he was thereafter transferred to another school. Mr Mofokeng
was
retained at the merged school which had a number of learners and
educators increased to the point that it acquired a grade
4 instead
of grade 3 that Credo School had been during the change.
[5]
A letter was issued under the hand of the Head of Department
addressed to Mr Mofokeng stating that:
‘
Human Resources Circular No 21/1996
stipulates that the principal of a school which is upgraded will be
considered for promotion
to the higher post without being advertised,
provided that he/she qualifies for the higher post and subject to a
written recommendation
from the Governing Body and the District
Manager.’
[6]
Mr Mofokeng was however not appointed to the post of principal and
consequently the applicant decided to advertise the post.
Mr Mofokeng
unsuccessfully applied for the post as Mr Chuta was appointed
instead. Mr Mofokeng referred unfair labour practice
dispute for
conciliation and later for arbitration. In his capacity as the
appointed commissioner, the third respondent issued
an award with a
finding that the decision by the applicant not to promote Mr Mofokeng
to post level 4 was declared to be an unfair
labour practice and he
issued orders to give effect to that promotion. His chief findings in
support of the order are that:
In
writing the governing body recommended the appointment of Mr
Mofokeng as the principal of the merged Credo.
The
applicant seemed to have rejected the recommendation, firstly on the
basis that the recommendation was made in terms of resolution
3 of
2001, which resolution did not apply to a merger.
The
second ground of rejection was that the acceptance of the
recommendation would have prejudiced Msibi.
The
third ground of rejection hovered around the submission that the
recommendation should have come from a newly constituted
governing
body at Credo.
The
assertion had to be rejected on the basis that Somerspos was for all
intents and purposes absorbed by Credo. The governing
body at
Somerspos would thus have ceased to exist as on 1 January 2001. The
argument that the collective agreement did not apply
had to be
rejected. The school had been re-graded on account of the increase
in learners. The governing body made an appeal for
the appointment
of Mr Mofokeng to be automatically appointed to post level 4. It was
based on his competence and ability.
The
applicant accepted the applicability of Resolution 3 in order to
declare the upgraded post as being vacant and yet rejected
the
resolution when it came to the recommendation of the governing body.
In essence the applicant was accepting and rejecting
resolution 3 at
the same time. Such conduct can hardly be said to be fair.
Mr
Mofokeng was informed in writing as per letter on 19 January 2001
that he would remain as the principal of Credo. The applicant
sought
to disown the letter by stating that the author had no mandate to
have written it. The same person wrote most if not all
of the other
letters which the applicant relied on.
The
applicant has for all intents and purposes accepted the
recommendation of the governing body, confirmed the appointment of
Mr Mofokeng as principal post level 4. It then sought to undo the
acceptance and confirmation by having the post advertised.
That
brought about the question whether the conduct of the applicant in
appointing and then reversing the promotion of Mr Mofokeng
from a
principal on post level 4 to a post level 3 educator fell within the
ambit of Section 186(2) of the Act.
Mr
Mofokeng did not rely on a belief which could be said to be legally
fallacious. He relied on the resolution and the applicant
acted in
accordance with the resolution. Hence the principle of estoppel was
applicable in this matter. The applicant is thus
estopped from
denying that Mr Mofokeng should have been promoted to post level 4.
The applicant’s conduct in promoting
and demoting him was
unfair. The contested post was vacant and Mr Msibi was transferred.
There was no reason why Mr Mofokeng
was not to be appointed.
[7]
The applicant outlined grounds of review to substantiate the
application by averring that the third respondent made a fundamental
error in finding that:
a) Somerspos was absorbed into Credo School; a merger occurred as a
result of absorption of one school into another and that Credo
School
was upgraded.
b) In so doing the third respondent failed to take into account or
misapplied the provisions of section 12A of the South African
School
Act relating to mergers of public schools.
c) The provisions of clauses 3.2 and 4.3 of resolution 3 of 2001
applied. The applicant ought not to have advertised the post of
the
principal.
d) The applicant was estopped from denying the applicability of the
resolution.
[8]
According to the applicant, where two schools merge there are three
schools involved being the two schools involved and the
school
established by the merger. The result was that Credo school was not
upgraded but that a new school was graded for the first
time after
the merger. The submission was that what was absorbed into Credo was
not the school but the staff establishment of the
Somerspos School.
Each of the schools lost their identity upon the merger with the
result that clause 3.2 of the resolution did
not apply. The
advertisement of the principal post of the merged school was
therefore compulsory in terms of clause 3 of Chapter
B of the
Personnel Administration measures.
[9]
On estoppel the applicant said that if the collective agreement was
not applicable then the applicant was not bound by it. The
submission
was that the representation contained in the letter relied upon was
not a representation of the applicant but of the
District Manager who
could not bind the applicant.
[10]
In opposition to this application the submissions made by and on
behalf of Mr Mofokeng are that
the third
respondent reached a fair, reasonable, rational and justifiable
conclusion based on the evidence and issues which were
before him. No
reviewable irregularity existed as meant in terms of section 145 and
158(1)(g) of the Act. The evidence before the
third respondent showed
that Mr Mofokeng had been unfairly treated. The application for
review was a frivolous and vexatious attempt
to evade, delay and/or
frustrate Mr Mofokeng’s claim.
[11]
The submission was further that Somerspos School was absorbed into
Credo School and the name remained Credo School. There were
sufficient learners for re-grading of the school prior to absorption.
Mr Chuta, who was placed in the position that Mr Mofokeng
should have
been in, was placed in post level 4 on about 15 July 2003. The case
of Mr Mofokeng was defined in the pre-arbitration
minute. The third
respondent properly applied the relevant provisions which were before
him. Disagreement with that did not provide
grounds for review.
[12]
The essence of the dispute was described as whether unfair labour
practices had been committed. Mr Chuta was said to have been
unfairly
placed in Mr Mofokeng’s position as principal on post level 4,
after it was agreed in writing that Mr Mofokeng would
remain
principal. Therefore, the application for review should be dismissed
with costs, so the submission went.
Analysis
[13]
A party who alleges a defect in any arbitration proceedings may apply
for an order setting aside the arbitration award. In
terms of section
145(2) of Act:
a defect referred to in subsection (1), means –
(a) that the commissioner-
(i) committed misconduct in relation to the duties of the
commissioner as an arbitrator;
(ii) committed a gross irregularity in the conduct of the
arbitration proceedings; or
(iii) exceeded the commissioner’s powers; or
(b) that an award has been improperly obtained.
[14]
This Court may, subject to section 145, review the performance or
purported performance of any function provided for in this
Act on any
grounds that are permissible in law
2
.
Section 145 of the Act is now suffused by the constitutional standard
of reasonableness provided for in section 33 of the Constitution
Act
of 1996.
3
The question in this regard is then whether the decision
reached by the third respondent is one that a reasonable decision
maker
could reach.
[15]
The applicant has correctly submitted that in terms of section 15 of
SASA every public school is a juristic person with legal
capacity to
perform its functions in terms of the SASA. Each public school
therefore is a separate legal entity. The provisions
of section 12A
of SASA deal with the merger of public schools.
In
terms of section 12A(1) the MEC for Education may by notice in the
Provincial Gazette merge two or more public schools in a single
entity. Each public school as would appear from Section 15 of SASA
has assets and liabilities.
In terms of Section
12(4) the merged school which is regarded as a single school must be
regarded as a public school. In terms of
Section 12A (5) all assets,
liabilities, rights and obligations of the schools that are merged
must vest in the single school.
There is therefore a statutory
transfer of the respective rights, obligations, assets and
liabilities to the single school.
[16]
According to the applicant
t
he two schools that
are merged lose the individual identities and juristic personalities.
Three separate juristic
persona
e
are involved in a merger. The two separate schools which
are merged and resultant third school which is a single school. This
legal
consequence results in the “death” of the two
schools which are merged into the third single school. Mr Mofokeng
disputed
this assertion by contending that one school was absorbed by
the other.
[17]
Evidence on the record shows that there was absorption of personnel
of Somerspos School into the Credo Public School. Personnel
were not
merged but were absorbed into Credo School. Neither the personnel nor
the learners of Credo Schools were affected by the
change, which ever
description is given to that change. There is no evidence which
suggested that the school premises at Credo
School underwent any
change consequential upon the change. The undisputed evidence of Mr
Mofokeng was that the school governing
bodies of the two schools met
before the change and agreed, irrevocably, to have Mr Mofokeng
retained as the principal of the combined
school. During that
transition the principal of Somerspos School was transferred to Credo
School and thereafter to another school.
The name of the final entity
never changed from Credo Primary School. It remained undisputed that
the changes experienced by Somerspos,
in form and substance, were not
the same changes experienced by Credo School. By and large losses
experienced by Somerspos School
were gains to Credo School. When the
form and substance of the change is considered it appears
irresistible to have to conclude
that the change in question was
absorption of Somerspos School into Credo School. This is not the
case of two institutions that
lost a material number of their
learners, educators and properties as they both converge into the
formation of a third, new institution,
which would clearly be a
merger. These are essentially the findings of the third respondent.
[18]
Accordingly, the decision reached by the third respondent in this
respect one that a reasonable decision maker could reach.
The
upgrading of a post
[19]
Paragraph 2.5 of Chapter B of the Personnel Administration Measures
(PAM) refers to the position of Principals in case where
an
institution is upgraded or downgraded.
[20]
Paragraph 2.5 of this chapter states that when an institution is
re-graded the post of the principal is regarded as a new and
vacant
post that must, subject to these measures be filled in terms of
paragraph 3 without undue delay. Paragraph 3 of Chapter
B refers to
the advertising and filling of educators posts. In terms of this
chapter the following processes are required for the
filling of
vacant posts:
1 the post must be advertised (paragraph 3.1);
2. the applications must be sifted (paragraph 3.2);
3. the post must be shortlisted and interviews must be held
(paragraph);and
4. the appointment must be made (paragraph 3.4 of the chapter).
[21]
Paragraph 2.5 (b) of Chapter B of the PAM reads:
‘
If the permanent incumbent of a Principal
post that has been upgraded qualifies to be promoted to the new level
and the governing
body or council recommends in writing that the
person may be appointed to a higher post such appointment may be made
without having
to advertise the post. If the governing body or
council does not make such a recommendation, the post must be
advertised in which
case the incumbent will be entitled to apply for
upgraded post and he shall be shortlisted.’
[22]
Mr Mofokeng had the necessary qualifications for the principal post
at the newly constituted Credo School. There was a recommendation
for
his appointment issued by the District Manager: Sasolburg Education
District, Mr Mthombeni, even though it purported to be
the actual
appointment. The two school governing bodies has earlier met and
resolved to have Mr Mofokeng as the principal of the
final
institution. In terms of paragraph 2.5 (b) of Chapter B of the PAM
there was no need for the applicant to advertise the post
of the
principal of Credo School. Mr Mofokeng deserved to be appointed. In
this respect again, the third respondent committed no
defect. He
issued an award that a reasonable decision maker could have issued in
the circumstances. It has become unnecessary that
the issue of
estoppel be examined. To the extent that it might be found necessary,
I would have found no defect committed by the
third respondent in a
situation where the applicant operated at district level through the
services of the District Manager.
[23] Accordingly the following order is issued:
Condonation
for the late filing of the record is granted.
The
review application in this matter is dismissed.
The
arbitration award in this matter is made an order of Court.
No
costs order is made.
____________________
Cele J
Judge of the Labour Court
Appearances:
For
the applicant: Adv. Y van Aarsten instructed by the State Attorney
Bloemfontein
For
the third respondent: Ms. N Koulontis, Koulontis Inc.
1
The
Labour Relations Act, 66 of 1995
.
2
See
section 158(1) (g) of the Act.
3
See
Sidumo and another v Rustenburg Platinum Mines Ltd and other (2007)
28 ILJ 2405 (CC).