Brief Summary

Labour Law — Suspension — Unlawfulness of suspension — Applicant, a Grade R educator, suspended by the school principal following public outcry over photographs sent to parents — MEC publicly announced suspension despite lacking authority to do so — Applicant contended suspension was unlawful as she was not an employee of the Department and had not been afforded a hearing prior to suspension — Court held that the MEC exceeded his powers in suspending the applicant, rendering the suspension unlawful and set aside.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was an urgent application brought in the Labour Court (Johannesburg) for final relief declaring a suspension unlawful and setting it aside, coupled with consequential relief restoring the employee to her position.

The applicant was Solidarity obo Barkhuizen, acting on behalf of Ms Barkhuizen, a Grade R educator. The respondents were Laerskool Schweizer-Reneke (first respondent), the Governing Body of Laerskool Schweizer-Reneke (second respondent), the North West Provincial Department of Education (third respondent), and the MEC: North West Department of Education (fourth respondent).

Procedurally, the matter came before the court on an unopposed basis in substance. Although the Department and the MEC initially filed a notice of intention to oppose, both later filed notices to abide the court’s decision. The MEC also filed an unsigned explanatory affidavit, which the court held it could attach no weight to. The school and its governing body likewise filed notices to abide. As a result, the court determined the application on the basis of the uncontested version presented by the applicant.

The dispute concerned the lawfulness of Ms Barkhuizen’s precautionary suspension, which followed intense public controversy and protest after photographs of Grade R learners were circulated on a parents’ WhatsApp group and were alleged to depict racial segregation in a classroom. The applicant challenged the suspension primarily on the bases of lack of authority (particularly on the part of the MEC) and absence of procedural fairness (no hearing or prior representations).

2. Material Facts

Ms Barkhuizen had been employed since the beginning of 2017 as a Grade R educator at Laerskool Schweizer-Reneke. Her employment arose from an agreement concluded with the school governing body, and she was not employed by the provincial Department. On the court’s account of the uncontested facts, this meant that the Employment of Educators Act 76 of 1998 did not apply to her employment relationship with the school and governing body.

The 2019 school term commenced on 9 January 2019. Grade R learners were divided into two classrooms, each with approximately 22 learners, and the placement was said (on the applicant’s version) to be according to learners’ special and educational needs. Before formal commencement, on 7 and 8 January 2019, the applicant and another Grade R educator, Ms Olivier, met with parents and learners to familiarise them with the classrooms and to explain teaching approaches, including seating arrangements and responses to language barriers.

The school was an Afrikaans-medium school. Interpreters were used to assist learners with communication difficulties, but the interpreter who had assisted in the applicant’s classroom had been terminated in December 2018. At the start of the 2019 term there was no interpreter available, and the applicant arranged privately for interpretation support until permanent arrangements could be made.

On the first day of school, the applicant received multiple parental enquiries via her cellphone. She had previously created a WhatsApp group for Grade R parents and decided to use it to communicate more efficiently. After a parent asked her to supervise both Grade R classes (which were adjacent), she took four photographs intended to reassure parents that learners were settled and distributed them via the WhatsApp group. Two photographs related to Ms Olivier’s class and two to the applicant’s own class.

Shortly thereafter, a parent, Mr Modise, complained telephonically that the photographs depicted separation of black learners from white learners. The applicant explained that no separation was done by race, that learners were moved around during the first day to accommodate needs and activities, and that the particular photograph at issue was taken in the other Grade R classroom (Ms Olivier’s), over which the applicant said she had no control regarding seating arrangements.

The principal called a meeting after school on 9 January 2019 with the applicant, Ms Olivier, and the chairperson of the governing body to address the complaint and to prepare a response. At that meeting, the applicant and Ms Olivier explained the circumstances. The principal and governing body chairperson indicated support and conveyed that the educators were expected to return the next day.

On 10 January 2019, political parties incited members to gather and protest at the school. The protest became violent and led to the evacuation of learners and educators. Later that morning the principal informed the applicant by phone that, after consultation with the MEC, a decision had been taken to suspend her immediately on full benefits. The applicant’s version was that the MEC then publicly announced that he had decided she be suspended, and that this was widely disseminated in the media.

The applicant received a suspension letter on 10 January 2019 stating that she was suspended pending an investigation. The court recorded that on the photographs attached to the application, three photographs did not depict racial separation, and the photograph that triggered events was not of the applicant’s own classroom.

As no opposing affidavits were filed by any respondent, these facts stood as undisputed for purposes of the application, and the court treated the matter as proceeding on the applicant’s uncontested version.

3. Legal Issues

The central legal questions were whether the applicant’s suspension was lawful and whether it should be set aside with immediate reinstatement to her duties.

The dispute involved questions of law and the application of legal principles to largely uncontested facts. In particular, it required determination of whether the MEC had lawful authority (locus standi and power) to suspend the applicant, given that she was employed by the school governing body rather than the provincial Department, and whether the suspension complied with the audi alteram partem principle, namely whether the applicant ought to have been afforded an opportunity to be heard before being suspended.

A further issue concerned whether the suspension was justified on any articulated basis (for example, necessity to protect an investigation or safety), and whether reasons for the suspension and allegations against the applicant had been communicated to her. This entailed an evaluative inquiry into whether any valid reason existed on the uncontested record to justify a precautionary suspension.

4. Court’s Reasoning

The court approached the matter on the basis that it had before it only the applicant’s uncontested version, because none of the respondents filed affidavits disputing or rebutting her allegations. The MEC’s explanatory affidavit was unsigned, and the court stated that it could attach no weight to its contents. Even so, the court noted that the MEC’s explanation included an admission that he did not have power to suspend the applicant.

On authority and legality, the court accepted the applicant’s submission that she was not a Department employee and therefore the MEC had no power to suspend her. The judgment indicated that it was unnecessary to engage in detailed analysis of the Employment of Educators Act 76 of 1998, because the MEC had effectively admitted lack of power. On that footing, insofar as the MEC purported to decide upon or announce the suspension as his decision, the court regarded this as conduct exceeding his powers and therefore ultra vires.

On procedural fairness, the court applied the principle (as articulated in authority relied upon) that an employee must be afforded the audi alteram partem before a decision is taken that adversely affects the employee’s rights, and that this principle applies equally in the context of suspension. The court characterised the events as reflecting a flagrant disregard for that fundamental principle. On the applicant’s version, she had not been afforded an opportunity to make representations before being suspended, and the respondents, despite being afforded the opportunity to present their case in court, placed no facts before the court to justify a departure from the audi principle or to demonstrate any exceptional circumstances.

The court further reasoned that the respondents had not provided, on the uncontested record, a coherent and valid explanation for why suspension was necessary, including why it was required to protect the integrity of any investigation or to ensure safety or wellbeing. The applicant’s case included that she was not informed of the reasons for suspension and that the nature of the allegations was not conveyed in a manner that could justify suspension. With no contrary facts advanced by the respondents, the court accepted that there was no valid reason established for the suspension and that it appeared to have been premised on a wrong factual matrix, particularly given that the photograph sparking the controversy was not of the applicant’s classroom and the set of photographs, considered holistically, did not support a simplistic inference of segregation.

In addition to applying these principles, the court made evaluative observations about the consequences of hasty decision-making in a charged public environment. It noted that the actions complained of had, on the applicant’s version, caused trauma, public humiliation, and reputational harm by branding her a racist without due process. The judgment also emphasised the broader constitutional expectation that the State and public decision-makers have a duty to act lawfully and to comply with procedural requirements, referencing authority to the effect that government must “do right, and … do it properly”.

The court also indicated that it was not prepared to entertain a “consented order” proposed in argument (which would have placed the applicant on special leave pending an internal investigation), because the relief sought and the basis of the application concerned the unlawfulness of the suspension and the lack of authority and due process underpinning it.

5. Outcome and Relief

The court granted final relief declaring the applicant’s suspension unlawful and setting it aside. The court directed that the applicant return to work immediately and report for duty on 25 January 2019, and it ordered the first and second respondents to permit her to return and resume her normal duties from that date.

No order as to costs was made. The court recorded that the applicant sought costs only in the event of opposition; as there was no opposition in substance, costs were not awarded, although the court remarked that it would have been inclined to grant costs had they been sought.

Cases Cited

HOSPERSA and Another v MEC for Health, Gauteng Provincial Government (2008) 29 ILJ 2769 (LC).

Mogothle v Premier of the North West Province and Another [2009] 4 BLLR 331 (LC).

MEC for Health, Eastern Cape and Another v Kirkland Investments (Pty) Ltd 2014 (3) SA 481 (CC).

Legislation Cited

Constitution of the Republic of South Africa, 1996 (Act 108 of 1996), section 101(b).

Employment of Educators Act 76 of 1998.

Rules of Court Cited

No specific rules of court were cited in the judgment.

Held

The court found, on the uncontested facts, that the applicant’s suspension was unlawful and fell to be set aside. The court accepted that the MEC lacked authority to suspend the applicant, who was employed by the school governing body rather than the provincial Department, and that any purported decision by the MEC to suspend her was ultra vires.

The court further found that the applicant had been suspended without being afforded an opportunity to be heard, in breach of the audi alteram partem principle applicable to suspensions. In the absence of any opposing evidence or articulated justification for the suspension, the court accepted that no valid basis had been established for the suspension, and granted reinstatement-type relief by directing her return to work. Costs were not awarded because the applicant sought costs only if the matter was opposed.

LEGAL PRINCIPLES

The judgment applied the principle that audi alteram partem forms a foundational requirement of procedural fairness in employment decision-making, and that it applies not only to dismissals but also to suspensions that adversely affect an employee’s rights and interests. Departure from this principle is permissible only in highly exceptional circumstances, which were not established on the record before the court.

It further applied the principle of legality, namely that decision-makers may exercise only those powers conferred on them by law. Where a public office-bearer lacks authority to take a particular employment decision, any purported exercise of such power is ultra vires and unlawful.

In assessing justification for a precautionary suspension, the judgment treated as significant whether there was a clear, articulated reason for suspension (such as protecting an investigation or ensuring safety), and whether the affected employee was informed of the reasons and allegations in a manner consistent with fairness. On the uncontested facts, the absence of such justification and process supported setting the suspension aside.

Finally, the judgment reaffirmed that organs of state and public authorities bear a heightened duty to respect the law and comply with procedural requirements when exercising public power, particularly where rights are implicated.

Solidarity obo Barkhuizen v Laerskool Schweizer-Reneke and Others (J44/19) [2019] ZALCJHB 90; (2019) 40 ILJ 1320 (LC); [2019] 7 BLLR 725 (LC) (24 January 2019)