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2024
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[2024] ZAFSHC 383
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Bloemfontein South High School Governing Body v MEC: Free State Department of Education and Others (2056/2024) [2024] ZAFSHC 383 (29 November 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
NO
Of
interest to other Judges: NO
Circulate
to Magistrates:
NO
Case
no:
2056/2024
In
the matter between:
BLOEMFONTEIN
SOUTH HIGH SCHOOL GOVERNING BODY
Applicant
and
MEC:
FREE STATE DEPARTMENT OF EDUCATION
1
st
Respondent
HOD:
FREE STATE DEPARTMENT OF EDUCATION
2
nd
Respondent
MOTHEO
DISTRICT DIRECTOR
3
rd
Respondent
Coram:
JP DAFFUE J
Heard
:
24 OCTOBER 2024
Delivered
:
29 NOVEMBER 2024
This
judgment was handed down electronically by circulation to the
parties’ representatives by email and release to SAFLII.
The date and time for hand-down is deemed to be 16H30 on 29 NOVEMBER
2024.
Summary
:
A school governing body sought a declaratory order that candidates
recommended by it for appointment be considered by the
Department of
Education and that the MEC, HOD and District Director be mandated to
appoint one of the candidates as Deputy Principal.
In opposing the
application, the respondents proved that the District Director, duly
authorised thereto, had already taken a final
decision and declined
to accept the recommendation. The court held that the relief sought
by the applicant was not competent and
could not be granted. The
application was dismissed with costs.
ORDER
1.
The application is dismissed with costs, such costs to include the
fees of counsel on scale
A.
JUDGMENT
DAFFUE
J
Introduction
[1]
The central issue in this application is the alleged
refusal by the
Department of Education to appoint a candidate of the Bloemfontein
South High School Governing Body in the vacant
Deputy Principal post
at the school. Not a word is said in the application papers as to the
identity of the preferred candidate.
Interviews for the post have
been held on 30 June 2023, more than a year ago. A decision had been
taken on 1 November 2023 not
to approve the School Governing Body’s
recommendation. The School Governing Body issued a belated
application on 12 April
2024 to which the respondents replied in an
answering affidavit filed on 31 May 2024. The applicant did not file
a replying affidavit
and did nothing further to obtain finality of
the dispute. This caused the State Attorney to set the matter down on
the opposed
roll of 24 October 2024. Heads of argument were then
filed by the parties whereupon oral argument was heard. Judgment was
reserved.
[2]
The applicant’s application was issued five and
a half months
after the aforesaid decision had been taken on 1 November 2023. It’s
lacklustre approach continued thereafter
insofar as it did not even
consider and/or file a replying affidavit. If the State Attorney did
not set the matter down for hearing,
it would probably still be
pending, notwithstanding the fact that the applicant considered it
urgent.
The
parties
[3]
As mentioned, the Bloemfontein South High School Governing
Body is
the applicant in these proceedings. Its heads of argument were
drafted by an unidentified person, but Adv N Malghas appeared
on its
behalf before me, instructed by AP Belot Attorneys.
[4]
Three respondents were cited, to wit the
MEC: Free
State Department of Education, the HOD: Free State Department of
Education and the Motheo District Director as first,
second and third
respondents respectively. Adv A Swanepoel appeared on behalf of the
respondents, instructed by the State Attorney.
The
relief sought
[5]
The applicant applied for the following relief, which
I quote
verbatim
:
‘
i.
An order
declaring
that
candidates recommended
by the
School Governing Body (SGB) following the interviews of the Deputy
Principal post held on the 30
th
of June 2023, be
considered for decision of appointment
as prescribed in terms
of Chapter 3 (a) to (g) of the
Employment of Educators Act, 76 of
1998
;
ii.
That the First, Second and Third Respondents be
directed to
appoint a candidate
as the Deputy Principal as per the School
Governing Body’s recommendations in terms of the provisions of
Section 3 (a) and
(b) of the Employment of Educators Act, 76 of 1998’
(emphasis added)
[6]
It should be pointed out from the onset that the reference
to
Chapter
in paragraph 1 is wrong. Secondly, the relief sought in the
applicant’s heads of argument is in direct conflict with the
relief sought in the notice of motion. In paragraph one of the heads
it is submitted that an order was required to declare the
decision of
the Department of Education ‘not to appoint the recommended
candidates into the position of Deputy Principal
unlawful’.
This submission was repeated in paragraph 10.6 of the heads of
argument in seeking an order that ‘the recommended
candidates
be employed within 30 days of the finalisation of this application’.
The reference to ‘candidates’
in the plural is strikingly
incorrect.
[7]
The
applicant sought a declaratory order in paragraph 1 of the notice of
motion and a mandamus in paragraph 2. It did not seek the
review and
setting aside of any decision taken. Having said this, it is clear
that it relied on several PAJA grounds of review.
[1]
The applicant preferred to bring the application in accordance with
the provisions of rule 6 of the Uniform Rules of Court and
not in
terms of rule 53. Consequently, the matter was set down for hearing
before a single judge in the opposed motion court on
a Thursday and
not before two judges in the review court on a Monday.
The
main defence raised by the respondents
[8]
It is
submitted that the applicant ignored the fact that a final decision
had already been taken by the third respondent on 1 November
2023.
Notwithstanding its referral to the relevant letter attached to the
founding affidavit,
[2]
the
applicant did not grasp the effect of the contents. Therefore, so the
respondents submitted, the court cannot be required to
make any
decision regarding the appointment of a candidate for the Deputy
Principal’s post, or to make the declaratory order
sought
insofar as effect must be given to the decision of 1 November 2023.
The applicant does not seek the setting aside of this
decision which
shall therefore stand until set aside by a court.
Relevant
background
[9]
On 3 March 2023 the Department of Education advertised
a Deputy
Principal post for the Bloemfontein South High School. The applicant
undertook the shortlisting process on 15 June 2023
in conjunction
with the Department of Education and the Unions.
[10]
Interviews were conducted on 30 June 2023 and on 20 July 2023 the
applicant
submitted the interview documents and its recommendation to
the Department of Education. Correspondence ensued between the
applicant
and the Department of Education. The parties were not in
agreement as to the applicant’s compliance with all legal
requirements.
[11]
On 1 November 2023 the decision of the third respondent referred to
above was
communicated to the chairperson of the applicant. It is
clearly stated in the letter to be ‘my final opinion on your
recommendation’
and ‘your recommendation was not approved
because of the discrepancies identified and communicated to you.’
It is also
stated in this letter that the applicant was given the
option to rerun the recruitment process which it failed to exercise.
[12]
Further correspondence ensued and the Department of Education was
specifically
requested by the applicant’s attorneys to ensure
that the Head of Department (HOD) makes the required decision
pertaining
to the recommendation of the recommended candidate who was
never identified in the letters or the application papers. Clearly,
the applicant insisted that the HOD failed to take a decision.
Evaluation
of the evidence and submissions by the parties
[13]
The respondents filed a supplementary affidavit belatedly, having
established
that there was a missing page from the delegation of
powers attached to the answering affidavit. I enquired from Mr
Malghas during
the hearing whether his clients had any problems with
the acceptance of the supplementary affidavit and the annexure
thereto. He
pertinently pointed out after receiving instructions in
court that he did not object to the filing of the document. He
submitted
eventually that the delegation was unlawful, the reason
being that the MEC as Head of the Department was delegated by the
Minister
and consequently, he had to take the decision himself. I
accept that Mr Malghas incorrectly referred to the MEC and wanted to
refer
to the HOD who was delegated by the Minister of Education. He
relied on
delegatus delegare non potest
. More about this
later.
[14]
The third
respondent, Mr DS Moloi in his capacity as the District Director:
Motheo Education District within the Department of Education,
Free
State Province filed the answering affidavit on behalf of the
respondents. Mr Moloi’s affidavit has been confirmed by
the
HOD, Mr T Malakoane
[3]
and by Mr
BM Tshabalala, the Deputy Director: Human Resource at the Motheo
Education District.
[4]
Mr Moloi
pointed out that no relief could be granted against the MEC, cited as
the first respondent, he being the appeal authority
and not the
appointing authority in terms of the Employment of Educators Act 76
of 1998 (the EEA). The third respondent also confirmed
to be the
author of the letter attached to the founding affidavit as annexure
BSH4 dated 1 November 2023. Furthermore, he confirmed
that he had
made a final decision not to approve the recommendation of the
applicant. Whilst accepting that the appointing powers
were those of
the HOD, he attached the delegation of powers dated 6 December 2021,
empowering him to make decisions on behalf of
the HOD in the specific
circumstances.
[5]
I also refer
to the supplementary affidavit with annexure mentioned above.
[15]
The
State Liability Act 20 of 1957
provides that the executive
authority of a department, which is the MEC, shall be cited as
nominal defendant/respondent in proceedings
against the Province. The
MEC does not have the power to appoint educators.
Section 6(1)
of the
EEA is the enabling provision in this regard. The HOD has the
original power in accordance with
s 6(1)
to appoint educators. This
provision should be read in conjunction with
s 36(4)
of the EEA which
inter alia
authorises delegation of authority by the HOD.
[16]
The applicant failed to file a replying affidavit. Therefore, the
delegation
of the HOD was not attacked on a factual basis. Some
argument was addressed to me in respect of the legal principle,
delegatus delegare non potest
. In accordance with this
principle a person to whom a function has been delegated may not
further delegate their function.
In casu
, the HOD received
original powers to appoint educators as is evident from
s 6(1)
of the
EEA. Therefore, nothing prohibited him from delegating his powers to
the third respondent. Once it is accepted that the
third respondent
was duly delegated to decide the issue on behalf of the HOD, this
should really be the end of the matter and no
further issues should
warrant the attention of the court.
[17]
Much attention was given in the applicant’s heads of argument
and during
oral argument to the legality principle and rationality in
order to show that the HOD unlawfully declined to accept the
applicant’s
recommendation. I reiterate that the applicant
clearly misunderstood its own case. There is no reason to consider
the arguments
raised in this regard.
[18]
There is a factual dispute as to the lawfulness of the recruitment
process.
If the applicant embarked on a proper review application in
order to attack the process and eventual decision of 1 November 2023,
the respondents would be duty-bound to present the full record and
the reasons for the decision taken. It failed to act accordingly.
It
is possible that it acted in compliance with its duties pertaining to
recruitment and that there is more to make of the decision
of the
third respondent than meets the eye. However, I am not called upon to
speculate.
[19]
The relief asked for in the notice of motion is not competent. As
mentioned,
a decision has already been taken in terms of the EEA. In
any event, as indicated earlier, no relief is sought to review and
set
aside the process adopted by the respondents and the eventual
decision taken by the third respondent. I am bound to consider the
factual dispute based on the Plascon-Evans rule. I cannot find on the
papers that the respondents’ version is far-fetched
and/or
untenable or palpably implausible.
Costs
[20]
The general
rule is that the successful party is entitled to its costs. The
effect hereof is that the applicant shall be ordered
to pay the
successful respondents’ costs of the application, unless the
Biowatch
[6]
principle finds application. In the event of constitutional
litigation each party should pay their own costs if the private party
is unsuccessful.
In
casu
,
the applicant has not raised a constitutional issue in the papers.
Far from it. It failed to appreciate what relief might be available
to it. Its application was brought belatedly and it failed to pursue
it with the necessary vigour. There is no reason why the aforesaid
general rule should not be applied and the applicant be ordered to
pay the successful parties’ costs.
Order
[21]
The following order is made:
1.
The application is dismissed with costs, such
costs to include the fees of counsel on scale A.
JP
DAFFUE J
Appearances
For
applicant:
Adv
N Malghas
Instructed
by:
AP
Belot Attorneys
Bloemfontein
For
respondents:
Adv
A Swanepoel
Instructed
by:
State
Attorney
Bloemfontein
[1]
The Promotion of Justice Act 3 of 2000; see record: pp17-19, para 8
of the founding affidavit.
[2]
Record: p 27, read with paras 40.6-40.8 answering affidavit, p 64 of
the record.
[3]
Record: p 160, annexure AA9.
[4]
Record: p 164.
[5]
Record: p 74 and further, delegation of power attached as annexure
AA1 to the answering affidavit.
[6]
Biowatch
Trust v Registrar, Genetic Resources and Others
2009 (6) SA 232
(CC) para 43.