IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT BRAAMFONTEIN)
Case no: J3797/98
In the matter between:
First applicant
Second applicant
and
THE MEMBER OF THE EXECUTIVE COUNCIL
DEPARTMENT OF EDUCATION, ARTS,
CULTURE & SPORT
NORTHERN PROVINCE GOVERNMENT First respondent
THE MINISTER OF EDUCATION
GOVERNMENT OF NATIONAL UNITY Second respondent
SETTLERS AGRICULTURAL HIGH SCHOOL Third respondent
THE GOVERNING BODY:
SETTLERS AGRICULTURAL HIGH SCHOOL Fourth respondent
THE PREMIER
NORTHERN PROVINCE GOVERNMENT Fifth respondent
___________________________________________________
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JUDGMENT
___________________________________________________
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LANDMAN J:
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1. Adriaan Botha and Elizabetha Venter are employed at the Settlers
Agricultural High School (the High School) as administrative
manager and matron respectively. When they were employed the
School Governing Body (SGB) which was established pursuant to
the Education Affairs Act (House of Assembly) 70 of 1988 entered
into contracts of employment with them. The contracts of
employment are not attached to the papers. Unsigned drafts are,
however, attached. It appears that the applicants are employed by
the High School, which was a juristic person and the Transvaal
Education Department. This was found to be the case by De
Villiers AJ in this matter in an undated judgment circa 23 July
1999. This issue is therefore res judicata as regards the identity of
their employer. I will revert to the question of the parties to the
contracts of employment later.
2. It is common cause that the contracts of employment provide that
in addition to the remuneration paid by the TED the SGB (in law
the High School) would topup that salary by doubling the salary of
Mr Botha and adding R1000 pm to the salary of Ms Venter. The
respondents refer to these payments as monthly allowances. The
additional remuneration was paid regularly to the applicants.
3. The Schools Act 84 of 1996 repealed the Education Affairs Act
(House of Assembly) of 1988. The High School remained a juristic
person. The old SGB was succeeded by a SGB established in
terms of s 15 of the Schools Act of 1996. The Department of
Education, Arts, Culture and Sport, Northern Province Government
(the Department) succeeded the Transvaal Education Department
as regards the High School. The new SGB, or more correctly the
High School, continued to top up the salaries.
4. The Department formed a view that the payment of the additional
remuneration was impermissible. In a letter dated 25 March 1998
the Circuit Manager, Mr JM Mametja, raised the permissibility of
the SGB/High School paying the extra remuneration. He made the
point that: “...In line with the new Act, South African Schools Act,
constituting the School Governing Bodies the powers and functions
of the previous Governing Body of the exModel C schools cease
to exist. By implication, contracts entered into by these bodies are
therefore nullified.”
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5. On 25 November 1998 the principal of the High School, acting on
behalf of the SGB (which had been instructed by the Department
that the payment of topup salaries must cease), informed the
applicants that their additional salaries would cease with effect
from the end of November 1998. The payments were stopped. But
certain arrangements have been put in place pending the outcome
of this application for a declaratory order.
6. The applicants aver that the decision to terminate the topup
salaries is unlawful, irregular, illegal and unconstitutional and ultra
vires. Alternatively if the Schools Act of 1996 is applicable and
permits the termination of these salaries it is averred that the Act is
unconstitutional and invalid.
7. The Department and the SGB justify the cessation of the payments
on the grounds that:
(a) The school funds of the High School were being used to pay
the additional salaries. This is in conflict with s 37(6) of the
Schools Act of 1996 and the payment of these salaries had to
be terminated and were legally terminated.
(b) Section 20(n) of the Public Service Act (Proclamation 103 of
1994) (the PSA) forbids an officer from receiving other
emoluments without permission of a relevant executing
authority. The applicants do not have permission and may not
receive the additional salary.
8. This is not a contractual claim. The applicants do not seek
payment of the additional salaries. They seek merely a declarator
regarding the lawfulness etc of the decision of the SGB on behalf
of the High School and the Department to stop paying the
additional salaries. They do not seek to review the decision.
Notwithstanding this, at the heart of this matter lies the contracts of
employment. It is therefore, in my opinion, necessary to examine
the contracts and their validity before dealing with the SGB and the
Department’s stance.
9. Were the contracts incapable of performance when they were
concluded? This point has not been taken. The respondents have
been content to base their case on the invalidity of the contract
10.4
allegedly attributable to effect of the enactment of the Schools
Act of 1996.
11. The powers of a High School to agree on terms and conditions of
employment with educators was considered in Association of
Professional Teachers & another v Minister of Education &
others (1995) 16 ILJ 1048 (LC) at 1067 H 1068A where it was
held:
“Although the law provides that the appointment, promoting and
discharge of employees, such as teachers, vest in the
governing body, strictly speaking, in the juristic person via its
governing body, the state controls the exercise of these powers
very tightly. The governing body may only select teachers from
a list supplied by the state, promotions are subject to the
approval of the state and likewise, no teacher may be
discharged without prior approval of the state. The state is
empowered to intervene and appoint a teacher if the governing
body does not do so. Although the governing body formally
appoints a teacher on the subsidized staff or establishment of
the school, the governing body is specifically, and this was
common cause between the parties, disempowered from
negotiating terms and conditions of employment with such a
teacher. Even in regard to teachers and other employees whose
salaries are not subsidized by the state, there is a limitation on
the terms and conditions which may be negotiated with such a
person.”
12.I have no doubt that this passage is also applicable to non
educators. If a school could not employ a nonsubsidised
employee at greater rates than those of the Department of
Education then it follows that it could not employ subsidised
employees at a greater salary. See s 97 and 100 of the Education
Affairs Act (House of Assembly) of 1988. This is what the High
School purported to do as regard the applicants whose post were
subsidised by the TED. This step would have been permissible
had the Head of Department, as defined in the Act, sanctioned it. It
is not alleged on the papers that there was express consent to the
High School topping up the applicants’ salaries. It is not our law
that the TED or its successor is
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estopped from insisting on compliance with the law.
14.However it may be that the TED, being part of the composite
14.However it may be that the TED, being part of the composite
employer, impliedly approved the payments. There are no facts
which permit this inference to be drawn.
15.If I am wrong and the contracts were valid as regard the additional
remuneration, it is necessary to consider the effect of the Schools
Act of 1996 on the contracts.
16.Mr JM Mametja’s view that the contracts of employment are invalid
is entirely without foundation. A School Governing Body is
something approximating a board of directors. It does not have an
independent existence. It contracts, within its powers, on behalf of
its principal the school. The Schools Act of 1996 contains no
provision which expressly or implicitly nullify any contract entered
into between the High School and its staff. See s 54(4) of the
Schools Act. Where a contract is invalidated the Schools Act says
so explicitly. See s 52(4).
17.Under the new dispensation a public school (like the High School)
may no longer employ educators and noneducators. The most
that a public school may do is to make recommendations to the
Head of Department. See s 20(1)((i) and (j) of the Schools Act of
1996.
18.It may be that a valid contract with a staff member becomes wholly
or partially incapable of performance because of the operation of a
a provision of the Schools Act. This aspect must be investigated. It
involves the question: May the school funds of the High School be
used to pay the additional salaries? Is it in conflict with s 37(6) of
the Schools Act to pay these salaries so that a valid decision
could be taken to terminate the payments?
19. It is common cause that school funds are used to topup the
applicants’ salaries. It is clear from s 37(2) that the High School
itself should have no funds other than its school fund.
Consequently the additional remuneration , if it is to be paid, must
be paid out of this fund. Section 37(6) of the Schools Act reads:
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“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.
20.Section 36(7) of the Schools Act of 1996 sets out the overall
purpose for which school funds may be employed. The actual
authorisation for the payment for services to fulfil those goals must
be sought elsewhere. In this case s 21 is one such section.
21.Section 21 reads:
(1) Subject to this Act, a governing body may apply to the Head of
Department in writing to be allocated any of the following
functions:....
(d) to pay for services to the school....
(2) The Head of Department may refuse an application
contemplated in subsection (1) only if the governing body
concerned does not have the capacity to perform such function
effectively.
(3) The Head of Department may approve such application
unconditionally or subject to conditions.
(4) The decision of the Head of Department on such application
must be conveyed in writing to the governing body concerned,
giving reasons.
(1) 7
(5) Any person aggrieved by a decision of the Head of Department
in terms of this section may appeal to the Member of the
Executive Council.
(6) The Member of the Executive Council may, by notice in the
Provincial Gazette, determine that some governing bodies may
exercise one or more functions without making an application
contemplated in subsection (1), if
(a) he or she is satisfied that the governing bodies concerned have
the capacity to perform such functions effectively; and
(b) there is a reasonable and equitable basis for doing so.”
22. It seems to me that 21 would permit a School to remunerate an
employee of the school for additional work done for the school.
This would be consistent with the PSA if the services are in
addition to the duties framed in the contract of employment. It
may, nevertheless, fall foul of the statutory obligations regarding
the right to do other work. But, it would not fall foul of the
prohibition on receiving additional remuneration for performing the
principal duties.
23.It is common cause that the applicants are officials and that the
PSA is applicable to them. The PSA forbids an officer from
receiving additional remuneration. See s 20(n) which reads:
“An officer, other than a member of the services or an educator
or a member of the Agency or the Service, shall be guilty of
misconduct and may be dealt with in accordance with section
21, if he or she
.....
(n) accepts, without permission of a relevant executing authority
(granted on the recommendation of the Commission in the case
of an officer in the A division), or demands in respect of the
carrying out or failure to carry out his or her duties any
commission, fee or other reward (not being the emoluments
payable to him or her in respect of his or her duties), or fails to
report to his or her department or, if he or
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she is a head of department, to such authority, the offer of such
a commission, fee or reward.”
24.Section 20 of the PSA must be read with s 30 of the same Act
which deal with remuneration for other work. It is permissible to be
paid for a variety of other work provided that “it is otherwise
provided for in his or her conditions of employment”. The
conditions of employment must, I believe, refer to the conditions of
employment agreed upon or fixed by the sate as employer. In this
instance there are no facts which show that the applicants
conditions of employment with the Department, as opposed to the
High School, provide for additional remuneration.
25.In my opinion, on the facts as they appear on the papers, the
decision to terminate the additional remuneration is one which was
dictated by the law. The only consideration was the state of the
law. Questions of fairness do not enter the picture. No discretion is
exercisable. Advance warning of the intention to terminate the
payments was given. The applicants were invited to address
representations to the authorities.
26.However it remains to decide whether the Schools Act of 1996
which forbids the payments of additional salaries out of school
funds is unconstitutional and invalid. Various submissions were
made regarding the merits of paying the additional remuneration
and some comparisons were drawn with the position of Educators
and the transitional provisions which were enacted to deal with
their employment situation when the Education Affairs Act (House
of Assembly) of 1988 was repealed. However, no submissions
were made as to which rights in the Constitution of the Republic of
South Africa of 1996 are infringed the by the Schools Act of 1996.
In the result the complaint of constitutional invalidity cannot be
sustained.
27.The decision to terminate the topup salaries was not unlawful,
irregular, illegal, unconstitutional or ultra vires.
28.I may add, in conclusion, that in the absence of a copy of the
contracts of employment I am unable to find and, indeed not called
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upon to find, whether the part of the contracts dealing with
additional remuneration have become impossible of
performance. It may be that if sued the High School would plead
that thy cannot use these funds. Probably the High School does
not have other funds. It would appear that it ought not to have
other funds but whether or not it has such funds is something
which I cannot decide.
30.In the result the application is dismissed with costs including the
reserved costs.
SIGNED AND DATED AT BRAAMFONTEIN THIS 22 nd DAY OF
APRIL 2002.
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AA Landman
Judge of the Labour Court of South Africa
For the applicants: Ms R Anderson of Anderson & Kloppers Attorneys.
For the respondents: Adv TP Kruger instructed by the State Attorney.
18 March 2002.
Date of judgment 23 April 2002.