IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE
(1) REPORTABLE: ~ NO
(2) OF INTEREST TO THE JUDGES: ¥WINO
(3) REVISE D. YES
PILLAY J
SIGNATU
In the matter between: CAS E NQ: 10455/2024
SAVIOUR ASSOCIATION OF SCHOOL GOVERNING BODIES 1sr APPLICANT
THE SCHOOL GOVERNING BODY OF THOMO 2 ND APPLICANT
PRIMARY SCHOOL
V
HEAD OF DEPARTMENT, LIMPOPO DEPARTMENT 1sr RESPONDENT
OF EDUCATION
MEMBER OF EXCUTIVE COUNCIL, LIMPOPO 2ND RESPONDENT
DEPARTMENT OF EDUCATION
MIKATEKO ESTHER HONWANA 3Ro RESPONDEN T
LINA$ RUBEN BALOYI 4rH RESPONDENT
In the matter betwee n: CASE N2: 10456/2024
SAVIOUR ASSOCIATION OF SCHOOL GOVERNING BODIES 1sr APPLICANT
THE SCHOOL GOVERNING BODY OF PHALABORWA 2ND APPLICANT
PRIMARY SCHOOL
2
V
HEAD OF DEPARTMENT, LIMPOPO DEPARTMENT 1sr RESPONDENT
OF EDUCATION
MEMBER OF EXCUTIVE COUNCIL, LIMPOPO 2ND RESPONDENT
DEPARTMENT OF EDUCATION
KGAUGELO GLADYS MALATJI 3Ro RESPONDENT
MATALANE BARNARD MAAKE 4 TH RESPONDENT
In the matter between: CASE Ng: 10641/2024
SAVIOUR ASSOCIATION OF SCHOOL GOVERNING BODIES 1sr APPLICANT
THE SCHOOL GOVERNING BODY OF MASHABELA 2ND APPLICANT
PRIMARY SCHOOL
V
HEAD OF DEPARTMENT, LIMPOPO DEPARTMENT
OF EDUCATION
MEMBER OF EXCUTIVE COUNCIL, LIMPOPO
DEPARTMENT OF EDUCATION
MAKADIKWE EUNICE LESHILO
MOKGABUDI LAZARUS RALEKWE
Delivered 30 March 2026
1sr RESPONDENT
2No RESPONDENT
3Ro RESPONDENT
4 TH RESPONDENT
This judgment was handed down electronically by circulation to the
parties' legal representatives by e-mail. The date and time for hand
down of the judgment is deemed to be 30 March 2026 at 15:00 PM.
Dates heard :
Coram
PILLAY J:
10641/2024 - 19 Jan 2026; 10456/2024 - 21 Jan 2026; 10455/2024 -
22 Jan 2026
Pillay J
JUDGMENT
3
INTRODUCTION:
[1] These three applications for review are being decided together on the premise that
all three concern the same principles and disputed issues in respect of the
appointment of the Principals of the aforementioned Schools by the first respondent
in contravention of the recommendation made by the second applicant. The reviews
were sought in terms of the Promotion of Administrative Justice Act1 (PAJA) against
the first and second respondent for the setting aside and or reviewing of their decision
to deviate from the recommendation of the second applicant in all three cases
wherein the appointment of the third respondent as opposed to the recommended
candidate being the fourth respondent. The review was sought on the basis that the
impugned decision was made without consulting the second applicant prior to the
appointment of the third respondent. This was applicable in all three cases, and it is
for these reasons that the judgment in respect of the three applications were dealt
with in this one judgment. In essence the applicants are seeking relief in the form of
reviewing and setting aside the impugned decision and remitting the matter back for
reconsideration by the first respondent of the three appointments de nova. The
applicants also applied for the appropriate cost order.
[2] All three applications were opposed by the first and second respondents. The
answering and replying affidavits with the heads of argument have been filed by the
parties. In all three cases, the third and fourth respondents did not participate in the
proceedings.
1 Act 3 of 2000
4
BRIEF BACKGROUND:
[3] In case number 10455/ 2024, it was common cause that around April 2024 the first
respondent advertised the post of Principal at the Thomo Primary School. The
second applicant conducted shortlisting and interviews for the post in question, which
was followed by the second applicant's recommendations of suitable candidates with
the fourth respondent being the first choice and the third respondent being the third
choice for appointment in the post of Principal at the School. On 16 August 2024, the
first respondent appointed the third respondent as Principal at the Thomo Primary
School, notwithstanding the fact that the second applicant had recommended the
fourth respondent as number one for appointment.
[4] The applicants in terms of PAJA were dissatisfied that the first and second
respondents had failed to provide reasons for their decision prior to deviating from
the second applicant's recommendation. It is for those reasons that the applicants
sought the Court to review and set aside the decision made by the first respondent
in respect of the appointment, which was contrary to the recommendation by the
second applicant.
[5] The applicants maintained that the meeting of 27 August 2024 was held after the
impugned decision was made to appoint the third respondent and that by the time
that meeting was held the first respondent had already failed to give the second
applicant adequate notice of the right of review or internal appeal when the first
respondent took the impugned decision on 20 August 2024. The decision to justify
the appointment did not remedy the failure to give adequate notice of the right of
review or internal appeal on 20 August 2024, when the impugned decision was taken.
5
[6] The applicants contend that the first respondent failed to comply with section
3(2)(b)(i) of PAJA by failing to give adequate notice of the nature and purpose of the
proposed administrative action when taking the impugned decision on 20 August
2024. Moreover, at the time that the meeting of the 27 August 2024 took place, the
first respondent had already failed to comply with section 3(2)(b)(v) of PAJA by failing
to give adequate notice of the right to request reasons in terms of section 3(2)(b)(v)
when taking the impugned decision on or about 20 August 2024. As there was non
compliance with PAJA at the time of taking the decision of 20 August 2024, the
meeting of 27 August 2024 did not remedy the failure to comply with the provisions
of section 3 of PAJA.
[7] The respondents in opposing the application indicated to the Court that the authority
and locus standi of Mr. Kubu Caiphas Mashutla to act on behalf of the second
applicant and by him compiling the founding affidavit on behalf of the second
applicant, in respect of all three matters were questionable and disputed. It was
required of him to provide documentation to substantiate his claim that he was
authorised by the second applicant to depose to the founding affidavit on behalf of
the members of the School Governing Body. Therefore, the first applicant's locus
standi to submit a founding affidavit and move the review application was challenged
since the first and second respondents had received letters of dissatisfaction in the
conduct and manner of the first applicant, following the appointment of the third
respondent.
Moreover, the first and second respondents indicated that the second applicant was
not properly before Court with the relevant authority of all the members of the School
6
Governing Body, as the letter of authority to support this application lacked particulars
reflecting the details of all the members having consented to institute review
proceedings, in circumstances where various important role players in the School
Governing Body had not participated in the decision.
[8] The first and second respondents briefly indicated that the application was without
foundation, nonsensical, baseless and the relief sought was incompetent. The
appointment, promotion and or non-appointment decision in respect of employees
was exclusively within the purview and discretion of the employer and that as long as
an objective procedure applicable to all the applicants had been followed in the non
appointment and or identification of candidates and appointment, the applicants
before the Court could not bring a review application that sought to usurp the
employer's discretion in the employment process and the Court should be very slow
to interfere with the legitimate exercise of Governmental powers save in the clearest
cases.
[9] The first and second respondents indicated that they were guided by the
implementation of the Employment Equity Plan in line with the Constitution of the
Republic of South Africa,2 the Guidelines for the Implementation of Employment
Equity Plan in the employment of Employees, in line with the provisions of the
Employment of Educators Act3, and complied with the relevant procedure in that;
[9.1] On 30 July 2024, A formal meeting was held with members of the School
Governing Body, the second applicant in particular, to conscientize them with
1 See Act no 108 of 1996
3 See Act 76 of 1998
7
regard to the employment equity plan, they sketched out the steps and
initiatives, in the advancement and appointment of under-represented groups
and previously disadvantaged female educators, in relation to the vacant
position of Principal at Thomo Primary School. Specific reference was made
to the need to address the egregious lacunae(s) concerning the previously
marginalized representation of females in the positions of Principal and the
developed guidelines which were adopted in June 2023 and circulated to all
relevant parties including the second applicant.
[9.2] The first and second respondents indicated that the applicants did not have
any power to appoint educators but were required to recommend to the Head
of Department the appointment of educators at the school, subject to the
Employment of Educators Act,4and the Labour Relations Act.5The School
Governing Body was required to submit in order of preference to the Head of
Department, a list of at least three names of recommended candidates. This
recommendation was to give effect to the principles of equality, redress, and
representativity that were complied with, in the interview and recommendation
process, and adhere to the provisions of the Employment Equity Act, and the
Constitution.
[9.3] Section 6(3)(f) of the Employment of Educators Act provided that "Despite the
order of preference in paragraph(c) and subject to paragraph(d) the Head of
Department may appoint any suitable candidate on the list." accordingly the
first and second respondents complied with the relevant provisions of the Act
4 See 3 above
5 See Act 66 of 1995.
8
and appointed the most appropriate candidate to the position of the Principal
at Thoma Primary School, namely the third respondent.
[9.4] The first and second respondents indicated that once it came to the attention
of the first and second respondents that the appointment of the third
respondent was not as per the recommendation of the first preferred and
recommended candidate from the second applicant, a series of meetings were
held with the School in an attempt to assist and bring clarity in respect of the
appointment of the third respondent, as opposed to the fourth respondent, who
was a male and in conflict with the provisions of the Employment Equity Plan
and the Employment of Educators Act. The first and second respondents
contended that it was unfortunate that the applicants persisted and were
unshaken and discontented with the appointment of the third respondent on
account of her gender, amidst the fact that she was competent and capable
of performing the duties as per the recommendation by the second applicant
although not being the first choice candidate.
[1 O] The first and second respondents denied that there was non-compliance with the
provisions of the relevant legislation and that the decision was in line with the
Guidelines for the Implementation of Employment Equity Plan in the appointment of
employees in line with the provisions of the Employment of Educators Act and the
Department of Education's Equity Plan adopted on 2 June 2023. There was no basis
for the applicants approaching the Court in terms of PAJA and that the application
was to be dismissed with a cost order against the applicants.
9
[11) In reply, the applicants maintained their authority to move the application. They
highlighted that the first and second respondents failed to appreciate that the
impugned decision was taken without consultation and without affording them the
opportunity of making representations, prior to same and as a result this Court was
obliged to review the decision which conflicted with PAJA. The only issue that they
sought to be adjudicated before the Court was the procedural compliance and not
the appointment itself. The applicants sought that the decision be reviewed and set
aside and the matter be reverted back to the first respondent for reconsideration. The
applicants sought costs if successful and if not that the Biowatch principle be
applicable and each party is liable for his or her costs.
[12) In case number 10456/ 2024, it was common cause that around April 2024 the post
for Principalship at Phalaborwa Primary School was advertised. The School
Governing Body held interviews and shortlisted candidates for the appointment,
identifying the fourth respondent as the first choice and the third respondent as the
second choice to be appointed to the position. The first respondent appointed the
third respondent as Principal of Phalaborwa Primary School without providing
reasons to deviate from the second applicant's recommendation. The applicants
aggrieved by this decision approached this Court to have this decision reviewed, set
aside and reverted to the first respondent for reconsideration.
[13) The applicants contend that the first respondent failed to comply with section
3(2)(b)(i) of PAJA by failing to give adequate notice of the nature and purpose of the
proposed administrative action when taking the impugned decision. Moreover, at the
time that the decision was made, the first respondent had already failed to comply
10
with section 3(2)(b)(v) of PAJA by failing to give adequate notice of the right to
request reasons in terms of section 3(2)(b)(v) when taking the impugned decision.
As there was non- compliance with PAJA at the time of taking the decision, the
meetings that followed did not remedy the failure to comply with the provisions of
section 3 of PAJA.
[14] The first and second respondents opposed the application questioning the authority
and locus standi of Mr. Kubu Caiphas Mashutla to act on behalf of the second
applicant as this was disputed. The first and second respondents indicated that it was
required of him to provide documentation to substantiate his claim that he was
authorised by the second applicant to depose to the founding affidavit on behalf of
the members of the School Governing Body as this was disputed in respect of the
relevant members of the School Governing Body and same was not complied with.
The decision of the second applicant to support the first applicant in the review
process was also disputed as the authority was questioned as certain members of
the School Governing Body resigned due to the way certain members of the first
applicant conducted themselves and they were not aligned with the decision to
institute proceedings.
[15] The first and second respondents guided by the implementation of the Employment
Equity Plan in line with the Constitution of the Republic of South Africa, the Guidelines
for the Implementation of Employment Equity Plan in the employment of Employees
in line with the provisions of the Employment of Educators Act, complied with the
relevant procedure in that;
11
[15.1) A formal meeting was held with members of the School Governing Body, the
second applicant in particular to conscientize them with regard to the
employment equity plan, sketched out the steps and initiatives, in the
advancement and appointment of under-represented groups and previously
disadvantaged female educators, in relation to the vacant position of Principal
at Phalaborwa Primary School. Specific reference was made to the need to
address the egregious lacunae(s) concerning the previously marginalized
representation of females in the positions of Principal and the developed
guidelines which were adopted in June 2023 and circulated to all relevant
parties including the second applicant. This was done prior to the interviews
and shortlisting of the recommended candidates by the second applicant. The
respondents filed a record of said meeting dated 23 July 2024. The second
applicant thereafter proceeded with the relevant interviews and the fourth and
third respondents were shortlisted in order of preference as first and second
for appointment on 31 July 2024.
[15.2) According to the first and second respondents the applicants did not have any
authority to appoint educators but were obliged to recommend to the Head of
Department the appointment of educators at the school, subject to the
Employment of Educators Act, and the Labour Relations Act. The Governing
Body was required to submit in order of preference to the Head of Department,
a list of at least three names of recommended candidates. This
recommendation must give effect to the principles of equality, redress and
representativity that were complied with, in the interview and recommendation
process, and adhere to the provisions of the Employment Equity Act, and the
12
Constitution. Having regard to the recommendations, it was established that
the fourth respondent was already appointed to the position of Principal at
Kgopsane Primary School, therefore not a suitable candidate to be considered
for appointment as Principal at Phalaborwa Primary School. The first
respondent guided by the second respondent considered the other
recommended candidates and appointed the third respondent who was the
most appropriate candidate to be appointed to the position of Principal at
Phalaborwa Primary School and was one of the recommended candidates by
the second applicant.
[15.3] The first and second respondent highlighted that Section 6(3)(f) of the
Employment of Educators Act provides that "Despite the order of preference
in paragraph(c) and subject to paragraph(d) the Head of Department may
appoint any suitable candidate on the list." accordingly the first and second
respondents had complied with the relevant provisions of the Act and
appointed the most appropriate candidate to the position of the Principal at
Phalaborwa Primary School, namely the third respondent.
[15.4] Once it came to the attention of the first and second respondents that the
appointment of the third respondent was not as per the recommendation of
the first preferred and recommended candidate, a series of meetings were
held with the School in an attempt to assist and bring clarity in respect of the
appointment of the third respondent, as opposed to the first recommended
candidate, who was a male and already appointed to the post of Principal at
Kgopsane Primary School and in conflict with the provisions of the
Employment Equity Plan and the Employment of Educators Act. The first and
13
second respondents contended that the applicants persisted and were
unshaken and discontented with the appointment of the third respondent on
account of her gender, amidst the fact that she was competent and capable
of performing the duties as per the recommendation of the second applicant
although not being the first choice.
[16] The first and second respondents denied that there was non-compliance with the
provisions of the relevant legislation and indicated that the decision was in line with
the Guidelines for the Implementation of Employment Equity Plan in the appointment
of employees in line with the provisions of the Employment of Educators Act and the
Department of Education's Equity Plan adopted on 2 June 2023. There was no basis
for the applicants approaching the Court in terms of PAJA and that the application
should be dismissed with a cost order against the applicants.
[17] In reply, the applicants maintained their authority to move the application. The
applicants highlighted that the first and second respondents failed to appreciate that
the impugned decision was taken without consultation and without affording them the
opportunity of making representations prior to same and as a result, this Court was
obliged to review the decision which conflicted with PAJA. The only issue was the
procedural compliance and not the appointment itself. The applicants sought that the
decision be reviewed and set aside and the matter be reverted back to the first
respondent for reconsideration . The applicants sought costs if successful and if not
that the Biowatch principle be applicable and each party is liable for his or her costs.
14
[18] In case number 10641/2024 , it was common cause that around April 2024 the post
for Principalship at Mashabela Primary School was advertised. The School
Governing Body held interviews and shortlisted candidates for the appointment,
identifying the fourth respondent as the first choice, and maintained that the third
respondent had not been shortlisted to be appointed to the position. On 1 August
2024, the first respondent appointed the third respondent as Principal of Mashabela
Primary School without providing reasons to deviate from the second applicant's
recommendation or informing the second applicant how the third respondent was
appointed as the third respondent was not shortlisted at all for appointment. The
applicants aggrieved by this decision approached this Court to have the decision
reviewed, set aside, and reverted to the first respondent for reconsideration.
[19] The applicants contend that the first respondent failed to comply with section
3(2)(b)(1) of PAJA by failing to give adequate notice of the nature and purpose of the
proposed administrative action when taking the impugned decision. Moreover, at the
time that the decision was made, the first respondent had already failed to comply
with section 3(2)(b)(v) of PAJA by failing to give adequate notice of the right to
request reasons in terms of section 3(2)(b)(v) when taking the impugned decision.
As there was non- compliance with PAJA at the time of taking the decision, the
meetings that followed did not remedy the failure to comply with PAJA and at the time
of this application, same was still not made available to the applicants.
[20] The first and second respondents opposed the application questioning the authority
and locus standi of Mr. Kubu Caiphas Mashutla to act on behalf of the second
applicant as this was disputed. The first and second respondents indicated that it was
15
required of him to provide documentation to substantiate his claim that he was
authorised by the second applicant to depose to the founding affidavit on behalf of
the members of the School Governing Body as this was disputed in respect of the
relevant parties, which made up the School Governing Body and same was not
complied with. In this regard certain members of the School Governing Body had not
consented to the second applicant approaching the Court and the second applicant
was acting without authority.
[21] The first and second respondents guided by the implementation of the Employment
Equity Plan in line with the Constitution of the Republic of South Africa, the Guidelines
for the Implementation of Employment Equity Plan in the employment of Employees
in line with the provisions of the Employment of Educators Act, complied with the
relevant procedure in that;
[21.1] A formal meeting was held with members of the School Governing Body, the
second applicant in particular to conscientize them with regard to the
employment equity plan, the first and second respondents sketched out the
steps and initiatives, for the advancement and appointment of under
represented groups and previously disadvantaged female educators, in
relation to the vacant position of Principal at Mantlatle Primary School. Specific
reference was made to the need to address the egregious lacunae(s)
concerning the previously marginalized representation of females in the
positions of Principal and the developed guidelines which were adopted in
June 2023 and circulated to all relevant parties including the second applicant.
This was done prior to the interviews and shortlisting of the recommended
candidates by the second applicant. The respondents filed a record of said
16
meeting dated 17 July 2024. The second applicant thereafter proceeded with
the relevant interviews and the fourth respondent was shortlisted as first for
appointment on 1 August 2024. The third respondent was listed as number
three and was the first female candidate shortlisted by the second applicant.
It was because of the need for compliance with the aforementioned legislation
that it was fitting that the third respondent be appointed.
[21 .2] The applicants did not have any right to appoint educators but were expected
to make recommendations to the Head of Department for the appointment of
educators at the school, subject to the Employment of Educators Act, and the
Labour Relations Act. The Governing Body must submit in order of preference
to the Head of Department, a list of at least three names of recommended
candidates. The recommendation must give effect to the principles of equality,
redress and representativity that were complied with in the interview and
recommendation process, and adhere to the provisions of the Employment
Equity Act, and the Constitution. Having regard to the recommendations , it
was established that the fourth respondent was the first recommended
candidate, but this was not in compliance, and as such the most appropriate
candidate to be appointed was the third respondent who was appointed to the
position of Principal of Mantlatle Primary School.
(21.3] The first and second respondent highlighted that Section 6(3)(f) of the
Employment of Educators Act provided that "Despite the order of preference
in paragraph(c) and subject to paragraph(d) the Head of Department may
appoint any suitable candidate on the list." accordingly the first and second
respondents complied with the relevant provisions of the Act and appointed
17
the most appropriate candidate to the position of Principal at Mantlatle Primary
School, namely the third respondent.
[21.4] The appointment of the third respondent was not as per the recommendation
of the first preferred and recommended candidate, resulting in a series of
meetings which were held between the first and second respondent and the
School in an attempt to assist and bring clarity in respect of the appointment
of the third respondent , as opposed to the first recommended candidate, who
was a male and in conflict with the provisions of the Employment Equity Plan
and the Employment of Educators Act. The respondents contended that the
applicants persisted and were unshaken and discontented with the
appointment of the third respondent on accqunt of her gender, amidst the fact
that she was competent and capable of performing the duties as per the
recommendation of the second applicant although not being the first choice.
The second applicant's recommendation was flawed as there was non
compliance with the provisions of the Employment Equity Plan and the
Employment of Educators Act. The first and second respondents appreciated
that as the third respondent was not from the community, her presence at the
school was challenged by the parents of the school and community to the
extent that the third respondent had to be placed at another School.
[221 The first and second respondents denied that there was non-compliance with the
provisions of the relevant legislation and that the decision was in line with the
Guidelines for the Implementation of Employment Equity Plan in the appointment of
employees in line with the provisions of the Employment of Educators Act and the
Department of Education's Equity Plan adopted on 2 June 2023. There was no basis
18
for the applicants approaching the Court in terms of PAJA and that the application be
dismissed with a cost order against the applicants.
[23] In reply, the applicants were silent concerning their authority to move the application
and highlighted that the first and second respondents failed to appreciate that the
impugned decision was taken without consultation and without affording them the
opportunity of making representations prior to same and as a result this Court was
obliged to review the decision which conflicted with PAJA. The only issue was the
procedural compliance and not the appointment itself. The applicants sought that the
decision be reviewed and set aside and the matter be reverted back to the first
respondent for reconsideration. The applicants sought costs if successful and if not
that the Biowatch principle be applicable and each party is liable for his or her costs.
[24] Both parties handed in written arguments in respect of all three matters with the
applicants praying for the orders as sought in the review applications with costs and
the first and second respondents sought for the dismissal of the review applications
with costs.
ISSUES FOR DETERMINATION
[25] The crisp issues to be determined are:
[25.1 J Whether there was non-compliance with the procedural requirements as
provided in section 3 of PAJA as alleged by the applicants.
[25.2] Whether the first and second applicants had locus standi to institute these
proceedings on behalf of the School Governing Bodies in respect of the three
different Schools.
19
[25.3] Whether there was an obligation on the first and second respondents to only
consider and appoint the first recommended candidate as appropriate for the
position of Principal at the abovementioned Schools.
[25.4] Whether there was an obligation on the first respondent to revert to the second
applicant when the decision was made to deviate from the first choice of the
second applicant.
[25.5] Whether the decision was in line with the Guidelines for the Implementation of
Employment Equity Plan in the appointment of employees in line with the
provisions of the Employment of Educators Act and the Department of
Education's Equity Plan adopted on 2 June 2023 and that the aforesaid
provisions having not been complied with by the applicants, rendered the first
choice candidate unsuitable for appointment.
LEGAL PRINCIPLES AND APPLICABILITY IN RESPECT OF ALL THREE CASES
[26] In order to litigate in the public interest, an applicant must show that he or she is truly
acting in the public interest, and that the 'public' has sufficient interest. In Ferreira v
Levin NO and Others; Vryenhoek and Others v Powell NO and Others 6 O' Regan
J stated:
"This Court will be circumspect in affording applicants standing by way of s 7(4)(b)(v)
and will require an applicant to show that he or she is genuinely acting in the public
interest. Factors relevant to determining whether a person is genuinely acting in the
public interest will include considerations such as: whether there is another
reasonable and effective manner in which the challenge can be brought; the nature
of the relief sought, and the extent to which it is of general and prospective
6 See 1996 (I) SA 984 (CC)at paragraph 234
20
application; and the range of persons or groups who may be directly or indirectly
affected by any order made by the Court and the opportunity that those persons or
groups have had to present evidence and argument to the Court. These factors will
need to be considered in the light of the facts and circumstances of each case."
[27] In the three matters before the Court, the first applicant Saviour Association of School
Governing Bodies, was identified as an association of School Governing Bodies
within the Republic of South Africa, whose authority stemmed from the Constitution
and the authority assigned to them by the second applicants. It was apparent that in
respect of the second applicants, amidst being identified as the School Governing
Body from the relevant documentation , their authority to institute these proceedings
was in dispute considering the conflict pertaining to whether they were authorised to
act on behalf of their members in respect of all three applications.
[28] The first and second respondents highlighted that as the relevant members had not
appended their signatures to the authorisation , and had expressed their disapproval
of the conduct of the applicants, especially that of Mr Kubu Caiphas Mashutla having
to depose to an affidavit , on behalf of the second applicants, in all three matters,
whilst there was discord amongst the second applicants, concerning his role and
representation on their behalf. The first and second respondents were of the view
that the parties were not properly before the Court and had no standing to institute
these proceedings. The applicants were silent in reply to these allegations but
preferred for the Court to focus on the procedural defects in the manner in which the
candidates were appointed, without consulting the applicants prior to the decision
and implementation of same. The Court considered that where there were factual
21
disputes, the following principle applied. namely the onus-bearing party who elected
not to lead oral evidence, to resolve conflicts of fact, must discharge the onus on an
acceptance of the facts, alleged by him which were not disputed, together with the
facts alleged by his opponent. In this instance, the applicants failed to discharge that
onus on them concerning their locus standi as disputed by the first and second
respondents. The circumstances as portrayed by the first and second respondent
was most likely true, considering the applicant's silence on these very serious
allegations of the manner in which these proceedings were instituted. On this aspect
alone, the applicant's cases stood to fail.
[29] The Promotion of Administrative Justice Act 3 of 2000 was implemented as noted in
the preamble "to give effect to the right to administrative action that is lawful ,
reasonable and procedurally fair and to the right to written reasons for administrative
action as contemplated in section 33 of the Constitution of the Republic of South
Africa , 1996; and to provide for matters incidental thereto ", was promulgated for the
purpose of ensuring that when administrative decisions were made that the correct
procedure was followed.
[30] The applicants sought review of the decision of the first respondent based on the
non-compliance with Section 3 of PAJA. Reliance placed on Section 3(2)(b) of the
said act.
Section 3 "Procedurally fair administrative action affecting any person"
Section 3(1) Administrative action which materially and adversely affects the rights or
legitimate expectations of any person must be procedurally fair.
3(2)(a) A fair administrative procedure depends on the circumstances of each case.
3(2)(b) In order to give effect to the right to procedurally fair administrative action, an
22
administrator, subject to subsection (4), must give a person referred to in subsection
(1)-
3(2)(b)(i) adequate notice of the nature and purpose of the proposed administrative
action;
3(2)(b) (ii) a reasonable opportunity to make representations;
3(2)(b) (iii) a clear statement of the administrative action;
3(2)(b) (iv) adequate notice of any right of review or internal appeal, where applicable;
and
3(2)(b) (v) adequate notice of the right to request reasons in terms of section 5.
3(3) In order to give effect to the right to procedurally fair administrative action, an
administrator may, in his or her or its discretion, also give a person referred to in
subsection (1) an opportunity to-
3(3)(aJ obtain assistance and, in serious or complex cases, legal representation;
3(3)(b) present and dispute information and arguments; and
3(3)(c) appear in person.
3(4)(a) If it is reasonable and justifiable in the circumstances, an administrator may
depart from any of the requirements referred to in subsection (2).
3(4)(b) In determining whether a departure as contemplated in paragraph (a) is
reasonable and justifiable, an administrator must take into account all relevant
factors, inc/uding-
3( 4 )(b) (i) the objects of the empowering provision;
3(4)(b) (ii) the nature and purpose of, and the need to take, the administrative action;
3( 4)(b) (iii) the likely effect of the administrative action;
3( 4)(b) (iv) the urgency of taking the administrative action or the urgency of the matter;
and
3(4)(b) (v) the need to promote an efficient administration and good governance.
23
3(5) Where an administrator is empowered by any empowering provision to follow a
procedure which is fair but different from the provisions of subsection (2), the
administrator may act in accordance with that different procedure.
[31] The applicants noted that the first respondent failed to inform the second applicant in
all three cases that the recommendation of their first-choice candidate was not
accepted and that the respondents had decided to appoint another candidate. The
applicants took issue with the fact that there was no communication to the second
applicants of this decision prior to it being announced. The second applicant was not
afforded the right to make representations, object, or be given reasons for the
impugned decision. This conduct by the first and second respondents was in
contravention of Section 3(2) of PAJA and therefore the appointment of the third
respondent in all three cases was destined to be reviewed and set aside.
[32] Section 6(3) of the Educators Act states:
"(a) Subject to paragraph (m), any appointment, promotion or transfer to any post on
the educator establishment of a public school may only be made on the
recommendation of the governing body of the public school and, if there are
educators in the provincial department of education concerned who are in excess of
the educator establishment of a public school due to operational requirements, that
recommendation may only be made from candidates identified by the Head of
Department, who are in excess and suitable for the post concerned.
(b) In considering the applications, the governing body or the council, as the case
may be must ensure that the principles of equity, redress and representivity are
complied with and the governing body or council, as the case may be, must adhere
to-
24
(i) the democratic values and principles referred to in section 7(1);
(ii) any procedure collectively agreed upon or determined by the Minister for the
appointment, promotion or transfer of educators;
(iii) any requirement collectively agreed upon or determined by the Minister for the
appointment, promotion or transfer of educators which the candidate must meet;
(iv) a procedure whereby it is established that the candidate is registered or qualifies
for registration as an educator with the South African Council for Educators; and
(v) procedures that would ensure that the recommendation is not obtained through
undue influence on the members of the governing body.
(c) The governing body must submit, in order of preference to the Head of
Department, a list of -
(i) at least three names of recommended candidates: or
(ii) fewer than three candidates in consultation with the Head of Department.
(d) When the Head of Department considers the recommendation contemplated in
paragraph (c), he or she must, before making an appointment, ensure that the
governing body has met the requirements in paragraph (b).
(e) If the governing body has not met the requirements in paragraph (b), the Head of
Department must decline the recommendation.
(f) Despite the order of preference in paragraph (c) and subject to paragraph (d), the
Head of Department may appoint any suitable candidate on the list.
(g) If the Head of Department declines a recommendation, he or she must
(i) consider all the applications submitted for that post;
(ii) apply the requirements in paragraph (b)(i) to (iv); and
(iii) despite paragraph (a), appoint a suitable candidate temporarily or re-advertise
the post.
25
(h) The governing body may appeal to the Member of the Executive Council against
the decision of the Head of Department regarding the temporary appointment
contemplated in paragraph (g).
(i) The appeal contemplated in paragraph (h) must be lodged within 14 days of
receiving the notice of appointment.
(j) The appeal must be finalised by the Member of the Executive Council within 30
days.
(k) If no appeal is lodged within 14 days, the Head of Department may convert the
temporary appointment into a permanent appointment as contemplated in section 68.
(I) A recommendation contemplated in paragraph (a) shall be made within two
months from the date on which a governing body was requested to make a
recommendation, failing which the Head of Department may, subject to paragraph
(g), make an appointment without such recommendation.
(m) Until the relevant governing body is established, the appointment, promotion or
transfer in a temporary capacity to any post on the educator establishment must be
made by the Head of Department where a -
(i) new public school is established in terms of the South African Schools Act, 1996,
and any applicable provincial Jaw;
(ii) ... repealed
[33] It was apparent that the School Governing Body in all three cases was actively
involved in the identification shortlisting and interviewing of the candidates. They had
also made the relevant recommendations of the candidates, for consideration to be
appointed, to the first and second respondents, especially the first preferred
candidate being the fourth respondent in all three matters.
26
[34) Section 6(3)(b) of the Educators Act required the following of the School Governing
Body,
"(b) In considering the applications, the governing body or the council, as the case
may be must ensure that the principles of equity, redress and representivity are
complied with and the governing body or council, as the case may be, must adhere
to- (i) the democratic values and principles referred to in section 7(1);
(ii) any procedure collectively agreed upon or determined by the Minister for
the appointment, promotion or transfer of educators;
(iii) any requirement collectively agreed upon or determined by the Minister
for the appointment, promotion or transfer of educators which the candidate
must meet;
(iv) a procedure whereby it is established that the candidate is registered or
qualifies for registration as an educator with the South African Council for
Educators; and
(v) procedures that would ensure that the recommendation is not obtained
through undue influence on the members of the governing body.
[35] It was clear that the School Governing Body complied by submitting a list of
recommended candidates in terms of section 6(3)(c)(i) of the Educators Act, but what
was keenly noted was that the first choice candidate in all three matters whose details
were submitted to the Head of Department, were all male candidates which was
clearly in conflict with the mandate given to the School Governing Body to ensure
that the principles of equity, redress and representivity were complied with, and to
which all the schools had been conscientized about prior to the interview process.
The applicants do not take issue with the appointment, amidst it not being the first
candidate which was the second applicant's choice, in all three matters but their
27
complaint was based on the fact that they were not consulted, prior to that
appointment.
[36] Section 6(3)( d) of the Educators Act notes, " When the Head of Department considers
the recommendation contemplated in paragraph (c), he or she must, before making
an appointment, ensure that the governing body has met the requirements in
paragraph (b)". Once that was ventilated the Head of Department was required to
consider section 6(3)(f) which notes, "Despite the order of preference in paragraph
(c) and subject to paragraph (d), the Head of Department may appoint any
suitable candidate on the list." This was what was done in all three matters, which
according to the first respondent, complied with the aforementioned legislation. The
decisions to appoint the third respondents in all three cases were appropriate in the
circumstances and the first and second respondents, could not be faulted. The nub
of the matter raised by the applicants was the need to comply with PAJA in respect
of the consultation prior to making the decision.
[37] Regard was had to the provisions of section 6(3)(f) of the Educators Act which
provides for deviation from the first-choice candidate selected by the School
Governing Body and afforded the Head of Department the authority to appoint any
of the other shortlisted candidates, provided there was compliance with the
provisions of the relevant legislation. There was no mention in section 6(3)(f) of the
Educators Act of the need to consult with the School Governing Body, once a
decision to select another of the recommended candidates, especially as those
potential candidates were recommended by the School Governing Body, amidst not
being the first preferred candidate.
28
[38] The applicants sought to rely on the provisions of section 3(2)(b)(i) through to section
3(2)(b)(v) of PAJA as motivation for why the decision by the first respondent was
reviewable and to be set aside. The applicants unfortunately lost sight of the
provisions of section 3(4) of PAJA which reads;
3(4)(a) If it is reasonable and justifiable in the circumstances, an administrator may
depart from any of the requirements referred to in subsection (2).
3(4)(b) In determining whether a departure as contemplated in paragraph (a) is
reasonable and justifiable , an administrator must take into account all relevant
factors, including-
3( 4)(b) (i) the objects of the empowering provision;
3(4)(b) (ii) the nature and purpose of, and the need to take, the administrative action;
3(4)(b) (iii) the likely effect of the administrative action;
3( 4)(b) (iv) the urgency of taking the administrative action or the urgency of the matter;
and
3(4)(b) (v) the need to promote an efficient administration and good governance.
3(5) Where an administrator is empowered by any empowering provision to follow a
procedure which is fair but different from the provisions of subsection (2), the
administrator may act in accordance with that different procedure.
[39] It was clear from papers placed before the Court in respect of all three cases that
when the Head of Department considered the three appointments for Principals at
the abovementioned three schools, there was clear compliance with the relevant
legislation, and in terms of the recommendation made by the second applicants, in
all three cases amidst it was not their first preferred candidate. There was no duty to
have to revert to the School Governing Bodies as their recommendation was being
followed. Moreover, section 6 of the Educators Act was clear concerning the process
29
to be followed. The decision made by the first respondent was in compliance with the
Educators Act and was promoting efficient administration and good governance,
which ultimately is the purpose of PAJA, this Court is satisfied that the review sought
by the applicants was without basis and merit. There was no obligation on the First
respondent to consult the second applicant prior to complying with the
recommendation made by the second applicant in all three cases. I t is for the
abovementioned reasons that the three applications are dismissed.
COSTS:
[40] The applicants sought costs in respect of the application and if unsuccessful that the
Biowatch principle be applicable if unsuccessful as the matter was in the interest of
the public. The first and second respondents sought costs on party and party scale
B, if the applications were dismissed.
RULING:
[41] The three applications for review sought by the Applicants in terms of PAJA are
dismissed.
ORDER:
[42] In the result the following order is made:-
[42.1] The review applications in the following cases;
CASE NO: 10455/2024;
CASE NO: 10456/2024; and
30
CASE NO: 10641/2024 are all dismissed
[42.2] Each party is to pay his or her own costs.
APPEARANCES:
FOR THE APPLICANT
INSTRUCTED BY
FOR THE RESPONDENT
INSTRUCTED BY
K.L. PILLAY J
JUDGE OF THE HIGH COURT,
LIMPOPO DIVISION, POLOKWANE
Adv. S.S. Tebeile; Adv T.A. Makola;
Adv K.A. Thutja
ML Shoba Attorneys
Adv. T Tshitereke
Office of the State Attorney, Limpopo
Polokwane