CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 127/22
In the matter between:
SOUTH AFRICAN COUNCIL FOR EDUCATORS Applicant
and
DEON SCHEEPERS First Respondent
HOD: DEPARTMENT OF EDUCATION
FREE STATE PROVINCE N.O . Second Respondent
MEMBER OF THE EXECUTIVE COUNCIL FOR
EDUCATION FREE STATE PROVINCE N.O . Third Respondent
Neutral citation: South African Council for Educators v Deon Scheepers and Others
[2023] ZACC 23
Coram: Baqwa AJ, Kollapen J, Madlanga J, Majiedt J, Mathopo J,
Mbatha AJ, Mhlantla J, Rogers J and Tshiqi J.
Judgment: Baqwa AJ (unanimous)
Heard on: 17 November 2022
Decided on: 12 July 2023
Summary: South African Council of Educators — professional discipline
2
ORDER
On appeal from the High Cou rt of South Africa, Free State Division, Bloemfontein :
Leave to appeal is refused with costs, including the costs of two counsel .
JUDGMENT
BAQWA AJ (Kollapen J, Madlanga J, Majiedt J, Mathopo J, Mbatha AJ, Mhlantla J,
Rogers J and Tshiqi J concurring):
Introduction
[1] This is an application for leave to appea l by the South African Council for
Educators (SACE) against the judgment and order of the High Court, Fr ee State
Division, Bloemfontein .1 The matter involved SACE, on the one hand, and Mr Deon
Scheepers ( first respondent) , the Head of the Department of Education (HOD),
Free State Province N.O. (second respondent) and the Member of the Executive Council
for Education Free State Province N.O. (third respondent), on the other.
[2] The High Court ’s judgment concerned mainly the issue whether SACE had
conducted an investigation as required by law prior to referring Mr Scheepers to a
disciplinary hearing or whether it had just done a desktop assessment of the report by
an Independent Task Team (ITT) appointed by the HOD and thereafter made its
decision.2
1 Deon Scheepers v South African Council for Educators [2021] ZAFSHC 212.
2 Id at para 20.
BAQWA AJ
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[3] This was despite the work done by a panel appointed by SACE to do an
investigation. T he High Court found that the panel ha d merely gone through the
motions to create an appearance of compliance with the provisions of the South African
Council for Educators Act (SACEA),3 in that it simply confirmed the information
contained in the ITT report. 4
Legislative framework
[4] The South African Schools Act (SASA) 5 provides for a uniform system for the
organisation, governance and funding of schools. Section 2(2) of the SASA provides
for the Member of the Executive Council and the HOD to exercise any power con ferred
upon them under the SASA, after taking full account of the National Education Policy
Act (NEPA).6
[5] The discipline of educators is dealt with in the Employment of Educators Act
(EEA).7 Section 18(2) of that Act provides :
“If it is alleged that an educator committed misconduct as contemplated in
subsection (1), the employer must institute disciplinary proceedings in accordance with
the disciplinary code and procedures contained in Schedule 2.”
[6] In the present case (that is, in relation to Mr Scheepers), the employer
contemplated in the above provision is the HOD, the second respondent. Whilst no
impropriety is alleged against the HOD in this application it is apparent from the
founding affidavit that the HOD expressed disquiet at the conduct of SACE regarding
its alleged interference with the process implemented by the HOD to deal with the
3 31 of 2000.
4 High Court judgment above n X at para 20.
5 84 of 1996.
6 27 of 1996.
7 76 of 1998.
BAQWA AJ
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complaints raised against Mr Scheepers in his capacity as the school principal employed
by the HOD.
[7] SACE is a juristic person in terms of the SACEA, and the objects of the Act are
to provide for the registration of educators, to promote the professional development of
educators and to set, maintain and protect ethical and professional standards of
educators, by means of the functioning of SACE.
[8] The discipline of educators is dealt with in section 14 of the SACEA. The
primary objective is to maintain and promote professional ethics . Section 14 (2)(e)
provides:
“(2) The disciplinary committee [of the Council] must—
. . .
(e) on the basis of a recommendation of the relevant panel, recommend a finding and
appropriate action, if any, to the council.”
[9] Section 14(2) (d) of the SACEA requires the disciplinary committee to ensure a
fair hearing, in accordance with a procedure determined by SACE in terms of
sectio n 5(c)(ii).8 Section 5 of the SACEA deals with the powers and duties of SACE .
Section 5(c) deals specifically with professional ethics , and section 5(c)(i) provides that
SACE must compile , maintain, and from time to time , review the code of professional
ethics for educators who are registered or provisionally registered with SACE.
[10] Clause 3.5 of SACE’s Code of Professional Ethics (the Code) , under
Disciplinary Proc edures, provides that SACE’s disciplinary committee must refer an
alleged breach of the Code to an investigating panel for an investigation.
[11] Section 14(3) of the SACEA makes provision for the investigating panel to make
a recommendation to the disciplinary committee regarding a finding, if any , for
8 Section 5(c)(ii) provides that SACE, with regard to professional ethics, must determine a fair hearing procedure .
BAQWA AJ
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disciplinary action concerning a complaint referred to it. 9 Of relevance is the wording
of clause 3.9 of the Code which confers on the disciplinary committee a specific but
circumscribed discretion. The disciplinary committee may only refer a matter for
hearing by a disciplinary panel if the investigating panel is satisfied that there is
sufficient evidence of breach of the Code by an educator.
[12] An outline of the investigative machinery that the investigating panel may trigger
in aid of its investigation is provided for in clause 3.6 of the Code . The investigating
panel may—
“3.6.1 interview complainants and other possible witnesses;
3.6.2 subject to clause 3 .7 . . . interview [an] educator who is alleged to have
breached the code;
3.6.3 notify the educator being investigated of the alleged breach and, subject to
clause 3.7, give the educator an opportunity to respond within the period
specified in that notice;
3.6.4 gather evidence relevant to the alleged breach; and
3.6.5 if necessary, cause summons to be served on any person who may assist the
panel in its investigation as contemplated in section 14(4) of the Act.”
[13] Because clause 3.6 makes reference t o clause 3.7, I thi nk it desirable to quote
clause 3.7 as well:
“3.7 Before interviewing an educator as contemplated in clause 3.6.2, and in any
notice contemplated in clause 3.6.3. the investigator/s must warn the educator:
3.7.1 of the educator’s right against self-incrimination; and
3.7.2 that any admission or explanation given by the educator may be used
as evidence against the educator or at the disciplinary hearing.”
9 Section 13(3) reads:
“A relevant panel must make a recommendation to the disciplinary committee in regard to a
finding, and, if any, discip linary action concerning a complaint referred to it.”
BAQWA AJ
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Background
[14] Mr Scheepers was employed by the HOD at Grey College Secondary School as
a school principal as from 1 January 2013. Following several disputes between
Mr Scheepers and the School Governing Body of Grey College Secondary School
(SGB), the SGB declared that there was a breakdown of the trust rela tionship between
itself and Mr Scheepers .
[15] As a result of the deteriorating relationship between the SGB and Mr Scheepers,
the HOD established the ITT to investigate the underlying causes of the conflict
between the warring parties .
[16] During January and February 2019, t he ITT conducted the investigation by
interviewing the SGB, educators, administration staff, hostel staff , and learn ers at the
school. After conducting interviews and obtaining affidavits from witnesses, the ITT
submitted its report to the HOD on 15 March 2019.
[17] The ITT’s report recommended to the HOD that Mr Scheepers be charged with
serious misconduct , including fraud and corruption and that he be dismissed if found
guilty in terms of section 17(1)(a) of the E EA.10 Furthermore, the report stated that
Mr Scheepers had violated section 16A(2)(g) of the SASA.11 Additionally, that he had
contravened section 1 7(1)(f) of the EEA12 and had breached a written undertaking of
confidentiality.
10 “Section 17 Serious misconduct. —
(1) An educator must be dismissed if he or she is found guilty of—
(a) theft, bribery, fraud or an act of corruption in regard to examinations or
promotional reports.”
11 Section 16A(2)(g) provides that “[t]he principal must provide accurate data to the Head of Department when
requested to do so .”
12 Section 17(1)(f) states that an educator shall be guilty of misconduct if he or she causes a learner or student to
perform any acts contemplated in section 17(1)(a) to (e).
BAQWA AJ
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[18] The HOD delayed in prosecuting the charges against Mr Scheepers. Aggrieved
by the delay, the SGB lodged a complaint against Mr Scheepers with the legal ethics
manager of SACE. Part of the complaint was that the HOD’s delay in releasing the
ITT’s report and implementing its recommendations was not in the int erests of the
school, the learners and other stakeholders .
[19] Subsequent to the SGB’s complaint, SACE notified Mr Scheepers that its Ethics
Committee would conduct an investigation to determine whether there was sufficient
evidence to substantiate the allega tions that he breached the Code.
[20] In September 2019, SACE appointed Mr John Eastes and Mr Pierre Homan as
an investigating panel. The panel commenced with an investigation on 8 October 2019,
during which they i nterviewed three people, namely Mr Greg Titus (apparently a
NAPTOSA official) , Messrs Buchner and Grobbelaar (members of the SGB).
The Department refused to give the panel access to the school, and result antly they did
not interview any of the educators or learners involved. The Department’s attitude
emanated from the fact that it was already conducting a n i nvestigation, which it
considered should take precedence . It is common cause that the panel members did not
interview Mr Scheepers.
[21] On 14 October 2019, the panel issued its report, recommending that
Mr Scheepers be charged. What is apparent from t he contents of the report is that, on
the merits of the charges, reliance was placed wholly on the affidavits obtained during
the Department’s ITT investigation .
[22] On 25 February 2020 SACE invited Mr Scheepers to make representations on
the allegations in the ITT report and its recommendations. He complied with th is
request. On 19 March 2020 , the Ethics Committee considered the report together with
Mr Scheepers ’ representations and resolved to refer the allegations to a disciplinary
panel for a hearing.
BAQWA AJ
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[23] On 31 July 2020, Mr Scheepers was summoned to appear before a disciplinary
panel on 31 August to 4 September 2020 to answer the allegations of breach of the
Code.
[24] On 24 August 2020 , Mr Scheepers addressed a letter to SACE complaining that
the documents necessary for him to prepare for the hearing had not been availed to him.
On 17 September 2020 , in response to the letter, SACE acknowledged its omission and
decided to withdraw the decision to proceed with the disciplinary proceedings and
indicated that the process would start afresh . Simultaneously, Mr Scheepers was
requested to make fresh representations in terms of the new process. Mr Scheepers
complied with that request on 28 September 2020.
[25] On 15 October 2020 , the Ethics Committee considered a report regarding
Mr Scheepers’ matter and directed that the prosecution should proceed. SACE
informed Mr Scheepers of this decision on 19 October 2020, and on 10 November 2020
Mr Scheepers was summoned to appear before a disciplinary panel for a hearing
scheduled to take place over the period 1 -10 February 2021. This set the stage for the
litigation which ultimately landed before this Court.
Litigation history
High Court
[26] The issue before the High Court was whether SACE had conducted an
investigation prior to the decision to refer the allegations to a hearing. The debate was
whether, in terms of the process of 10 March 2019 and the second process which
culminated in the decision on 15 October 2020 , SACE owed deference to the
Department.
[27] Mr Scheepers’ application for review was upheld by the High Court . SACE’s
decision to refer charges against Mr Scheepers to a disciplinary panel for a disciplinary
hearing was revie wed and set aside.
BAQWA AJ
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[28] Three key conclusions of law against which the leave to appeal is directed were
made by the High Court. The first one is that SACE did not comply with a mandatory
enabling provision.13 The Court expressed itself as follows:
“The crucial question is then whether the efforts of [SACE] constituted an investigation
as envisaged by the SACEA. The Act itself does not provide for a definition of the
word ‘investigate’. According to the Oxford Learners Dictionaries the verb
‘investigate’ means ‘to carefully examine the facts of a situation, an event, a crime etc.
to find out the truth about it or how it happened’. In terms of this definition it can
hardly be found that the [SACE] had investigated the complaint against Mr Scheepers
as envisaged by the SACEA.”14
[29] The second conclusion is that the decision of SACE was procedurally unfair
towards Mr Scheepers .15 Last, the High Court was of the view that SACE ’s decision
was taken on the basis of the unauthorised or unwarranted dictates of the S GB.16
Application to the High Court for leave to appeal
[30] SACE was not satisfied with the order of the High Court and applied for leave
to appeal on the grounds that its interpretation of section 14(2) of the SACEA was
incorrect because “it stifles the disciplin e and regulation of the educator’s profession
and negates other rights whose promotion is indirectly linked to the import of the Code
of ethics and the disciplinary powers under SACEA”. Further , the applicant contended
that the High Court incorrectly applied the law to the facts .17
[31] On 3 December 2021, the application for leave to appeal was dismissed with
costs.
13 High Court judgment above n 1 at para 20.
14 Id at para 21.
15 Id at para 24.
16 Id at para 29.
17 School Governing Body Grey College, Bloemfontein v Scheepers (Federation of Governing Bodies of South
African Schools as amicus curiae) [2020] ZASCA 82; [2020] 3 All SA 704 (SCA) .
BAQWA AJ
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Supreme Court of Appeal
[32] Aggrieved by the outcome, SACE applied for leave to appeal to the Supreme
Court of Appeal. That Court dismissed the application with costs on the grounds that
there were no reasonable prospects of success and no compelling reasons why an appeal
should be heard.
In this Court
Applicant’s submissions
[33] SACE seeks condonation for the late filing of the application, submitting that the
delay was occasioned by technological issu es at this Court , w hich resulted in a
seven-day delay . SACE refers to several emails illustrating that the application was
served timeously even though it did not reflect in the Court’s system. SACE further
submits that the appeal bears reasonable prospects of success and that th e application
for condonation ought to succeed.
[34] On jurisdiction, SACE submits that this matter engages this Court’s jurisdiction
in terms of section 167(3)(b) of the Constitu tion. SACE submits that the matter
concerns the manner in which a statutory body regulating the conduct of educators ,
conducts investigations when exercising its disciplinary powers against educators.
Furthermore, SACE submits that this matter engages this Court’s jurisdiction because
the High Court’s decision impacts the application of the Code and results in an
impermissible and restrictive interpretation of how SACE exercises its disciplinary
powers.
First respondent’s submissions
[35] Mr Scheepers argues that condonation ought to be refused because the
application does not engage this Court’s jurisdiction and bears no rea sonable prospects
of success. He submits that this matter does not raise an arguable point of law of general
BAQWA AJ
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public importance a nd that the matter involved the High Court applying established
legal principles to the facts .
Jurisdiction
[36] SACE’s pleaded case raises a constitutional issue. It argues that a preliminary
investigation was conducted before Mr Scheepers was called to attend a disciplinary
hearing. Issues relating to the conduct and powers of SACE concern the exercise of
public power by a statutory body and are therefore constitutional issues. This matter
engages this Court’s constitutional jurisdiction. This Cour t has said as much in
Group Five,18 Senwes,19 Yara,20 and Pickfords.21
Leave to appeal
[37] In Jiba,22 this Court affirmed the two requirements that must be met for leave to
appeal to be granted:
“For leave to appeal to be granted in this Court, the applicant must meet two
requirements. These are that the matter must fall within the jurisdiction of this Court
and that the interests of justice warrant the granting of leave. For this Court’s
jurisdiction to be engaged the matter must either raise a constitutional i ssue or an
arguable point of law of general public importance that oug ht to be heard by this
Court.”23
[38] This Court will grant leave to appeal only if it is in the interests of justice to do
so.24 The interests of justice inquiry involves the weighing up of varying factors. These
18 Competition Commission of South Africa v Group Five Construction Ltd [2022] ZACC 36 ; 2023 (1) BCLR 1
(CC).
19 Competition Commission of South Africa v Senwes Ltd [2012] ZACC 6; 2012 (7) BCLR 667 (CC).
20 Competition Commission v Yara South Africa (Pty ) Ltd [2012] ZACC 14; (2012) 9 BCLR 923 (CC) .
21 Competition Commission of South Africa v Pickfords Removals SA (Pty ) Ltd [2020] ZACC 14; 2021 (3) SA 1
(CC); 2020 (10) BCLR 1204 (CC).
22 General Council of the Bar of South Africa v Jiba [2019] ZACC 23; 2019 (8) BCLR 919 (CC).
23 Id at para 35.
24 African Christian Democratic Party v The Electoral Commission [2006] ZACC 1; 2006 (3) SA 305 (CC); 2006
(5) BCLR 579 (CC) at paras 17-8.
BAQWA AJ
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include reasonable prospects of success which, although not determinative, carry more
weight than other factors. 25 The question whether SACE properly exercise d its public
power to investigate Mr Scheepers is a factual enquiry. Whether an investigation in any
given instance, is a proper investigation falls for a case by case analysis. I do not think
that this Court’s views on the merits would result in the distillation of a principle or
principles that would be a pplicable to all matters of this nature. Irrespective of this
Court’s decision on the merits, were they to be entertained, SACE cannot be prevented
from disciplining Mr Scheepers.
[39] Whether an investigation as conducted by SACE is adequate involves an
evaluation of the facts. This Court has refused to entertain appeals that seek to challenge
factual findings or the incorrect application of settled law to the facts by lower courts.26
Additionally, a factual dispute does not become a constitutional issue because it has
been clothed as a constitutional issue. 27
[40] In my view, the applicant’s application fa lls to be dismissed and costs should
follow the result.
Order
[41] The following order is made:
Leave to appeal is refused with costs, including the costs of two counsel.
25 Id at para 36.
26 Mankayi v AngloGold Ashanti Ltd [2011] ZACC 3; 2011 (3) SA 237 (CC); 2011 (5) BCLR 453 (CC) at para 12.
27 National Education Health and Allied Workers Union (NEHAWU) v University of Cape Town [2002] ZACC
27; 2003 (3) SA 1 (CC); 2003 (2) BCLR 154 at para 14.
For the Applicant:
For the First Respondents:
M Manala and M Matlapeng
Instructed by Lamola Attorneys
N Cassim SC and W Van Aswegen
Instructed by Peyper Attorneys