MEC for Education in Gauteng Province and Other v Governing Body of Rivonia Primary School and Others (CCT 135/12) [2013] ZACC 34; 2013 (6) SA 582 (CC); 2013 (12) BCLR 1365 (CC) (3 October 2013)

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[2013] ZACC 34
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MEC for Education in Gauteng Province and Other v Governing Body of Rivonia Primary School and Others (CCT 135/12) [2013] ZACC 34; 2013 (6) SA 582 (CC); 2013 (12) BCLR 1365 (CC) (3 October 2013)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 135/12
[2013] ZACC 34
In the matter between:
MEMBER OF THE EXECUTIVE COUNCIL
FOR EDUCATION IN GAUTENG PROVINCE
........................................
First
Applicant
HEAD OF DEPARTMENT: GAUTENG DEPARTMENT
OF EDUCATION
.....................................................................................
Second
Applicant
DISTRICT
DIRECTOR JOHANNESBURG EAST D9:
GAUTENG DEPARTMENT OF EDUCATION
.......................................
Third
Applicant
and
GOVERNING BODY OF THE RIVONIA PRIMARY SCHOOL
..........
First
Respondent
RIVONIA PRIMARY SCHOOL
..........................................................
Second
Respondent
MS
CELE
.................................................................................................
Third
Respondent
MR
MACKENZIE
.................................................................................
Fourth
Respondent
MS
DRYSDALE
.......................................................................................
Fifth
Respondent
and
EQUAL EDUCATION
........................................................................
First
Amicus Curiae
CENTRE FOR CHILD LAW
..........................................................
Second
Amicus Curiae
SUID AFRIKAANSE ONDERWYSERSUNIE
...............................
.Third
Amicus Curiae
Heard on : 9 May 2013
Decided on : 3 October 2013
JUDGMENT
MHLANTLA AJ (Moseneke DCJ, Bosielo AJ, Froneman J, Khampepe J,
Nkabinde J and Skweyiya J concurring):
Introduction
Section 29 of the Constitution guarantees everyone the right to a
basic education.
1
That is the promise. In reality, a radically unequal distribution
of resources ‒ related to a history of systematic
discrimination ‒ still makes this constitutional guarantee
inaccessible for large numbers of South Africans. The impact
of
this painful legacy was recognised by this Court in
Ermelo
2
as follows:
“
Apartheid
has left us with many scars. The worst of these must be the vast
discrepancy in access to public and private resources.
The cardinal
fault line of our past oppression ran along race, class and gender.
It authorised a hierarchy of privilege and disadvantage.
Unequal
access to opportunity prevailed in every domain. Access to private
or public education was no exception. While much remedial
work has
been done since the advent of constitutional democracy, sadly, deep
social disparities and resultant social inequity
are still with
us.”
3
Continuing
disparities in accessing resources and quality education perpetuate
socio-economic disadvantage, thereby reinforcing
and entrenching
historical inequity.
4
The question we face as a society is not whether, but how, to
address this problem of uneven access to education. There are

various stakeholders, a diversity of interests and competing
visions. Tensions are inevitable. But disagreement is not a bad

thing. It is how we manage those competing interests and the
spectrum of views that is pivotal to developing a way forward.
The
Constitution provides us with a reference point ‒ the best
interests of our children.
5
The trouble begins when we lose sight of that reference point. When
we become more absorbed in staking out the power to have
the final
say, rather than in fostering partnerships to meet the educational
needs of children.
This
case is a reflection of that type of failure. The issues arise from
a school admissions dispute that occurred in 2010.
The dispute has
brought to the fore the right of learners to access basic
education. It requires us to strike an appropriate
balance between
the powers and duties of provincial education departments and
school governing bodies. Implicated in this are
the interests of
parents in the quality of their children’s education, and the
state’s obligation to ensure that
all learners have access to
basic schooling.
Parties
The
applicants are functionaries in the Gauteng Department of Education
(Department). The first applicant is the Member of the
Executive
Council for Education in the Province of Gauteng (Gauteng MEC). The
second applicant is the Head of the Department
of Education in the
Province of Gauteng (Gauteng HOD). The third applicant is the
District Director Johannesburg East D9: Gauteng
Education
Department (District Director).
The
first respondent is the Governing Body of the Rivonia Primary
School (Rivonia Governing Body). The second respondent is
Rivonia
Primary School (Rivonia Primary). For ease of reference, I say “the
school” when referring to the first
and second respondents
jointly.
The
third and fourth respondents are the parents of the learner whose
placement at Rivonia Primary is in dispute. The fifth
respondent is
the principal of Rivonia Primary (principal).
Equal
Education is a movement of learners, parents and community members.
It advocates for quality and equality in the South
African
education system. The Centre for Child Law is an organisation
established to promote child law and uphold the rights
of children
in South Africa. Both were admitted jointly as the first and second
friends of the court, or amici curiae.
The Suid
Afrikaanse Onderwysersunie (Onderwysersunie), admitted as the third
amicus curiae, is a registered trade union for
educators and school
administrators. The Onderwysersunie has more than 34 000
members nationwide, comprising employees
from both public and
private schools.
Background
Rivonia
Primary is a public school situated in a historically privileged
suburb of Johannesburg. In 2010, a prospective Grade
1 learner
residing within the feeder-area
6
of Rivonia Primary was unsuccessful in finding placement at that
school for the academic year starting in 2011. According to
the
school, it had reached its stated capacity of 120 learners for
the grade, as provided for in its admission policy.
7
The learner was accordingly placed on the waiting list.
8
The mother of the learner, dissatisfied with the admission
processes, complained to the Department. Her complaints set off
a
range of meetings and correspondence involving the Department, the
parents and the school from September to November 2010.
By
late November 2010, the Department and the school had seemingly
settled on the view that the learner had been properly placed
on
the waiting list and would simply have to wait her turn.
9
On 5
November 2010, in the course of the fray, the mother of the learner
also lodged an appeal with the Gauteng MEC. Due to
admitted
administrative failures within the Department, the appeal was only
brought to the attention of the Gauteng MEC in
late January 2011,
at which stage the provincial school term had already begun. The
Gauteng MEC then referred the matter to
the Gauteng HOD.
10
Notwithstanding the resolution that had been reached at the end of
November 2010 between the Department and the school, the
referral
brought the dispute to life again.
When the Gauteng HOD eventually considered the matter, in February
2011, the school year was well underway. By this time the
learner
had been enrolled at a private school, and Rivonia Primary’s
‘tenth-day statistics’ had become available.
11
It was conveyed to the Gauteng HOD that, according to the tenth-day
statistics, the school had admitted 124 learners and had
five Grade
1 classes. This meant that there were 24 or 25 learners per Grade 1
class. The Gauteng HOD took the view that the
tenth-day statistics
demonstrated that, notwithstanding the provisions of its admission
policy which purported to restrict
Grade 1 enrolment to 120
learners, Rivonia Primary had the capacity to admit the additional
learner in one of its five Grade
1 classes. Purporting to exercise
his powers in terms of provincial regulations,
12
the Gauteng HOD proceeded to overturn the refusal of the learner’s
application and issued an instruction to the school
that the
learner be admitted immediately.
13
As a
result, on the morning of 7 February 2011, some four weeks into the
new school year, the mother of the learner arrived
at Rivonia
Primary with her daughter in full school uniform. She insisted that
the child be admitted to the school. The principal
refused and
explained that an urgent meeting of the Rivonia Governing Body had
been called to resolve the issue.
On 8
February 2011, the Gauteng HOD purported to withdraw the
principal’s admission function by delegating it to another

official. The Department’s representatives proceeded to take
control of the situation and physically placed the learner
in one
of the school’s Grade 1 classrooms, seating her at an empty
desk that had been installed for a learner with attention
and
learning difficulties.
The
principal was later subjected to a disciplinary hearing for not
complying with the Gauteng HOD’s instruction. She
eventually
pleaded guilty, was given a final warning and had a month’s
salary deducted.
14
High Court
The
school approached the South Gauteng High Court, Johannesburg (High
Court) on an urgent basis for declaratory and interdictory
relief
aimed at the Department’s decision to override the school’s
admission policy, the forced admission of the
learner and the
withdrawal of the principal’s admission function. The school
hinged its argument on the power afforded
to governing bodies in
section 5(5) of the South African Schools Act
15
(Schools Act), which provides:
“
Subject
to this Act and any applicable provincial law, the admission policy
of a public school is determined by the governing
body of such
school.”
The
school asserted that determining the capacity of a school is an
inherent and necessary incident of any admission policy.
Further,
there was no statutory or other legal power given to the Gauteng
MEC or Gauteng HOD to determine the capacity of a
public school.
Therefore, school governing bodies have the sole and final say on
the maximum capacity of a school, and the
Gauteng HOD lacked the
power to admit a learner to the school in excess of the capacity
fixed in its admission policy.
The
High Court (per Mbha J) held that section 5(5) of the Schools Act
does not give a school governing body the unqualified
and exclusive
power to determine finally the school’s maximum capacity.
Rather, in the light of both the scheme of the
Schools Act and
the relevant provincial regulations, the power to determine the
maximum capacity of a public school in
the Gauteng Province vests
in the Department.
The
High Court concluded that the Gauteng MEC is the ultimate arbiter
as to whether a learner should be admitted to a public
school, and
that the Department is empowered to intervene where necessary to
ensure that children threatened with being deprived
of access to
schooling may be accommodated. On the facts of the present case,
the Court was satisfied that the Department had
acted fairly and
reasonably.
Regarding
the withdrawal of the principal’s admission function, the
High Court held that the withdrawal was arbitrary
and set it aside.
The Department did not cross appeal this aspect of the order,
and it is no longer an issue in this Court.
Supreme Court of Appeal
Dissatisfied
with the outcome, the school appealed to the Supreme Court of
Appeal. That Court (per Cachalia JA) unanimously
upheld the appeal.
It declared that the instruction given to the principal to admit
the learner, contrary to the school’s
admission policy, was
unlawful, as was the placing of the learner in the school.
16
The Court held that section 5(5) of the Schools Act expressly
provides that the admission policy of a school is determined
by its
governing body, and that this necessarily includes the
determination of its capacity. This was made, the Court said,
clear
by
section 5A of the Schools Act, which allows
the Minister of Basic Education to prescribe minimum norms and
standards for “the
capacity of a school in respect of the
number of learners a school can admit”. According to the
Supreme Court of Appeal,
the fact that a school governing body is
enjoined, in terms of section 5A(3), to compile and review its
admission policy in
accordance with those norms and standards
leaves no doubt that the admission policy of a school governing
body includes determining
the capacity of the school.
The
Supreme Court of Appeal accepted that the Gauteng HOD, acting
through the relevant principal, is responsible for the

administration of the admission process. But the Court reasoned
that this must necessarily be done in accordance with the admission

policy of the school governing body. Having determined its
admission policy, it remains for the Rivonia Governing Body to
apply it.
The
Supreme Court of Appeal considered section 5(9) of the Schools Act,
read with Regulation 14 of the Gauteng Regulations,
which allows an
appeal to the Gauteng MEC where admission is refused by a
principal. It also considered Regulation 13(1)(a),
which gives the
Gauteng HOD the authority to set aside the decision of the
principal before the appeal. All of this, held the
Court, had to be
done in accordance with the admission policy. The Court held that,
if the Gauteng Regulations purported to
vest the Department with
the power to compel a school to admit learners in excess of the
capacity fixed in the admission policy,
the Regulations would be
contrary to the statute.
The
Court rejected the Department’s reliance on section 3(3) and
(4)
17
of the Schools Act to contend that the provincial government has
the final say on the capacity of a school. Properly understood,

said the Supreme Court of Appeal, section 3 deals with
compulsory attendance and the obligation to ensure the provision
of
infrastructure for that purpose. This, held the Court, is
completely unrelated to the admission policy of a school (dealt

with in section 5 of the Schools Act) and to the authority to
override it.
Further,
the Court commented that it would be inappropriate for the
Department to be vested with a power to use the additional
capacity
at Rivonia Primary, because that capacity had been created through
additional funds raised by the Rivonia Governing
Body. It would be
a disincentive for parents to contribute to school funds if the
increased capacity created by these funds
could be used to
accommodate more learners than the Rivonia Governing Body wanted to
admit.
The
Department approached this Court seeking leave to appeal against
the judgment and order of the Supreme Court of Appeal.
This Court
Applicants’ submissions
According
to the applicants, the Supreme Court of Appeal erred in its
interpretation of the provisions of the Schools Act. Whilst
the
applicants no longer contest that the governing
body of a school is entitled to determine capacity as part of its
admission
policy, they submit that the power vested in governing
bodies by section 5(5) should not be overstated.
They
contend that, although
the governing body makes
admission policies, the Schools Act and provincial legislation make
it clear that a decision to reject
a learner taken at school level
is never final, but is rather subject to confirmation by the
Department.
18
Further,
the Department is under a constitutional and statutory obligation
to ensure that the existing public-school infrastructure
in the
province is utilised as efficiently as possible. The Department
cannot allow a situation where some public schools operate
at
levels considerably below the capacity that their infrastructure
can and should support, while other public schools are
overcrowded
and some learners are unable to find places.
The
applicants contend that this interpretation of the applicable
statutory framework is one required by section 39(2)
of the
Constitution
19
read with the fundamental rights to equality and education and the
duties resting on the state to “
respect,
protect, promote and fulfil the rights in the Bill of Rights”.
20
This is because the fundamental rights to
education and equality require
school capacity to be
determined ultimately at a systemic level by a provincial education
department, and not at the level of
an individual school by its
governing body.
Respondents’ submissions
The
respondents support the Supreme Court of Appeal’s reasoning
that the Schools Act vests the power to determine
the capacity
of a school in the school governing body. They submit that the
applicants’ interpretation of the Gauteng
Regulations
conflicts with national legislation, and that the national
legislation must prevail. In any event, the Gauteng
HOD did not
have the right simply to ignore the admission policy and instruct
the principal to admit the learner. The Gauteng
HOD should have
taken steps to set the admission policy aside or withdraw the power
from the Rivonia Governing Body.
Further,
the respondents emphasise that the scheme of the legislation
provides other mechanisms through which the Department
should be
dealing with the problem of placing additional learners in public
schools. There is no evidence that the Department
attempted to use
these mechanisms. The real problem lies with the Department’s
general failure to fulfil its obligations
in terms of the Schools
Act.
Leave to appeal and issues for determination
It
is clear that this matter raises important constitutional issues
concerning the education of children, the determination
of the
roles and powers of various stakeholders in the governance of
schools and the lawful exercise of those powers.
21
There are reasonable prospects of success and it is in the
interests of justice that leave to appeal be granted.
22
There
are three material issues for determination by this Court. The
first is whether the Gauteng HOD was vested with decision-making

power in relation to the admission of learners to public schools.
If so, the second question is whether the Gauteng HOD was
empowered
to depart from the admission policy of the Rivonia Governing Body
and admit the learner contrary to the capacity
determination in
that policy. And if so, the third question is whether the Gauteng
HOD’s exercise of that power to admit
the learner was
reasonable and procedurally fair.
The
determination of the first issue requires a consideration of the
relevant statutory context, which is where my analysis
begins.
Statutory context: powers relating to determination of school
capacity and admissions
The core of this matter requires a consideration of the respective
roles of a school governing body and a provincial department
in
determining admissions to, and the capacity of, a school. The entry
point into this enquiry is the Schools Act. The primary
purpose of
the Schools Act is to provide for the organisation, governance and
funding of schools and to give effect to the
constitutional right
to education.
23
The
Schools Act envisages that public schools are run by a three-tier
partnership consisting of: (i) national government; (ii)
provincial
government; and (iii) the parents of the learners and the members
of the community in which the school is located.
As this Court
stated in
Ermelo
:
“
An
overarching design of the Act is that public schools are run by
three crucial partners. The national government is represented
by
the Minister for Education whose primary role is to set uniform
norms and standards for public schools. The provincial government

acts through the MEC for Education who bears the obligation to
establish and provide public schools and, together with the Head
of
the Provincial Department of Education, exercises executive control
over public schools through principals. Parents of the
learners and
members of the community in which the school is located are
represented in the school governing body which exercises
defined
autonomy over some of the domestic affairs of the school.”
24
(Footnotes omitted.)
Following
the three-tier approach, when the Schools Act addresses issues of
admissions and capacity, it does so with reference
to national
government, provincial government and school governing bodies.
At a
national level, the Minister of Basic Education may prescribe
minimum uniform norms and standards for the “capacity
of a
school in respect of the number of learners a school can admit”,
25
including norms and standards relating to class size, the number of
teachers, and utilisation of available classrooms.
26
Those norms and standards have to date not been prescribed and,
regrettably, this case demonstrates the difficulties that may
arise
in their absence.
At a
provincial level, section 3(3) of the Schools Act places an
obligation on the relevant provincial MEC to ensure that “there

are enough school places so that every child who lives in his or
her province can attend school”. If the MEC cannot comply

with this obligation because of a lack of capacity existing at the
commencement of the Schools Act, then, in terms of section
3(4),
“he or she must take steps to remedy such lack of capacity as
soon as possible and must make an annual report to
the Minister on
the progress achieved in doing so.” Further, section 58C
of the Schools Act contemplates that the
MEC and the head of
department will play a role in ensuring that the admission policy
determined by the school governing body
complies with the national
norms and standards, where prescribed.
27
In terms of section 58C(6), the head of department is under an
obligation to determine the minimum and maximum capacity
of a
public school in accordance with the national norms and standards
contemplated in section 5A, and to communicate the determination
to
the school governing body and the principal.
At
school level, the governing body is responsible for determining the
admission policy of that school. This is provided for
in section 5
of the Schools Act, which reads in relevant part:
“
(5)
Subject to this Act and any applicable provincial law, the admission
policy of a public school is determined by the governing
body of
such school.
. . .
(7) An application for the
admission of a learner to a public school must be made to the
education department in a manner determined
by the Head of
Department.
(8) If an application in terms
of subsection (7) is refused, the Head of Department must inform the
parent in writing of such
refusal and the reason therefor.
(9) Any learner or parent of a
learner who has been refused admission to a public school may appeal
against the decision to the
Member of the Executive Council.”
It is
immediately clear from section 5(5) that the governing body of a
school determines the admission policy. That this may include
a
determination as to the capacity of the school is no longer a
contentious point between the parties. Indeed, as the Supreme
Court
of Appeal pointed out, having regard to section 5A(3) of the Schools
Act,
28
a governing body’s admission policy may include a
determination as to capacity. And it is significant that school
governing
bodies are afforded this role. As the Onderwysersunie
emphasised before us, the governing body is in a position to have
regard,
in an admission policy, to
a range of
interconnected factors relating to the planning and governance of
the school as a whole.
However, this is only the starting
point. Neither the Schools Act nor any related national legislation,
such as the National Education
Policy Act,
29
goes further than sections 5(5) and 5A(3) in describing a more
extensive role for the governing body in the implementation
of the
admission policy or in the determination of capacity.
Rather,
there is an important textual qualifier in section 5(5) subjecting
a school governing body’s power to other provisions
of the
Schools Act, as well as to applicable provincial law.
The
effect of this is that
the determination of admissions may
be subject to provincial government’s intervention in terms
of the Schools Act, or
applicable provincial law if the
intervention is provided for in those instruments. Of course, it
should be emphasised that
any powers of the governing body must
also “be understood within the broader constitutional scheme
to make education
progressively available and accessible to
everyone, taking into consideration what is fair, practicable and
enhances historical
redress.”
30
Following from the above, subsections 5(7) to (9) of the Schools
Act recognise that provincial government plays a direct role
when
it comes to the implementation of a learner’s admission to
the school. In terms of these provisions, an application
for the
admission of a learner to a public school is made to the Department
(in a manner determined by the head of department),
31
and it is the head of department who is responsible for informing a
parent of a refusal of an application and the reasons for
it.
32
In
terms of the Schools Act, the implementation of the admission
policy at the school level is the responsibility of the principal,

acting under the authority of the head of department. This follows
from sections 16(3) and 16A(2)(a)(vi) of the Schools Act.

Section 16(3) provides that, “[s]ubject to [the Schools
Act] and any applicable provincial law, the professional
management
of a public school must be undertaken by the principal under the
authority of the head of department.” That
the professional
management of a school includes the implementation of policy is set
out in section 16A(2)(a)(vi), which provides:
“
The
principal must in undertaking the professional management of a
public school as contemplated in section 16(3), carry out duties

which include, but are not limited to the implementation of policy
and legislation”.
Thus, while the school governing body determines admission policy,
individual decisions on admission are taken only provisionally
at
school level, by the principal acting under the authority of the
head of department. Where the need arises, section 5(9)

provides a safety valve, which allows the MEC to consider admission
refusals and overturn an admission decision taken at school
level.
Insofar
as applicable provincial law is concerned, the Gauteng Regulations
are pertinent
.
33
At the relevant time, Regulation 13(1) of the Gauteng Regulations
provided that if a principal, acting on behalf of the Gauteng
HOD,
refused to admit a learner to a school, he or she had to provide
reasons in writing to the Gauteng HOD and the parent.
The Gauteng
HOD would be required either to confirm or to set aside the
decision made by the principal.
34
A learner or parent who was dissatisfied with the decision of the
Gauteng HOD was entitled, in terms of Regulation 14, to an
appeal
to the Gauteng MEC, who then had to make a final determination.
35
Regulation 13(1) provided that the Gauteng HOD could overturn the
rejection of a learner’s admission to a school. The
vexing
question is whether the Gauteng HOD was entitled to act contrary to
the school’s admission policy when he exercised
that
decision-making power.
Status of a school’s admission policy
This matter is the latest instalment in a trilogy of school-related
cases in this Court which, at their heart, concern the
powers of a
provincial department in relation to policies adopted by school
governing bodies.
36
The question that keeps coming back to this Court is whether a head
of department is entitled to override or depart from a
policy
adopted by a school governing body.
In
Ermelo
, the head of department was unhappy with the
exclusionary effect that a school’s single-medium language
policy had on
learners. The head of department relied on section 25
of the Schools Act in appointing an interim committee to determine
a
new language policy for the school so as to accommodate both
English- and Afrikaans speaking learners. The Court held that

the head of department acted unlawfully, in that section 25 of the
Schools Act could not properly be invoked in the circumstances.
In
Welkom
, the head of department was unhappy with the
exclusionary effect that certain schools’ pregnancy policies
had on pregnant
learners. Khampepe J
37
held that the head of department was not empowered by any statutory
provision to summarily re admit a learner to a school.
The
head of department could have relied on section 22(1) to
withdraw the relevant function from the school governing
body, or
section 22(3) if he felt that the matter was urgent, but he
did not do so. In the circumstances, the instructions
issued by the
head of department, which effectively required the principal to
ignore the two schools’ pregnancy policies,
were unlawful. In
a separate concurring judgment, Froneman J and Skweyiya J
38
agreed that the head of department acted unlawfully. They
emphasised that the parties had failed to engage with each other
in
good faith, to uphold the principles of co-operative governance,
and to comply with their concomitant duty to avoid litigation.
Distilling
the core of these judgments, the principles that have emerged from
the case law can be set out as follows:
Where
the Schools Act empowers a governing body to determine policy in
relation to a particular aspect of school functioning,
a head of
department or other government functionary cannot simply override
the policy adopted or act contrary to it.
39
This is so even where the functionary is of the view that the
policies offend the Schools Act or the Constitution. But this
does
not mean that the school governing body’s powers are
unfettered, that the relevant policy is immune to intervention,
or
that the policy inflexibly binds other decision-makers in all
circumstances.
40
Rather,
a functionary may intervene in a school governing body’s
policy making role or depart from a school governing
body’s
policy, but only where that functionary is entitled to do so in
terms of powers afforded to it by the Schools
Act or other relevant
legislation. This is an essential element of the rule of law.
41
Where
it is necessary for a properly empowered functionary to intervene
in a policy-making function of the governing body (or
to depart
from a school governing body’s policy), then the functionary
must act reasonably and procedurally fairly.
42
Further,
given the partnership model envisaged by the Schools Act, as well
as the co-operative governance scheme set out in
the Constitution,
the relevant functionary and the school governing body are under a
duty to engage with each other in good
faith on any disputes,
including disputes over policies adopted by the governing body. The
engagement must be directed towards
furthering the interests of
learners.
43
What
then of the present debacle?
The applicants
submit that an admission policy is not law, but merely policy. As
such, it guides decision-making but cannot
bind the Department
inflexibly. The Gauteng HOD was therefore entitled, when exercising
his constitutional and statutory powers,
to depart from a capacity
determination provided for in the admission policy.
The
school submits that interpreting Regulation 13(1) to afford the
Gauteng HOD the power to act contrary to the admission policy
would
result in a conflict between national legislation (the Schools Act
and the National Education Policy Act)
44
on the one hand, and provincial delegated legislation on the other.
It contends that the relevant national statutory instruments

envision that the governing body of a school is responsible for the
implementation of its admission policy, whereas the Department
is
merely responsible for the administration of the admission policy
process.
As
my analysis of subsections 5(7) to (9) above demonstrates,
45
I am not persuaded by this view. Rather, the scheme of the Schools
Act in relation to admissions indicates that the Department

maintains ultimate control over the implementation of admission
decisions. And the Gauteng Regulations afforded the Gauteng
HOD the
specific power to overturn a principal’s rejection of a
learner’s application for admission.
46
This
finding – that the Gauteng HOD did have the power to admit a
learner who had been refused admission to the school
– is a
key distinguishing factor from the circumstances in
Welkom
.
To emphasise, in that case the head of department had no power or
authority to ignore the relevant schools’ policies,
and
thereby summarily to order the re-admission of the excluded
learners. That is why Khampepe J held that the intervention,
which
effectively ignored the schools’ policies, was unlawful.
However,
having found that the Gauteng HOD was lawfully empowered to admit
learners to Rivonia Primary, the suggestion that
the
Gauteng HOD was rigidly bound by a school’s admission policy
when exercising that power is untenable.
That a policy
serves as a guide to decision-making and cannot bind the
decision-maker inflexibly was well expressed in
MEC for
Agriculture v Sasol Oil
,
47
where the Supreme Court of Appeal held:
“
As
explained in
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs
,
[
48
]
a court should in these circumstances give due weight to the policy
decisions and findings of fact of such a decision-maker.
Once
it is established that the policy is compatible with the enabling
legislation, as here, the only limitation to its application
in a
particular case is that it must not be applied rigidly and
inflexibly
”.
49
(Footnote omitted and emphasis added.)
In
Akani v Pinnacle Point Casino
50
the relationship between policy and legislation was soundly
expressed as follows:
“
[L]aws,
regulations and rules are legislative instruments, whereas policy
determinations are not
.
As
a matter of sound government, in order to bind the public, policy
should normally be reflected in such instruments.
Policy
determinations cannot override, amend or be in conflict with laws
(including subordinate legislation). Otherwise the separation

between Legislature and Executive will disappear.”
51
(Emphasis added.)
In
conclusion, the general position is that admission policies must be
applied in a flexible manner. The capacity determination
as set out
in Rivonia Primary’s admission policy could not have
inflexibly limited the discretion of the Gauteng HOD.
If there were
good reasons to depart from the policy, it was always open to the
principal or the Gauteng HOD to do so.
52
Indeed in this case, the school itself applied the policy flexibly
when it admitted four extra learners, thus exceeding the
maximum
capacity set in its policy.
The
Supreme Court of Appeal therefore erred when it concluded that the
Schools Act placed admission decisions squarely in the
hands of the
Rivonia Governing Body and that the Gauteng HOD could not override
the admission policy. In other words, the Supreme
Court of Appeal
erred in finding that the Gauteng HOD could only exercise the
Regulation 13(1) power “in accordance
with the [school’s
admission] policy.”
53
However, a decision to overturn an admission decision of a
principal, or depart from a school admission policy, must be

exercised reasonably and in a procedurally fair manner. In this
regard, O’Regan J’s statement in
Premier,
Mpumalanga
54
is particularly apt:
“
This
case highlights the interaction between two constitutional
imperatives, both indispensable in this period of transition.
The
first is the need to eradicate patterns of racial discrimination and
to address the consequences of past discrimination which
persist in
our society, and the second is the obligation of procedural fairness
imposed upon the government. Both principles
are based on fairness,
the first on fairness of goals, or substantive and remedial
fairness, and the second on fairness in action,
or procedural
fairness. A characteristic of our transition has been the common
understanding that both need to be honoured.”
55
It is to the analysis of procedural fairness that I now turn.
Procedural fairness
It
has not been contested, and rightly so, that the decision of the
Gauteng HOD to admit the learner in terms of Regulation
13(1)(a)
constitutes administrative action and that the Department has a
duty to act fairly.
56
The Department submits that the requirements of procedural fairness
were satisfied through the scheme of Regulation 13(1)(a),

which requires a principal to provide written reasons for his or
her decision to refuse admission to a learner. This the principal

did in her letter dated 5 November 2010. According to the
Department, it would not be feasible to require a further hearing

in every case where the Gauteng HOD exercises the power to confirm
or set aside the principal’s decision. In this regard,
the
Department argues as follows:
“
Nor
would it have been feasible to have required any further hearing at
the Regulation 13 stage. In the scheme of the 2001
Regulations,
Regulation 13(1)(a) operated automatically in respect of every
learner who was refused admission to any Gauteng
public school in
the admissions process. So the Head of Department (and his/her
delegated officials) would have had to take literally
thousands of
decisions in terms of Regulation 13(1) within a short period of time
between
the end of the school based admissions process and the start of the
next school year
.
It would have been wholly impractical to have afforded the learner
and the school a dedicated hearing in each of these thousands
of
cases. Any requirements of procedural fairness were satisfied by
providing for the Head of Department to have regard to the
parents’
application and the reasons furnished by the principal for the
refusal.” (Emphasis added.)
In
addition, the Department contends that there were no special
circumstances in this case requiring any further consultation
with
the school. This is because the Department and its representatives
had already consulted with the school from September
to November
2010.
57
It
is well established that the requirements of procedural fairness
must be determined flexibly, having regard to the facts
of the
particular case.
58
The Department’s concern that it would be overly onerous to
require a further hearing in every instance when the Regulation

13(1)(a) power is exercised is an understandable one. Indeed as
this Court recognised in
Joseph
:
59
“
The
spectre of administrative paralysis . . . is a legitimate concern.
Administrative efficiency is an important goal in a democracy,
and
courts must remain vigilant not to impose unduly onerous
administrative burdens on the State bureaucracy.”
60
(Footnotes omitted.)
However,
for the reasons that follow, it is plain to me that the Gauteng HOD
was required to go further in the circumstances of
this case.
First and most important: timing. As the Department itself has
suggested, the Gauteng HOD exercises the power contemplated
in
Regulation 13(1) mainly in the period “
between
the end of the school based admissions process and the start of the
next school year.” This makes sense. The purpose
of the power
afforded in Regulation 13(1)(a) is to ensure that a learner’s
refusal of entry to a public school can be
corrected, where
necessary, so as to ensure placement of the learner in a public
school. Ideally this should take place before
the school year has
begun.
61
This aligns with the view expressed in
Ermelo
that
“[p]rocuring enough school places implies proactive and
timely steps by the Department. The steps should be taken
well
ahead of the beginning of an academic year.”
62
However,
the circumstances of this case demonstrate a significant departure
from what may have been expected in the normal course.
Due to the
Department’s admitted administrative failures, the appeal
made to the MEC on 5 November 2010 only filtered
down to the
Gauteng MEC’s office in late January 2011, and was responded
to by the Gauteng HOD in February 2011, once
the school year had
already begun. By this time, the situation at the school was likely
to have been different from the situation
at the time when the
principal offered reasons, in her letter dated 5 November 2010, for
the rejection of the learner’s
application. Almost four weeks
into the school year, the dictates of fairness required affording
the school an opportunity
to address the Gauteng HOD on the impact
that such a placement would have on factors such as the quality of
education of other
learners at the school, access to resources for
the learner herself, and the time that may have been required to
accommodate
the learner effectively. This opportunity was never
afforded to the school.
Second,
and related to the element of timing, the Gauteng HOD based his
decision on the school’s tenth-day statistics.
Such
statistics became available long after the principal had submitted
her reasons for the refusal of the learner’s
application as
per the 5 November 2010 letter. The school therefore
had no opportunity to consider or make representations
on the
Gauteng HOD’s interpretation of those statistics, or on the
implications of the Gauteng HOD acting on the basis
of them. I am
therefore not persuaded by the submission that the
Department
was “well aware of the school’s attitude in relation to
the application for the learner’s admission”.
By the
time the Gauteng HOD actually exercised his power in terms of
Regulation 13(1)(a) – which was almost three months
after the
principal’s letter of 5 November 2010
‒
the
school’s attitude in relation to the tenth-day statistics was
unknown.
Third, I am unpersuaded by the Department’s argument, upheld
by the High Court, that the consultations held from September
to
November 2010 satisfy the requirement of procedural fairness
in this case. Not only were these discussions held completely

independently of the Gauteng HOD’s exercise of his
Regulation 13(1)(a) power, but the outcome of those
discussions
actually lends support to the school’s position.
The final meeting between representatives of the Department and the

school regarding the learner’s placement was held on 30
November 2010. There was a dispute on the papers regarding the
details of that meeting. For our purposes, however, it seems to be
common cause that the school’s position (that the learner

would have to wait her turn on the waiting list) was acknowledged,
and that the District Director had indicated a willingness
to
assist with the alternative placement of the learner should the
parent of the learner be in agreement with such a proposal.
63
It is worth noting that the Supreme Court of Appeal made a finding
that at the meeting of 30 November 2010 “it appear[ed]
to
have been accepted that the child would have to wait her turn until
a place became available.”
The
Gauteng HOD’s decision in February 2011 constituted an
about-turn from the impression which had been created. It came
as a
rude shock to the school, which had already settled into the school
year thinking the matter had been resolved. This is
not to say that
the Gauteng HOD was not entitled to exercise his power when he did.
But the circumstances affect what the demands
of procedural
fairness were when he made his final decision.
As I see it, the Gauteng HOD should have afforded the school an
opportunity to make representations and respond to the tenth-day

statistics report, before the learner was forcibly placed in the
school. In the result, I find that the decision by the Gauteng
HOD
was not exercised in a procedurally fair manner.
64
Moreover, little attention seems to have been paid to the
partnership and cooperation framework envisaged in the Schools Act,

which, as I discuss below, is of essential importance when
confronting capacity constraints in our public schooling system.
Systemic capacity issues
Apart
from the specific procedural fairness flaws in the circumstances of
this case, it is necessary to emphasise that, in disputes
between
school governing bodies and national or provincial government,
cooperation is the required general norm. Such cooperation
is
rooted in the shared goal of ensuring that the best interests of
learners are furthered and the right to a basic education
is
realised.
Both
provincial government and individual schools have to grapple with
systemic capacity problems and their impact on education.
At school
level, parents and governing bodies have an immediate interest in
the quality of children’s education. And
they play an
important role in improving that quality by supplementing state
resources with school fees. However, the needs
and interests of all
other learners cannot be ignored. As was recognised in
Ermelo
:
“
The
governing body of a public school must . . . recognise that it is
entrusted with a public resource which must be managed not
only in
the interests of those who happen to be learners and parents at the
time, but also in the interests of the broader community
in which
the school is located, and in the light of the values of our
Constitution.”
65
At
the provincial level, government is under an obligation to ensure
that there are enough school places for every child to
attend
school. However, this obligation must, as the Onderwysersunie
submitted, take into account the fact that determination
of
capacity is a complex process that applies not only to the school
as an entity, but also to each and every grade and class
within the
school. It involves a consideration of a range of interwoven
factors relating to the planning and governance of
the school as a
whole. Planning and coordination in partnership with school
governing bodies is crucial.
Where
a provincial department requires a school to admit learners in
excess of the limits stated in the school’s admission
policy,
there must be proper engagement between all parties affected. This
principle of cooperation permeated this Court’s
approach in
Ermelo
and was reaffirmed recently by the majority of this
Court in
Welkom
, where Khampepe J stated:
“
Given
the nature of the partnership that the Schools Act has created, the
relationship between public school governing bodies
and the state
should be informed by close cooperation, a cooperation which
recognises the partners’ distinct but inter-related
functions.
The relationship should therefore be characterised by consultation,
cooperation in mutual trust and good faith. The
goals of providing
high-quality education to all learners and developing their talents
and capabilities are connected to the
organisation and governance of
education. It is therefore essential for the effective functioning
of a public school that the
stakeholders respect the separation
between governance and professional management, as enshrined in the
Schools Act.”
66
The
concurring judgment of Froneman J and Skweyiya J placed a strong
emphasis on the relevant stakeholders’ constitutional
and
statutory obligation to engage in good faith before turning to the
courts. I can do no better than to repeat those sentiments:
“
It is
salutary to remember that although, formally, this case is a dispute
between the school governing bodies and the [head of
department],
their respective functions are to serve the needs of children in
education. Section 28(2) of the Constitution makes
it clear that the
best interests of children ‘are of paramount importance in
every matter’ concerning children. That
applies to education
too.
. . .
[W]e consider that there is a
constitutional obligation on the partners in education to engage in
good faith with each other on
matters of education before turning to
courts. In the present case they should have done so and that may
well have prevented
this long journey through the courts.
. . .
The Constitution and applicable
legislation thus require the partners in the governance and
management of schools to engage with
one another in mutual trust and
good faith on all material matters relating to that endeavour.”
67
(Footnotes omitted.)
This
case illustrates the damage that results when some functionaries
fail to take the general obligation to act in partnership
and
cooperation seriously. In the early stages of the tussle
there
was some engagement between the parties, albeit tense. The value of
that engagement was demonstrated by the understanding
between the
school and the Department reached at the end of November 2010.
By
contrast, the manner in which the Gauteng HOD thereafter exercised
his powers completely upended the process. The
heavy-handed
approach he used when making his decision raised the spectre that
the Department would use its powers to deal with
systemic capacity
problems in the province without any regard for the role of school
governing bodies in the Schools Act’s
carefully crafted
partnership model.
It created antagonism
and mistrust, causing the Rivonia Governing Body to recoil.
Equally
problematic was the Rivonia Governing Body’s reaction.
Desiring to safeguard its own authority, the school failed
to place
the interests of the learner first. Instead, it resorted to
litigation. Absent from the school’s founding papers
was any
reference to the best interests of the particular learner, and the
impact that the relief sought by the school would
have on her.
Rather, and quite ill-advisedly, the school not only sought a
declaratory order to establish the relative powers
of the Rivonia
Governing Body and the Department to determine admission capacity,
but also sought relief requiring the learner
to be placed in
another primary school until she could be accommodated at Rivonia
Primary. However, as counsel for the school
conceded before us,
ordinarily one additional learner would
not burden a school to the point of collapse.
In
this case there is particular reason to emphasise the duties of
co-operative governance and the impact they might have on
the
children concerned. The duty on the parties to cooperate and
attempt to reach an amicable solution is intimately connected
to
the best interests of the child. The failure of the Gauteng HOD and
the Rivonia Governing Body adequately to engage had
a direct effect
on the learner. I would imagine that starting Grade 1 is a
stressful and scary time for any child. Due
to the failure of the
parties to engage and reach agreement, the learner was physically
placed at a desk and was caught in
the middle of a disagreement
which may well have been very traumatising for her. To me this
highlights the fact that the principle
of co-operative governance
is not merely a tool to ensure smoother intra-governmental
relations, but one which has a direct
effect on the people whom the
government serves.
Both parties
could and should have done more to prevent the need for litigation.
As stated earlier, disagreement is not necessarily
a bad thing, and
we must expect that in trying to determine what the best interests
of learners are there may be differing
visions. But one organ of
state cannot use its entrusted powers to strong-arm others. All
sides are required to work together
in partnership to find workable
solutions to persistent and complex difficulties – and
resorting to court in every skirmish
is not going to help in that
process.
Disciplinary proceedings against the principal
An
application for the review of the disciplinary proceedings
instituted by the Department against the principal is not before

us. On this issue it is worth reiterating that, in the light of
this judgment, there is an expectation that all relevant parties

will take heed of this Court’s approach to school-based
disputes and will resolve them in as cooperative a manner as

possible.
Costs
The
appeal is upheld, and the Supreme Court of Appeal order is set
aside. However, given my conclusions relating to the manner
in
which the Gauteng HOD exercised his powers, I am of the view that
it would be fair that each party pays its own costs.
Order
The following order is made:
Leave
to appeal is granted.
The
appeal is upheld to the extent set out below.
The
order of the Supreme Court of Appeal is set aside and replaced with
the following order:
“
(a) It is declared that the Head of
Department of Education in the Province of Gauteng was empowered to
issue an instruction to
the principal of Rivonia Primary School to
admit the learner in excess of the limit in its admission policy.
(b) In exercising the power to instruct a principal of a public
school to admit a learner in excess of the limit in its admission

policy, the Head of Department of Education in the Province of
Gauteng must act in a procedurally fair manner.
(c) It is declared that the Head of Department of Education in the
Province of Gauteng did not act in a procedurally fair manner
when
he issued instructions to the principal of Rivonia Primary School to
admit the learner and when he placed the learner in
the school.”
There
is no order as to costs.
JAFTA J (Zondo J concurring):
This
case concerns a little black girl whose dream was to obtain
education at the school closest to her home. Standing in the
way of
realising that dream was an inflexible application of the school’s
policy that limited the number of learners
who could be admitted in
the first grade. This policy was adopted by the Governing Body of
Rivonia Primary School (governing
body) ostensibly to protect the
interests of the school and its learners.
The
school in question is a public school which falls under the
administration of the applicants who are all organs of state.
These
applicants have a constitutional obligation to “respect,
protect, promote and fulfil the rights in the Bill of
Rights.”
68
But this duty is also imposed on the school concerned and its
governing body because they too are organs of state. One of the

rights they are all obliged to protect and fulfil is the little
girl’s right to a basic education which she wanted to

realise.
69
These
parties, instead of cooperating and working towards discharging
their constitutional obligation, have fought over whether
the
school’s policy should be applied rigidly to exclude the girl
from the school and who between them had the final
say on whether
she could be admitted despite the fact that the maximum number of
learners to be admitted, set in the policy,
had been reached.
The
dispute between the school and its governing body on the one side
and the girl’s parents and the applicants on the
other,
escalated with no regard to what was in her best interests. From an
early stage relations were hostile between the girl’s
parents
and the school. Attempts by the applicants to have the girl
admitted to the school failed. Ultimately the applicants
adopted
robust action to force the school to admit her.
The dispute
When
the school refused to admit the girl, her mother approached the
applicants for intervention. It was this intervention which
gave
rise to the dispute between the school and the applicants. On being
forced to admit the learner the school approached
the High Court
for relief. They sought the review of the decision by the Head of
Department: Gauteng Department of Education
(Head of Department) to
admit the girl at the school on the basis that it was inconsistent
with the school’s policy and
therefore beyond his power.
They
also sought that the impugned decision be set aside on the basis
that it was procedurally unfair because the school or
its principal
was denied the opportunity to furnish reasons for not admitting the
learner. However, no facts were pleaded nor
was there evidence
furnished to support the latter claim. I return to this point
below. The High Court was not persuaded that
any of the claims was
established and consequently it dismissed the application.
The
governing body and the school appealed to the Supreme Court of
Appeal. The Supreme Court of Appeal approached the case on
the
footing that the principal question for determination was whether
the governing body could decide the number of learners
to be
admitted to the school.
70
The Court interpreted the relevant legislation in the context of
section 39(2) of the Constitution.
71
Having adopted a particular interpretation, the Supreme Court of
Appeal held that the power to determine the number of learners
to
be admitted at the school in question vests in its governing body.
The power of the Head of Department to intervene, so
it was held,
was limited to cases where the school has exercised its power
unreasonably, unconstitutionally or unlawfully.
72
Having
found that the refusal to admit the girl was done in terms of a
policy lawfully adopted by the governing body, the Supreme
Court of
Appeal issued the following order:
“
It is declared that the
instruction given to the principal of the Rivonia Primary School to
admit the learner contrary to the
school’s admission policy,
and the placing of the learner in the school, were unlawful.”
This
is the sole order that forms the subject matter of the appeal
before us. It determines the scope of the appeal because
in our law
an appeal ordinarily lies against orders only. The proposition is
so trite that no authority need be cited for it.
In this Court
I
have read the judgment prepared by my Colleague Mhlantla AJ (the
main judgment). I agree that leave to appeal must be granted
and
that the appeal ought to succeed. I also support setting aside the
order issued by the Supreme Court of Appeal and replacing
it with
an order declaring that the Head of Department was empowered to
instruct the principal to admit the learner in excess
of the limit
in the school’s admission policy. However, I do not agree
that the granting of the second and third declaratory
orders is
justified. In my respectful view the question whether the Head of
Department acted in a procedurally fair manner
in issuing the
instruction to the principal and in placing the learner in the
school without giving the school the opportunity
to make
representations on the tenth-day statistics was not an issue raised
in this Court by any of the parties.
Before
us the sole issue was whether the order issued by the Supreme Court
of Appeal was wrong. The parties themselves focused
on that order.
The applicants challenged the order while the school defended it.
In these circumstances I am unable to support
the second and third
declarators issued in the main judgment, even in the light of
procedural fairness having been mentioned
in argument. This is so
because procedural fairness was mentioned in the context of the
complaint made by the school in its
papers. It asserted that the
principal was denied the opportunity to give her reasons for
refusing to admit the learner.
It will be remembered that here we are concerned
with motion proceedings. It is a fundamental principle of our law
that the
notice of motion and founding affidavit, together with its
annexures, constitute pleadings and evidence which must justify the

grant of the relief sought.
73
Therefore, in the founding affidavit, the
applicant must set out facts that are sufficient to disclose the
cause of action relied
on and evidence establishing that cause of
action. In
Skjelbreds Rederi,
74
this principle was stated in these terms:
“
In
application proceedings the affidavits constitute not only the
evidence but also the pleadings and therefore these documents
should
contain, in the evidence they set out, all that would have been
necessary in a trial.”
75
Another
basic rule in application proceedings is that the facts necessary
to prove a claim must appear in the founding affidavit
and its
supporting documents. Hence the proposition that an applicant must
stand or fall by its petition and the facts alleged
in it.
76
However, in exceptional circumstances a court
may exercise its discretion to allow the applicant to supplement in
reply the
allegations in the founding affidavit.
77
It
is now convenient to refer to allegations in the founding affidavit
sworn to by the Deputy Chairperson of the governing body.
In
relevant part she states:
“
[The
learner] was enrolled as a Grade 1 learner at Lifestyle Montessori
School
and
on 12 January 2011 started the school year there.
The
aforementioned status of the matter was
unexpectedly
turned
on
its
head
on 2 February 2011 when the Second Respondent
telefaxed
a letter
to
Drysdale, recording that he had perused
all documents submitted to
him
and that according to the
‘tenth day statistics’,
the school had not
reached its
capacity. This refers to the number of
learners in
the
school
on the tenth day of the new school year and is dealt
with more fully hereunder.
He then
instructed the school to admit the learner without delay. . . . [A]
letter was sent to the school under cover of a memorandum
which
recorded that its content was the purported outcome of an Appeal
from the Head of Department. . .
.
I
respectfully submit to the above Honourable Court that this could
not refer to an appeal process as it is envisaged in the relevant

education
legislation
. As I understand it,
such an appeal needs to be resolved within 14 days after the appeal
was lodged.
The Second
Respondent’s letter instructing the
school
to admit the learner refers to the
‘tenth day school
statistics’.
This is a reference to
statistics kept by the Gauteng Department of Education of student
numbers on the tenth day of the new school
year. It now appears to
be used by the Department to compare the attendance of a particular
school with what it believes to be
the capacity for each school.
I humbly
submit that this statistic cannot override the admission policy of
the First Applicant. Any attempt by the First Respondent
to impose a
learner upon a school at variance with the First
Applicant’s admission policy must be
ultra vires
.”
This
extract sets out the only cause of action pleaded, namely, that the
Head of Department’s decision to admit the learner
at the
school based on the tenth-day statistics was contrary to the
school’s admission policy and therefore
ultra vires
.
The focus of this cause of action is the decision-maker’s
lack of power to make the decision taken. The reason furnished
for
the contention is that the decision-maker acted beyond his powers.
The pleading does not refer at all to procedural fairness.
In
fact, barring the recordal of the relief set out in the notice of
motion, the founding affidavit does not mention the failure
to be
heard at all. Even in that regard, the school did not assert that
it was denied a hearing in relation to the use of the
tenth-day
statistics. The claim was that the decision was taken without
affording the governing body or the principal the right
to furnish
reasons for the principal’s decision not to admit the
learner. The claim for relief was framed in these terms:
“
Declaring that the
purported appeal to, and decision by, the Second Respondent, dated
2 February 2011, is not in accordance
with the provisions of
the admissions policy and the Circular and was taken without
affording the [school governing body] or
Principal the right to
furnish reasons for the Principal’s decision not to admit [the
learner] as a Grade 1 learner and
was accordingly procedurally
unfair.”
Apart
from the fact that this claim was not properly pleaded in that no
facts whatsoever were alleged in the founding affidavit
to support
it, there is undisputed evidence on record showing that the
principal did furnish reasons for refusing admission
to the Head of
Department. Indeed the main judgment finds that the principal
submitted her reasons in November 2010. Therefore
the claim for
procedural fairness could not succeed even if it had been properly
pleaded. It follows that the High Court was
right in dismissing
this claim on the basis that the principal was afforded the
opportunity to furnish reasons for her decision.
Without a doubt
the pleaded claim for procedural fairness has no merit.
[99] The
question that arises sharply is whether a different claim for
procedural fairness which was neither pleaded nor established
in
evidence may be upheld by this Court. This is the core of the
differences between this and the main judgment.
Declarator on procedural fairness
[100]
Just as they bind other courts, the rules of procedure must be
followed in this Court too. In our system of law the issues

determined in any court are defined in the pleadings by the parties
themselves. Adjudication of issues is undertaken at the instance
or
request of parties. In other words, it is the parties who decide
which cause of action they would like to pursue in litigation.
Where
a particular cause of action has been chosen and pleaded by an
applicant or plaintiff and it turns out that the evidence
adduced in
its support does not sustain the action a court cannot, of its own
accord, choose a different cause of action and
find in favour of a
losing litigant. This is simply not open to any court.
[101]
Pleadings are crucial to adjudication of civil cases, particularly
in constitutional litigation. This principle was affirmed
by this
Court in many decisions. Writing for a unanimous Court in
Gcaba
,
78
Van der Westhuizen J said:
“
Jurisdiction
is determined on the basis of the pleadings, as Langa CJ held in
[
Chirwa
v Transnet Limited and Others
],
and
not the substantive merits of the case. If Mr Gcaba’s case
were heard by the High Court, he would have failed for not
being
able to make out a case for the relief he sought, namely review of
an administrative decision. In the event of the court’s

jurisdiction being challenged at the outset (
in
limine
),
the applicant’s pleadings are the determining factor. They
contain the legal basis of the claim under which the applicant
has
chosen to invoke the court’s competence. While the pleadings –
including, in motion proceedings, not only the
formal terminology of
the notice of motion, but also the contents of the supporting
affidavits – must be interpreted to
establish what the legal
basis of the applicant’s claim is, it is not for the court to
say that the facts asserted by the
applicant would also sustain
another claim, cognisable only in another court. If, however, the
pleadings, properly interpreted,
establish that the applicant is
asserting a claim under the [Labour Relations Act], one that is to
be determined exclusively
by the Labour Court, the High Court would
lack jurisdiction. An applicant like Mr Gcaba, who is unable to
plead facts that sustain
a cause of administrative action that is
cognisable by the High Court, should thus approach the Labour
Court.”
79
(Footnotes
omitted.)
[102] It
is important to note that in
Gcaba
, the applicant’s
cause of action was based on administrative action but the facts
pleaded ostensibly in its support sustained
a violation of a right
to fair labour practices which falls within the jurisdiction of the
Labour Court. This Court upheld the
order of the High Court
dismissing the applicant’s claim on the basis that the pleaded
facts did not sustain it. The Court
did not, of its own accord,
decide the matter on the basis of the unfair labour practice claim,
even though the facts pleaded
sustained this claim.
[103]
The same approach was followed in
Shaik
.
80
In that case the applicant had challenged the
constitutionality of section 28(6) of the National Prosecuting
Authority Act
81
on the basis that it was inconsistent with
section 35(3) of the Constitution. The High Court dismissed the
challenge and the applicant
sought leave to appeal to this Court. In
a unanimous judgment this Court, while accepting that section 28(8)
and (10) were
inconsistent with the Constitution, refused leave
on the ground that the cause of action pleaded targeted section
28(6) instead
of section 28(8) and (10).
[104]
The fundamental principle of deciding cases on the basis of the
pleaded cause of action was followed by this Court in other
cases as
well.
82
Judicial precedent which forms an integral part
of the rule of law, one of the values upon which our Constitution is
founded,
demands that the Court in this matter follow the decisions
referred to above. This Court is obliged to follow them until they
are overturned. On this point the Court in
Gcaba
said:
“
Therefore,
precedents must be respected in order to ensure legal certainty and
equality before the law. This is essential for
the rule of law. Law
cannot ‘rule’ unless it is reasonably predictable. A
highest court of appeal – and this
Court in particular –
has to be especially cautious as far as adherence to or deviation
from its own previous decisions
is concerned. It is the upper
guardian of the letter, spirit and values of the Constitution. The
Constitution is the supreme
law and has had a major impact on the
entire South African legal order – as it was intended to
do. But it is young;
so is the legislation following from it. As a
jurisprudence develops, understanding may increase and
interpretations may change.
At the same time though, a single source
of consistent, authoritative and binding decisions is essential for
the development
of a stable constitutional jurisprudence and for the
effective protection of fundamental rights. This Court must not
easily and
without coherent and compelling reason deviate from its
own previous decisions, or be seen to have done so.”
83
[105] In
these circumstances the main judgment errs in deciding a cause of
action which was neither pleaded nor supported by established
facts.
As illustrated earlier, the cause of action pleaded in relation to
procedural fairness was that the Head of Department
took the
impugned decision without affording the governing body or the
principal the opportunity to furnish reasons for the principal’s

decision not to admit the learner.
[106]
Moreover, the declaration that the impugned decision was
procedurally unfair is premised on the finding that the school
was
denied the opportunity to make representations on the tenth-day
statistics. But there is no evidence on record supporting
this
finding. This is at odds with a principle entrenched in our law that
any relief granted by a court must be based on established
facts.
[107] The
fact that the present applicants canvassed the procedural fairness
point in their argument in this Court does not and
cannot justify a
determination of an issue that was neither pleaded nor proved in
evidence on record. In any event, the applicants’
argument
shows that the pleaded complaint on procedural unfairness could not
succeed because the evidence that the principal
was allowed to give
reasons for her decision is overwhelming. This can hardly be a basis
for holding that the school was denied
the opportunity to make
representations on the statistics. To hold that the applicants’
argument is a legitimate basis
for the finding that the impugned
decision was procedurally unfair is not only inconsistent with
established principles but also
prejudicial and unfair to the
applicants. That was simply not the case they were called upon to
meet in any of the courts before
which the matter served.
[108]
Moreover, the school did not ask this Court to grant a declaratory
order. Both in the opposing affidavit and written argument,
the
school asked for the dismissal of the application for leave and
nothing more. In our law a court ordinarily grants relief
at the
instance or request of litigants. Yet here the declaratory order on
procedural unfairness is granted in circumstances
where it was not
requested. This is unusual. More so, when the fact that this order
is not supported by the proven facts is taken
into consideration.
[109]
In
Bel Porto
,
84
the majority in this Court declined to grant
orders which were proposed by the minority on the basis that the
proposed orders
were not asked for, nor were they supported by the
pleaded cause of action and the evidence adduced. Writing for the
majority
Chaskalson CJ said:
“
In
the joint judgment of Mokgoro J and Sachs J it is said that
‘although formally employed by the appellants’ schools

and not by the Department,’ the general assistants employed by
the appellants ‘were in effect public servants working
in
government schools’ and as such, administrative justice
‘required that they be given a right to participate in

negotiations as to retrenchments similar to that afforded to their
counterparts in other Elsen schools’. Similar comments
are
made by Madala J in his judgment.
. . .
I am unable to agree with this
approach. The general assistants at the appellant schools are not
parties to this litigation. Although
reference is made to the fact
that the scheme is likely to lead to their retrenchment, no claim
was made by the appellants on
behalf of the employees. The
appellants’ claim is based on alleged infringement of their
own constitutional rights, and
the rights of the children of their
schools, not their employees’ rights. The relief the
appellants seek is relief designed
to relieve them of the burden of
continuing to employ the general assistants, and of having to pay
the costs of retrenchments
that might take place.
There is no evidence on record
as to the terms and conditions of service of the general assistants
of the appellant schools, other
than that they are different to
those of the general assistants employed by the [Western Cape
Education Department]. Nowhere
is it alleged in the affidavits made
on behalf of the appellants that the general assistants were only
‘technically’
employees of the schools, or that they
were in substance ‘public servants’. No averment is made
anywhere in the affidavits
lodged on behalf of the appellants that
the general assistants at their schools have any rights against the
[Western Cape Education
Department], or that they believe that they
had such rights.”
85
(Footnotes omitted.)
[110]
Later in the same judgment Chaskalson CJ refused to grant an order
proposed by Ngcobo J. In this regard the Chief Justice
said:
“
In
his judgment Ngcobo J holds that the [Western Cape Education
Department] infringed the rights of the appellants by failing
to
consult with them concerning the implementation of the scheme.
Although he concludes that the appellants are not entitled
to the
relief claimed by them, he would have made a declaration that the
rights of the appellants to just administrative action
have been
infringed and would have directed the parties to submit further
affidavits and argument dealing with the appropriate
relief in the
light of the finding made by him.
Due
to the course that the litigation took, the implementation of the
scheme was not raised in the founding affidavits and no
relief was
sought in that regard in the notice of motion. The details of the
scheme were placed on record by the [Western Cape
Education
Department] in [its] answering affidavits lodged on 14 February
2000. The appellants, in replying affidavits lodged
some two months
later on 17 April 2000, complained that they had not been included
in the negotiations that had taken place between
the [Western Cape
Education Department] and the trade unions. The relief they sought,
however, as expressed in the affidavit
of Mr van der Merwe, the
chairman of the first appellant, was that:
‘
The fair and proper
course of action is to first bring the applicant schools in line
with all other schools. At that point negotiations
between
respondents and the trade unions, if necessary, will be meaningful.’
. . .
I am therefore unable to agree
with Ngcobo J that the appellants are entitled to relief in the form
proposed by him. This was
not the relief sought by the appellants in
the High Court or in this Court, and it is inconsistent with
the attitude adopted
by the appellants throughout the litigation.”
86
(Footnote omitted.)
Meaningful engagement and cooperation
[111]
The main judgment criticises the Head of Department for the manner
in which he exercised the power to deal with systemic
capacity
problems. It is asserted that the Department exercised its powers
with no regard to the role of the governing body.
87
This too was never an issue between the parties.
Nor did it form part of the sole issue before this Court, namely,
whether the
Head of Department had the power to overturn the
principal’s decision and admit the learner to the school.
Therefore what
is said on this aspect does not form part of the
ratio decidendi
.
As something that is said “by the way” it has no binding
effect.
88
[112]
In terms of the doctrine of judicial precedent it is the
ratio
decidendi
which has binding authority.
The
ratio
comprises
the reasoning necessary for the decision of the issues before a
court. What is stated in the course of articulating
that reasoning
but which is not essential to the determination of the issue at hand
constitutes
obiter dicta.
The
obiter dicta
have no binding authority.
89
[113] But
apart from the fact that the resolution of the systemic capacity
problems was not an issue for determination, the main
judgment it
seems, conflates this issue with what was done by the Head of
Department in setting aside the principal’s refusal
and
admitting the learner to the school. This was not done as part of
addressing the systemic capacity problems but as resolution
of a
particular complaint. But even in the context of systemic capacity
problems, the Head of Department can hardly be accused
of failing to
engage with the school.
[114]
When the complaint relating to the refusal to admit the learner was
brought to the Department, no less than four consultations
were held
with the school. None of them produced a positive result because the
school refused to relax its admission policy and
admit the learner,
even though that policy had been relaxed in other cases. The school
persisted in a rigid application of its
policy despite the
Department’s plea for a flexible approach. In the founding
affidavit, the school said about the meeting
of 30 November
2010:
“
The
Department called this meeting, apparently after the First and
Second Respondents had requested Mabena to intervene in respect
of
the Fourth Respondent’s application.
The
meeting was nothing but a plea to the school and the First Applicant
to relax its policies in order to grant the learner a
place in the
school for 2011
.”
(Emphasis
added.)
115] The
evidence on record demonstrates that the Department consulted the
school on a number of occasions. On one occasion the
Department
suggested that the learner’s mother be furnished with certain
information relating to the waiting list. The
school responded to
the request by a letter of 8 October 2010, written by the governing
body’s attorney. In relevant part
it reads:
“
Request: Rivonia Primary
provide
Mrs.
Cele
with a reviewed number.
Reply: Our instructions
are that the request to review the received waiting list
number
was rejected with the contempt it deserves
. . . .
Rivonia Primary and [its governing body], will not be part of any
underhand activities
.” (Emphasis added.)
[116]
Despite the contempt with which the request was treated, the
Department was still willing to meet the school and its governing

body, hence the meeting of 30 November 2010 in which the plea
to relax the application of the admission policy was turned
down.
These facts illustrate that even in the face of scorn, the
Department was willing to cooperate with the school in seeking
an
amicable solution to the problem. In the meeting of 30 November 2010
when their plea failed, the officials from the Department
suggested
that they would place the learner at an alternative school if her
parents agreed. Apparently they did not agree, hence
the impugned
decision by the Head of Department.
[117]
Against this background, it can hardly be argued that there were no
serious attempts to have the problem solved in cooperation
with the
school. The assertion that the Head of Department adopted the
heavy-handed approach to the issue loses sight of what
really
happened. Faced with a contemptuous governing body and an
intransigent principal, it is difficult to imagine that the
Head of
Department could have acted differently. Once it is accepted that he
had the power to overturn the principal’s
refusal and admit
the learner, what was done by the officials in admitting the learner
can hardly be described as heavy-handed
because the principal
refused to carry out the instruction to admit the learner. The
principal associated herself with the stance
adopted by the
governing body.
Legal principles
[118]
With reference to
Ermelo
90
and
Welkom
,
91
the main judgment lists four principles deduced
from these cases.
92
I am unable to agree with the formulation of the
first principle, especially the part that says a Head of Department
cannot act
contrary to a policy which in his or her view offends the
Constitution. The main judgment indicates that this principle is
distilled
from certain paragraphs in
Ermelo
.
93
But the reading of the relevant paragraphs does
not support the proposition that a Head of Department cannot
override or act contrary
to a policy that offends the Constitution.
[119] In
the first place, paragraphs 73 to 75 in
Ermelo
do not deal
with overriding or acting contrary to a school’s policy.
Instead these paragraphs deal with the revocation
of a function
entrusted to a school governing body. In these paragraphs
Ermelo
addresses the exercise of power to revoke the authority to make
policy.
Ermelo
states that the power to revoke must be
exercised on reasonable grounds and in accordance with procedural
fairness required by
section 22(2) of the Schools Act. Therefore,
these paragraphs do not support the principle formulated in the main
judgment.
[120] In
addition paragraph 73 in
Ermelo
is also cited as supporting
the third principle which says when officials intervene or depart
from policy, they must act reasonably
and in a manner that is
procedurally fair. But as already illustrated paragraph 73 deals
with revocation of power which must
be done on reasonable grounds
and in a manner that complies with the procedural fairness in
section 22(2). In paragraph 73,
Ermelo
states:
“
Indeed,
my conclusion does not entail that the [Head of Department] enjoys
untrammelled power to rescind a function properly conferred
on a
governing body whether by him or by the Schools Act or any other
law. The power to revoke will have to be exercised on reasonable

grounds. In addition the [Head of Department] must, in revoking the
function, observe meticulously the standard of procedural
fairness
required by section 22(2) and, in cases of urgency, by section
22(3).”
94
[121]
What emerges from this paragraph is that the Court in
Ermelo
was stating principles applicable to a revocation of power
undertaken in terms of section 22. It was not laying down a general

principle relating to a departure from a school governing body’s
policy.
[122]
Reference to
Welkom
does not take the matter further, because
the cited paragraphs in
Welkom
draw, as authority for what is
stated, from
Ermelo
. I have illustrated that
Ermelo
was interpreted incorrectly in the main judgment, as it was in
Welkom
. I may add that the judgment relied on in
Welkom
does not, in my view, constitute a majority judgment. In my opinion
none of the three judgments amounted to a majority judgment.
Instead
there is an order in that case which was supported by a majority but
for different reasons.
[123]
Therefore I cannot agree with the principle that says a head of
department cannot override or act contrary to a policy which
is
inconsistent with the Constitution. To require the Head of
Department to comply with such policy would be at odds with section

2 of the Constitution.
95
This section proclaims the supremacy of the
Constitution and declares that conduct inconsistent with it is
invalid.
[124]
Ermelo
is
not authority for the proposition that an unconstitutional policy
may not be followed only if the Schools Act is adhered to.
The
issues in that case were whether the Head of Department had the
power to withdraw a language policy adopted by the school
governing
body and if so, whether the power of withdrawal had been properly
exercised. As to the first issue, this Court overturned
a finding by
the Supreme Court of Appeal and held that the Head of Department had
such power. The Supreme Court of Appeal had
arrived at a different
finding. Regarding the second issue, the Court held that section 25
of the Schools Act, on which the Head
of Department relied, did not
empower him to withdraw the policy in issue. Because the validity of
that policy was not an issue
before it, the Court did not declare it
invalid but in the exercise of its justice and equity power, the
Court directed the school’s
governing body to amend its
language policy to be in line with the Constitution.
96
[125] For
all these reasons I do not support the main judgment, save for the
finding that the Head of Department had the power
to reverse the
principal’s decision and admit the learner to the school.
For
the Applicants: Advocate M Chaskalson SC and Advocate N Mji
instructed by the State Attorney.
For
the First and Second Respondents: Advocate G Pretorius SC and
Advocate A Kemack SC instructed by Shepstone & Wylie Attorneys.
For
the First and Second Amici Curiae: Advocate S Budlender and Advocate
J Brickhill instructed by the Legal Resources Centre.
For
the Third Amicus Curiae: Advocate R Keightley instructed by Erasmus
Inc Attorneys.
1
Section
29(1) of the Constitution provides:
“
Everyone has the right—
(a) to a basic education, including adult basic
education; and
(b) to further education, which the state, through
reasonable measures, must make progressively available and
accessible.”
2
Head
of Department, Mpumalanga Department of Education and Another v
Hoërskool Ermelo and Another
[2009]
ZACC 32
;
2010 (2) SA 415
(CC);
2010 (3) BCLR 177
(CC)
(
Ermelo
).
3
Id
at para 45.
4
Id
at para 2, where Moseneke DCJ stated:
“
It is trite that education is
the engine of any society. And therefore, an unequal access to
education entrenches historical inequity
since it perpetuates
socio-economic disadvantage.”
5
Section
28(2) of the Constitution provides:
“
A
child’s
best interests are of paramount importance in every matter
concerning the child.”
6
The
Gauteng Department of Education Regulations Relating to the
Admission of Learners to Public Schools, Provincial Gazette 439,

General Notice 61 of 1998 defines the feeder-area of a school as
that “area which is closer to that school by any public
route
than to any other school.”
7
There
are two versions of the admission policy on record. One version was
certified by the Department on 4 March 2010
and stated
that the maximum capacity of the school was 770 learners. Another
version of the policy was adopted by the Rivonia
Governing Body in
August 2010, which states:
“
The Governing Body has
determined that Rivonia Primary has the capacity to admit a maximum
of 840 learners (120 learners per grade)
and in determining the
capacity of Rivonia Primary has taken into account all relevant
factors relating to the facilities and
programmes”.
According
to the school, the difference between the two versions of the policy
is explained by the fact that the first did not
include an
accounting of Grade 0 learners, whereas the second did.
8
The
outcome of the learner’s application to the school was
communicated to the learner’s mother on 5 November 2010

by the principal. The letter from the principal reads in relevant
part:
“
Dear Mrs. Cele
According to the School’s Admission Policy you
have been placed in Waiting List ‘A’ for parents who
reside in
our catchment area, as the school has reached its capacity
for Grade 1 2011.
. . .
Number on Waiting List ‘A’: 14 as of 25th
October 2011”.
9
See
Governing Body, Rivonia Primary School and Another v MEC for
Education, Gauteng Province and Others
[2012] ZASCA 194
;
2013
(1) SA 632
(SCA) (Supreme Court Appeal judgment) at para 11 and the
discussion at below.
10
The
Gauteng MEC was concerned that it would be premature for her to
consider the appeal, since the Gauteng HOD had not yet taken
a
decision in terms of relevant provincial regulations.
11
This
is a reference to statistics kept by the Department of learner
numbers on the tenth day of the new school year.
12
Regulation
13(1) of the Gauteng Department of Education Regulations for the
Admission of Learners to Public Schools, Provincial
Gazette 129,
General Notice 4138 of 2001 (Gauteng Regulations). The Gauteng
Regulations were issued in terms of the
Gauteng
School Education Act 6 of 1995 (Gauteng Act). It should be noted
that the Gauteng MEC amended the Gauteng Regulations
on 9 May 2012
(see Provincial Gazette 127, Government Notice 1160, 9 May
2012). These amended regulations are not before
this Court and are
not relevant for the purposes of these proceedings.
13
The
letter from the Gauteng HOD, dated 2 February 2011 and communicated
to the principal on 3 February 2011, states:
“
Dear Madam
ADMISSION OF [THE LEARNER] TO GRADE ONE AT RIVONIA
PRIMARY SCHOOL IN 2011
1. I have perused all the documents submitted to me and
wish to note the following:
1.1 According to the tenth day school statistics, the
school has not reached its capacity.
2. Ms. Cele approached the HOD for assistance in this
matter.
3. You are hereby instructed to enrol [the learner] to
grade one at Rivonia Primary School without delay.”
14
The
Supreme Court of Appeal held that the instruction given to the
principal to admit the learner was contrary to the school’s

admission policy and that the placing of the learner in the school
was unlawful. The principal nonetheless received a written

notification after the Supreme Court of Appeal decision indicating
that the sanction would be implemented. She has indicated
that she
will appeal the sanction, and the Department agreed to suspend
its implementation until this matter has been resolved.
15
84
of 1996.
16
The
Supreme Court of Appeal made an order in the following terms:
“
It is declared that the
instruction given to the principal of the Rivonia Primary School to
admit the learner contrary to the
school’s admission policy,
and the placing of the learner in the school, were unlawful.”
17
Section
3 is headed “Compulsory attendance” and provides in
relevant part:
“
(3) Every Member of the
Executive Council must ensure that there are enough school places so
that every child who lives in his
or her province can attend school
as required by subsections (1) and (2).
(4) If a Member of the Executive Council cannot comply
with subsection (3) because of a lack of capacity existing at the
date
of commencement of this Act, he or she must take steps to
remedy any such lack of capacity as soon as possible and must make

an annual report to the Minister on the progress achieved in doing
so.”
18
The
applicants contend that this is implicit in
section 5(6) to (9) of the Schools Act, and was made explicit in
Gauteng through the
Gauteng Regulations read with the Gauteng Act.
19
Section
39(2) of the Constitution requires every court to “promote the
spirit, purport and objects of the Bill of Rights”
when
interpreting any legislation.
20
Section
7(2) of the Constitution.
21
Ermelo
above n 2 at paras 42-3.
22
See
S v Boesak
[2000] ZACC 25
;
2001 (1) SA 912
(CC);
2001 (1)
BCLR 36
(CC) at para 12.
23
Ermelo
above n 2 at para 55.
24
Id
at para 56.
25
Section
5A(1)(b) of the Schools Act.
26
Id
section 5A(2)(b).
27
Section
58C of the Schools Act is headed “Compliance with norms and
standards” and provides in relevant part:
“
(1) The Member of the
Executive Council must, in accordance with an implementation
protocol contemplated in section 35 of the
Intergovernmental
Relations Framework Act, 2005 (Act 13 of 2005), ensure compliance
with—
(a) norms and standards determined in terms of sections
5A, 6(1), 20(11), 35 and 48(1);
. . .
(2) The Member of the Executive Council must ensure
that the policy determined by a governing body in terms of sections
5(5) and
6(2) complies with the norms and standards.
(3) The Member of the Executive Council must, annually,
report to the Minister the extent to which the norms and standards
have
been complied with or, if they have not been complied with,
indicate the measures that will be taken to comply.
. . .
(6) The Head of Department must—
(a) in accordance with the norms and standards
contemplated in section 5A determine the minimum and maximum
capacity of a public
school in relation to the availability of
classrooms and educators, as well as the curriculum programme of
such school; and
(b) in respect of each public school in the province,
communicate such determination to the chairperson of the governing
body
and the principal, in writing, by not later than 30 September
of each year.”
28
See
above.
29
27
of 1996.
30
Ermelo
above n 2 at para 61.
31
Section
5(7) of the Schools Act.
32
Id
section 5(8).
33
Section
2 of the Interpretation Act 33 of 1957 provides that “law”
shall, unless the context or law under consideration
otherwise
requires, mean “any law, proclamation, ordinance, Act of
Parliament or other enactment having the force of law”.
This
wide definition certainly allows for the inclusion of delegated
provincial legislation in the meaning of “law”.
There
are no indications in the Schools Act to suggest that the phrase
“any applicable law” in section 5(5) should
be given a
narrower construction. To the contrary, the use of the word “any”
in the phrase suggests a broader rather
than more restrictive
interpretation.
34
Regulation
13 is headed “Refusal of admission” and provides:
“
(1) If a principal, acting on
behalf of the Head of Department, refuses to admit a learner to a
school, he or she must provide—
(a) reasons in writing for his or her decision to the
Head of Department and the parent and the Head of Department must
either
confirm or set aside the decision made by the Principal; and
(b) a copy of these regulations to the parent and the
address of the Member of the Executive Council (MEC).”
35
Regulation
14 is headed “Appeals” and provides:
“
(1) A parent or learner who
is dissatisfied with the decision referred to in regulation 13(1)
may appeal in writing to the Member
of the Executive Council (MEC)
against the decision of the Head of Department within 15 days after
receipt of the notification
of the refusal of admission.
(2) The appellant must furnish the MEC with all
relevant information pertaining to the appeal.
(3) The MEC, must, within 15 days of receiving an
appeal referred to sub-regulation (1), consider that appeal and must
confirm,
or set aside the relevant decision and forthwith notify the
principal and the parents of his or her decision.”
36
The
predecessors were
Head of Department, Department of Education,
Free State Province
v
Welkom High School and Another;
Head of Department, Department of Education, Free State Province v
Harmony High School and Another
[2013] ZACC 25
(
Welkom
)
and
Ermelo
above n 2.
37
In
a judgment concurred in by Moseneke DCJ and Van der Westhuizen J.
38
In
a judgment also concurred in by Moseneke DCJ and Van der Westhuizen
J.
39
Ermelo
above n 2 at paras 73-5. The majority of the Court endorsed this
principle in
Welkom
above n 36 (see Khampepe J at paras
74-6 and 79 and Froneman J and Skweyiya J at para 150).
40
In
Ermelo
above n 2 at para 78 this Court said:
“
Put otherwise, the statute
devolves power and decision-making on the school’s medium of
instruction to a school governing
body.
It
would, however, be wrong to construe the devolution of power as
absolute and impervious to executive intervention when the
governing
body exercises that power unreasonably and at odds with the
constitutional warranties to receive basic education and
to be
taught in a language of choice
.
The Constitution itself enjoins
the
State to ensure
effective access to the right to receive education in a medium of
instruction of choice
.”
(Footnote omitted and emphasis added.)
This
Court went on to say at para 81:
“
What is more, the governing
body’s extensive powers and duties do not mean that the HOD is
precluded from intervening, on
reasonable grounds, to ensure that
the admission or language policy of a school
pays
adequate heed to section 29(2) of the Constitution. The requirements
of the Constitution remain peremptory
.”
(Emphasis added.)
See
also Khampepe J in
Welkom
above n 36 at para 73 and Froneman
J and Skweyiya J at para 149.
41
See
Ermelo
above n 2 at paras 88-9. See also
Welkom
above
n 36 at para 86, where Khampepe J stated:
“
The rule of law does not
permit an organ of state to reach what may turn out to be a correct
outcome by any means. On the contrary,
the rule of law obliges an
organ of state to use the correct legal process. Accordingly,
section 7(2) and the rule of law demand
that where clear internal
remedies are available, an organ of state is obliged to use them,
and may not simply resort to self-help.
I pause to emphasise that
this Court has consistently and unanimously held that the rule of
law does not authorise self-help.”
(Footnotes omitted.)
See also para 105.
42
Ermelo
above n 2 at para 73. See also
Welkom
above n 36 at para 77
(Khampepe J) and para 150 (Froneman J and Skweyiya J). See also
the discussion starting at below.
43
Welkom
above n 36 at paras 120-4 (Khampepe J) and the judgment of Froneman
J and Skweyiya J.
44
The
respondents rely on the “Admission Policy for Ordinary Public
Schools” (
Government Gazette
19377, General Notice
2432, 19 October 1998) determined by the Minister of Education in
terms of the National Education Policy Act.
Sections 5 to 7
thereof effectively mirror parts of section 5 of the Schools Act and
provide:
“
5. The Head of Department
must determine a process of registration for admission to public
schools in order to enable the admission
of learners to take place
in a timely and an efficient manner. The Head of Department and the
school governing bodies should
encourage parents to apply for the
admission of their children before the end of the preceding school
year.
6. The Head of Department is responsible for the
administration of the admission of learners to a public school. The
Head of Department
may delegate the responsibility for the admission
of learners to a school to officials of the Department.
7. The admission policy of a public school is
determined by the governing body of the school in terms of section
5(5) of the [Schools
Act]. The policy must be consistent with [the
Constitution], the [Schools Act] and applicable provincial law. The
governing body
of a public school must make a copy of the school’s
admission policy available to the Head of Department.”
45
See
to above.
46
It
is worth noting that the respondents attempted to persuade the Court
that the Department should have followed the processes
in Regulation
7 of the Gauteng Regulations rather than depart from the school’s
capacity determination in its admission
policy. This Regulation
provides that the Gauteng HOD may, in consultation with
representatives of the school governing bodies,
determine feeder
zones for schools. If a feeder zone is created, then there is a
prescribed formula for how to manage admission
of learners where a
school is oversubscribed. The respondents’ reliance on the
feeder-zone scheme is untenable. Firstly,
the provisions are
permissive, not mandatory. Secondly, reliance on Regulation 7 was
not raised by the school in its papers before
the High Court and, as
such, the Department was not placed to deal with that issue on a
factual level. Finally, as counsel for
the Department submitted
before this Court, the feeder zones have not in fact been
established.
47
MEC
for Agriculture, Conservation, Environment and Land Affairs v Sasol
Oil (Pty) Ltd and Another
2006 (5) SA 483
(SCA) (
MEC for
Agriculture v Sasol Oil
).
48
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC);
2004 (7) BCLR 687
(CC).
49
MEC
for Agriculture v Sasol Oil
n 47 at para 19.
50
Akani
Garden Route (Pty) Ltd v Pinnacle Point Casino (Pty) Ltd
2001
(4) SA 501 (SCA).
51
Id
at para 7.
52
See
also
National Lotteries Board and Others v South African
Education and Environment Project
2012 (4) SA 504
(SCA) at para
9 and
Britten and Others v Pope
1916 AD 150
at 158.
53
Supreme
Court of Appeal judgment above n 9 at para 50.
54
Premier,
Mpumalanga, and Another v Executive Committee, Association of
Governing Bodies of State-Aided Schools, Eastern Transvaal
[1998]
ZACC 20
;
1999 (2) SA 91
(CC);
1999 (2) BCLR 151
(CC) (
Premier,
Mpumalanga
).
55
Id
at para 1.
56
In
terms of
section 3(1)
of the
Promotion of Administrative Justice Act
3 of 2000
, “[a]dministrative action which materially and
adversely affects the rights or legitimate expectations of any
person must
be procedurally fair.” In this regard, it is worth
recalling the dictum in
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
[1999]
ZACC 11
;
2000
(1) SA 1
(CC);
1999 (10) BCLR 1059
(CC
)
at para 216,
where it was stated:
“
The question whether an
expectation is legitimate and will give rise to the right to a
hearing in any particular case depends
on whether, in the context of
that case, procedural fairness requires a decision-making authority
to afford a hearing to a particular
individual before taking the
decision. To ask the question whether there is a legitimate
expectation to be heard in any particular
case is, in effect, to ask
whether the duty to act fairly requires a hearing in that case. The
question whether a ‘legitimate
expectation of a hearing’
exists is therefore more than a factual question. It is not whether
an expectation exists in
the mind of a litigant but whether, viewed
objectively, such expectation is, in a legal sense, legitimate; that
is, whether the
duty to act fairly would require a hearing in those
circumstances.”
In
Premier, Mpumalanga
above n 54 at para 35, O’Regan J
recognised that a legitimate expectation might arise in at least two
circumstances:
“
first, where a person enjoys
an expectation of a privilege or a benefit of which it would not be
fair to deprive him or her without
a fair hearing; and, secondly, in
circumstances where the previous conduct of an official has given
rise to an expectation that
a particular procedure will be followed
before a decision is made.”
As
will follow from my analysis at to below, I am of the view that the
Gauteng HOD had a duty to act fairly. In the least, the
school had a
legitimate expectation that it would be heard by the Gauteng HOD
prior to a decision being made regarding the placement
of the
learner.
57
The
High Court agreed with the Department’s view and was satisfied
that the Gauteng HOD had acted procedurally fairly when
overturning
the learner’s rejection by the school in terms of
Regulation
13(1).
The Supreme Court of Appeal did not deal specifically with
the procedural fairness complaint of the school. This was presumably

because of that Court’s finding that the Gauteng HOD did not
have the power to override the school’s admission policy
at
all, and had therefore acted
ultra vires
. As already
explained, I differ from the Supreme Court of Appeal regarding the
Gauteng HOD’s powers. It is therefore necessary
for me to
consider whether the power in
Regulation 13(1)(a)
was exercised
procedurally fairly.
58
See,
for example,
Masetlha v President of the Republic of South Africa
and Another
[2007] ZACC 20
;
2008 (1) SA 566
(CC);
2008 (1) BCLR
1
(CC) at para 190.
59
Joseph
and Others v City of Johannesburg and Others
[2009] ZACC 30
;
2010 (4) SA 55
(CC);
2010 (3) BCLR 212
(CC).
60
Id
at para 29.
61
This
fits in with the scheme contemplated by a circular headed
“Management of Admissions to Public Ordinary Schools for

2011”, published by the Department and dated 4 June 2010
(Circular).
One of the stated purposes of the Circular is to
“determine the timeframes within which [registration]
processes are to
be managed”.
In terms of
the Circular, the principal of a school must communicate with
successful or unsuccessful parents “by no later
than
05 November 2010.” In turn, a parent who wishes to
object to the decision of the school principal is expected
to do so
(by means of a representation to the District Director) within seven
days of receiving notification that the application
was
unsuccessful. Where an appeal against the decision of the District
Director is made, the MEC is expected to make a decision
on such
appeal within 14 days of receipt thereof. I do not place reliance on
the provisions of the Circular as the source of
obligations on the
parties. It merely illustrates the point that, even according to the
Department’s own policies or guidelines,
it was generally
envisioned that the objection and appeal processes should have been
completed before the beginning of the school
year in 2011.
62
Ermelo
above n 2 at para 103. See also para 75, where it was stated:
“
In the case of language
policy, which affects the functioning of all aspects of a school,
the procedural safeguards, and due time
for their implementation,
will be the more essential.
It
goes without saying that excellent institutional functioning
requires proper opportunity for planning and implementation.
”
(Emphasis added.)
63
The
school’s version of the meeting’s consensus goes
further. It suggests that the Department’s representatives

were satisfied that there was no capacity at Rivonia Primary, given
its admission policy, and that the learner had properly been
placed
on the waiting list. The school substantiated this account by
attaching two reports of the meeting. One is an unsigned
report
under the name of the District Director, which indicates that the
meeting resolved as follows:
“
Ms Cele will have to
patiently wait her turn on the waiting list until a space opens up.
[The school governing body] will not
move her up the list.
District Office willing to assist with alternative
placement if Head Office Interventions can get parent to agree to
proposal.”
Though
a representative of the Department at the meeting denied that the
first resolution was completely accurate, he did accept
that the
school indicated that it was of “the view that Mrs Cele would
have to wait on the list”. And he did not
deny the second of
the two resolutions. In reply to the dispute as to the report’s
accuracy, the school attached its own
minutes of the meeting, which
support the version of the resolutions expressed in the unsigned
Departmental report.
64
In
other words, the school’s legitimate expectation of a hearing
was materially and adversely affected when the Gauteng
HOD made his
decision without allowing such a hearing.
65
Ermelo
above n 2 at para 80.
66
Welkom
above n 36 at para 124.
67
Id
at paras 129, 135 and 152.
68
Section
7(2) of the Constitution provides:
“
The state must respect,
protect, promote and fulfil the rights in the Bill of Rights.”
69
Section
29 of the Constitution guarantees the right to a basic education.
70
Supreme
Court of Appeal judgment above n 9.
71
Section
39(2) provides:
“
When interpreting any
legislation, and when developing the common law or customary law,
every court, tribunal or forum must promote
the spirit, purport and
objects of the Bill of Rights.”
72
Supreme
Court of Appeal judgment above n 9 at para 50.
73
Absa
Bank Ltd v Kernsig 17 (Pty) Ltd
[2011] ZASCA 97
;
2011 (4) SA 492
(SCA) at para 23 and
Louw and Others v Nel
[2010] ZASCA 161
;
2011 (2) SA 172
(SCA) at para 17.
74
Skjelbreds
Rederi A/S and Others v Hartless
(Pty)
Ltd
1982 (2) SA 739
(W) (
Skjelbreds
Rederi
)
.
75
Id
at 742C.
76
Director
of Hospital Services v Mistry
1979 (1) SA 626
(A) at 636.
77
Skjelbreds
Rederi
above n 74 at 742D.
78
Gcaba
v Minister of Safety and Security
and
Others
[2009] ZACC 26
;
2010 (1) SA 238
(CC);
2010 (1) BCLR 35
(CC).
79
Id
at para 75.
80
Shaik
v Minister of Justice and Constitutional Development and Others
[2003] ZACC 24
;
2004 (3) SA 599
(CC);
2004 (4) BCLR 333
(CC).
81
32
of 1998.
82
Everfresh
Market Virginia (Pty) Ltd v Shoprite Checkers
(Pty) Ltd
[2011] ZACC 30
;
2012 (1) SA 256
(CC);
2012 (3) BCLR 219
(CC);
Phillips and Others v National Director of Public Prosecutions
[2005] ZACC 15
;
2006 (1) SA 505
(CC);
2006 (2) BCLR 274
(CC);
Bel Porto School Governing Body and Others v Premier, Western
Cape, and Another
[2002] ZACC 2
;
2002 (3) SA 265
(CC);
2002 (9)
BCLR 891
(CC) (
Bel Porto
);
Prince v President, Cape Law
Society, and Others
[2000] ZACC 28
;
2001 (2) SA 388
(CC);
2001
(2) BCLR 133
(CC).
83
Gcaba
above n 78 at para 62. See also
Van der Walt v Metcash Trading
Ltd
[2002] ZACC 4
;
2002 (4) SA 317
(CC);
2002 (5) BCLR 454
(CC)
at para 39.
84
Bel
Porto
above n 82.
85
Id
at paras 75-7.
86
Id
at paras 106-7 and 115.
87
Main
judgment at [75] above.
88
Camps
Bay Ratepayers’ and Residents’ Association and Another v
Harrison and
Another
[2010] ZACC 19
;
2011 (4) SA 42
(CC);
2011 (2) BCLR 121
(CC) at para 30.
89
Pretoria
City Council v Levinson
1949 (3) SA 305
(A) at 316-7.
90
Ermelo
above n 2.
91
Welkom
above n 36.
92
Main
judgment at [49] above.
93
Ermelo
above n 2 at paras 73-5 and 78.
94
Id
at para 73.
95
Section
2 of the Constitution provides:
“
This Constitution is the
supreme law of the Republic; law or conduct inconsistent with it is
invalid, and the obligations imposed
by it must be fulfilled
.
”
96
Ermelo
above n 2 at paras 96-102.