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[2013] ZAWCHC 66
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Beauvallon Secondary School and Others v Minister of Education for the Western Cape and Others (22507/12) [2013] ZAWCHC 66 (19 March 2013)
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)
Before the Honourable Justices Desai, Davis and Baartman
Case number: 22507/12
In the matter between:
BEAUVALLON SECONDARY SCHOOL
.................................................
First
Applicant
SCHOOL GOVERNING BODY OF
BEAUVALLON SECONDARY SCHOOL
............................................
Second
Applicant
BERGRIVIER NGK PRIMARY SCHOOL
................................................
Third
Applicant
SCHOOL GOVERNING BODY OF
BERGRIVIER NGK PRIMARY SCHOOL
..............................................
Fourth
Applicant
BRACKENHILL EK PRIMARY SCHOOL
.................................................
Fifth
Applicant
SCHOOL GOVERNING BODY OF
BRACKENHILL EK PRIMARY SCHOOL
................................................
Sixth
Applicant
DENNEPRAG PRIMARY SCHOOL
....................................................
Seventh
Applicant
SCHOOL GOVERNING BODY OF
DENNEPRAG PRIMARY SCHOOL
.......................................................
Eighth
Applicant
KLIPHEUWEL PRIMARY SCHOOL
.......................................................
Ninth
Applicant
SCHOOL GOVERNING BODY OF
KLIPHEUWEL PRIMARY SCHOOL
.
......................................................
Tenth
Applicant
KROMBEKSRIVIER NGK PRIMARY SCHOOL
................................
Eleventh Applicant
SCHOOL GOVERNING BODY OF
KROMBEKSRIVIER NGK PRIMARY SCHOOL
..................................
Twelfth Applicant
LK ZEEMAN PRIMARY SCHOOL
..................................................
Thirteenth
Applicant
SCHOOL GOVERNING BODY OF
LK ZEEMAN PRIMARY SCHOOL
.................................................
Fourteenth
Applicant
LAVISRYLAAN PRIMARY SCHOOL
................................................
Fifteenth
Applicant
SCHOOL GOVERNING BODY OF
LAVISRYLAAN PRIMARY SCHOOL
...............................................
Sixteenth
Applicant
PROTEA PRIMARY SCHOOL
....................................................
Seventeenth
Applicant
SCHOOL GOVERNING BODY OF
PROTEA PRIMARY SCHOOL
.......................................................
Eighteenth
Applicant
REDLANDS PRIMARY SCHOOL
..................................................
Nineteenth
Applicant
SCHOOL GOVERNING BODY OF
REDLANDS PRIMARY SCHOOL
....................................................
Twentieth
Applicant
RIETFONTEIN NGK PRIMARY SCHOOL
...................................
Twenty-First
Applicant
SCHOOL GOVERNING BODY OF
RIETFONTEIN NGK PRIMARY SCHOOL
..............................
Twenty-Second
Applicant
RONDEVLEI EK PRIMARY SCHOOL
........................................
Twenty-Third
Applicant
SCHOOL GOVERNING BODY OF
RONDEVLEI EK PRIMARY SCHOOL
.....................................
Twenty-Fourth
Applicant
TONKO BOSMAN PRIMARY SCHOOL
......................................
Twenty-Fifth
Applicant
SCHOOL GOVERNING BODY OF
TONKO BOSMAN PRIMARY SCHOOL
.....................................
Twenty-Sixth
Applicant
URIONSKRAAL NGK PRIMARY SCHOOL
..........................
Twenty-Seventh
Applicant
SCHOOL GOVERNING BODY OF
URIONSKRAAL NGK PRIMARY SCHOOL
............................
.Twenty-Eighth
Applicant
VALPARK PRIMARY SCHOOL
.................................................
Twenty-Ninth
Applicant
SCHOOL GOVERNING BODY OF
VALPARK PRIMARY SCHOOL
.........................................................
Thirtieth
Applicant
WANSBEK VGK PRIMARY SCHOOL
...........................................
Thirty-First
Applicant
SCHOOL GOVERNING BODY OF
WANSBEK VGK PRIMARY SCHOOL
......................................
Thirty-Second
Applicant
WARMBAD-SPA PRIMARY SCHOOL
.........................................
Thirty-Third
Applicant
SCHOOL GOVERNING BODY OF
WARMBAD-SPA PRIMARY SCHOOL
.......................................
Thirty-Fourth
Applicant
WELBEDACHT UCC PRIMARY SCHOOL
....................................
Thirty-Fifth
Applicant
SCHOOL GOVERNING BODY OF
WELBEDACHT UCC PRIMARY SCHOOL
...................................
Thirty-Sixth
Applicant
THE SOUTH AFRICAN DEMOCRATIC
TEACHERS UNION
..................................................................
Thirty-Seventh
Applicant
and
THE MINISTER OF EDUCATION
FOR THE WESTERN CAPE
First Respondent
THE WESTERN CAPE EDUCATION DEPARTMENT
Second Respondent
THE MINISTER OF BASIC EDUCATION
Third Respondent
THE MINISTER OF JUSTICE AND
CONSTITUTIONAL DEVELOPMENT
Fourth Respondent
JUDGMENT: TUESDAY, 19 MARCH 2013
DESAI,
J:
[1] The
imminent closure of eighteen schools in the Western Cape resulted in
this application which was heard on an urgent basis
by a full court
of this division. The matter was heard on 20 and 21 December 2012 as
the closure of the schools sought by the Minister
of Education for
the Western Cape (the MEC) was to come into effect on 31 December
2012.
[2] The
relief sought by the applicants was, in effect, a stay of the closure
of the schools and ancillary relief, pending a review
of the MEC’s
decisions in this regard. Albeit with some amendments, I granted the
relief which the applicants were seeking.
Baartman, J agreed with me
while Davis, J dissented. These are the reasons for my decision.
[3]
Despite widespread objections from the affected parties, and the deep
emotions which underpin the said objections, it seems
that the
decisions by the MEC to close the schools are final. That is his
position as well as that of the second respondent. Whatever
the legal
position with regard to the review, the fact that there is no room
for further discussion on the matter is regrettable.
A court is
simply not the appropriate forum to deal with the issues which arise
herein.
[4] The
said issues are clouded, if not exacerbated, by the unfortunate
history of education for the many millions who were disadvantaged
by
the system prevailing in this country prior to the advent of
democracy. The schools in this instance are for those who come
from
that sector of society which was previously disadvantaged and which
remains marginalised in the current period.
[5] The
schools, the learners, the parents, the educators and the school
governing bodies were, it seems, somewhat poorly treated
by the MEC
and second respondent. I say this for the following reasons.
[6] The
whole process contemplated in Section 33 of the South African Schools
Act 84 of 1996 (the Act) was simultaneously completed
for all the
affected schools in a period of about five months. The process would
have gained more credibility, and overcome some
obstacles, if it had
been conducted in an inclusive manner and at a more measured pace.
There is no explanation for the undue haste
other than to infer that
it was designed to prevent the objections gathering greater momentum.
[7] All
the schools were informed by letter dated 15 October 2012 that they
were to be closed
two
months later. It may be, as it is
alleged, that the pupils were promised free uniforms and transport
for their new schools. However,
the two month period was clearly
insufficient for the necessary adjustments to be made in the daily
lives of the learners and their
parents. That is,
inter alia
,
for them to assess the suitability of the proposed new schools, the
practicability of the suggested transport, the distances involved,
and, most importantly the safety of the affected pupils. All these
problems are compounded by the fact that most of these schools,
if
not all, are located in economically deprived communities.
[8] The
educators were only told much later whether and where they were to be
redeployed. They are not seeking any relief in these
proceedings but
the indifference to their plight warrants noting. I raised this
aspect with Mr E Fagan SC, who appeared with Ms
E Van Huyssteen on
behalf of the first and second respondents, during the course of oral
argument. He was unable to furnish any
coherent reason why the
educators were given such short notice of the pending changes in
their employment.
[9]
Similarly, the MEC refused to consult with the South African
Democratic Teachers Union (SADTU) prior to making the decisions
to
close the schools. It appears that his immediate predecessors
involved the union prior to making such decisions. The MEC maintains
that consultation with SADTU was unnecessary. He met with them
afterwards for the purposes of the
Labour Relations Act 66 of 1995
.
The co-operation and advice of the teachers’ union would have
added greater acceptance of his decisions to close the schools.
The
failure to consult with SADTU does not, however, render the closure
decisions unlawful and invalid as the applicants contend.
There is no
legal basis for that conclusion.
[10] MR
HENRY CLAUDE HOCKEY, the acting principal of the first applicant,
suggests that the clockwork-like manner in which the process
contemplated in Section 33 of the Act was carried out, in most
instances to the day in respect of each school, leads to the
inescapable
conclusion that the decisions to close the schools had
already been made by the MEC and that the process of consulting with
the
governing bodies and holding public hearings was merely an
attempt to comply with the letter of the law. A perusal of the
transcripts
of the meetings held in respect of each school in fact
confirms to some extent what Mr Hockey says. It is quite clear that
the
MEC, or his representatives, and the affected parties did not
speak to each other meaningfully in order to achieve some
understanding
of the issues, and resolve them. This was so, as the
MEC’s representatives, that is the chairpersons of the
meetings, saw
themselves merely as mute transcribers of what was
being said by the objectors. They were not there to encourage two-way
communication
and reach some accord with the affected community with
regard to the further education of their children. I shall revert in
greater
detail to this aspect in due course.
[11] Most
of the schools which the MEC seeks to close are rural schools. Their
location, the limited number of pupils in each school
and the
multi-grade teaching in some instances, are a product of their unique
history. These schools, which were built over decades,
were intended
to make very basic education accessible to the children of the rural
poor, including both permanently employed and
seasonal farmworkers.
The communities from which the children come are scattered over the
more remote parts of the Western Cape
interior. The proposed new
schools inevitably involve travel over greater distances. The
regularity or otherwise of the transport,
the time spent on the roads
and other related problems, may result in the ill-considered closure
of such schools, placing in jeopardy
the children’s right to
access to basic education.
[12] Using
figures and percentages to determine the efficacy of the schools is
deceptive in that the schools are very different
to well-resourced
urban schools and the social circumstances of their respective
student bodies are vastly different. Deciding
upon the closures
simply on the basis of numbers and poor results is a simplistic
response to an enormous social problem. The hurried
closure of such
schools may result in some of the children not receiving any further
education.
[13] In
any event the closure of poorly functioning schools is hardly a
salutary response from those entrusted with the task of
managing the
education of our young. If learners are not performing optimally at a
particular school, one would expect the MEC
to adopt measures to
remedy the situation. More teachers, extra classes, better
facilities, remedial teaching and a host of other
tools are
universally used to create a more effective learning environment.
[14]
According to the MEC the decisions taken by him, and the
implementation of the said decisions, relate fundamentally to the
use
and distribution of resources. He says, in express terms, that a
decision to close certain schools is taken after deciding
upon the
best way to use and distribute the limited resources available to the
Western Cape Education Department (the WCED). These
resources, he
says, include funding and subsidies, but also physical resources like
infrastructure and its maintenance, movable
property, teaching and
learning materials, transport and educators. All of these, the MEC
contends, have significant budgetary
implications.
[15] The
authorities are quite clearly confronted with enormous budgetary
constraints in regard to education as well as other social
expenditure. However, prioritising education is a constitutional
requirement – I shall revert to this shortly – and
taking
the necessary steps to address the educational imbalances of the
past, graphically illustrated by the conditions in the
so-called farm
schools, is a moral, if not legal, imperative. The fact that the
schools sought to be closed in this instance belong
to the
historically disadvantaged sector of society, compounds the problem.
[16]
Although I may differ from the MEC and, I suppose, his advisors, with
regard to the closures of the schools, I am not at liberty
to
interdict him from implementing policy simply based upon my
preference. Specific powers and functions have been entrusted to
the
various branches of government in terms of either legislation or the
constitution. The courts may not usurp those powers as
it “..would
frustrate the balance of power implied in the principle of separation
of powers”. (See: International Trade
Administration Commission
v Scaw South Africa (Pty) Ltd
2012 (4) SA 618
(CC) at para 95).
[17] I am
acutely aware of the doctrine which relates to the separation of
powers. In effect, I may not ordinarily make an order
which infringes
upon the powers and functions of another arm of government. The
required caution in this regard was recently set
out by the
Constitutional Court in National Treasury and Others v Opposition to
Urban Tolling Alliance and Others
2012 (6) SA 223
(CC), (the OUTA
judgment) as follows:
“
Before granting interdictory
relief pending a review a court must, in the absence of mala fides,
fraud or corruption, examine carefully
whether its order will
trespass upon the terrain of another arm of government in a manner
inconsistent with the doctrine of separation
of powers. That would
ordinarily be so, if, as in present case, a state functionary is
restrained from exercising statutory or
constitutionally authorised
power. In that event, a court should caution itself not to stall the
exercise unless a compelling case
has been made out for a temporary
interdict. Even so, it should be done only in the clearest of cases.
This is so because in the
ordinary course valid law must be given
effect to or implemented, except when the resultant harm and balance
of convenience warrant
otherwise.”
(See the
OUTA judgment at para 7)
[18]
Simply stated, it means that certain administrative actions are
placed by the law in the hands of the executive and the judiciary
may
only intervene in very limited circumstances or, as it is put in the
OUTA judgment, in the clearest of cases.
[19]
According to Fagan SC the “policy-laden and polycentric”
decisions in this instance involve a consideration of
the best use
and distribution of resources in a particular setting. They relate to
how best public resources are to be applied
and are pre-eminently
part of the duty and responsibility of the Executive. I have no
quarrel with that submission, save to add
that the expenditure must
comply with the relevant legislation governing its use.
[20]
Everyone has the right to a basic education. Section 29 (1) of the
Constitution guarantees that right. It is immediately realisable
and
not subject to the availability of resources (see: Governing Body of
the Juma Masjid Primary School and Others v Ahmed Essay
N.O. and
Others CCT 29/10
[2011] ZACC 13
at para 37). In terms of the Act,
school attendance is compulsory for learners from the age of 7 years
until the age of 15 years
or until the learner reaches the ninth
grade. Furthermore, in terms of Section 3 (3) of the Act, the MEC has
to ensure that there
are sufficient places for every child who lives
in his or her province to attend school. Nkabinde J points out in the
Juma Masjid
case
supra
at para 38 that “these statutory
provisions which make school attendance compulsory for learners from
ages 7 to 15, read
together with the entrenched right to basic
education in the Constitution signify the importance of the right to
basic education
for the transformation of our society.”
[21] The
MEC is obliged to provide public schools for the education of
learners and the provincial legislature appropriates funds
for this
purpose (see Section 12 of the Act). I suppose in providing schools
and funding them the MEC cannot ignore the lasting
effects of
educational segregation, or apartheid, which, as Nkabinde J points
out, are still “discernible in the systemic
problems of
inadequate facilities and the discrepancy in the level of basic
education for the majority of learners” (see
Juma Masjid
supra
at para 42). In this instance an awareness of the plight of learners
in the Western Cape is not readily apparent from the decisions
to
close the schools nor in the reasons furnished for the decisions. The
decisions to close the schools are principally premised
upon
budgetary constraints.
[22] In
any event the MEC has a positive obligation to protect and promote
the rights in the Bill of Rights (Section 7 (2) of the
Constitution)
and, in particular, the learners’ right to a basic education.
That right is compromised by the decisions to
close the schools.
[23]
Ultimately this case turns on the exercise by the MEC of his powers
under Section 33 of the Act. The said section provides:
“
(1) The Member of the
Executive Council may, by notice in the Provincial Gazette, close a
public school.
(2) The Member of the Executive Council may not act
under subsection (1) unless he or she has-
(a) informed the governing body of the school of his or
her intention so to act and his or her reasons therefor;
(b) granted the governing body of the school a
reasonable opportunity to make representations to him or her in
relation to such
action;
(c) conducted a public hearing on reasonable notice, to
enable the community to make representations to him or her in
relation to
such actions; and …”
[24] Mr NM
Arendse SC, who together with Mr D Simonsz and Mr S Fergus appeared
on behalf of the respondents, initially challenged
the
constitutionality of Section 33,
inter alia
contending that
the section was overbroad and vague, rendering it inconsistent with
the constitution. However, this aspect was
not pursued in oral
argument and, it seems, abandoned.
[25] The
second argument raised by Arendse SC was equally untenable. He
contended that Section 33(2)(c) of the Act prohibits a MEC
from
closing a school unless he has “conducted a public hearing on
reasonable notice,
to enable the community to make representations
to him or her in relation to such action”. It is common cause
that the MEC
did not personally conduct any public hearing. This was
done by other officials of the WCED who reported on the outcome of
the
proceedings to the MEC. Save for one or two exceptions, Section
62 (1) expressly authorises the MEC to delegate any of his powers
to
his officials. That appears to be a complete answer to the complaint
raised in this regard.
[26] The
arguments raised by Arendse SC in respect of the MEC’s failure
to consult meaningfully with the threatened schools
are more
compelling. He contended that Sections 33(2)(b) and (c) require the
MEC to grant the school governing bodies and the communities
of the
threatened schools a reasonable opportunity to make submissions to
him concerning the closure of the schools. If he does
not do so, it
amounts, according to Arendse SC, to a material irregularity which
vitiates the closure decisions. The public hearings
were conducted in
a somewhat peculiar manner. There were no two-way debates or any
consultation processes. They were merely platforms
for the WCED to
passively listen to the community and then report back to the MEC. It
was argued on behalf of the applicants that
this could not be
regarded as a genuine consultation process which granted the affected
party a meaningful opportunity to change
the mind of the
decision-maker.
[27]
Arendse SC is probably correct in his submission that the procedure
followed by the MEC falls short of what is expected in
a public
consultation process. Does it, however, follow that the process was
inconsistent with the provisions of the Act? Fagan
SC argued the
contrary. According to him all the Act requires is that a public
meeting be held for the sole purpose of receiving
representations
from the affected parties. Section 33(2)(c) says as much and no more.
[28] The
public hearings in respect of all the schools were run along similar
lines. I refer briefly to the hearings at two of the
schools in order
to illustrate how the said hearings were conducted.
[29.1] The
notice advertising the intended closure of the Beauvallon Secondary
School furnishes two reasons for the decision by
the MEC to close the
school. It states somewhat cryptically:
“
2.1 Consistent
under-performance in the National Senior Certificate examinations as
well as grades 8 to 11.
2.2 High drop-out rate.”
It seems
that the school is located in an area where gangsterism and drug
abuse are rife. Furthermore, the earlier representations
by the
school to the MEC indicates that the drop-out rate is deceptive and
shows only the total grade 12 learners and fails to
take into account
the great number of learners repeating grade 10 and 11.
[29.2] The
public hearing was held on 25 August 2012 and the proceedings were
recorded. A transcript of the hearing forms part of
the court papers.
[29.3] The
meeting was chaired by a Danny Volschenk. He introduced himself and
indicated that the meeting was being held in terms
of the Act and its
purpose was to provide an opportunity to comment on or to provide
inputs and representations on the proposal
to close the school. He
dealt with the formalities and stated
“
The important point ladies and
gentlemen, I’ve referred to this as a hearing; this is a
hearing and
not
a debate. In other words you are to listen to me and to report what
your purpose … or put on the table in terms of your
(indistinct) or your representations”.
[29.4] Mr
Volschenk then permitted about twenty-five people to speak. He had a
list of speakers and did little else but keep the
meeting in order
and call upon the next speaker. He did not comment on what was being
said nor did he prevent anyone from having
his or her say.
[29.5] The
notice convening the meeting was not read out and at no stage did Mr
Volschenk indicate to the people present why the
WCED propose closing
the school. The reasons for the closure were accordingly neither
debated nor discussed in a meaningful way
or at all.
[30.1] The
notice convening the public meeting in respect of the Protea Primary
School furnishes as the reason for the proposed
closure of the school
“declining learner numbers”. That is the sole reason
given and the school itself has furnished
an extensive response to
that allegation.
[30.2] The
public hearing was held on 22 August and was chaired by one Archie
Lewis. Again the notice convening the meeting was
not read out nor
was the public told precisely why the WCED intended closing the
school. There was to be no debate or discussion
on the matter. Mr
Lewis put it bluntly:
“
Ladies and gentlemen this is a
hearing and
not
a meeting, hence we are not here to debate the issues that you might
raise at this
meeting
or hearing …”.
[30.3] Mr
Lewis also made no comments and permitted the people on his list of
speakers to say what they wished. There was no real
debate or
discussion on the only reason furnished for the proposed closure of
the school.
[31] The
hearings were patently farcical. The chairpersons permitted the
affected parties and members of the public to say what
they wished
without making any attempt whatsoever to raise and discuss the
reasons for the proposed closure of the respective schools.
In fact,
it seems, the chairpersons came to the hearings simply to allow the
public to say what they wished and thereby, hopefully,
complying with
the relevant statutory enactment.
[32] As
was pointed out in Moutse Demarcation Forum and Others v President of
RSA and Others 2011 (11) BCCR 1158 (CC) for a public
hearing to be
adequate certain criteria must be met to ensure that meaningful
participation is allowed. Without being alerted to
the thinking of
the MEC and the WCED in respect of the closures of the schools, real
and effective participation at the hearing
was unlikely. It would not
be an opportunity capable of influencing the decision to be taken.
Before being given an opportunity
to answer the concerns of the
decision-maker, you need to know those concerns.
[33] A
public hearing of necessity involves public participation in the
political process or in the conduct of public affairs. It
implies, at
the very least, a public dialogue, if not debate, with the elected
representatives or as in this instance with the
officials to whom
this task was delegated (see in this regard: Doctors for Life
International v Speaker of the National Assembly
and Others 2006 (12)
BCCR 1399 (CC)). As is also pointed out in this case public hearings
are a key form of political participation
for the citizenry.
[34] The
right to a public hearing assumes a greater importance in this matter
for several reasons. Firstly, it is expressly prescribed
by the
relevant statute. The right to a basic education, as already stated
elsewhere in this judgment, is accorded due importance
in the
Constitution. It states unequivocally that everyone has a right to a
basic education. Moreover, the affected schools have
an unfortunate
legacy which has to be prioritised if the imbalances of the past are
to be redressed. Finally, the MEC is proposing
the closure of
eighteen schools – a significant number – simultaneously
and each school is located in a marginalised
community. Viewed
cumulatively, these factors warrant a proper dialogue with the
affected communities to enable them to make an
informed decision with
regard to the future schooling of their children.
[35] The
practicability of the proposed new schooling arrangements are of
vital importance to the parents for another fundamental
reason. If
they are unable to send their children to the new schools, they face
the prospect of incarceration in terms of Section
3(6)(b) of the Act.
[36] It
follows that the processes contemplated in the Act for the closure of
the schools must be approached with a great deal of
circumspection.
The public dialogue must be a genuine attempt to reach an arrangement
which best suits the interests of all and
enhances the values
enshrined in the constitution. The public hearings conducted by the
officials of the WCED in respect of the
affected schools, simply do
not meet this criteria.
[37] As
will be apparent from the preceding paragraphs, the conduct of the
MEC with regard to the closure of the schools falls below
the
standard required by the constitution and the relevant statutory
provisions.
[38] This
is one of those “clearest of cases” contemplated in the
OUTA judgment which permits the court to come to the
assistance of
the applicants. They quite clearly have a
prima facie
right to
defend their constitutional interests and there is no alternative
remedy save for the court to grant the relief sought.
[39] In
the result, I made the following Order:
The
First and Second Respondents are:
interdicted
from closing any of the schools represented by the First to
Thirty-Sixth Applicants, save for the Twenty-Sixth applicant
and
any other of the applicants where the learners and educators
voluntarily choose not to re-open the affected school;
interdicted
from transferring or compelling to move any of the registered
learners and educators from any of the remaining seventeen
schools,
save in those cases where the learners and educators voluntarily
choose to do so;
interdicted
from moving any movable property belonging to any of the seventeen
schools, and insofar as the Second Respondent
has already done so,
that such property be returned forthwith;
directed
to continue providing the seventeen schools with their full
subsidies and support entitlements, including the payment
of the
salaries and benefits of all educators the First and Second
Respondents employed at the said seventeen schools; and
directed
to take all reasonable steps, including but not limited to the
employment of temporary teachers and the renewal or
reinstatement
of leases, to ensure that all necessary services are provided to
the said seventeen schools;
Directing
that the interdict set out in paragraph 1 above is to remain in
force and effect until the final resolution, inclusive
of all
appeals, of the application for the judicial review set out in Part
B of this notice of motion;
Directing
the First and Second Respondents to pay the Applicants’ costs,
jointly and severally the one paying the other
to be absolved,
including the costs of two counsel.
_____________
DESAI J
I agree
_______________
BAARTMAN J