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[2013] ZAWCHC 100
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Beauvallon Secondary School and Others v Minister of Education for the Western Cape and Others (22507/2012) [2013] ZAWCHC 100 (31 July 2013)
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IN THE HIGH COURT OF SOUTH AFRICA
REPORTABLE
(WESTERN CAPE HIGH COURT, CAPE
TOWN)
CASE NO: 22507/2012
In the matter between:
BEAUVALLON SECONDARY SCHOOL
And Others
And
THE MINISTER OF EDUCATION FOR THE
W/CAPE And Others
___________________________________________________________________
JUDGMENT: 31 JULY 2013
___________________________________________________________________
LE GRANGE, J
[1]
I had the benefit of reading the judgement of Bozalek J, (the main
judgment). I am indebted to him for hiscomprehensive elucidation
of
the background, contentions of the parties, and the four main issues
thatpresented itself during argument. I am in agreement
with the
finding that the MEC’s decision to close the schools in this
instance constituted administrative action, and is
subject to review
in terms of the full range of grounds as set out in PAJA. I am also
in agreement,for the reasons as articulated
by Bozalek J, that the
Applicants challenge against the constitutionality of s 33falls to be
dismissed.
[2]
The two issues relating to whether the process prescribed bys 33(2)
of the SA Schools Act 84 of 1996 and followed by the MEC
was
administratively unfair, arbitrary or irrationaland whether the
process was procedurally fair remain for consideration. Unlike
Bozalek J, who is satisfied that review grounds have been established
pertaining to Beauvallon Secondary School only, the conclusion
I have
reachedleads me toanoutcome that diverges from his decision.
[3]
The MEC, in order to streamline the educational system and give
effect to the Constitutional ideal of Quality Education for
all, is
lawfully entitled to close a schooldespite the concomitant huge
inconvenience to the affected parties. This matter, and
my judgment
herein, do not take issue with that, but rather concerns the process
to be followed before such a decision should take
place.
[4]
According to the MEC,his decision to close the relevant schools has
beenlargely motivated by the desire to improve the educational
opportunities of all children in the province. In addition the
objective and aim of his decision is to further enhance the quality
of education at some schools, and to have learners attend schools
equippedwith better facilities to provide quality education.
To this
end, he further states that ‘
A decision to close a public
school entails the consideration of a range of factors against the
background of a carefully designed
educational policy in the
province, as well as the limited resources available to the WCED.’
It was pointed out by the MEC that neither he nor his department
haspredeterminedstandards or tests against which they measured
the
performance of any particular school, andthat the ultimate decision
as to which schools should be closed, involved a ‘balancing
of
many factors’.The MEC ultimately decided to close 20 of the
schools originally earmarked for closure. Of the 20 schools
closed, 4
were urban Cape Town schools and the balance all rural or farm
schools. Most of these rural schools have a long history.
Somedating
back between 40-70 years and the majority of them, if not all, are
located in economically deprived communities. At
the public meetings,
the record clearly speaks of widespreadobjections from the affected
parties and strong emotions and deep unhappiness
underpinning the
said objections.
[5]
The history of education in this Country,as alluded to by the full
bench in the interdictory relief, has been one of tragic
consequences
affecting the lives of millions of children. Presently our
educationalsystem still facesenormous challenges. Bold
efforts are
requiredto enhance proper and quality education to all learnersin
order to achieve the promises and objectives enshrined
in our
Constitution.
[6]
The importance of education and in particular basic educationhas
repeatedly been asserted by our Higher Courts.The importance
of
access to schools as a significant component of the right to basic
education has also been emphasised. Moreover, the right to
basic
education imposes a positive obligation on all those who make
decisions concerning a child, in thisinstance the MEC and WCED,
to
ensure that the best interests of the child enjoy paramount
importance in their decisions. In this regard see
Governing Body
of the JumaMusjid Primary School v Essay NO
2011(8) BCLR 761 (CC)
para [43] – [44] and [67].
[7]
The present dispute between the parties must therefore be viewed
within this context and constitutional framework.
[8]
The Applicants’ case is principally anchored in s 33 (2) of the
Schools Act andthey raise two categories of grounds of
review. The
first are general and the second are school specific grounds.In
respect of the first category, three grounds of review
were raised.
The first is the failure to provide adequate reasons, the second is
the failure to grant SADTU a hearing and lastly,
the arbitrariness
and irrationality of the decision.Regarding the failure to grant
SADTU a hearing, I am in agreement with the
reasoning of Bozalek
J,that this ground of review falls to be dismissed.
[9]
In terms of the general grounds, I now turn to consider the first
review ground. At the heart of the Applicants’ complaint
is
that the MEC has given them insufficient reasons for closure. As a
result,no meaningful engagement has taken place between the
parties
that can be construed as amounting to real or genuine consultation.
[10]
It is perhaps convenient at this stage to refer to the process and
approximate time line the WCED and the MEC adopted before
coming to a
final decision and the reasons provided by them to the Applicants for
the intended closure of each school.
[11]
The approximate chronology of the time – line in 2012, can be
summarised as follows:-
23
April
Education District
recommends closure. An application form setting out inter alia the
reasons for the suggested closure is completed
by the IMG Adviser,
the Circuit Team Manager and the District Director.
10
May WCED prepares a report, with a recommendation that the Minister
approve the closure in principle, subject to any representations
received from the SGB and any member of the public at,
or
prior to, the public hearing.
12-18
May The report is considered and the recommendation agreed to by:-
-
Director:Infrastructure Planning and Management
-
Chief Director: Physical Resources
-
Chief Director: Districts
-
Deputy Director-General: Education Planning
-
DeputyDirector-General: Institution Development and Co-
ordination
-
Head: Education
25
May Minister approves the recommendation and signs letter to the SGB.
28
May
School signs
acknowledgement of receipt.
5
June Meeting between WCED officials and SGB. Written representations
from SGB handed to WCED.
21
June WCED prepares a further report, with a recommendation that the
Minister approve the continuation of the process to close
the school.
21
June The report is considered and the recommendation agreed to by:
-
Chief Director: Physical Resources
-
Deputy Director-General: Institution Development and Co- ordination
-
Head: Education
3
July Minister approves the recommendation and signs letter to SGB.
18,19
July Notices of public hearing published.
7
August WCED publishes media release and proposed learnerplacement
plan, including names and advantages of receiving schools and
map.
25
August Public hearing. Oral representations received. Written
representations received (as well as previously andsubsequently).
31
August Reports on public hearing prepared by presiding officer and by
Circuit Team Manager and District Director, with recommendations.
27
September Data on school considered for closure and receiving schools
downloaded from CEMIS.
28
September WCED prepares final report, incorporating two aforesaid
reports as well as record and minutes of public hearing and
CEMIS
data, and makes recommendations.
28-29
September The report is considered and the recommendation agreed to
by:
-
Director: Physical Resources
-
Chief Director: Physical Resources
-
Chief Director: Districts
-
Deputy Director-General: Education Planning
-
DeputyDirector-General:Institution Development and Co-ordination
-
Head: Education
15-16
October Minister makes decision, and addresses letters to SGB,
principal and parents and guardians.
[12]
The initial reasons advanced for the closing of the effected schools
were the following:-
Beauvallon:
“
Consistent underperformance in the NSC examinations as well
as Grade 8 to 11”, and “High dropout rate”.
Bergrivier:
“
Continuous decline in learner numbers over the past 2
years, from 57 to 35 in grades 1-6”, and “eradication of
multi-grade
teaching”.
Brackenhill:
“
Dwindling learner numbers” and “learners do not
benefit maximally by multi-grade teaching”.
Denneprag:
“
Dwindling learner numbers” and “learners do not
benefit maximally bymulti-grade teaching”.
Klipheuwel:
“
There is no feeder community”, and “dwindling
learner numbers”.
Krombeksrivier:
“
The learner numbers have been dwindling and the learner
growthwill not increase sufficiently in the near future”, and
“the
multi-grade teaching compromises the delivery of quality
education”.
LK
Zeeman: “
The school building is under-utilised”,
“gradual decrease in learner numbers causing educators to be in
excess”,
and
“
nearby schools have accommodation”.
Lavisrylaan:
“
The learner numbers have been dwindling and there is also a
preparatory school within 500m offering the same curriculum”,
“enough provisioning at neighbouring schools”, and “there
is no principal at present and thepost has been vacant
for 3 years”.
Protea:
“
Diminishing leaner numbers (Gr 1 to 7 = 211 learners).”
Redlands:
“
Dwindlingleanernumbers”;“multi-grade teaching
compromises quality education delivery” and “poor LITNUM
results
of the school”.
Rietfontein:
“
Learner numbers have been dwindling:, “Learners can
be accommodated at neighbouring schools”, and “multi-grade
teaching compromises quality education delivery”.
Rondevlei:
“
the quality of the education suffers as a result of the
multi-
grade teaching”, “learners are transported
from George to the school” and “the learner numbers are
dwindling”.
Urionskraal:
“
The learner numbers have been dwindling”, and “there
is no feeder community”.
Valpark:
“
The learner numbers have been dwindling and there is
enoughprovisioning at neighbouring schools for all the learners”,
“there
are other schools in the area that can accommodate the
learners”, and “the school is no longer viable”.
Wansbek:
“
The learner enrolment is lower than 25”.
Warmbad-Spa:
“
Dwindling leaner numbers”, and “multi-grade
teaching is compromising quality education”.
Welbedacht:
“
Dwindling learner numbers”, “unsuitable
accommodation”, and “multi-grade teaching that
compromises quality
education.”
[13]
At Bosplaas, one of the schools the MEC decided not to close, the
reasons advanced for closing were the following: ‘Continuous
decline in learner numbers over the past 2 years, from 57 to 35 in
Grades 1-7 and eradication of multi-grade classes’. It
was
suggested that the current learners can be accommodated at two nearby
primary schools and that a transport scheme be implemented.
As for
the educators, the recommendation was that the two permanent members
should be transferred to one of the nearby primary
schools and the
third educator’s contract not be renewed at the end of December
2012. (I will return to the decision by the
MEC relating to Bosplaas
when considering the question ofirrationality)
[14]
It is evident from the time-line stated above that the whole process
contemplated in s 33 of the School’s Act was completed
for all
the affected schools simultaneously in a period of approximately five
months.
[15]
I am acutely aware that in determining what constitutes procedural
fairness in a given case, a Court must be slow to impose
obligations
upon Government which will inhibit its ability to make and implement
policy effectively. However, what constitutes
a fair process will
ultimately depend upon the circumstances of each case.See
Premier
Mpumalanga v Executive Committee, Association of State Aided- Schools
Eastern Transvaal
1999 (2) SA 91
(CC) at para [41].
[16]
In the present instance s 33 of the Schools Act provides that the MEC
must inform the SGB of his/her intention to close a school
and his
reasons therefor. It also provides a mechanism for the SGB and the
local communities to make representations to the MEC
in this regard.
Common sense dictates that it cannot conceivably be expected from an
MEC to advance his/her final reasons at this
stage for closure of the
schools since the entire process has not yet been finalised. However,
the intention to permanently close
a school has significant
consequences not only for the affected learners and their educators,
but for the local communities as
well. It not only leads to the
permanent closure of a particular school’s doors and the
transfer of its assets, but also
the permanentdeletion of its entire
history and achievements, if any,within the local community.
[17]
In my view substantive fairness justifiably dictates that,in these
circumstances, the SGB and the community are entitled to
adequate and
proper reasons why the MEC harbours an intention to close a school.
Given the MEC’sstatement that neither he
nor his department has
predetermined standards or tests against which they measured any
performance of any particular school, and
that the ultimate decision
as to which schools should be closed involved a ‘balancing of
many factors’, the reasoning
and motivation to close should be
made clear. The failure to advance adequate and proper reasons for an
intended closure of a school
can certainly compromise any meaningful
representation by the SGB and affected communities, thereby rendering
such process inherently
flawed and unfair.
[18]
The issue for consideration now is whether the initial reasons
advanced by the MEC in this instance were inadequate to the
extent
that no meaningful representation by Applicants and the communities
could took place rendering the process irredeemably
flawed. Put
differently, did the procedure followed by the MEC fall short of what
is reasonably expected in a public consultation
process?
[19]
The MEC hasrepeatedly stated that the WCED has limited resources. He
also indicatedthat it is his responsibility to ensure
that these
resources are distributed and utilised in a responsible manner to
provide ‘an education of progressively high
quality for all
learners’. The MEC’s vision in this regard is highly
commendable, but on the papers it is evident that
‘the limited
resources’ was one of the keydrivers for initiating the s 33 of
the School’s Act process. Moreover,
if one has regard to the
process as revealed in the Rule 53 record, a more detailed
departmental policy on the closure of small
and non-viable schools
becomes apparent. The decision to close the schools was therefore
mainly premised on budgetary constraints.
[20]
The initial reasons advancedfor closure of schools are in my view
extraordinarily brief, taking into account the complex decision
the
MEC needed to take. The complaint that the reasons advanced such as,
‘
unsuitable infrastructure; learner numbers have been
dwindling;learners do not benefit maximally by multi-grade teaching’
,
were too brief for any meaningful engagement with the WCED and the
MEC, is in my view not without merit. The meeting with the
SGB’s
and public clearly demonstrates that the reasons advanced for the
possible closurewerelargely inadequate. The manner
in which these
proceedings were conducted further strengthened the Applicants’
case. The officials of theWECD who chaired
the public meetings simply
allowed the affected parties at the meeting to say what they wished
without making any attempt whatsoever
to engage, raise and discuss
the reasons for the proposed closure of the respective schools.In the
interdictory relief judgment
the following remarks were made by Desai
J:-
“
The
right to 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.”
[21]
I agree with these views and regrettably cannot accept that the
paucity of reasons in this instance ‘did not operate
as a
stumbling block to the making of meaningful representations’.
Procedural fairness in the present instance requires more
because as
it stands, the procedure followed renders the consultation process an
artificial formality.The evidence of the majority
of principals of
the affected schools clearly demonstrated that the paucity of the
initial reasons affected them prejudicially.
The evidence of the
principal of Bergriviër NGK Primaryis a prime example regarding
the difficulty they faced in making proper
representation to the
MEC:-
“
10.
Bergrivier has in 2013 a total of 74 learners, of which 23 are in
Grade R. Hence between Grades 1 to 6 we have 51 learners.This
is an
improvement on last year, when we had 47 (excluding Grade R).
11.
The Minister, in his reasons, claimed that the school had only 35
learners. This is untrue. The school has never had so few
learners. I
do not know where the Minister got this information. We did inform
the Minister’s representatives at the public
hearing that the
school had considerably more than 35 learners.
12…
13..
14..
15.
I have been advised that in his affidavit, the Minister claims that
if Bergrivier is closed and our learners shifted to Soentendal,
there
will be “better literacy and numeracy results, opportunities to
participate in team sports, better service delivery
and use of
resources, and no multi- grade classes.
16.
Other than the reference to multi-grade teaching, none of these
reasons were ever put to myself or any other representative
of the
school whether verbally or in writing. I am not even sure what is
meant by “better service delivery and use of resources”.
I can confirm that Bergrivier has exactly the same services
(including, for example, running water, closed toilets, electrical
systems, feeding schemes and so on) as Soetendal. The only difference
is that Soetendal has team sports, where at Bergrivier we
teach
sports like athletics. I contend that this is not a valid reason to
close a school.
17.
I further contend that multi-grade teaching is not by itself a reason
to close a school. Many of our learners have benefitted
and best
perform, in the safe environment of Bergrivier. Just for example, our
pass rate for Grade 6 learners from 2009 to 2011
is 100%. This is
because Bergrivier – with the assistance of the Centre for
Multi Grade Education associated with the Cape
Peninsula University
of Technology – is familiar with the techniques of multi-grade
teaching and can implement them effectively.
18.
There are, in any event, many other multi-grade schools in the
Western Cape. Why was our school chosen out of all of these schools
to be closed? We have no idea. If the Minister had told us why he had
chosen us, out of all of these schools, we could have made
proper
representations that responded to his reasons. He did not, and this
has left us totally in the dark.”
[22]
In the present instance the MEC had evidently more information at his
disposal when he initially furnished his brief reasons
for closure. A
short background to the departmental policy regarding the closure of
schools and other relevant policies could easily
have been made
available to the affected parties. This, in my view, would have
enhanced and made the process more meaningful. The
brief reasons
provided for closure and the mechanical manner in which the process
was followed manifestly impeded effective and
proper representations
by the Applicants and the public. In my view, it falls short of the
requirement in s 33(2) of the School’s
Act and is a material
factorthat justifies interference by this Court.
[23]
In respect of the third ground of review in this category, the
Applicants’ complaint is that in the absence of any
clearly-defined
criteria that are consistently applied, the MEC’s
decision to close the schools was taken arbitrarily and capriciously.
The
crux of the complaint is that several of the schools the MEC
decided to close are markedly similar to the schools he decided not
to close. This resulted in a lack of rational basis for the closure
decision. In these respects Mr Arendse highlighted the following
in
his heads of argument.
[24]
Some schools were given the opportunity to put “ad hoc”
measures in place in response to the WCED’s concerns,
while
others were not. In situations in which the problem of weak
leadership was raised as a concern, in respect of certain schools
the
option of simply replacing the principle was deemed a valid
alternative response to closing the school, while not in respect
of
others. Although concerns were raised by many schools relating to the
safety of pupils travelling to placement schools, these
were
dismissed by the MEC as “statistically insignificant”.
Additionally, it was pointed to one instance in which a
school’s
good results and its importance to the community were enough to
persuade the MEC to keep it open, while such considerations
were
ignored for the other schools. The MEC’s citation of
multi-grade teaching as a reason for closure was particularly
problematic. Certain schools were kept open on the basis that the
method had been successfully implemented at the school, while
others
were closed based on the risk of quality of education declining,
despite evidence of the method’s success. Furthermore,
in
certain cases schools were closed despite the placement schools also
using multi-grade teaching. Finally, it was pointed out
that in some
instances, even though it had been shown that the primary reason
given for a certain school closure was false, the
MEC went ahead with
the decision to close.
[25]
In the papers filed, the MEC gave an overview of the nature of the
decision he was called upon to take. He reiterated the complexity
of
his decision and the many balancing factors considered before taking
a final decision. He also referred to the guidelines in
this regard
and the possible reasons for closing a school which include
inter
alia
low levels of learner enrolment, inadequate curriculum
provisioning, limited school access, unsuitable schooling
infrastructure,
poor retention of learners, inability to attract and
retain educators, and difficulties related to the location of schools
on private
property. He also stated that many schools are too small
to provide an optimal education, according to international and local
research. The MEC also stated that,in order to find the necessary
resources to build new high schools, small rural schools would
have
to be closed down to make valuable resources available that can be
utilised better elsewhere.
[26]
Counsel for the MEC, Mr. Fagan,submitted that the decision that was
taken was essentially a polycentric one. Moreover, the
MEC’s
decision was rationally related to the purpose for which the power to
close schools was given and that his actions
bear a rational
connection to the facts and information available to him.Furthermore,
it was argued that it serves no point comparing
one or two aspects of
an applicant school with one or two aspects of a school that is
remaining open as the MEC and the WCED did
not have preconceived
standards or tests against which they measured the performance of any
particular school. Instead, the argument
continued, the MEC
considered all the information pertaining to each of the 27 schools
on its own terms, in light of the national
and provincial policy and
available resources, and made his decision on that basis and there is
therefore no validity in this review
ground.
[27]
I have no difficulty with the submission that the decision taken by
the MEC was based on policy considerations. My difficulty
is whether
the MEC’s closure decision was rational having regard to the
paucity of his initial reasons for closure, the flawed
process in
obtaining representation during the meetings with the affected
parties and whether all the relevant facts and information
was
available to him. Rationality in essence means that a decision must
be supported by the evidence and information before the
administrator, as well as the reasons given for the decision. It must
also be objectively capable of furthering the purpose for
which the
power was given and for which the decision was purportedly taken. In
this regard See Hoexter, Administrative Law in South
Africa at 307;
and
Bato Star Fishing (Pty) Ltd v Minister of Environmental
Affairs
[2004] ZACC 15
;
2004 (4) SA 490
CC at 513 para [45] where the court held
the following:-
“
What
will constitute a reasonable decision will depend on the
circumstances of each case, much as what will constitute a fair
procedure
will depend on the circumstances of each case. Factors
relevant to determining whether a decision is reasonable or not will
include
the nature of the decision, the identity and expertise of the
decision-maker, the range of factors relevant to the decision, the
reasons given for the decision, the nature of the competing interests
involved and the impact of the decision on the lives and
well-being
of those affected. Although the review functions of the Court now
have a substantive as well as a procedural ingredient,
the
distinction between appeals and reviews continues to be significant.
The Court should take care not to usurp the functions
of
administrative agencies. Its task is to ensure that the decisions
taken by administrative agencies fall within the bounds of
reasonableness as required by the Constitution.”
[28]
I readily accept that the ultimate decision to close a school will
always be contentious and in all likelihood will not please
all the
affected parties. However, the decision to close a school has
significant consequences, not only for the affected learners
and
their educators, but for the local communities as well. Moreover, if
parents are unable to send their children to the new school,
they
face the prospect of incarceration in terms of s 3(6) of the School’s
Act.
[29]
In considering whether the MEC’s closure decision was rational,
the fear may arise that this Court will be drawn into
the merits of
the MEC’s decision, thereby breaking down the crucial
distinction between appeal and review. I am alive to
the fact that
action in review proceedings must not be tested against the
reasonableness of the merits of the decision in the same
way as in an
appeal. In the circumstances of this case, however, the decision of
closure will by its very nature have a drastic
impact on the
learners’ right to education, access to school and the best
interest of the child. It is therefore almost impossible
to determine
rationality without at the same time considering the merits of the
decision taken by the MEC.
[30]
In my view the approach adopted in
Carephone (Pty) Ltd v Marcus NO
1999(3) SA 304 (LAC) para 36, is apposite in the present instance.
“
In
determining whether administrative action is justifiable in terms of
the reasons given for it, value judgements will have to
be made which
will, almost inevitably, involve the consideration of the ‘merits’
in some way or another. As long as
the judge determining [the] issue
is aware that he or she enters the merits not in order to substitute
his or her own opinion on
the correctness thereof, but to determine
whether the outcome is rationally justifiable, the process will be in
order
.”
[31]
In this instance,taking into account the complexity and balancing
factors that needed to be considered by the MEC, the entire
process
contemplated in s 33 of the Schools Act was completed simultaneously
in respect of all the affected schoolsin a very short
period of
time.The Applicants have demonstrated in the papers filed that the
schools the MEC decided to close have remarkable similarities
tothose
he decided to keep open. One of the schools the decision favouredwas
Bosplaas NGK Primary School. This school, like many
of the affected
rural schools the MEC decided to close, currently accommodatesabout
40 learnerswith different learning capacities,
including learners
with foetal alcohol syndrome. In the Bosplaas matter two councillors
from the local Drakenstein Municipality,Doctors
ND Adams and H. von
Schlicht, compiled reports voicing their opposition to the closing of
the school. Dr Adams at the time was
from the office of the Portfolio
Holder for Social Services, Health and Community Development. The
views in these reports demonstrate
the benefits of multi-grade
teaching and the remedial needs that can be addressed in a smaller
environment where learners come
from a socially, emotionally,
financially poor and deprived environment.
[32]
The issue of multi-grade teaching and the benefits of smaller
schoolsareclearly issues of policy, which fall in the exclusive
domain of the MEC and his department. However, where multi-grade
teaching was cited as the primary reason to close certain schools,in
circumstances in which schools where the method is implemented and
with an equallysuccessful rate are given a reprieve to continue,then
the complaint of arbitrariness is not without merit and cannot be
ignored on the basis of policy consideration.
[33]
I am not persuaded, in the present circumstances, that the
Applicants’ attempt to ascribe arbitrariness or capriciousness
to the closure decision on the basis of certain similarities between
some schools is misplaced. The difference between the MEC’s
initial and final reasons for closure at certain schools, and in
particular Beauvallon Secondary School, in my view gives further
credence to the Applicants’ complaint of irrationality. I am
satisfied that the Applicants have established a ground for
review in
this regard. In view of these findings it will be unnecessary to deal
with the specific grounds of review raised by the
Applicants and the
discrepancies between the reasons initially given for the proposed
closure by the MEC and the final reasons.
[34]
I am satisfied that the relief sought by the Applicants in respect of
the closure of the schools should be granted and the
decision of the
MEC to close the affected schools be reviewed and set aside with an
appropriate costs order as alluded to by Bozalek
J.
[35]
In the result, I would make the following order:-
The
First Respondent’s decision made on or about 15-16 October
2012, to close the affected schools with effect from 31 December
2012 is reviewed and set aside;
The
application for declaratory relief in relation to
s 33(2)
of the
South African Schools Act, 81 of 1996
is dismissed;
The
First and Second Respondents are ordered to pay the Applicants’
costs (except the costs of the 35
th
Applicant, SADTU),
jointly and severally, the one paying the other to be absolved and
such costs to include the costs of two
counsel.
In
respect of the 35
th
Applicant, SADTU, each party to pay
its own costs.
_____________________________
LE GRANGE, J
I
agree.
_____________________________
DOLAMO, J