Beauvallon Secondary School and Others v Minister of Education for the Western Cape and Others (22507/2012) [2013] ZAWCHC 101 (31 July 2013)

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[2013] ZAWCHC 101
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Beauvallon Secondary School and Others v Minister of Education for the Western Cape and Others (22507/2012) [2013] ZAWCHC 101 (31 July 2013)

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REPORTABLE
THE
REPUBLIC OF SOUTH AFRICA
IN THE HIGH
COURT OF SOUTH AFRICA
WESTERN CAPE HIGH COURT, CAPE TOWN
Case No: 22507/2012
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 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
RIETFONTEING NGK PRIMARY SCHOOL
Twenty-Second Applicant
RONDEVLEI EK PRIMARY SCHOOL
Twenty-Third Applicant
SCHOOL GOVERNING BODY OF
RONDEVLEI EK PRIMARY SCHOOL
Twenty-Fourth Applicant
URIONSKRAAL NGK PRIMARY SCHOOL
Twenty-Fifth Applicant
SCHOOL GOVERNING BODY OF
URIONSKRAAL NGK PRIMARY SCHOOL
Twenty-Sixth Applicant
VALPARK PRIMARY SCHOOL
Twenty-Seventh Applicant
SCHOOL GOVERNING BODY OF
VALPARK PRIMARY SCHOOL
Twenty-Eighth Applicant
WANSBEK VGK PRIMARY SCHOOL
Twenty-Ninth Applicant
SCHOOL GOVERNING BODY OF
WANSBEK VGK PRIMARY SCHOOL
Thirtieth Applicant
WARMBAD-SPA PRIMARY SCHOOL
Thirty-First Applicant
SCHOOL GOVERNING BODY OF
WARMBAD-SPA PRIMARY SCHOOL
Thirty-Second Applicant
WELBEDACHT UCC PRIMARY SCHOOL
Thirty-Third Applicant
SCHOOL GOVERNING BODY OF
WELBEDACHT UCC PRIMARY SCHOOL
Thirty-Fourth Applicant
THE SOUTH AFRICAN DEMOCRATIC
TEACHERS UNION Thirty-Fifth
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
JUDGEMENT: 31 JULY 2013
BOZALEK J:
On 16 October 2012 the Western Cape
Minister of Education (‘
the Minister’
) announced
his decision to close twenty schools in terms of s33 of the South
African Schools Act, 84 of 1996 (‘
the Act’
). The
Minister’s decision gave rise to these review proceedings
which were preceded by an urgent application seeking an
interdict
against the closure of the schools pending the outcome of the review
of the Minister’s decision. The interdictory
relief was argued
and an order in favour of the applicants was granted in December
2012. What now falls to be determined are
the review proceedings.
Of the twenty affected schools
eighteen were originally cited as applicants together with their
school governing bodies (‘
SGB’
), two schools
having accepted their closure. One of the original eighteen schools,
Tonko Bosman Primary school, and its SGB are
no longer numbered as
applicants following difficulties in obtaining instructions. The
thirty-fifth applicant, all of whom were
represented by Mr Arendse
SC together with Mr Fergus, is the South African Democratic Teachers
Union (‘
SADTU’
). The relief sought by the
applicants in the review proceedings was an order reviewing and
setting aside the decisions of the
Minister to close the affected
schools with effect from 31 December 2012 and, in the alternative,
an order declaring s33(2) of
the Act unconstitutional.
The Minister and the Western Cape
Education Department (‘
the department’
) were
cited as first and second respondent and were represented by Mr
Fagan SC who appeared together with Ms van Huyssteen. Both
these
respondents opposed the interdictory review and declaratory relief
sought. The Ministers of Basic Education and Justice
and
Constitutional Development were also cited as the third and fourth
respondents as a consequence of a challenge to the constitutionality

of s33(2) of the Act. The fourth respondent did not enter the fray
but the third respondent, represented by Mr Masuku, defended
the
constitutionality of s33(2) and filed an opposing affidavit.
BACKGROUND
Before setting out the issues which
arose in the review application it is appropriate to sketch the
process which culminated in
the closure decisions. Regard must first
be had to s33 of the Act which stipulates the process which must be
followed by a Provincial
Minister of Education (a Member of the
Executive Council) before making any such decision. To the extent
that it is material
it reads as follows:
CLOSURE
OF PUBLIC SCHOOLS
[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 therefore;
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;
d)
given due consideration to any such representations received.
Following certain guidelines for the
closure of non-viable schools (‘
the guidelines’
)
the department required its various district officers to identify
schools which were no longer educationally viable and should
be
considered for closure by the Minister. In terms of the guidelines
possible reasons for closing a school include low levels
of learner
enrolment, inadequate curriculum provisioning, limited school
access, unsuitable schooling infrastructure, poor retention
of
learners, an inability to attract and retain educators and
difficulties relating to the location of schools on private
property.
The head of the department considers each such application
and if, after investigation and consideration by a range of senior
officials within the department, he or she approves the application
then he or she recommends the school closure to the Minister.
If,
after consideration, the Minister approves the recommendation a
letter is sent to the SGB by the Minister in accordance with
the
provisions of s33(2)(a) of the Act advising of his intention to
close the school and setting out his reasons for such intention.

These reasons were then, briefly stated, generally in the following
terms: ‘
dwindling learner numbers, ‘learners do not
benefit maximally by multi-grade teaching’, ‘eradication
of multi-grade
teaching’, ‘high drop-out rate’,
‘the learner numbers have been dwindling and there is enough
provisioning
at neighbouring schools for all the learners’,
‘consistent under performance in the NSC examination as well
as (certain)
Grades’, ‘learners do not benefit maximally
by multi-grade teaching’, ‘there is no feeder
community’,
‘the school building is under-utilised’,
‘gradual decrease in learner numbers causing educators to be
in excess’,
‘enough provisioning at neighbouring
schools’, ‘unsuitable accommodation’, ‘poor
LITNUM results
of the school and the school is no longer viable’.
In a few instances the precise decline in learner numbers was
stipulated or the underperforming grades were identified and in

several cases it is stated that there is enough provisioning at
neighbouring schools or that ‘
there are other schools in
the area that can accommodate the learners’
.
The initial letter
advises the SGB that it has a reasonable opportunity to make
representations to the Minister in relation to
his intention to
close the school which can be done either orally at a meeting with
the department to be arranged or in writing
within a stipulated
period or using both methods.
A meeting between the SGB, of
which the school principal is an ex-officio member, and departmental
officials would almost invariably
take place in which the members of
the SGB were able to and did make representations about the proposed
closure and, with varying
degrees of success, engaged with such
officials regarding the issues. The minutes of such meetings were
generally kept by the
department’s officials and formed part
of the record in the case of each school.
Having regard to the representations
received through this process the department prepared a further
report, generally with the
recommendation that the Minister approve
the continuation of the process to close the school. Again this
process involved consideration
of the report and recommendation by a
series of senior officials within the department. Where the Minister
approved the recommendation
to this effect a letter would be written
to the SGB advising that the department would arrange a public
meeting to receive further
representations regarding the closure of
the school. A notice was then published in the Provincial Gazette
giving notice of the
school closure, the reasons therefor,
explaining the requirement of a public meeting to enable the
community to make representations
in relation to the matter and
giving adequate notice of the time and place of the meeting. In
every case the meeting was held
within the affected community. The
notices also stated that written or oral representations regarding
the proposed closure could
be made and gave details in this regard.
Each public meeting was chaired by a
senior departmental official with other officials generally present.
An interpreter was provided
and representations were invited in any
of the three main prevailing languages. The proceedings were in each
instance video-recorded
and transcribed. At the commencement of each
meeting the chair advised those gathered of the purpose of the
meeting, restated
the reasons for the proposed closure of the school
and invited representations. A feature of each of these
introductions was
that the chair invariably advised that the
departmental officials were there to receive and hear representation
and not to engage
in a debate. Thereafter every person who wished to
speak was given an opportunity to do so and to hand up written
submissions
in support of their representations if they so desired.
After each such meeting the proceedings were transcribed, minutes
were
prepared of the meeting summarising the nature of the
representations and identifying the person making the
representations and
the capacity in which they spoke. Thereafter the
departmental official who chaired the meeting prepared a report on
the public
meeting which
inter alia
again summarised the
representations made by or on behalf of interested parties together
with recommendations concerning the
proposed closure of the school.
A further report would be drawn up
giving comprehensive data on the school considered for closure and
on the proposed receiving
school. This data, included literacy and
numeracy evaluation of the performance of the learners in the school
(the LITNUM results)
was downloaded from the department’s
CEMIS system. The department then prepared a final report,
incorporating the two aforesaid
reports, the transcribed record of
the public hearing and the minutes thereof together with a
concluding recommendation. That
report was considered in turn by six
(6) senior officials of the department who were free to add their
comments and agree or
disagree with the recommendation before the
entire report was placed before the Minister.
Once the Minister had made his
decision in those cases where he accepted a recommendation to close
the school, letters were sent
either by the Minister or the head of
the department to the chair of the SGB, the school principal and the
parents and guardians
of the learners at the affected school
advising of the closure of the school with effect from 31 December
2012. Where appropriate
the letters stated that if necessary
transport to the receiving schools would be furnished and offered
the department’s
assistance with any queries of difficulties
arising. The Minister’s decisions to close the schools
appeared to have been
taken on or about 15 October 2012, the
processes in respect of each school running on a similar time frame
i.e. commencing in
April 2012 and culminating in mid-October of the
same year.
On 16 October 2012 the Minister
released a lengthy media release dealing
inter alia
with the
process which had been followed, the Learner Placement Plan for
schools that were to be closed and support plans for
schools that
were not closed. He announced the outcome of the process in relation
to each of the 27 affected schools and his
statement represented the
first occasion on which he expressed the ‘
considerations’
which gave rise to his decision to close the schools, apart from the
initial reasons furnished at the earlier stages of the process.
Of
the 20 schools closed 2 were in the Metro Central district, 2 in the
Metro North district, i.e. urban Cape Town schools, 5
in the Cape
Winelands district, 2 in the West Coast district and 9 in the Eden
and Central Karoo district.
The applicants’ case is that
the school closures were unlawful and unconstitutional and, leaving
aside grounds which were
later abandoned, was based on the following
grounds cited in the founding affidavit:
they did not take account of the best
interests of the child;
section 33 of the Act is
unconstitutional;
the procedure in s33 was not
followed;
there was no consultation or
meaningful consultation with parents, the SGB’s, educators and
school principals;
the public hearings were conducted by
departmental officials who predetermined the outcome;
the public hearings were a sham;
there were no placements plans or
meaningful placement plans in place;
there were no safety plans in place.
Apart perhaps from the sixth ground
the last four grounds were not pressed in argument on behalf of the
applicants
Certain grounds of review in terms of
the Promotion of Administration of Justice Act, 3 of 2000 (‘
PAJA’
)
were relied on namely that the decisions were procedurally unfair
(s6(2)(c)), a material or mandatory procedure or condition

prescribed by an empowering provision was not complied with
(s6(2)(b)), irrelevant considerations were taken into account or

relevant considerations not considered (s6(2)(e)(iii)), the
decisions were not rationally connected to the information before

the decision-maker or the reasons given for it (s6(2)(f)(ii)(cc) and
(dd)), the decisions were so unreasonable that no reasonable
person
could have made them (s6(2)(h)).
In the cases of Beauvallon Secondary
school (‘
Beauvallon’
) and Lavisrylaan Primary
school (‘
Lavisrylaan’
) the applicants complained
that the reasons initially given by the Minister for the proposed
closure of the school differed significantly
from those cited in his
statement of 16 October 2012. He had failed to explain the change in
his reasoning. Finally, the applicants
relied on a large number of
school-specific grounds including numerous alleged errors of fact
made by the Minister in his decision-making
process in relation to
most if not all the schools and in many cases relating to the issues
of multi-grade teaching and whether
the numbers at various schools
could be said to have dwindled or declined.
On receipt of the record the
applicants filed a supplementary founding affidavit in which they
formalised and expanded upon their
constitutional challenge to s33
of the Act. Amongst the points made therein were the following: The
departmental officials who
chaired the public meetings did no more
than record them with the result that the public hearings were
completely inadequate
as a means of providing the communities with a
reasonable opportunity to engage on the proposed closure of the
schools. In this
regard it was stated that in many instances the
dogged adherence to the stated purpose for the public hearing by the
departmental
officials, namely, to only receive representations and
not to debate the issues, resulted in the presiding officer refusing
to
provide clarity or detail on the stated reasons for the closure
when requested to do so by attendees at the public hearings. This,

it was stated, was contrary to the department’s own
guidelines. For the rest, the applicants merely expanded on the
grounds
of review initially cited in their founding affidavit.
On 21 December 2012 the majority of
the Full Bench which heard the interdict application (Desai J and
Baartman J, Davis J dissenting)
granted the applicants an interim
order interdicting the closure of the various schools and made
various orders ancillary thereto
the purpose and effect of which was
to allow those schools to continue functioning as normal. The Court
directed further that
the interdict was to remain in force until the
final resolution of these review proceedings, inclusive of all
appeals.
Some detail of the applicants’
allegations regarding their grounds of review is appropriate.
Regarding the initial reasons
cited for closure of the schools in
the letters to the SGB it was said that these were simply too short
and in no way reflected
the complexity of the decisions involved in
potentially closing any schools. It was submitted that they should
at the very minimum
have matched the length of the departmental
report made to the Minister recommending the closure of the schools,
including the
annexures. The complaint was further made that in some
cases the reasons were vague ‘
on their face’
with
the result that the school representatives did not know what the
claim meant and consequently could not rebut it. It was
said,
furthermore, that the brevity of the reasons led to fatal
misunderstandings and miscommunication. In support of this

allegation it was stated that if one had regard to the transcripts
of the public meetings one sees page after page of emotional
parents
of community leaders describing the importance of the school, the
history of the school or how happy the learners are
at the school.
In this regard the applicants submitted that those persons quite
reasonably believed that they were making valid
submissions to the
Minister and that the respondents were at fault in not advising that
these arguments would be dismissed as
‘
emotional’
and that the affected parties should rather use the meeting to
brainstorm plans, for example,
to ‘increase learner
enrolment’
.
The applicants contended that the
Minister’s closure decisions were arbitrary and irrational in
that there were no legitimate
reasons why some schools were kept
open and others closed. This submission was made against the
backdrop of certain schools being
kept open whilst others, whose
circumstances were said to have been similar, were closed. Further
contentions were that no identifiable
pattern or clear system of
decision-making could be identified hence, it was submitted, the
Minister had acted in an arbitrary
fashion when making the closure
decisions. Reliance was placed on the Minister’s failure to
consult with SADTU before making
the closure decision, the
contention being that this was an unprecedented step and that SADTU
alone, as opposed to individual
teachers, had the resources and
expertise to make informed long term commentary on the closure of
schools.
As far as the constitutional
challenge was concerned the applicants continued to maintain that
the procedure followed by the Minister
was flawed and had failed to
comply with s33(2)(a) in that the schools had not been given the
substance or the ‘
gist of the case against them’.
To
the extent that this was permitted by s33(2) it was contended the
provisions were unconstitutional. Secondly the applicants
contended
that s33(2) was unconstitutional by virtue of the Minister being
accorded an overbroad discretion inasmuch as he was
not required to
take into account the effect of a closure decision on the
government’s ability to meet its obligation to
provide basic
education in terms of s29(1)(a) of the Constitution, whether
learners could be accommodated at other schools; had
access to
transport, access to other schools, whether a school closure could
affect learners’ safety or security or, generally,
whether the
closure would have any impact on the ability of learners to access
their right to receive basic education.
THE ISSUES
In the course of argument the
following main issues presented themselves:
whether the closure decisions
amounted to administrative action as contemplated in PAJA and were
thus susceptible to review on
a wide range of grounds or whether
they constituted ‘
executive action’
and were thus
exempt in terms of PAJA and only reviewable on the limited grounds
of legality;
the challenge to the
constitutionality of s33 of the Act;
across the board grounds of review
relating mainly to procedural fairness including whether the s33
closure process was irredeemably
flawed because the initial reasons
given for the proposed closure were inadequate for lack of detail or
clarity, because SADTU
was not granted a hearing to the closure
decisions being made and, finally, because the closure decisions
were arbitrary or irrational
;
the school-specific grounds of review
including the question of the consequences of any variation between
the reasons initially
given for the proposed closure of a school and
the reasons finally given.
I propose to deal with the issues in
the order outlined above.
ADMINISTRATIVE OR EXECUTIVE ACTION
On behalf of the Minister and the
department Mr Fagan submitted that the closure decisions were open
to review only on the constitutional
principle of legality providing
for the control of public power.
In the context of a review of the
State President’s executive power the constraining principle
of legality was described
as follows in
Masetlha v President of
the Republic of South Africa
[2007] ZACC 20
;
2008 (1) SA 566
(CC) at para
[81]
:
‘
It
is therefore clear that the exercise of the power to dismiss by the
President is constrained by the principle of legality, which
is
implicit in our constitutional ordering. Firstly, the President must
act within the law and in a manner consistent with the
Constitution.
He or she therefore must not misconstrue the power conferred.
Secondly, the decision must be rationally related to
the purpose for
which the power was conferred. If not, the exercise of the power
would, in effect, be arbitrary and at odds with
the rule of law.
’
Thus in the exercise of executive
power a decision-maker must also act in good faith and must not
misconstrue his or her powers.
See
President of the Republic of
South Africa and Others v South African Rugby and Football Union and
Others
2000 (1) SA 1
(CC) (1999)(10) BCLR 1059) at para [148].
Mr Fagan contended further that the
Minister’s closure decisions could not be reviewed on the
various grounds of review
set out in PAJA since those decisions did
not amount to administrative action within the meaning ascribed to
that concept in
PAJA. In this regard he relied upon the exemption
contained in s1(b)(bb) which states that administrative action does
not include:
‘
(bb)
the executive powers or functions of the Provincial Executive,
including the powers or functions referred to in s121(1) and
(2),
s125(2)(d) …. of the Constitution.’
Section 125(2)(d) of the Constitution
lists the areas of executive authority of the provinces and reads in
part as follows:
‘
(2)
The Premier exercises the executive authority, together with the
other members of the Executive Council, by –
……
(b)
implementing all national legislation within the functional areas
listed in Schedule 4 or 5 except where the Constitution or
an Act of
Parliament provides otherwise;
……
.
(d)
developing and implementing provincial policy;
......
(g)
performing any other function assigned to the provincial executive in
terms of the Constitution or any Act of Parliament.’
Mr Fagan argued
that the school closure decisions by the Minister were policy
decisions made pursuant to policy initially developed
by the
National Department of Education and adopted by his department
relating to the rationalisation or closure of small or
non-viable
schools and further that the closure decisions amounted to the
implementation of such policy. At a national level
this policy was
contained in a document entitled ‘
Guidelines
for the Rationalisation of Small or Non-Viable Schools’
which
formed the basis for the similarly entitled guidelines adopted by
the department.
In
Grey's
Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works and
Others
[2005] ZASCA 43
;
2005 (6) SA 313
(SCA) Nugent JA observed that what
constitutes administrative action has always eluded complete
definition stating:
‘
The
cumbersome  definition of that term in PAJA serves not so much
to attribute meaning to the term as to limit its
meaning
by surrounding it within a palisade of qualifications.’
1
.
He added that:
‘
At
the core of the definition of administrative action is the idea of
action (a decision) “of an administrative nature”
taken
by a public body or functionary. Some pointers to what that
encompasses are to be had from the various qualifications that

surround the definition but it also falls to be construed
consistently, wherever possible, with the meaning that has been
attributed
to administrative action as the term is used in s33 of the
Constitution (from which PAJA originates) so as to avoid
constitutional
invalidity.’
2
It is worthwhile reminding ourselves
that s33 of the Constitution provides as follows:
‘
(1)
Everyone has the right to administrative action that is lawful,
reasonable and procedurally fair.
(2)
Everyone whose rights have been adversely affected by administrative
action has the right to be given written reasons.’
In
Greys Marine
Nugent JA also
stated (at page 325 para B):
‘
There
will be few administrative acts that are devoid of underlying policy
– indeed, administrative action is most often the

implementation of policy that has been given legal effect: but the
execution of policy is not equivalent to its formulation. The

decision in the present case was not one of policy formulation but of
execution.’
In P
ermanent Secretary, Education
and Welfare, EC v Educollege (PE)
2001 (2) SA1 (CC) the Court,
per O’ Regan J stated as follows at para [18]:
‘…
In
President of the Republic of South Africa and Others v South African
Rugby Football Union and Others this Court held that, in
order to
determine whether a particular act constitutes administrative action,
the focus of the enquiry should be the nature of
the power exercised,
not the identity of the actor. The Court noted that senior elected
members of the executive (such as the President,
Cabinet Ministers in
the National sphere and members of executive councils in the
Provincial sphere) exercise different functions
according to the
Constitution. For example they implement legislation, they develop
and implement policy and they prepare and initiate
legislation. At
times the exercise of their functions will involve administrative
action and at other times it will not. In particular
the Court held
that when a senior member of the executive is engaged upon the
implementation of legislation, that will ordinarily
constitute
administrative action. However, senior members of the executive also
have constitutional responsibilities to develop
policy and initiate
legislation and the performance of these tasks will generally not
constitute administrative action.’
The definition of administrative
action in PAJA includes, primarily, ‘
exercising a public
power or performing a public function in terms of any legislation’.
Only then does the exemption for executive authority covering the
implementation and development of policy follow. Significantly
what
is not exempted from the provisions of PAJA through the definition
of administrative action are the areas of executive action
covered
by s 125(2)(b) and (g) of the Constitution viz the implementation or
performance of any function in terms of national
legislation, where
authorised: significantly, education is listed in the Schedule 4
referred to in s125(2)(b).
Inasmuch as the closure decisions
were effected by the Minister in terms of s33 of the Act all the
primary indicators are that
they fall within the definition of
administrative action in PAJA. In my view simply because a policy
background to certain decisions
is present or decisions are taken
pursuant to a policy does not follow that such decisions amount to
‘
developing and implementing provincial policy’
within the parameters of s125(2)(d) of the Constitution.
Having regard to the criteria set out
in
South African Rugby Football Union
the fact that the
closure decisions were ultimately effected by the Minister, a Member
of the Executive Council, is clearly a
relevant factor. The source
of the power, s33 of the Act, is clearly another. What is also
material is that each school closure
decision was the culmination of
a lengthy and involved administrative procedure which s33(2)
requires. That administrative process
involves a range of senior
departmental officials interacting with the affected schools and
stakeholders with each one of those
officials’ actions and
recommendations feeding into the Minister’s eventual decision.
The nature of the power and
its subject matter, namely the closure
of public schools with its far-reaching consequences for persons
affected thereby, are
additional factors pointing strongly in the
direction of the decisions being subject to the full range of review
grounds set
out in PAJA. Further, whilst there is undeniably a
policy linkage and background to the closure decisions this is
outweighed
by the statutory source and nature of the power which the
Minister exercised in effecting the closures. Finally, an important
consideration in the determination of whether the Minister’s
closure decisions constituted administrative action are their

implications for fundamental constitutional rights, principally the
right to education and the paramouncy of the rights of a
child as
expressed in s28(2) and s29 of the Constitution. Having regard to
all these factors I consider that the closure decisions
were
administrative action proper and as such subject to review in terms
of the full range of grounds set out in PAJA.
THE CHALLENGE TO THE
CONSTITUTIONALITY OF SECTION 33 (2) OF THE ACT
Before
considering
the merits of the procedural and substantive grounds of review it is
necessary to emphasize the importance of the
rights which the
applicants seek to assert in this review. The right to basic
education in terms of s29(1)(a) of the Constitution
is a
foundational right not least because of our country’s history
of a grossly unequal and racially discriminatory education
system
much of which still endures today and the legacy of which will no
doubt bedevil our society for decades to come. Reinforcing
the
importance of this right is the fact that the disputed decisions
directly affect hundreds if not thousands of children whose
best
interests, in terms of our Bill of Rights, are of paramount
importance in these circumstances. The importance of the right
to
education was addressed by the Constitutional Court in
Governing
Body of the Juma Musjid Primary School v Essay NO
3
where the Court stated inter alia
that
‘…
access
to school – an important component of the right to a basic
education guaranteed to everyone by s 29(1)(a) of the
Constitution –
is a necessary condition for the achievement of this right.’
As mentioned there were two legs to
the applicants’ challenge to the constitutionality of s33(2)
of the Act. In the first
place it was argued that should the Court
find that s33(2) of the Act limits the scope of s33 of the
Constitution by interpreting
the former to require that schools
subject to a possible closure need not be given the substance of the
case against them, then
s33(2) itself must be held to be
unconstitutional and invalid inter alia on the basis that such a
restriction is unjustifiable.
Mr Arendse did not press this ground
too strongly, in my view correctly so. Section 33 of the
Constitution provides that everyone
has the right to administrative
action that is lawful, reasonable and procedurally fair and to be
given written reasons where
their rights have been adversely
affected by such action. Those rights are reinforced by the
provisions of PAJA,
inter alia
sections 3 and 5, which, I
have found, apply to the closure decisions and,
a priori
, to
the process leading up to such decisions. Some of these provisions
are both echoed and expanded in s33(2)(a) of the Act which
requires
reasons to be furnished for the decision-makers proposed closure of
a school. The scope of those initial reasons remains
to be
determined but that is clearly not a matter which touches on the
constitutionality of s33(2). It is rather a matter of
interpretation
which must be consonant with the constitutional right to just
administrative action in terms of s33 of the Bill
of Rights.
The second leg of the constitutional
challenge turns on what is said to be the Minister’s
unjustifiably wide discretion
to close schools after following the
procedure set out in s33(2) and its failure to place any substantive
limits on the Minister’s
powers. Mr Arendse argued that in the
absence of any guidance the Minister was not required to take into
account a wide range
of important considerations including whether
affected learners can be accommodated at other schools or have
access or transport
to other schools, the effect of a school closure
upon their safety and security and upon their right to education or
the government’s
ability to meet its obligations to provide
basic education. Reliance was placed on the following dictum in
Dawood v Minister of Home Affairs
[2000] ZACC 8
;
2000 (3) SA 936
(CC) at
para
[54]
:
‘
It
is therefore not ordinarily sufficient for the Legislature merely to
say that discretionary powers that may be exercised in a
matter that
could limit rights should be read in a manner consistent with the
Constitution in the light of the constitutional obligations
placed on
such officials to respect the Constitution. Such an approach would
often not promote the spirit, purport and objects
of the Bill of
Rights. Guidance will often be required to ensure that the
Constitution takes root in the daily practice of governance.
Where
necessary, such guidance must be given.’
There is no suggestion by the
applicants that s33(2) infringes the right to just administrative
action merely because it allows
for the closure of schools. It is,
furthermore, in my view self-evident that the closure of a public
school may be necessitated
by a wide range of considerations and
that attempting to list them in legislation would be a pointless
exercise. A decision to
close a school must be preceded by the
giving of reasons to the SGB which triggers an administrative
process subject to PAJA.
Clearly any school closure decision may not
unjustifiably infringe on the basic constitutional rights of
affected parties which
are implicated by any such closure most
notably the right to education. In this context it is a
misconception to consider that
the Minister’s discretion is
unconstrained. Inevitably a decision to close a school will be
constrained by the requirement
that proper regard must be had to
every affected learner’s basic rights, most notably the right
to basic education. That
right can potentially be compromised in
numerous respects by such a closure, for example, by infringing his
or her right to a
safe and secure schooling environment or the right
to receive education in the official language or languages of one’s

choice in public educational institutions where that is reasonably
practicable.
In resisting the constitutional
challenge on behalf of the (national) Minister of Basic Education,
Mr Masuku submitted that the
Minister’s discretion under
s33(1) may not be exercised in a manner that violates constitutional
rights or neglects the
State’s duty to provide for basic
education. He contended further that the discretion afforded the
Member of the Executive
Council (‘
MEC’
) is not
constitutionally offensive inasmuch as the reasons that may result
in an MEC exercising the power to close schools may
vary widely
depending on the circumstances of each school or the specific needs
of each province. It is the broadness of the
discretion, he
submitted, that gives the necessary flexibility to the Minister to
judge each case on its merits rather than seeking
to mechanically
comply with a set of legislative guidelines.
In my view the applicants’
reliance on
Dawood
is misplaced. In that very case the
Constitutional Court stated that (at para [53]:
‘
Discretion
plays a crucial role in any legal system. It permits abstract and
general rules to be applied to specific and particular
circumstances
in a fair manner. The scope of discretionary powers may vary. At
times they will be broad, particularly where the
factors relevant to
a decision are so numerous and varied that it is inappropriate or
impossible for the legislature to identify
them in advance.
Discretionary powers may also be broadly formulated where the factors
relevant to the exercise of the discretionary
power are indisputably
clear. A further situation may arise where the decision-makers is
possessed of expertise relevant to the
decisions to be made.’
All these factors are present to a
lesser or greater degree in the decision to close a school. The
factors relevant to a school
closure are numerous and varied and it
would be invidious to require them to be identified in advance. To a
large extent the factors
relevant to the exercise of the
discretionary power are clear; an affected learner’s right to
basic education and other basic
rights may not be substantially
undermined or prejudiced by a school closure decision, due regard
being had to the benefits that
such a closure may have for the
overall effective performance of the educational system within the
constraints of a limited budget.
Although the Minister is not
necessarily someone possessed of special expertise in the field of
education, his or her decision
on a school closure will invariably be
informed by a wide range of expertise from the senior officials
involved in the process
leading up to such a decision.
In the circumstances I conclude that
the challenge to s33 on the basis that it affords the Minister
overbroad discretion is unfounded
and the constitutional challenge
in this respect must fail too.
WERE THE SCHOOL CLOSURE DECISIONS
INVALID FOR LACK OF PROCEDURAL FAIRNESS?
The applicants advanced a series of
general review grounds which, it was argued, if upheld would be
fatal to the procedural fairness
of the process in the case of each
and every school closure. The first such ground was the failure to
grant a hearing to SADTU
prior to the closure decisions. Reliance
was placed on s3(1) of PAJA which provides that administrative
action which materially
and adversely affects the rights or
legitimate expectations of any person must be procedurally fair, as
well as s2, which sets
out the components of the procedural fairness
including the right to adequate notice of the nature and purpose of
the proposed
administrative action and a reasonable opportunity to
make representations.
At a preliminary level, however, it
should be noted that the definition of administrative action
requires that the decision in
question ‘
adversely affects
the right of any person and which has a direct, external legal
effect’
. Whilst not claiming that SADTU’s own
interests were affected, Mr Arendse submitted that SADTU represents
the interests
of the majority of educators at the schools proposed
for closure, whose interests were indeed affected. He pointed
moreover to
the national guidelines for the closure of small and
non-viable schools which recommend that the department engage with
the unions.
They state that:
‘
The
consultation process must also extend to parents, NGO’s,
traditional leaders, broader communities, farming unions, teacher

unions and school governance structures. Teacher unions must be
engaged in the various bargaining councils.’
By contrast the department’s
guidelines state only, by way of background:
'….
any decision to close a school must be administratively fair,
rational and reasonable and should be made only after consultation

with all relevant stakeholders and after consideration of the
relevant facts.’
Mr Arendse
contended that SADTU was clearly a stakeholder as envisaged in the
guidelines.
However, a
part from the
fact that the guidelines adopted by the department do not
specifically identify the need for consultation with trade
unions,
by their very nature they are not binding upon the department. In
any event within the context of the process leading
up to the school
closure decisions no substantive case is made out for obligatory
consultation with SADTU failing which the process
is rendered
administratively unfair. When regard is had to the Rule 53 records
of the school closures it is clear that SADTU
was well aware of the
process over the months and played a full role therein.
Representatives of SADTU spoke in that capacity
at public meetings
held in in respect of various schools and appear to have been
responsible for distributing a pro-forma objection
to each school
closure. The form of the objection envisaged its member educators at
each school filling in the name of the school
and submitting the
document as a written representation to the department or the
Minister in terms of the s33(2) process.
No prior demand appears to have been
made by SADTU to the department or the Minister claiming a right to
be consulted prior to
any closure decision. Further, it is common
cause that in November 2012 after such decisions were taken the
department consulted
with the relevant educator labour unions,
including SADTU, before finalising the placement plans for the
educators and other
public service personnel who were affected. It
is also common cause that no educator, whether a member of SADTU or
not, faced
the loss of his or her post as a result of any school
closure. In each case provision was made for the educators to follow
the
children to the appropriate receiving schools. Most importantly,
in laying out the detailed process to be followed by the Minister

prior to making any school closure decision, s33 itself contains no
requirement that a trade union or trade unions must be consulted.
For these reasons I consider that the
rights of SADTU, even as a representative of affected educators,
were not adversely affected
by the proposed school closures thereby
rendering the process envisaged by s33(2) procedurally unfair from
an administrative
law point of view. Even if I am incorrect in this
conclusion to the extent that there may have been procedural
unfairness vis-a-vis
SADTU this falls well short of constituting a
separate and independent ground of review for the school closure
decisions.
WAS THE SECTION 33(2) PROCESS
ADMINISTRATIVELY UNFAIR FOR LACK OF ADEQUATE REASONS FOR THE PROPOSED
SCHOOL CLOSURES?
I have set out earlier the
applicants’ complaints concerning the alleged paucity of
reasons initially furnished in respect
of the proposed closures. It
is contended further that the initial reasons were simply too short
in the context of the complex
array of factors that determined the
decision to close a school. The complaint is also made that many of
the range of complex
policy factors which informed the Minister’s
decision were simply not conveyed to the schools which in many
instances were
unfamiliar with the policies of the department and
the factors that drive government decisions. It was further argued
that the
reasons did not refer to the schools in any specific way,
did not give any specific facts or standards which the school was
required
to meet or set out any specific policy considerations which
applied to each school. It is also contended that the vagueness
arose
because the reasons contained hidden or obscured balancing
processes. In this regard reliance was placed on one of the reasons

given in the case of many of the schools, namely, that learners did
not benefit maximally by multi-grade teaching. It was pointed
out
that multi-grade schooling was widespread and that there were
obviously further reasons why that school was chosen. It was

contended that the Minister should, in his reasons, have disclosed
the policies of the department including the policy concerning

multi-grade teaching.
The starting point in relation to
this ground of review are the provisions of s33 of the Act. They
provide simply that the Minister
must furnish the SGB’s with
his or her reasons for his or her intention to close the schools and
they make no reference
to underlying or background policy. Then
there are the requirements of PAJA, notably s3(2)(a), which provides
that a fair administrative
procedure depends upon the circumstances
of each case. Section 5 of PAJA deals with reasons for
administrative action but, unlike
the process envisaged in s33(2),
contemplates reasons after the administrative action has been taken
and in any event sheds no
light on what constitutes adequate
reasons.
In
Bato Star Fishing (Pty) Ltd v
Minister of Environmental Affairs and Tourism and Others
[2004] ZACC 15
;
2004
(4) SA 490
(CC) at para
[45]
the Court stated:
‘
What
will constitute a reasonable decision will depend on the
circumstances in each case, much as what will constitute a fair
procedure
will depend on the circumstances of each case.’
In
Premier Mpumalanga v Executive
Committee of the Association of State Aided Schools, Eastern
Transvaal
1999 (2) SA 91
(CC) the Constitutional Court held as
follows (at para [41]):
‘
In
determining what constitutes procedural fairness in a given case, the
Court should be slow to impose obligations upon government
which will
inhibit its ability to make and implement policy effectively (a
principle well-recognised in our common law and that
of other
countries). As a young democracy facing immense challenges of
transformation, we cannot deny the importance of the need
to ensure
the ability of the Executive to act efficiently and promptly.’
In assessing the adequacy of the
Minister’s initial reasons it is important to bear in mind the
nature of the process in
which they were given. At that stage no
decision to close any school had been taken. All that the Minister
harboured was an intention
to close the schools. Following his
communication of his intention and his reasons to the SGB a process
of inviting and receiving
representations was triggered which could
potentially result in a large amount of further information, views
and relevant material
becoming available. In these circumstances, it
appears to me, if the Minister’s reasons erred on the side of
brevity, then
this was understandable. Put simply the Minister could
not have identified, in his initial letters to the SGB’s, full
and
final reasons for closure or not of the schools since those
decisions had yet to be taken and had first to be informed by the
process of representations and giving them proper consideration. All
that could be furnished were simply initial reasons for possible

closure. In this context it was not surprising that the Minister’s
media statement of 16 October 2012, published at the
end of the
s33(2) process, included further aspects which weighed with him in
coming to the decision to either close or not close
a particular
school.
Furthermore, when regard is had to
the detail of the process as revealed in the Rule 53 record, it
becomes apparent that those
reasons furnished by the Minister in his
initial letter to the SGB’s were, by and large, the very
reasons which had come
to the fore in the department’s own
internal process of identifying which schools qualified for
potential closure. That
process was initiated by an application
completed by the director of the relevant education district and two
other senior officials
in accordance with the department’s
guidelines for the closing of non-viable public schools. Those
documents contained
considerable basic information regarding the
particular schools as well as a section providing for primary
reasons for closure.
The reasons given in such reports were
invariably succinct such as, in the case of Redlands Primary School,
‘
multi-grade set up’, ‘learners number 74 from
grade 1 – 7’
and ‘
poor LITNUM (literacy
numeracy) results’.
This form was then attached as an
annexure to a relatively brief report to the Minister concerning the
proposed closure of the
school in which such reasons were generally
given as the ‘
primary reasons’
for closing the
school. These were either a repetition of the same reasons although
in some cases an additional reason relating
to ‘
weak
leadership’
at the school is mentioned. The point is that,
by and large, the SGB’s were given the very same succinct
reasons which
were generated internally within the department and
put before the Minister as reasons for a possible closure. It is
thus not
a case of reasons being truncated or withheld from the
affected schools.
Also relevant is that the principal
of each school serves as an ex officio member of the SGB and would
obviously have a vital
interest in the proposed closure of his/her
school. One would expect that the principal of every school would be
familiar with
departmental policy on the closure of small and
non-viable schools, or at the very least to obtain that policy from
the department
upon notification of the school’s possible
closure. Certainly there is no suggestion in the applicants’
affidavits
that the department’s policy on the elimination of
multi-grade teaching or the closure of small or non-viable schools
was
kept secret. Reference is indeed made in the applicants’
founding affidavit to the national guidelines for the
rationalisation
of small or non-viable schools with no indication
that there was an undisclosed policy on the part of the department.
In addition
those principals who were members of SADTU would have
been in a position to draw upon the resources of SADTU in regard to
its
knowledge of departmental and national policy in this area.
It is significant, furthermore, that
the applicants’ case as set out in its founding affidavit made
little if anything of
the alleged paucity of the reasons given in
the Minister’s initial letters giving notice to the SGB’s
of his intention
to close certain schools.
Notwithstanding submissions to the
contrary, when one has regard to the minutes of the meetings held
between departmental officials
and SGB members there is little if
any indication of the SGB’s being unclear as to the reasons
for a proposed closure.
It is clear from the minutes of the meetings
held with the SGB’s as well as from the transcripts of the
school meetings
and the written representations made by interested
parties that many of the applicant SGB’s had at their disposal
extensive
information, including information about the proposed
learner placement plans and applicable policy considerations. In
particular
the departmental policy in terms of multi-grade teaching
appears to have been well known to the schools and communities
concerned
and submissions in this regard were made during the public
participation process. Those meetings provided an ideal opportunity

for the SGB’s to seek clarification, if they needed this, of
the Minister’s reasons or of policy considerations.
In certain
cases this was provided by the officials at the commencement of the
meeting without being asked. A case in point is
Rietfontein School
where the departmental official explained, after re-stating the
Minister’s reasons for the proposed
closure, that multi-grade
teaching was to be eliminated as a result of which learners should
perform better academically.
The initial written reasons furnished
to each SGB were brief. Arguably they might have benefitted by the
addition, where applicable,
of a brief explanation of the
department’s policy regarding multi-grade teaching,
centralising learners at larger schools,
the reality of budget
constraints and optimum use of teachers. On the other hand had the
reasons in respect of each school been
buried in policy
explanations, their thrust might have been lost or obscured with
detrimental consequences for the process of
making and receiving
representations. As it transpired, the reasons given, brief as they
were, elicited a flood of representations
and responses including
material of an academic nature concerning multi-grade teaching,
personal testimonies and input from NGO’s
operating in the
education sector.
The sufficiency of the reasons are,
in my view, indivisible from the process as a whole. When one
considers the effectiveness
of the process two features stand out:
firstly, the process of obtaining representations from SGB’s
and the school community
produced a large volume of material and
information and views, all of which was collected and considered by
a range of departmental
officials and by the Minister. Secondly, not
only did more information come to light but departmental officials
and the Minister
were, in seven out of twenty-seven cases, evidently
persuaded thereby not to close the school and, in some instances, to
institute
alternative plans to support the school. These factors
are, in my view, powerful testimony both to the effectiveness of the
s33(2)
process and the thesis that the reasons initially furnished,
although succinct, did not operate as a stumbling block to the
making
of meaningful representations.
Mr Arendse relied on a series of
cases namely
Du Preez and
Another v Truth and Reconciliation Commission
4
,
Earthlife Africa (Cape
Town) v Director General: Department of Environmental Affairs and
Tourism
[2005] ZAWCHC 7
;
2005 (3) SA 156
(C)
,
Foulds
v Minister of Home Affairs and Others
1996
(4) SA 137
(W) and Crooke v
Minister
of Home Affairs and Others
2000
(2) SA 385
(T) in support of his
argument that,
in the absence
of the substance or gist of the case against the schools (or, more
accurately, for the closure of the school),
the applicants were
denied a fair and meaningful opportunity to make representations.
There can be no quarrel with the fundamental
ratio of this line of
decisions but each of them recognises that the amount and content of
the information or ‘
case
against’
the
affected party must depend on the circumstances of the particular
situation or process. Thus in
Doody
v Secretary of State for the Home Department and Other Appeals
[1993] 3 All ER 92
HL, quoted with
approval in Du Preez’s case,
Lord
Mustill stated as follows (at 106 d - h):
‘
What
does fairness require in the present case? …(1) Where an Act
of Parliament confers an administrative power there is
a presumption
that it will be exercised in a manner which is fair in all the
circumstances. (2) The standards of fairness are not
immutable. They
may change with the passage of time, both in the general and in their
applications to decisions of a particular
time. (3) The principles of
fairness are not to be applied by rote identically in every
situation. What fairness demands is dependent
on the context of the
decision, and this is to be taken into account in all its aspects.
(4) An essential feature of the context
is the statute which creates
the discretion, as regards both its language and the shape of the
legal and administrative system
within which the decision is taken.
(5) Fairness will very often require that a person who may be
adversely affected by the decision
will have an opportunity to make
representations on his own behalf either before the decision is taken
with a view to producing
a favourable result, or after it is taken,
with a view to procuring its modification, or both. (6) Since the
person affected usually
cannot make worthwhile representations
without knowing what factors may weigh against his interests fairness
will very often require
that he is informed of the gist of the case
which he has to answer.’
It is must also be borne in mind that
the department and the Minister did not embark upon a disciplinary
process of closing errant
schools but rather one of rationalisation
in which the Minister was required to have regard to the education
system in given
areas in the interests of the entire community and
learner body rather than simply the interests of individual schools.
In
Earthlife Africa
the Court
held that fairness ordinarily requires that an interested party be
given access to relevant material and information
in order to make
meaningful representations. On the other hand this could not be
equated to a right to complete discovery. The
remarks by the Court
in
Earthlife
were made in the context of a situation in which
the applicants were afforded an opportunity to comment or make
representations
on a draft environmental impact report but not on
the final report in which new information was contained. In the
present case
it is unclear precisely what further information or
policy the applicants consider was lacking which constituted
‘
adverse information and adverse policy considerations’
in the absence of which they were denied the substance or gist
of the case against them. That the national department’s

policy guidelines for the rationalisation of small or non-viable
schools were available is borne out by the fact that it was referred

to in one of the annexures to the applicants’ founding papers
as well as a letter from Bergrivier Primary School SGB making

representations against the closure of the school.
To sum up, the responses of the SGB’s
and the school community reveal, in my view, no particular
difficulties in their understanding
of the gist of the case which
led the Minister to form the intention to close the school. The
reasons furnished to the SGB’s
and the school community were
to all intents and purposes precisely the same reasons which were
generated in the departmental
reports and placed in front of the
Minister and which led him to form his initial intention. Whilst the
process of giving these
reasons could conceivably have been improved
by furnishing a short background setting out the departmental policy
concerning
the closure of schools and other relevant policy, the
failure to do so did not in my view impede the making of effective
representations
or amount to a factor so material that the brevity
of the reasons can be elevated to a substantive ground of review
irrespective
of the merits of the decision or process in all other
respects.
ARBITRARY AND CAPRICIOUS DECISIONS?
The third general ground of review
relied upon by the applicants was that the Minister’s closure
decisions were taken arbitrarily
and capriciously inasmuch as
certain schools were kept open and others not despite their
circumstances being markedly similar,
this as a result of a lack of
clear and consistently applied criteria. Examples were given: in
certain cases school closures
were deferred on the basis that those
schools could put in place ad hoc measures but not in other cases;
in certain cases traffic
safety concerns relating to learners was a
factor in the closure and in others was not. Multi-grade teaching
was cited as a reason
for closure of all the rural schools but some
schools which showed that this form of teaching could be successful
were kept open
whereas others were not. In one instance a school’s
good results and the appreciation which the community had for it was

sufficient to displace the intention to close the school whereas in
other cases, it was contended, this factor was disregarded
by the
Minister. I do not understand it to be the applicants’ case
that the Minister or the department’s plans to
effect closures
of schools were in themselves irrational. Overall, however, it was
submitted, there was a wide and unpredictable
variance in the
decisions relating to similarly placed schools and this evidenced a
lack of a rational basis for the closure
decisions.
To evaluate this ground of review
regard must be had to the Minister’s undisputed description of
the nature of the decision
which he was called upon to take. He
stated as follows:
‘
A
decision to close a public school entails the consideration of a
range of complex factors against the background of a carefully

designed educational policy in the province, as well as the limited
resources available to the WCED. The deliberative process that
is
required is no different in this province from any other province,
whose education departments also regularly close some schools
whilst
opening new schools or increasing the classroom capacity of existing
schools. In the Western Cape, for instance, the WCED
has since 2009
created school places for no fewer than 33 000 additional
learners. Shifting demographics, as well as numerous
other factors,
necessitate the making of decisions both to open schools and to close
schools.’
Further he stated that his decision in
each case:
‘…
w
as
motivated by the objective of improving the educational opportunities
of all children in the province, and that the decisions
are part of a
process in improving the lives of over 4000 learners in the province.
This includes measures to enhance the quality
of education at some
schools and to have learners attend schools that are better equipped
to provide a quality education.
’
and that:
‘
(a)
sensible
balance must be struck. Even if it were demonstrably in the interests
of 7 learners (for one of the applicant schools has
only 7 learners)
to have a school of their own, it would not be in the interest of
learners in the province generally for the WCED
to expend its
financial resources disproportionately on those 7 learners.’
After referring to the guidelines he
stated:
‘
the
possible reasons for closing a school include low levels of learner
enrolment, inadequate curriculum provisioning, limited school
access,
unsuitable schooling infrastructure, poor retention of learners, an
inability to attract and retain educators, and difficulties
related
to the location of schools on private property.’
In his supplementary affidavit the
Minister gave further insight into the background against which he
was required to make school
closure decisions, namely, a significant
over-supply of primary schools and an under-supply of high schools
(as a legacy of apartheid);
many more schools than may be properly
resourced and run in light of budgetary constraints; a reliance on
multi-grade teaching
in many schools; and many schools that are too
small to provide an optimal education, according to international
and local research
and expert opinion.
The Minister stated that one of the
ways in which resources can be found for new high schools was to
close small rural schools
thereby freeing up valuable resources that
can be better used elsewhere. His department maintained 1450
schools, of which 159
schools have up to 100 learners each. The
department is of the view that its resources enable it to maintain
approximately 1000
well-functioning and well-resourced schools and
that schools should ideally have more than 100 learners in order to
provide optimal
educational, extra-curricular and social
opportunities to all learners. The Minister mentioned further that
over the past decade
nearly 3000 schools have been closed in only
five of the other provinces.
Finally in this regard, the Minister
stated that neither he nor his department had preconceived standards
or tests against which
they measured any performance of any
particular school. The decision as to which schools should be closed
‘
was one which involved a balancing of many factors’
and therefore no point was served by the applicants in comparing one
or two aspects of an applicant school with one or two aspects
of a
school which was not closed.
In
SA Predator Breeders
Association v Minister of Environmental Affairs and Tourism
[2011]
2 All SA 529
(SCA) it was held that (at para [28]):
‘
Rationality,
as a necessary element of lawful conduct by a functionary, serves two
purposes: to avoid capricious or arbitrary action
by ensuring that
there is a rational relationship between the scheme which is adopted
and the achievement of a legitimate government
purpose or that a
decision is rationally related to the purpose for which the power was
given; and to ensure that the action of
the functionary bears a
rational connection to the facts and information available to him and
on which he purports to base such
action.’
In
Bel Porto School Governing Body
and Others v Premier, Western Cape and Another
[2002] ZACC 2
;
2002 (3) SA 265
(at para [45] the Court dismissed an argument based on the fact that
another provincial education department had dealt differently
with
the subject matter of the decision sought to be reviewed. In doing
so the Court stated:
‘
That
is irrelevant to the rationality enquiry. The fact that there may be
more than one rational way of dealing with a particular
problem does
not make the choice of one rather than the others an irrational
decision. The making of such choices is within the
domain of the
Executive. Courts cannot interfere with rational decisions of the
Executive that have been made lawfully, on the
grounds that they
consider that a different decision would have been preferable.’
There can be no doubt that the
‘
problem’
which faced the Minister as described
above in his own words was complex and that his decision to close a
number of schools in
response thereto was a rational decision in
relation to the purpose for which the power to close schools was
given by s33.
Ultimately, furthermore, the
decisions to close schools are concerned with the allocation of
public resources. As was recently
noted by the Constitutional Court
in
National Treasury v
Opposition to Urban Tolling Alliance
5
,
albeit in the context of an interim interdict,
‘
...
the collection and ordering of public resources inevitably call for
policy-laden and polycentric decision-making. Courts are
not always
well suited to make decisions of that order.’
It is also appropriate in this
context to be mindful of the boundaries of judicial power which
follow from the doctrine of the
separation of powers. The following
was stated by the Constitutional Court in
International Trade
Administration Commission v SCAW South Africa (Pty) Ltd:
‘
(w)here
the Constitution or valid legislation has entrusted specific powers
and functions to a particular branch of government,
courts may not
usurp that power or function by making a decision of their
preference. That would frustrate the balance of power
implied in
the principle of separation of powers. The primary
responsibility of a court is not to make decisions reserved
for or
within the domain of other branches of government, but rather to
ensure that the concerned branches of government exercise
their
authority within the bounds of the Constitution. This would
especially be so where the decision in issue is policy-laden
as well
as polycentric.’
6
In my view the same can be said of
the decision as to which schools should be closed and which kept
open. The Minister’s
closure decisions had to balance a range
of competing interests. The closure decisions are thus classically
polycentric. They
were taken after a lengthy and thorough process of
investigation and evaluation in which the representations of the
affected
SGB’s and school communities played a critical role.
Each of the schools initially identified was unique in relation to
its geographical setting, learner numbers, facilities, feeder
communities, history and particular problems.
Finally, it is worth observing that
school closure decisions are in their very nature contentious. In
each case there will, very
often and understandably so, be a large
degree of community involvement and investment in the existing
school. Whilst the range
and depth of emotion may vary, the decision
to close any school will generally be unpopular and unwelcome within
the community
in which the school is situated and which it serves
and particularly with those who have long or historic associations
with the
school. Given the emotionally laden and contentious nature
of a decision to close a school it is most unlikely that the
ultimate
decision will please all parties and interests concerned.
In my view the applicants’
attempts to ascribe arbitrariness or capriciousness to the closure
decisions on the basis of
certain similarities between some schools,
is misplaced. No equation exists which can measure why, in a certain
case, the Minister
might or should have given greater weight to
issues of road safety than in other cases. It is a case of comparing
like with unlike
and to ascribe arbitrariness or capriciousness on
the basis of limited superficial similarities between schools or
factors cited
for or against their closure is a futile exercise. For
these reasons I consider that the generic ground of review that the
closure
decisions were taken arbitrarily and capriciously is
unfounded and falls to be rejected.
SCHOOL SPECIFIC GROUNDS OF REVIEW
The applicants advanced a range of
specific reasons and considerations in respect of each school as a
basis for the argument that
the Minister’s decision to close
the schools fell to be set aside. The underlying basis for this
contention was that in
taking the closure decisions the Minister had
made material errors of fact in his reasoning process or by placing
weight on irrelevant
considerations or failing to give sufficient
weight to relevant considerations, either in isolation or in
comparison to other
schools which were said to have found themselves
in similar circumstances. In other cases, again often based on or in
conjunction
with errors of fact, it was submitted that closure
decisions were not rationally connected to the information placed
before the
Minister or the reasons given for the school’s
closure.
These grounds are, however,
problematic in fundamental respects. The first is that on the
applicants’ approach this Court,
in many instances, is
required in effect to act as a court of appeal, making findings of
fact relating to issues which are either
raised at a late stage by
the applicants or, in other instances, are credibly disputed by the
respondents. Not only does this
create irresolvable differences of
fact on the papers but in requiring this Court to act as a court of
appeal, blurs the distinction
between appeal and review.
In
Pepcor Retirement Fund and
Another v Financial Services Board and Another
2003 (6) SA 38
SCA the Court recognised that in principle material mistakes of fact
can constitute a ground of review. It cautioned, however,
that such
a basis for review (at para [48]):
‘
should
not be permitted to be misused in such a way as to blur, far less
eliminate, the fundamental distinction in our law between
two
distinct forms of relief: appeal and review’
and added:
‘
for
example where both the power to determine what facts are relevant to
the making of a decision, and the power to determine whether
or not
they exist, has been entrusted to a particular functionary (be it a
person or a body of persons), it would not be possible
to review and
set aside its decision merely because the reviewing court considers
that the functionary was mistaken either in its
assessment of what
facts were relevant, or in concluding that the facts exist. If it
were, there would be no point in preserving
the time honoured and
socially necessary separate and distinct forms of relief which the
remedies of appeal and review provide.’
In
Government Employees Pension
Fund and Another v Buitendag and Others
2007 (4) SA 2
(SCA), the
Court confirmed that a material mistake of fact was a ground for the
review of an administrative decision. Whether
or not the decision
would be reviewed and set aside depended on a consideration of the
public interest in having the decision
corrected, as well as other
factors, particularly the interest of the person in whose favour the
decision had been made. Ultimately
the Court was required to make a
value judgment, balancing all the relevant factors. Speaking of the
materiality of the mistake
the court stated as follows (at para
[12]):
‘
The
limits of the principle set out in
Pepcor
,
particularly in view of the warning contained in that decision, have
yet to be defined by the Courts; but it is instructive to
have regard
to the decisions of this Court where the principle has been applied.
In
Pepcor
the
decision maker would not have made the decision had he known the true
facts; in
Bullock
the
whole foundation of the decision was the incorrect advice given to
the decision maker and in
Oudekraal
the
fact not known to the decision-maker (or not taken into account by
him) was obviously of cardinal importance in the decision
he was
called upon to make.’
It is clear therefore that ‘
mere’
errors of fact which are not material or fundamental to the decision
cannot be used a basis for setting aside administrative
decisions,
particularly those which are informed by a wide range of
considerations i.e. polycentric and policy-laden decisions.
Most recently in
Dumani v Nair
2013 (2) SA 274
SCA the Court warned again against the review ground
of material error of fact being misused so as to blur the
distinction between
appeal and review and held that where the power
to make findings of fact was conferred on a particularly functionary
the review
ground would be confined to the situation where the
functionary had made an error in respect of a fact that was
established in
the sense that it was non-contentious and objectively
verifiable.
The applicants relied on a range of
alleged ‘
material errors of fact’
in relation to
each school earmarked for closure. These included the number of
learners said to be at the school as opposed to
the numbers relied
upon by the Minister, whether the learner numbers were ‘
continuing
to climb’
or ‘
dwindling’
, various
misdirections by the Minister concerning traffic safety concerns,
whether multi-grade teaching was being successfully
carried out at
one or more schools which were subject to closure, the fact that in
some instances the receiving schools were
also carrying out
multi-grade teaching and the standard or availability of certain
facilities at some receiving schools.
In my view there is little to be
gained from a minute examination of these grounds of review since
they are essentially appeals
against the Minister’s decisions
based on errors of fact which are not material. There is in addition
the legitimate concern
that should the applicants be allowed to
present at the stage of litigation a range of ‘
facts’
which they contend the Minister had not been informed of and which
should have been taken into account, the s33(2) process will
be
undermined and raises the real possibility of a cycle of
representations and reviews. As counsel for the respondents argued

in relation to a particular school, permitting challenges to the
Minister’s decision on the basis of information raised

subsequently (some of it even changing in the course of litigation),
would make it difficult if not impossible for the Minister
to ever
close a school. The Minister would never be able to determine
whether he or she had been informed of all possible facts

potentially relevant to the decision since a review would always be
possible where an applicant could point to a further possibly

relevant factor which happened not to have been placed before the
Minister.
Other pitfalls lie in the areas of
debate about policy aspects which often underlie the reasons given
to justify school closures.
A prime example is that of multi-grade
teaching. This Court is in no position to second-guess the
respondents’ policy regarding
the elimination, where possible,
of multi-grade teaching in small schools. Our courts have repeatedly
held that it is not open
to them to interfere with rational
decisions of the executive lawfully made on the basis that the
courts might consider that
a different decision would have been
preferable. Particularly where such decisions are complex, involve
the balancing of competing
interests and are taken by persons with
special expertise and experience.
Against this background I propose to
deal thematically with the major areas of complaint which were
specified, in one form or
another, as grounds of review.
ADVANTAGES OF SMALL SCHOOLS
The first is the polemic about the
benefits of small schools, a viewpoint that arises in many of the
supporting affidavits on
behalf of the rural schools. Again this is
not a consideration which the Court can second guess given that the
Minister and the
department have arrived at the view, supported by
expert opinion and research and in line with national education
policy, that
learners derive significant benefits from attending
large, better resourced schools. Furthermore, the department, under
the political
direction of the Minister, is best placed to determine
the fairest and most equal manner in which to deploy its limited
resources
across the province. It need hardly be pointed out that
where smaller schools are closed educators at those schools become
available
to teach at larger schools, often at the identified
receiving schools with the result that the learner educator ratio at
the
receiving school is improved.
BUS TRANSPORT
Many concerns were raised about the
potential dangers of bus transport where rural schools are closed
and the learners must now
use such transport to reach more distant
receiving schools. There is little reason to doubt the Minister’s
statement that
the safety of learners is of great concern to him and
the department and the Rule 53 record reveals that the question of
transportation
is a primary concern from the earliest stage of the
investigation until the Minister’s decision to close a school
is finally
taken. In all appropriate cases the decision to close a
school was informed by whether or not there was an existing learner
transport
route or whether a new route had to be established if
necessary. We were referred to no instances where learners faced
with the
difficulty of travelling greater distances to a receiving
school had their interests ignored. Inasmuch as many representations

raised concerns about school learner safety and the Rheenendal bus
tragedy in which 14 learners were killed, the respondents
point out
that some 50 000 learners in the Western Cape use the learner
transport service daily and accidents are rare.
MULTI-GRADE TEACHING
This is perhaps the prime example of
a debate about policy in which the Court should not embroil itself
in the review process.
As the respondents point out, the
elimination, where feasible, of multi-grade teaching in the best
interest of learners is national
and provincial policy, developed in
accordance with national legislation and based on research and the
views of experts in the
field. It matters not that, as the
applicants emphasized, certain of the receiving schools also
practice multi-grade teaching.
The Minister observed that it would
be impossible to eradicate multi-grade teaching across the board in
the Western Cape; this
could only be done on a progressive basis and
one such measure is through the closure of small schools and the
moving of learners
to larger schools where multi-grade teaching is
likely to be eradicated sooner, particularly through the addition of
those teachers
who become available through the closing of smaller
schools.
LEARNER NUMBERS
Nor is there much to be gained
through quibbles over the exact level of learners at a given school
and whether numbers are declining
‘
drastically’
or only dwindling. As counsel for the respondents pointed out, this
was often only one factor taken into account by the Minister
in his
decision to close a particular school and the question of low
numbers often merges into the question of dwindling numbers.
GANGS
In many supporting affidavits
reference is made to gang activities and turf wars and it is
contended that children from one school
cannot safely attend a
school further down the road. It was common cause that the
department runs a Safe Schools Programme to
support schools in an
endeavour to improve safety and security in learning environments.
There is obviously a limit to what it
can do to address fundamental
socio-economic problems in communities, including gangsterism, and
there is nothing to gainsay
the Minister’s statement that he
took the safety of learners into account when he made the closure
decisions.
Although it is evident from the
papers and the review record, it is worth recording that there is no
instance, or at least none
which has been drawn to my attention, of
any proposed school closure which would leave any learner without an
alternative school
which he or she can feasibly and practically
attend, thereby giving content to the right to basic education.
In the result, subject to what
follows, I consider that the school specific grounds of review are
without merit.
DISCREPANCIES BETWEEN REASONS
INITIALLY GIVEN FOR PROPOSED SCHOOL CLOSURES AND THE FINAL REASONS
A further review ground advanced in
respect of several schools was the discrepancy between the reasons
initially given by the
Minister for the proposed closure of schools
and the reasons finally given. As has been pointed out this ground
of review was
relied upon specifically in the founding and
supplementary affidavits in relation to Beauvallon and Lavisrylaan
schools.
The reasons given initially given by
the Minister are found in the initial letters written to the SGB
which were repeated in the
notice calling a public meeting. After
taking the closure decisions the Minister gave his reasons in his
statement dated 16 October
2012. In that statement the format he
used was to set out the primary reasons for the closure of the
schools, describing these
as being ‘
amongst the relevant
considerations’
which had emerged. After announcing his
decision to close he then cited further considerations which, for
the most part, dealt
with the advantages of a particular receiving
school identified for those learners affected by a school closure.
When the primary reasons for closure
in the 16 October statement are read against the reasons initially
furnished by the Minister
for the proposed closure it will be seen
that for the most part that they are substantially the same. There
are, however, four
instances where this is not the case and where,
on 16 October, considerations are given as reasons for closure,
which were not
mentioned in the Minister’s initial reasons.
These four instances are Beauvallon Secondary School, Klipheuwel
Primary School,
Urionskraal SGK Primary School and Wansbek Primary
School.
In the case of Beauvallon the initial
reasons given to the SGB were:
‘
consistent
underperformance in the NSC examinations as well as Grades 8 –
11’; and
‘
high
dropout rate’
By 16 October both of these factors
appeared to no longer have played a significant role in the
Minister’s decision to close
the school since the reasons he
cited for closure were:
‘
the
infrastructure at the school is becoming increasingly unsuitable;
the
unsuitable infrastructure impacts on the safety of learners and
teachers, the security of the school and the ability of the
school
to retain learners;
the
461 learners can be accommodated at John Ramsay High School.’
After announcing his closure decision
the Minister went on to state that John Ramsay High School had
achieved better academic
results and had a better retention rate
than Beauvallon which can legitimately be seen as an indirect
reference to ‘
underperformance’
and a ‘
high
dropout rate’
, the initial reasons the Minister cited. Be
that as it may, it is clear that what the Minister regarded as
Beauvallon’s
unsuitable school infrastructure and its
consequences for the school and its learners was a significant, if
not the primary,
reason for its closure. However, as Beauvallon’s
headmaster pointed out in the founding affidavit, this factor was
never
raised either with the SGB or with the school community by way
of the Minister’s initial letter or the public notice.
Accordingly,
neither the SGB nor the school was given an opportunity
to engage with this factor as a potential reason for the closure of
the
school.
Where the Minister relies to a
significant degree on a reason for closure which has not been raised
in the s33(2) process and
which should have been cited initially,
that process is undermined, if not rendered a futile exercise. In my
view in the present
circumstances this defect amounts to significant
procedural unfairness. It can be accommodated under a number of PAJA
grounds
including non-compliance with a mandatory procedure or
condition prescribed by an empowering provision or even the taking
of
irrelevant considerations into account.
This particular challenge to the
procedural farness of the Minister’s exercise of his powers
was squarely raised by Beauvallon
in the founding affidavit but was
not answered. In the circumstances I consider that the Minister’s
decision falls to be
reviewed on this basis.
The same ground of review was
specifically raised in respect of Lavisrylaan Primary School. In its
case the initial reasons given
for the proposed closure were that:
‘
the
learner numbers have been dwindling’;
‘
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 the post has been vacant for three
years’.
In the Minister’s statement of
16 October 2012, save for the last-mentioned consideration relating
to the principal’s
post, he relied upon substantially the same
reasons for the school closure decision plus certain further
considerations which
had arisen during the course of the s33(2)
process. The Minister relied upon no additional reasons adverse to
the school itself
for his closure decision. In the circumstances I
consider the challenge to the decision to close Lavisrylaan School
based on
the above-mentioned ground of the review is without merit.
In regard to Klipheuwel School the
initial reasons given were that there was no feeder community and
‘
dwindling learner numbers’
. In giving his final
reasons for the closure of the school the Minister cited various
factors which arose from or related to
the reasons initially given.
However, he added the following:
‘
Klipheuwel
Primary school relies upon multi-grade teaching. Based on learner
enrolment figures at the school, the staff establishment
provided by
the WCED consists of 2 educators. These educators are required to
teach 41 learners across grades 1 – 6.’
In relation to Urionskraal School the
Minister cited as his initial reasons for closure that learner
numbers have been dwindling
and there was no feeder community. In
announcing his decision he cited a number of reasons, which either
arose during the s33(2)
process or from the reasons originally
given. Again, however, he cited a new reason in the following terms:
‘
Urionskraal
NGK
Primary
school relies upon multi-grade teaching. Based on learner enrolment
figures at the school, the staff establishment provided
by the WCED
consists of 2 educators. These educators are required to teach 34
learners across grades 1 – 6.’
Finally, in relation to Wansbek
School the Minister gave as his initial reasons that learner
enrolment was lower than 25. In announcing
the school’s
closure the Minister cited as his primary reasons that school
numbers were low and had decreased from 17 in
2009 to 7 in 2012 as
well as other considerations which arose from the reasons initially
given or which legitimately arose during
the course of the s33(2)
process. He added, however, the following primary reason:
‘
Wansbek
VGK Primary school relies upon multi-grade teaching. Based on learner
enrolment figures at the school, the staff establishment
provided by
the WCED consists of 1 educator. This educator is required to teach 7
learners across grade 4 - 6’
The complaint can thus be made in
relation to these three rural schools that the fact of their use of
multi-grade teaching was
not put to them at the beginning of the
s33(2) process so that the SGB and the parent community could make
representations in
that regard. Mr Fagan conceded that the process
was flawed to this extent but argued that the defect was not
material inasmuch
as it was common cause that the schools did carry
on multi-grade teaching and, had this been raised in the initial
reasons, it
would have made no difference to the Minister’s
ultimate decision. There is weight to this submission inasmuch as a
ground
of review should not comprise a formalistic exercise of
identifying discrepancies between initial and ultimate reasons and
setting
aside the decision irrespective of the materiality of such
discrepancies. Furthermore, a decisive consideration is that none of

the three schools involved relied upon the discrepancy in the
reasons as a ground of review or to suggest that the s33(2) process

was procedurally unfair. They did not suggest that had they known of
the department’s policy regarding the elimination
of
multi-grade teaching they would have seized the opportunity to make
representations on that issue. In the result I am persuaded
that
inasmuch as it was not relied upon by the applicants and on the
basis of its lack of materiality, this discrepancy cannot
be relied
upon as a basis to review these three closure decisions.
CONCLUSION
For these reasons I consider the only
school closure decision in respect of which grounds of review have
been established is that
pertaining to Beauvallon Secondary School.
In this regard I have considered the judgment of Le Grange J but I
find myself unable
to agree that the applicants make out a case for
the setting aside of any other school closure decisions. It follows
that, in
my view, apart from the relief sought by the first and
second applicants, the remaining relief sought by the applicants
should
be dismissed.
COSTS
The national Minister sought no costs
order against any of the applicants. For their part the provincial
Minister and the department
sought no costs order against any
applicant save for the South African Democratic Teachers Union,
their rationale being that
any costs orders against the SGB’s
or schools would be pointless since they would come out of the
public purse. Costs were
sought against SADTU principally because
the Minister questioned its participation in the application,
considering its involvement
as ‘
purely political’
.
However, should a costs order be granted against SADTU alone the
effect would be that it has to carry the financial burden of

unsuccessful litigation in which there were some thirty-two other
unsuccessful applicants. SADTU’s involvement in the
application appears moreover to have derived in no small part from
its stance that the Minister was under an
obligation to consult with it before
making any school closure decisions. Although I have found that
argument to have no merit I
consider that the public interest is
served in having this question determined by a court as also the
question of the parameters
of a s33(2) exercise. Taking all these
factors into account I consider that it would be inappropriate to
burden SADTU with a costs
order.
In the result I would have made the
following order:
The first respondent’s
decision, made on or about 16 October 2012, to close Beauvallon
Senior Secondary School with effect
from 31 December 2012, is
reviewed and set aside;
The review applications by the
third to 35
th
applicants in respect of the first
respondent’s decision to close another 16 schools with effect
from 31 December 2012
is dismissed;
The application for declaratory
for relief in relation to s33(2) the
South African Schools Act, 81
of 1996
, is dismissed;
The first and second respondents
are ordered to pay the first and second applicant’s costs.
___________________
BOZALEK,
J
1
At
para [21]
2
At
para [22]
3
2011
(8) BCLR 761
(CC) at paras 36 – 44
4
[1997] ZASCA 2
;
1997
(3) SA 204
(A)
5
2012
(6) SA (CC) 223 at para 68
6
2012
SA 618
(CC) at para 95