Buchner & Others v HOD Free State, Memeber of the Executive Council Free State and Others (1418/2020) [2021] ZAFSHC 59 (18 March 2021)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Case No: 1418/2020

In the matter between:

HL BüCHNER

1ST APPLICANT

N GROBLER

2ND APPLICANT

F MOKOENA

3RD APPLICANT

L KOUPIS

4TH APPLICANT

R COETZER

5TH APPLICANT

J LIEBENBERG

6TH APPLICANT

A HAYIDAKIS

7TH APPLICANT

J VAN DEN BERG

8TH APPLICANT

P POTGIETER

9TH APPLICANT

M MATSOHO

10TH APPLICANT

PJJ ZIETSMAN

11TH APPLICANT

G HENNING

12TH APPLICANT

And

HEAD OF DEPAARTMENT OF EDUCATION, FREE STATE 1ST RESPONDENT

MEMBER OF THE EXECUTIVE COUNCIL: FREE STATE

DEPARTMENT OF EDUCATION

2ND RESPONDENT

HEARD ON: 07 DECEMBER 2020

JUDGMENT BY: MBHELE, J et NEKOSIE, AJ

DELIVERED ON: 18 MARCH 2021

[1] The first to twelfth applicants launched an application in this Court, seeking to declare unlawful,

review and set aside the decision taken on 28 February 2020 by the first respondent (HOD) to terminate their membership of the SGB. In an interlocutory application filed before the hearing of the above application, the applicants sought leave to file a further affidavit and amendment of the notice of motion in which they sought review of the decision of the second respondent (MEC) dismissing their appeal against the HOD’s decision.

[2] The applicants are individual members of the School Governing Body of Grey College (the SGB). The current SGB took office in 2018.

[3] On 28 January 2020 the HOD wrote a letter to the individual applicants wherein he expressed his intention to suspend or terminate the applicants’ membership in the governing body of Grey. In the same letter the HOD invited the SGB members to make representations to him within 21 days from the date of the letter on why their respective membership of Grey SGB should not be terminated or suspended. The contents of the letter are as stated below:

1. In 2019 I received two (2 reports from both the Independent Task Team (“ITT Report”) and Internal Audit (“Financial Report”) on Grey College Primary and Secondary School (“School”) respectively. Both reports were as a results of the investigations that I commissioned with terms of reference.

2. According to the Financial report, you are alleged to have breached paragraph 2.6 of the Code of Conduct for Members of Governing Bodies of Public Schools (“Code Of Conduct”) when you failed to ensure that the financial and other resources of the school are utilized in a responsible and accountable manner for the full settlement of R100-000 between the school and Amour Shop to the date of the report. This was despite the out of court settlement between yourselves and the owner of Amour Shop and you having paid R173 490.00 to Honey Attorneys.

3. You are further accused of having breached paragraph (1) of the Code of the Conduct by having failed to refer Mr. Henry Buchner’s misconduct to the District Director of Motheo for failing to declare his conflict of interest regarding the appointment of his law firm, Honey Attorneys. The matter involved the “out of court settlement” amount of R100,000 between the Amour Shoop owner and the school. No due processes seemed to have been followed in the appointment of the above law firm.

4. You are alleged to have further breached paragraph 3(1) (d) of the Code of Conduct of fulfilling your role in an effective and efficient manner by allowing the recruitment and appointments of the under mentioned individuals without following both the Human Resource Policy of the school and section 20(6) and (8) of SASA:

4.1. Mrs. Geldenhuys, Administration Clerk – Grey College Primary School.

4.2. Mrs. Mackenzie, Marker and Administration of Primary School Social Media.

4.3. Mrs. Marelize Vergotti, the Social Worker.

4.4. Mr. David Mackenzie, Director: Water Polo

4.5. Mrs. Hayidakis, Administration Clerk – Grey College Primary School

5. It is alleged that you may have changed the job description and made additional payments to Mrs. Van Rooyen without approval of the SGB meeting.

6. Please be further advised that it has been brought to my attention that you have given Mr. Nico Maritz, Financial Officer, an instruction perceived to be unlawful not to comply with the lawful injunction by the appointed officials on financial function at the school of making payment towards the principal of the Secondary School, Mr. Deon Scheepers’, salary and/or bonus.

7. Please be informed that your alleged unprofessional conduct is viewed in a serious light by this office.

8. You are therefore, should you so elect, from the date of receipt hereof, afforded an opportunity to submit within twenty-one (21) ordinary days, all relevant facts and reasons as to why a decision to suspend or terminate your membership should not be taken.

Your written submission or motivation must be directed to:

Superintended General (Free State Education

21st Floor, Fidel Castro Building

Cnr Markraaf & Elizabeth Streets

Bloemfontein.

[4] In 2019 the HOD commissioned an Independent Task Team (ITT report) and Internal Audit report (Financial report) to investigate administrative and financial affairs of Grey. The contents of the aforementioned letter stem from the ITT and financial reports. These reports were commissioned after allegations of financial mismanagement and irregularities at Grey College Secondary School came to the surface.

[5] On 7 February 2020 the applicants’ attorneys sent a letter to the respondent informing him, inter alia, that there were no disciplinary committee proceedings which empowered the HOD to terminate membership of the applicants from the governing body and as a result the HOD was requested to withdraw or rescind his letter stating his intention to suspend or terminate membership of the applicants from the governing body of Grey. The SGB members who made representations to the HOD on why their membership should not be terminated are Mr. Machini Motloung and Adv. Pieterse who are not parties to these proceedings.

[6] The record shows that on the same day letters were written to the applicants, a similar letter was written to the Principal inviting him to give reasons why steps should not be taken against him for the same transgressions as those levelled against the applicants and additional more. On 13 February 2020 the SGB held an urgent meeting in which it was decided that all the allegations referred to in the HOD’s letters of 28 January 2020 be referred to the SGB disciplinary Committee. This decision was taken after the SGB came to the conclusion that the allegations are of a serious nature warranting referral to a disciplinary committee.

[7] On 26 February 2020 the applicants lodged an urgent application challenging the intended termination of their SGB membership. On 28 February the HOD proceeded to terminate the applicants’ SGB membership.

[8] On 04 March 2020 Loubser, J heard the applicants’ urgent application and granted the following order:

1. Condonation is granted to the effect that the application is heard on an urgent basis.

2. The decision of the first respondent taken on 28 February 2020 in terms whereof he terminated the membership of the applicants in the Grey College School Governing Body, shall have no effect pending the final adjudication of an application by the applicants for the review and setting aside of that decision.

3. The application for the review and the setting aside of the decision must be filed by the applicants no later than 24 March 2020, failing which this interim order will no longer be operative.

4. The costs of the application, including the costs of the proceedings on 2 March 2020, will be costs in the review application.

[9] The 11th and 12th applicants were not parties to the urgent application. It is averred that they did not receive letters from the HOD notifying them of his intention to suspend their membership.

[10] On 09 March 2020 the applicants launched an appeal to the MEC against the impugned decision of the HOD. By the time this application was launched the MEC had not provided the outcome of the appeal.

[11] On 27 July 2020 the MEC dismissed the applicants’ appeal against the first respondents’ decision of 28 February 2020.

[12] On 22 October 2020 the applicants filed an application requesting that they be granted leave to file an extra affidavit and amend the notice of motion to include a prayer in which they sought to review the decision of the MEC on 27 July 2020 to dismiss their appeal. This application was dismissed with costs before hearing the main application.

[13] Central to this matter is whether the HOD’s action was procedurally fair when terminating the membership of applicants from Grey School Governing body without following procedures laid down in the Code of Conduct for Governing Bodies.

[14] The factual background to this application indicates that there has been an ongoing conflict between the SGB and the principal of Grey College Secondary School (Scheepers) and the HOD. The acrimonious dispute between the aforementioned parties saw the SGB withdrawing school governing body powers from Scheepers and appointing the principal of Grey Primary School to manage all school activities except for teaching and learning. The HOD in turn withdrew the financial and related powers of the SGB after allegations of financial mismanagement came to the fore.

The decision to withdraw Scheepers’ powers was set aside by this Court on 06 September 2018. This Court ‘s decision was confirmed by the SCA on 3 July 2020. Some evidence show that the issue of who should exercise governance and management powers created turmoil at the school.

[15] The applicants decry failure by the HOD to observe the code of conduct for the School Governing Bodies when the decision to terminate their membership was taken. They criticise the speed at which their membership was terminated while the HOD was slow to dismiss the Principal who is also accused of worst transgressions.

[16] Section 18 A of the South African Schools Act 84 of 1996 (SASA) provides as follows:

(1) The Member of the Executive Council must, by notice in the Provincial Gazette, determine a code of conduct for the members of the governing body of a public school after consultation with associations of governing

bodies in that province, if applicable.

(2) The code of conduct referred to in subsection (1) must be aimed at establishing a disciplined and purposeful school environment dedicated to the improvement and maintenance of a quality governance structure at a public school.

(3) All members of a governing body must adhere to the code of conduct.

(4) The code of conduct must contain provisions of due process, safeguarding the interests of the members of the governing body in disciplinary proceedings.

(5) The Head of Department may suspend or terminate the membership of a governing body member for a breach of the code of conduct after due process.’

[17] The MEC complied with the Act and determined the Code of Conduct which was published in the Government Gazzette dated 8 December 2016. The applicants rely on the said Code of conduct to advance their case. Paragraph 6 of The Code of Conduct for School Governing Bodies of Public Schools provides as follows in cases of misconduct:

‘(1) A failure of a member of a governing body to comply with the provisions of the Code of Conduct is regarded as misconduct.

(2) Subject to subparagraph (3), all allegations of misconduct of a member of a governing body of a public school must be directed to the chairperson of the governing body and allegations of misconduct of the chairperson of the governing body must be referred to the principal.

(3) All allegations of misconduct of a member of a governing body must also be referred to the Director of the relevant district.

(4) The chairperson of the governing body must on receipt of allegations of misconduct examine the information presented to him or her and determine whether the allegations are of a serious nature.

(5) The principal must, on receipt of allegations of misconduct of the chairperson, refer the allegations of misconduct to the governing body, who must, without the chairperson being present, examine the information and determine whether the allegations are of a serious nature.

(6) The chairperson of the governing body may, after giving the relevant member a fair opportunity to make representations, issue a warning to the member, if the allegations are not of a serious nature and in the instance where the chairperson is involved, the governing body may, after giving the chairperson a fair opportunity to make representations, issue a warning to the chairperson, if the allegations are not of a serious nature.

(7) If any allegations of misconduct are of a serious nature, the governing body must appoint a disciplinary committee comprising of at least three persons to make a recommendation to the governing body.

(8) The governing body may appoint persons who are not members of the governing body to the disciplinary committee referred to in subparagraph (7) above.’

[18] Paragraph 10 provides:

10. Failure by the governing body to take action against its members

(1) The Head of Department may direct the governing body of a public school to take action against its members as contemplated in paragraphs 6 and 7 within 14 ordinary days if there are allegations that (a) a member or members of the governing body have breached this Code;

(b) the allegations of breach are prima facie of a serious nature to warrant a suspension or termination of membership of a member from a governing body; and

(c) the governing body of a public school has failed or neglected to take action.

(2) Subject to subparagraph (3), if the governing body fails to take action within 14 ordinary days, the Head of Department may, on reasonable grounds, suspend or terminate membership of a member or members from a governing body.

(3) The Head of Department may not take action under subparagraph (2) unless he or she has

(a) in writing, given the members of the governing body who are alleged to have committed a misconduct, a notice of his or her intention to suspend or terminate their membership of the governing body of a public school;

(b) set out the description of the alleged breach and stated the reasons for his or her intention to suspend or terminate membership of the governing body;

(c) granted the member or members an opportunity to make representation within 21 ordinary days from the date of receiving such notice;

(d) given due consideration to any such representation received.

(4) When the Head of Department decides to suspend or terminate membership of the governing body as contemplated in this paragraph, he or she must:

(a) inform the member in writing of his or her decision;

(b) provide written reasons for his or her decision; and

(c) inform the member that he or she may appeal against the decision to the Member of the Executive Council.

(5) The provisions envisaged in paragraph 9 that relates to appeal apply, with the necessary changes, to an appeal of a member of the governing body contemplated in this paragraph

[19]

The procedure detailed above provides for an internal appeal remedy. When the applicants approached this court to review the impugned decision the internal appeal process had not been finalised. They brought an interlocutory application requesting to add a prayer that would have introduced the application for review against the MEC’s decision into the proceedings. That application was dismissed at the outset. Mr. Grobler, on behalf of the respondents, submitted that the relief sought by the applicants is incompetent for want of compliance with the internal appeal process and section (7) (1) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA).

[20] Section 7(2) of PAJA provides:

'(2)(a) Subject to paragraph (c), no court or tribunal shall review an administrative action in terms of this Act unless any internal remedy provided for in any other law has first been exhausted.

(b) Subject to paragraph (c), a court or tribunal must, if it is not satisfied that any internal remedy referred to in paragraph (a) has been exhausted, direct that the person concerned must first exhaust such remedy before instituting proceedings in a court or tribunal for judicial review in terms of this Act.

(c) A court or tribunal may, in exceptional circumstances and on application by the person concerned, exempt such person from the obligation to exhaust any internal remedy if the court or tribunal deems it in the interest of justice’

[21] When the law makes provision for internal remedies such internal remedies must be exhausted before an application can be launched to court. According to section 7 (2) (b) above, unless it is found by court on application that exceptional circumstances exist, an aggrieved party may not approach court on review before all available internal remedies of an administrative agency have been exhausted. The notion of exhausting internal remedies is rooted in the principle of respect for separation of powers and the understanding that administrative agencies must be accorded space to fulfil their mandate within parameters set by the law.

[22] O’ Regan, J in Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others [2004] ZACC 15; 2004 (4) SA 490 (CC) at par 48 commented on the need to exhaust internal remedies. She said:

' In treating the decisions of administrative agencies with the appropriate respect, a court is recognising the proper role of the executive within the Constitution. In doing so a court should be careful not to attribute to itself superior wisdom in relation to matters entrusted to other branches of government. A Court should thus give due weight to findings of fact and policy decisions made by those with special expertise and experience in the field. The extent to which a Court should give weight to these considerations will depend upon the character of the decision itself, as well as on the identity of the decision-maker. A decision that requires an equilibrium to be struck between a range of competing interests or considerations and which is to be taken by a person or institution with specific expertise in that area must be shown respect by the Courts. Often a power will identify a goal to be achieved, but will not dictate which route should be followed to achieve that goal. In such circumstances a Court should pay due respect to the route selected by the decision-maker.'

[23] The above sentiments were echoed by Mokgoro, J in Koyabe And Others v Minister For Home Affairs And Others (Lawyers For Human Rigths as Amicus Curiae) 2010 (4) SA 327 (CC). She said:

“[35] Internal remedies are designed to provide immediate and cost-effective relief, giving the executive the opportunity to utilise its own mechanisms, rectifying irregularities first, before aggrieved parties resort to litigation. Although courts play a vital

role in providing litigants with access to justice, the importance of more readily available and cost-effective internal remedies cannot be gainsaid.

[36] First, approaching a court before the higher administrative body is given the opportunity to exhaust its own existing mechanisms undermines the autonomy of the administrative process. It renders the judicial process premature, effectively usurping the executive role and function. The scope of administrative action extends over a wide range of circumstances, and the crafting of specialist administrative procedures suited to the particular administrative action in question enhances procedural fairness as enshrined in our Constitution. Courts have often emphasised that what constitutes a 'fair' procedure will depend on the nature of the administrative action and circumstances of the particular case. Thus, the need to allow executive agencies to utilise their own fair procedures is crucial in administrative action…

Once an administrative task is completed, it is then for the court to perform its review responsibility, to ensure that the administrative action or decision has been performed or taken in compliance with the relevant constitutional and other legal standards.”

[24] The effect of the applicants’ failure to allow the internal processes to unfold is that the decision on appeal would stand even if the review of the initial decision was decided in their favour. Their success would have no consequential effect. Plasket, J (as he then was) commented as follows when dealing with the importance of challenging both processes on review in WINGS PARK PORT ELIZABETH (PTY) LTD v MEC, ENVIRONMENTAL AFFAIRS, EASTERN CAPE AND OTHERS 2019 (2) SA 606 (ECG) at par 32.

‘[32] Furthermore, the analysis that follows of cases dealing with internal appeals indicates that the appellate decision must, invariably, be attacked in review proceedings, even when the initial decision is also taken on review. A number of different scenarios illustrate the point.

[33] When a decision favourable to an applicant has been taken at first instance, but reversed on internal appeal, however, it is only the appellate decision that needs to be reviewed: if the review is successful, the decision at first instance will be revived. This was the case in Golden Arrow v Central Road Transportation Board.

[34] When an applicant has suffered an unfavourable decision at first instance and it is confirmed on appeal, the situation is somewhat

different. Both decisions must be taken on review and, for the applicant to achieve success, usually both decisions will have to be set aside. ’

From the above it is clear that where the appeal confirms the initial decision, the decision on appeal remains unchallenged and in force and failure to challenge both processes may be dispositive of the matter. In view of the above, the case of the 11th and 12th applicant suffer the same fate. For the sake of finality, I intend dealing with the grounds of review.

[25] The Code of conduct flows from the SASA and it serves as an instrument regulating governance processes in public schools.

It makes provisions for the procedure to be followed where the chairperson, the principal and other members of the school governing

body are not accused of any misconduct and working relations are healthy between all the aforementioned parties. It is common cause

that in the current matter the working relationship between the chairperson, the principal and the rest of the SGB is non-existent

and they all had serious allegations levelled against them. Neither the chairperson, the principal nor other members of the SGB were in a position to decide on the disciplinary process without a perception of bias being created. They were all accused of wrongdoing and too close to the matter to be considered objective.

[26] The gravamen of the complaint by the applicants is that the applicants were not afforded a fair process envisaged in the code of conduct. They submitted that the SGB was robbed of their right to appoint a disciplinary committee constituted of persons who are not members of the SGB. They contended that the other step that was ignored by the HOD was to have the matter referred to the relevant District director.

[27] The submission by the applicants fails to appreciate that there was no proper working relationship between the SGB and the Principal and that all parties in whose province decision making lied within the Grey College Secondary School were being accused of serious wrongdoing which warranted some form of intervention. The question is, who had powers to refer the matter to the District Director or appoint an independent disciplinary committee in an environment where the SGB and the Principal are suspicious of each other and the level of trust has deteriorated to the point that it had and they are all accused of serious misconduct. Who had to take decisions to protect teaching and learning and to safeguard the interests of children. Where all parties are disqualified from taking a specific decision it was in the province of the HOD to intervene.

[28] All role players in this matter had one task at hand, to secure the learners’ right to education through promoting sound governance principles within Grey College. The SGB was aware of the findings of the reports by ITT and financial audit report. Nothing shows that steps were taken timeously against those implicated by the reports. The Code of Conduct empowers the HOD to intervene where the SGB failed to act within 14 days of the knowledge of the alleged wrongdoing.

[29] Nemo iudex in sua causa is simply defined as ‘no one should be a judge in his or her own case. This is a widely known principle which captures one of the pillars of the rules of natural justice. It is a basic rule of natural justice that the authority giving decision must be composed of impartial people acting fairly and without prejudice or bias. The rule against bias is based on the premise that it is against human psychology to take a decision that would harm one’s interests or ‘place one on fire to keep other people warm’. Human beings have a natural or instinctive tendency towards self-preservation. The principle strives to ensure public confidence in the impartiality of the decision making processes. It rests upon the backdrop that it is difficult for a judge or an arbitrator to bring an impartial an independent mind to a matter where he/ she is a party, has a substantial interest or is connected to any of the parties who has interest in the outcome. This principle is upheld to dispel perception of bias in administrative adjudicatory processes.

[30] In the current matter neither the Principal nor the SGB could be seen to be bringing an impartial mind to the matter based on the allegations against them and a fractured working relationship between them. Upon closer look of the history of the SGB and the Principal any decision taken by either party would have ignited controversy.

[31] Learning is a critical function placed in the hands of various stakeholders within the public school’s governance framework. Ability to take decisions in the interest of the school is at the centre of this critical function.

[32] In Head of Department, Department of Education, Free State Province v Welkom High School and (Equal Education First Amicus and Centre for Child Law Second Amicus Curiae 2014 (2) SA 228 (CC) at 123 and 124 Khampepe, J commented as follows:

‘[123] The importance of cooperative governance cannot be underestimated. It is a fundamentally important norm of our democratic dispensation, one that underlies the constitutional framework generally and that has been concretised in the Schools Act as an organising principle for the provision of access to education. Neither can we ignore the vital role played by school governing bodies, which function as a “beacon of grassroots democracy” in ensuring a democratically run school and allowing for input from all interested parties.

[124] Given the nature of the partnership that the Schools Act has created, the relationship between public school governing bodies and the state should be informed by close cooperation, a cooperation which recognises the partners’ distinct but inter-related functions. The relationship should therefore be characterised by consultation, cooperation in mutual trust and good faith. The goals of providing high-quality education to all learners and developing their talents and capabilities are connected to the organisation and governance of education. It is therefore essential for the effective functioning of a public school that the stakeholders respect the separation between governance and professional management, as enshrined in the Schools Act. ‘

[33] It is clear that the partnership and cooperation envisaged above could not be realised at Grey College Secondary School. The investigative reports alleged serious acts of misconduct against the applicants which called for disciplinary processes as prescribed in the Code of Conduct. Learning and governance had to proceed and it was necessary for the HOD to intervene. The parties were afforded time to plead their case with the HOD and they failed. The HOD had to act to safeguard the interests of all parties involved. For all the reasons stated above, the application for review must fail.

[34] Therefore, the following order is made:

ORDER

1. The application is dismissed with costs.

2. The applicants shall pay the respondent’s costs jointly and severally, the one paying the others to be absolved.

3. Costs to include those incurred in employment of Counsel.

__________________

N.M. MBHELE, J

I concur

____________________

C. NEKOSIE, AJ

On behalf of the Applicant: Adv MJ Engelbrecht SC & Adv MJ Merabe

Instructed by:

Horn & Van Rensburg Attorneys

BLOEMFONTEIN

On behalf of the Respondent: Adv.S Grobler SC

Instructed by:

State Attorney