Diphetoho School Governing Body and Others v Department of Education and Others (4218/2010) [2012] ZAFSHC 3 (12 January 2012)

Diphetoho School Governing Body and Others v Department of Education and Others (4218/2010) [2012] ZAFSHC 3 (12 January 2012)

The court held that the Head of Department was not entitled to withdraw the functions of the school governing body under section 22 of the Schools Act, as the circumstances required invocation of section 25, which deals with failure to perform statutory functions and provides for temporary intervention to build...

Source-derived case information.

Citation
[2012] ZAFSHC 3
Parties
Applicant: Diphetoho School Governing Body; Applicant: Loreme Petrus Masenga; Applicant: Thuloana Majoe; Respondent: Department of Education; Respondent: MEC: Department of Education; Respondent: Head of Department; Respondent: Lejweleputsoa District Office; Respondent: Lesley Gape Legopo
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
12 January 2012
Case Number
4218/2010
Procedural Posture
Review Application / Judgment
Outcome
The application to set aside the appointment of the principal is dismissed. The decision to withdraw the functions of the governing body and its confirmation on appeal are reviewed and set aside. Each party is to pay its own costs, including reserved costs.
Judges
C.H.G. Van der Merwe
Legal Topics
School Governance, Withdrawal of Functions, Appointment of Principal, Promotion of Administrative Justice Act, Failure to Perform Statutory Functions
Administrative Law Civil Procedure School Governance Withdrawal of Functions Appointment of Principal Promotion of Administrative Justice Act Failure to Perform Statutory Functions

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 6 Party arguments 2
Sign in to unlock

Parties

Diphetoho School Governing Body

Applicant

Loreme Petrus Masenga

Applicant

Thuloana Majoe

Applicant

Department of Education

Respondent

MEC: Department of Education

Respondent

Head of Department

Respondent

Lejweleputsoa District Office

Respondent

Lesley Gape Legopo

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the Head of Department was entitled to withdraw the functions of the school governing body under section 22 of the South African Schools Act.
  2. 2 Whether the withdrawal of functions was for a remedial purpose and temporary as required by law.
  3. 3 Whether the appointment of the principal without the governing body's recommendation was lawful under the Employment of Educators Act.

Ratio Decidendi

The court held that the Head of Department was not entitled to withdraw the functions of the school governing body under section 22 of the Schools Act, as the circumstances required invocation of section 25, which deals with failure to perform statutory functions and provides for temporary intervention to build capacity. The withdrawal was not for a remedial purpose nor was it temporary, but rather amounted to an unlawful dissolution of the governing body, which is not permitted by the Act. The appointment of the principal was lawful, as the governing body failed to make a recommendation within the statutory period, thereby allowing the Head of Department to appoint independently. The...

Court Disposition

The application to set aside the appointment of the principal is dismissed. The decision to withdraw the functions of the governing body and its confirmation on appeal are reviewed and set aside. Each party is to pay its own costs, including reserved costs.

Orders

  • Prayer 1 of the notice of motion is dismissed.
  • The decision of the third respondent to withdraw the functions of the first applicant and the confirmation of this decision by the second respondent on appeal are reviewed and set aside.