Douglas High School v Head of the Department of Education, Northern Cape and Others [2023] ZANCHC 5 (20 January 2023)

IN THE HIGH COURT OF SOUTH AFRICA

(NORTHERN CAPE DIVISION, KIMBERLEY)

Case number.: 1118/2019

Date heard: 16/11/2021

Date delivered: 20/01/2023

Reportable: Yes/No

Circulate to Judges: Yes/No

Circulate to Magistrates: Yes/No

In the matter between:

DOUGLAS HIGH SCHOOL

1ST APPLICANT

THE SCHOOL GOVERNING BODY OF

DOUGLAS HIGH SCHOOL

2ND APPLICANT

and

THE HEAD OF THE DEPARTMENT OF EDUCATION,

NORTHERN CAPE

1ST RESPONDENT

THE MEMBER OF THE EXECUTIVE COUNCIL FOR

EDUCATION IN THE NORTHERN CAPE

2ND RESPONDENT

MR. F.J. WALDECK

3RD RESPONDENT

MS. D. MYBURGH

4TH RESPONDENT

MS. J. ERASMUS

5TH RESPONDENT

CORAM: WILLIAMS J et MOFOKENG AJ

JUDGMENT ON APPLICATION FOR LEAVE TO APPEAL

WILLIAMS J:

1. This is an application for leave to appeal to the Supreme Court of Appeal against the whole of our judgment and order delivered on 16 April 2021. An application for condonation for the late filing of the notice of appeal accompanied the application for leave to appeal. The delay having been fully explained, the fate of the application for condonation depends on the prospect of success on appeal.

2. The grounds upon which the applicants contend that an appeal would have reasonable prospects of success can be summarized as follows:

2.1. The Court erred in not having found that the HOD was not entitled to formulate a new reason for his decision after the fact i.e. that the School Governing Body’s (SGB) failure to recommend three candidates left the Head of Department of Education, Northern Cape (the HOD) with no authority to make an appointment;

2.2. The Court erred in not finding that it was not incumbent on the HOD to have the flawed recommendation reviewed and set aside;

2.3. The Court erred by failing to appreciate that “professional qualification” also includes proper qualification through acknowledged training courses and in-service training; and

2.4. The Court erred in failing to appreciate that the SGB accepted that the departmental officials had performed their responsibilities in terms of s 6(3)(d) of the Employment of Educators Act[1] (the EEA) and Personnel Administrative Measures (PAM) to ensure that legislative prescripts relating to recruitment and selection of candidates were complied with.

AD GROUND 2.1 ABOVE

3. The absence of a jurisdictional fact was raised as a point in limine by the respondents. It was never stated to be one of the reasons for the HOD to decline to appoint Mr Waldeck. The issue was also not accepted or treated as a reason, ex post facto, why the HOD’s decision could not be said to be based on irrelevant consideration. There is no merit in this ground.

AD GROUND 2.2 ABOVE

4. As was stated in paragraph 23 of the main judgment, the SGB’s

recommendation is not a decision which is binding and which can be taken on review. So for instance s 6(3)(e) of the EEA provides

for the HOD to decline the recommendation and s 6(3)(g) of the EEA allows for the HOD to appoint any suitable candidate on the list, despite the order of preference.

AD GROUND 2.3 ABOVE

5. This ground of appeal ignores the fact that Mr Waldeck has no

experience or basic knowledge of physical sciences which encompasses the other component of the post. This ground of appeal is merely academic.

AD GROUND 2.4 ABOVE

6. This ground of appeal likewise can have no bearing on the prospects

of success on appeal and has been addressed in the cost order made.

7. In my view there are no reasonable prospects that a court of appeal would come to a different decision in this matter. The application for condonation can therefore not succeed.

ORDER

The following order is made:

The applications for condonation and leave to appeal are dismissed with costs.

CC WILLIAMS

JUDGE

I concur:

A MOFOKENG

ACTING JUDGE

For applicants:

Adv J Merabe

Horn & Van Rensburg Attorneys

c/o Elliot Maris

For respondents : Adv F Petersen

Mjila & Partners

[1] Act 76 of 1998