Head of Department of Education, Eastern Cape Provincial Government v South African Democratic Teachers Union and Others (3760/2016, 3791/2016) [2016] ZAECGHC 71 (8 September 2016)

IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

CASE NO: 3760/2016

3791/2016

DATE: 8 SEPTEMBER 2016

In the matter between:

HEAD OF DEPARTMENT OF EDUCATION,

EASTERN CAPE PROVINCIAL GOVERNMENT.......................................................Applicant

And

SOUTH AFRICAN DEMOCRATIC TEACHERS UNION...............................First Respondent

THE PRESIDENT OF THE SOUTH AFRICAN

DEMOCRATIC TEACHERS UNION.........................................................Second Respondent

THE GENERAL SECRETARY OF THE SOUTH

AFRICAN DEMOCRATIC TEACHERS UNION............................................Third Respondent

SINDISILE ZAMISA...................................................................................Fourth Respondent

JUDGMENT

LOWE, J

Date heard: 25 August 2016

Date delivered: 08 September 2016

Introduction:

[1] Two matters came before me. In the first application Applicant seeks as a matter of urgency certain relief relating to what is referred to as First Respondent’s constitutional duty to respect, protect, promote and fulfil the rights of children to basic education and not to interfere with, obstruct or impede the carrying out of the Constitutional duty of the Eastern Cape Provincial Department of Education to provide effective basic education to all learners in the Eastern Cape Province, including the implementation of post provisioning. Further relief is sought which is aimed at compelling First Respondent its officials and members to cooperate with Applicant’s implementation of its personnel administrative measures determined by the Minister of Basic Education, declaring First and Fourth Respondents’ Notice of 6 April 2016 to its members as unlawful and inconsistent with the Constitution, together with further relief on a structural basis directing Second and Third Respondents to comply with the personnel administrative measures and items 13, 14, 15 and 16 of the revised PPN 2016 management plan. There is also relief sought directing Second and Third Respondents to take disciplinary proceedings against Fourth Respondent arising from his having issued the notice of 6 April 2016.

[2] In the second application Applicant seeks a rule interdicting and restraining First and Fourth Respondents from a number of actions and activities, and an order directing them to bring the contents of the Court order to the attention of members of the First Respondent in the Eastern Cape Province, thereafter reporting to the Court accordingly.

[3] At the commencement of argument, it was anticipated that it may be possible to traverse all the issues raised in the papers, including the points in limine, predominantly urgency and the locus standi of Applicant. In point of fact the argument turned out to be lengthy in respect of both urgency and locus standi and despite my availability, it was agreed between the parties that I would determine only the initial points leaving over the merits insofar as it remained necessary to deal with those on a further occasion.

[4] The point as to locus standi is identical in both applications, but urgency is not. Of course if the matters lack sufficient urgency to justify them being heard on an accelerated basis that is the end of the matter and each application, if appropriate would be struck from the roll with costs. If however either or both the applications are indeed urgent it would be necessary to deal with the locus standi point.

Urgency:

[5] In respect of urgency I will deal with each application in turn.

[6] The first application, which I will refer to as the constitutional application, has a considerable history which requires to be shortly traversed.

[7] On 13 January 2016 First Respondent placed a statement on its website, being a press release, commenting on quality public education, promising the launch of a vigorous campaign against the so-called debilitating post provisioning norms in order to ensure that learners had enough teachers. It was clear that First Respondent and the Department of Education were not in agreement regarding the manner in which the process of post provisioning should be implemented.

[8] On 9 March 2016 the Provincial Department having received no information on additional educators as required by the revised management plan of 25 January 2016 issued a further memorandum (the fourth) requesting school principals and others to identify and submit returns in respect of educators who were additional to the 2016 PPN post distribution. This required the returns to be submitted by 15 March 2016.

[9] On 6 April 2016 Fourth Respondent addressed a letter to First Respondent’s regional secretaries, branch secretaries and shop stewards setting out its position on the 9 March 2016 memorandum. In summary this called upon First Respondent’s members to ignore the memorandum and not to participate in the identification of additional educators until such time as the amendments envisaged by First Respondent and raised with the acting SG on 17 March 2016 had been dealt with.

[10] It was argued for First Respondent that this letter must be read in its entirety and given context in order to understand same, demonstrating a continual process by First Respondent in attempting to achieve consensus on the point.

[11] On 11 May 2016 Fourth Respondent wrote to the Applicant stating that first Respondent’s national programme would take the form of picketing “at this stage” on 16 May 2016 at various districts and the East London Institute. In answer and on 12 May 2016 Applicant addressed First Respondent informing First Respondent that picket action would be unlawful and drawing First Respondent’s attention to the Department’s Constitutional obligation to fulfil the right of every child to basic

education, calling upon First Respondent to call off the intended unlawful action threatening that it would seek the urgent relief

necessary if it failed to do so.

[12] On 13 May 2016 First Respondent answered, several of the crucial disputes between the parties but failied to withdraw the threat made.

[13] On 15 May 2016 Applicant addressed First and Fourth Respondents in writing pointing to the fact that the threat of unlawful action had not been withdrawn and inviting First Respondent’s leadership to a meeting on 16 May 2016 in order that they be updated on developments in respect of the matters raised in First Respondent’s letter. On 15 May 2016 Applicant circulated a number of internal, and school, roll players referring to the threatened picketing.

[14] On 15 May 2016 First Respondent addressed Applicant in writing accusing him of undermining First Respondent as an organization and reminding her of the organization’s Constitutional rights. It warned that First Respondent was “warming up” for other campaigns, in a somewhat aggressive tone.

[15] This was followed by little further action until on 13 July 2016 Applicant wrote to Fourth Respondent, reviewed the history of the matter as he saw it, drew attention to all parties’ constitutional obligation to respect and protect the rights of children particularly relevant to basic education, complained of the conduct of First Respondent and its members in failing to comply with what was referred to as the obligations and instructions to compile staffing profiles in order to identify educators additional to the staff of establishment schools and that the Department was at risk of breaching Court orders obliging them to

act on post provisioning. Applicant alleged that the issue of the notice on 6 April 2016 by First Respondent, referred to above, was a breach of its obligations and demanded a written undertaking that it would cease its unlawful conduct and take steps (which were set out) relevant to compliance with the memoranda also referred to above, and refrain from engaging in any unlawful strikes, pickets or public demonstrations.

[16] A response and undertaking was demanding within seven days of the date of the letter, that is by 20 July 2016.

[17] It seems that the failure to furnish this undertaking precipitated the bringing of this application on 28 July 2016.

[18] In short it was argued for Respondents that against the long historical background since long prior to January 2016, it had become clear by 6 April 2016 that there was at that time and going forward an irresoluble conflict as to the appropriate method of addressing post provisioning and that First Respondent’s stance was to object hereto by several different means, including instructing its members to ignore the memoranda issued by the acting SG referred to above. It was argued that nothing occurred between that date and 13 July 2016 which softened First Respondent’s approach, on the contrary, the eventual application and written communication on 13 July 2016, referred back to the memorandum to members by First Respondent on 6 April 2016, and accordingly effectively any such urgency as there might be self-created in the matter, and had been precipitated by Applicant’s own long-standing delays and failure to take action over the months in between and as summarized above.

[19] In point of fact, Respondents went further and it was argued that nothing new had really happened since as long ago as 2011. In the result it was argued that the bringing of this urgent application was thoroughly unjustified, seen in this context, and should for the reason of lack of urgency, alternatively self-created urgency following long inaction in respect of the now claimed constitutional relief sought, be struck from the roll with costs.

[20] In answer, Applicant’s counsel argued primarily that this application concerned the rights of children in a situation which had been created by First Respondent’s lack of cooperation, impacting on their rights to basic education. It was pointed out, that to determine the question of urgency it had to be assumed that the merits of the application had some substance. He pointed out that the thrust of the application did not go simply to unlawful picketing, but rather to a much deeper seated alleged unlawfulness pursued and fostered by First Respondent in respect of its member’s failure to carry out their legal obligations as set out in the legislative structure which underlay educators post provisioning.

[21] It was argued that the unlawfulness relevant was the failure by First Respondent’s conduct and its members to comply and cooperate with the statutory scheme, which, so it was argued, First Respondent and its members were obliged to obey until set aside by a Court. Counsel pointed out that it could not be gainsaid that whilst there was a dispute as to the appropriate method of dealing with post provisioning, there was a system which had been lawfully determined, whereas the current position of First Respondent

and its members was interfering with the rights of children’s basic education. It was argued that the matter was accordingly

inherently urgent and should be heard for that reason. Pointing to First Respondent and its members’ unlawful approach to post provisioning, it was argued for Applicant that whilst First Respondent had instructed its members to ignore the post provisioning

obligations, which it was urged upon me was unlawful approach. It was conceded that the matter could have been launched earlier but that, this notwithstanding, the issues raised retained their urgency and it would be unjust to view matters in a different light. It was pointed out that the eventual demand for an undertaking on 13 July 2016 and 20 July 2016 was simply seeking an undertaking to act lawfully and to which no response was received. At that time, the application was launched with all due speed, and must be viewed in the light of the fact that there is no explanation for the fact that the demand for an undertaking was simply ignored. It was pointed out that in the circumstances, on the affidavits, the allegations of urgency and ongoing Constitutional breach were inadequately dealt with by First Respondent. Put shortly it was argued that there was simply no answer, or put differently no proper answer, to the allegations of urgency in the papers, and that the breach continues to date with no resolution, to the disadvantage of the school children in the Province. Applicant’s counsel argued forcefully that the disagreement relevant to post provisioning that had been established in a lawful manner, and which was not subject to being set aside by the Courts in any legal challenge to date, required to be complied with urgently. The Applicant’s call for a meeting on 16 May 2016 had fallen on deaf ears, and there were basic constitutional rights to education involved, in respect of which labour rights and disputes must give way to their statutory obligations as educators.

[22] It was pointed out, it seems to me correctly, that the post provisioning plan had been a plan agreed to by First Respondent, although First Respondent denied having signed the minute which reflected this.

[23] The approach to urgency is well known, and I have no intention of setting this out in this matter. It is trite that the degree of relaxation of the rules and of the ordinary practice of the Court depends upon the degree of urgency of the case. In this matter, I am of the view, not only from what has gone above, but a proper reading of the papers, that this is indeed a matter which raises fast and most important Constitutional issues, relating directly to the rights of children in the Province to basic education. The importance of this is difficult to overemphasize and delay in affording the children with the basic education they need, and are entitled to, has a domino effect into the future and redounds to the extreme prejudice of those children. It seems to me, that whatever has been said in this application, it is simply not possible to ignore the above fact and the clear impact which the dispute between Applicant and First Respondent has on the provision of that basic education. I have in no way taken a view on the merits of the dispute or the relief sought in this matter. The fact of the matter is, however, that in respect of urgency, what is demonstrated is very considerable urgency and that a failure to hear the matter and to rule thereon in due course would, in my view, not be something that should be countenanced by this Court. On the contrary, it seems to me that this is a matter in which there should be every assistance given to the parties to have the matter properly ventilated as soon as possible, within reason, in order that the issues might be determined and the matter proceed properly lawfully, and in the interests of children’s basic right to education.

[24] I have given careful thought and consideration to all the points and arguments fully raised by Respondent’s counsel, in a careful and extremely competent argument. I remain, however unpersuaded that this matter (the first application) does not warrant an urgent hearing or that insufficient time has been afforded the parties to file the papers in this regard.

[25] In the result, I consider the matters raised in the first application to be of sufficient urgency as to warrant its hearing on the urgent roll with an order that Applicant’s noncompliance with the forms and service provided for in the rules of this honourable Court be condoned in the matter thus be heard as one of urgency.

[26] In respect of the second application, the issues as to urgency are less factually complicated.

[27] This application was launched subsequent to the first application, but refers thereto as background. The relief sought in the second application is distinct from that sought in the main application and relates to specific events which took place after the main application was instituted. It does however have a similar factual background and legal framework.

[28] The crux of the second application is that shortly after service of the main application on 1 August 2016 an article appeared in the “Daily Dispatch”.

[29] Under the headline “SADTU raises hackles over teaching posts”. The article referred to the first application which had been instituted on 27 July 2016 and Fourth Respondent is quoted in the

article as having said the following: “It is about us opening our big mouths about the use of the consultants running the education department. We are convinced some in the top echelons of benefiting. We are going to disrupt everything after these elections so they will know who they are dealing with.”

[30] On 2 August 2016 the EP Herald published an article relating to the main application quoting Fourth Respondent who assured the newspaper that there was no prospect of “us losing” and that lies and inefficiencies of the department would be “exposed in Court”. A number of other issues were set out which I will not refer to.

[31] The Applicant regards Fourth Respondent’s “unlawful threat” that First Respondent would disrupt everything after the local government elections as a matter which warrants and justifies the second application to restrain Respondents from doing so. It is alleged that this was not the first time that the Fourth Respondent and members of First Respondent had threatened or engaged in such unlawful behavior. The founding affidavit then sets out the alleged unlawful conduct and threats during the period

2013 to 2016 and then alleges that the requisites for an interim interdict have been satisfied.

[32] It was conceded in argument and agreed between the parties that the matter would however be argued on the basis of the rules applicable to final interdicts and dealt with as a final interdict.

[33] In short Applicant alleges that it has reason to believe that Respondents will carry out the public threat to disrupt everything within the Department and its offices in the public schools unless interdicted from doing so.

[34] The second application was launched on the 4 August 2016 giving notice that the matter would be heard on 8 August 2016 upon which date a rule would be sought calling upon all interested parties to show cause on 1 September 2016 why the relief sought should not be made final, a good deal of that relief relating to the interdict being sought as an interim interdict with immediate effect on 8 August 2016. The affidavits in answer were called for by 5 August 2016.

[35] Put otherwise, the matter was brought as a matter of great urgency on very short notice seeking immediate relief pending the return day.

[36] In answer, it was pointed out in argument that the threat was not necessarily properly construed a threat of any unlawful conduct which would justify the granting of an interdict, interim or otherwise. The application was described as a pre-emptive strike.

[37] In the context of the facts relevant, it was further argued that the matter lacked sufficient urgency to be brought in the manner in which it was let alone on the timeline set out.

[38] In answer, Applicant’s counsel argued that this was clearly the threat of unlawful action in the context of the matter but otherwise a threat to disrupt education unlawfully. It was argued that Respondents in reply failed to deny an intention to disrupt education, gave no undertaking not to act unlawfully and fails to deny the “threat”.

[39] Mr Budlender made a brave attempt to justify the urgency particularly arguing that in the context of the answering affidavits in the history of unlawfulness there was a reasonable belief that the matter warranted considerable urgency in order to avoid further disruption occurring in respect of children’s’ education in the Province.

[40] It is trite that the mere existence of some urgency does not necessarily justify an application being brought in the normal course and the use of shortened time periods must be such as to be justifiable in the exigencies of the circumstances applicable in each matter. The shortening of the time periods and the advance choice of a date for hearing, especially where this seeks immediate relief pending a return day must be justifiable.

[41] In my view, and against the non-specific threat, which failed to specify what was intended thereby, was not such, in my view, even taken in the context in which Applicant contends it must be such as to justify such precipitous and immediate relief being sought, let alone operating in the interim pending a return day. I have carefully considered and am fully aware of the background relied upon by Applicant in this regard in argument and in the papers, but in the context of the matter am unpersuaded that the matter warranted the urgency which was advanced. In this context urgency was vigorously pursued, or rather the lack thereof, by Respondents in argument.

[42] Urgency is also a matter for the Court, whatever the attitude of the Respondents may have been.

[43] In this matter, accordingly, I am not persuaded that the urgency relevant was by any means justified, and for that reason, the matter is struck from the roll with costs.

Locus Standi:

[44] This brings me, to the question of locus standi which can be shortly dealt with as follows.

[45] Applicant brings this matter in the capacity as acting head of Department of the Eastern Cape Department of Education. She brings the application in her capacity as the acting head and accounting officer of the provincial Department and by virtue of the powers, duties and responsibilities conferred upon her office by Act 76 of 1998 and Act 27 of 1996 together with the subordinate legislation promulgated under the statutes.

[46] She also brings the application, she says, in the public interest in terms of Section 38(1) (d) of the Constitution of the Republic of South Africa, 1996.

[47] In answer Respondents contend that Applicant’s Department was placed under Administration in terms of Section 100(1)(b) of the Constitution in May 2011. It was argued that the National Minister of Basic Education assumed the responsibilities and powers that otherwise vested in the Department, including responsibilities and powers of the MEC and the Head of Department of the Provincial Department of Education.

[48] It was argued accordingly that Applicant has no standing to bring the application, but only the National Minister.

[49] In reply Applicant states that the nature and terms of the Section 100 intervention was recorded in a Memorandum of Understanding of 31 May 2011 by the authorized parties. The intervention, it is pointed out, was for a limited duration of three years with effect from 31 May 2011 as is evident from Article 9(2) of the Memorandum of Understanding which read that “Subject to Section 100(2) of the Constitution, the duration of the intervention shall be three (3) years, or as determined by Cabinet”. Applicant alleges that to the best of her knowledge the cabinet has not determined a different duration.

[50] Applicant also points out that she has standing to bring this application by virtue of the powers of the Head of Department appointed in terms of Section 12(1)(b) of the Public Service Act, 1994.

[51] In a supplementary affidavit Respondents allege that on two official occasions the National Minister of Basic Education made it clear that Applicant’s department was still under Administration.

[52] In my view, and on a proper approach to the papers in this matter, it cannot be gainsaid that the Administration, referred to above, lapsed after three years, unless active steps were taken to extend the period. It seems to me clear that on the face of it, whatever the National Minister may have said, it must be accepted on these papers, that the Applicant’s department is no longer under Administration.

[53] It is entirely inconceivable in my view, that had the Department been under administration, this would not have been well known to the Acting Head thereof.

[54] It is similarly inconceivable that had the Administration been extended, this would not have been well known to all concerned and a matter which it would be more than apparent in respect of numerous issues and structures during the period subsequent to the initial three years.

[55] Were I to be incorrect in the above, and in any event, it would seem to me to be perfectly clear that the Applicant, as Acting Head of the Department appointed as aforesaid, has authority in that capacity to bring, and defend litigation affecting her Department, whether or not that Department is under Administration as aforesaid. It is not, in my view, required of the Applicant in bringing any application, relevant to the Departmental interests and responsibilities to first have the special authorization of the National Minister even if under administration let alone the MEC.

[56] In the circumstances the point as to locus standi is decided in Applicant’s favor, the point in limine in this regard being dismissed.

[57] In the circumstances the following order issues:

1. The second application (case number: 3791/2016) is struck from the roll with costs;

2. In the first application (case number: 3760/2016) the Applicant’s non-compliance with the Forms and Service provided for in the Rules of this Honourable Court is condoned, the application to be heard as one of urgency;

3. The point in limine that Applicant lacked the locus standi to bring the first and second applications is dismissed;

4. The costs occasioned relevant to paragraphs 2 and 3 above, are reserved.

M.J LOWE

JUDGE OF THE HIGH COURT

Obo the Applicant: Adv. G.M Budlender SC

Instructed by: Dullabh Attorneys

5 Bertram Street

Grahamstown

(Ref: Mr M Wolmarans)

Obo the First Respondent: Adv. T Motau SC

Instructed by: Wheedon Rushmere & Cole

119 High Street