Maselela v MEC for Education North West and Others (159/2003) [2003] ZANWHC 46 (6 July 2003)

CASE NO. 159/2003

IN

THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:-

MORRIS MASELELA (On behalf of Abel

Motshoane High School Governing Body) : Applicants

and

MEC FOR EDUCATION NORTH WEST &

TWO OTHERS : Respondents

APPLICATION

MAFIKENG

HENDRICKS

AJ

DATE OF HEARING : 26 June 2003

DATE OF JUDGMENT : 06 August 2003

COUNSEL FOR APPLICANT : Mr J. Maseka

COUNSEL FOR RESPONDENT : Adv. N. Gutta

HENDRICKS AJ:

This is a review application in which the Applicant seeks an order to review and set aside the decisions by the Respondents to:-

refuse the learners and teachers of Abel Motshwane School to occupy the school built for them; to name the school the Father Smangaliso Mkhatswa School. At the hearing of this application, an application was made by the Applicant for condonation for the late filing of the Heads of Argument. This application was unopposed and the late filing of the Applicant’s Heads of Argument was subsequently condoned. Point - in - limine The Respondents raised as a point - in - limine in the answering affidavit of Mponana Abednego Seakanela, the fact that the Applicant does not have the necessary locus standi to bring this application. See:- Paragraphs 3 to 9 of the Answering Affidavit - (pages 70-72 of the record). This point in limine was however abandoned during argument by Mrs Gutta. I am of the view that the abondonment of this point in limine was correctly made seeing that the disbandonment of the School Governing Body of the Abel Motshwane High School is void ab initio. Section 25 of the South African Schools Act, Act 84 of 1996 does not authorise the Respondents to disband the School Governing Body of the Abel Motshwane High School under the prevailing circumstances. The action on the part of the Respondents to disband this School Governing Body amounts to a nullity.

refuse the learners and teachers of Abel Motshwane School to occupy the school built for them;

to name the school the Father Smangaliso Mkhatswa School.

At the hearing of this application, an application was made by the Applicant for condonation for the late filing of the Heads of Argument. This application was unopposed and the late filing of the Applicant’s Heads of Argument was subsequently condoned.

Point - in - limine

The Respondents raised as a point - in - limine in the answering affidavit of Mponana Abednego Seakanela, the fact that the Applicant does not have the necessary locus standi to bring this application.

See:- Paragraphs 3 to 9 of the Answering Affidavit - (pages 70-72 of the record).

This point in limine was however abandoned during argument by Mrs Gutta. I am of the view that the abondonment of this point in limine was correctly made seeing that the disbandonment of the School Governing Body of the Abel Motshwane High School is void ab initio. Section 25 of the South African Schools Act, Act 84 of 1996 does not authorise the Respondents to disband the School Governing Body of the Abel Motshwane High School under the prevailing circumstances. The action on the part of the Respondents to disband this School Governing Body amounts to a nullity.

Background

The Department of Education of the North West Province approved and built three new school buildings in the Winterveldt area, to relief the problem of overcrowding by learners of the existing schools. One of the schools that encountered such an overcrowding of learners, is the Abel Motshwane High School. It is common cause that one of the new school buildings that was erected is called the “New Abel Motshwane High School”. The Respondents submitted that this was only a project name and they deny that this new building was meant for the occupation by the learners and teachers of the existing Abel Motshwane High School. The Respondents registered this new school building as a new school under the name of “Smangaliso - Mkhatswa Comprehensive High School” on the 15th November 2002. A dispute arose after the teachers and learners of the existing (“old”) Abel Motshwane High School took occupation of this new school building claiming that this new school building was erected for them.

Merits

It is submitted on behalf of the Applicant that the basis on which the relief as set out in the Notice of Motion is claimed, is two fold; namely:-

on the basis of contract; and

(2) on the basis of administrative law.

Firstly, with regard to the contract, it is submitted that Respondents represented to the Applicant, over a substantial period of time, both oral and in writing that new buildings will be erected for the existing Abel Motshwane High School.

This representation was accepted by the School Governing Body (SGB) of the Abel Motshwane High School.

It is further submitted by the Applicant that the Abel Motshwane High School, as a public school, is in law a juristic person and as such, was the SGB of the school entitled to enter into a contract with the Department of Education.

It is common cause between the parties that a tender was invited for the building of a “New Abel Motshoane School”. It is also not disputed that the building plans, which were handed in by consent during argument, refers to the “Proposed New School For Abel Motshwane High School”.

The Bills of quantities is also entitled:-

“Bills of Quantities for proposed new Abel Motshwane Secondary

School at Winterveldt, Mabopane”.

It is also not disputed that the contractors board erected on the premises of this new school building refers to”New Class Room & Admin for Abel Motshwane High School”. A photo of this board was handed in by consent and marked “X1" at the back.

Furthermore, Annexure “26 B” on page 26 of the record, is a letter from the Department of Education addressed to the District Manager, Mabopane District Office, which bear the following contents:-

“ The following are projects approved for construction in your District for 2001/2002 budget. These projects are undertaken through the Department of Transport, Roads and Public Works, they are busy with the documents and very soon contractors will be on the site. New Schools and Extentions to Existing Schools Budget 2001/2002". The name of three schools appears in a block below. With regard to Thulaganyo School, it is indicated that this is a new school that was erected. With regard to the Molebatsi High School, it is indicated that this is an extension to an existing school. In the case of Abel Motshoane High School, it is not indicated that this is a totally new school to be erected. It only indicates that 22 classrooms, 30 toilets, 1 Admin Block, 2 Special Function Rooms, 2 Head of Department offices be built, and fencing be provided. It is clear from the contents of this document that it was not the intention of the Department of Education that a new school be built altogether. It is clear that the buildings that were erected was for the existing Abel Motshwane High School. It is clear from this document that it is not coincidental that the new school buildings bears “as a project name”, the same name as an existing school. This document, although not addressed or directed to the principal of the school or the SGB, clearly intends to convey the message that whatever

buildings that were to be erected, was erected for the existing Abel Motshwane High School. It is overwhelmingly clear from the documents that the Department budgeted for and did erect these new buildings for the existing Abel Motshwane High School. Furthermore, in paragraph 15 of the Founding Affidavit of Morris Maselela, it is stated that the consultant Dimakatso held a meeting with inter alia the SGB requesting them to look for a suitable site for the building of the “New Abel Motshwane High School”.

“ The following are projects approved for construction in your District for 2001/2002 budget. These projects are undertaken through the Department of Transport, Roads and Public Works, they are busy with the documents and very soon contractors will be on the site. New Schools and Extentions to Existing Schools Budget 2001/2002".

The name of three schools appears in a block below. With regard to Thulaganyo School, it is indicated that this is a new school that was erected. With regard to the Molebatsi High School, it is indicated that this is an extension to an existing school. In the case of Abel Motshoane High School, it is not indicated that this is a totally new school to be erected. It only indicates that 22 classrooms, 30 toilets, 1 Admin Block, 2 Special Function Rooms, 2 Head of Department offices be built, and fencing be provided.

It is clear from the contents of this document that it was not the intention of the Department of Education that a new school be built altogether. It is clear that the buildings that were erected was for the existing Abel Motshwane High School.

It is clear from this document that it is not coincidental that the new school buildings bears “as a project name”, the same name as an existing school. This document, although not addressed or directed to the principal of the school or the SGB, clearly intends to convey the message that whatever buildings that were to be erected, was erected for the existing Abel Motshwane High School.

It is overwhelmingly clear from the documents that the Department budgeted for and did erect these new buildings for the existing Abel Motshwane High School. Furthermore, in paragraph 15 of the Founding Affidavit of Morris Maselela, it is stated that the consultant Dimakatso held a meeting with inter alia the SGB requesting them to look for a suitable site for the building of the “New Abel Motshwane High School”.

In answer to this statement the Respondents in their answering affidavits on page 80 of the record, deny that Dimakatso was tasked or authorised by the Department of Education to make any recommendations. It is not denied that the said Dimakatso did infact hold the meeting with the SGB.

It appears from Annexure “AM24" on page 151 of the record that these buildings were registered as a new school on the 15th November 2002. The name of this “New School” is “Smangaliso - Mkhaswa Comprehensive High School”. This registration of the buildings as a new school, is totally contradictory to what is contained in the document attached as Annexure “26 B”. It is also in contrast with what is contained on the building plans, bills of quantities documents and the contractors board. It is also clear that this registration was done after the Principal and Secretary of the SGB of the Abel Motshwane High School corresponded with the Respondents with regard to the new buildings for the existing school.

It appears that the Respondents did not honour their undertaking to erect new buildings for the existing Abel Motshwane High School.

Instead, they registered the buildings earmarked to be for the Abel Motshwane High School as a new school altogether. From the aforementioned documents, it is abundantly clear that the Respondents created the impression, and also acted in furtherance of the created impression, that the new school buildings were erected for the existing Abel Motshwane High School.

It is submitted on behalf of the Applicants that the Department of Education is by virtue of the principles of estoppel, estopped from denying that the buildings have been built for the Abel Motshwane High School. I agree with this submission made on behalf of the Applicants.

See:- NBS Bank Ltd v Cape Produce Co (Pty) Ltd And Others 2002 (1) SA 396 (SCA)

As already stated above, everything indicates that it was indeed the intention of the Department of Education to build these new buildings for the Abel Motshwane High School.

Secondly, the relief is claimed on the basis of the administrative law. In particular it is alleged that the registration of the new school buildings as a new school (Smangaliso-Makhatswa Comprehensive High School) was not administratively fair.

It is submitted that the Applicants had an interest in the registration of the “new school” and it is undoubtedly clear that the Applicant was not afforded an opportunity to make submissions with regard to the said registration, thus rendering the registration of the name reviewable on the basis that it amounts to an unfair administrative action in terms of Section 33 of the Constitution (Act 108 of 1996) read with Section 6(2) (c) of the Promotion of Administrative Justice Act, Act 3 of 2000.

It is clear that the Respondents and the Department of Education was aware of the fact that the Principal and SGB of the Abel Motshwane High School accepted these new buildings as being their school. There were an exchange of letters between the Principal and Secretary of the SGB of Abel Motshwane High School on the one side, and the Department of Education and the Respondents on the other side. Some of these letters were written before the registration of the new school could take place on 15th November 2002.

When the “New School” was registered, the Department of Education and the Respondents were well aware of the fact that the Applicant and the Principal, Educators, Parents and Learners had an interest in the naming and/or registration of the “new” school.

By denying the Applicant the opportunity to make submissions with regard to the registration of a name for the new school buildings, the Respondents acted administratively unfair and this amounts to an action which is reviewable.

CONCLUSION

In view of the aforementioned, I make the following order:-

The registration of the new school buildings in the name of Smangaliso-Makhaswa Comprehensive High School is hereby reviewed and set aside.

2. The decision of the Respondents to refuse that the learners and educators (teachers) of the Abel Motshwane High School occupy the new school buildings built for the Abel Motshwane High School, is reviewed and set aside.

The Respondents are ordered to facilitate the proper handing over of the keys to these new buildings to the Principal or Acting Principal or Deputy Principal or any other person in charge of the Abel Motshwane High School, on or before the 30th August 2003.

Respondents are ordered to pay the costs of this application jointly and severally, the one paying, the other to be absolved.

R.D.

HENDRICKS

ACTING JUDGE OF THE

HIGH COURT

DATED: 07 AUGUST 2003

Applicants Attorneys:- Jake Matseka C/o Motlhabani Makgale Attorneys.

Respondents Attorneys:- State Attorney, Mmabatho.