Scheepers v South African Council for Educators and Others (4988/2020) [2021] ZAFSHC 212 (29 July 2021)

IN THE HIGH COURT OF SOUTH AFRICA,

FREE STATE DIVISION, BLOEMFONTEIN

Reportable: YES/NO

Of Interest to other Judges: YES/NO

Circulate to Magistrate: YES/NO

Case number: 4988/2020

In the matter between:

DEON

SCHEEPERS Applicant

and

THE SOUTH AFRICAN

COUNCIL FOR

EDUCATORS First Respondent

THE HOD: DEPARTMENT OF EDUCATION,

FREE STATE PROVINCE N.O. Second Respondent

THE MEC FOR EDUCATION, FREE STATE

PROVINCE N.O. Third Respondent

CORAM:

LOUBSER, J et NEKOSIE, AJ

HEARD ON: 7 JUNE 2021

JUDGMENT BY: LOUBSER, J

DELIVERED ON: 29 JULY 2021

[1] In this application the Applicant seeks an order declaring the decision taken by the First Respondent’s disciplinary committee to refer a complaint lodged against him for hearing, to be irregular, unlawful and invalid. The application is in essence an application for the review and the setting aside of that decision. It was initially set down on an urgent basis on 29 January 2021, but removed from the roll by agreement between the parties, and the costs of the day were reserved.

[2] The Applicant is mr. Deon Scheepers, the principal of Grey College Secondary School in Bloemfontein. His position as principal of the school has been marked by controversy and an ongoing battle between himself and the School Governing Body (SGB) of the school during the last few years. This battle took a turn for the worse when the SGB decided on 15 May 2018 to strip mr. Scheepers of all delegated governing body powers, with the exception of teaching and learning powers. Mr. Scheepers took this decision to this Court soon after it was made, seeking an order reviewing and setting aside the decision. On 6 September 2018 the Court found in his favour, and set the impugned decision aside with costs.[1] Not satisfied with this result, the SGB appealed to the Supreme Court of Appeal. The appeal was dismissed with costs on 3 July 2020.[2]

[3] Meanwhile, on 28 February 2020, the Second Respondent (HOD) proceeded to terminate the membership of twelve members of the SGB on the basis that the SGB had breached the Code of Conduct for Members of Governing Bodies of Public Schools in different ways. Aggrieved by this decision to terminate their membership, they approached this Court with yet another application to review and set aside the decision in question. On 18 March 2021 this application was dismissed with costs.[3]

[4] It will be noted that the SGB in question does not feature as a party in the present proceedings, for obvious reasons. However, it will become apparent soon that the said SGB had played a vital role in the decision of the First Respondent’s (the Council) disciplinary committee to refer the complaint lodged against mr. Scheepers for a hearing, because that complaint was lodged by none other than the SGB itself, before the membership of its members was terminated.

[5] The factual background to the present dispute is as follows: On 16 May 2018 the SGB declared that there was a breakdown of the trust relationship between it and mr. Scheepers. As a result, the HOD established an independent task team (ITT) to investigate the underlying facts and causes that led to the conflict between the principal and the SGB of the school. This team visited the school from 28 January 2019 to 21 February 2019 and interviewed the principal, the SGB, educators, administration staff, hostel staff and learners at the school. The team interviewed more than 270 role players in the process, and obtained 36 affidavits from those interviewed. The report of the ITT was submitted to the HOD on 15 March 2019.

[6] In the report, it was recommended to the HOD that mr. Scheepers be charged for serious misconduct. “If he is found guilty, he must be dismissed. When he has been charged for serious misconduct, he must be suspended from the school immediately until the case has been finalized,” the report concluded. It needs mentioning that recommendations were also made in respect of others involved, but those recommendations are not relevant in the present context.

[7] The ITT report was not released to the interested parties by the HOD for a period of several months. It was for this reason that the SGB, well aware of the fact that the report had already been submitted on 15 March 2019, proceeded to lodge a complaint against mr. Scheepers to the Council’s legal ethics manager. Substantiating papers which formed “the subject of an investigation that was conducted by an Independent Task team appointed by the Free State Department of Education”, accompanied the complaint. The complaint stated that the SGB fails to comprehend why publication of the ITT report and implementation of its recommendations are delayed by the HOD, and that such delay was not in the interest of Grey, its learners, educators and stakeholders.

[8] Following this complaint by the SGB, the Council notified mr. Scheepers on 20 September 2019 of an investigation that its ethics committee would be conducting into the complaint on 8 and 9 October 2019. It was mentioned in the notice that the purpose of the investigation was to determine whether there is sufficient evidence to substantiate the allegations of a breach of the Council’s code of professional ethics. Mr. Scheepers was invited to attend the proceedings.

[9] On the same day that the notice was received, the attorneys of mr. Scheepers responded by pointing out that he was not furnished with the documentation annexed to the SGB complaint. The intended investigation was subsequently postponed. On 12 December 2019 the HOD at last provided the chairperson of the SGB and the attorney of mr. Scheepers with a copy of the ITT report during a meeting he held with them. According to mr. Scheepers, this was done under the strict condition of confidentiality. According to the record of its decision filed by the Council before us, the ITT report was made available to it by the SGB afterwards.

[10] On 28 January 2020 the HOD invited mr. Scheepers to furnish representations in respect of the ITT report, which he promptly did. Only a month later, mr. Scheepers received a letter from the Council inviting him to make representations, also in answer to the ITT report. In the said letter, it is stated that the Council has received a copy of the report compiled by the ITT appointed by the HOD, and that it had studied the report. Mr Scheepers was requested to furnish the Council with his response “to the allegations contained in the ITT report”. Mr. Scheepers complied with this request on 9 March 2020.

[11] When the HOD got wind of these developments, it was clearly opposed to the intervention of the Council. In a letter dated 18 March 2020, it expressed its dissatisfaction to the Council for its actions in circumventing the processes that the HOD had explicitly announced and requested to be respected. It stressed the fact that those processes to make everyone accountable, including mr. Scheepers himself, were still in the pipeline and were “vigorously” pursued by the HOD.

[12] The Council notwithstanding proceeded to serve mr. Scheepers with a summons on 31 July 2020 to appear before the Council’s disciplinary tribunal from 31 August to 4 September 2020 in a disciplinary hearing. In an e-mail accompanying the summons, it is mentioned that, pursuant to the investigations and findings of the ITT, the Council had made the decision that charges be preferred against him. A week before the hearing, however, the attorneys of mr. Scheepers informed the Council that he was yet to be furnished with the documents in support of the SGB complaint. It was also pointed out to the Council that there was a pending investigation by the HOD based on the same allegations, and that the Council had failed to follow an investigative procedure.

[13] As a result of these communications, the disciplinary hearing never took place, and on 17 September 2020, the Council informed mr. Scheepers that it was withdrawing the charges against him. In the letter addressed to mr. Scheepers and his attorneys, the Council conceded that the bundle of affidavits in support of the complaint of the SGB was inadvertently never served on them. The letter then goes on to state the following: “It thus follows that SACE has not complied with its own procedural prescripts and that the decision of the SACE ethics committee to proceed with a disciplinary hearing against mr. Scheepers is procedurally irregular. SACE hereby withdraws the decision of the ethics committee to proceed with disciplinary proceedings against mr. Scheepers. The whole process will have to start afresh as a result. My apology for any inconvenience caused as a result of the aforegoing.”

[14] Surprisingly, on the very next day, 18 September 2020, the Council provided mr. Scheepers with the required documentation and re-served the July complaint, freshly dated, on him. The documentation formed the same subject matter used by the ITT in its investigations. Following another letter of objection by the attorneys of mr. Scheepers dated 28 September 2020, the Council then proceeded to serve mr. Scheepers on 10 November 2020 with a summons to appear before a disciplinary panel on 1 to 5 February and 8 to 10 February 2021 on a number of charges relating to a breach of the Code of Ethics of the Council. It is this summons that gave rise to the resent application.

[15] In his application to set the decision for a disciplinary hearing aside, mr. Scheepers relies on two grounds. The first is that the decision was not preceded by an investigation by the Council, as required by the South African Council for Educators Act (SACEA)[4] and the Code of Ethics of the Council. As such the decision was unlawful, he contends. The second is that, when the Council withdrew the decision of the ethics committee to proceed with a disciplinary hearing on 17 September 2020 and informed that the whole process will have to start afresh, it meant that the disciplinary investigation would have to start de novo. By re-instituting the process of referring the compliant for a disciplinary hearing the following day, still without an independent investigation having been done, the Council embarked upon a procedure that was irredeemably flawed and biased, the argument went.

[16] Now as far as the first ground is concerned, Section 14(2)(b) of SACEA requires that the disciplinary committee of the Council must ensure that an alleged breach of the code of professional ethics is investigated. In terms of Section 14(2)(c) the disciplinary committee must establish panels to investigate and hear complaints against educators. Section 14(7) requires the disciplinary committee and a panel to keep a record of the proceedings of every investigation and disciplinary hearing. In the code of ethics of the Council, the provisions are repeated in general.

[17] The Council alleges in its answering affidavit that an investigation was actually done by it. It says that the disciplinary committee appointed a panel and that the panel arranged and conducted interviews with potential witnesses. The panel also obtained affidavits from witnesses, by way of confirmation of the contents of the affidavits already in the panel’s procession. The panel thereafter formulated a report and made recommendations to the disciplinary committee, it says.

[18] The report referred to by the Council is contained in the record of decision submitted by the Council in terms of Rule of Rule 53(1)(b). It appears from this record that the panel consisted of three gentlemen. The following is mentioned in the introduction to the report: “The investigation commenced on 18 October 2019. On the day of the investigation, SACE investigators were prevented from investigating the allegations by the Free State Department of Education. This prompted SACE to commence a meeting with the FSED wherein it was agreed that the HOD will make available to SACE a copy of the report by the independent task team appointed by the FSED. The report was made available eventually by the complainant to SACE after it had received it from the FSED. The content of the report forms the basis of this report. “The report goes on to state again that the report is based on the report of the ITT that was presented to the HOD of the FSED, and it is mentioned that all people interviewed are contained in the report “and will not be repeated herein”.

[19] Under the heading Evidence Collected the following is stated in the report: “Attached please find a copy of the independent task team report outlining all witnesses and the response thereto by the alleged accused educator that was presented to SACE on 9 March 2020.” Then follows a brief outline of the facts established by the ITT and the recommendations it made to the HOD. The report is concluded by a statement that “From the ITT report that was presented to SACE and its findings, it would appear that the educator mr. Scheepers may have breached the SACE code of professional ethics.” It is then recommended that charges be preferred against mr. Scheepers. The report is signed by one of the three investigators and dated 10 March 2020.

[20] Having regard to what is expressly stated in this report, and to what is alleged by the Council in its answering affidavit, it is manifestly clear that the Council did not embark upon an independent investigation. On the facts before us, it merely took notice of the report of the ITT and the recommendations contained therein. It then appointed a panel to investigate, obviously to satisfy the requirements of SACEA. The investigation of the panel was aimed at the confirmation of the information that was already contained in the ITT report.

[21] The crucial question is then whether the efforts of the Council constituted an investigation as envisaged by the SACEA. The Act itself does not provide a definition of the word “investigate”. According to the Oxford Learner’s Dictionaries the verb “investigate” means “to carefully examine the facts of a situation, an event, a crime etc. to find out the truth about it or how it happened”. In terms of this definition, it can hardly be found that the Council had investigated the complaint against mr. Scheepers as envisaged by the SACEA.

[22] This question is closely linked to the situation as we have here, where different organs of state are seized with an investigation regarding essentially the same subject matter and the same complaint. Section 41 of the Constitution requires organs of state to apply the principles of co-operative governance. Section 41(1)(e) places an obligation on organs of state within spheres of government to respect the constitutional status, institutions, powers and functions of government in the other spheres. Section 41(1)(h)(iv) further places an obligation on organs of state to co-operate with one another in material trust and good faith by co-ordinating their actions and legislation with one another.

[23] In the present matter, the Council has proceeded to summon mr. Scheepers to appear in a disciplinary hearing on charges arising from an investigation conducted by the HOD, the outcome of which is still pending before the HOD. The HOD is clearly opposed to these actions of the Council, with the result that the constitutional requirements of mutual trust and co-ordination of actions have been undermined by the Council.

[24] Unfortunately for mr. Scheepers, he now finds himself at the receiving end of the tension between the Council and the HOD. He is faced by a disciplinary hearing of the Council on the one hand, while he will probably be faced with a similar hearing by the HOD in due course, on the other hand. As we have seen, both hearings will be based on the same investigation report and the same recommendations contained in that report. In my view, such a situation violates the constitutional rights of mr. Scheepers to a fair trial, or would be detrimental to the administration of justice.[5]

[25] This brings me to the dictates of the Promotion of Administrative Justice Act (PAJA).[6] Administrative action is defined in the PAJA as follows:

“administrative action means any decision taken, or any failure to take a decision, by —

(a) an organ of state, when —

(i) exercising a power in terms of the Constitution or a provincial constitution; or

(ii) exercising a public power or performing a public function in terms of any legislation; or

(b) a natural or juristic person, other than an organ of state, when exercising a public power or performing a public function in terms of an empowering provision, which adversely affects the rights of any person and which has a direct, external legal effect…”[7]

[26] The Council is an organ of state. When it took the decision to summon mr. Scheepers for a disciplinary hearing, it exercised a public power. That decision had an adverse effect on mr. Scheepers. The decision constituted administrative action. It is therefore subject to review in terms of Section 6 of PAJA.

[27] Section 6 of PAJA reads as follows:

“(1) Any person may institute proceedings in a court or a tribunal for the judicial review of an administrative action.

(2) A court or tribunal has the power to judicially review an administrative action if —

(a) the administrator who took it —

(i) was not authorised to do so by the empowering provision;

(ii) acted under a delegation of power which was not authorised by the empowering provision; or

(iii) was biased or reasonably suspected of bias;

(b) a mandatory and material procedure or condition prescribed by an empowering provision was not complied with;

(c) the action was procedurally unfair;

(d) the action was materially influenced by an error of law;

(e) the action was taken —

(i) for a reason not authorised by the empowering provision;

(ii) for an ulterior purpose or motive;

(iii) because irrelevant considerations were taken into account or relevant considerations were not considered;

(iv) because of the unauthorised or unwarranted dictates of another person or body;

(v) in bad faith; or

(vi) arbitrarily or capriciously…”

[28] As we have seen so far, the impugned decision falls within the ambit of Section 6(2) of PAJA in that the Council did not comply with the mandatory provision of SACEA to investigate the complaint. The same applies to the events surrounding 17 and 18 September 2020. The decision was also procedurally unfair towards mr. Scheepers. As for Section 6(2)(e)(iv) of PAJA, that is an action taken because of the unauthorised or unwarranted dictates of another person or body, the following needs to be said:

[29] The now defunct SGB lodged the complaint against mr. Scheepers with the Council. The same SGB also eventually provided the Council with the ITT report, which was disclosed to it by the HOD under strict conditions of confidentiality. While the SGB may justifiably have felt that the HOD was dragging its feet in disclosing the report and to take appropriate action in the wake thereof, the actions of the SGB in this respect must be categorized as unauthorised and unwarranted. Section 20(1)(eA) of the South African Schools Act[8] provides as follows:

“(1) Subject to this Act, the governing body of a public school must —

(eA) adhere to any actions taken by the Head of Department in terms of section 16 of the Employment of Educators Act, 1998 (Act No. 76 of 1998), to address the incapacity of a principal or educator to carry out his or her duties effectively;”

[30] Section 16 of the Employment of Educators Act 76 of 1998 reads as follows:

“16. Incapable educators. — If it is alleged that an educator is unfit for the duties attached to the educator’s post or incapable of carrying out those duties efficiently, the employer must assess the capacity of the educator and may take action against the educator in accordance with the incapacity code and procedures for poor work performance as provided in Schedule 1.” In terms of the definitions contained in Section 1 of this Act, the “employer” means the Head of Department.

[31] At the time that the HOD was assessing the capacity of mr. Scheepers to determine whether he was unfit for the duties attached to his post by considering the ITT report, and when the HOD was still considering whether to take action against him, the SGB interfered with this process by its impatience and lodged a complaint with SACE. In terms of the provisions of Section 20(1)(eA) of the South African Schools Act, the SGB clearly failed to adhere to the actions taken by the HOD. The complaint it lodged with the Council, was therefore not only unauthorised and unwarranted, but also unlawful. The Council’s decision to institute disciplinary procedures against mr. Scheepers on the basis of this complaint, was therefore flawed as such. For this reason, and for the other reasons contained in this judgement, the application must succeed.

[32] The following orders are made:

1. The decision of the First Respondent’s disciplinary committee to refer a complaint lodged against the Applicant by the school governing body of Grey College for hearing, is declared irregular and unlawful, and is hereby set aside.

2. The First Respondent is ordered to pay the costs of the application, including the costs occasioned by the removal from the roll on 29 January 2021.

P. J. LOUBSER, J

I concur:

C. NEKOSIE, AJ

On behalf of applicant: Adv. W. A. van Aswegen

Instructed by: Peyper Attorneys

Bloemfontein

On behalf of First Respondent: Adv. M. E. Manala

Instructed by: Lamola Attorneys, Tshwane

Per: Phalatsi & Partners, Bloemfontein

[1] Scheepers v School Governing Body, Grey College Bloemfontein and Others [2018] ZAFSHC 210

[2] School Governing Body, Grey College Bloemfontein v Scheepers and another [2020] 3 All SA 704 (SCA); [2020] ZASCA 82

[3] Buchner and Others v HOD Free State, Member of the Executive Council Free State and Others [2021] ZAFSHC 59

[4] Act 31 of 2000

[5] See Section 35(5) of the Constitution

[6] Act 3 of 2000

[7] Section 1 of PAJA

[8] Act 84 of 1996