School Governing Body of Ntilini J.S.S. and Others v Makhitshi and Others (615/2008) [2009] ZAECMHC 23 (2 July 2009)

IN THE HIGH COURT OF SOUTH AFRICA

(Eastern Cape High Court: Mthatha) CASE NO. 615/08

In the matter between:

NTOMBOKUQALA MAKHITSHI 1st Applicant

NOLULAMO ZAZAZA 2nd Applicant

AYEZA NONTOBEKO BOYCE 3rd Applicant

NOMTHUNZI OLGA HLAKUVA 4th Applicant

NOMAKHOSAZANA DLOYIYA 5th Applicant

PUMLA ALMA NGEZANA GALELA 6th Applicant

and

SCHOOL GOVERNING BODY-NTILINI

J.S.S. 1st Respondent

M.E.C. FOR EDUCATION 2nd Respondent

THE SUPERINTENDENT GENERAL:

DEPARTMENT OF EDUCATION 3rd Respondent

A.M. MKENTANE NO. 4th Respondent

NTOMBOMZI LUHABE 5th Respondent

B. MCELELI NO. 6th Respondent

JUDGMENT

PAKADE, J.:

BACKGROUND

[1] This judgment concerns the application of section 6(3) of the Employment of Educators Act, 76 of 1998 in the appointment of Educators in public schools.

[2] The applicants are Educators in Ntilini Junior Secondary School in Libode district where the 5th respondent is the acting school principal.

[3] On 15 May 2008 the applicants brought this application seeking an order reviewing and setting aside the appointment of the 5th respondent as the principal of their school. The review is sought against the decision of the Superintendent General for Education in the Eastern Cape Province (the 3rd respondent) in terms whereof the 5th respondent was appointed a school principal without the recommendation of the first respondent, the School Governing Body of the aforesaid school. The review is brought in terms of section 6(2) (a) (i) and (ii) of the Promotion of Administrative Justice Act1.

[

1 Act 3 of 2000 which provides that

A court or tribunal has power to judicially review an

administrative action if-

(a) the administrator who took it –

was not authorised to do so by the empowering provision;

acted under a delegation of power which was not authorised by the empowering provision.

2 Of the Republic of South Africa , Act 108 0f 1996 4] The genesis of PAJA is the Constitution2, section 33 of which guarantees everyone a right to administrative action that is lawful, reasonable and procedurally fair. PAJA is the National legislation envisaged in section 33(3) of the Constitution which had to be enacted to

give effect to the rights entrenched therein . It provides for the review of administrative action by a court or an independent and impartial tribunal where appropriate. The transitional provisions of the Constitution in Schedule 6 required that the legislation envisaged in section 33 be passed within three years of the Constitution coming into operation. PAJA was then assented to on 3 February 2000.

[5] Prior to the Constitutional era, the control of public power by the courts through judicial review was exercised through the application of common law principles. After the adoption of the constitution, such control is now regulated by the Constitution which contains the provisions of section 33 dealing with judicial review. The common law principles that previously provided the grounds of judicial review of public power have now been subsumed under the constitution and derive their force from the Constitution. They are not two separate systems of law but one grounded in the Constitution. The power of the Court to review an administrative action now flows from the Constitution and PAJA3.

[6] Therefore this Court derives its review powers from the Constitution and PAJA.

FACTS

[

3 Exparte President of the RSA 2000(2) sa 674 at 692 E-G; Bato Sta Fishing (Pty) Ltd v Minister of Enviromental Affairs 2004(4) SA 490 at 504 par.22 7] The facts relied upon by the applicants are crisply summarised herein below. The applicants` case is that they are educators of Ntilini Junior Secondary School, having been employed as such by the Head of Department of Education in the Government of the Eastern Cape Province . They derive authority to bring this application from the fact

that they teach in that school and as such have direct and substantial interest in the management of their school . They admit though that the management of the school vests in the SGB which was duly elected and is properly carrying out its statutory obligations. They state, however, that they have a direct and substantial interest in the appointment of a school principal.

[8] During the year 2007, a vacancy existed in the school for the appointment of a school principal. The 5th respondent was appointed to act in that position. In the course of time the position was duly advertised in the Education Bulletin.

Subsequent to that advertisement, five candidates applied for the position and were short listed for interview and were so interviewed. The applicants did not apply for the position. The short listing was done and subsequent interviews were conducted by the officials of the district office of the Department of Education. The School Governing Body did not take part in the process.

[9] Subsequent to that process, the 5th respondent was appointed permanently as the school principal without the recommendation of the SGB. The applicants immediately directed a complainant to the 3rd respondent drawing his attention to the fact that the appointment is irregular for lack of the recommendation of the SGB. The 3rd respondent is alleged to have initially conceded this irregularity although he later reneged from this concession.

[10] The application is opposed by the respondents who have raised a defence that it was on account of the problems which the SGB encountered with its members which resulted in the district office having to do the short listing and conducting the interviews but also doing so at the request of the very SGB which had failed to nominate the members of the interviewing committee. This emerges clearly from the answering affidavit deposed to by the 4th respondent who is the District Director in charge of the school. He states that the interviewing of short listed candidates is not the responsibility of the School Governing Body but that of members nominated by the SGB for that purpose. The School Governing Body would appoint a panel of three or five members from amongst its membership to conduct the interview. The interviewing panel should comprise of the parents and teachers and the former should exceed the latter by one member. After the panel has conducted the interviews, it reports to the School Governing Body which then recommends a successful candidate to the Head of Department.

[11] The School Governing Body had a problem in selecting members of the short listing and interviewing panel. As a result of lack of co-operation among the members of the School Governing Body in the selection process an irregularly constituted panel was selected which, instead of comprising of three members from the School Governing Body, it comprised of two ordinary members of the community and only one from the SGB. When this irregulary constituted interview panel was presented to the 4th respondent, it was rejected and the School Governing Body was instructed to conduct the elections anew on the guidelines suggested by the 4th respondent. No short listing and interviewing of prospective candidates was conducted on that day. According to the 4th respondent the interviewing committee is the same as the short listing committee.

[12] Subsequent thereto the 4th respondent received a letter from the chairperson of the School Governing Body informing him that the SGB had resolved to delegate its authority to short list and conduct interviews to the 4th respondent. The letter is written in IsiXhosa and has been translated into English. The 4th respondent acceded to the request and then processed the appointment of the principal.

[13] The defence is simply that the School Governing Body abdicated its duty and delegated it to the Head of Department who has the powers of appointment upon receiving the School Governing Body’s recommendation.

Delegated Authority

[14] The powers of delegation are entrenched in the Constitution. The approach should therefore be to first reproduce the relevant provisions of the Constitution which provide general powers of delegation. In this respect section 238 reads:

“an executive organ of state in any sphere of government may

delegate any power or function that is to be exercised or performed in terms of legislation to any other executive organ of state provided the delegation is consistent with the legislation in terms of which the power is exercised or the function is performed; or

exercise a power or perform any function for any other executive organ of state on an agency or delegation basis”.

[15] The Constitution makes it clear , in this section , that an executive organ of state in any sphere of government may delegate any power or function to another executive organ, provided the delegation is consistent with the empowering legislation. The purpose of delegation of administrative power is to facilitate the division of labour since administrators and administrative bodies very often cannot cope with all their administrative functions. The exercise of the power of delegation is subject to the trite rule of administrative law that discretionary powers may not be delegated in the absence of express or implied statutory authority. In terms of PAJA judicial review is justified where an administrator acted under a delegation which was not authorised by the empowering provision. This statutory prohibition is in accord with the common law prohibition on the improper delegation of powers contained in the maxim delegatus delegare non potest. The following dictum of King , with which I agree , elucidating this maxim, appears in Hofmeyer v Minister of Justice and Another4

“It is well established that a discretionary power vested in one official must be exercised by that official (or his lawful delegate) and that although where appropriate he may consult others and obtain their advice, he must exercise his own discretion and not abdicate it in favour of someone else; he must not, in the words of Baxter , Administrative Law (at 443 ) ‘ pass the buck ’ or act under dictation of another and if he does , the decision which flows there from is unlawful and a nullity . See Leach v Secretary for Justice, Transkeian Government 1965 (3) SA 1 (E) at 12H-13B…….”.

[

16] In both Hofmeyer and Leach judgments, supra, the government officials abdicated their statutory powers and delegated them to be performed by officials who had no power to perform. In Hofmeyer, the head of prison abdicated his authority in favour of the security branch of the then South African Police , which in terms thereof had to dictate the conditions of the plaintiff` s detention. The administrative action of the security police was declared ultra vires the empowering prison regulation and was set aside as null and void.

[17] The SGB has no right to delegate its statutory powers. It is simply not empowered to do so by the Employment of Educators Act . The HoD should not have accepted the delegated power. In my view, the delegation of power by the SGB is unlawful as it is against the maxim delegatus delegare non post.

[18] The role of both the Head of Department and the School Governing Body in the appointment, promotion and transfer of educators is governed by s 6 (3) of the Employment of Educators Act, 76 of 1998. In terms of s 6(1) that authority vests in the head of department. The authority is, however, subject to s 6(3) which provides in relevant parts:

“(a)….(Any) appointment , promotion or transfer to any post on the educator

establishment of a public school may only be made on the

recommendation of the governing body of the public school …

(c ) The governing body must submit , in order of preference to the Head of

Department , a list of-

at least three names of recommended candidates

Or

fewer than three candidates in consultation with

the Head of Department.

[19] In Kimberley Junior School v The Head of the Northern Cape Education Department5 the Head of Department had appointed a candidate which had not been recommended by the school governing body. It justified its decision on s 6 (3)(f) which empowers it to appoint any suitable candidate on the list submitted by the SGB. The difficulty would certainly arise in the HoD invoking this provision because as long as there is no recommendation of the SGB, s 6 (3)(f) is in conflict with s 6 (3) (a). Brand JA found, and correctly in my view, that the recommendation of the SGB is an objective jurisdictional fact which must be present in the appointment or promotion or transfer of an educator and that absent that recommendation, the HoD is not authorised by the empowering provision to make an appointment. The appointment was accordingly set aside.

[20] Applying the ratio of the Kimberley Junior School to the facts of the present case, I am respectfully of the view that the appointment of the 5th respondent cannot stand. It is procedurally wrong for lack of compliance with the provisions of s 6(3)(a).

Locus Standi in Judicio

[21] Mr Mtshabe, counsel for the respondents, submitted strongly that it is the SGB and not the educators of that school which should have sought to correct the decision of the HoD by way of review in this Court. The submission went further that the applicants are ordinary educators who have not been affected nor prejudiced by the appointment of the 5th respondent. They have no interest in the subject matter of the litigation which is the appointment of the principal and have not even applied for the position.

[22] As already said in the foregoing paragraphs, the decision of the HoD is patently irregular as contrary to the peremptory provisions of s 6 (3)(a). The question then to be decided is whether or not the Court should ignore this patently irregular decision in favour of the lack of locus standi of the applicants as submitted by Mr Mtshabe. In my view, the principle to apply as enshrined in the old judgment of Patz v Greene & Co6 is that where legislation is enacted in the interests of a particular individual or class of persons, the courts will presume that a violation of the legislation will automatically affect the interests of such individual or class, and anyone falling in that category has a standing to challenge an action taken in violation of that legislation. Applying this principle to the facts of the present case, I cannot fail to imagine that it would be an absurdity so glaring and which could never have been contemplated by the legislature that educators are precluded from challenging the violation of a statute in terms whereof they have been and/or are appointed. The Employment of Educators Act was enacted to cater for the interests of educators. It is this legislation which governs the appointment and promotion of educators. It is the same legislation that regulates the administration of schools through the establishment of school governing bodies. The promotion of an educator to the position of principal is governed by the same legislation. It would be naïve in my view, to exclude the educators from ensuring proper in the administration of their own legislation.

Order

[23] The SGB in that school is in disarray and that is what gave rise to the whole saga which is the subject of this litigation. The acting principal is the subject matter of the litigation. In these circumstances the educators are the only persons to stand up to correct the violation of their legislation in their school. In the premises, the applicants must succeed against the respondents. I therefore make the following order:

1. That the application succeeds;

2. That the appointment of the 5th respondent as the principal of Ntilini Junior School is hereby set aside as irregular;

3. That 2nd, 3rd, 4th and 6th respondents are directed to pay costs of this application, jointly and severally, the one paying the other to be absolved

____________________________

L.P.Pakade

JUDGE OF THE HIGH COURT

Heard on : 20 March 2009

Judgment Delivered on : 02 July 2009

Counsel for Applicants : Mr A.F.Noxaka

Instructed by : A.F.Noxaka & Co

Ludidi Building;

63 Madeira Street;

MTHATHA

Counsel for Respondents : Adv N.R .Mtshabe

Instructed by : The State Attorney

C/o X.M.Petse Inc;

Suite 642-6th Floor Development House; MTHATHA

4 1992(3) SA 108 (c), see also Administrative Law under the Constitution 3rd Ed by Yvonne-Burns & Margaret Beukes p.194/5

4 1992(3) SA 108 (c), see also Administrative Law under the Constitution 3rd Ed

by Yvonne-Burns & Margaret Beukes p.194/5

5 (278/08) [2009] ZACZ 58 (29 May 2009)

66 1907 TS 427