School Governing Body of Ntilini J.S.S. and Others v Makhitshi and Others (615/2008) [2010] ZAECMHC 4 (25 March 2010)

IN THE HIGH COURT OF SOUTH AFRICA

(Eastern Cape High Court: Mthatha)

Case no : 615/2008

Date Heard : 06/11/2009

Date delivered: 25/03/2010

In the matter between:

SCHOOL GOVERNING BODY OF NTILINI J.S.S. 1st Appellant

M.E.C FOR EDUCATION 2nd Appellant

THE SUPERINTENDENT GENERAL

DEPARTMENT OF EDUCATION 3rd Appellant

A.M. MKENTANE NO. 4th Appellant

NTOMBOMZI LUHABE 5th Appellant

B. MCELELI NO. 6th Appellant

and

NTOMBOKUQALA MAKHITSHI 1st Respondent

NOLULAMO ZAZAZA 2nd Respondent

AYEZA NONTOBEKO BOYCE 3rd Respondent

NOMTHUNZI OLGA HLAKUVA 4th Respondent

NOMAKHOSAZANA DLOYIYA 5th Respondent

PUMLA ALMA NGEZANA GALELA 6th Respondent

JUDGMENT

NDENGEZI AJ:

[1] The respondents instituted review proceedings in the court a quo seeking an order setting aside the appointment of the fifth appellant by the Superintendent-General for Department of Education as the school manager (Principal) of Ntilini Junior Secondary School at Sibangweni Administrative Area in the district of Libode. The Superintendent-General is the Head of the Department of Education in the Province of the Eastern Cape as defined in the South African Schools Act 84 of 1996.

[2] The application was opposed by the appellants but it was successful. The appointment of the fifth appellant as principal of the Ntilini Junior Secondary School was set aside by the court a quo with costs. With the leave of that court the appellants are now on appeal before us against that judgment and order.

The following facts are common cause:

[3] The respondents are educators at Ntilini Junior Secondary School in the district of Libode, Eastern Cape. They are employed by the Department of Education which employment is governed by the Employment of Educators Act 76 of 1998 and the South African Schools Act 84 of 1996.

[4] The appellants are: (i) the School Governing Body of the Ntilini Junior Secondary School; (ii) the MEC For Education of the Province of the Eastern Cape; (ii) the Superintendent-General for Department of Education, Province of the Eastern Cape; (iv) Mr AM Mkentane, the Acting District Director; (v) Ntombomzi Luhabe (the acting principal); and (vi) the Circuit Manager of the Department of Education.

[5] The Superintendent-General for Education in the Eastern Cape Province, the third appellant, appointed the fifth appellant (who was acting principal at the time) as the Principal of Ntilini Junior Secondary School without the recommendation of the School Governing Body of the afore-said school. It is this decision that was set aside by the court a quo.

[6] In 2007 there was a vacancy for the post of school principal of Ntilini Junior Secondary School. The post was advertised in the prescribed manner. Five candidates, including the fifth appellant, applied for it. None of the respondents applied. After shortlisting, interviews of candidates were conducted by the officials of the district office of the Department of Education. The School Governing Body did not conduct such interviews. As stated above, the School Governing Body did not make any recommendation to the third respondent regarding the appointment of a principal.

[7] After the interviews, the officials of the Department of Education recommended that the fifth appellant be appointed to the post which recommendation was accepted and acted upon by the third appellant. Consequently, the fifth appellant was appointed as the principal of the said school.

[8] Immediately thereafter, a complaint was lodged by the respondents with the third appellant. The respondents alleged that the appointment of the fifth appellant as principal was irregular and unlawful because the School Governing Body did not interview the candidates and did not make a recommendation regarding the appointment of the principal as it was in law obliged to do.

[9] The appellant’s defence is that the respondents lack locus standi in these proceedings. They contend that it is the School Governing Body that should have sought to correct the decision of the third appellant by way of review. It is further submitted that, as educators, the respondents do not have a substantial interest in the matter because they were not applicants for the post and have not suffered any prejudice as a result of the appointment of the fifth appellant in the said post.

[10] It appears from the affidavits that the members of the School Governing Body experienced internal conflicts which prevented them from carrying out their statutory duty. For this reason delegated its statutory powers to shortlist, interview and recommend a candidate for appointment to the Department of Education.

[11] The question that arises is whether it is correct to say that educators of a school have no substantial interest in the appointment of the principal of their school.

[12] A principal of a school is in charge of learners, educators and the administration of the school. He has a duty to see to the proper running of the school.

[13] The functions and responsibilities of a school principal are set out in section 16A of the South African Schools Act 84 of 1976. For instance, it is his/her responsibility to handle matters pertaining to educators.

[14] In my view educators have a substantial interest in the appointment of a School Principal. It is a legal requirement that they be represented in the body that governs the school and which, among other things, has the power to recommend the appointment of a school principal.

[15] In their answering affidavit the appellants admitted that the committee appointed by the School Governing Body to shortlist and interview the candidates had been appointed improperly and that the school Governing Body had to convene another meeting in order to appoint a Selection Committee in terms of the procedure prescribed by law. The School Governing Body did not comply with the advice given. No proper panel was appointed. Instead the School Governing Body requested the Department of Education to do the shortlisting and to conduct the interviews. According to the appellant they “reluctantly agreed to the request” and took over the whole issue of the appointment of a principal. In its judgment, the court a quo has dealt extensively with the question of delegated authority and held in paragraph 17 of its judgment that:

“the SGB had 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 potest.”

[16] The court a quo dealt with the provisions of section 6(3) of the Employment of Educators Act 76 of 1998 as well as the judgment in the matter of Kimberley Junior School v The Head of the Northern Cape Education Department [2009] 4 ALL SA 135 (SCA) and said the following:

“ … 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 authorized by the empowering provision to make an appointment. The appointment was accordingly set aside.”

[17] Mr Zilwa for respondents attempted to distinguish this matter from that of Kimberly on the basis that in this matter a resolution was taken by the School Governing Body to delegate its powers to the Department of Education.

[18] There is no merit in this argument. The resolution taken by the School Governing Body to delegate its powers is null and void. The Department of Education ought not to have relied on it.

[19] Regarding the question of locus standi, appellant’s counsel submitted that the School Governing Body was the appropriate entity to have brought this matter on review and not the respondents. Counsel submitted that the respondents have no interest in this matter. I do not agree with this submission. It is a legal requirement that the respondents be represented on the School Governing Body. That in itself is an important indication that they have an interest in the appointment of their school principal by virtue of their membership of the School Governing Body. On this aspect the court a quo said the following in paragraph 22 of its judgment:

“As already said in the foregoing paragraphs, the decision of the HOD is patently irregular as contrary to the peremptory provisions of s6(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 & Co is that where legislation is enacted in the interest 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 t 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 appointed. The Employment of Educators Act was enacted to cater for the interests of educators. It is this legislation which governs the appointment and administration 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.

The judgment of the court a quo is correct and the submission made by appellants’ counsel is rejected.

[20] In the result the appeal must fail and the following order is made:

The appeal is dismissed with costs such costs are to be paid by the appellants jointly and severally, the one paying, the others to be absolved.

_________________________________

S. D. NDENGEZI

ACTING JUDGE OF THE HIGH COURT

I agree.

_______________________

B. SANDI

JUDGE OF THE HIGH COURT

PETSE ADJP :

[1] I have had the privilege of reading the judgment written by Ndengezi AJ with which my Brother Sandi J has expressed his agreement.

[2] Whilst I too are in the main in agreement with the tenor of the judgment and the conclusion reached by Ndengezi AJ I have nonetheless elected to write a separate concurring judgment, if any reason need be stated, purely to briefly articulate my own thoughts in relation to the two principal issues on which the fate of this appeal hinged. I thus hasten to do so hereunder although I shall state my reasons as succinctly as circumstances dictate.

[3] I accordingly propose, first and foremost, to address what I understood and consider to be the bone and marrow of the principal argument on the merits advanced by counsel for the appellants Mr Zilwa upon which he pinned his faith.

[4] I understood the upshot of the argument advanced by Mr Zilwa in relation to the merits of the appeal to be that the respondents who are, admittedly, also a component of the School Governing Body (SGB) of Ntilini Junior Secondary School have no remedy whatsoever in the circumstances of this case when the SGB decided, by its majority, that the selection and interviewing of the candidates for the principal’s post at Ntilini Junior Secondary School should be left to the Superintendent – General of the Department of Education in the Eastern Cape Province because of the infighting that was besetting the SGB at the material time however much that they might be and/or are aggrieved by the majority decision taken at a properly constituted meeting of the SGB. In my view this submission cannot be sustained for it overlooks the most fundamental principle which is that the SGB, on a proper reading of the South African Schools Act, 84 of 1996 (SASA) and its broader context and scheme simply had no competence to delegate the powers conferred on it by SASA.

[5] Apropos the issue of the respondents’ locus standi the pith of the argument advanced by Mr Zilwa was that the respondents had no direct and substantial interest in the matter qua educators and should have thus been unsuited on that ground alone. The majority judgment has rejected this submission as devoid of substance a view to which I fully subscribe. For the sake of parenthesis I would add that since the advent of our constitutional order the trend has been, in a manner of speaking, to cast the net as wide as possible so as to extend the scope of the concept of “a direct and substantial interest” in a cause beyond what was traditionally the case before. That this is so is apparent from the judgment of the Constitutional Court in Ferreira v Levin N O and Others : Vryenhoek and Others v Powell N O and Others 1996(1) SA 984 (CC) in which the following dicta appear in para [167] of the judgment :

“…………………………………………………………………………………………

…………………………………………………………… . Section 7(4), in dealing with the s 98 (2)(a) jurisdiction, provides that where an infringement or threat of the infringement of a constitutional right is alleged, any of the persons referred to in s 7(4)(b) will have standing to bring the matter to a competent court of law’. The category of persons empowered to do so is broader than the category of persons who have hitherto been allowed standing in cases where it is alleged that a right has been infringed or threatened, and to that extent the section demonstrates a broad and not a narrow approach to standing. Section 7(4) does not, however, deal specifically with the jurisdiction vested in this Court by the other subsections of s 98(2). Section 98(2)(c) vests in this Court the jurisdiction to enquire into ‘the constitutionality of any law, including an Act of Parliament, irrespective of whether such law was passed before or after the commencement of this Constitution’. The constitutionality of a law may be challenged on the basis that it is inconsistent with provisions of the Constitution other than those contained in chap 3. Neither s 7 (4) nor any other provision of the Constitution denies to the applicants the right that a litigant has to seek a declaration of rights in respect of the validity of a law which directly affects his or her interests adversely.”

[6] Although the aforequoted dicta were made in the context of considering the locus standi of parties who sought to vindicate their constitutional rights there is no cogent reason that presents itself to me both in logic and principle as to why on the peculiar facts of this case the respondents in this appeal should not be accorded similar protection. This is even more so, I think, if regard is had to the fact that there seems to be no room for any doubt whatsoever that in the broader contextual scheme of SASA the intention of the Legislature must have been to promote maximum participation by all relevant segments of the community in the running of the affairs of public schools and thus give content to the values that underlie an open and democratic society in keeping with the letter and spirit of the Constitution. Compare in this regard : Van Huyssteen N.O. and Others v Minister of Environmental Affairs and Tourism and Others 1995 (9) BCLR 1191 (C) at 1210; South African Association of Personal Injuries Lawyers v Heath and Others 2000(10) BCLR 1131 (T) at 1146.

[7] Most recently in Letseng Diamonds Ltd v JC1 Ltd (2009)2 All SA 337 (SCA) the Supreme Court of Appeal held that shareholders of a company had locus standi to impugn the validity of a contract concluded between the company (in which they were shareholders) as the contracting party and a third party. The contention of the company as a one of the contracting parties was that the shareholders had no locus standi to assail the validity of the contract under consideration in the Letseng case, supra, by reason of the fact that the contract was between the company and the third party. This argument was rejected by the Supreme Court of Appeal at para [9] of the judgment in which it was held that the shareholders had the requisite locus standi to seek compliance (by the contracting parties) with the statutory prescripts which had not been complied with when the contracts (to which the shareholders were not parties) were concluded.

[8] Although this was said in a somewhat different context it is my judgment that by parity of reasoning it applies with equal force also in the situation obtaining in hoc casu for it is my judgment that pretty much the same situation obtains here on the facts of this case. The respondents in this appeal in approaching the court a quo were essentially seeking that the SGB of Ntilini Junior Secondary School should be compelled to adhere to the prescripts of SASA and not abdicate the statutory responsibility vested in it by SASA in favour of the second appellant.

[9] In the circumstances I, likewise, am in agreement with the order made in the judgment of the majority. Consequently I unequivocally give my stamp of approval to the order therein made.

__________________________________

X.M. PETSE

ACTING DEPUTY JUDGE PRESIDENT

Appearances :

Counsel for the Appellants : MR P.H.S. ZILWA ( with him

MR N. R. MTSHABE)

Attorneys for the Appellants : THE STATE ATTORNEY

c/o X.M. PETSE INC.

SUITE 642-6th FLOOR

DEVELOPMENT HOUSE

MTHATHA

Attorney for the Respondents : Mr A.F. NOXAKA

Attorneys for the Respondents : A.F. NOXAKA & CO

LUDIDI BUILDING

63 MADEIRA STREET

Date heard : 6 November 2009

Date delivered : 25 March 2010