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IN THE HIGH COURT OF SOUTH AFRICA

NORTHERN CAPE DIVISION, KIMBERLEY

 

Case No:               CA&R 04/2024

                                         834/2023

                                                                                                                     

In the matter between:

 

SUID-AFRIKAANSE ONDERWYSERS UNIE          FIRST APPLICANT

AUDREY ANNE FRANCES HUMAN                        SECOND APPLICANT

 

and

 

MEC: NORTHERN CAPE DEPARTMENT OF

EDUCATION, ZOLILE MONAKALI                             FIRST RESPONDENT

HEAD OF THE DEPARTMENT: NORTHERN CAPE

DEPARTMENT OF EDUCATION: MOIRA MARAIS   SECOND RESPONDENT

SENZO C MPALALA                                                   THIRD RESPONDENT

THE SCHOOL GOVERNING BODY PETRUSVILLE

PRIMARY SCHOOL                                                      FOURTH RESPONDENT

 

Heard on:           18/06/2024

Delivered on:     06/09/2024

Summary:          Judicial review- application to review the impugned decision of the Head of Department to transfer school principal from Steynsville High School to Petrusville Primary School. Objection to such transfer by the receiving School Governing Body as post not advertised. Respondents taking four points in limine: (a) the misjoinder of the MEC; (b) lack of jurisdiction; (c) the impugned decision does not constitute administrative action; and (d) the principle of legality not available to the applicants. Applicants relying on the Employment of Educators Act, 78 of 1998 and provisions of the Personnel Administration Measures (PAM) published in Government Gazette 46879 on 9 September 2022 in Government Notice 2468.

 

                                                                                                                     

ORDER

 

 

(a)        The decision taken on or about March 2023 by the second respondent to transfer the third respondent as principal from Steynsville High School to Petrusville Primary School, is reviewed and set aside.

 

(b)       The second respondent (HOD) is ordered to follow the provisions of the Employment of Educators Act 78 of 1998 as well as the provisions of the Personnel Administrative Measures, published in Government Gazette No. 46879 on 9 September 2022 for purposes of filling the vacant position of principal.

 

(c)        The first and second respondents (MEC and HOD) are ordered to pay the costs of this application, jointly and severally, the one paying the other to be absolved.

 

Coram: Mamosebo J et Nxumalo J

 

JUDGMENT ON REVIEW

 

MAMOSEBO J

 

[1]       This is a review application. In the Amended Notice of Motion, the applicants seek to review and set aside the decision by the second respondent, the Head of Department, Northern Cape Department of Education (HOD), Ms Moira Marais, to transfer the third respondent, Mr Senzo Advocate Mpalala, from Steynsville High School to Petrusville Primary School as school principal. An order that the HOD, for purposes of filling the vacant position, follow the provisions of the Employment of Educators Act 76 of 1998 (the EE Act) and the provisions of the Personnel Administration Measures (PAM) published in Government Gazette No 46879 on 9 September 2022, Government Notice 2468. In the alternative, an order that the HOD amend the salary and benefits of Ms Human retrospectively from 1 March 2023 to be on par with that of the Principal of Petrusville Primary School. That the respondents be ordered to pay the costs of this application jointly and severally, the one paying the other to be absolved.

 

[2]       The first applicant is the Suid-Afrikaanse Onderwysers Unie (the SAOU) a teachers’ union to which the second applicant, Ms Audrey Anne Frances Human, a female educator and Deputy Principal at Petrusville Primary School, is a member.  The first respondent is a Member of the Executive Council (MEC): Northern Cape Department of Education, Mr Zolile Monakali. The second respondent is the HOD. The third respondent is Mr Senzo Mpalala. The fourth respondent is the School Governing Body (SGB) of the Petrusville Primary School. The third and fourth respondents are silent. The application is opposed only by the MEC and the HOD (collectively referred to as the respondents).

 

[3]       Central to this application is the issue whether the decision by the HOD to transfer Mpalala from Steynsville High School to Petrusville Primary School as the school principal is reviewable and stands to be set aside.  

 

[4]       First, these four preliminary points raised by the respondents:

(a)        that the MEC has been misjoined in fact and in law;

(b)       that this court lacks jurisdiction to hear the review application as it falls squarely within the purview of the Labour Court;

(c)        that the impugned decision does not constitute administrative action as contemplated in the Promotion of Administrative Justice Act 3 of 2000 (PAJA); and

(d)       the impugned decision does not fall under the principle of legality and therefore not available to the applicants.

         

These preliminary issues take up the bulk of this judgment.

 

The misjoinder of the MEC

[5]       Mr Petersen, for the respondents, invoked School Governing Body, Paarlzicht Primary School v Member of Executive Council for Education, Western Cape and Others[1] as authority to uphold the point of misjoinder. Counsel submitted that the HOD took the impugned decision in the exercise of her statutory powers as contemplated in s 8(1)(c) of the EE Act. Since the MEC did not take the impugned decision, so the argument went, there is therefore no basis in law and in fact to join him, let alone cite him as the first respondent. 

 

[6]       In countering the above contention, Mr Van der Westhuizen, for the applicants, relied on s 2(1) of the State Liability Act 20 of 1957, to justify the applicants’ citation of the MEC. The section stipulates:

             

‘2           Proceedings to be taken against executive authority of department concerned

(1)        In any action or other proceedings instituted against a department, the executive authority of the department concerned must be cited as nominal defendant or respondent.’

[7]       Evidently, the MEC as the executive authority of the department and responsible for the education portfolio in the province was correctly cited as nominal respondent. The contention disputing a basis in law and in fact is unsubstantiated. No reference was made to the State Liability Act in Paarlzicht. It follows that the preliminary point stands to fail.

 

Does this Court have the required jurisdiction to hear the review application?

[8]       The respondents contend that Ms Human being aggrieved by Mr Mpalala’s transfer, approached her union representative, the deponent to the founding affidavit, Mr Hendrik Johannes Brand. They maintain that the transfer deprived her and other potential candidates of the opportunity to compete for the post of principal and was both procedurally and substantively unfair. According to them, despite the averment by the union that it represents the interests of its members, it in actual fact, represented the interests of Ms Human. This dispute, the respondents contend, is regulated by the Labour Relations Act, 66 of 1995 (the LRA) and reviewable in terms of s 158(1)(h) of the LRA[2].

 

[9]       Mr Van der Westhuizen reasoned that it was not only the department, the educator and the principal but the SGB as well who had a broader interest in the matter hence the importance of its recommendations to the HOD. The SGB is not an employee and therefore not governed by the employer-employee relationship. A consideration of all these interested parties should sway the court to reject the submission that only the Labour Court is clothed with jurisdiction in this regard.

 

[10]     The Constitutional Court in Gcaba[3] made these helpful remarks:

‘[24]      The court held further that there was no general jurisdiction afforded to the Labour Court in employment matters and that the jurisdiction of the High Court was not ousted by s 157(1) of the LRA simply because a dispute is one that falls within the overall sphere of employment relations. The High Court's jurisdiction would only be ousted in respect of matters that “are to be determined” by the Labour Court in terms of the LRA. A matter to be determined by the Labour Court as contemplated by s 157(1) means a matter that in terms of the LRA is to be decided or settled by the Labour Court.

 

[25]       Other than s 157(2), held the court, there was no express provision conferring exclusive jurisdiction on the Labour Court to determine disputes concerning alleged infringements of constitutional rights by the State acting in its capacity as employer.  On the contrary, that section affords concurrent jurisdiction to Labour Courts and High Courts in the limited circumstances prescribed therein. The conclusion was that the High Court was incorrect in holding that it lacked jurisdiction to entertain the matter.’

 

[11]     In Chirwa[4], a public sector employee who was dismissed by the Transnet Pension Fund, expressly relied on the provisions of the LRA when referring her matter for dispute resolution. The Constitutional Court held that she had no election but to remain within the purview of the LRA for the resolution of her matter. The Fredericks[5] case is distinguishable because the applicant did not base his claim on the employment contract but rather on his constitutional rights to administrative justice and equality. The court found that he did not rely on the LRA. The Apex Court said the following at para 30:

           

‘Therefore, the decision of the applicants in Fredericks not to rely on the provisions of the LRA removed their claim from the purview of labour law and the exclusive jurisdiction of the Labour Court and placed it within the concurrent jurisdiction of the Labour Court and the High Court.’

[12]     The applicants in this matter made no reference to the LRA and evidently disavowed any reliance on s 23(1) of the Constitution which entrenches the right to fair labour practices. They attacked the decision taken by the HOD to transfer Mr Mpalala as an administrative decision which failed to comply with the Employment of Educators Act and Personnel Administration Measures resultantly depriving Ms Human and other potential candidates the opportunity to compete for the position of principal and warranting same to be reviewed and set aside in terms of PAJA.

 

[13]     Regard being had to the Constitutional Court authorities pertaining to the exclusive and concurrent jurisdiction of the Labour Court and the High Court and considering the cause of action as asserted by the applicants in the Notice of Motion, I am not persuaded that the Labour Court has exclusive jurisdiction in this matter.

 

[14]     Reliance of the respondents on SAMWU[6] does not assist them. SAMWU dealt with a collective bargaining issue. The High Court had declared the suspension and expulsion of the respondents from their membership and employment with SAMWU unlawful and set its decision aside. The High Court had dismissed a special plea by SAMWU that it lacked jurisdiction to hear the respondents’ application for reinstatement to SAMWU. It goes without saying that the protection of collective bargaining falls squarely within the ambit of the LRA. The facts in SAMWU are clearly distinguishable from the facts in the current matter.

 

It follows that the jurisdictional point taken stands to suffer the same fate.

 

Does the impugned decision to transfer Mr Mpalala constitute an administrative action within the meaning of PAJA?

[15]     The definition of ‘Administrative action’ in s 1 of PAJA 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, but does not include-. . .”

             

[16]      In Minister of Defence and Military Veterans v Motau and Others[7], the Constitutional Court, citing Grey’s Marine[8] with approval, broke the definition down into seven components as follows:

           

‘[33]      The concept of 'administrative action', as defined in s 1(i) of PAJA, is the threshold for engaging in administrative-law review. The rather unwieldy definition can be distilled into seven elements: there must be (a) a decision of an administrative nature; (b) by an organ of state or a natural or juristic person; (c) exercising a public power or performing a public function; (d) in terms of any legislation or an empowering provision; (e) that adversely affects rights; (f) that has a direct, external legal effect; and (g) that does not fall under any of the listed exclusions.’

 

[17]     Mr van der Westhuizen contended that the exercise of this power by the HOD requires the interpretation of sections 6 and 8 of the Employment of Educators Act. The HOD conceded that she applied s 8. Counsel submitted that in doing so she was exercising a public function which had an external effect in that it affected the SGB.

 

[18]     Section 6 of the Employment of Educators Act deals with the powers of employers regarding Appointments, Promotions and Transfers:

 

‘(1)        Subject to the provisions of this section, the appointment of any person, or the promotion or transfer of any educator-

(a)     in the service of the Department of Basic Education shall be made by the Director-General; or

(b)     in the service of a provincial department of education shall be made by the Head of Department.

             

(2)                Subject to the provisions of this Chapter, the Labour Relations Act or any collective agreement concluded by the Education Labour Relations Council, appointments in, and promotions or transfers to, posts on any educator establishment under this Act shall be made in accordance with such procedure and such requirements as the Minister may determine.

             

(3)(a)     Subject to paragraph (m), 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 and, if there are educators in the provincial department of education concerned who are in excess of the educator establishment of a public school due to operational requirements, that recommendation may only be made from candidates identified by the Head of Department, who are in excess and suitable for the post concerned.

 

 (b)    In considering the applications, the governing body or the council, as the case may be, must ensure that the principles of equity, redress and representivity are complied with and the governing body or council, as the case may be, must adhere to-

(i)     the democratic values and principles referred to in section 7 (1);

(ii)    any procedure collectively agreed upon or determined by the Minister for the appointment, promotion or transfer of educators;

(iii)   any requirement collectively agreed upon or determined by the Minister for the appointment, promotion or transfer of educators which the candidate must meet;

(iv)   a procedure whereby it is established that the candidate is registered or qualifies for registration as an educator with the South African Council for Educators; and

(v)     procedures that would ensure that the recommendation is not obtained through undue influence on the members of the governing body.

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

(i)     at least three names of recommended candidates; or

(ii)    fewer than three candidates in consultation with the Head of Department.

      (d)   When the Head of Department considers the recommendation contemplated in paragraph (c), he or she must, before making an appointment, ensure that the governing body has met the requirements in paragraph (b).

      (e)    If the governing body has not met the requirements in paragraph (b), the Head of Department must decline the recommendation.

      (f)    Despite the order of preference in paragraph (c) and subject to paragraph (d), the Head of Department may appoint any suitable candidate on the list.

      (g)   If the Head of Department declines a recommendation, he or she must-

(i)     consider all the applications submitted for that post;

(ii)    apply the requirements in paragraph (b) (i) to (iv); and

(iii)   despite paragraph (a), appoint a suitable candidate temporarily or re-advertise the post.

      (h)   The governing body may appeal to the Member of the Executive Council against the decision of the Head of Department regarding the temporary appointment contemplated in paragraph (g).

      (i)    The appeal contemplated in paragraph (h) must be lodged within 14 days of receiving the notice of appointment.

      (j)    The appeal must be finalised by the Member of the Executive Council within 30 days.

      (k)   If no appeal is lodged within 14 days, the Head of Department may convert the temporary appointment into a permanent appointment as contemplated in section 6B.

      (l)    A recommendation contemplated in paragraph (a) shall be made within two months from the date on which a governing body was requested to make a recommendation, failing which the Head of Department may, subject to paragraph (g), make an appointment without such recommendation.”

 

[19]     Transfer of educators is catered for under s 8 of the EE Act which stipulates:

 

‘(1)        Subject to the provisions of this Chapter-

(a)     the Director-General or the Head of Department may transfer any educator in the service of the relevant department to any post or position in any other department of State with the prior approval of the person in that other department of State having the power to appoint or to transfer and with the consent of that educator; and

(b)     the Director-General may transfer any educator in the service of the Department of Basic Education to any other post in the Department; and

(c)     the Head of Department may transfer any educator in the service of the provincial department of education to any other post in that department.

(2)         Subject to subsections (4) and (5), no transfer to any post on the educator establishment of a public school shall be made unless the recommendation of the governing body of the public school has been obtained.

(3)         The salary and other conditions of service of an educator may not be adversely affected by a transfer under this section without the consent in writing of that educator, except in accordance with the provisions of Chapter 5.

(4)         A recommendation contemplated in subsection (2) shall be made within two months from the date on which a governing body or council was requested to make a recommendation, failing which the Head of Department may make a transfer without such recommendation.

(5)         The Head of Department may, without a recommendation contemplated in subsection (2), transfer an educator temporarily for a stated period from a post at a public school to a post at another public school.

(6)         An educator referred to in subsection (5) shall return to his or her previous post at the end of the period contemplated in that subsection.

(7)         Despite section 6 (3) (a) and subsection (2), in the case of an educator who has been awarded a bursary by the employer to follow a course approved by the employer, the employer may transfer such an educator, with his or her consent, to any suitable post on the educator establishment of a public school or an adult education and training centre.’

 

[20]     The following Clauses are quoted in full from the Personnel Administrative Measures, Government Notices 46875, 9 September 2022 (PAM) to the extent required:

 

CB.5.1.2

            Any appointment or transfer to any post on the educator establishment of a public school may only be made on the recommendation of the SGB unless the relevant SGB has not been established yet. (own emphasis)

 

[21]     CB5.2.2

            All vacancies are to be advertised in a gazette, bulletin, or circular, the existence of which must be made public by means of an advertisement in the public media both provincially and nationally. The information to be furnished in the latter advertisement must include offices and addresses where the gazette, bulletin or circular is obtainable. The gazette, bulletin or circular must be circulated to all educational institutions within the province. (own emphasis)

 

[22]     The Department of education also has a policy on transfer of employees which, unfathomably, the HOD claims to have considered when approving the transfer of Mr Mpalala. The stated main purpose of the policy is to effectively manage the movement or mobility of employees within and between the Northern Cape Department of Education and other Public Service Departments; to establish uniform policy and procedures for transfer of employees from one post to another. In this policy, a School Governing Body refers to a governing body elected to govern the affairs of a school and promote the best interests of the school to ensure its development through the provision of quality education for all learners at the school, as contemplated in s 16(1)(ii) of the South African Schools Act of 1996 as amended.

 

[23]     Clause 10 of the aforementioned policy applies to Institution Based Educators: Single Transfer. It addresses the transfer of Post Level 1 educators, ie, entry level posts. However, it makes a clear distinction in clause 10.8 where it contemplates:

           

‘It should be noted that only PL1 educators are eligible to apply for a single transfer. In this regard all promotion posts must be advertised.’

             

A mere reading of Clause 10 excludes Mr Mpalala from its application as he was already at PL4.

 

[24]     Mr Petersen, invoking MEC for Education, Gauteng Province, and Others v Governing Body, Rivonia Primary School and Others,[9] argued on behalf of the respondents that the policy serves as a guide to decisions and cannot bind the HOD as the decisionmaker inflexibly. The policy in the Rivonia Primary School matter is a Gauteng Province policy on admissions at schools. The reason for its inflexibility stems from s 29 of the Constitution which guarantees everyone the right to basic education. Its context differs from the transfer policy that forms the subject of this dispute. The Rivonia Primary School case does not assist the respondents. The transfer policy is compatible with the enabling legislation and, in my view, the HOD must apply it rigidly and inflexibly.

 

[25]     This is what Wallis JA elucidated in Natal Joint Municipal Pension Fund v Endumeni Municipality[10] pertaining to interpretation:

           

‘Interpretation is the process of attributing meaning to the words used in a document, be it legislation, some other statutory instrument, or contract, having regard to the context provided by reading the particular provision or provisions in the light of the document as a whole and the circumstances attendant upon its coming into existence.’

 

[26]     This dispute is, in my view, not only limited to Ms Human as a contractual labour dispute. It undoubtedly extends to other parties such as the SGB and the potential candidates provincially and nationally. The conduct of the HOD, in failing to advertise the principal position has direct implications or consequences. Its impact did not only affect Ms Human as contended by the respondents but also the SGB and the SAOU as well as the broader educators’ community who were potential candidates and more particularly the community where the school is located. This complaint is clearly not rooted in the LRA. The decision taken by the HOD, as an organ of state, in the exercise of a public power or function and in terms of the EE Act and PAM was administrative in nature.  

           

I therefore find the decision to be reviewable under PAJA. It follows that the challenge on this preliminary point must also fail.

 

Is the principle of legality available to the applicants?

[27]     In Minister of Defence and Another v Xulu[11]  Wallis JA, writing for a unanimous court, made these illuminating remarks:

‘[47]      Before dealing with the relevant grounds of review, it must be said that the approach of the full court, in avoiding the question whether this was a case of administrative action and disposing of it on the basis of the principle of legality, was in principle incorrect and one to be discouraged. The right to just administrative action is the primary source of the power of courts to review the actions of the executive and the administration. The Constitution required legislation to be enacted to provide for this and PAJA is the result. It is specific, although not necessarily simple, in its provisions and prescribes procedures that must be followed in pursuing judicial review, while vesting rights in people dealing with the administration, such as the right to reasons. It imposes significant   limitations in regard to the requirement to exhaust internal remedies and in regard to the time within which review proceedings must be brought. Litigants and courts should not circumvent these by proceeding directly to questions of legality. If action by the executive and administration is administrative action, then the jurisprudence of the Constitutional Court is clear in saying that this is the path that the litigation must follow.’ 

           

Regard being had to the above caution, it follows that this review stands to be adjudicated in terms of PAJA and not the principle of legality.

 

Factual Background

[28]     The facts in this matter are mainly common cause. Ms Human was appointed by the Department of Education as an educator on 1 January 2004. She became the deputy principal at Petrusville Primary School on 1 January 2016. The Petrusville Primary School erstwhile principal, Mr T Wilson, took retirement on 31 December 2022 and Ms Human acted in the vacant position.

[29]     On 5 December 2022 Mr Mpalala, a Post Level 4 educator and principal at Steynsville High School, applied for a single transfer to Petrusville Primary School as principal. He furnished the following reasons in motivation for his transfer:

(a)               To be close to his home and family;

(b)               To add value at home in Petrusville;

(c)               Due to his wife’s ill-health;

(d)               He was maintaining two households which was expensive, including travelling between Petrusville and Steynville; and

(e)               The transfer would assist in stabilising the school.

 

[30]     The SGB at Steynsville High School supported and recommended the transfer on 7 December 2022. The Petrusville Primary School Governing Body did not support the transfer for the following reasons:

(a)               The post of principal should be advertised in accordance with the departmental prescripts;

(b)               Interested persons should be given a fair opportunity to apply for the post;

(c)               Approving the transfer at that stage would lead to unnecessary tension in the community and amongst the staff members; and 

(d)               There would be better acceptance if the principal was appointed through the recruitment and selection process.

 

[31]     The SGB at Petrusville Primary School completed the required Form known as the NSK-TFB1B, and in its refusal to recommend Mr Mpalala’s appointment wrote that he should wait for the ‘bulletin’. It is not in dispute that the SGB implied that he should wait for the post to be advertised. The SGB met again on 16 January 2023 to discuss Mr Mpalala’s transfer and still stood its ground for the post to be advertised and submitted its negative recommendations. Notwithstanding this, the Circuit Manager of Steynsville High School and the District Director recommended the transfer, citing ‘humanitarian reasons.’ The Circuit Manager of Petrusville Primary School shared the sentiment with the SGB and stated that he did not support the transfer but the District Director of the same school nevertheless recommended the transfer also citing humanitarian grounds.

 

[32]     In his submission of 24 January 2023, Mr O Kambi, Deputy Director: Human Resource Management, recommended to the HOD to grant approval for the transfer of Mr Mpalala with effect from 1 January 2023. It was approved by the HOD on 13 February 2023 with an instruction that the SGB in Petrusville Primary School should be engaged. In addition, that the transfer should be effected at PL3 level. Mr Mpalala accepted the transfer on that condition.

 

These are the grounds for the review of the application

[33]   

(a)        That the HOD’s decision was not authorised by the empowering provision in terms of s 6(2)(a)(i);

(b)       The HOD failed to comply with the mandatory and material procedure or conditions prescribed by the EE Act and the PAM (s 6(2)(b) of PAJA);

(c)        The procedure followed by the HOD was also procedurally unfair in that it deprived Ms Human and other educators of the opportunity to be considered for and to compete for employment in the position of principal at the Petrusville Primary School (s 6(2)(c) of PAJA);

(d)       One of the considerations for the transfer was that Mr Mpalala was resident at Petrusville. This reason is not in and by itself decisive or authorised by the empowering provision, alternatively, the decision to transfer Mr Mpalala was for an ulterior purpose or motive, or further alternatively, it was taken for irrelevant considerations, ignoring relevant considerations, taken in bad faith, or arbitrarily or capriciously (s 6(2)(e) of PAJA);

(e)        The impugned decision was taken in contravention of the legislative provisions dealing with transfers in the education sector in that the SGB did not recommend the transfer (s 6(2)(f) of PAJA).

 

[34]     The policy of the department recognises that a School Governing Body refers to a governing body elected to govern the affairs of a school and to promote the best interests of the school to ensure its development through the provision of quality education for all learners at the school, as contemplated in s 16(1)(ii) of the South African Schools Act of 1996 as amended. In the event of a need for a transfer the SGB needs to make a recommendation to the department.  This recommendation, in my view, carries weight, regard being had to the role played by the SGB in managing the affairs of a school. I seem to gain the impression from the submissions made on behalf of the HOD that the mere fact that the recommendation was obtained ticked the right box and its content was either not considered or was disregarded without any justification. The recommendations are meant to serve a meaningful purpose and not merely as a tick box exercise for compliance.

 

[35]     To simply approve the transfer citing ‘humanitarian grounds’, without more, is untenable. Assuming that the HOD considered the transfer policy before approving the transfer of Mr Mpalala, it is mystifying that she does not seem to have known that the single transfer in Clause 10 applies only to the entry level educators (PL1). Mr Mpalala was already at a higher level, PL4, and was therefore excluded from the single transfer provisions.

 

[36]     It is common cause that the HOD is empowered by s 6(1)(b) of the EE Act to appoint, promote or transfer educators in the province. The applicants contend that the HOD failed to comply with s 8(2) and (4) of the EE Act. The respondents counter that submission by explaining that the HOD has obtained and considered the recommendations by the Petrusville Primary School SGB before approving the transfer. This contention has no merit for the following reasons. Item B.5.2 of Annexure “HB11” provides the process to be followed when filling vacant posts. According to Clause B.5.2.2 all vacancies in public schools are to be advertised in a gazette, bulletin or circular, both provincially and nationally.

 

[37]     The Steynsville Circuit Manager and District Director, the Petrusville District Director and Mr Kambi ought to have known the legislative and policy provisions. The HOD asserts that she transferred Mr Mpalala in terms of s 8(1)(c) and 8(2) of the EE Act in that she was satisfied that she obtained the SGB recommendation, which she regarded as mere advice, and considered the entire policy, more particularly, clause 10.8. According to her interpretation of clause 10.8, the fact that Mr Mpalala was not getting a promotion in terms of his status and salary, she interpreted clause 10.8 to be referring to transfers in respect of PL1 educators. She goes on to argue that she was not required to follow the policy slavishly but could deviate from it. She maintains that since she was not effecting the transfer in terms of s 6 she did not have to advertise the position.

 

[38]     The aforementioned explanation by the HOD is, in my view, an effort to justify what is clearly indefensible. Evidently, her decision to transfer Mr Mpalala was not authorised by the empowering provision. It was unreasonable, arbitrary and capricious and does not comply with the requirements of PAJA. She ignored relevant considerations and took into consideration irrelevant considerations. The decision stands to be reviewed and set aside.

 

[39]     Unfortunately, there are consequences emanating from this decision. Mr Mpalala’s transfer was with effect from 1 January 2023. He has occupied the position of principal at Petrusville Primary School for over a year now.  The HOD’s interpretation of clause 10.8 and the transfer policy in its entirety is irrational. The policy states that all promotion posts must be advertised. It will not be unreasonable to have the post advertised despite Mr Mpalala having occupied it for the said period.

 

[40]     Having dispassionately considered all these aspects, I am satisfied that the applicants have made out a case for the decision of the HOD to be reviewed and set aside. There is no reason why costs should not follow the result.

 

[41]     The following order is accordingly made:

 

1.                  The decision taken during or about March 2023 by the second respondent (the HOD) to transfer the third respondent as principal from Steynsville High School to Petrusville Primary School, is reviewed and set aside.

 

2.                  The second respondent is ordered to follow the provisions of the Employment of Educators Act 78 of 1998 as well as the provisions of the Personnel Administrative Measures, published in Government Gazette No. 46879 on 9 September 2022 for purposes of filling the vacant position of principal.

 

3.                  The first and second respondents (MEC and HOD) are ordered to pay the costs of this application, jointly and severally, the one paying the other to be absolved.

 

_____________________

MC MAMOSEBO

JUDGE OF THE HIGH COURT

NORTHERN CAPE DIVISION, KIMBERLEY

 

I concur

 

__________________________

APS NXUMALO

JUDGE OF THE HIGH COURT

NORTHERN CAPE DIVISION, KIMBERLEY

 

 

For the Applicants                                  Adv GL van der Westhuizen

Instructed by:                                          Erasmus Incorporated

                                                               c/o Van de Wall Inc     

 

For the First & Second Respondents:      Adv F Petersen

Instructed by:                                          Motlhamme Pino Attorneys

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