Bel Porto School Governing Body and Others v Premier, Western Cape, and Another

• Jurisdiction: South Africa
• Judge: Chaskalson CJ, Goldstone J, Madala J, Mokgoro J, Ngcobo J, Kriegler J, Sachs J, Yacoob J, Madlanga AJ and Somyalo AJ
• Judgment Date: 21 February 2002
• Citation: 2002 (3) SA 265 (CC)
• Docket Number: CCT 58/00
• Hearing Date: 08 May 2001
• Counsel: R F van Rooyen (with him J P van den Berg) for the appellants. A M Breitenbach for the respondents.
• Court: Constitutional Court

Chaskalson CJ:

[1] This appeal concerns the validity of the policy pursued by D the government of the Western Cape in attempting to give effect to the constitutional imperative to introduce equity into its educational system. The appellant schools do not dispute the validity of the goal to which the policy is directed, nor do they dispute the core aspects of that policy which make provision for a programme of rationalisation E within the education system in order to ensure that education in the province is conducted on a fair and proper basis. Their complaint is that the manner in which the rationalisation programme is to be implemented imposes an unfair burden on them. They have a further complaint, and that is that they were neither informed adequately of F the details of the rationalisation programme and the impact that it would have on them, nor were they consulted in regard to such matters.

[2] When litigation commenced in the Cape High Court the applicants were 11 schools under the auspices of the Western Cape Education Department (the WCED). The relief claimed focused on the need G for information. The applicants sought an order directing the provincial government to provide them with information which they said they required for the exercise or protection of their constitutional rights. They also sought leave to approach the Court on the same papers, supplemented if necessary after receipt of the relevant information, for an order directing the WCED to employ general H assistants working at the applicant schools and interdicting the WCED from retrenching any of the teachers at their schools without giving them at least three months' notice of its intention to do so.

[3] After the WCED had lodged answering affidavits in response to the claims of the applicant schools the focus of the relief sought I by the schools changed. They no longer demanded information, saying that there was sufficient information in the answering affidavits to enable them to formulate the claims that they wished to make. Those claims are reflected in an amended notice of motion in which the schools claim an order: J

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'1.

Declaring the respondents' failure to employ the general assistants presently employed by the applicants, to be in conflict with A the fundamental rights entrenched in chap 2 of the Constitution of the Republic of South Africa Act 108 of 1996, and therefore unlawful.

2.

Directing the respondents to employ the general assistants presently employed by the applicants.' B

[4] The claims made by the applicants were dismissed by Brand J in the Cape High Court. [1] The applicants then applied for a certificate in terms of Constitutional Court Rule 18(2) to enable them to apply to this Court for leave to appeal directly to it against the decision of Brand J, and in the alternative, for leave C to appeal to the Full Bench of the Cape High Court or the Supreme Court of Appeal. In the absence of Brand J, the application was dealt with by Davis J who, in a considered judgment, refused leave to appeal to the Full Bench or the Supreme Court of Appeal, holding that there was not a reasonable prospect that another Court would alter the order granted by Brand J, and consistently with that finding, provided a negative D certificate in terms of Rule 18 of the Rules of this Court.

[5] The applicants then applied to this Court for leave to appeal directly to it and leave was granted. Subsequently three of the original applicants withdrew, leaving eight applicants who persisted with the appeal. E

The background to the dispute

[6] In 1994 when the interim Constitution (the Constitution of the Republic of South Africa Act 200 of 1993) came into force ours was a grossly unequal society. The interim Constitution was designed to F create a new order 'in which there is equality between men and women and people of all races so that all citizens shall be able to enjoy and exercise their fundamental rights and freedoms'. [2] This commitment to the transformation of our society was affirmed and reinforced when the Constitution adopted by the elected Constitutional Assembly in 1996 G came into force. The preamble to the Constitution 'recognises the injustices of our past' and makes a commitment to establishing a society 'based on democratic values, social justice and fundamental human rights'. The society is to be built on the foundation of the values entrenched in the first section of the Constitution. These values include 'human dignity, the achievement of equality and the H advancement of human rights and freedoms' [3] and a 'multi-party system of democratic government, to ensure accountability, responsiveness and openness'. [4]

[7] The difficulties confronting us as a nation in giving effect to these I

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commitments are profound and must not be underestimated. The A process of transformation must be carried out in accordance with the provisions of the Constitution and its Bill of Rights. Yet, in order to achieve the goals set in the Constitution, what has to be done in the process of transformation will at times inevitably weigh more heavily on some members of the community than others. B

The history

[8] Before the interim Constitution came into force education in South Africa was conducted at racially segregated schools managed by different departments of education. In the Western Cape there were four education departments reflecting these divisions. They were the C departments of the House of Assembly (HOA), the House of Delegates (HD), the House of Representatives (HR) and the Department of Education and Training (DET). There were great disparities in the system. The HOA schools had better buildings, better grounds, better equipment, and better pupil:teacher ratios than schools in the other departments had. There were also disparities between the other departments and D conditions in the DET schools were the worst of all.

[9] After the interim Constitution came into force the WCED was established to take over responsibility for all schools in the province. This was in about September 1995. At that time there were E teaching and non-teaching staff at the various schools in the province. Most were employees of the former departments but some were employees of the schools. The South African Schools Act [5] (the Schools Act) continues to sanction this distinction and permits schools to supplement their teaching and non-teaching staff by F employing additional teachers and assistants out of their own funds. [6]

[10] There are special schools that provide education for disabled pupils. They are referred to in the evidence as Elsen schools and I will refer to them as such in this judgment. The appellants are Elsen schools that were formerly HOA schools established to meet the G educational needs of white disabled children. They were administered by the HOA education department.

[11] Elsen schools need teachers with special skills. They also need general assistants for various purposes, including class H assistants to help the teachers attend to the children during classes and drivers to transport the children to and from schools. In those schools where there are hostels, general assistants have to perform duties normally performed by hostel workers and where that is necessary they also have to help the children with dressing, bathing, feeding and other personal needs. The general assistants must also be sensitive to I the special needs of disabled children which might differ from school to school depending on the

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nature of the handicap from which the children suffer. There are also general assistants who perform other A work, for instance, as clerks, foremen and labourers.

[12] When the appellant schools were administered by the HOA education department, the policy of that department was that the general assistants would be employed by the schools themselves. They received a special subsidy from the department to assist them to meet B the costs of employing such assistants. It was up to the schools to decide how to use that subsidy. The first appellant attached to its founding affidavit a document that reflects the arrangements between the Elsen schools and the HOA education department at that time. Each of the schools was entitled to decide how many general assistants it C would employ and what their salaries and terms and conditions of employment would be. The department recommended to the schools that the general assistants should be employed on contracts that would be subject to termination on 24 hours' notice. The schools were, however, free to decide on all such matters themselves without reference to the D department, and were not obliged to inform the department of appointments that were made or the salaries that were paid.

[13] The WCED says that this arrangement was the result of choices made by these schools. This is not admitted by the schools. In the view that I take of the matter nothing turns on this dispute. What E is clear is that this policy had been followed for several years before the interim Constitution came into force. As a result, when the WCED was established and took over responsibility for the administration of the schools in the province, the general assistants at the appellant schools were all employees of the schools themselves. F

[14] The other departments of education had different policies. They employed the general assistants at the Elsen schools in their departments, though there were apparently fewer assistants per pupil than was the case in the HOA schools. Schools in the other departments were also disadvantaged in other respects as compared with HOA schools. G

Requests to change the policy

[15] Within approximately a year of the WCED having been established the appellants began to...