Cambridge High School v The Head of The Department of Education And Another

• Jurisdiction: South Africa
• Judge: Sangoni, AJ
• Judgment Date: 11 December 2003
• Docket Number: 262/02
• Court: Ciskei High Court
• Hearing Date: 31 October 2003
• Citation: 2003 JDR 0740 (CkH)

Sangoni AJ:

(1) The first applicant is a public school (the School) as defined in the South African's School Act, 84 of 1996 (the School's Act), with legal capacity to perform its functions in terms of the School's Act.

(2) The second applicant is an educator employed by the Eastern Cape Provincial Department of Education in terms of s 6 of the Employment of Educators' Act 76 of 1998 (the EEA) as from 15 February 2002. The first respondent is the Head of the Education Department in the Eastern Cape Province, an 'employer' as defined in the EEA.

(3) The second respondent is the Member of the Executive Council responsible for education in the Eastern Cape Province.

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(4) The applicants have approached this Court for an Order in the following terms:

'1

directing that the first respondent pay to the first applicant damages in the sum of R76 828.05 arising out of the first respondent's failure to pay the relevant emoluments to the second applicant for the latter's educator services rendered by him to the first respondent during the period 1 January 2001, alternatively, 1 April 2001, to February 2002 in terms of the first respondent's statutory duty to do so;

2

directing that the first respondent pay to the first applicant, interest on the said sum of R73 828.05 calculated at the legal rate of 15,5 % per annum monthly and compounded accordingly in reference to the schedule referred to an annexure L to the affidavit deposed to by Robin Charles Poulton, to date of payment;

3

directing that the first respondent pay to the second applicant, such emoluments and benefits as may have been payable and due to him with effect from 1 January 2001 to 28 February 2002 being the difference between such emoluments and benefits as would be owing and accruing to the second applicant, and the aforementioned sums paid by the first applicant to the second applicant by way of advances as set out in annexure L referred to above;

4

directing that the first respondent pay to the second applicant, interest on such differential referred to in para 3 above, calculated at the legal rate of 15,5 % per annum on such monthly differential as may be calculated in reference to annexure I hereinbefore referred to, to date of payment;

5

declaring that the first respondent has violated the applicant's fundamental rights referred to in s 33 of the Constitution of the Republic of South Africa Act 108 of 1996, by failing to accord them administrative action which is lawful, reasonable and procedurally fair and in particular, by failing to procure the second applicant's appointment as an educator with the First Applicant with effect from 1 January 2001;

6

granting such further and/or alternative relief as to the above honourable Court may seem

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meet; and

7

directing that the respondents pay the costs of suit of the applicants, jointly and severally, the one paying the other to be absolved.'

(5) As will appear from the relief sought, the first applicant is seeking to be refunded the financial loss it incurred when it paid remuneration to the second applicant for services rendered by the latter during the period January 2001 to mid February 2002. This remuneration is set out in annexure L to the founding affidavit and it includes, in addition to the monthly salary, bonus, union fees, site tax, pay as you earn (PAYE) and UIF. The details of the agreement between the applicants as regards the remuneration to be paid, have not been furnished. The question why the first applicant also paid for UIF, annual bonus and Union fees to a person who was engaged on a temporary basis, without it being certain that he would be permanently employed, remains unanswered.

(6) The applicants' claims are founded in delict. Their case is that the damages claimed are a consequence of the respondents' breach of their duty to provide education in terms of s 29 of the Constitution of the Republic of South Africa Act 108 of 1996, coupled with the fact that the respondents breached a statutory duty quoted by section 6 of the EEA, in that they failed to fill the post of an educator with the first applicant as from 1 January 2001 up to 14 February 2002. As a result of that failure, the applicant's contend, the first applicant was obliged to hire the services of the second applicant for the said period in keeping with its obligation 'to ensure that the standard of educators is maintained so as to ensure, as it is statutorily obliged to do so, that quality education is at all times provided for the first applicant's learners'.

(7) In terms of the Constitution of the Republic of South Africa Act 108 of 1996, everyone has the right to a basic education, including adult basic education and further education, which the State, through reasonable measures, must make progressively available and accessible. It is contended therefore that the respondents owe a legal duty to everyone, including the learners of the first

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applicant, to fulfil such right. (I refer to respondents as representatives of the Department of Education).

(8) In terms of s 6 of the EEA it is the Head of Department that has powers to appoint an educator in the service of Provincial Department of Education. That is the first respondent in the current case. Such appointment may only be made on the recommendation of the Governing Body of the public school or the Council of the further education and training institution, as the case may be.

(9) The recommendation of the Governing Body may only be declined if:

'(i) any procedure collectively agreed upon or determined by the Minister for the appointment, promotion or transfer has not been followed;

(ii) the candidate does not comply with any requirement collectively agreed upon or determined by the Minister for the appointment, the promotion or transfer;

(iii) a candidate is not registered, or does not qualify for registration, as an educator with the South African Council for educators;

(iv) sufficient proof exists that the recommendation of the said governing body or council as the case may be, was based on undue influence; or

(v) the recommendation of the said governing body or council, as the case may be, did not have regard to the democratic values and principles referred to in s 7(i).'

(10) Such recommendation may be dispensed with if not made within two months from the date on which the governing body was requested to make a recommendation and the Head of Department may proceed to make an appointment without such recommendation.

(11) It is the applicant's case that the post of an educator at the school fell vacant with effect from 1 January 2001. It is alleged that the first respondent unduly delayed to fill the vacant post and such delay constitutes the breach of a statutory duty.

(12) It is contended therefore that the first applicant, confronted with a legal duty in terms of s 20

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of the Schools Act, hired the services of the second applicant as educator for Woodwork. The first applicant is now claiming what it paid to second applicant for such services as damages it suffered.

(13) The first applicant is described as

'a multi cultural school, providing education and ancilliary (sic) benefits to all its learners . . . has set high standards in education and, in particular, its School Governing Body has always strived to promote the best interests of the school and to ensure its development through the provision of quality education for all learners at the school'.

(14) The first applicant prides itself of setting and keeping high standards in education and of executing its legal duty as prescribed in s 20 of the School's Act.

(15) Section 20 (1) of the School's Act reads:

'(1) Subject to this Act, the Governing Body of a public school must-

(a)

promote the best interests of the school and strive to ensure its development through the provision of quality education for all learners at the school.'

The facts

(16) On 1 October 2000 one Heldsinger gave notice to resign. On 3 October 2000 the termination of service form was submitted to the second respondent wherein he was being advised that Heldsinger's last working day would be the 31 December 2000. It is true that as from then the first respondent should have taken note that the post deserved to be filled as from 1 January 2001.

(17) The vacant post was advertised by using a closed bulletin procedure in November 2000, the closing day for the receipt of applications being 31 January 2001. The closed...