Director of Education Transvaal v McCagie and Others

• Jurisdiction: South Africa
• Judge: Innes CJ, Solomon JA, CG Maasdorp JA, Juta AJA and AFS Maasdorp Acting AJA
• Judgment Date: 11 December 1918
• Citation: 1918 AD 616
• Hearing Date: 26 November 1918
• Court: Appellate Division

Innes, C.J.:

In the Transvaal Provincial Gazette of 20th March, 1918, appeared an official notice inviting applications for vacancies in connection with a number of schools which the Education Department had decided to promote to the grade of high schools. The present controversy is, concerned with the action taken in connection with two only of these institutions - the Germiston High School and the Johannesburg. Commercial High School. For the post of principal at Germiston all the respondents applied; for that of principal at Johannesburg, the first and second respondents only. All the respondents were at the time assistant masters (Grade A) of various high schools in the Transvaal. Their applications were unsuccessful. What happened was this: For the principalship of the Germiston High School there were 10 applicants, of whom one was Harry Robert Harding, the principal in charge at the date of the notice. The local School Board, purporting to discharge its statutory duty, recommended to the Director the names of Harding, and of the respondents McCagie and Green, in the above order of precedence. And the Director, also purporting to act under the statute, appointed Harding. Four applications were sent in for the post of principal of the Johannesburg School; one of these was lodged by James Alexander Foote, the holder of the post, and two others by the second and third respondents (McCagie and Green), respectively. The Central School Board, in the ostensible exercise of its functions under the statute, recommended only the name of the applicant Foote, and the Director appointed him. The respondents, considering that the action thus taken was illegal, because the successful applicants did not possess the prescribed qualifications for the posts, petitioned the Supreme Court for an order declaring both appointments void, and instructing the Director, upon the receipt of new and proper recommendations from the Boards concerned, to make other appointments. The petition was successful; the Transvaal Provincial Division granted an order substantially as prayed, and the correctness of their decision is now submitted to us for consideration.

Innes, C.J.

To appreciate the grounds on which the action of the Boards and of the Director is challenged, a reference to the terms of the statute and of the regulations framed thereunder will be necessary. The 78th section of the Education Act, 1907, as amended by Ordinance 7 of 1912, sec. 10, reads as follows:-

"(1) Any vacancy on the teaching staff of a school, class, or institution, which is under the supervision of a Board, shall, so far as is convenient, be advertised in the Gazette, and the Board, after consultation with, and as far as possible upon the recommendation of the Committee or managing body (if any), shall recommend to the Director at least two applicants qualified for the vacant post, if there is more than one applicant, and the Director shall appoint one of such applicants, provided always that the Director may decline to appoint any of the applicants recommended by the Board, if in his opinion such appointment would not be in the best interests of the school, class or institution.

"(2) If the Director declines to appoint any of the applicants recommended for appointment by the Board, as provided in sub-sec. (1) hereof, he shall report the case to the Administrator for decision."

The standard of qualification for the various posts is laid down by regulations framed under sec. 90 (1) (b) of the Act. In regard to the principals of high schools, it is provided (see. 18) that the qualifications shall be these: -

"(1) University degree, or other evidence of the necessary academic qualifications; and

"(2) Professional diploma of a standard not less than that of the Transvaal teachers' second-class certificate, or other evidence of the necessary professional qualifications; and

"(3) Eight years' experience, of which at least half must have been gained in secondary schools."

The contention of the respondents, which the Provincial Division upheld, was that neither Harding nor Foote possessed the qualifications required by the regulations; it was not legally open for the Board to recommend, or for the Director to appoint them. Their names should have been eliminated and only the applications of duly-qualified candidates dealt with. The requirements of the statute had been disregarded, to their prejudice, and they were entitled to demand that the illegal proceedings which had been

Innes, C.J.

taken should be set aside. The Attorney-General based his appeal against the order of the Provincial Division upon three grounds: (1) That the respondents had no locus standi, and were, therefore, entitled to no relief; (2) That the School Boards and the Directors had a discretion under the Act with which the Court should not have interfered; (3) that the appointments were made in accordance with law.

Of these, the preliminary objection, if upheld, would be fatal to the respondents' case. It will be convenient, therefore, to consider it first. The popularis actio of the Roman law is not recognised in our procedure. It became obsolete in Holland more than two centuries ago: Bagnall v Colonial Government (24 S.C., 470), Dalrymple v Colonial Treasurer (1919 T.S., 372). The principle of our law is that a private individual can only sue on his own behalf, not on behalf of the public. The right which he seeks to enforce, or the injury in respect of which he claims damages, or against which he desires protection, will depend upon the nature of the litigation. But the right must be available to him personally, and the injury must be sustained or apprehended by himself. Here we have to do with an application to set aside proceedings alleged to have been taken in contravention of a statute; and the question arises whether the respondents had such a personal interest in the matter as entitled them to invoke the assistance of the Court. The Attorney-General contended that sec. 78 gave them no right of any kind; it merely regulated procedure as between the Board and the Director, the latter was not bound to act upon the recommendation of the Board, and the appointment need not necessarily be made from the list of applicants. I cannot agree that the respondents had no rights under the section. In Patz v Greene & Co. (1907, T.S. 427) it was hold that illegal trading in contravention of a statute, to the personal prejudice of another trader, was an infringement of the right of the latter to carry on his own trade free from interference, and entitled him to an interdict. There the statute contravened was a public Act, not passed in the interests of the class to which the complainant belonged, and containing no reference to him. The present is a stronger case. The 78th section deals expressly with candidates and their applications; it does more than merely regulate official procedure in the interests of officialdom. Some of its provisions directly affect the

Innes, C.J.

position of applicants. The Board is commanded to recommend qualified applicants only; and the Director is bound to appoint one of the names recommended, unless he considers that such appointment would not be in the best interest of the school, in which event the question is reported to the Administrator for decision. It is clearly to the advantage of all qualified applicants that the procedure thus prescribed should be adhered to, and that the Board should confine its attention to candidates who possess the qualification required. The exclusion of those disqualified narrows the area of selection and correspondingly improves the prospects of candidates who satisfy the standard. There is, therefore, a duty upon the...