Douglas High School v The Head of the Department of Education, NC
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | CC Williams J and AM Mofokeng AJ |
| Judgment Date | 16 April 2021 |
| Court | Northern Cape Division |
| Hearing Date | 19 October 2020 |
| Docket Number | 1118/2019 |
Williams J:
In this review application the 1st applicant, Douglas High School (the school) and the 2nd applicant, the School Governing Body of the school (the SGB), seek the following relief against the 1st
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respondent, the Head of Department of Education, Northern Cape (the HOD):
That the first respondent's administrative decision to decline the recommendation by the second applicant for the appointment of the third respondent as Departmental Head in post number 201807/0242 at first applicant be reviewed, remedied, and set aside.
That the first respondent be directed and ordered to appoint permanently to the first respondent's employ at first applicant, Douglas High School in Douglas, third respondent, Mr F J WALDECK, persal no 55384268 as the Departmental Head in Physical Sciences Grade 10-12; Agricultural Technology Grade 10 - 12 & Agricultural Sciences Grade 10-12 (post number 201807/0242), as per the recommendation of the second applicant dated 17 September 2019, such appointment to be made within 7 days of the court order.
That the first-and second respondents be directed to pay the costs of this application jointly and severally, the one paying the other to be absolved."
The 2nd respondent is the Member of the Executive Council for Education in the Northern Cape (the MEC). The MEC in cited in his official capacity as political head of the Department of Education in the Northern Cape (the Department) because he may have an interest in the application. Although the relief sought in the Notice of Motion quoted above includes a cost order against the MEC, the applicants have in both their founding and replying affidavits stated that this was a mistake and that no relief is sought against the MEC.
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The 3rd respondent is Mr F J Waldeck an educator at the school and the SGB's preferred candidate for the vacant post of Departmental Head as more fully described in the second prayer of the Notice of Motion cited above.
The 4th and 5th respondents, Ms C Myburgh and Ms J Erasmus are also educators at the school and were respectively the SGB's second and third ranked candidates for the vacant Departmental Head post. These parties are also cited merely for the interest they may have in this matter.
It appears to be common cause that educators who have experience in teaching agricultural subjects at high school level are difficult to find. This dearth of suitable agricultural educators led the SGB to headhunt Mr Waldeck during 2017. At the time he was the internally appointed Acting Departmental Head agricultural subjects at the Northern Cape Agricultural High School in Jan Kempdorp. He had also previously been appointed by the Department to act in the same position at that school during 2015.
Mr Waldeck was amenable to a transfer to the school, which was formalised by the Department during April 2017, where he was appointed as a post-level 1 educator in agricultural subjects.
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When the Departmental Head post came into existence at the school during 2018 the Department appointed Mr Waldeck to act in this post at the school.
After the vacant post was advertised and the initial sifting, shortlisting and interviewing proceedings were completed, the SGB made its recommendations to the HOD as described in paragraphs 3 and 4 above on 17 September 2018.
On 11 December 2018 the HOD, in a letter addressed to the SGB, declined to make an appointment. The letter reads as follows;
"After thorough consideration of your recommendation, my office has come to the conclusion that same must be declined in terms of section 6(3) (e) of the Employment of Educators Act 76 of 1998 (the Act).
The documents at my disposal reveal that your office has not complied with section 6 (3) (b) (iii) of the Act in that your preferred candidate does not meet the profile of the post. Your office must appreciate that in the provision of quality education we must promote educators into the correct positions provided they meet the requirements for such promotion. Sadly, this is not the case in the current matter, my office would advise you place the mentioned preferred candidate(s) in the correct position so as to ensure that we do not jeopardise future upward mobility.
My office has further considered all applications for the said vacancy and is not satisfied that we would be able to comply with section 6 (3) (g) (iii) of the Act.
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Given the above, it is my decision that the mentioned post will be re-advertised in the next gazette."
On 4 February 2019, the applicants, through their attorneys of record, Horn & Van Rensburg Attorneys, requested the HOD to provide in terms of s5 of the Promotion of Administrative Justice Act, Act 3 of 2000 (PAJA), full and adequate reasons in writing, within 90 days, for the decision to decline to appoint Mr Waldeck in the post.
After the expiry of the 90 day period within which to provide reasons on 6 May 2019 and with no reasons forthcoming the applicants launched this application on 20 May 2019.
On 10 June 2019, the attorneys for the 1st and 2nd respondents, Mjila & Partners, wrote a letter to the applicants attorneys elaborating on the reasons why the HOD declined the appointment of Mr Waldeck. The relevant portion of this communication reads as follows:
Firstly, it is our instruction that, your clients were informed exactly why your clients' preferred candidate was not appointed. The first Respondent in its letter of 18 December 2018 clearly advised your clients that they have not complied with section 6(3) (b) (iii) of the Employment of Educators Act, No 76 of 1998 ("the Act") in that your preferred candidate did not meet the profile of the post. You will appreciate that in order to meet the profile of post a candidate must meet the minimum professional qualifications for the post. Your clients' preferred candidate and the other recommended candidates
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did not meet the profile for the post since they failed to comply with provisions of clause B.3.2.1 (a) and/or (b) of the Personnel Administrative Measures (herein after referred to as PAM).
To demonstrate the failure of the 3rd, 4th and 5th Respondents to satisfy the requirements of the position, you will note that according to the advertisement, the Respondents would be required to teach the following subjects: "Fisiese Wetenskappe" (Physical Science) Grade 10-12, "Lanboutegnologie" (Agricultural Technology) Grade 10-12 and Landbouwetenskappe" (Agricultural Science) Grade 10 - 12.
When regard is had to the academic qualifications of the 3rd to 5th Respondents it is abundantly clear that your client's preferred candidate did not demonstrate that the subjects listed herein above form part of his professional qualification (a degree or diploma at tertiary educational level). Neither did any of the other recommended candidates demonstrate that all of the aforementioned subjects form part of their professional qualification. Accordingly, as a minimum, the recommended candidates had to demonstrate that their professional qualifications reflect that they have a basic knowledge of the aforementioned subjects, which their professional qualifications failed to do.
We further wish to draw your attention to section 6 (b) (iii) of the Educators Employment Act, (should be section 6(3)(b)(iii)) which reads as follows:
"In considering the applications, the governing body or the counsel, 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:
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any requirements collectively agreed upon or determined by the Minister for the appointment, promotion or transfer of educators which the candidate must meet"
It is our submission that the First Respondent was correct in declining to appoint any of the recommended candidates on the grounds enumerated above.
Lastly, we submit that, the fact that the 3rd to 5th Respondents were not eliminated at the sifting stage, may possibly have been an oversight and does not therefore translate into them satisfying the minimum requirements of the post.
In addition to the above, we reserve the right to raise any other point which we consider to be relevant. Accordingly, we humbly propose that the applicants withdraw the current application and tender our party to party costs at this stage."
The applicants refused to withdraw this application and a complete set of papers was filed as well as supplementary affidavits by both sides which we, at the hearing of this matter, allowed.
At this stage I pause to mention that it is a matter of concern that the HOD appears to persists in providing catch-all reasons for declining recommendations of SGBs. S6 (3)(b)(iii) covers everything from equity, redress and representivity to qualifications. Requests for more specific reasons have been met with lengthy delays and eventual clarification by the HOD's legal representatives. A similar situation arose in the matters of
2021...
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