Mabandla v Member of the Executive Council for the Department of Education Eastern Cape and another
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Hartle J |
| Judgment Date | 27 April 2023 |
| Citation | 2023 JDR 1401 (ECB) |
| Hearing Date | 26 April 2023 |
| Docket Number | 224/2023 |
| Court | Eastern Cape Division |
Hartle J:
The applicant is a displaced educator, for want of a better description. In 2018 she was appointed as a permanent principal at the Gobintsasa Primary School in Ntabankulu. In 2020 the school was closed for operational reasons and the learners moved to the Khetani Primary School, where she too was initially moved. She was however subsequently deployed at the Bagqozini Primary School, also in Ntabankulu, in a diminished capacity.
She claims that neither she nor the governing body of her disestablished school were afforded an opportunity to make representations as contemplated in the Guidelines for the Rationalisation of Small or Non-viable Schools issued by the Directorate Rural Education under the Education Department ("The 2009 Guidelines"). Her real issue with the process that was adopted relating to the school's unfortunate closure however pertains for present purposes to her own employment interests that were indisputably impacted thereby. The Guidelines, for example, behoved all role players in the rationalisation process to "ensure compliance with all obligations applicable to labour law", and to give recognition inter alia to the position of principals in consequently placing them in suitable posts elsewhere arising from the rationalisation process.
More than two years after the applicant became "displaced" pursuant to the loss of her post for the operational reasons applicable to her disestablished school,
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she was eventually called to a meeting of circuit managers in the Alfred Nzo West district of the ECDoE ("the department"), under which administrative district Ntabankulu falls, in January 2023, and asked to choose a school amongst five specific schools named and identified by the department itself where she might wish to be placed as a principal in lieu of the principal post lost to her by the rationalization process.
She alleges that this meeting was held pursuant to a memorandum issued by the office of the acting DDG: Corporate Services, dated 6th December 2022 ("the Memorandum") that concerned the filling of "promotional posts" subject to a management plan advertised in a 2022 bulletin that were never filled within the prescribed time frame. The Memorandum inter alia (in paragraph 8 thereof) invited the relevant role players in the department to fill principal posts "by placing principals from closed schools." (This appears to be a reference to schools closed due to operational requirements). The applicant's preferred choice amongst the five possibilities held up to her was the Khetani Primary School.
Having made her election, the managers raised no objection to her choice or alerted her to any difficulties that pertained thereto, most especially as to her competence to be placed at the Khetani Primary School, and she assumed that it was a fait accompli, as it were, that she would consequently be appointed principal there.
On 1 March 23 she learned through a principals' WhatsApp group that Khetani Primary School, her choice of placement to remedy the disadvantage to her by the rationalization process, was being "profiled". In education parlance this apparently means that the school has been identified as one with a vacant post that
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requires to be filled. Once "profiled," a formal advertising of the identified vacant post ensues which is then followed by the customary open recruitment processes.
Although nothing formal had been communicated to her since the January 2023 meeting after confirming her expressed preference, she claims to have entertained a legitimate expectation that she would be appointed to the vacancy at the Khetani Primary School offered to her at the meeting, which she understood to be on the basis provided for in the Memorandum. When she heard that the post earmarked for her had however been "profiled" this created a concern for her that her expectation of being appointed to the post would be prejudiced.
Cautiously she approached an attorney who invited the Department of Education (within 30 days of 16 March 2023) [1] to clarify her employment status, more particularly in relation to her reasonable expectation that she would be placed at the Khetani Primary School in the principal's post, which now appeared to be under threat according to the information gleaned by her on the principals' WhatsApp group. Even before engaging the services of an attorney however, she also sought to take up her compromised situation with at least two circuit managers who she claims gave her the "run around" rather than any positive affirmation of her placement in the chosen post.
In any event, it was brought to her attention on 6 April 2023 that the Khetani Primary School principal's post had certainly been included and advertised in the Open Post Bulletin for Principals: Volume 1 of 2023 dated 27 March 2023 ("the Bulletin"), with the closing date for submission of applications for all the advertised posts being on 24 April 2023.
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This prompted the present application which was launched on an urgent basis on the pivot, so to speak - at least in respect of the relief claimed under Part A, of the closing date of 24 April 2023, in which the applicant asks this court to interdict the respondents from recruiting and appointing prospective candidates to the vacant posts (sic) reflected in the Bulletin pending further relief sought under Part B compelling them to comply and adhere to paragraph 8 of the Memorandum dated 6 December 2022 and to give effect to her preference by furnishing her with a letter of appointment as principal of that school.
Notwithstanding the provisions of paragraph 8 of the Memorandum, the applicant's points out the further obligation on...
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