Member of the Executive Council for Education Kwazulu-Natal v Singh

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Ponnan ADP, Meyer JA and Olsen AJA
• Judgment Date: 09 June 2023
• Citation: 2023 JDR 2032 (SCA)
• Hearing Date: 06 March 2023
• Docket Number: 1188/2021
• Court: Supreme Court of Appeal

Olsen AJA (Ponnan ADP and Meyer JA concurring):

[1]

Ms Mayadevi Singh, the respondent, was employed for many years by the Provincial Department of Education, KwaZulu-Natal as an educator. During the period material to this appeal she was employed to teach at a primary school in the department's Umlazi district.

[2]

In July 2011, about 7 years before she would reach the usual compulsory retirement age of 65, the respondent took early retirement. She was entitled to do so. The respondent alleged that she was compelled to that course because she came to suffer from clinical depression as a result of the failure of her employer to take any reasonable steps to prevent the principal of her school, a Mr Padayachee, from victimising her over a long period. But for that, the respondent alleges, she would have worked until age 65, and in the result, is entitled to be compensated by her employer for the income she lost because she did not and could not work for what would have been the last 7 years of her working life.

2023 JDR 2032 p4

Olsen AJA (Ponnan ADP and Meyer JA concurring)

[3]

The respondent instituted action in the KwaZulu-Natal Division of the High Court, Durban (the trial court), claiming such compensation in delict, citing the Member of the Executive Council for Education as the defendant. Given the provisions of s 3(1)(b) of the Employment of Educators Act 76 of 1998, the head of the Provincial Department of Education ought to have been cited as the employer. This was raised in the plea, but it is apparent that the parties decided to overlook that error upon the basis that the de facto defendant is the Provincial Department of Education. I will refer to it as 'the department'.

[4]

After a much delayed and interrupted trial, the court granted judgment in favour of Ms Singh for payment of a sum of just under R1.3 million, interest and costs. (The amount is said to represent the present value of seven years' income.) With the leave of this Court the department appeals against that order.

[5]

The central feature of the case Ms Singh sought to make in her pleadings, and through the presentation of evidence at trial, is that she was victimised by Mr Padayachee. Counsel for the department were content to argue the appeal on the basis that Ms Singh was victimised. They had little choice in the matter, as unfortunately Mr Padayachee died whist the trial was underway, and before he could give evidence. Almost all, if not all, the allegations of victimisation made by Ms Singh could only be answered in a meaningful fashion on behalf of the department by Mr Padayachee.

[6]

Notwithstanding counsel's concession, an understanding of what is meant by 'victimisation' in this litigation is necessary in order to contextualise, in part, the claim that a cause of action was indeed available to Ms Singh, and that it was proved. The account of the complaints comes almost exclusively from Ms Singh's evidence, and may be summarised as follows.

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Olsen AJA (Ponnan ADP and Meyer JA concurring)

(a)

Mr Padayachee took up the post of principal of the school in 2000. Ms Singh had no problems with him in the first two years of his tenure.

(b)

In 2002 it came to Ms Singh's attention that a child had been mistreated by another teacher, and through the head of department, she made a report about the incident. She expected to be told what had become of the matter, despite the fact that her head of department told her that it was not the duty of the principal to report back to her. Ms Singh was called to a meeting in the principal's office where, instead of dealing with the issue, the principal raised what Ms Singh described as petty issues such as the way she dressed, and the time she spent chatting to colleagues, and the like; complaints which, according to Ms Singh, Mr Padayachee could have raised with any number of her colleagues, but did not. Her evidence is to the effect that from this point onwards Mr Padayachee adopted a vindictive attitude to her.

(c)

In March 2003 a meeting was convened to select a head boy and head girl. On 10 March, the principal entered her class and in front of the learners told her that he was going to charge her for breaching confidentiality, presumably in connection with the matter of the selection process underway. He instructed her to see him in his office after school, but it appears that nothing came of the matter.

(d)

In November 2003 Mr Padayachee moderated the English exam paper which Ms Singh had set, and made her redo it, as he regarded it as unsuitable. Although it is not clear from the record, it appears that Ms Singh complains that it was only her English exam paper that was singled out for moderation.

(e)

During 2003 the post of head of department was advertised and Ms Singh was not shortlisted. She lodged a grievance pertaining to Mr Padayachee's participation in the shortlisting process. The outcome was a direction that the process re-commence. The record reveals that the committee dealing with the grievance directed that Mr Padayachee not take part in the process in order to avoid any perception of bias. Notwithstanding this Ms Singh was aggrieved at ultimately not being appointed.

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Olsen AJA (Ponnan ADP and Meyer JA concurring)

(f)

In 2004 Mr Padayachee removed Ms Singh from the science department, notwithstanding that the subject was her speciality. In the result, she had to prepare to teach in new learning areas.

(g)

In 2004 her teaching load was increased substantially and Ms Singh found it difficult to cope with marking. The principal's attitude was that he controlled the allocation of work. In the same year Mr Padayachee stopped sending Ms Singh to workshops.

(h)

In October 2005 the department conducted an investigation into the affairs of the school. According to Ms Singh 'she got locked in for the whole day' with the team conducting the investigation. She asserts that because she gave evidence, the principal excluded her from the awards-day ceremony, and asked her to leave the staff room on 26 October 2005. (The report generated by that investigation was an annexure to the particulars of claim.)

(i)

During 2006 Mr Padayachee ignored Ms Singh altogether, but was nevertheless responsible for allocating her a heavy workload. It seems that he no longer allowed her to run assemblies and continued to exclude her from going to workshops.

(j)

In 2007 she was given the same workload as the previous year. On a Saturday in August, when the educators were supposed to work in order to make up for time lost during a strike, she asked for leave to attend her graduation ceremony. Mr Padayachee was obstructive and the intervention of a senior education manager was required in order for her to attend the ceremony, for which she was late.

(k)

In 2008, her allocated subjects included Afrikaans, which she was not qualified to teach. It does seem that she nonetheless managed to do it. There was also an issue around Valentine's Day. It seems that a circular was sent to the staff, but not her, about some decorations and celebratory refreshments being available in the staff room on 14 February. Ms Singh wrote a letter to Mr Padayachee

2023 JDR 2032 p7

Olsen AJA (Ponnan ADP and Meyer JA concurring)

saying that she was being marginalised. Some days later, the principal opened the letter and read it to the staff.

(l)

In September 2009 a member of Ms Singh's family died and she wished to attend the funeral. She asked a colleague to seek permission for her, and the head of the department called her to say that the principal had said that if she wished to leave at 11 o'clock in the morning, she must produce a death certificate. Ms Singh asked the principal why it was that the same request was not made of other staff. His response was to become aggressive and he told her that if she was not happy, she should leave the school.

[7]

As mentioned earlier the report of the investigation into the affairs at the school undertaken in 2005 was annexed to Ms Singh's particulars of claim. The report records that there were two complainants, Ms Singh and another educator, Ms J Singh. It records also that Mr Padayachee made a series of counter-allegations. The investigation revealed that the staff at the school were divided into two camps, one supportive of Mr Padayachee and the other not. Mr Padayachee's counter-allegations were directed at the camp that did not support him. There was, in addition, a breakdown in the relationship between Mr Padayachee and his deputy. The staff secretary had been marginalised and the deputy principal had been relieved of some of his roles. The report identified 'deep-rooted divisions that exist in the school', as a result of which the discipline of educators had become 'a nightmare for the principal'. The report continued: 'All interventions so far have failed to bring this conflict to an end. Some educators intentionally provoke the principal who easily loses [his] temper'.

[8]

Although they were quoted in full in the particulars of claim and in the judgment of the high court, the recommendations of the investigatory committee did not touch at all on the personal position of Ms Singh, nor indeed of her colleague Ms J Singh. All the recommendations were clearly directed at

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Olsen AJA (Ponnan ADP and Meyer JA concurring)

addressing the divisions amongst the staff at the school. The report made no recommendations which could possibly have been construed by the officials in the department to whom it would be delivered, as a call upon them to attend in particular, or indeed at all, to the relationship between Mr Padayachee and Ms Singh. On the contrary, the finding of the panel was that the problem was a much wider one.

[9]

It is against the above factual background that the central allegations in Ms...