South African Council for Educators v Scheepers and others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Baqwa AJ, Kollapen J, Madlanga J, Majiedt J, Mathopo J, Mbatha AJ, Mhlantla J, Rogers J and Tshiqi J
• Judgment Date: 12 July 2023
• Citation: 2023 JDR 2524 (CC)
• Hearing Date: 17 November 2022
• Docket Number: CCT 127/22
• Court: Constitutional Court

Baqwa AJ (Kollapen J, Madlanga J, Majiedt J, Mathopo J, Mbatha AJ, Mhlantla J, Rogers J and Tshiqi J concurring):

Introduction

[1]

This is an application for leave to appeal by the South African Council for Educators (SACE) against the judgment and order of the High Court, Free State Division, Bloemfontein. [1] The matter involved SACE, on the one hand, and Mr Deon Scheepers (first respondent), the Head of the Department of Education (HOD), Free State Province N.O. (second respondent) and the Member of the Executive Council for Education Free State Province N.O. (third respondent), on the other.

[2]

The High Court’s judgment concerned mainly the issue whether SACE had conducted an investigation as required by law prior to referring Mr Scheepers to a disciplinary hearing or whether it had just done a desktop assessment of the report by an Independent Task Team (ITT) appointed by the HOD and thereafter made its decision. [2]

2023 JDR 2524 p3

Baqwa AJ (Kollapen J, Madlanga J, Majiedt J, Mathopo J, Mbatha AJ, Mhlantla J, Rogers J and Tshiqi J concurring)

[3]

This was despite the work done by a panel appointed by SACE to do an investigation. The High Court found that the panel had merely gone through the motions to create an appearance of compliance with the provisions of the South African Council for Educators Act (SACEA), [3] in that it simply confirmed the information contained in the ITT report. [4]

Legislative framework

[4]

The South African Schools Act (SASA) [5] provides for a uniform system for the organisation, governance and funding of schools. Section 2(2) of the SASA provides for the Member of the Executive Council and the HOD to exercise any power conferred upon them under the SASA, after taking full account of the National Education Policy Act (NEPA). [6]

[5]

The discipline of educators is dealt with in the Employment of Educators Act (EEA). [7] Section 18(2) of that Act provides:

“If it is alleged that an educator committed misconduct as contemplated in subsection (1), the employer must institute disciplinary proceedings in accordance with the disciplinary code and procedures contained in Schedule 2.”

[6]

In the present case (that is, in relation to Mr Scheepers), the employer contemplated in the above provision is the HOD, the second respondent. Whilst no impropriety is alleged against the HOD in this application it is apparent from the founding affidavit that the HOD expressed disquiet at the conduct of SACE regarding its alleged interference with the process implemented by the HOD to deal with the

2023 JDR 2524 p4

Baqwa AJ (Kollapen J, Madlanga J, Majiedt J, Mathopo J, Mbatha AJ, Mhlantla J, Rogers J and Tshiqi J concurring)

complaints raised against Mr Scheepers in his capacity as the school principal employed by the HOD.

[7]

SACE is a juristic person in terms of the SACEA, and the objects of the Act are to provide for the registration of educators, to promote the professional development of educators and to set, maintain and protect ethical and professional standards of educators, by means of the functioning of SACE.

[8]

The discipline of educators is dealt with in section 14 of the SACEA. The primary objective is to maintain and promote professional ethics. Section 14(2)(e) provides:

“(2)

The disciplinary committee [of the Council] must—

. . .

(e)

on the basis of a recommendation of the relevant panel, recommend a finding and appropriate action, if any, to the council.”

[9]

Section 14(2)(d) of the SACEA requires the disciplinary committee to ensure a fair hearing, in accordance with a procedure determined by SACE in terms of section 5(c)(ii). [8] Section 5 of the SACEA deals with the powers and duties of SACE. Section 5(c) deals specifically with professional ethics, and section 5(c)(i) provides that SACE must compile, maintain, and from time to time, review the code of professional ethics for educators who are registered or provisionally registered with SACE.

[10]

Clause 3.5 of SACE’s Code of Professional Ethics (the Code), under Disciplinary Procedures, provides that SACE’s disciplinary committee must refer an alleged breach of the Code to an investigating panel for an investigation.

[11]

Section 14(3) of the SACEA makes provision for the investigating panel to make a recommendation to the disciplinary committee regarding a finding, if any, for

2023 JDR 2524 p5

Baqwa AJ (Kollapen J, Madlanga J, Majiedt J, Mathopo J, Mbatha AJ, Mhlantla J, Rogers J and Tshiqi J concurring)

disciplinary action concerning a complaint referred to it. [9] Of relevance is the wording of clause 3.9 of the Code which confers on the disciplinary committee a specific but circumscribed discretion. The disciplinary committee may only refer a matter for hearing by a disciplinary panel if the investigating panel is satisfied that there is sufficient evidence of breach of the Code by an educator.

[12]

An outline of the investigative machinery that the investigating panel may trigger in aid of its investigation is provided for in clause 3.6 of the Code. The investigating panel may—

“3.6.1

interview complainants and other possible witnesses;

3.6.2

subject to clause 3.7 . . . interview [an] educator who is alleged to have breached the code;

3.6.3

notify the educator being investigated of the alleged breach and, subject to clause 3.7, give the educator an opportunity to respond within the period specified in that notice;

3.6.4

gather evidence relevant to the alleged breach; and

3.6.5

if necessary, cause summons to be served on any person who may assist the panel in its investigation as contemplated in section 14(4) of the Act.”

[13]

Because clause 3.6 makes reference to clause 3.7, I think it desirable to quote clause 3.7 as well:

“3.7

Before interviewing an educator as contemplated in clause 3.6.2, and in any notice contemplated in clause 3.6.3. the investigator/s must warn the educator:

3.7.1

of the educator’s right against self-incrimination; and

3.7.2

that any admission or explanation given by the educator may be used as evidence against the educator or at the disciplinary hearing.”

2023 JDR 2524 p6

Baqwa AJ...