Union of Teachers' Associations of South Africa and Another v Minister of Education and Culture, House of Representatives, and Another; Isaacs and Others v Minister of Education and Culture, House of Representatives, and Another

• Jurisdiction: South Africa
• Judge: Ackermann J and Scott J
• Judgment Date: 10 February 1993
• Citation: 1993 (2) SA 828 (C)
• Hearing Date: 01 February 1993
• Court: Cape Provincial Division

Ackermann, J.:

A This judgment is in respect of two review applications. The application in case No 289/93 (in which the Union of Teachers' Associations of South Africa ('UTASA') is the first applicant and one Vergotine the second applicant) I shall refer to as the 'UTASA B application' and the two applicants as 'UTASA' and 'Vergotine' respectively. The application in case No 268/93 (in which one Isaacs is the first applicant, one Rhoda the second applicant and one Martin the third applicant) I shall refer to as the 'Isaacs application' and the three applicants as 'Isaacs', 'Rhoda' and 'Martin' respectively. In both applications first respondent is the Minister of Education and Culture in the Administration House of Representatives ('the Minister') and the C second respondent the Chief Executive Director, Department of Education and Culture, Administration House of Representatives ('the Director').

At the request of all the counsel in the two applications the applications were not joined but argued separately and successively. Mr Gauntlett SC (together with Mr Arendse) appeared for the applicants in the D UTASA application and Mr John van der Berg (together with Mr Sonn) for the applicants in the Isaacs application. In both applications Mr Kuschke SC (together with Mr R C Hiemstra) appeared for the Minister and the Director.

Because of the nature and urgency of both applications it is convenient E to deal with both applications in one judgment. Because of the nature of the issues involved and the arguments advanced before us, we would have preferred more time to consider these arguments and to formulate our reasons for the conclusion we have arrived at. It is common cause that the applications are urgent and their nature such that in the interests of all the parties as well as the public interest judgment ought to be delivered F as speedily as possible.

Both cases are essentially concerned with the validity of a decision taken by the Minister shortly before 3 December 1992 ('the Minister's revocation 'decision') and embodied in a circular No 67/92 dated 22 December 1992 ('the December revocation circular') and issued under the G signature of the Director. It is common cause that in making this decision the Minister purported to act by virtue of his power to appoint teachers vested in him by s 8(2) of the Coloured Persons Education Act 47 of 1963, ('the Act') which provides:

'Notwithstanding anything to the contrary contained in any other law but H subject to the provisions of this Act, the power to appoint any person to any post included in the establishment of any State school, school of industries or reform school, or any State-aided school other than a State-aided vocational school, and to promote, transfer or discharge any person occupying any such post, shall be vested in the Minister.'

The December revocation circular was addressed inter alia to all rectors I and principals of colleges and schools and all recognised teachers' organisations in the Department of Education and Culture, Administration House of Representatives, and reads as follows:

'Non-appointment of substitutes for teachers who utilise leave during 1993

Financial considerations have placed the Department in the invidious position of having to deviate from past practices and not being able to J appoint substitutes for

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A teachers who utilise leave next year. This is unfortunately contrary to a previous undertaking that all announced saving measures have been retracted.

In the past, the Department could always apply for additional funds to B augment its budget but with the poor national economy this is no longer possible. All efforts to obtain additional funds have been unsuccessful.

The Department is therefore compelled to adhere to its statutory obligations to stay within the limitations of the approved budget. The Department in effect has no choice but to counter the shortfall in its budget by extraordinary means.

In view of the aforegoing factual situation the Department announces, with regret, that it is unable to fully implement the undertaking to retract the saving measures. The measure not to appoint substitutes for teachers who utilise leave must unfortunately be implemented. Accouchement C leave is however excluded from this measure and substitutes may still be appointed for teachers who are on approved accouchement leave.

The nominations which have already been received in respect of substitutes for next year can therefore not be processed and will be returned to the nominating bodies.

D The assurance is given that this saving measure will be retracted as soon as circumstances are favourable and the Department trusts that all interested parties and more especially principals will be sympathetic and will co-operate in the interest of education.'

The main relief sought in both applications is an order reviewing and setting aside the Minister's revocation decision as embodied in the E December revocation circular.

Since final relief is being sought in motions proceedings, the rule in Stellenbosch Farmers' Winery Ltd v Stellenvale Winery (Pty) Ltd 1957 (4) SA 234 (C) at 235E-G (subject to the clarification and qualification in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) F ) must be applied, ie that where there is a dispute of fact on the papers final relief should only be granted if the facts stated by the respondent together with the admitted facts in the applicant's affidavit justify such an order, or where it is clear that the facts, though not formally admitted, cannot be denied and must be regarded as admitted.

Vergotine is the principal of Ravensmead Senior Secondary School, G president of the Cape Professional Teachers' Association and also a member and president of UTASA. A substantial number of teachers and principals under the Minister's control are members of UTASA through their respective provincial teachers' associations which are affiliated to UTASA. The precise number of teachers who are members of UTASA is disputed. Vergotine H says 65% whereas the Minister and the Director say approximately 45%. It is not disputed however that a substantial majority of principals of both primary and secondary schools under the Minister's control are members of UTASA. UTASA is a staff association which is recognised by the Department as well as by the Department of National Education and it is clear that at all material times the Minister and the Director have been negotiating I with UTASA as the respresentative of principals and teachers working for the Department. During or about August 1992 it became clear that the Department of Education and Culture: House of Representatives was in danger of exceeding its approved budget for the 1992/1993 financial year (ending on 31 March 1993) by an amount of approximately R155 million. J Analysis indicated that approxi

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A mately 85% of the Budget was being applied to salaries and employment benefits and the Department was of the view that this was the obvious area in which economies should be introduced. By August 1992 the Department had been instructed by treasury to remain strictly within its budget and that steps would be taken against the accounting officer if this instruction B went unheeded. Expenditure incurred by the Department which results in the total amount appropriated for the Department's vote being exceeded would, by virtue of the provisions of s 33 of the Exchequer Act 66 of 1975, constitute an unauthorised expenditure. Subsection (4) provides that unauthorised expenditure which has not been authorised or validated shall, C if the accounting officer cannot or is unwilling to recover the amount concerned from the beneficiary or the person responsible for the unauthorised expenditure, be recovered by the Treasury from the accounting officer.

One of the first cost-saving measures contemplated by the Department was a scheme for the early retirement of teaching personnel. During August D 1992 discussions were held between the Minister and, inter alia, UTASA about these so-called 'early retirement packages'. Apart from this aforementioned cost-saving measure the Department also gave consideration to many other cost-saving measures, including the non-appointment of replacements for teachers who would be going on leave during the first term of 1993. This single measure ('the non-appointment measure') would E result in a cost saving of some R17 million before the end of the 1992/1993 financial year. After careful consideration the Department decided to proceed with these additional measures as well. (These additional measures are detailed in a letter of 6 November 1992 (annexure ARFV7 to UTASA's founding affidavit) which will be adverted to more fully later.)

F It is not clear when the Department came to its decision regarding these additional measures (including the non-appointment measure) but the Minister and Director admit that the decision was arrived at without UTASA being consulted thereon or pre-cognised thereof. It is common cause that the decision only came to UTASA's notice during a meeting it had with the G Minister on 22 September 1992. At this meeting the Minister advised UTASA that the budget crisis ('begrotingskrisis') would only apply for the first three months of 1993.

The announcement of the decision gave rise to much dissatisfaction in the teaching profession concerned. Discussions were held between the Department and various teachers' organisations (including UTASA). At these H meetings it was impressed on the teachers' representatives that the cost-saving measures were essential in order to balance the Department's budget and that the prospect of obtaining additional funds was remote. Emotions nevertheless still continued to run high and certain teachers' organisations (unspecified in the answering...