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This is the sole order that forms the subject matter of the appeal before us. It determines the scope of the appeal because in our law an appeal ordinarily lies against orders only.

The proposition is so trite that no authority need be cited for it. I have read the judgment prepared by my Colleague Mhlantla AJ the main judgment.

I agree that leave to appeal must be granted and that the appeal ought to succeed. However, I do not agree that the granting of the second and third declaratory orders is justified.

In my respectful view the question whether the Head of Department acted in a procedurally fair manner in issuing the instruction to the principal and in placing the learner in the school without giving the school the opportunity to make representations on the tenth-day statistics was not an issue raised in this Court by any of the parties.

Before us the sole issue was whether the order issued by the Supreme Court of Appeal was wrong. The parties themselves focused on that order.

The applicants challenged the order while the school defended it. In these circumstances I am unable to support the second and third declarators issued in the main judgment, even in the light of procedural fairness having been mentioned in argument.

This is so because procedural fairness was mentioned in the context of the complaint made by the school in its papers. It asserted that the principal was denied the opportunity to give her reasons for refusing to admit the learner.

It will be remembered that here we are concerned with motion proceedings. It is a fundamental principle of our law that the notice of motion and founding affidavit, together with its annexures, constitute pleadings and evidence which must justify the grant of the relief sought.

In Skjelbreds Rederi, 74 this principle was stated in these terms: Another basic rule in application proceedings is that the facts necessary to prove a claim must appear in the founding affidavit and its supporting documents.

Hence the proposition that an applicant must stand or fall by its petition and the facts alleged in it. It is now convenient to refer to allegations in the founding affidavit sworn to by the Deputy Chairperson of the governing body.

In relevant part she states:. This refers to the number of learners in the school on the tenth day of the new school year and is dealt with more fully hereunder.

He then instructed the school to admit the learner without delay. I respectfully submit to the above Honourable Court that this could not refer to an appeal process as it is envisaged in the relevant education legislation.

As I understand it, such an appeal needs to be resolved within 14 days after the appeal was lodged.

This is a reference to statistics kept by the Gauteng Department of Education of student numbers on the tenth day of the new school year.

It now appears to be used by the Department to compare the attendance of a particular school with what it believes to be the capacity for each school.

I humbly submit that this statistic cannot override the admission policy of the First Applicant. The reason furnished for the contention is that the decision-maker acted beyond his powers.

The pleading does not refer at all to procedural fairness. In fact, barring the recordal of the relief set out in the notice of motion, the founding affidavit does not mention the failure to be heard at all.

Even in that regard, the school did not assert that it was denied a hearing in relation to the use of the tenth-day statistics. The claim for relief was framed in these terms:.

Apart from the fact that this claim was not properly pleaded in that no facts whatsoever were alleged in the founding affidavit to support it, there is undisputed evidence on record showing that the principal did furnish reasons for refusing admission to the Head of Department.

Indeed the main judgment finds that the principal submitted her reasons in November Therefore the claim for procedural fairness could not succeed even if it had been properly pleaded.

It follows that the High Court was right in dismissing this claim on the basis that the principal was afforded the opportunity to furnish reasons for her decision.

Without a doubt the pleaded claim for procedural fairness has no merit. This is the core of the differences between this and the main judgment.

Declarator on procedural fairness. In our system of law the issues determined in any court are defined in the pleadings by the parties themselves.

Adjudication of issues is undertaken at the instance or request of parties. In other words, it is the parties who decide which cause of action they would like to pursue in litigation.

Where a particular cause of action has been chosen and pleaded by an applicant or plaintiff and it turns out that the evidence adduced in its support does not sustain the action a court cannot, of its own accord, choose a different cause of action and find in favour of a losing litigant.

This is simply not open to any court. This principle was affirmed by this Court in many decisions. If, however, the pleadings, properly interpreted, establish that the applicant is asserting a claim under the [Labour Relations Act], one that is to be determined exclusively by the Labour Court, the High Court would lack jurisdiction.

An applicant like Mr Gcaba, who is unable to plead facts that sustain a cause of administrative action that is cognisable by the High Court, should thus approach the Labour Court.

The Court did not, of its own accord, decide the matter on the basis of the unfair labour practice claim, even though the facts pleaded sustained this claim.

The High Court dismissed the challenge and the applicant sought leave to appeal to this Court. This Court is obliged to follow them until they are overturned.

On this point the Court in Gcaba said: This is essential for the rule of law. A highest court of appeal — and this Court in particular — has to be especially cautious as far as adherence to or deviation from its own previous decisions is concerned.

It is the upper guardian of the letter, spirit and values of the Constitution. But it is young; so is the legislation following from it.

As a jurisprudence develops, understanding may increase and interpretations may change. At the same time though, a single source of consistent, authoritative and binding decisions is essential for the development of a stable constitutional jurisprudence and for the effective protection of fundamental rights.

This Court must not easily and without coherent and compelling reason deviate from its own previous decisions, or be seen to have done so.

But there is no evidence on record supporting this finding. This is at odds with a principle entrenched in our law that any relief granted by a court must be based on established facts.

This can hardly be a basis for holding that the school was denied the opportunity to make representations on the statistics.

That was simply not the case they were called upon to meet in any of the courts before which the matter served. Both in the opposing affidavit and written argument, the school asked for the dismissal of the application for leave and nothing more.

In our law a court ordinarily grants relief at the instance or request of litigants. Yet here the declaratory order on procedural unfairness is granted in circumstances where it was not requested.

More so, when the fact that this order is not supported by the proven facts is taken into consideration. Writing for the majority Chaskalson CJ said: I am unable to agree with this approach.

The general assistants at the appellant schools are not parties to this litigation. Although reference is made to the fact that the scheme is likely to lead to their retrenchment, no claim was made by the appellants on behalf of the employees.

The relief the appellants seek is relief designed to relieve them of the burden of continuing to employ the general assistants, and of having to pay the costs of retrenchments that might take place.

There is no evidence on record as to the terms and conditions of service of the general assistants of the appellant schools, other than that they are different to those of the general assistants employed by the [Western Cape Education Department].

No averment is made anywhere in the affidavits lodged on behalf of the appellants that the general assistants at their schools have any rights against the [Western Cape Education Department], or that they believe that they had such rights.

In this regard the Chief Justice said:. Although he concludes that the appellants are not entitled to the relief claimed by them, he would have made a declaration that the rights of the appellants to just administrative action have been infringed and would have directed the parties to submit further affidavits and argument dealing with the appropriate relief in the light of the finding made by him.

Due to the course that the litigation took, the implementation of the scheme was not raised in the founding affidavits and no relief was sought in that regard in the notice of motion.

The details of the scheme were placed on record by the [Western Cape Education Department] in [its] answering affidavits lodged on 14 February The appellants, in replying affidavits lodged some two months later on 17 April , complained that they had not been included in the negotiations that had taken place between the [Western Cape Education Department] and the trade unions.

The relief they sought, however, as expressed in the affidavit of Mr van der Merwe, the chairman of the first appellant, was that: At that point negotiations between respondents and the trade unions, if necessary, will be meaningful.

I am therefore unable to agree with Ngcobo J that the appellants are entitled to relief in the form proposed by him.

Meaningful engagement and cooperation. It is asserted that the Department exercised its powers with no regard to the role of the governing body.

Therefore what is said on this aspect does not form part of the ratio decidendi. The ratio comprises the reasoning necessary for the decision of the issues before a court.

What is stated in the course of articulating that reasoning but which is not essential to the determination of the issue at hand constitutes obiter dicta.

The obiter dicta have no binding authority. This was not done as part of addressing the systemic capacity problems but as resolution of a particular complaint.

But even in the context of systemic capacity problems, the Head of Department can hardly be accused of failing to engage with the school.

None of them produced a positive result because the school refused to relax its admission policy and admit the learner, even though that policy had been relaxed in other cases.

The meeting was nothing but a plea to the school and the First Applicant to relax its policies in order to grant the learner a place in the school for In relevant part it reads:.

Rivonia Primary provide Mrs. Cele with a reviewed number. Our instructions are that the request to review the received waiting list number was rejected with the contempt it deserves.

Rivonia Primary and [its governing body], will not be part of any underhand activities. These facts illustrate that even in the face of scorn, the Department was willing to cooperate with the school in seeking an amicable solution to the problem.

In the meeting of 30 November when their plea failed, the officials from the Department suggested that they would place the learner at an alternative school if her parents agreed.

Apparently they did not agree, hence the impugned decision by the Head of Department. The assertion that the Head of Department adopted the heavy-handed approach to the issue loses sight of what really happened.

Faced with a contemptuous governing body and an intransigent principal, it is difficult to imagine that the Head of Department could have acted differently.

The principal associated herself with the stance adopted by the governing body. The main judgment indicates that this principle is distilled from certain paragraphs in Ermelo.

Instead these paragraphs deal with the revocation of a function entrusted to a school governing body. In these paragraphs Ermelo addresses the exercise of power to revoke the authority to make policy.

Ermelo states that the power to revoke must be exercised on reasonable grounds and in accordance with procedural fairness required by section 22 2 of the Schools Act.

Therefore, these paragraphs do not support the principle formulated in the main judgment. But as already illustrated paragraph 73 deals with revocation of power which must be done on reasonable grounds and in a manner that complies with the procedural fairness in section 22 2.

In paragraph 73, Ermelo states:. The power to revoke will have to be exercised on reasonable grounds.

In addition the [Head of Department] must, in revoking the function, observe meticulously the standard of procedural fairness required by section 22 2 and, in cases of urgency, by section 22 3.

I have illustrated that Ermelo was interpreted incorrectly in the main judgment, as it was in Welkom. I may add that the judgment relied on in Welkom does not, in my view, constitute a majority judgment.

In my opinion none of the three judgments amounted to a majority judgment. Instead there is an order in that case which was supported by a majority but for different reasons.

To require the Head of Department to comply with such policy would be at odds with section 2 of the Constitution. The issues in that case were whether the Head of Department had the power to withdraw a language policy adopted by the school governing body and if so, whether the power of withdrawal had been properly exercised.

As to the first issue, this Court overturned a finding by the Supreme Court of Appeal and held that the Head of Department had such power.

The Supreme Court of Appeal had arrived at a different finding. Regarding the second issue, the Court held that section 25 of the Schools Act, on which the Head of Department relied, did not empower him to withdraw the policy in issue.

For the First and Second Respondents: For the First and Second Amici Curiae: For the Third Amicus Curiae: And therefore, an unequal access to education entrenches historical inequity since it perpetuates socio-economic disadvantage.

Another version of the policy was adopted by the Rivonia Governing Body in August , which states: According to the school, the difference between the two versions of the policy is explained by the fact that the first did not include an accounting of Grade 0 learners, whereas the second did.

The letter from the principal reads in relevant part: These amended regulations are not before this Court and are not relevant for the purposes of these proceedings.

I have perused all the documents submitted to me and wish to note the following: Cele approached the HOD for assistance in this matter. You are hereby instructed to enrol [the learner] to grade one at Rivonia Primary School without delay.

The principal nonetheless received a written notification after the Supreme Court of Appeal decision indicating that the sanction would be implemented.

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Since the required guarantee was not forthcoming, the Board granted a number of extensions to Pinnacle Point to enable it to comply with the precondition.

Eventually, on 5 February , the Board, conscious of its public duty and its obligations to Akani, sent a letter to Pinnacle Point, setting a deadline for 11 May.

The deadline was not met, mainly due to the negligence or incompetence of persons attached to Pinnacle Point. Some factual issues raised in the founding affidavit have not been persisted in.

However, largely due to the nature of the defence raised by Akani in its answering affidavits, the central question became one of legality and because of what follows it will be unnecessary to rule on the fairness of the Board's resolution; nevertheless, my prima facie assessment is that if regard is had to all the circumstances the Board acted fairly and properly.

This also applies to the separation of powers between the legislature and the executive at the national and provincial level.

Concerning the latter, the Constitution s provides that the legislative authority of a province is vested in its provincial legislature and confers on the provincial legislature, i a, the power to pass a constitution and legislation for its province with regard to any matter within a functional area listed in Schedule 4 i e functional areas of concurrent national and provincial competence, which includes gambling in general and casinos in particular.

The two Constitutions do not use the same nomenclature: The provincial Act was assented to before the Constitution and its date of commencement postdates that of the Constitution but that does not affect this judgment.

The structure of this Act and, particularly, s 13 makes it clear that the control over gambling vests in independent boards at national and provincial level and that political interference in the process is to be avoided cf Poswa v The Member of the Executive Council Responsible for Economic Affairs Environment and Tourism Respondent , an as yet unreported judgment of this Court of March Section 81 authorizes the responsible member of the executive council now the minister of the provincial cabinet to make regulations relating to a number of matters and s 82 permits the Board to make rules relating to the exercise of its powers and the performance of its duties.

The source of the minister's power to have done so is not apparent. Akani's answer to Pinnacle Point's application was based upon this policy determination: It may be mentioned that once a party loses its status as successful applicant, the runner-up takes its place as a matter of course.

Holding that the seven day period was peremptory, the court of first instance upheld the argument and dismissed Pinnacle Point's application.

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Akani V Pinnacle Point Casino Video

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Gym The Hotel provides an on- site gym. Available Rooms 2 Bedroom Lodge Rooms: The provincial Act was assented to before the Constitution and its date of commencement postdates that of the Constitution but that does not affect this judgment.

The structure of this Act and, particularly, s 13 makes it clear that the control over gambling vests in independent boards at national and provincial level and that political interference in the process is to be avoided cf Poswa v The Member of the Executive Council Responsible for Economic Affairs Environment and Tourism Respondent , an as yet unreported judgment of this Court of March Section 81 authorizes the responsible member of the executive council now the minister of the provincial cabinet to make regulations relating to a number of matters and s 82 permits the Board to make rules relating to the exercise of its powers and the performance of its duties.

The source of the minister's power to have done so is not apparent. Akani's answer to Pinnacle Point's application was based upon this policy determination: It may be mentioned that once a party loses its status as successful applicant, the runner-up takes its place as a matter of course.

Holding that the seven day period was peremptory, the court of first instance upheld the argument and dismissed Pinnacle Point's application. By contrast, this provision imposes detailed and strict requirements in relation to financial guarantees; consequently, the determination is invalid.

See par 13 to 15 of the reported judgment. It appears to me to serve little purpose to quote dictionaries defining the word.

To draw the distinction between what is policy and what is not with reference to specificity is, in my view, not always very helpful or necessarily correct.

Any course or program of action adopted by a government may consist of general or specific provisions. Because of this I do not consider it prudent to define the word either in general or in the context of the Act.

I prefer to begin by stating the obvious, namely that laws, regulations and rules are legislative instruments whereas policy determinations are not.

As a matter of sound government, in order to bind the public, policy should normally be reflected in such instruments.

Policy determinations cannot override, amend or be in conflict with laws including subordinate legislation. The Supreme Court of Appeal accepted that the Gauteng HOD, acting through the relevant principal, is responsible for the administration of the admission process.

But the Court reasoned that this must necessarily be done in accordance with the admission policy of the school governing body. Having determined its admission policy, it remains for the Rivonia Governing Body to apply it.

It also considered Regulation 13 1 a , which gives the Gauteng HOD the authority to set aside the decision of the principal before the appeal.

All of this, held the Court, had to be done in accordance with the admission policy. The Court held that, if the Gauteng Regulations purported to vest the Department with the power to compel a school to admit learners in excess of the capacity fixed in the admission policy, the Regulations would be contrary to the statute.

This, held the Court, is completely unrelated to the admission policy of a school dealt with in section 5 of the Schools Act and to the authority to override it.

Further, the Court commented that it would be inappropriate for the Department to be vested with a power to use the additional capacity at Rivonia Primary, because that capacity had been created through additional funds raised by the Rivonia Governing Body.

It would be a disincentive for parents to contribute to school funds if the increased capacity created by these funds could be used to accommodate more learners than the Rivonia Governing Body wanted to admit.

The Department approached this Court seeking leave to appeal against the judgment and order of the Supreme Court of Appeal. According to the applicants, the Supreme Court of Appeal erred in its interpretation of the provisions of the Schools Act.

Whilst the applicants no longer contest that the governing body of a school is entitled to determine capacity as part of its admission policy, they submit that the power vested in governing bodies by section 5 5 should not be overstated.

They contend that, although the governing body makes admission policies, the Schools Act and provincial legislation make it clear that a decision to reject a learner taken at school level is never final, but is rather subject to confirmation by the Department.

Further, the Department is under a constitutional and statutory obligation to ensure that the existing public-school infrastructure in the province is utilised as efficiently as possible.

The Department cannot allow a situation where some public schools operate at levels considerably below the capacity that their infrastructure can and should support, while other public schools are overcrowded and some learners are unable to find places.

In any event, the Gauteng HOD did not have the right simply to ignore the admission policy and instruct the principal to admit the learner.

Further, the respondents emphasise that the scheme of the legislation provides other mechanisms through which the Department should be dealing with the problem of placing additional learners in public schools.

There is no evidence that the Department attempted to use these mechanisms. Leave to appeal and issues for determination.

It is clear that this matter raises important constitutional issues concerning the education of children, the determination of the roles and powers of various stakeholders in the governance of schools and the lawful exercise of those powers.

There are three material issues for determination by this Court. The first is whether the Gauteng HOD was vested with decision-making power in relation to the admission of learners to public schools.

If so, the second question is whether the Gauteng HOD was empowered to depart from the admission policy of the Rivonia Governing Body and admit the learner contrary to the capacity determination in that policy.

The determination of the first issue requires a consideration of the relevant statutory context, which is where my analysis begins. The core of this matter requires a consideration of the respective roles of a school governing body and a provincial department in determining admissions to, and the capacity of, a school.

The entry point into this enquiry is the Schools Act. The primary purpose of the Schools Act is to provide for the organisation, governance and funding of schools and to give effect to the constitutional right to education.

The Schools Act envisages that public schools are run by a three-tier partnership consisting of: As this Court stated in Ermelo:.

The national government is represented by the Minister for Education whose primary role is to set uniform norms and standards for public schools.

The provincial government acts through the MEC for Education who bears the obligation to establish and provide public schools and, together with the Head of the Provincial Department of Education, exercises executive control over public schools through principals.

Parents of the learners and members of the community in which the school is located are represented in the school governing body which exercises defined autonomy over some of the domestic affairs of the school.

Following the three-tier approach, when the Schools Act addresses issues of admissions and capacity, it does so with reference to national government, provincial government and school governing bodies.

At school level, the governing body is responsible for determining the admission policy of that school. This is provided for in section 5 of the Schools Act, which reads in relevant part:.

It is immediately clear from section 5 5 that the governing body of a school determines the admission policy. That this may include a determination as to the capacity of the school is no longer a contentious point between the parties.

And it is significant that school governing bodies are afforded this role. As the Onderwysersunie emphasised before us, the governing body is in a position to have regard, in an admission policy, to a range of interconnected factors relating to the planning and governance of the school as a whole.

However, this is only the starting point. In terms of these provisions, an application for the admission of a learner to a public school is made to the Department in a manner determined by the head of department , 31 and it is the head of department who is responsible for informing a parent of a refusal of an application and the reasons for it.

In terms of the Schools Act, the implementation of the admission policy at the school level is the responsibility of the principal, acting under the authority of the head of department.

Thus, while the school governing body determines admission policy, individual decisions on admission are taken only provisionally at school level, by the principal acting under the authority of the head of department.

Insofar as applicable provincial law is concerned, the Gauteng Regulations are pertinent. The Gauteng HOD would be required either to confirm or to set aside the decision made by the principal.

This matter is the latest instalment in a trilogy of school-related cases in this Court which, at their heart, concern the powers of a provincial department in relation to policies adopted by school governing bodies.

The Court held that the head of department acted unlawfully, in that section 25 of the Schools Act could not properly be invoked in the circumstances.

They emphasised that the parties had failed to engage with each other in good faith, to uphold the principles of co-operative governance, and to comply with their concomitant duty to avoid litigation.

Distilling the core of these judgments, the principles that have emerged from the case law can be set out as follows:. Where the Schools Act empowers a governing body to determine policy in relation to a particular aspect of school functioning, a head of department or other government functionary cannot simply override the policy adopted or act contrary to it.

This is an essential element of the rule of law. Further, given the partnership model envisaged by the Schools Act, as well as the co-operative governance scheme set out in the Constitution, the relevant functionary and the school governing body are under a duty to engage with each other in good faith on any disputes, including disputes over policies adopted by the governing body.

The engagement must be directed towards furthering the interests of learners. What then of the present debacle? The applicants submit that an admission policy is not law, but merely policy.

As such, it guides decision-making but cannot bind the Department inflexibly. The Gauteng HOD was therefore entitled, when exercising his constitutional and statutory powers, to depart from a capacity determination provided for in the admission policy.

The school submits that interpreting Regulation 13 1 to afford the Gauteng HOD the power to act contrary to the admission policy would result in a conflict between national legislation the Schools Act and the National Education Policy Act 44 on the one hand, and provincial delegated legislation on the other.

It contends that the relevant national statutory instruments envision that the governing body of a school is responsible for the implementation of its admission policy, whereas the Department is merely responsible for the administration of the admission policy process.

As my analysis of subsections 5 7 to 9 above demonstrates, 45 I am not persuaded by this view. Rather, the scheme of the Schools Act in relation to admissions indicates that the Department maintains ultimate control over the implementation of admission decisions.

This finding — that the Gauteng HOD did have the power to admit a learner who had been refused admission to the school — is a key distinguishing factor from the circumstances in Welkom.

That a policy serves as a guide to decision-making and cannot bind the decision-maker inflexibly was well expressed in MEC for Agriculture v Sasol Oil , 47 where the Supreme Court of Appeal held:.

In Akani v Pinnacle Point Casino 50 the relationship between policy and legislation was soundly expressed as follows:. As a matter of sound government, in order to bind the public, policy should normally be reflected in such instruments.

Policy determinations cannot override, amend or be in conflict with laws including subordinate legislation. Otherwise the separation between Legislature and Executive will disappear.

In conclusion, the general position is that admission policies must be applied in a flexible manner.

If there were good reasons to depart from the policy, it was always open to the principal or the Gauteng HOD to do so. The Supreme Court of Appeal therefore erred when it concluded that the Schools Act placed admission decisions squarely in the hands of the Rivonia Governing Body and that the Gauteng HOD could not override the admission policy.

However, a decision to overturn an admission decision of a principal, or depart from a school admission policy, must be exercised reasonably and in a procedurally fair manner.

The first is the need to eradicate patterns of racial discrimination and to address the consequences of past discrimination which persist in our society, and the second is the obligation of procedural fairness imposed upon the government.

Both principles are based on fairness, the first on fairness of goals, or substantive and remedial fairness, and the second on fairness in action, or procedural fairness.

A characteristic of our transition has been the common understanding that both need to be honoured. It is to the analysis of procedural fairness that I now turn.

It has not been contested, and rightly so, that the decision of the Gauteng HOD to admit the learner in terms of Regulation 13 1 a constitutes administrative action and that the Department has a duty to act fairly.

In this regard, the Department argues as follows:. It would have been wholly impractical to have afforded the learner and the school a dedicated hearing in each of these thousands of cases.

In addition, the Department contends that there were no special circumstances in this case requiring any further consultation with the school. This is because the Department and its representatives had already consulted with the school from September to November It is well established that the requirements of procedural fairness must be determined flexibly, having regard to the facts of the particular case.

Indeed as this Court recognised in Joseph: Administrative efficiency is an important goal in a democracy, and courts must remain vigilant not to impose unduly onerous administrative burdens on the State bureaucracy.

However, for the reasons that follow, it is plain to me that the Gauteng HOD was required to go further in the circumstances of this case. First and most important: Ideally this should take place before the school year has begun.

The steps should be taken well ahead of the beginning of an academic year. However, the circumstances of this case demonstrate a significant departure from what may have been expected in the normal course.

Almost four weeks into the school year, the dictates of fairness required affording the school an opportunity to address the Gauteng HOD on the impact that such a placement would have on factors such as the quality of education of other learners at the school, access to resources for the learner herself, and the time that may have been required to accommodate the learner effectively.

This opportunity was never afforded to the school. There was a dispute on the papers regarding the details of that meeting. It came as a rude shock to the school, which had already settled into the school year thinking the matter had been resolved.

This is not to say that the Gauteng HOD was not entitled to exercise his power when he did. But the circumstances affect what the demands of procedural fairness were when he made his final decision.

As I see it, the Gauteng HOD should have afforded the school an opportunity to make representations and respond to the tenth-day statistics report, before the learner was forcibly placed in the school.

In the result, I find that the decision by the Gauteng HOD was not exercised in a procedurally fair manner. Apart from the specific procedural fairness flaws in the circumstances of this case, it is necessary to emphasise that, in disputes between school governing bodies and national or provincial government, cooperation is the required general norm.

Such cooperation is rooted in the shared goal of ensuring that the best interests of learners are furthered and the right to a basic education is realised.

Both provincial government and individual schools have to grapple with systemic capacity problems and their impact on education. And they play an important role in improving that quality by supplementing state resources with school fees.

However, the needs and interests of all other learners cannot be ignored. As was recognised in Ermelo:.

At the provincial level, government is under an obligation to ensure that there are enough school places for every child to attend school.

However, this obligation must, as the Onderwysersunie submitted, take into account the fact that determination of capacity is a complex process that applies not only to the school as an entity, but also to each and every grade and class within the school.

It involves a consideration of a range of interwoven factors relating to the planning and governance of the school as a whole. Planning and coordination in partnership with school governing bodies is crucial.

The relationship should therefore be characterised by consultation, cooperation in mutual trust and good faith. The goals of providing high-quality education to all learners and developing their talents and capabilities are connected to the organisation and governance of education.

It is therefore essential for the effective functioning of a public school that the stakeholders respect the separation between governance and professional management, as enshrined in the Schools Act.

I can do no better than to repeat those sentiments:. That applies to education too. In the present case they should have done so and that may well have prevented this long journey through the courts.

The Constitution and applicable legislation thus require the partners in the governance and management of schools to engage with one another in mutual trust and good faith on all material matters relating to that endeavour.

This case illustrates the damage that results when some functionaries fail to take the general obligation to act in partnership and cooperation seriously.

In the early stages of the tussle there was some engagement between the parties, albeit tense. The value of that engagement was demonstrated by the understanding between the school and the Department reached at the end of November By contrast, the manner in which the Gauteng HOD thereafter exercised his powers completely upended the process.

It created antagonism and mistrust, causing the Rivonia Governing Body to recoil. Desiring to safeguard its own authority, the school failed to place the interests of the learner first.

Instead, it resorted to litigation. Rather, and quite ill-advisedly, the school not only sought a declaratory order to establish the relative powers of the Rivonia Governing Body and the Department to determine admission capacity, but also sought relief requiring the learner to be placed in another primary school until she could be accommodated at Rivonia Primary.

However, as counsel for the school conceded before us, ordinarily one additional learner would not burden a school to the point of collapse.

In this case there is particular reason to emphasise the duties of co-operative governance and the impact they might have on the children concerned.

The duty on the parties to cooperate and attempt to reach an amicable solution is intimately connected to the best interests of the child.

Due to the failure of the parties to engage and reach agreement, the learner was physically placed at a desk and was caught in the middle of a disagreement which may well have been very traumatising for her.

To me this highlights the fact that the principle of co-operative governance is not merely a tool to ensure smoother intra-governmental relations, but one which has a direct effect on the people whom the government serves.

Both parties could and should have done more to prevent the need for litigation. As stated earlier, disagreement is not necessarily a bad thing, and we must expect that in trying to determine what the best interests of learners are there may be differing visions.

But one organ of state cannot use its entrusted powers to strong-arm others. All sides are required to work together in partnership to find workable solutions to persistent and complex difficulties — and resorting to court in every skirmish is not going to help in that process.

Disciplinary proceedings against the principal. An application for the review of the disciplinary proceedings instituted by the Department against the principal is not before us.

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