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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT
58/00
BEL PORTO SCHOOL GOVERNING BODY First Appellant
VERA
SCHOOL GOVERNING BODY Second Appellant
DOMINICAN-GRIMLEY SCHOOL GOVERNING
BODY Third Appellant
JAN KRIEL SCHOOL GOVERNING BODY Fourth
Appellant
ALTA DU TOIT SCHOOL GOVERNING BODY Fifth
Appellant
PIONEER SCHOOL GOVERNING BODY Sixth Appellant
ELJADA
SCHOOL GOVERNING BODY Seventh Appellant
PAARL SCHOOL GOVERNING
BODY Eighth Appellant
versus
THE PREMIER OF THE PROVINCE, WESTERN
CAPE First Respondent
THE MINISTER OF EDUCATION OF
THE PROVINCE OF
THE WESTERN CAPE Second Respondent
Heard on : 8 May 2001
Decided on : 21 February 2002
JUDGMENT
CHASKALSON CJ:
[1] This
appeal concerns the validity of the policy pursued by the government of the
Western Cape in attempting to give effect to
the constitutional imperative to
introduce equity into its educational system. The appellant schools do not
dispute the validity
of the goal to which the policy is directed, nor do they
dispute the core aspects of that policy which make provision for a programme
of
rationalisation within the education system in order to ensure that education in
the province is conducted on a fair and proper
basis. Their complaint is that
the manner in which the rationalisation programme is to be implemented imposes
an unfair burden on
them. They have a further complaint, and that is that they
were neither informed adequately of the details of the rationalisation
programme
and the impact that it would have on them, nor were they consulted in regard to
such matters.
[2] When litigation commenced in the Cape High Court the
applicants were eleven schools under the auspices of the Western Cape Education
Department (the WCED). The relief claimed focussed on the need for information.
The applicants sought an order directing the provincial
government to provide
them with information which they said they required for the exercise or
protection of their constitutional
rights. They also sought leave to approach
the Court on the same papers, supplemented if necessary after receipt of the
relevant
information, for an order directing the WCED to employ general
assistants working at the applicant schools and interdicting the WCED
from
retrenching any of the teachers at their schools without giving them at least
three months notice of its intention to do so.
[3] After the WCED had
lodged answering affidavits in response to the claims of the applicant schools
the focus of the relief sought
by the schools changed. They no longer demanded
information, saying that there was sufficient information in the answering
affidavits
to enable them to formulate the claims that they wished to make.
Those claims are reflected in an amended notice of motion in which
the schools
claim an order:
“1. Declaring the respondents’ failure to employ the general assistants presently employed by the applicants, to be in conflict with the fundamental rights entrenched in chapter 2 of the Constitution of the Republic of South Africa, Act 108 of 1996, and therefore unlawful.
2. Directing the respondents to employ the general assistants presently employed by the applicants.”
[4] The claims made
by the applicants were dismissed by Brand J in the Cape High
Court.[1]
[4] The applicants then applied for a certificate in terms of Constitutional Court rule 18(2) to enable them to apply to this Court for leave to appeal directly to it against the decision of Brand J, and in the alternative, for leave to appeal to the full bench of the Cape High Court or the Supreme Court of Appeal. In the absence of Brand J, the application was dealt with by Davis J who, in a considered judgment, refused leave to appeal to the full bench or the Supreme Court of Appeal, holding that there was not a reasonable prospect that another court would alter the order granted by Brand J, and consistently with that finding, provided a negative certificate in terms of rule 18 of the rules of this Court.
[5] The applicants then applied to this
Court for leave to appeal directly to it and leave was granted. Subsequently
three of the
original applicants withdrew, leaving eight applicants who
persisted with the appeal.
The background to the
dispute
[6] In 1994 when the interim Constitution came into force ours
was a grossly unequal society. The interim Constitution was designed
to create
a new order “in which there is equality between men and women and people
of all races so that all citizens shall
be able to enjoy and exercise their
fundamental rights and
freedoms”.[2] This commitment
to the transformation of our society was affirmed and reinforced when the
Constitution adopted by the elected Constitutional
Assembly in 1996 came into
force. The preamble to the Constitution “recognises the injustices of our
past” and makes
a commitment to establishing a society “based on
democratic values, social justice and fundamental human rights”. The
society is to be built on the foundation of the values entrenched in the first
section of the Constitution. These values include
“human dignity, the
achievement of equality and the advancement of human rights and
freedoms”[3] and a
“multi-party system of democratic government, to ensure accountability,
responsiveness and
openness”.[4]
[7] The
difficulties confronting us as a nation in giving effect to these commitments
are profound and must not be underestimated.
The process of transformation must
be carried out in accordance with the provisions of the Constitution and its
Bill of Rights.
Yet, in order to achieve the goals set in the Constitution,
what has to be done in the process of transformation will at times inevitably
weigh more heavily on some members of the community than others.
The
history
[8] Before the interim Constitution came into force education
in South Africa was conducted at racially segregated schools managed
by
different departments of education. In the Western Cape there were four
education departments reflecting these divisions. They
were the departments of
the House of Assembly (HOA), the House of Delegates (HD), the House of
Representatives (HR) and the Department
of Education and Training (DET). There
were great disparities in the system. The HOA schools had better buildings,
better grounds,
better equipment, and better pupil teacher ratios than schools
in the other departments had. There were also disparities between
the other
departments and conditions in the DET schools were the worst of
all.
[9] After the interim Constitution came into force the WCED was
established to take over responsibility for all schools in the province.
This
was in about September 1995. At that time there were teaching and non-teaching
staff at the various schools in the province.
Most were employees of the former
departments but some were employees of the schools. The South African Schools
Act[5] (the Schools Act) continues to
sanction this distinction and permits schools to supplement their teaching and
non-teaching staff
by employing additional teachers and assistants out of their
own funds.[6]
[10] There are
special schools that provide education for disabled pupils. They are referred
to in the evidence as Elsen schools
and I will refer to them as such in this
judgment. The appellants are Elsen schools that were formerly HOA schools
established to
meet the educational needs of white disabled children. They were
administered by the HOA education department.
[11] Elsen schools need
teachers with special skills. They also need general assistants for various
purposes, including class assistants
to help the teachers attend to the children
during classes and drivers to transport the children to and from schools. In
those schools
where there are hostels, general assistants have to perform duties
normally performed by hostel workers and where that is necessary
they also have
to help the children with dressing, bathing, feeding and other personal needs.
The general assistants must also be
sensitive to the special needs of disabled
children which might differ from school to school depending on the nature of the
handicap
from which the children suffer. There are also general assistants who
perform other work, for instance, as clerks, foremen and
labourers.
[12] When the appellant schools were administered by the HOA
education department, the policy of that department was that the general
assistants would be employed by the schools themselves. They received a special
subsidy from the department to assist them to meet
the costs of employing such
assistants. It was up to the schools to decide how to use that subsidy. The
first appellant attached
to its founding affidavit a document that reflects the
arrangements between the Elsen schools and the HOA education department at
that
time. Each of the schools was entitled to decide how many general assistants it
would employ and what their salaries and terms
and conditions of employment
would be. The department recommended to the schools that the general assistants
should be employed
on contracts that would be subject to termination on 24 hours
notice. The schools were, however, free to decide on all such matters
themselves without reference to the department, and were not obliged to inform
the department of appointments that were made or the
salaries that were
paid.
[13] The WCED says that this arrangement was the result of choices
made by these schools. This is not admitted by the schools.
In the view that I
take of the matter nothing turns on this dispute. What is clear is that this
policy had been followed for several
years before the interim Constitution came
into force. As a result, when the WCED was established and took over
responsibility for
the administration of the schools in the province, the
general assistants at the appellant schools were all employees of the schools
themselves.
[14] The other departments of education had different
policies. They employed the general assistants at the Elsen schools in their
departments, though there were apparently fewer assistants per pupil than was
the case in the HOA schools. Schools in the other
departments were also
disadvantaged in other respects as compared with HOA schools.
Requests to change the policy
[15] Within approximately a
year of the WCED having been established the appellants began to request that
the policy concerning the
employment of the general assistants at their schools
be reviewed. Because of the differences that exist between the members of
this
Court concerning the relationship between the teachers at the appellant schools
and the WCED, and the adequacy of the opportunities
given to those schools to
make representations to the WCED concerning the proposed policy changes, it is
necessary to refer in some
detail to the evidence dealing with such
matters.
[16] A request for the HOA policy to be changed seems to have
been raised initially by the first appellant in May 1995. It submitted
a
memorandum to the executive director of education in the Western Cape dealing
with its non-teaching staff and asking a number of
questions concerning the
policy relating to such staff. After setting out the functions performed by the
non-teaching staff and
the important part they play in the functioning of the
school, five specific questions were asked.
[17] They were:
“1. On whose pay-roll should they be according to legislation?
2. Is there a laid down norm for determining the total number of staff on the school’s establishment? We believe that the 34 additional staff as utilised by us are of the utmost importance to our children’s education, therapy and caring.
3. Are there service contracts and conditions for these workers available from the Department or should our school draw up its own?
4. Does the Department have any policy on resolving disputes, misconduct etc. or should we draw up our own?
5. Is the disparity between workers from other education departments and workers at our school paid out of our subsidy fair? If not, how can this be rectified?”
[18] The enquiry was responded to by the
WCED in a letter that bears no date but which was apparently received by the
first appellant
early in September 1995. After explaining that the WCED had
only recently completed the task of taking over the Elsen schools, answers
were
given to the five questions that had been asked. They were:
“1. The governing body of the school receives a subsidy for the running of the school, and the people concerned are appointed by the governing body. They are in the employment of the school and therefore on its payroll.
2. There are staffing norms for educators as well as non-educators. You should, however, bear in mind that your school is classified as a school for specialised education. On account of the extraordinary circumstances which exist at your school, it is very difficult to lay down hard and fast rules pertaining to staffing.
3. A model service contract for General Assistants has been drawn up, and a copy is enclosed for your perusal. Some of the items covered in the contract, may, however, need to be adapted to suit your specific needs, as long as the adaptations are legally justifiable.
4. The Department has a set policy regarding disputes and misconduct. In addition to the Departmental policy, these issues are covered in depth by the Public Service Labour Relations Act 1994. I attach a copy of Circular 26/1994 in which some of the basic issues regarding misconduct are dealt with.
5. It is not clear what form of disparity you are referring to. If you have housing subsidies and medical benefits for General Assistants in mind, I can assure you that the Department shares your concern that the current system is not fair. The Sub-directorate: Work-Study of this Department is already busy with an investigation in this regard at a Worcester school for specialised education. If funds can be found, the Department will consider the translation of a realistic number of posts of General Assistants to subsidised posts on your establishment.”
[19] In October 1996 the
first appellant began to press for a change in policy which it said could be
traced back to 1976. A detailed
memorandum was submitted to the WCED motivating
a request for its non-teaching staff to be placed on the official WCED
establishment.
The memorandum concluded with the statement that, “as the
financial implications have reached critical proportions, and the
school is
technically bankrupt, a prompt resolution is vital”.
[20] There is
nothing on the papers to show what the response to this request was. The next
event mentioned in the correspondence
is a meeting some nine months later in
July 1997 between Dr Theron of the WCED and the school. The question whether
the non-teaching
staff would be taken over by the WCED was apparently the
subject to be discussed at this meeting. There is, however, once again
nothing
on the papers to say whether the meeting took place, and if it did, what was
said.
[21] Requests for the policy to be changed were also made by the
second and third appellants. In October 1996 the second appellant
was told by
the head of education at the WCED that “most” of the non-teaching
personnel at the school would be placed
on the staff establishment of the WCED
once the new staffing scales had been approved. In September 1997 the third
appellant was
told by the Director of Special Education Needs that it was
legally possible for the general assistants “to become civil
servants”
and the WCED would try to accommodate as many of their general
assistants as possible “but no guarantee of the number can be
given”. No firm commitment was, however, made to either of these
appellants, and it was never part of their case that an agreement
had been
reached between them and the WCED for their general assistants to be taken onto
the WCED’s establishment. None of
the other appellants suggest that any
representations or undertakings were made to them that their general assistants
would be employed
by the WCED.
[22] The matter came to a head towards
the end of 1997. On 27 October 1997 attorneys for the first and second
appellants wrote to
the WCED saying that they had been consulted and were in the
process of obtaining instructions from the management committees of
ten other
Elsen schools who were also affected by the WCED’s policy to the former
HOA schools. The letter complains that the
Department has refused to place the
general assistants at these schools on the staff of the WCED and that as a
result the schools
had been obliged to use their subsidies and the proceeds of
their fundraising to pay the salaries of such assistants, whilst other
schools
did not have this obligation. The letter refers to attempts since 1995 to
resolve this problem saying that although there
had been an acknowledgment that
the problem needed to be solved, there had been continual postponements and
nothing had been done.
The letter concludes with a demand that unless the
“discrimination” is removed within seven days, legal action would
be
taken. The letter of 27 October was followed by a letter dated 9 December 1997.
The attorneys now had instructions from 12 schools
including the 11 applicant
schools, and say that action is to be taken in connection with the breach of
fundamental rights of the
schools arising out of the WCED’s failure to pay
for the general workers at the schools. After setting out the details of
the
complaint, the letter contains a demand for information in terms of section 32
of the Constitution relating to all investigations,
reports etc. pertaining to
the complaints of the schools. It also alleges that this failure constituted a
breach of the schools’
right to just administrative action because the
complaints had not been properly investigated and there was no justification for
the WCED’s conduct. A formal request was made for reasons for the
WCED’s conduct. There was a further demand. It concerned
the possible
rationalisation and re-deployment of teachers at various schools. The letter
referred to reports in the press that
this was about to happen and complained
that the schools did not know whether any of their teachers were likely to be
affected.
It said that there had not been an adequate investigation into the
conditions at the schools and that the schools had not been consulted
about
these plans. It was contended that this infringed various substantive
constitutional rights of the schools.
[23] The letter raises a number
of issues. It asks for information as to what the WCED intends to do about
rationalisation and re-deployment,
and calls on the WCED to consult with the
appellant schools and to investigate the conditions at the schools. It demands
an undertaking
that at least three months written notice will be given to the
schools concerned if the WCED intends to reduce staff at the schools.
It
alleges that the conduct of the WCED infringed the schools’ rights to fair
administrative action. The grounds relied on
for this contention are that the
conduct was not justifiable and that it was also procedurally unfair, since
there had been no investigation
into the needs of the schools concerned. A
formal request was made for reasons for the conduct of the WCED in relation to
these
matters. Finally, it was said that if the WCED did not intend to comply
with the requests made in the letter legal proceedings would
be taken. A copy
of the letter had accordingly been sent to the state attorney and the WCED was
requested to consent to any application
that might be brought and served on the
state attorney.
[24] The demand from the applicants’ attorneys
was responded to by the state attorney on 12 December 1997. Attached to that
letter was a formal response from Dr Theron on behalf of the WCED. This
response, which is of importance to the issues in this case,
records the
attitude of the Department as follows:
“1. The general assistants at the applicant schools were employees of the schools and not the department.
2. Because of financial problems which the schools were experiencing they had made demands for the general assistants to be placed in the employment of the WCED. The WCED could not do this. It had first to make provision for its own staff who might become redundant before taking on staff employed by the schools.
3. The process of determining staffing norms was presently under discussion with the relevant unions. In the meantime, ad hoc subsidies were being given to these schools concerned to assist them.
4. The final decision as to posts at the various schools would be made consistently with the financial resources available to the WCED according to the same norms as would be applied to all schools.
5. If as a result of the rationalisation scheme there should be posts vacant after the rationalisation and re-deployment, the general assistants at the schools could apply for positions, but no assurance could be given that they would be appointed.”
[25] There was a long silence
from the schools after that. On 10 November 1999 the proceedings in the present
matter were commenced
in the Cape High Court. This was approximately 23 months
after Dr Theron’s response to the requests made in the attorney’s
letter for information concerning the attitude of the WCED. There is no
explanation in the application for the delay. There is
nothing in the
affidavits to show what, if any, response was made to the state attorney’s
letter, nor is there any reference
in the founding affidavits to further
correspondence between the schools and the WCED or their attorneys after that.
All that is
said is that “in the past year, negotiations to end the
deadlock have not resolved the dispute”.
[26] It appears from
the answering affidavits lodged on behalf of the WCED that there was in fact
contact between the first appellant
and the WCED during 1998 including a meeting
between its representatives and the Minister of Education in the provincial
government
at which the first appellant stated its case to the Minister. It
also appears from the answering affidavits that meetings between
the WCED and
school principals are held on a quarterly basis each year and that the question
of staffing was raised at these meetings.
In a letter from the third appellant
to the WCED on 16 May 1997 there is a reference to one of these meetings. The
letter said:
“From information given at the Elsen Principal’s Meeting held at the Eros School on 5 May, it seems that there is a strong possibility that the services of General Assistants paid by the Board might have to be terminated in order to create vacancies for employees of the Department who, for whatever reason, have been declared redeployable. In ordinary terms such treatment of loyal and, in many cases long-standing, employees would amount to rank injustice to an already disadvantaged category. In terms of the Constitution of South Africa we are advised that ‘unfair discrimination’ and ‘unjust administrative procedures’ could be cited.”
The
reference in that letter to “general assistants paid by the board”,
is a reference to the board of management which
controls the
school.
[27] A new provisioning policy received provisional approval
from the provincial cabinet on 29 October 1999. This was communicated
to the
acting head of the WCED on 2 November 1999, but had apparently not yet been made
public when the proceedings were commenced.
The relief claimed in the
proceedings initiated in November 1999
[28] The relief claimed in the
proceedings is also of importance, and I deal with that now. Although the
notice of motion is dated
10 November 1999, the founding affidavit of the first
appellant was signed in April 1999. The founding affidavits of most of the
other appellants were signed in April or May 1999. The application and the
relief claimed was therefore directed to the then existing
policy of the WCED
and not to the policy that was provisionally approved by the provincial cabinet
on 29 October.
[29] The claims in the notice of motion were for an order
directing the WCED to furnish the Applicant’s attorneys of record
with the
following written information and documentation within fifteen days after the
granting of the order:
“1.1 Full particulars of investigations, if any, that have been conducted by the Respondents regarding the position of general assistants at the applicant schools;
1.2 Copies of any reports containing the findings of such investigations;
1.3 Full particulars of actions, if any, that the Respondents are planning to take regarding the appointment and payment of the said general assistants and the time frame within which such action will be taken;
1.4 Reasons for the Respondents failure to employ and pay the said general assistants;
1.5 The number of teaching posts that the Respondents intend to allocate to each of the Applicants;
1.6 The manner in which this allocation of teaching posts will be phased in;
1.7 Full particulars on investigations, if any, that have been conducted by the Respondents in this regard;
1.8 Full particulars of investigations, if any, that have been conducted by the respondents about the cumulative effect of:
1.8.1 their failure to appoint and remunerate general assistants at the Applicant schools;
1.8.2 any plans that the Respondents may have to rationalise teaching posts at the Applicant schools;
1.9 Copies of the reports, if any, of the investigations mentioned in paragraphs 1.7 and 1.8 above;
1.10 Allowing the Applicants to approach this Honourable Court, if necessary, on these papers, supplemented if necessary, after compliance by the Respondents with the order in paragraph 1 above, for an order:
2.1 Directing the Respondents to employ the general assistants presently employed by the Applicants;
2.2 interdicting the Respondents from retrenching any of the applicants’ teachers without giving the Applicants three months notice of the intention to do so;
2.3 granting further and/or alternative relief;
2.4 directing the Respondents to pay the costs of such further applications;
3. Directing the Respondents to pay the costs of this application;
4. Granting further and/or alternative relief.”
[30] On 15 December 1999, and prior to the preparation of its answering affidavits, the
WCED wrote to the applicant’s attorneys
informing them that a scheme had been prepared for the provisioning of posts at
all
schools in the province in accordance with equitable principles. The scheme
had been approved in principle by the MEC for Education
and the provincial
cabinet and would be implemented pursuant to a plan to be determined after
negotiations with the unions recognised
by the WCED.
[31] The WCED lodged
its opposing affidavits in February 2000. The personnel provisioning scheme
approved by the provincial cabinet
was attached to the opposing affidavit. The
thrust of the WCED’s opposition was that the delays in the formulation of
the
new policy were due to the complexities of the matter which were compounded
by a substantial reduction of its budget in the middle
of the process. The
affidavit denies that the schools were not kept informed of developments. It
refers to the explanation given
by Dr Theron in response to the letter from the
applicant’s attorneys in December 1997 (which had not been referred to in
the
founding affidavit) and states that there were regular meetings with
principals of all schools, including Elsen schools, during which
problems
relating to staffing and the provisioning of schools were raised. The
allegations of unfair treatment and discrimination
are also denied. Attention
is drawn to the fact that there are significant disparities between various
schools within the Department
and that the redressing of these disparities is a
matter of great sensitivity and urgency. As a result the rationalisation
process
was complex and involved a careful balancing of the needs of the various
schools and the availability of funds.
[32] The applicants lodged their
replying affidavit on 17 April 2000. On 30 June 2000 they gave notice of their
intention to amend
the notice of motion to delete the claim for information and
to claim an order:
1. “Declaring the Respondents’ failure to employ the general assistants presently employed by the Applicants, to be in conflict with the fundamental rights entrenched in chapter 2 of the Constitution of the Republic of South Africa, Act 108 of 1996, and therefore unlawful;
2. Directing the Respondents to employ the general assistants presently employed by the Applicants;”
A claim was also made for costs including the costs sought in prayer 1 of the notice of
motion prior to its amendment. As a result the
validity of the claim for information remained an issue in the High
Court.
[33] The claim is a substantive claim for positive relief in
respect of the alleged infringement of constitutional rights. In the
founding
affidavits lodged on behalf of the appellant schools it is alleged that their
rights and rights of the children attending
their schools had been infringed by
the conduct of the WCED. The rights said to have been infringed are rights
under sections 9
(equality), 10 (dignity), 11 (life), 12 (freedom and security
of the person), 26 (access to housing), 27 (access to health care)
and 28
(children’s rights). In correspondence attached to the founding
affidavit, the allegation is made that the appellants’
rights to just
administrative action under section 33 of the Constitution had also been
infringed.
[34] In the application for leave to appeal and in argument
before this Court on the appeal, only three issues were raised by the
appellants. First, that the WCED’s failure to employ the general
assistants at the appellant schools infringed the equality
rights of the schools
under section 9 of the Constitution. Secondly, that the new policy adopted by
the WCED infringed the rights
of the children at the appellant schools under
section 28 of the Constitution. Thirdly, that in its dealings with the
appellants
the WCED had infringed the appellant schools’ rights under
section 33 of the Constitution to just administrative action. The
allegations
concerning the alleged breaches of sections 10, 11, 12, 26 and 27 were correctly
not pursued by counsel for the appellants.
I will deal in turn with each of the
three contentions that were relied upon.
The equality
argument
[35] The judgment of Brand J does not deal with the issue of
equality directly, though it is referred to indirectly in the context
of the
alleged infringement of the right to just administrative action. In this Court,
counsel for the appellants raised two arguments
in support of the equality
claim. First, that the WCED policy concerning the employment of general
assistants differentiated between
the appellants and other Elsen schools and
that there was no rational basis for such differentiation. Secondly, that the
differentiation
constituted unfair discrimination against the appellant schools
on the grounds of race.
[36] This difference between the appellants and
the other Elsen schools existed before the WCED was established. It was one of
many
differences between schools which the WCED found when it took over the
administration of the schools that had previously been administered
by the
different departments of education. It was one of the differences that had to
be taken into account in the process of rationalisation
and reconstruction that
was required in bringing the four departments together as one department. What
has to be decided on this
aspect of the case is whether the way in which the
WCED dealt with this difference infringed the constitutional rights of the
appellants
under section 9 of the
Constitution.[7]
[37] The WCED
inherited an education system that was grossly unequal. Some schools had
superior equipment, better teachers, a better
teacher pupil ratio and better
grounds and infrastructure than other schools. In the main, the disparities
reflected the racial
discrimination which existed under apartheid though there
were no doubt also disparities within racial groups. The WCED had the
daunting
task of converting this system to an equitable system.
[38] This task was
made more difficult because of the budgetary constraints within which the WCED
had, and still has, to function.
This is not peculiar to the WCED. It affects
all government departments which are grappling with the history of racial
disparities
and unequal distribution of goods and services.
[39] Because
of the budgetary constraints the WCED had to reduce the number of teachers and
general assistants and other staff employed
by it at schools. Because of the
inequitable allocation of resources to different schools in the past, it had to
address the inequity
in the posts established at the various schools, and
introduce an equitable staffing basis so that the teacher pupil ratio at certain
schools would not be materially disproportionate to the teacher pupil ratio at
other schools. This meant that it would have to redeploy
teachers and personnel
from some schools to other schools, and dismiss teachers and other personnel
whose services would no longer
be required. The teachers were unionised and in
terms of the Labour Relations Act[8]
there would have to be negotiations with the unions concerning the retrenchment
and redeployment of the staff.
[40] In order to deal with these matters
the WCED took advice from experts and engaged in negotiations with the unions
representing
its employees. The appellants do not suggest that the scheme for
the allocation of posts to the various schools in the WCED, and
the arrangements
made concerning the number of general assistants to be employed at each of the
various Elsen schools is irrational
or that it infringes the equality provisions
of the Constitution. Their complaint is that the scheme makes provision for the
new
posts created at the appellant schools to be filled by general assistants
employed by the WCED, rather than the general assistants
employed by the
appellants. They say that this will impose a financial burden on them because
they will have to retrench their employees
and carry the cost of the
retrenchment, and that the scheme is also prejudicial to the learners at their
schools who will have to
adjust to new and possibly inferior
assistants.
Rationality
[41] The first enquiry in terms of the
section 9 analysis that has to be undertaken is whether the scheme is rational.
In my view
it clearly is. In Prinsloo v Van der
Linde[9] it was said:
“...a person seeking to impugn the constitutionality of a legislative classification cannot simply rely on the fact that the State objective could have been achieved in a better way. As long as there is a rational relationship between the method and object it is irrelevant that the object could have been achieved in a different way.”
[42] The WCED decided not
to deal with staffing and other “equality” issues at the various
schools within the province
on a piecemeal basis. Instead it sought to develop
a coherent and comprehensive plan for addressing these problems in order to meet
two requirements that it set for itself - equity and compliance with budget. It
consulted experts and spent considerable time endeavouring
to find a
satisfactory solution to the complex problems it faced.
[43] In the
end, its solution as far as staffing was concerned was to set criteria for staff
posts on a basis that would produce an
equitable result. The scheme had to
accommodate a provincial cabinet decision that there be a reduction of
approximately 12% in
the personnel budget. It made provision for the reduction
of posts at schools that were overstaffed and the creation of new posts
at
schools that were understaffed. Knowing at all times that there would have to
be a reduction in staff numbers, it declined to
create new posts at schools
until the scheme had been finalised. It thus did not accede to requests from
the appellant schools to
employ the general assistants who were then employed by
the schools themselves. It did, however, increase the special subsidy paid
to
the appellant schools in the year 2000.
[44] The scheme as finalised
gives preference to existing employees of the WCED. Where new posts are created,
existing WCED employees
who will be redeployed in terms of the plan will be
appointed to the posts, in preference to persons who are not employees of the
WCED. This is a perfectly rational scheme. It is not arbitrary to refuse to
take on new employees where existing employees have
to be retrenched. Nor is it
arbitrary to give preference to your own employees over others.
[45] In
support of their argument counsel for the appellants relied on the fact that the
Eastern Cape Education Department, which
had been faced with a similar problem,
had treated the employees of the schools on the same basis as it had treated its
own employees.
That is irrelevant to the rationality enquiry. The fact that
there may be more than one rational way of dealing with a particular
problem
does not make the choice of one rather than the others an irrational decision.
The making of such choices is within the
domain of the executive. Courts cannot
interfere with rational decisions of the executive that have been made lawfully,
on the grounds
that they consider that a different decision would have been
preferable.
[46] Counsel for the appellants also relied on the decision
of this Court in the Grootboom
case1[0] contending that the WCED
had to act reasonably in dealing with education and other matters affecting
children. That case was concerned
with section 26 of the Constitution and not
with section 9. In terms of section 26, the state is obliged to take
“reasonable
legislative and other measures, within its available
resources, to achieve the progressive realisation” of the right of
“access
to adequate housing”. The Constitution specifically sets
“reasonableness” as a standard for access to housing.
That is a
higher standard than that called for in a rationality review under section 9(1).
If we were to apply a “reasonableness”
review at the stage of the
section 9(1) enquiry, we could be called upon to review all laws for
reasonableness, which is not the
function of a court.
Racial
discrimination
[47] It was contended that the differentiation between the
appellants (which were formerly schools for white pupils) and the other
Elsen
schools (which were formerly for coloured, Asian, and black children) amounted
to unfair discrimination on the grounds of race.
[48] It is common cause
that the appellant schools are now all non-racial schools. There is nothing to
suggest that the purpose of
the WCED’s policy was to favour one racial
group over another, nor is there any evidence to suggest that this has been the
impact of its policy on any of the persons affected by it. In the absence of
any such evidence it cannot be said that the policy
constitutes direct or
indirect discrimination on the grounds of race. The reason why the WCED will
not take the general assistants
at the appellant schools onto its staff is not
that the schools were formerly “white schools”. It is that it has a
surplus
and not a shortage of personnel. It is unwilling to employ the
appellants’ workers in jobs for which its own employees are
available.
This was stated clearly in Dr Theron’s letter of 12 December 1997 where he
said: “The WCED . . . had first
to make provision for its own staff who
might become redundant before taking on staff employed by the schools.”
This has nothing
to do with the race of the pupils or parents at the schools, or
with the race of the general assistants.
[49] There is no evidence to
support the claim based on racial discrimination and that claim must accordingly
be rejected.
The financial burden on the appellants
[50] The
appellants complain that because of the policy that has been adopted by the WCED
they have been prejudiced in two respects.
They have had to carry the cost of
paying their own general assistants, whilst at other schools such assistants are
on the WCED
staff and are paid for by the WCED. In addition when the WCED
creates posts for general assistants at their schools, and assigns
re-deployed
WCED employees to such posts, the schools will be compelled for financial
reasons to discharge the general assistants
employed by them and accept
redeployed general assistants in their place. As a result they will not only
lose the benefit of the
services of assistants, some of whom have worked for
them for several years, but they will also have to pay the retrenchment costs
of
discharging these employees. The relief claimed is tailored to shifting this
financial obligation to the WCED.
[51] The Schools
Act1[1] requires funding for schools
to be provided by both the state and the schools themselves. The state’s
obligation is dealt
with in section 34 (1) of the Schools Act which provides:
“The State must fund public schools from public revenue on an equitable basis in order to ensure the proper exercise of the rights of learners to education and the redress of past inequalities in education provision.”
The schools’ obligations are dealt with
in section 36 of the Schools Act which provides that the governing bodies must
take
all reasonable measures within their means to supplement the resources
supplied by the state in order to improve the quality of education
provided by
the school to all learners at the school. According to Mr O’Connell, the
Superintendent General of the WCED, there
is not a single school in the province
that does not have to raise funds itself to meet its
obligations.
[52] The WCED has a finite budget. Mr O’Connell sums
up the dilemma confronting the WCED as follows:
“It is simply not possible to isolate a limited number of schools within the Western Cape and to afford them some special dispensation, as regards the appointment of general workers . . . This would be unfair to other schools . . . Such action would also ignore the reality that the WCED is compelled to operate within the budget allocated to it and is continually faced with the dilemma of allocating resources in accordance with sound education policy, but at the same time making sure that such allocation of resources is affordable. If the WCED were possessed of unlimited financial and other resources, it would be able to comply with all the needs and requests raised by educational institutions and other interested parties . . . This, however, is simply not the reality of the matter.”
[53] It is a policy decision
as to how the finite budget should be applied. If the appellants had received
additional subsidies sufficient
to cover the full cost of employing all the
general assistants on their staff less money would have been available to the
WCED for
other purposes. These purposes include the upgrading of schools whose
needs were neglected in the past. Such schools might have
been entitled to
claim that their need for subsidies to assist them to procure equipment which
they lack and to meet their running
expenses is greater than the need of the
appellant schools.
[54] The financial information placed before the Court
by the appellants deals only with the subsidies that they receive and the cost
to them of employing the general assistants. It does not deal with other income
or expenditure. There are two subsidies, a general
subsidy and a special
additional subsidy paid to the appellant schools to allow for the fact that they
employ their own general assistants.
It appears that the total subsidies paid
to the schools (i.e. the basic subsidy plus the special subsidy) in almost every
instance
is in excess of the total costs incurred by the schools in employing
general assistants.
[55] The evidence concerning expenditure by the
appellant schools is directed to the costs incurred by them in employing the
general
assistants on their staff. Those costs depend on the number of
employees at each school. No comparison is made between those numbers
and the
numbers of general assistants employed at other Elsen schools. There is no
information as to how the surplus of the total
subsidies they receive, after
paying the general assistants, is applied or what needs are unmet as a result of
the schools having
to use part of their total subsidies to pay the general
assistants. There is also no information to show the numbers of general
assistants employed at other Elsen schools, whether those schools that were
understaffed had to use funds to employ additional assistants,
or whether
because of a lack of funds they had to do without them. Nor is there any
information as to the needs of the other schools
in comparison with the
appellant schools and whether the subsidies they received were adequate to meet
those needs.
[56] There is evidence that some schools were
“oversupplied” with teachers and general assistants, and others were
“under
supplied”. There is also evidence that there are substantial
disparities between the infrastructure, provisioning etc. at
the former HOA
schools and the former DET schools. Mr O’Connell refers to the wide
ranging disparities that exist, and to
the “increasingly urgent demand for
more classrooms, more textbooks and more educational resources”. He also
refers
to the need to give effect to “the constitutional imperative of
promoting equity within the context of previously disadvantaged
communities”. This, he says, makes the rationalisation program
complicated and difficult and there is accordingly a need to
pool resources,
staff and financing.
[57] The obligation to give effect to constitutional
imperatives is stressed by the WCED in its motivation to the provincial cabinet
seeking approval for the rationalisation and redeployment scheme. It
said:
“The SICA project team investigated the allocation of cleaning and administrative staff at educational institutions of the WCED with, inter alia, the aim to effect equity in this regard. The findings of the project team indicate that the post provisioning, ranges from no posts at most institutions that were attached to the ex-DET to an undersupply or oversupply at schools that were attached to the ex-House of Representatives and to an oversupply at many schools that were attached to the ex-CED. The WCED is committed to equity and must therefore rectify these disparities . . . . The WCED needs to deal with this matter urgently as the maintenance of the status quo is untenable. Although the recommended PPS will not fully address the needs of all schools because of financial constraints, it will definitely put in place an equitable basis from which to commence redressing the imbalances of the past.”
[58] A policy dealing with rationalisation and the
redeployment of teachers and other employees had to be formulated by the WCED
before
a decision could be taken concerning the number of general assistants to
be employed at the various schools. As Brand J points out
in his judgment, if
the WCED had acceded to the demands of the appellants and had employed all the
general assistants on their staff
before the scheme had been finalised, it would
have advantaged those schools over others that were
under-resourced.
[59] There is also evidence that at least some of the
appellant schools are better equipped than most of the other Elsen schools in
the WCED. Due to the privileged position they previously had in the education
system, the HOA schools would not only have had better
grounds, better equipment
and possibly better reserves and better teachers than the other schools, but
also more general assistants
than many of them. If the matter is addressed in
the context of “equality” it might well be said that these other
schools
were entitled to receive a larger share of the subsidy budget than the
appellants to enable them to address the deficit from which
they suffer.
[60] The appellants might possibly have had a case for the special
subsidies to be increased, but that is not the relief that they
have claimed,
and there is insufficient information in the record before us to hold that if
regard is had to the needs of all the
schools in the system, the appellant
schools were treated unfairly as far as the payment of subsidies is concerned.
The costs of retrenchment
[61] It is not yet known how many of
the general assistants are likely to be retrenched at each of the appellant
schools, or what
the cost of retrenchment is likely to be. The schools make the
bald allegation that there will be retrenchment costs which they
will have to
pay themselves. But that is as far as they go, and it is not possible on the
basis of that bald allegation to know
what the financial “burden” of
the retrenchment costs will be.
[62] Moreover, the policy that has
now been adopted by the WCED is to require all Elsen schools, and not only the
appellant schools,
to employ class assistants and drivers themselves for which
they will receive a subsidy calculated on a per capita basis. Although
this
policy will have to be phased in at the other WCED schools, it involves no
change at the appellant schools, save possibly for
the amount of the subsidy to
be paid.
[63] I am prepared to assume for the purposes of this
judgment that the imposition of an unfair financial burden on the appellant
schools would constitute unfair discrimination for the purposes of section 9(3)
of the Constitution.1[2] However,
since this is not a case in which there has been differentiation on a ground
referred to in section 9(3) the onus of proving
that there has been
discrimination that is unfair is on the appellants.
[64] In
Walker’s case1[3] it
was said that section 9(3):
“prohibits ‘unfair’ discrimination. The requirement of unfairness limits the application of the section and permits consideration to be given to the purpose of the conduct or action at the level of the enquiry into unfairness.”
[65] The purpose of the scheme in the
present case is to promote equality, which is relevant to the enquiry into
unfairness that has
to be made. One cannot make such an enquiry on the basis of
only one strand of policy. Seen in its entirety, the purpose of the
policy is
to “equalise” the education system and to put all schools on a basis
consistent with that requirement. This
includes the “equalisation”
of teachers, equipment, grounds and general infrastructure. Although exact
“equality”
may never be possible, an equitable system can be put in
place. But there is a finite budget. If money is made available to the
appellant schools for the costs of retrenchment, it will not be available to
other schools for purposes which may be equally pressing,
for example, the
upgrading of under-resourced schools. This is a relevant consideration. The
question that has to be decided is
whether it is unfair to require that money to
be used for other purposes, including the needs of schools in dire distress,
rather
than for the needs of the appellant schools.
[66] In a
process as complex as the one of which the present scheme is a part, some
schools are inevitably going to be affected more
adversely than other schools at
different stages of the process. That does not mean that the scheme as such is
unfair. If a comparison
is made between the appellant schools and the other
schools there is nothing to suggest that, if the appellant schools have to meet
the retrenchment costs out of their own funds, they will be materially worse off
than most schools, as far as personnel, equipment,
infrastructure, etc. are
concerned. They will no doubt have less to spend on equipment and
infrastructure, but it is likely that
they already have better facilities than
most schools.
[67] The only school that suggests that it may not be able
to meet the costs of retrenchment is the first appellant which describes
itself
as being “technically bankrupt”. It is not clear what this means.
Even if it means that it is not in a position
to pay retrenchment costs, the
same contention is not made by the other schools.
[68] The cause of this
“technical bankruptcy” is attributed to the first appellant having
had to pay the salaries of its
general assistants. The general and special
subsidies that it receives are, however, sufficient to cover such costs. It may
be
that the first appellant has employed more general assistants over the years
than the other schools have done, and has also spent
money on equipment and
resources that other schools do not have. There may be other causes for its
“technical bankruptcy”.
If the first appellant is in crisis, it may
have to make special representations to the WCED to assist it to overcome the
crisis,
and if it does, the WCED would have to deal with the request on its
merits. The fact that the first appellant is “technically
bankrupt”, however, does not mean that the entire scheme for the
rationalisation and re-deployment of personnel must either
be set aside, or
adapted to meet its needs.
[69] The same applies to the costs of
retrenchments at the other schools. If retrenchments take place and the costs
are ascertained,
the schools can apply for a special subsidy to assist them in
that regard, and the WCED will have to consider such a request on its
merits.
It could possibly come to their assistance as was done in the year 2000 when the
special additional subsidy was increased
in response to representations from the
schools. But even if the WCED refuses to subsidise all or part of such costs,
and it is
assumed that this is what will happen, there is insufficient
information in the record before us to justify a conclusion that this
would be
unfair.
[70] As long as the WCED complies with the requirements of the
Constitution and any relevant law, the manner in which it allocates
its budget
is a matter for it and not the courts to decide. According to Mr
O’Connell, the implementation of the new personnel
and provisioning
scheme is but one aspect relating to the delivery of educational services. It
is tied in with and closely related
to a host of other aspects and problems. It
is this complexity, and in particular the difficulty of how to prioritise the
use of
a limited budget in the context of an inherently unequal system, that
makes it impossible on the information that has been placed
before us to hold
that the appellant schools were or will be the victims of unfair discrimination.
Discrimination against the pupils
[71] It is contended that
the pupils at the schools will be prejudiced because they will
lose contact
with general assistants known to them and will have to adjust to others who may
be less competent. Because of the policy
concerning class assistants and
drivers it seems likely that the general assistants having the closest contact
with the pupils at
day schools may well be retained. There will, however,
probably be changes at those schools with hostels.
[72] There can
be no doubt that the disabled children require assistants who are sensitive to
their needs. According to the WCED,
general assistants will only be redeployed
to Elsen schools if they are competent to perform the duties that have to be
performed.
If they are not, the schools are entitled to object to the
redeployment. It is not possible to say in the abstract that the particular
employees who will be re-deployed at the appellant schools (if that happens)
will not be competent to do the jobs, or that the children
will suffer as a
result of having to relate to the new employees in place of the old. The
children will no doubt have to adapt to
the new assistants, but that is always
the case when teachers change, as regularly happens when pupils advance to the
next grade,
and there is no reason to believe that if the redeployed general
assistants are competent, the children will not adjust to them.
The evidence is
insufficient on this score to justify a claim of discrimination, still less, a
claim of unfair discrimination.
Just administrative
action
[73] There is no specific reference in the founding affidavits to
an alleged infringement
of the rights of the appellant schools to just
administrative action. However, the attorneys’ letter of December 1997
contained
an allegation that the conduct of the WCED, in failing to employ the
general assistants at the appellant schools, was procedurally
unfair in that
there had not been a proper investigation into the needs of the schools and
proper attention had not been given to
the problems that existed. It was said
that this conduct was not justifiable and that reasons had never been given for
it. A demand
was made for written reasons to be provided. There was another
reference in the letter to administrative law, directed to the policy
pertaining
to teachers at the schools. It was alleged that there were rumours that there
were to be retrenchments and a reduction
of teaching posts, but there had not
been consultation with the appellant schools over that issue, and proper
investigations had
not been made into the needs of the schools. This was said
to be procedurally unfair, unjustifiable, and the reasons for that conduct
were
demanded. This letter is referred to in the founding affidavit in support of
the prayer for information and reasons for the
WCED’s conduct. Although
that claim was subsequently withdrawn, the appellants contended in argument
before the High Court
that procedural fairness had not been observed by the WCED
in its dealings with them. That issue is dealt with by Brand J in his
judgment
and was also raised in argument before this Court. It is necessary to address
that argument in this judgment.
[74] Not surprisingly, however, in
view of the allegations made in the founding affidavit and the basis of the
claim advanced there,
little if any attention is given in the affidavits to the
administrative law claim.
[75] In the joint judgment of Mokgoro J
and Sachs J it is said that “although formally employed by the
appellants’ schools
and not by the Department,” the general
assistants employed by the appellants “were in effect public servants
working
in government schools” and as such, administrative justice
“required that they be given a right to participate in negotiations
as to
retrenchments similar to that afforded to their counterparts in other ELSEN
schools”.1[4] Similar
comments are made by Madala J in his
judgment.1[5]
Whose
rights are in issue?
[76] 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 appellants’ claim is based on alleged infringement of
their own constitutional rights, and
the rights of the children of their
schools, not their employees’ rights. 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.
[77] 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
WCED. Nowhere is it alleged in the affidavits
made on behalf of the appellants
that the general assistants were only “technically” employees of the
schools, or that
they were in substance “public servants”. 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 WCED,
or that they believe that they had such rights.
[78] It is common cause
on the evidence that the general assistants at the appellant schools are not and
never have been employees
of the WCED. They were and always have been employees
of the schools that appointed them. Their salaries, benefits and other
conditions
of employment are and always have been different to those of the
general assistants employed by the apartheid departments and the
WCED. In this
regard their status is no different to that of other assistants or teachers at
schools throughout the WCED who were
employed by the schools themselves and not
by the WCED.
[79] The order sought by the appellants will not benefit the
general assistants at their school. There is no challenge to the validity
of
the rationalisation or re-deployment scheme and at the hearing before the High
Court it was made clear that the appellants do
not want the scheme to be
altered. The case advanced by them in their affidavits was that “the fair
and proper course of action
is first to bring the appellant schools in line with
all other schools”, and then to implement the rationalisation and
re-deployment
scheme. Consistent with this the relief claimed is an order
directing the WCED “to employ the general assistants presently
employed by
the applicants.” An order in such terms will relieve the appellants of an
obligation of continuing to employ and
pay the salaries of the general
assistants, and possibly of any obligation to meet the costs of retrenchment,
but will be of little
value to the workers. The rationalisation and
re-deployment scheme makes provision for retrenchments to be carried out on the
LIFO
system - last in, first out. If the general assistants at the appellant
schools are employed by the WCED now, they will be the last
in and thus the
first to be retrenched. The order will thus not be of benefit to them. Indeed
it may be to their prejudice, for
it will possibly leave them with no rights
against the appellants and with little or no rights against the WCED, for the
period of
service according to which the retrenchment allowance will be
calculated will be far less than would be the case if they were to
be retrenched
as employees of the appellants.
[80] It is presumably for this reason
that Mokgoro J, Sachs J and Madala J propose that an order be made different to
that claimed
by the appellants. The effect of the order proposed by them is
that the WCED must take account of the length of service of the general
assistants at the appellant schools in the implementation of the rationalisation
and re-deployment scheme. An order in these terms
was not claimed by the
appellants. It involves an amendment of the scheme that would have an adverse
effect on those WCED employees
who will lose their jobs if the schools’
employees are given preference over them. It may also have a bearing on
competition
for jobs between WCED employees and teaching and non-teaching staff
at other schools who are employees of the schools themselves
and not the WCED.
For if the WCED has to treat the general assistants at the appellant schools in
this way, why will it not have
to treat other teachers and general assistants
employed by schools themselves throughout the WCED in the same
way?
[81] An order directing the WCED to employ the general assistants
working for the appellants, or to amend the rationalisation and
re-deployment
scheme so as to take into account the length of service of the general
assistants employed by the appellants when the
scheme is implemented, is likely
to have an adverse effect upon the general assistants employed by the
appellants, or the general
assistants employed by the WCED, depending on the
terms of the order. Yet none of the workers are before the
Court.
[82] The claim brought in the High Court was not a claim under the
Labour Relations Act on behalf of their employees. The only claim
that is
before us on this aspect of the case, and the only claim we are called upon to
consider, is the appellants’ claim that
their constitutional rights to
just administrative action has been infringed. It is that claim that I now
address.
Just administrative action
[83] At the time of
the relevant events the right to just administrative action was regulated by
item 23(2)(b) of schedule 6 to the
Constitution, which provides:
“Every person has the right to -
(a) lawful administrative action where any of their rights or interests is affected or threatened;
(b) procedurally fair administrative action where any of their rights or legitimate expectations is affected or threatened;
(c) be furnished with reasons in writing for administrative action which affects any of their rights or interests unless the reasons for that action had been made public; and
(d) administrative action which is justifiable in relation to the reasons given for it where any of their rights is affected or threatened.”
[84] I am unable to agree
with Mokgoro J and Sachs J that the words in item 23(2)(b) of schedule 6 to the
Constitution have no evident
meaning, and that unless “animated by a broad
concept of fairness their interpretation can result in a reversion to what has
been criticised as the sterile, symptomatic and artificial classifications which
bedevilled much of administrative law until
recently”.1[6] Item 23(2)(b)
seems to me to encapsulate and in some respects extend the well-known common law
grounds of judicial review as they
have developed over the years in England and
South Africa - legality, procedural fairness and rationality. These provisions
can
be interpreted and applied without “sterile, symptomatic and
artificial classifications”, and without importing into
the Constitution a
requirement that decisions must not only be procedurally fair, but also
substantially fair. If that had been
the purpose of item 23(2)(b),
sub-paragraph (b) would not have confined itself to procedurally fair
administrative action, but would
have referred generally “to fair
administrative action”.
[85] For good reasons, judicial review of
administrative action has always distinguished between procedural fairness and
substantive
fairness. Whilst procedural fairness and the audi principle
is strictly upheld, substantive fairness is treated differently. As Corbett CJ
said in Du Preez & Another v Truth & Reconciliation
Commission1[7]
“The audi principle is but one facet, albeit an important one, of the general requirement of natural justice that in the circumstances postulated the public official or body concerned must act fairly . . . The duty to act fairly, however, is concerned only with the manner in which the decisions are taken: it does not relate to whether the decision itself is fair or not.”
[86] The unfairness of a decision in itself has never been a
ground for review. Something more is required. The unfairness has to
be of
such a degree that an inference can be drawn from it that the person who made
the decision had erred in a respect that would
provide grounds for review. That
inference is not easily drawn.
[87] The role of the courts has always
been to ensure that the administrative process is conducted fairly and that
decisions are taken
in accordance with the law and consistently with the
requirements of the controlling legislation. If these requirements are met,
and
if the decision is one that a reasonable authority could make, courts would not
interfere with the decision.
[88] I do not consider that item 23(2)(b) of
schedule 6 has changed this and introduced substantive fairness into our law as
a criterion
for judging whether administrative action is valid or not. The
setting of such a standard would drag courts into matters which according
to the
separation of powers should be dealt with at a political or administrative level
and not at a judicial level. This is of
particular importance in cases such as
the present, in which the issue relates to difficult and complex policies
adopted in order
to promote an equitable transformation of apartheid structures
and a reversal of policies that were grossly unequal.
[89] I do not
understand the Carephone1[8]
case, or any of the cases that have followed
it,1[9] to hold otherwise. What
they require for a decision to be justifiable, is that it should be a rational
decision taken lawfully and
directed to a proper purpose.
[90] If that is
the case, and if the decision is one which a reasonable authority could
reach2[0] it would in my view meet
the requirements of item 23(2)(b). It follows that I am unable to agree with
the views expressed by Mokgoro
J and Sachs J concerning the interpretation and
application of item 23(2)(b).
Procedural fairness
[91] In this
Court and in the High Court, the appellants’ principal attack upon the
validity of the rationalisation and redeployment
scheme was based on an
allegation that their right to procedural fairness was infringed. They contend
that the decision was taken
by the WCED unilaterally and without consultation
with them.
[92] The appellants’ case was advanced on the basis that
the WCED’s policy concerning the employment of general assistants
at the
appellant schools, discriminated against the appellants unfairly. They
contended that they had a right to require the WCED
to assume responsibility for
the employment of the general assistants that were in their employ, and to do so
before implementing
the rationalisation and redeployment scheme. Otherwise, the
discrimination would be perpetuated.
[93] Subparagraph (b) of item
23(2)(b) creates a right to procedural fairness in respect of administrative
action in favour of persons
whose rights or legitimate expectations are affected
or threatened by such action. The appellants have failed to show that the
rationalisation
and redeployment scheme infringes any of their rights. In their
written argument in this Court the appellants contended, however,
that even if
it is found that they have no rights that are affected or threatened, they at
least had a legitimate expectation to
be heard in relation to their
grievances.
[94] Legitimate expectation is not raised as an issue in the
founding affidavits, and is not dealt with in the judgments of the High
Court or
in the application for leave to appeal. It seems to have been raised for the
first time in the written argument where it
is dealt with in passing in one
paragraph of an argument that extends over 71 paragraphs. It received scant if
any attention during
the oral argument.
[95] Although representations
were made to the second and the third appellants that some of their non-teaching
staff would be placed
on the establishment of the WCED, no unqualified
undertaking was given in that regard. It was later made clear by Dr Theron in
December
1997 that this was not going to happen, and that no assurance could be
given to the appellants that any of the general assistants
employed by them
would be appointed to the WCED establishment. There is no suggestion on the
papers that any representations or
undertakings to employ their staff were ever
given to the general assistants themselves. In any event the general assistants
were
not involved in the negotiations with the schools, and were not party to
the litigation.
[96] It was not contended in written or oral argument
that any of the appellants had a substantive legitimate expectation that the
WCED’s policy would be changed to comply with their requests. The
argument went no further than asserting that there was a
legitimate expectation
to a hearing, and that there was thus a basis for the enforcement of the audi
principle, even if the appellants rights were not infringed. Substantive
legitimate expectation is a contentious issue on which there
is no clear
authority in our law.2[1] As the
foundation for such a claim has not been laid, I do not consider it appropriate
to consider that issue in the present case.
My failure to deal specifically
with that issue should not be understood as an acceptance of the proposition
apparently accepted
by Madala J that substantive legitimate expectation is part
of our law. I leave that question open for decision in a case when the
issue is
properly raised and the factual foundation for such a contention is
established.
[97] In the absence of full argument on this issue I am
prepared to assume in favour of the appellants, as was done in Minister of
Public Works and Others v Kyalami Ridge Environmental Association and
Others,2[2] that
procedural fairness may be required for administrative action affecting material
interests, such as the appellants’ have
in the present case, that fall
short of enforceable or prospective rights. That makes it unnecessary to decide
whether a sufficient
foundation was laid in the present case for an argument
based on legitimate expectation.
[98] It is not disputed by the schools
that they knew that policy changes were under consideration and that they would
involve schemes
for rationalisation. Nor is it disputed that they made
representations to the Department to take over the employment of the general
assistants employed by them at their schools. The Department’s response
was that a decision could not be taken until a new
policy had been determined.
The schools knew this, and knew that there was no assurance that the new policy
would make provision
for the general assistants to be employed by the WCED.
[99] Approximately two years before the application was launched the
WCED stated clearly in its response to the demand from the appellants
attorneys
that it would have to make provision for its own staff before taking on staff
employed by the schools. It also said that
if as a result of the
rationalisation scheme there should be posts vacant after rationalisation and
redeployment had taken place
the general assistants at the appellant schools
could apply for posts, but no assurance could be given that they would be
appointed.
[100] Apart from the representations made directly to the
Department, representatives of the appellant schools also attended meetings
between the WCED and school principals that were held every quarter. According
to Dr Theron, principals at all schools are required
to attend these meetings.
He confirms that they were kept fully informed at the meetings of developments
affecting them and says
that the principals had the opportunity at these
meetings of raising matters of concern to them. He says also that the question
of personnel provisioning measures was raised at most if not all these meetings.
The appellants do not dispute this. They say, however,
that they were unable to
get clear answers at these meetings as to what the policy would be. This is not
surprising since the policy
was only finalised shortly before the proceedings
were commenced.
[101] The first appellant also brought the complaints
concerning general assistants to the attention of the Minister for Education
in
the Provincial government during 1998. The Minister arranged for
representatives of the first appellant to meet the Director
of Special Education
in the WCED to discuss the problems with him. The Director then briefed the
Minister on these discussions.
The Minister subsequently wrote to the first
appellant saying that all correspondence received from the school has either
been attended
to by the directorate or has been channeled to the sections
responsible for these matters.
[102] The first appellant has therefore
had the opportunity of having had its case considered at the highest level. It
has made representations
to the Department concerning its financial position,
and the alleged discrimination against it and the other appellant schools.
At
least some of the other appellants have done the same. None of the schools
suggest that they were not given the opportunity of
making representations to
the HOA to change its policy to the schools. There is nothing on the papers to
suggest that anything can
be added to the representations that have already been
made.
[103] The substance of the appellants’ complaint is not that
they have not had the opportunity of making representations to
the WCED
concerning the employment of the general assistants at their schools. The
substance of their complaint is that their representations
have not been
answered to their satisfaction, that the WCED did not involve them in
negotiations with the Unions representing the
WCED employees, and that policy as
formulated has not paid sufficient regard to the representations made by
them.
[104] What procedural fairness requires depends on the particular
circumstances of each case.2[3] It
does not, however, require the government to agree to requests put to it by
persons seeking policy changes. In the present case
the WCED could not
reasonably be expected to have entered into negotiations with each of the 1750
educational institutions in the
Department concerning its needs in relation to
the rationalisation and re-deployment scheme. The needs would have differed
from
school to school, each no doubt with a particular concern that could be
traced to the education policy of the past. The HOA Elsen
schools had specific
concerns. But so too would other HOA schools, and also the HR, HD and DET
schools.
[105] The schools were informed of the need for rationalisation
and re-deployment and were given the opportunity of airing their views.
The
appellants requested that changes be made to the policy concerning the
employment of general assistants at their schools. Representations
were made to
the WCED in support of the claim that the general assistants at the HOA Elsen
schools be employed by the WCED. All
the schools had the opportunity of raising
the issue and stating their concerns at the quarterly meetings. By the end of
1997 they
had taken legal advice and they knew then that in the process of
rationalisation and redeployment that was to take place, the WCED
contemplated
giving preference to its employees over those of the schools. They were told
this approximately two years before the
policy was finally adopted. If they
wished to add to the representations previously made, they had ample opportunity
of doing so
before the policy was finalised. In fact, it was during this period
that the first applicant pursued the matter and sought and secured
an interview
with the provincial premier to put its case to him. In my view it cannot be
said that in these circumstances the requirement
of procedural fairness was not
complied with.
[106] In his judgment Ngcobo J holds that the WCED
infringed the rights of the appellants by failing to consult with them
concerning
the implementation of the
scheme.2[4] 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.
[107] 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 WCED in their answering
affidavits lodged on
14 February 2000. The appellants, in replying affidavits lodged some two months
later on 17 April 2000, complained
that they had not been included in the
negotiations that had taken place between the WCED 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
“The fair and proper course of action is to first bring the applicant schools in line with all other schools. At that point negotiations between respondents and the trade unions, if necessary, will be meaningful.”
[108] This was not the relief claimed in
the notice of motion. But subsequently, on 30 June 2000, the appellants amended
their Notice
of Motion to withdraw the claims previously made by them. Instead
the appellants sought a declaration of rights that the failure
by the WCED to
employ the general assistants in their employ was in conflict with their rights
under Chapter 2 of the
Constitution2[5] and an order
directing the WCED to employ them. This, in effect, brought the Notice of
Motion in line with the averment made by
Mr van der Merwe in his
affidavit.
[109] Some two months later on 31 August 2000 - and only
thirteen days before the date on which the application was to be heard -
the
appellants lodged supplementary affidavits covering 92 pages, in which they
complained about the impact that the scheme would
have on them. The WCED then
lodged affidavits dealing briefly with these matters. The issues thus raised
concerned the impact that
the scheme would have on the schools, the general
assistants employed by them, and the children at their schools. These matters
have been dealt with fully in this judgment.
[110] In his supplementary
affidavit Mr van der Merwe again mentioned that the appellant schools had not
been consulted on the details
of the scheme or its implementation, but the
appellants did not seek any relief in that regard other than the relief claimed
in the
amended notice of motion. Under the heading “relief sought”,
Mr van der Merwe said:
“It seems clear that the most equitable and logical way forward is for the WCED to first appoint all general assistants at the applicant schools, and thereafter to negotiate the implementation of its new policy with representatives of all workers at ELSEN schools.
In the premises I humbly request the honourable Court to grant the relief as prayed for in the amended Notice of Motion.”
[111] The
further affidavits lodged by the WCED in response to the supplementary
affidavits of the appellants included an affidavit
by Mr Elliott, the director
of its personnel management, in which he said:
“The approach of the applicants has, throughout, been that the general workers presently employed by the governing bodies should be henceforth employed by the WCED. That in essence is the relief sought in terms of the amended Notice of Motion recently delivered by the applicants.”
[112] The appellants did not dispute this
averment. Nor did they raise any objection to the details of the way the scheme
was to
be implemented that were set out in a circular attached to Mr
Elliott’s affidavit. On the contrary, at the hearing before
the High
Court the appellants tied themselves to the relief that they had claimed in the
amended notice of motion. This is emphasised
by Brand J in his judgment where he
says:
“[A]pplicants specifically want BC 22 [the provisioning scheme] to be implemented with the exception that they want all the general assistants currently employed by them to be employed by the WCED.”
If the appellants had sought other relief, the
WCED may have had an answer and the whole course of the litigation may have been
different.
[113] In its opposition to the application for leave to
appeal the WCED said:
“The relief which the Applicants sought was an order directing that the Respondents appoint all the general workers currently employed at the eleven schools represented by the Applicant governing bodies . . . The Applicant schools did not ask for an order setting aside the Personnel Provisioning Measures issued by the Western Cape Education Department, nor did they ask for any order directing that such measures be set aside pending the holding of consultations with the Applicant schools in relation to the Personnel Provisioning Measures.”
The appellants did not dispute
this contention or suggest that they might on appeal wish to change the position
taken by them in the
High Court. The WCED directed their opposition in this
Court to the only issue raised by the appellants, and that was whether the
general assistants employed by them should have been taken onto the
establishment of the WCED. For their part, the appellants persisted
in this
Court in their claims as formulated and at no stage did they seek to amend or
amplify the relief claimed.
[114] There are 1750 educational institutions
in the Western Cape, each of which will be affected in different ways by the
implementation
of the scheme. The WCED was obliged in terms of the Labour
Relations Act 2[6] and the
collective agreements between itself and the public service unions representing
its employees, to negotiate with the unions
on the question of retrenchments.
The general assistants were not, however, employees of the WCED and there was no
statutory or
contractual obligation to negotiate with them. Nor was there any
statutory obligation to negotiate with the schools concerning changes
of policy
or levels of staffing. The schools were kept informed of developments at
quarterly meetings and had the opportunity to
raise their concerns there. Even
if the WCED was obliged to do more than this and to consult with the schools on
the manner in which
the new provisioning scheme was to be implemented (and I
express no opinion on that issue), the appellants have not objected to the
details of the plan for the implementation of the scheme and have sought no
relief in that regard. The only relief they sought was
the substantive relief
concerning the employment of their general assistants. That claim was correctly
dismissed by the High Court.
[115] I am therefore unable to agree with
Ngcobo J that the appellants are entitled to relief in the form proposed by him.
This was
not the relief sought by the appellants in the High Court or in this
Court, and it is inconsistent with the attitude adopted by the
appellants
throughout the litigation.
[116] The appellants did not seek a
postponement of the hearing of the appeal to enable them to amend the relief
claimed and to place
additional evidence before the Court. If they had, the
WCED would have been able to deal with such averments and, if it considered
it
necessary to do so, would have been able to place evidence before this Court on
that issue.
[117] Prince v President, Cape Law Society and
Others2[7] was an exceptional
case in which this Court decided to hear additional evidence on appeal. The
factors taken into account in doing
so were
“the validity of Acts of Parliament that serve an important public interest is in issue; the constitutional right asserted is of fundamental importance and it goes beyond the narrow interest of the appellant; the validity of the impugned provisions has been fully canvassed by a Full Bench of the High Court and that of five Judges of the SCA; the course which the litigation took in the High Court and the SCA; and the appellant is a person of limited resources.”2[8]
It
was also stressed that there could be no prejudice to the parties if they were
granted leave to adduce further evidence necessary
in order for the Court
properly to decide the issues presented to it in the
appeal.2[9]
[118] The present
case is quite different. The relief claimed does not concern an Act of
Parliament which affects the general public,
but the particular interests of the
appellants, and no doubt of their employees who might be affected by the
implementation of the
scheme. The issue of implementation has not been
canvassed in any other court. The course the litigation took was not the result
of any uncertainty as to the correct procedure to be followed in constitutional
litigation. It was the result of a decision deliberately
taken by the
appellants. They tied themselves to a particular form of relief and as a result
the High Court was not asked to consider,
and did not consider, whether the
implementation of the scheme should be deferred pending further consultation
with the appellants.
I am also not satisfied that the re-opening of the case at
this late stage would not cause prejudice to the respondent and possibly
other
parties affected by the scheme.
[119] In Prince’s case it
was made clear the parties must make out their case in their founding papers and
will not ordinarily be allowed to supplement
and make their case on
appeal.3[0] In my view, although
this Court may have greater flexibility than the Supreme Court of Appeal in
allowing additional evidence on
appeal, it is a power which should not be
exercised unless the circumstances are such that compelling reasons exist to do
so. Those
circumstances existed in Prince. They do not in my view exist
in the present case.
Rationality
[120] The appellants contended that the decision taken concerning the general
assistants at their schools is irrational and thus unlawful.
This is the same
argument as that raised in relation to the claim based on section 9(1). It must
be rejected for the same reasons.
Did the WCED apply its mind to the
appellants’ representations?
[121] Counsel for the appellants
submitted that the WCED did not apply its mind to the effect that the
implementation of the rationalisation
and re-deployment scheme would have on the
appellants and the children at their schools. If it had, so it was contended,
it would
have realised that the implementation of the rationalisation scheme,
without first appointing the general assistants at the schools
to its staff,
would cause hardship to the appellants and the children.
[122] No
averment is made in the founding or replying affidavits that the WCED failed to
apply its mind to the impact its policy would
have on the appellants or the
children at their schools. It is, however, clear that the WCED did consider the
representations and
that it rejected them. Its reasons for doing so are known.
The real question is thus whether in the light of the reasons given
the
WCED’s policy can be said to infringe the appellants’ rights to just
administrative action.
Justifiability
[123] Sub-item (iii) of
item 23(2)(b) of schedule 6 to the Constitution makes provision for every person
to be given reasons for administrative
action which affects their rights or
interests, and sub-item (iv) vests a right in every person to administrative
action “which
is justifiable in relation to the reasons given for it where
any of their rights is affected or threatened.”
[124] Counsel for
the appellants did not contend in their argument that the requirements of
sub-item (iv) had not been complied with.
However, their argument on equality
and also on rationality and the submissions they made concerning the unfairness
of the policy
covers ground that might well be relevant to
justifiability.
[125] The only right of the appellants alleged to have
been infringed by the policy was their right to equality. I have dealt with
that, and in view of the conclusion that I reached in that regard, the claim
under item 23(2)(b) must be dealt with on the basis
that the policy does not
infringe any “rights” of the appellants.
[126] We have
heard no argument as to the meaning of sub-item (iv) and in particular no
argument as to what is meant in the context
of the sub-item by
“rights” and “justifiable”. In the absence of such
argument it is not desirable to say
more about such matters than is absolutely
necessary for the purposes of this judgment.
[127] The approach now
adopted by the courts of England to judicial review in public law cases, is that
“the intensity of review
. . . will depend upon the subject matter in
hand”.3[1][127] Thus, action
affecting rights protected under the Human Rights Act usually calls for
heightened scrutiny and more intensive
review than action affecting other rights
or interests. As we have heard no argument on whether under our law the
intensity of review
in cases involving the infringement of particular rights may
require a stricter standard than rationality, I prefer to express no
opinion on
that issue. The present case is concerned with policy matters relating to
attempts to introduce equity into an inherently
unequal education system, with
all the difficulties attaching to that. The changed policy does not infringe
any constitutional or
other rights of the appellants. It is a case in which
courts should tread warily.
[128] Largely for the reasons given by me in
dealing with the claim based on equality, I am satisfied that even if sub-item
(iv)
is applicable to the appellants’ claim, and even if justifiability
may in certain cases permit a standard of review more intensive
than review for
rationality, this is not a case in which it would be appropriate to set a higher
standard, or for this Court to interfere
with the decision of the
WCED.
[129] I would add only this. Policy is not written in stone. It
can be adapted from time to time to meet the exigencies of particular
cases. If
the appellants consider that their special needs call for some special
consideration in relation to the re-deployment
process, or the cost of
retrenchment, it remains open to them to continue to press their case for such
relief. But it is the Department
and not this Court that must decide this
question.
Costs
[130] The appellants contend that they were
entitled to bring the application for information and that an order for costs
ought not
to have been made against them in the High Court. The application was
launched before the appellants had been advised of the decision
concerning the
rationalisation and redeployment of staff. That decision was in fact taken only
a few days before proceedings were
commenced in the High Court. After they
became aware of the decision the appellants did not persist in their claim for
information;
instead they sought substantive relief on the same papers on the
grounds that the implementation of the decision would infringe their
constitutional rights. That was the real dispute between them and the WCED, and
little if any costs would have been saved if they
had received that information
before they launched the application, instead of immediately after it had been
launched. They lost
the real dispute in the High Court and on that ground alone
Brand J would have been entitled to order them to pay the costs of the
application, other than the costs of preparing the application for
information.
[131] This court should not be required to determine
questions of law that have no relevance other than the responsibility for costs
of aborted litigation, particularly where those costs are but a small fraction
of the costs that have been incurred.
[132] The appellants have failed.
However, their appeal, which raised important issues of constitutional law, was
not without substance.
The appellants instituted proceedings in the interests
of their schools and the children they serve. There is, as Brand J said,
every
reason to have sympathy for them and their cause. Justice will be done if the
[132] appeal is dismissed and no order is made as to the costs of the appeal.
[133] I accordingly make the following
order. The appeal is dismissed. No order is made as to costs.
Goldstone J, Kriegler J, Yacoob J, Madlanga AJ, Somyalo AJ
concur in the judgment of Chaskalson CJ.
MOKGORO AND SACHS
JJ:
[134] Introduction This case raises important questions about when it is appropriate for a court to intervene in matters of public administration. Section 33 of the Constitution gives everyone the right to administrative action that is procedurally fair and that is justifiable in relation to the reasons given for it. The majority judgment prepared by Chaskalson CJ comes to the conclusion that the educational authorities in the present matter behaved in a manner that was procedurally fair, and that, insofar as the papers can be said to have [134] made out a challenge based on justifiability, acted in a justifiable way.
[135] In our view, the majority judgment
places undue emphasis on the circumstance that the general assistants at the
appellants’
schools did not have a contract of employment with the Western
Cape Education Department (WCED) and that the WCED therefore had no
obligation
to give them the consideration they claimed. We are of the view that although
formally employed by the appellants’
schools and not by the Department,
such assistants were in effect public servants working in government schools in
exactly the same
way as the general assistants at other ELSEN schools. As such,
administrative justice required that they be given a right to participate
in
negotiations as to retrenchment similar to that afforded to their counterparts
in other ELSEN schools. Furthermore, when it came
to the implementation of the
redeployment scheme, it was unjustifiable to operate the Last-In-First-Out
(LIFO) principle in a manner
which categorically disregarded the dedicated years
which many had spent in government schools looking after children who were
autistic,
without sight or hearing, affected by cerebral palsy or other
disabilities.
[136] We do not suggest that this case presents an example
of egregious targeting or intentional neglect based on unacceptable
considerations.
On the contrary, the papers indicate conscientious attempts to
reconcile a vast range of competing considerations with as much overall
fairness
as could be achieved. We accept that in the present matter the WCED inherited
not only a fragmented education system, but
a grossly inequitable one.
Redistribution of resources was necessary. One cannot deny that for a young
democracy facing immense
challenges of transformation, the need to ensure the
ability of the executive to act efficiently and promptly is
important.[1] The overall scheme
the WCED produced was negotiated over many years and has a number of
interrelated dimensions, making it necessary
to have regard for the package as a
whole. It is not always easy or appropriate to disentangle one particular
aspect from the rest.
Decisions of an economic nature involving policy
considerations as to allocation of resources were, in the absence of more, a
province
of the Province.
[137] Nevertheless, in the hurly-burly of the
process, the appellants’ schools were knowingly, even if not maliciously,
left
by the wayside. We believe that the administration has to be disciplined
by the principles of fundamental fairness as set out in
section 33 of the
Constitution, and that the categorical exclusion of the general assistants at
the appellants’ schools both
from the processes concerned with
re-deployment, and from the right to have their length of service taken into
account, manifested
unfair treatment, and entitled them to judicial
relief.
The Factual Background
[138] Since 1976, and
particularly during the 1990s, the appellants’ schools frequently raised
their concerns about the unfair
consequences of their general assistants not
being on the “Official Establishment” of the schools with the
relevant education
department. As soon as the WCED was created, it acknowledged
that there were disparities which had to be addressed. The issues
had, however,
never been resolved.
[139] The attitude of the WCED to the appellants,
not always consistent, can be gleaned from the papers. Mrs. W.T. Wilkinson,
Acting
Head of Education, in a letter to Mr. Van der Merwe, chairman of the Bel
Porto Governing Body (the First Appellant), noted in 1995
that there was a need
to provide uniform establishments for the general assistant posts for schools,
and that negotiations should
take place between experts of the former
departments, and the educational guidance service, and school principals. The
Sub-Directorate:
Work Study should be utilized to determine the envisaged staff
provisioning scales as soon as possible.
[140] The Head of Education,
responding in 1996 to a letter of Dr. Patrick Normand, chairman of the Vera
School Governing Body (the
Second Appellant), stated that:
“[m]ost of the non-teaching personnel to which you refer in your letter will be placed on the staff establishment of the Western Cape Education Department once these new staffing scales have been approved and made official.”
[141] In 1997, the appellants, through
rumour we are told, had heard that retrenchments were looming in the WCED, as a
consequence
of the staff rationalisation which they had heard formed part of the
education transformation process[2]
and was to be embarked upon by the WCED. The appellants became concerned about
the possibility of retrenchments at their schools,
and the implications for
staff and learners that would ensue. That their already unbearable financial
situation would be compounded,
intensified their concern. They themselves, as
opposed to the WCED, would have to bear the cost of retrenchments when they
could
least afford it. They began to press the WCED vigorously for details
about its plans, particularly after some initial very general
information about
the WCED’s plans was disclosed.
[142] On 16 May 1997, the
Chairman, Board of Management of Dominican-Grimley School (the Third Appellant),
wrote to the head of the
WCED, as follows:
“The future status of Board employees vis-a-vis Department employees
From information given at the ELSEN Principals’ Meeting held at the Eros School on 5 May, it seems that there is a strong possibility that the services of General Assistants paid by the Board might have to be terminated in order to create vacancies for employees of the Department who, for whatever reason, have been declared redeployable. In ordinary terms such treatment of loyal and, in many cases long-standing, employees would amount to rank injustice to an already disadvantaged category. In terms of the Constitution of South Africa we are advised that “unfair discrimination” and “unjust administrative procedures” could be cited.
The Department is earnestly requested, firstly, to expedite the distribution of the official Establishment for Non C-S Educators. Secondly, the Department is requested to devise a just and equitable policy specifically applicable on a once-off basis to accommodate the needs and rights of General Assistants presently employed by Boards of Management at ex House of Assembly Schools for Specialized Education.”
On 2 June, 1997, Dr Theron of
the Department responded:
“The rectification of disparities in the working conditions and benefits of workers in the former Departments of Education has been delayed by the process of establishing the new Western Cape Education Department (WCED), with a new Act, supported by the appropriate Regulations, having to be drafted and promulgated, but I am pleased to inform you that the WCED is at last in a position to resolve this issue.
The new South African Schools Act stipulates that all schools will soon become either public or private institutions. This means that workers at public schools, of which Dominican Grimley will be one, will become civil servants, irrespective of their former Departmental affiliations, and will enjoy equally the benefits applicable to their ranks and vocational categories.
Regarding the position of General Assistants paid by the Board when schools become public institutions, I want to assure you that the WCED will strive to avoid any unfairness or injustice in the handling of this matter.”
On 8 August 1997, the school wrote to the
Department, imploring the WCED to indicate when the matter would be finalised.
On September
30, the Department responded as follows:
“As stated in our letter of 30 May 1997 the South African Schools Act, 1996 (Act 84 of 1996) made it possible for all general assistants to become civil servants irrespective of their former status as employees of governing bodies of state subsidized schools. This ruling will also be applicable to the general assistants at the Dominican Grimley School.
However, due to a number of factors this issue could not be finalised yet. The various trade unions and other stake holders must still be consulted, a cut back of 12% of all non-educator posts must be implemented and the financial implications must be taken into consideration before a final decision could be taken on this complicated issue. The Western Cape Education Department (WCED) will however try to accommodate as many general assistants as possible but no guarantee of the number can be given.”
The appellants
sought information about the WCED’s rationalisation plans in letters dated
27 October and 9 December 1997. They
sought the information in order to
determine the extent to which these plans would affect their schools. The
response which was
received from Dr. Theron of the Department on 12 December in
essence stated:
1. The great majority of the general assistants at the former Department of Education and Culture, Administration: House of Assembly’s state-sponsored schools for Special Education (Elsen Schools) were not public servants of the Department or another government department, but were employed through the governing bodies of these schools and their salaries were paid by the schools out of their own funds and/or through subsidies received from the government. For this purpose, all of these schools must register as employers. These schools, like the former Model C schools, handled the personnel in question. The general assistants in question were therefore under the management of the schools concerned, and not therefore of the government. It should be mentioned that the schools decided themselves about the number of personnel they would appoint.
2. The abovementioned personnel at equivalent schools of the Department of Education and Culture; Administration: House of Representatives were, however, in the employ of the government.
3. After the former Department of Education and Culture, Administration: House of Assembly was established, the schools concerned began suffering financial hardships, and rationalisation of posts was beginning, so the abovementioned 12 schools thereafter made demands for the general assistants to be placed on the establishment of the WCED.
4. The WCED, however could not do this, considering that a new establishment for non-CS educators had to be created and negotiated, the Department’s budget had been drastically reduced, and in the first place the WCED had to make provision for its own staff who might become redundant. The process of determining staffing norms is presently under discussion in the bargaining chamber with the relevant unions. In the meantime, ad hoc subsidies were being given to these schools concerned to specifically subsidies their personnel expenses.
5. It should be pointed out that the WCED cannot construct these new conditions of service necessarily in terms the personnel needs of the schools, but in terms of what the WCED is able to finance.
6. Furthermore, it should be pointed out that the new concept for schedules of service makes provision for equal conditions of service in respect of the relevant former schools. The same norms would be applied to all schools.
7. If in terms of the abovementioned rationalisation scheme there should be posts vacant after the rationalisation and re-deployment of departmental personnel, the general assistants at the schools could apply for positions. However, no assurance could be given that they would be appointed.
The letter did not provide sufficient information
to enable the appellants to determine the extent of the impact upon their
schools,
their general assistants and learners, of the WCED’s plans. They
could not therefore respond to the WCED and present proposals
to mitigate the
effects of the Personnel Provisioning Measures (PPM).
[143] This letter
made it clear that staffing levels had not yet been finalised, and that further
negotiations were continuing.
Although we were not told in the papers or in
Court why an application was not launched until November 1999, it is possible
that
the appellants hoped that they would receive information, and perhaps even
be included in discussions regarding the WCED’s
plans and their
implementation. The appellants stated that when further information was not
forthcoming, they resorted to an application
in the High Court to compel the
respondents to provide them with the necessary information. They further sought
an order permitting
them to approach the High Court once the respondents had
provided the information if it proved necessary. The appellants stated
that
they felt left in the dark, as there was no consultation, and averred that the
Department did not properly investigate the situation
at their schools.
Chaskalson CJ in his judgment for the majority notes that it is not surprising
that the appellants were unable
to get clear answers at the meetings between the
WCED and the principals as to what the policy would be, since the policy was
only
finalised shortly before the proceedings were
commenced.[3]
[144] Only
some of the information was provided in the answering affidavits of the
respondents, including, most notably, the envisaged
rationalisation blueprint of
the WCED: the PPM. After reading the PPM, it was clear to the appellants that
the WCED had no intention
of appointing the general assistants at the
appellants’ schools to the posts to be established. The appellants
amended their
notice of motion, applying for an order:
“ 1. Declaring the Respondents’ failure to employ the general assistants presently employed by the Applicants, to be in conflict with the fundamental rights entrenched in chapter 2 of the Constitution of the Republic of South Africa and therefore unlawful.
2. Directing the Respondents to employ the general assistants presently employed by the Applicants.
3. Granting further and/or alternative relief.
4. Directing the respondents to pay the costs of the application relating to:
4.1 the aforesaid relief.
4.2 the relief sought in prayer 1 of the notice of motion prior to the amendment thereof.”
[145] The Cape
High Court rejected their application with costs, Brand J declaring that the
WCED could not be compelled to renege
on its agreements with trade unions and
their individual employees.
[146] In the papers, and at the hearing of
this case, the WCED clearly expressed the view that it was not necessary in
connection
with provisioning, to consult with the appellants’ schools or
to make any efforts to consult with their general assistants,
although they well
knew that the general assistants would be affected by the implementation of
their policy. The evolution and communication
of this policy of categorical
exclusion is fully dealt with in the majority judgment. Mr. O’Connell for
the WCED, in his affidavit
sums up the position with the blunt statement that
“[t]he provisioning of posts is not a matter to be negotiated between the
governing bodies of schools and the WCED.”
[147] Having eliminated
the appellant schools from negotiations over implementation, the WCED in fact
held consultations with six
unions representing employees within the
WCED.[4] From the papers, and oral
argument presented by counsel for the respondents, it is apparent that the WCED
was negotiating only with
representatives of current employees of the
Department. There were no representatives bargaining on behalf of the general
assistants
at the appellants’ schools.
The issues before the
Court
[148] The appellants raised several issues before this Court.
They argued that the failure of the WCED to appoint their general
assistants and
pay their salaries, as is the case with other ELSEN schools in the Western Cape,
creates inequality between the former
and the latter. Unless this inequality is
corrected before the implementation of the PPM, they averred, such
implementation will
result in the appellants being unfairly discriminated
against in violation of their constitutional right to equality in terms of
section 9 of the Constitution. They also argued that there was a violation of
their right to just administrative action in terms
of section
33.[5] Their basic argument on this
score was that the failure of the WCED to give them a proper hearing prior to
the implementation of
the PPM violated their right to procedurally fair
administrative action. In the letter of demand which preceded their institution
of proceedings in the High Court however, they stated that the actions of the
administration were in fact unjustifiable. In the
flurry of amendments intended
to respond to the information provided in the respondents’ affidavit, they
did not expressly
go on to pursue an argument based on absence of
justifiability. Nor in argument before this Court did they in terms raise the
question
of whether or not the refusal of the WCED to employ the general
assistants resulted in administrative action that was not justifiable
in
relation to the reasons given. They did nevertheless consistently maintain that
the process had led to results that were unfair,
unreasonable and unjustifiable.
This in fact was the basis for the contention that they were being denied their
right to equality.
[149] It is unfortunate that the issue of the
justifiability of the administrative action was not argued as such before us.
We do
believe, however, that it was implicit in the claim being made,
particularly in respect of the disproportionately harsh impact that
the measures
would allegedly have on the appellants’ schools. This is an area of
considerable novelty and controversy. The
common law in our country and abroad
has been undergoing notable evolution. The impact of the Constitution has been
touched upon
but not fully explored in our jurisprudence. We accordingly
believe that in the present matter, which is concerned with questions
of basic
fairness rather than matters of form, it would be inappropriate to exclude from
consideration constitutional claims which
were vigorously advanced with strong
factual foundations, because the format used turned out not to present the
appellants’
claims at their strongest. The central focus of the case has
always been the basic fairness or unfairness of the procedure followed
and the
outcome arrived at.[6] In our view,
the same factual considerations which were fully canvassed in respect of the
argument relating to irrationality, are
foundational to the question of
justifiability, which we believe lies at the heart of the matter.
[150] It should be stressed that in this Court the appellants made no
challenge to the PPM themselves, but merely sought to rectify
what they
considered to be an injustice in the way the measures were to be implemented.
Similarly, with respect to their argument
on the right to just administrative
action, what was under attack before the High Court was the unfairness of the
procedure adopted
and the disparate impact of the PPM on the appellant schools.
In this Court, the appellants’ challenge went to the unfairness
of the
effect of implementing the PPM without due consideration of their interests. It
is clear that the remedy they seek is to
correct the unfairness which they
consider the implementation will give rise to, rather than to try to turn the
clock back and have
the whole scheme revisited. For reasons which follow, we
have come to the conclusion that their right to just administrative action
has
been infringed and that appropriate relief of a feasible and practical kind can
be granted. As a result, we do not find it necessary
to deal with the arguments
raised on the question of their right to equality.
[151] There was
clearly a dispute between the parties on the papers and in argument regarding
the duty of the WCED to consult with
the appellants or with representatives of
the general assistants at the appellant schools, and whether or not such a duty
to consult
as existed was carried out. In light of our findings on the issue of
whether the WCED’s decision was justifiable in relation
to the reasons
given, we do not feel it necessary to deal with the issue of procedural
fairness.
The right to just administrative action in terms of section
33
[152] Section 33 enumerates four aspects of just administrative
action. Prior to the enactment of the Promotion of Administrative
Justice
Act[7] item 23(2)(b) of schedule 6
to the Constitution provided that section 33 is deemed to read as follows:
“Every person has the right to—
(a) lawful administrative action where any of their rights or interests is affected or threatened;
(b) procedurally fair administrative action where any of their rights or legitimate expectations is affected or threatened;
(c) be furnished with reasons in writing for administrative action which affects any of their rights or interests unless the reasons for that action have been made public; and
(d) administrative action which is justifiable in relation to the reasons given for it where any of their rights is affected or threatened.”
The theme of fairness must be
seen as governing the manner in which the four enumerated sections must be
interpreted.[8] The words
themselves have no fixed and self-evident meaning. Unless animated by a broad
concept of fairness, their interpretation
can result in a reversion to what has
been criticised as the sterile, symptomatic and artificial classifications which
bedevilled
much of administrative law until
recently.[9] Undue technicality
and artificiality should be kept out of interpretation as far as possible; the
quality of fairness, like the
quality of justice, should not be strained. There
are at least three respects in which the concept of fairness should be seen as
animating section 33. The first is to provide the link between the four
enumerated aspects so that they are not viewed as separate
elements to be dealt
with mechanically and sequentially, but, rather, as part of a coherent,
principled and interconnected scheme
of administrative justice. Secondly, the
interpretation of each of the individual subsections within the framework of the
composite
whole must be informed by the need to ensure basic fairness in
dealings between the administration and members of the public. Thirdly,
the
appropriate remedy for infringement of the rights must itself be based on
notions of fairness.
[153] The jurisprudence of transition is not
unproblematic. This Court has emphasised the need to eradicate patterns of
racial discrimination
and to address the consequences of past discrimination
which persist in our society.1[0]
This relates to substantive fairness, which focuses on the effect or impact of
government action on people. This Court has also
emphasised the obligation upon
the government to exhibit procedural fairness in decision-making. A
characteristic of our transition
has been the common understanding that both
need to be honoured. The present case highlights a particular aspect of that
complex
process, in which a court may be called upon to examine both the
procedural fairness of the decision and substantive fairness, or
fairness of the
effect or impact, and in that examination these two aspects may to some extent
become intertwined. It is necessary
to determine the circumstances in which a
court, looking at a scheme that as a whole passes the test of constitutional
fairness,
can and should detach a detail which, viewed on its own would be
constitutionally unfair. Although there is disagreement between
us and the
majority on procedural fairness, we do not find it necessary to decide the
procedural question. In our view the impact
on the appellants of the manner in
which the scheme was to be implemented is disproportionately deleterious and
unjustifiable. We
proceed to give our reasons.
[154] Before
applying this section to the present case, we make two general observations.
First it is necessary to underline the
impor