IN THE HIGH COURT OF SOUTH AFRICA 
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

In the matter between:

and
THE PREMIER OF THE PROVINCE, 

THE MINISTER OF EDUCATION OF THE 

JUDGMENT

First and -second respondents are respectively The Premier and the Minister of Education for the Province of the Western Cape.

After respondents filed their .answering affidavits, applicants amended their notice of motion. The.import of the amendment is that the applicants no longer seek any reports or .information. The :relief.they now seek appears from prayers 1 and 2 of the amended notice of motion. The relevant part of these prayers reads as follows:

2. Directing the respondents to employ the general assistants presently employed by the applicants."
Applicants also seek an order that respondents be directed to pay  the  cost   of   the  proceedings,   including  the   costs pertaining to the relief sought in the notice of motion, as originally formulated. 

Background
The exact nature of the issues between the parties and the factual background against which these issues are to be decided   appear   from  what   follows.	The   Western   Cape Education Department ("WCED") has a Directorate dealing specially with Elsen Schools. At present there are 78 such schools involving approximately 12 400 learners who fall under the auspices of this special Directorate. Learners in Elsen Schools have special needs. What is pertinent for the purposes of this case, they need assistance - depending to a certain extent on the:nature of their disability - with things such as dressing, bathing, travelling and assistance to teachers in classes. These functions are all performed by so-called general assistants.

After the merger in September 1995, the differences regarding the employment of general assistants persisted. At the 12 former House of Assembly Elsen Schools, including the 11 applicants, the general assistants were still employed and paid by the governing bodies while at the other 66 Elsen-Schools these workers were paid by the WCED. The former House of Assembly .schools .were .disadvantaged by the system in.:that ..the subsidy.-they .received .for salaries did not-cover. the salaries."of -the :.general-"assistants in full. This, in substance, was the factual position when the application was launched.

The applicants felt that they were unfairly discriminated against. They therefore sought information from respondents which would,, so they hoped, serve as a basis for a further application by them to compel the WCED to treat applicants on the same footing as all other Elsen Schools, by employing their general assistants directly, or as it was succinctly stated on behalf of first applicant:
"Although the applicants only seek information at this stage of the application, the applicants in the final instance merely wish to be treated on the same footing as all other Elsen Schools in the Western Cape." 

In their answering affidavits, respondents agreed with applicants that they were entitled to the same treatment as other Elsen Schools. In fact, so respondents state, one of the very first objectives of the WCED, after the merger of the schools from different -departments, was to create a system of parity between all schools.

The-main answering affidavit .on behalf of respondents was deposed to-by the .Superintendent-General of :the WCED, Mr Brian O'Connell. When the WCED took over the functioning of the four erstwhile departments, O'Connell explains, it was confronted with many wide-ranging disparities between the schools administered by them. .Consequently, the WCED was confronted with the formidable task of pooling resources, staff and finances in order to ensure that education, in the Western Cape will be conducted on a fair and proper-.basis. This "rationalisation programme, he states, has been ongoing for over four years and has .not yet been finalised.

It appeared -that the task team interviewed many people and considered and discussed numerous documents. Eventually they brought . out their report containing suggested guidelines for personnel provisioning scales. These guidelines formed the basis of further discussions with various interested parties, including school principals.	Consequent   upon   these   discussions,    the
guidelines for personnel provisioning were revised and amended in subsequent drafts. These subsequent drafts then formed the subject of further discussions with trade unions attached to the Provincial Bargaining Commission.' Thereafter, personnel provisioning scales were prepared for approval by the various officials and functionaries within the Provincial Government and eventually by the Cabinet of the Western Cape itself. The Cabinet's final approval of these scales was only conveyed to the WCED on 2 November 1999 i.e. shortly before the present application was launched.

The personnel provisioning scales or measures, as finally approved by-the Cabinet, is-annexed to O'Connell's affidavit as Annexure BC22. For the sake of convenience I will refer to this important document simply as "BC22". The general plan embodied in -BC22, so O'Connell stated in his affidavit deposed to on 14 February 2000, now stands to be implemented. BC22 has certain Annexures. Three of these Annexures are relevant for present purposes, namely Annexure A3, A4 and A5.

As an introduction to A3 and A4 it is stated that:

It appears that these weighting factors had been determined in   consultation  with   the   sub-department   within   the   WCED responsible for Elsen Schools.     Annexure A3 contains a list of   all   Elsen   Schools   together   with   a   weighting   factor attributed to every particular school. So, for example, second applicant   (which is a school for autistic learners) has a weighting factor of 9. The same weighting factor is also  attributed   to   other   schools   for  autistic   learners, formerly governed by other departments.

The consequence of applying this weighting factor,  for example, is that second applicant, with its enrolment of 77 learners, will be entitled to the same number of non- teaching staff as a mainstream school with an enrolment of
693   learners.	To  give   another  example,   the   weighting
factor allocated to first applicant that provides education for learners with cerebral palsy and/or learners who are severely mentally handicapped is 4, while the weighting factor  for  7th applicant,   a  school   for  the blind,   is   5.

Annexure A4 provides the norms for determining the number of .staff for hostels attached to Elsen Schools. It also employs the principle of weighting factors, although the weighting factors differ from those set out in Annexure 3. Thus, for example, the weighting factor for second applicant in Annexure 4 is 4.5 as opposed to the 9 in Annexure 3 and for 7th applicant, 2.5 as opposed to 5 in Annexure 3.

Apart   from .the  benefits  derived  from  the   system  of weighting factors,   further benefits  for Elsen Schools  are provided for in Annexure ,A5' to be BC22. The introduction to this Annexure reads as follow:

"Besides   the   abovementioned   post   allocation,   a need exi,sts for drivers and class aids at schools for special' education. The need for such posts differ from institution to institution as well as from year  to year,   subject   to  the  enrolment of needy pupils who require their services. It has been accepted that an allowance be paid to these schools so that these services can be purchased." 

Mentally handicapped
Class aid: R700 per learner.
Driver:       R70 0 per learner.
Autistic
Class aid: R2 100 .per learner.
Driver:	Rl 700 per learner.

	Finally, O'Connell responded to applicants' complaint that they i.e. applicants themselves are compelled to raise funds in order to pay the salaries of. their general workers. 0'Connell's answer to this is a reference to:

"The sad fact that.the State simply does not have sufficient funds to meet all of the needs of all of the educational institutions and pupils in the country."

As a consequence, he states, all education institutions in the Western Cape have to participate in various fund-raising activities in order to meet their requirements.

	The answering affidavits were filed on 15 February 2000. Applicants filed their replying affidavits on 26 April 2000. On 8 August 2000, applicants effected the. fundamental amendment to their notice of motion that I have already alluded to. The consequence of the amendment was, in substance, that applicants are no longer seeking information but that they are seeking an order compelling the WCED to employ the general workers who are at presenc employed by applicants. In support of the relief sought in their amended notice of motion, supplementary affidavits were filed by applicants on 1 September 2000.      The supplementary affidavits are primarily based on the contents of Annexure BC22 to O'Connell's answering affidavit. The first complaint by some of the applicants on the basis of this document is that upon implementation .of the personnel provisioning- measures contained in BC22, the WCED will provide them with a lesser .number of general .assistants than the number "currently employed by. applicants themselves. This complaint is not shared by all the applicants because it appears from applicants' own calculations that some of them will have more general assistants than currently employed by them when BC22 comes into operation.	

	
"The implementation of this formula (i.e. BC22) at other Elsen Schools where all general assistants are in the employ of WCED would mean that many general assistants would have to be redeployed or otherwise retrenched. If the WCED redeploys these workers at the applicant schools, loyal workers with many years' service would have to be retrenched by the applicant schools, which would be mos,t unfair and would probably lead to a serious drop in morale amongst the remaining workers." 

Furthermore,  applicants alleged:
"It is important to bear in mind that general assistants  at  applicant  schools  assist   learners with most intimate tasks  (like personal hygiene) and that the personal relationship that exists between assistants and learners is important for the effective functioning of these schools."

transfers to other schools, Elliott states, will however be effected in consultation with the governing body of the recipient schools. The governing body concerned will be entitled to decline to accept a particular ..transfer, provided that the governing body will be required to motivate its objection to the candidate concerned.

Administrative justice

"A pull on one strand will distribute tensions after a complicated pattern throughout the web as a whole.     Doubling the original pull will, in all likelihood, ^ not simply double each  of the resulting tensions, but will rather create a different complicated pattern of .tensions. This would certainly occur for example if  the  double pull caused one or more of the weaker strands to snap. This is a polycentric situation because it is many-centred.     Each crossing of the strands is a distinct centre for distributing tensions." 

My second problem is that it will compel the WCED to renege on their agreement with trade unions and their present employees individually. I am simply not persuaded that such order will be competent.

Infringement of other constitutional riahts 

(a)	The fundamental rights of children,   section
28 of the Constitution.
(b)	The right to dignity,  section 10.

(d) The  right   to   freedom  and  security  of   the person, section 12.
(e) The right to housing,  section 26.
(f) The right to health care,  section 27.
(g) The right to equality,  section 9.

The consequence of these two concessions is, however, that it is no longer open for applicants to contend that they will not have enough general assistants if BC22 is implemented. As a further consequence, it is no longer open to applicants to rely on constitutional infringements which are dependent on the supposition that applicants will have an insufficient number of general assistants.

Applicants' second complaint alluded to in argument is
that as a result of the scheme adopted by the WCED they will
have assistants of a lesser quality. I believe that on the
papers before me there is more than one answer to this
complaint.	First,    according   to    the   uncontroverted

assistants from their own funds.

The result of all this is that applicants have failed to make out a case that upon implementation of Annexure BC2 2 the standard of their full staff complement of general assistants will be so low that the life, health, dignity or interest of the children for whom they are responsible, will be endangered or compromised.

"What is apparent from these provisions is that the obligations imposed on the State by sections 26 and 27 in regard to access to housing, health care, food, water and social security are dependent upon the resources available for such purposes and that the corresponding rights themselves are limited by reason of the lack of resources. Given this lack resources and the significant demands on them that have already been referred to, an unqualified obligation to meet these needs would not presently be capable of being fulfilled. This is the context within which section 27(3) must be construed." 

In paragraph 2 9 at page 776C:

On the facts before me, respondents have made out a case that they do not have sufficient resources to satisfy everybody's needs, but that they have over a period of some four years of consultation and deliberation, worked out a scheme of general application that will be equally fair (or unfair) to everybody concerned and that they have the genuine intention to implement that scheme as soon as practically possible. In these circumstances, and although I have great sympathy with the applicants and the unfortunate children for whom they care with obvious dedication, I cannot interfere with respondents scheme of general application in a manner that may throw the whole scheme out of kilter.

For these reasons the application for the relief sought in paragraphs 1 and 2 of the notice of motion cannot succeed.

The information application

"In short, the context of the right must be examined within the context within which it is claimed. The very wording of section 3 2 which contains the phrase 'required for the exercise of rights' points in the direction of such an enquiry, for what is required is dependent on the facts."

Prayer 1 of the notice of motion, in its original form,
reads like a notice for further and better discovery in terms of Rule 35(3). In the context of that request it is clear that the information sought was required for purposes of further litigation. For the sake of the present enquiry I will assume that applicants were entitled to such detailed information for the purposes of'further litigation, since that information was in any event .provided to applicants' apparent satisfaction in respondents' answering affidavits. For purposes of deciding the costs issue the question is, however, whether the same detailed information was sought by the applicants for the same purpose before they launched their application, i.e. in the preceding correspondence between the parties'. Upon my reading of such correspondence it was not. The tenor of the applicants' letters to the WCED, in general terms, are complaints that applicants are discriminated against in that their general assistants are not paid by the WCED and enquiries as to what the WCED intended doing to rectify this. These complaints and enquiries were answered in. the same general terms on behalf of the WCED. An example of such response appears from a letter to third applicant (i.e. the Dominican Grimley School)  dated 30 September 19.97. The relevant portion of the letter reads as follows:	

	Another  example"appears from a  letter written on  27 October   1998   by the   then   Minister  of Education for the Western Cape to the first applicant. The relevant part of
this letter reads:
"I wish to reiterate that the Western Cape Education Department policy with regard to the funding of schools is based on the principle of equity. In the light of this policy the WCED had identified disparities existing between schools belonging to different departments of the previous education dispensation as  a matter for urgent attention. Whilst I concur that inequities in the provision of staff at schools exist, it is important that you locate your argument concerning the" issue within the broader historical context. Schools in the ex House of Assembly and the ex House of Representatives were funded differently. In the case of Bel Porto and all ex House of Assembly Education Department Schools for Learners with Special Education needs, subsidies were paid for both their running costs and also for the salaries of general assistants appointed by the governing bodies of the schools.
In the light of the new dispensation and the creation of a single education department, the WCED is committed to working towards uniform policy practices pertaining to all schools. In the case of non-teaching staff,' my hands and that of the WCED are in fact tied, as the scales used to determine these allocations have to be negotiated in the Provincial Chamber as the WCED is bound by legislation and various collective agreements. You   also   should   note   that   the Western Cape is in the process of down-sizing and
therefore the creation of posts a: Bel Porto can
only take place upon the abolition of poses elsewhere. There   is   also   the   question   of redeploying employees who may be in excess, into vacancies   thus   created. At this stage any vacancy that arises is immediately frozen and only essential posts are filled." 

	As we have learnt with hindsight, the ultimate approval of the general scheme introduced in BC22 was only communicated to.the WCED on 2 November 1999 i.e. shortly before the application, was launched. It might be that applicants were quite justified to become frustrated by what one of them described as "the languid pace at which urgent matters are addressed" by the WCED. That, however, is not the point. The point is that I am not persuaded that respondents failed to provide applicants with the information which they sought and to which they were entitled.

For these reasons the application should,   in my view, be dismissed with costs.

BRAND, J