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IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT, CAPE TOWN)

Case No: 7939/2011 5555/2011

In the matter between:

HARTLEY MORGAN MRUBATA N.O. ..............................................................First Applicant

PATRICIA NONKULULEKO NTLABATHI N.O. ..........................................Second Applicant

SIMON LAMONT ESTES N.O ..........................................................................Third Applicant

and

THE HEAD OF DEPARTMENT:
WESTERN CAPE EDUCATION DEPARTMENT ..........................................First Respondent

MEC FOR EDUCATION, WESTERN CAPE ............................................Second Respondent

Judgment delivered: 1 February 2012

SABA, AJ

[1] This is an application for the review and setting aside of the decisions of:

(i) The former Member of the Executive Council ("MEC") for education, Mr Yusuf Gabru, dated 28 March 2009, extending the registration of Simon Estes Music School ("The School") with conditions;

(ii) The first respondent taken on 1 April 2010 to terminate subsidy and deregister the school;

(iii) The second respondent dated 17 December 2010 dismissing the applicant's appeal against first respondent's decision.

[2] The applicants are the trustees of the school; first respondent is the Head of Education ("HOD"), Western Cape; second respondent is the MEC for Education. The school is an independent school which was established by Dr Simon Estes, a musician from the United States of America. It was registered with and subsidized by the Department of Education ("The Department") in terms of sections 46 and 48 of the South African Schools Act 84 of 1996.

[3] In 2009 Mr Gabru, in correspondence ("DG5"), raised some concerns with SGB on matters that had to be dealt with by the school. He gave the SGB an opportunity to improve the conditions relating to the requirements for registration and subsidization as prescribed in the regulations and the service level agreement signed between officials of the School Governing Body ("SGB") and the Western Cape Education Department ("WCED"). He threatened to withdraw the school subsidy from the Department and terminate its registration if those concerns were not addressed on or before 31 December 2009.

[4] Having been of view that the school had failed to address the concerns raised by Mr Gabru, the respondents brought an application to court (in case number 5555/2011), seeking, inter alia, the closure of the school. On 11 March Cleaver J granted an interim order in the following terms:

"A rule nisi is issued calling on all interested parties to show good cause to this court on Thursday 14 April 2011 why the following order should not be made final:-

1.1. interdicting and prohibiting fourth to eighth respondents, from entering the premises of the Ottery Youth Care Centre in Tokai or any other property used by the Department of Education of the Western Cape without permission;

1.2. Interdicting and prohibiting fourth to eight respondents from barring or blockading the entrance to the premises of the Ottery Youth Care Centre in Tokai or any other property used by the Department of Education of the Western Cape;

1.3. Interdicting and prohibiting fourth to eighth respondents from threatening, harassing, assaulting or intimidating any employees of the Department of education of the Western Cape;

1.4. Interdicting and prohibiting fourth to eighth respondents from damaging any property, whether movable or immovable, belonging to the Department of Education or the employees or representatives of the Department of education;

1.5. Directing First to Third respondents to close the Simon Estes High School with immediate effect;

1.6. Directing First to Third respondents to cease and desist from operating the school from the premises at Corner Belfast and Hayes Roads, Wynberg, Western Cape or from any other premises;

1.7. Directing First to Third respondents to immediately provide the Department of Education with the details of all the learners enrolled at the school for the 2011 academic year;

1.8. Directing First to Fourth respondents to provide assistance as is required by the Department of Education to facilitate and fast track the transfer of learners enrolled at the school for the 2011 academic year to alternative schools;

1.9. Directing first to third respondents to give notice to the learners and their parents and/or benefactors by means of (i) circulars and (ii) notices on the entrance doors to the school premises that the school is no longer registered with the Department of Education, that it is being closed and that learners will be transferred to other schools;

1.10. Costs of suit

2. Prayers 1.1; 1.2; 1.3; 1.4; 1,7; and 1.8 are to come into immediate effect.......".

[5] Pursuant thereto and before the return date, the applicants brought this application for review on 12 April 2011 under case number 7939/2011 seeking the relief mentioned in paragraph 1 above. In his founding affidavit, Hartley Morgan Mrubatha (on behalf of the applicants) averred that the applicants have no interest in the orders sought to restrain and interdict Congress of South African Students ("COSAS") and its office bearers. Those relate to prayers 1.1 to 1.4 of the interim order.

I propose to deal with both applications.

Background

[6] On 18 November 2009 a meeting between officials of the Metro South Education District and the SGB was held wherein problems at the school were discussed. After deliberations, a Director of the Metro South Education District, Eugene Daniels ("Daniels"), recommended that the subsidy be withdrawn. An extract from the minutes reveal the following:

"Given the above-mentioned, I will recommend the withdrawal of the subsidy on the basis that:

• Learners deserve QUALITY EDUCA TION;

• The WCED will place the learners in surrounding schools with due consideration for their musical/ artistic talent;

• The Director requests that the SGB notify the parents of this meeting and to make alternative arrangements for placement of their learners;

• The District Office will assist with placement".

[7] On 6 February 2010 a meeting was held between members of the SGB, a learner at the school, the new HOD appointed in November 2009, Ms Penny Vinjevold ("Vinjevold"), wherein the following agreement was reached:

"- The principal would provide Mr Eugene Daniels with the names of the learners currently enrolled at the school by 12 February 2010;

0. The principal would provide Mr Eugene Daniels with a report on progress on teaching in each of Grades 8,9, 10 and 11 by 12 February 2010;

1. Ms Penny Vinjevold would have a telephone conference with Dr Simon Estes to discuss the future of the school;

2. The learners, teachers and principal of the school would vacate the Centre by 31 March 2010;

3. The SGB would provide Mr Eugene Daniels with a plan for the financial sustainabiiity of the school. This should be submitted by 12 February 2010".

[8] Pursuant to the above, Vinjevold wrote a letter to the SGB terminating the subsidy and withdrawing the registration of the school with immediate effect. According to her the SGB had failed to remedy the shortcomings at the school by the due date.

[9] An attorney for the applicants, Mr Hangone ("Hangone"), thereafter made representations to the Department appealing the HOD's decision to deregister the school and terminate the subsidy. In a letter dated 7 July 2010, the MEC refused to consider the appeal on the ground that the 30 day period within which the appeal had to be lodged had expired. The applicants brought an application before this court seeking to review the decision of the MEC not to consider the appeal. On 15 November 2010 this court made an order directing the MEC to hear the appeal. The relevant parts of this order are as follows:

"...2. First Department or the official of the Western Cape Education Department ("WCED") shall conduct an inspection of the Simon Estes Music High School ("the School") at a date to be arranged with the Applicant's attorneys within one week of the date of this order.

3. The reports and any other information provided by WCED to the Second Respondent including that which served before the First Respondent shall be provided to the Applicant's attorney at least two days prior to the date on which oral representations are scheduled to be made to the Second Respondent on behalf of the Applicants.

4. The Applicants will be afforded the opportunity to make oral representations to the Second Respondent at a hearing to be arranged by appointment with the office of the Second Respondent, which hearing shall take place before 10 December 2010.

5. Second Respondent's decision and the reasons therefore shall be communicated to the applicants' attorneys by email before close of business on 17 December 2010

6. There is no order as to costs".

[10] After considering the appeal, the MEC advised the SGB on 17 December that the appeal is dismissed and the decision by the HOD to withdraw the registration of the school and the termination of subsidy would stand.

The reasons advanced by the MEC for upholding the decision of the HOD were, inter alia, the following:

10.1. Much of the representations made by the school relate to reported improvements effected after the decision of the HOD to withdraw the registration and terminate the subsidy;

10.2. The visits the MEC made to the school on 15 November 2010 and 7 December 2010 did not persuade him that the circumstances at the school had improved;

10.3. On 15 November 2010 the school was unable to indicate what percentage of parents had paid their school fees and some of the learners were uncertain as to the direction of their musical ability or interest;

10.4. The WCED last received audited financial statements during 2008 and there was no adequate supply of Learning and Teaching Support Material required to delivering the curriculum.

10.5. Grade 12 public examination results remained consistently poor with pass rates of 37% in 2007, 50% in 2008 and 29% in 2009.

[11] The applicant's grounds for review are as follows:

11.1. Conditional re-registration unlawful

Counsel for the applicants, Adv De Waal, argued that Mr Gabru's decision to uphold the appeal against re-registration of the school and then impose conditions such as compliance with the Provincial Regulations and SLA was invalid within the meaning of section 6(2)(b) of the Promotion of Administrative Justice Act 3 of 2000 ("PAJA").

11.2. Defective or no proper notice given as required by Regulation 6(1)(b)(i) of Province of Western Cape: Provincial Gazette 5313 Counsel argued that Regulations 6(1 )(b)(i) and 6 (1)(b)(iii) which are mandatory procedures within the meaning of section 6(2)(b) of PAJA, were not complied with, therefore, the decisions of the HOD and the MEC falls to be set aside.

11.3. Legitimate expectations created but disappointed

Counsel argued that in an email dated 12 April 2010, the HOD confirmed that she visited the new premises and undertook to provide a full report, which she never produced. Further that in a teleconference with Dr Estes, the HOD undertook to provide 5 options regarding school but she never provided those options. Counsel further argued that even after the decision to deregister the school had been made, the WCED continued to inspect the school and compiled positive reports such as the following: "The atmosphere at the school is positive. Teachers are in class and teaching. The impression I got from the principal and the deputy is that they are well organised. (Everything I requested was ready before I arrived at the school)".

[12] Counsel for the respondents, Advocate Ipser, raised certain points in limine, the first one being that the applicants have no locus standi to bring the review application because the first applicant in his founding affidavit does not state that he is authorised by the trust nor did he attach any resolution from the trust showing that he was duly authorised to bring this application.

[13] in support of the submission that the applicants are properly before court, Counsel for the applicants, Advocate De Waal relied on a document marked 'MM24', which reads as follows:

"THE RESOLUTION OF TRUSTEES FOR THE TIME BEING THE SIMON ESTES EDUCATIONAL TRUST NUMBER IT463/99 ON 28 JANUARY 2011

It is recorded that:

1. The trust received the decision of the MEC of Education to dismiss this appeal on 17 December 2010;

2. The Trust unsuccessfully attempted to arrange meetings with the MEC of Education to discuss the decision of 17 December 2010;

3. The Trust met with the HOD on 27 January 2011 to discuss inter alia:-

3.1. The decision of the appeal by the MEC;

3.2. Practical implementation of the decision of the MEC and or pending application to review the MEC decision;

3.3. Application for re-registration of the Simon Estes Music School;

3.4. Simon Estes Academy

In the light of the aforesaid it is resolved that-

1. The Trust will proceed to review the decision by the MEC of Education dated 17
December 2010.

2. HARTLEY MORGAN MRUBATHA is authorised to attend to all necessary steps to
give effect to the abovementioned resolution and is given all necessary authority to
act as per the resolution of the 11 May 2010 and 30 September 2010...."

[14] Advocate Ipser argued that the resolutions of 11 May and 30 September mentioned above are invalid as they have not been signed by all the trustees. On this point, Advocate De Waal submitted that these resolutions are valid because there is evidence confirming so from the affidavits deposed to by first and third applicants in support of this application. Advocate De Waal relied on Desai-Chilwan NO v Ross and Another 2003 (2) SA 644 (C). At 653A -C Ngwenya, J states the following:

"Applicant had already established her locus standi in her founding affidavit. It is not in dispute that she is a trustee.... Respondents in this matter have confused locus standi with non-joinder. Locus standi in the legal sense has two connotations. In one sense it connotes a person's right to bring legal proceedings to court. Secondly, locus standi means a party bringing the proceedings in court must have a direct and substantial interest in the matter..." I share the sentiments of Ngwenya J in this regard as I am of view that the first applicant had a direct and substantial interest in this matter.

[15] I am also of the view that the two affidavits later admitted by this court, one by Patricia Nonkululeko Ntlabathi stating that she was a party to the 3 resolutions (mentioned in paragraph 13 above) and another by Hangone stating why the affidavit of Ntlabathi was introduced late, settle this issue. I am satisfied that the trust is properly before court. The point in limine is therefore dismissed.

Defective or no notice given in terms of regulation 6 (1) (b)

[16] Advocate Ipser submitted that in annexure 'DG5' the MEC sets out the requirement which is in accordance with regulation 6 (1) (b) of the Provincial Regulations in that he (i) granted the appeal and (ii) gave the school notice of the requirements that had to be satisfied before 31 December 2009 to avoid a further withdrawal of its registration. The contents of annexure 'DG5" are as follows:

"Dear Mrs White

APPEAL AGAINST WITHDRAWAL OF REGISTRATION AND CLOSURE OF SCHOOL

I refer to your school governing body's appeal, in terms of Section 47 of the South African Schools Act, 1966 (Act 84 of 1996), against the decision of the Western Cape Education Department (WCED) to withdraw the registration and close Simon Estes Music High School.

After consideration of your appeal against the closure of the school, I have decided, in terms of Section 47 of the said Act, read with regulation 7 (3) (b) of the Provincial Regulations relating to the registration and subsidy to independent schools, to grant an extension of the registration of Simon Estes Music High School until 31 December 2009. The extension is granted on condition that the school meet, by 31 December 2009, all requirements for registration and subsidisation as prescribed in the said regulations and the service level agreement signed between officials of the governing body of the school and the WCED (copy attached). Failure to do so will leave the Department no alternative but to close the school.

In view of paragraph 6 of the Service Level Agreement, a copy of the lease agreement with the Department of Public Works for the use of the former Florida Primary School accommodation must be submitted to the WCED. I have also decided to re-instate the subsidy to your school until the above-mentioned requirements are met by the due date".

[17] Regulation 6 (1)) of Province of Western Cape: Provincial Gazette 5313 reads:

"(a) The head of Department may, subject to the provisions of paragraph (b) below, withdraw the registration of an independent school if he or she is on reasonable grounds convinced that such an independent school is not complying with all the registration requirements or conditions referred to in regulation 2 or that the independent school is being managed or maintained in a manner or under circumstances that could in his or her opinion be harmful to the physical, intellectual or spiritual well-being of the learners attending such an independent school;

(b) Before withdrawing the registration of an independent school in terms of paragraph (a), the Head of Department shall in a written notice addressed to the proprietor of the independent school-

(i) notify the proprietor of the proposed withdrawal;

(ii) furnish the reasons for the proposed withdrawal; and

(iii) set out requirements or conditions with which the proprietor must, within a reasonable period determined by the Head of Department and specified in the notice comply in order to prevent the proposed withdrawal.

[18] Regulation 6 (1) (b) above specifically states that the notice shall' be given by HOD and Gabru was MEC when he wrote the letter. The letter written by Gabru ('DG5') who was MEC can therefore not serve as a notice in terms of regulation 6. The argument on behalf of the respondents, that the letter written by Gabru extending the registration of the school meets the requirements of a notice as contemplated in regulation 6 (1) (b), is therefore misplaced. In the circumstances, I find advocate de Waal's submission, that section 6(2) of PAJA has application in this case, to have merit. The relevant parts of this section read as follows:

"6(2) A court or tribunal has the power to judicially review an administrative action if-

(a) the administrator who took it-

(i) was not authorised to do so by the empowering provision;

(ii)

(iii)

(b) a mandatory and material procedure or condition prescribed by an
empowering provision was not complied with

[19] Advocate De Waal further argued that regulation 2 mentioned in regulation 6 (1) (a) above lists the requirements and conditions that have to be met before the HOD may withdraw the registration of a school. That none of the conditions taken into account by WCED in withdrawing registration form part of the conditions listed therein. He submitted further that the school was not notified of the requirements or conditions it had to comply with in order to prevent the proposed withdrawal.

[20] Advocate Ipser submitted that the former MEC for Education advised the principal and the SGB of the conditions that had to be complied with, namely, all of the requirements for registration and subsidization as prescribed in the regulations and the service level agreements entered into between the Department and the school. If one looks at the number of requirements listed for registration of the school as well as the contents of the service level agreement, it is not clear what requirements or conditions led to WCED to decide to terminate subsidy and withdraw registration. At this stage I am of view that it would be imperative to look at the requirements listed in regulation 2 as well as the contents of the service level agreement.

[21] Requirements listed in regulation 2 are as follows:

"(1) An independent school shall comply with the following requirements to be registered in terms of section 28 of the Act:

(a) The applicant for registration shall satisfy the Head of Department that it can reasonably be expected that the average number of learners of school-going age who will be enrolled at the independent school in question during the first 12 months following the date on which such application was received by the Head of Department will not be less than 20.

(b) At the Head of such an independent school there shall be a principal, who shall be responsible for the organisation and supervision of, the conduct at, and the control of, the independent school.

(c) The school buildings and grounds shall offer the space, design and facilities that are sufficient in the opinion of the Head of Department.

(d) The Head of Department must be satisfied that the independent school will make a contribution to the provision of education in a specific area or for a specific purposes, especially concerning the nature of the education it offers.

(2)The registration of an independent school shall be subject to the following conditions:

(a) A learner shall not be admitted to grade 1 in such an independent school, unless he or she complies with the requirements for school -going age.

(b) The provisions relating to compulsory school attendance applicable to learners attending public schools shall apply also to learners attending an independent school.

(c) The admission of a learner with special education needs to an independent school must be reported to the Head of Department.

(d) The head of Department shall determine the maximum number of learners who may be admitted to such an independent school on the basis of the school buildings and grounds referred to in sub-regulation (V-

(e) teaching shall not be offered in such an independent school unless the proprietor is in possession of a registration certificate for the independent school concerned.

(f) The appointment of any educator at such an independent school shall be done by the proprietor, who shall notify the Head of Department of the appointment and state qualifications and experience of the educator concerned.

(g) The proprietor of such an independent school shall

(i) keep an enrolment register and an attendance register of the learners attending the independent school

(ii) Keep a register of the educators employed at the independent school in which their names, registration numbers, qualifications and renumeration are recorded.

(iii) permit the Head of Department or an official authorised by him or her to inspect the registers at any time,

(iv) keep the registers and records referred to in subparagraphs(i), (ii) and (v) in such a way as may from time to time be determined or required by the Head of Department.

(h) The proprietor of such an independent school shall ensure that-

(i) the average duration of a school day and the minimum number of school days per calendar year are as approved by the Head of Department;

(ii) the curriculum for learners in the various school phases (including the curriculum for learners with special education Needs) at such an independent school shall be in accordance with the curriculum approved by the Member of the Provincial Cabinet; and

(iii) the curriculum that such an independent school wishes to offer shall be in accordance with the curriculum for learners which is declared as policy by the national Minister of Education and that it will lead to a qualification which is on the National Qualifications Framework or recognised by the SA Qualifications Authority as a South African qualification".

The contents of the service level agreement are as follows:

"PROPOSED SERVICE LEVEL AGREEMENT BETWEEN SIMON ESTES MUSIC HIGH SCHOOL AND THE WCED 1 APRIL 2009 TILL DECEMBER 2009

1. Scope

This agreement establishes and maintains a supportive and interactive relationship between Simon Estes Music High School and the Western Cape Education Department.

The agreement sets out the terms and the framework within which the partnership will be managed. It refers to the principles, roles/responsibilities and accountabilities of both parties.

2. Purpose and principles

The purpose of the Agreement is to:

- Increase levels of accountability.

Increase the effectiveness of the school, by ensuring that it operates at a fully functional level.

Identify and strengthen support of the school, Management, Teachers and Learners by the experts and officials of the WCED.

- Ensure that activities are consistent with and complement provincial and national requirements.

Monitor performance by all parties and their members/ representatives, from Management through to learners.

3. Overall aims

The over-reaching aim is to raise standards and improve outcomes for Simon Estes Music High School through improving the basic functionality of the school, the quality of teaching and learning at Simon Estes and the levels of support provided by the WCED.

4. Basic Functionality of the School

This includes continuous and ongoing attention to the following;

The development, implementation, monitoring and evaluation of policies

0. A code of conduct for learners and educators, including but not limited to matters such as absenteeism, truancy and late coming. Implementation of duty lists for educators.

1. Record keeping of absenteeism of learners and educators. Progressive discipline for learners and educators

Stimulation and development of the learners' interest in their school work through positive reinforcement proactive teaching by the staff of the school, and focused support by the officials of the WCED. Developmental appraisal and performance management. The provision of opportunities for staff development and support.

5. Quality of Teaching

There will be a particular focus on the quality of the teaching taking place in the school in order to:

Ensure the implementation of national and provincial curriculum

guidelines

- Monitoring of planning at all levels; learning programmes, work schedules and lesson planning

Record of daily/weekly lesson preparation Reports on class visits Records of assessments.

6. Moving from Ottery premises to the Florida Primary building

The issue addressed in this Service Level Agreement document will be implemented at the Ottery premises and transferred to the Simon Estes Music High School housed at the former Florida Primary in Ravensmead as from 01 April 2009.

7. Accountability and Management

Overall accountability and management lies with the School Management Team (SMT) and the SGB supported by the WCED. This group should meet at least once per term for the duration of the agreement, in order to provide feedback and support.

Input from everybody will be crucial to ensure the success of this understanding. Formal review and evaluation of the effectiveness of this agreement will be an ongoing activity. Decisions by these meetings are to be ratified by the Simon Estes SGB and staff

8. Terms of Agreement

The partners agree to the terms of agreement "

[23] The letter from the HOD (Vinjevold) dated 09/04/2008, advising the chairman of the school of the withdrawal of registration and termination of subsidy reads as follows:

"Dear Sir/Madam

I refer to the decision taken by the former Minister of the Executive Council for Education on 28 April 2009, as well as the service level agreement signed between the school and the school governing body (SGB) of the Simon Estes Music School and the Western Cape Education Department (WCED). This agreement was aimed at affording you an opportunity to improve the teaching and the facilities at the school by 31 December 2009, in terms of par. 6 (b) of the Regulations Relating to Independent Schools, and also at securing the continued support from the WCED, the SGB has failed to honour the agreement and remedy the shortcomings by the due date. In fact, the situation has deteriorated.

In view of the above and in the interests of the learners, I have decided, in terms of Sections 47 and 48(4) of the South African Schools Act, 1996 (Act 84 of 1996), as amended, to withdraw the registration and to terminate the subsidy of Simon Estes Music School with effect from 1 April 2010.

The Metro South Education District Office of the WCED has been told to
make suitable arrangements to place the school's learners in nearby public
schools. Your co-operation in this regard will be appreciated "

The above letter does not state how the SGB failed to honour the agreement. It also does not state which shortcomings were not remedied.

[24] In my view, WCED also failed to adhere to the conditions of the service level agreement. I say this because the purpose of the agreement (SLA) is clearly stated in paragraph 2 of the agreement that it was to assist the school in overcoming its problems and to ensure that it operated at a fully functional level. It is also clear from the agreement that the parties, i.e, the school and WCED, had to comply with the conditions set down in the agreement. Except for the meetings WCED officials attended at the school, the respondents have not shown that official experts of WCED offered any expert assistance and support to the school. It is therefore my view that WCED also failed to honour the terms of the said agreement.

[25] In the light of what I have stated above, I am of view that no proper notice was given to the school before a decision was made to withdraw its registration and terminate its subsidy. Secondly, no reasonable grounds have been shown to exist, which convinced the HOD (Vinjevold), to make a decision to terminate the subsidy and withdraw the registration of the school. Thirdly, no proper and clear reasons were advanced by the HOD for withdrawal of the registration and the termination of subsidy of the school.

[26] I therefore find that the procedure followed in terminating the subsidy and withdrawing the registration of Simon Estes Music High school flawed. In the light of what I have decided, it follows therefore that the decision by the MEC to uphold Vinjevold's decision is also flawed.

Conclusion

[27] For the above-mentioned reasons, I therefore set aside the following decisions:

27.1 by Mr Gabru dated 28 March 2009, to the extent that it imposed conditions on the extension of the registration of the school.

27.2 by the first applicant taken on 1 April 2010, to withdraw the subsidy and deregister the school;

27.3 by the second respondent dated 17 December 2010 to dismiss the applicant's appeal against first respondent's decision. Respondents are to pay the applicant's costs in case 7939/2011;

[28] The registration of the school is extended and the matter is referred to the MEC to consider reasonable and clear conditions for such extension.

[29] With regard to the interim order dated 11 March 2011 (in case number 5555/2011, prayers 1.1; 1.2; 1.3; 1.4; are confirmed. Prayers 1.5; 1.6; 1.7; 1.8; 1.9 (relating to the school) are hereby discharged with costs.

N SABA

(Acting Judge of the High Court)

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