Centre for Child Law and Others v South African Council for Educators and Others (1289/2022) [2024] ZASCA 45 (8 April 2024)

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

 

Reportable

Case no: 1289/2022

 

In the matter between:

CENTRE FOR CHILD LAW FIRST APPELLANT

MOTHER OF TZ SECOND APPELLANT

MOTHER OF MPM THIRD APPELLANT

and

SOUTH AFRICAN COUNCIL FOR EDUCATORS FIRST RESPONDENT

KHUTSO FRANCINAH SATHEKGE SECOND RESPONDENT

VANGILE MIRRIAM MOKOENA THIRD RESPONDENT

MEMBER OF THE EXECUTIVE COUNCIL

FOR EDUCATION: GAUTENG PROVINCE FOURTH RESPONDENT

MEMBER OF THE EXECUTIVE COUNCIL

FOR EDUCATION: LIMPOPO PROVINCE FIFTH RESPONDENT

MINISTER OF BASIC EDUCATION SIXTH RESPONDENT

SCHOOL GOVERNING BODY: MADUME

PRIMARY SCHOOL SEVENTH RESPONDENT

SCHOOL GOVERNING BODY: REABILWE

PRIMARY SCHOOL EIGHTH RESPONDENT

THE CHILDREN’S INSTITUTE AMICUS CURIAE

 

Neutral citation: Centre for Child Law and Others v South African Council for Educators and Others (1289/2022) [2024] ZASCA 45 (9 April 2024)

 

Coram: Nicholls, Mbatha and Mothle JJA and Tolmay and Mbhele AJJA

 

Heard: 26 February 2024

Delivered: This judgment was handed down electronically by circulation to the parties’ representatives by email, publication on the Supreme Court of Appeal website and release to SAFLII. The date and time for hand-down of the judgment is deemed to be 11h00 on 8 April 2024.

 

Summary: Administrative law – when does the clock begin to run under s 7(1)(b) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA), in the absence of reasons – held SACE unlawfully fettered its statutory discretion by applying its mandatory sanctions policy as a rigid set of rules that permitted no discretion – held that it was impermissible for SACE to deny the children and their parents the opportunity to be heard on the question of appropriate sanctions – held that SACE committed a material error of law by not considering rehabilitative and corrective sanctions.

 

ORDER

On appeal and cross-appeal from: Gauteng Division of the High Court, Pretoria (Fourie J, sitting as court of first instance):

1 The appeal is upheld.

2 The order of the high court is set aside and substituted with the following:

(i) The decision of the first respondent of 11 February 2020 and confirmed in a letter dated 25 February 2020 to approve the plea and sentence agreement and to confirm the sanction imposed on the second respondent, Mrs Vangile Mirriam Mokoena, following a disciplinary hearing finalised on 20 September 2019, is declared unlawful and invalid, and is set aside.

(ii) The decision of the first respondent of 16 October 2019 to approve the plea and sentence agreement and to confirm the sanction imposed on the third respondent, Mrs Khutso Francinah Sathekge, following a disciplinary hearing finalised on 18 September 2019, is declared unlawful and invalid, and is set aside.

3 The decisions and sanctions are remitted to the first respondent for reconsideration in order to comply with its constitutional obligations to act in the best interests of learners and to consider appropriate rehabilitative sanctions to ensure that the two educators referred to above are assisted and enabled to apply appropriate and non-violent disciplinary measures.

4 The first respondent is ordered to pay the costs of the appeal and cross appeal, including the costs of two counsel.

 

 

JUDGMENT

Tolmay AJA (Nicholls, Mbatha and Mothle JJA and Mbhele AJA concurring):

 

Introduction

[1] This appeal finds its genesis in an application brought primarily by the first appellant, the Centre for Child Law, to review and set aside the decision of the first respondent, the South African Council for Educators (SACE) in disciplinary proceedings against two educators, who assaulted children in the school environment. The complaint was that the 2016 Mandatory Sanctions that applied at the time were unlawful, as they did not provide for the exercise of any discretion when imposing a sanction and did not provide for any rehabilitative or corrective sanctions. The disciplinary proceedings also fell short as they did not allow for meaningful participation by the learners and their parents in the hearings. During 2020, SACE revised the mandatory sanctions but the appellant and the Children’s Institute, that was admitted as amicus curiae, were still not satisfied that the amended mandatory sanctions catered for the best interests of the child. In addition, they failed to follow a child centred approach and the sanctions to be imposed did not provide for any rehabilitative measures to address the unlawful conduct of the educators.

 

[2] The appellants in the high court sought three primary forms of relief. The first form of relief was in terms of the Promotion of Administrative Justice Act No 3 of 2000 (PAJA) and the constitutional principle of legality, seek essentially to set aside the decisions of the disciplinary hearings and to remit the matters back to SACE with appropriate directions. The second what was referred to as systemic relief, in that SACE be ordered to reconsider and review its ‘2020 Mandatory Sanctions on the Code of Professional Ethics’ in order to make provision for corrective and rehabilitative sanctions, to consider the best interests of the child and the need for a child centred approach. Finally, the appellant sought condonation, to the extent necessary for bringing the application outside the time periods prescribed by PAJA.

 

[3] The court of first instance dismissed the review on the basis that there was an undue delay in the launching of the application. The court, however, granted the systemic relief. It found that it was appropriate in the circumstances of the case to exercise its discretion to grant a just and equitable remedy in terms of s 172(1)(b) of the Constitution. The court ordered SACE to reconsider and revise the revised mandatory sanctions adopted in June 2020 to address the deficiencies in the decision-making process, with particular regard to the need for the inclusion of corrective and rehabilitative sanctions, the need to consider the best interests of the child and the need for a child centred approach.

 

[4] The appellants appeal against paragraph 1 of the order¹ that dismissed prayers 1 to 5 of the amended notice of motion² and the part of the judgment that dealt with the delay in bringing the application. SACE cross-appealed against paragraphs 2, 3, 4 and 5 of the order and the paragraphs of the judgment which deals with the revised mandatory sanctions. At the hearing the court was informed that SACE was not proceeding with the cross-appeal, as a result the part of the order that obliged SACE to reconsider its revised mandatory sanctions of 2020 is no longer in dispute. Because the Children’s Institute interest lay only in making submissions on this aspect, the fact that the cross-appeal was not proceeded with put an end to its concerns. It however persisted with the request that the evidence provided by Ms Quail, an expert in non-violent discipline skills be allowed and entered into the record. This was not opposed by the other parties and the evidence was duly admitted.

 

 

Background

[5] This case concerns the disciplinary proceedings by SACE of two educators. Ms Mokoena assaulted TZ and NT, during August 2015, with a piece of PVC pipe; both learners were in grade two at the time. TZ allegedly started having headaches that became progressively worse and was eventually hospitalised for two weeks and had to undergo emergency surgery for a brain haemorrhage. During his hospital stay Ms Mokoena visited him and allegedly threatened him not to tell anyone of the assault. TZ’s mother set out in a supporting affidavit how this incident had negatively impacted on TZ’s life. The other incident concerns Ms Sathekge who assaulted MPM by hitting her on the head. Her mother said she bled from her ear, was taken for several medical examinations, and was admitted to hospital twice. Her mother also explained how this incident negatively impacted on MPM’s life. SACE disputed that these injuries were caused by the assaults as well as the severity and consequences of the assaults.

 

[6] During 2019 the mothers of both children were assisted by their attorneys in lodging formal complaints with SACE against the two teachers. SACE investigated the matters and recommended that both teachers be charged with assault. Ms Mokoena pleaded guilty to four breaches of SACE’s Code of Professional Ethics (the Code), which included two charges of assault and two charges of threatening the children not to report the assault. Ms Sathekge pleaded guilty on one charge of assault. Ms Sathekge’s disciplinary hearing occurred on 18 September 2019 and Ms Mokoena’s hearing was on 20 September 2019.

 

[7] In both instances the appellants and the children were invited to attend the disciplinary hearings, but they were made to wait in a separate room at SACE’s office. They were not present in the hearings and were not afforded an opportunity to present evidence, or to make representations, nor were they consulted about the sanctions imposed. They were subsequently merely notified about the fact that the teachers pleaded guilty and the sanctions that were imposed. Both teachers received identical sanctions, despite the circumstances and the severity of the assaults not being comparable. Both were removed from the roll of educators, wholly suspended for ten years; and a fine of R15 000 payable over a period of twelve months, of which R5 000 was suspended.

 

[8] At the hearing of the appeal only two issues were persisted with by SACE. The first was that the court of first instance correctly found that there was an unreasonable delay in the launching of the application and correctly dismissed the review on that ground and the second was that the appeal was moot.

 

 

Undue Delay

[9] Section 7(1) of PAJA requires judicial proceedings to be instituted without unreasonable delay and not later than 180 days from the day on which the proceedings have been concluded, or on which the person concerned was informed, or could reasonably be expected to have been aware of the administrative action and the reasons for it. It is common cause that no reasons were provided despite various requests by the attorneys of the appellants. The court of first instance accepted that the appellants requested reasons and that none were provided.³ The court a quo found that in a case like this, where no reasons were provided, s 7(1) of PAJA came into play which, on the court’s interpretation, meant that the applicants would have to show that there was no unreasonable delay in the bringing of the application.⁴

 

[10] The court of first instance’s reasoning is at odds with the decisions of both the Constitutional Court and this Court where it was held that: ‘s 7(1) of PAJA explicitly provides that the proverbial clock begins to tick from the date on which the reasons for the administrative action became known (or ought reasonably to have become known) to the applicant’.⁵ As a result there is only one trigger date for both the unreasonable delay and the calculation of the 180 day period under PAJA.

 

[11] The appellants, before launching the application made repeated requests for reasons to no avail. SACE was generally unresponsive and when it did respond it blamed the closure of offices during Covid-19 and indicated that a response would be forthcoming once circumstances improved. The importance of investigating matters before launching review applications to set aside administrative action in order to avoid unnecessary litigation was stressed in Joubert Galpin Searle Inc and Others v Road Accident Fund and Others.⁶ The appellants cannot be faulted for attempting to obtain reasons before proceeding with litigation. In the absence of reasons, the 180-day period did not even commence before the application was launched. The court of first instance misdirected itself when finding that there was an unreasonable delay in the launching of the application.

 

 

Mootness

[12] The second point raised by SACE is that the appeal is moot. The two educators were sanctioned in terms of the 2016 Mandatory Sanctions. It was argued on behalf of SACE that the application is moot for two reasons. Firstly, the educators have served their sentences and secondly, the 2016 Mandatory Sanctions were replaced by the 2020 Mandatory Sanctions. For these reasons, it was argued, the issues between the parties had been rendered abstract, academic, and hypothetical and the court should therefore refrain from exercising its discretion in favour of the appellants.⁷

 

[13] The Constitutional Court in Police and Prisons Civil Rights Union v South African Correctional Service Workers’ Union and Others⁸ confirmed that courts exist to determine concrete live disputes, but that mootness is not an absolute bar to justiciability when justice so requires. A court must exercise a judicial discretion, taking into account various factors including whether an order will have some practical effect.⁹ There can be no doubt that if this Court were to set aside the administrative action and remit this matter to SACE, it would have a practical effect. SACE would be obliged to reconsider the sanctions. That the educators have partially complied with the sanctions imposed on them, is a consideration when determining an appropriate remedy. However, it does not render the matter moot. In any event the suspension imposed on the educators during September 2019 is for a period of 10 years and therefore it cannot be convincingly argued that the educators have served their sentences. The inappropriate conduct that led to the sanctions can, and should, still be addressed in an appropriate manner.

 

[14] The second point raised on the issue of mootness is that the 2016 Mandatory Sanctions had been replaced by the 2020 Mandatory Sanctions. These sanctions postdate the sanctions imposed. It was pointed out by the appellants that these sanctions still do not address the lacunae that were apparent in the 2016 Mandatory Sanctions. The dispute remains very much alive as the constitutional concerns have not been addressed. The 2020 Mandatory Sanctions still do not address the need for corrective rehabilitative sanctions, the need to recognize the best interests of the child, the rights of children and the need for a child centred approach. These concerns were addressed by the systemic relief granted by the court of first instance and does not require any further consideration by this Court. The issue is however not moot as it must be addressed by SACE in compliance with the systemic relief granted in the context where the cross appeal was only abandoned at the hearing before this Court.

 

 

The review

[15] The question of whether a case has been made out for a review in terms of PAJA or the principle of legality now needs to be determined. The decision taken falls squarely within the definition of an administrative action as defined in PAJA and the review will be considered as such.¹⁰

 

[16] There is no doubt, that SACE’s exercise of disciplinary powers must be guided by its constitutional obligations. The appropriate starting point for all matters relating to children is s 28(2) of the Constitution that dictates that a child’s best interests are of paramount importance in every matter concerning a child. This principle is echoed in s 9 of the Children’s Act.¹¹ Section 6(3) and s 10 goes further and emphasises that the views of a child and the family of the child must be given due consideration. There is thus no doubt that the best interests of a child take centre stage in all matters concerning a child. A child and its family have a right to be heard and to participate in proceedings concerning the child. SACE is as an organ of state in terms of s 7(2) of the Constitution obliged to respect, protect, and fulfil the rights in the Bill of Rights.¹²

 

[17] Section 39(1)(b) of the Constitution creates a further obligation to consider international law when interpreting the Bill of Rights. Section 233 states that when interpreting legislation, the court must prefer any reasonable interpretation of legislation that is consistent with international law.¹³ South Africa is a signatory to the United Nations Convention on the Rights of the Child (CRC)¹⁴ and the African Charter on the rights and Welfare of the Child (ACRWC)¹⁵ and is duty bound to protect and ensure that the rights of children as envisaged in these instruments are prioritized.

 

[18] The South African Schools Act¹⁶ in s 10 outlawed corporal punishment in all schools and by doing so ensured that no child should be subjected to any form of physical violence in the school environment. This legislative prohibition should have been the end of any notion that an educator is allowed or justified to use any form of physical violence against a learner. Sadly, as illustrated by the incidents that form the subject matter of this case and the expert evidence provided by the amicus, corporal punishment is still rife in the school environment.

 

[19] In a society besieged by violence this must be of grave concern, and it cannot be gainsaid that violence as a form of ensuring corrective behaviour should be addressed at its roots. In the process of creating an environment that is conducive to the protection and development of children as citizens who will not resort to violence as a solution to conflict. It is imperative that educators not only be prohibited to resort to physical violence as a form of discipline, but also be assisted to develop the necessary skills to discipline appropriately and with the required measure of personal control. It is by example that children are taught to navigate a complex conflict-ridden world, without resorting to violence as a solution.

 

[20] SACE is established under The South African Council for Educators Act¹⁷ (the SACE Act). SACE must, as all organs of state, exercise its powers in accordance with the constitutional injunction set out above. This includes its powers to adopt disciplinary proceedings. In terms of s 21 of the SACE Act all teachers are required to be registered with SACE on the national roll of educators and fall under SACE’s disciplinary jurisdiction.

 

[21] Section 14 of the SACE Act deals with the disciplinary committee and ss 2 provides inter alia that the disciplinary committee must inter alia from time to time review the code of professional ethics. The SACE Code of Professional Ethics (the Code) is compiled in accordance with s 5 the SACE Act¹⁸ and is binding on all educators. Paragraph 3 of the Code inter alia includes that an educator must respect the dignity of learners,¹⁹ exercise authority with compassion²⁰ and avoid any form of humiliation and refrain from any form of physical or psychological abuse.²¹

 

[22] The 2016 Mandatory Sanctions on Contraventions of Professional Ethics applied at all relevant times. These sanctions did not allow for the exercise of any discretion, whatever the circumstances of a matter. The sanctions imposed on the educators were in accordance with this document. In the answering affidavit it was confirmed that, according to SACE, these sanctions allowed for no discretion whatsoever and any deviation from them would have amounted to an illegality. This approach loses sight of the fact that the sanctions are policy and not law. In Long Beach Home Owners Association v Department of Agriculture, Forestry and Fisheries and Another²² the following was said:

‘Although not strictly necessary for the determination of this appeal, I should say something concerning the Policy, referred to above, which has been adopted by the first and second respondents. As stated in Computer Investors Group Inc & another v Minister of Finance 1979 (1) SA 879 (T) at 898C-E: (affirmed in MEC for Agriculture, Conservation, Environment and Land Affairs v Sasol Oil (Pty) Ltd and Another 2006 (5) SA 483 (SCA)):

‘Where a discretion has been conferred upon a public body by a statutory provision, such a body may lay down a general principle for its general guidance, but it may not treat this principle as a hard and fast rule to be applied invariably in every case. At most it can be only a guiding principle, in no way decisive. Every case that is presented to the public body for its decision must be considered on its merits. In considering the matter, the public body may have regard to a general principle, but only as a guide, not as a decisive factor. If the principle is regarded as a decisive factor, then the public body will not have considered the matter, but will have prejudged the case, without having regard to its merits. The public body will not have applied the provisions of the statutory enactment.’

 

[23] SACE argued that the 2016 Mandatory Sanctions were revised and replaced by the June 2020 Mandatory Sanctions. The revised sanctions, however, still suffer from certain impediments. This was however sufficiently addressed in the systemic relief granted by the high court; those orders remain operative and SACE will be well advised to carefully consider the systemic relief and comply with it when revising the Code.

 

[24] In AB and Another v Pridwin Preparatory School and Others²³ it was confirmed that s 28(2) incorporated a procedural component affording the child concerned an opportunity to make representations.²⁴ That the rights of children, which include the right to be heard is part of our law is undeniable.²⁵ It follows that if legislation and policies impact on the rights of children, those must refer back to what is contained in the Constitution, related legislation and applicable international law. How the child will participate in the proceedings will depend on the circumstances of the specific case and must be approached in a manner that will best serve the interests of the child.

 

[25] SACE has a duty to assess, inter alia, the impact of the actions of educators on the children, including whether it is advisable that the educators return to the classroom; whether it is necessary to protect the children from harm; and, whether the underlying causes of the educator’s violent behaviour require addressing. I would add to that, that the question of whether the child may need assistance psychological or otherwise to limit the harm done to her must also be considered.

 

[26] A perusal of the record leaves one none the wiser as to the reasons for the educators’ defiance of the law and this illustrates the necessity to consider rehabilitative measures. To merely impose a sanction without addressing the root cause of the problem is counterproductive. There is no impediment in law to impose such sanctions when appropriate, nor should there be.²⁶ Such sanctions should protect the best interests of the child and should assist the educator in developing the appropriate skills to function appropriately in the workplace.

 

[27] The decisions taken by SACE in relation to these incidents did not comply with numerous provisions of PAJA. The decisions taken in accordance with these sanctions were procedurally unfair as envisaged in s 6(2)(c) of PAJA as the children and their parents were not given an opportunity to be meaningfully heard or participate in the proceedings. In terms of s 6(2)(d) of PAJA the decisions were materially influenced by an error of law, in that it did not take into consideration any of the provisions in the Constitution and Children’s Act relating to the best interests and protection of the rights of children. The decisions were also taken capriciously and arbitrarily as envisaged in s 6(2)(e)(vi) as no discretion was allowed when the sanctions were imposed. It is undoubtedly so that the 2016 Mandatory Sanctions unlawfully fettered the discretionary powers of the disciplinary committee.

 

[28] In light of the above the review should have been granted as the decisions taken in terms of the 2016 Mandatory Sanctions are unlawful and stand to be reviewed and set aside. The court of first instance correctly acknowledged the need for compliance with SACE’s constitutional and statutory obligations and the remedies provided for in terms of section172(2)(b) will address the existing defects. Due to the decision to abandon the cross appeal this part of the order of the court of first instance remains in force.

 

[29] The analysis of the law in relation to the facts requires of this court to declare the decisions by SACE in relation to the two educators unlawful, invalid and in breach of its obligations to protect the rights of learners. The question that remains is what the appropriate remedy is, because part of the sanctions has already been complied with. The appellant’s main concern at this stage is that the core issues were not addressed, namely the possibility of rehabilitative sanctions, the child’s right to be heard and the absence of a child centred approach to be followed.

 

[30] It was argued by SACE that due to the effluxion of time this court should not remit the matter as it would result in the educators being punished twice for the same transgressions. If, however, the matter is remitted on a limited basis to address the educators’ apparent inability to act appropriately and to ensure no further unconscionable conduct on their part there will be no prejudice to them. On the contrary, they can only benefit if the sanctions are rehabilitative in nature. The matter should therefore be remitted to SACE to consider the imposition of corrective rehabilitative sanctions, like anger management and alternative corrective discipline skills programmes to assist the educators in executing their duties properly.

 

[31] The following order is made:

The appeal against the first order of the court of first instance is upheld, that order is set aside and substituted with the following:

1 The appeal is upheld.

2 The order of the high court is set aside and substituted with the following:

(i) The decision of the first respondent of 11 February 2020 and confirmed in a letter dated 25 February 2020 to approve the plea and sentence agreement and to confirm the sanction imposed on the second respondent, Mrs Vangile Mirriam Mokoena, following a disciplinary hearing finalised on 20 September 2019, is declared unlawful and invalid, and is set aside.

(ii) The decision of the first respondent of 16 October 2019 to approve the plea and sentence agreement and to confirm the sanction imposed on the third respondent, Mrs Khutso Francinah Sathekge, following a disciplinary hearing finalised on 18 September 2019, is declared unlawful and invalid, and is set aside.

3 The decisions and sanctions are remitted to the first respondent for reconsideration in order to comply with its constitutional obligations to act in the best interests of learners and to consider appropriate rehabilitative sanctions to ensure that the two educators referred to above are assisted and enabled to apply appropriate and non-violent disciplinary measures.

4 The first respondent is ordered to pay the costs of the appeal and cross appeal, including the costs of two counsel.

 

 

 

 

___________________________

R G TOLMAY

ACTING JUDGE OF APPEAL

 

 

 

 

Appearances

 

For appellants: C J C McConnachie (with him T Pooe)

Instructed by: Section 27, Johannesburg

Webbers Attorneys, Bloemfontein

 

For first respondent: M M Mojapelo (with him F N Zulu)

Instructed by: Mketsu & Associates Inc., Pretoria

Matsepes, Bloemfontein

 

For amicus curiae: E Webber

Instructed by: Equal Education Law Centre, Cape Town

Care of Savage Jooste and Adams, Pretoria