Rautenbach and Others v Governing Body of die Hoërskool DF Malan and Another (073/2024) [2025] ZASCA 78 (4 June 2025)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 073/2024
In
the matter between:
BAREND
HERMANUS RAUTENBACH
FIRST APPELLANT
JOHAN
SMIT
SECOND APPELLANT
FRANCOIS
MALAN
THIRD APPELLANT
BAREND
DE
KLERK
FOURTH APPELLANT
and
THE
GOVERNING BODY OF DIE HOËRSKOOL
DF
MALAN
FIRST
RESPONDENT
THE
WESTERN CAPE MINISTER OF EDUCATION
SECOND RESPONDENT
Neutral
citation: Rautenbach & Others v
The Governing Body of die Hoërskool DF Malan & Another
(073/2024) [2025] ZASCA 78 (4 June 2025)
Coram:
MOKGOHLOA, MBATHA, WEINER and SMITH JJA and MODIBA AJA
Heard:
2 May 2025
Delivered:
This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication
on the Supreme
Court of Appeal website and released to SAFLII. The date and time for
hand-down of the judgment is deemed to be
11h00 on 4 June 2025.
Summary:
Administrative law – procedural fairness in terms of s 3 of
the Promotion of Administrative Justice Act 3 of 2000 –
rationality of the decision to change the name of the school –
interpretation of statutes – whether the Schools
Act 84 of 1996
vests the power to change a school’s name in its governing
body.
ORDER
On
appeal from: Western Cape Division
of the High Court, Cape Town (Henney J sitting as court of first
instance):
The
appeal is dismissed with costs including the costs of two counsel,
where so employed.
JUDGMENT
Smith
JA (Mokgohloa, Mbatha and Weiner JJA and Modiba AJA concurring):
Introduction
[1]
A public institution’s name often says more about its identity,
ethos and culture than its
written mission statement. This is even
more so if the institution is named after a controversial historical
figure. It is thus
unfortunate that more than three decades into our
constitutional democracy there are still public institutions which
are named
after individuals who were instrumental either in the
development or implementation of the universally deprecated apartheid
ideology.
The DF Malan High School in Belville, Western Cape (the
school), which bears the name of one of the chief architects of
apartheid,
is one such an institution.
[2]
While the school takes pride in its culture of academic excellence
and its policy of inclusivity,
its controversial name has been an
albatross around its neck. According to the school’s governing
body, the name stridently
contradicts those admirable values. It
therefore came as no surprise when, in 2021, the governing body
decided to reconsider its
symbols and values, including its name.
This came about partly as a result of external pressure –
including its own alumni
– and partly because of the governing
body’s own realisation that the retention of the name could no
longer be justified.
[3]
After the conclusion of a consultative process, the governing body,
on 6 May 2021, resolved to
review the school’s name. That
decision was subject to further investigation into the financial
implications of the name-change
and consequential amendments to its
constitution. Eventually, after further consultation with
stakeholders, the governing body
resolved to change the name of the
school to DF Akademie. That name was thereafter submitted to the
Provincial Department of Education
(the Department) for confirmation
that no other educational institution had a similar name.
[4]
The appellants took umbrage at the decision and, in December 2021,
launched an application in
the Western Cape Division of the High
Court, Cape Town (the high court) for an order reviewing and setting
it aside. The appellants
contended that the decision was ultra
vires the governing body’s statutory powers; the
consultative procedure adopted by the governing body was unfair; and
the decision
itself was irrational. They asserted their locus
standi on the basis that the application concerned a matter of
public importance and that their children are learners at the school,
as
such they pay school fees and thus have an interest in the
employment of the school’s resources.
[5]
The governing body was cited as the first respondent and the
Provincial Minister of Education
as the second respondent. No relief
was sought against the second respondent. The high court, per Henney
J, in its judgment[1]
delivered on 17 October 2023, dismissed the application with costs.
[6]
The high court subsequently granted the appellants leave to appeal
only in respect of its finding
that the governing body had implied
power under the South African Schools Act 84 of 1996 (the Schools
Act), to change the school’s
name. Aggrieved by the limited
basis on which it was granted leave, the appellants successfully
petitioned this Court for further
leave to appeal against the high
court’s findings in respect of the fairness of the consultative
procedure adopted by the
governing body and the rationality of the
decision to change the school’s name.
The
facts
[7]
The following factual matrix frames the issues which fall for
consideration in this appeal. The
school is an Afrikaans medium
public school, established in 1954. Shortly after its establishment,
the school obtained the permission
of the then Prime Minister of the
Republic, Dr Daniel Francois Malan, to name the school after him. Dr
Malan served as South Africa’s
Prime Minister from 1948 to
1954. He was instrumental in the promulgation of apartheid as a
government policy in 1948, a political
system based on racial
segregation and discrimination.
[8]
It is a matter of historical record that the policy of apartheid led
to human rights abuses, violent
oppression, arbitrary land
dispossession and the disenfranchisement of the majority of South
Africans. Despite the advent of our
constitutional democracy in 1994,
the ignominious consequences of apartheid still haunt South African
society and it will probably
take several generations to eradicate
them fully.
[9]
Despite the heavy burden of its controversial name, the school has
over the years established
a reputation for academic excellence. It
has, over a period of four years, achieved a 100% matric pass rate
with an average mark
of 71,8%. In the 2021 matric exams, 62 learners
passed with an average mark of 80% or higher and three learners were
among the
top 40 achievers in the Western Cape. The school considers
its core values as being of a Christian ethos, Afrikaans as language
of instruction, inclusivity and academic excellence.
[10]
The governing body consists of 13 members, including the principal,
seven parents, two teachers, two learners
and one staff member who is
not a teacher. It adopted a constitution in terms of s 18 of the
Schools Act, which provides, among
others, for the name of the
school. Given the controversial figure after whom the school was
named, it was inevitable that the
governing body would sooner or
later be pressurised into reconsidering the school’s name. The
first such request came from
an alumnus who wrote to the governing
body in 2018. He described the name as ‘insensitive and
inappropriate’ and demanded
that the school commence with a
process to change its name. The school received two more letters in
similar tone in September 2019,
from a parent of two learners.
[11]
The pressure on the governing body to reconsider the school’s
name intensified during June 2020
when a group of alumni calling
themselves ‘DF Malan Must Fall’, joined the fray. Their
stated objective was to agitate
for a name change and to address the
‘institutional racism’ at the school.
[12]
At a meeting held on 18 June 2020, the governing body resolved to
commence a process that would enable it
to decide whether the
school’s symbols, including its anthem and name, should be
changed as well as the cost implications
thereof. It also resolved to
inform ‘DF Malan Must Fall’ of the decision.
[13]
Since the Schools Act does not prescribe a procedure for the changing
of a school’s name, the governing
body was at sea insofar as
this issue was concerned and had to do its best to devise a fair
process to enable consultation with
stakeholders. All that it had to
go on were circulars from the Department and the Federation of
Governing Bodies for South African
Schools (FEDSAS). However, neither
circular purported to be prescriptive but were merely intended to
serve as guidelines. Significantly
though, both circulars assumed
that the power to change the school’s name vests in its
governing body.
[14]
The departmental circular, while instructing governing bodies to
submit names to the Department to enable
it to check whether other
schools bear the same name, expressly stated that a governing body’s
authority to change a school’s
name is beyond question. It
stated, however, that the new name may only be used once the Head of
the Department has confirmed that
it does not conflict with the name
of another educational institute.
[15]
The FEDSAS circular reminded governing bodies that changing a
school’s name is a sensitive matter and
cautioned that wide
consultation with all stakeholders, including parents, teachers,
learners and the broader community, must inform
any decisions
regarding a school’s symbols, including its name, motto or
emblem. It further advised that relevant considerations
would
include: the name’s origin or notoriety; implications that a
name-change may have for the school’s identity or
branding; and
how the name is being viewed by members of the community. It
suggested that governing bodies should appoint an ad hoc
steering committee to manage the process of consultation and advise
them on proposed new names or symbols.
[16]
On 22 June 2020, the governing body, being of the view that it should
control the debate about the school’s
name instead of simply
allowing it to continue in social media, wrote to all parents,
learners, alumni and school staff on its
database, advising them of
its decision to embark upon a process to reconsider the school’s
name and other symbols. Those
stakeholders were also invited to make
suggestions regarding the process to be followed. At the time there
were approximately 1800
parents, 1100 learners, 90 staff members and
6000 alumni on the school’s database.
[17]
The letter elicited diverse responses, some expressing misgivings
about a name-change, others supporting
it, and some making
suggestions regarding the process that should be followed. One such
response came from a practising advocate,
Mr de Haan. He was strongly
opposed to any name-change. According to him, Dr Malan was an
honourable Afrikaner politician, and
to remove his name would amount
to disregard of Afrikaner history. Later, Mr de Haan filed an
affidavit supporting the appellants’
application.
[18]
On 30 July 2020, the governing body, being mindful of the sensitive
nature and the emotional reaction that
the debate regarding the
school’s name would probably evoke on either side of the
divide, decided to appoint an independent
facilitator to advise it on
the process to be followed. The members of the governing body were
requested to suggest names of potential
facilitators.
[19]
By September 2020, the governing body had received 14 names of which
10 were either not available, not sufficiently
independent or were
otherwise disqualified from acting as facilitators. The remaining
four were interviewed by the governing body
on 1 October 2020. It
decided to appoint Dr Jan Frederick Marais (Dr Marais), a theologian
of the Ecumenical Board of Stellenbosch
University’s Theology
Faculty, and renowned mediation expert. Dr Marais has extensive
experience in mediating congregational
disputes. The governing body
therefore regarded his expertise as well-suited for the emotional
dialogue that the sensitive issue
of the school’s name was
likely to evoke.
[20]
Dr Marais advised against a process that would require a simple ‘yes’
or ‘no’ answer
to the question whether the school’s
name should be changed. He advised the governing body instead to
adopt a process that
would also focus on the school’s symbols,
such as the uniform, emblems, motto and anthems. He was of the view
that the school’s
name is but one of those symbols, and whether
it should be changed would ultimately depend on a dialogue regarding
the school’s
identity and values.
[21]
The governing body was convinced by the compelling logic of the
process suggested by Dr Marais and, in November
2020, appointed him
to propose and facilitate a process through which the school’s
identity and, if need be, the appropriateness
of its name, would be
considered. Dr Marais magnanimously agreed to perform those tasks
without charging a fee.
[22]
On Dr Marais’s advice, the governing body formed a steering
committee of 16 persons who were chosen
to accommodate different
views and to ensure fair representation between different role
players, namely parents, staff, learners
and alumni. Of the 16
steering committee members, eight had expressed their views regarding
a name change – four being against
it and four in favour.
[23]
From December 2020 to February 2021, the steering committee members
were trained by a panel of three, which
included Prof Erwin Schwella,
an Emeritus Professor of Public Leadership at Stellenbosch
University. The training focussed on skills
required to facilitate
impartial debate in community-based discussions, the importance of
impartiality and the protocol for recording
input from participants.
[24]
The information gathered from these discussion groups would be
recorded anonymously and sent to the Unit
for Innovation and
Transformation (the Unit) at the Theology Faculty of Stellenbosch
University. The Unit would then process the
information and compile a
report which analysed the debates both quantitively (the number of
times an opinion was expressed) and
qualitatively (the kind of
questions posed to participants and their answers).
[25]
On 8 March 2021, the governing body addressed a letter to all
interested parties on its database, informing
them of the process
agreed upon and inviting them to participate in discussions that
would focus on the school’s identity
as a basis for a decision
regarding the school’s symbols, including its name. They were
invited to choose a convenient time
from 40 discussion sessions
between 11 and 18 March 2021. They could also choose to participate
virtually, and links were provided
for this purpose. To make it
convenient for everybody, the sessions were scheduled for the
afternoons and evenings. The theme of
the process was ‘The
school of which we dream’.
[26]
Dr Marais formulated five questions, which would guide the
discussions in the steering group sessions. He
was of the view that
discussions should focus on dialogue about the school’s
identity and symbols to diffuse emotions which
discussions about the
name would evoke. The questions were aimed at eliciting responses in
respect of the characteristics that
make the school unique; how
participants experienced the school; their anxieties and hopes about
the school’s future; their
views regarding the leadership of
the school; and their perceptions regarding the school’s
identity in the community. The
150 people who responded to the
invitation were divided into fifteen groups of ten. Each group
discussion would be hosted by two
members of the steering group, one
to guide discussion and the other to take notes (the raw data).
[27]
The chairperson of the governing body, Mr Andre Roux (Mr Roux), who
deposed to the answering affidavit, asserted
that although the
steering committee members were advised to focus discussions on the
school’s symbols and identity, they
were not instructed to
prohibit discussions regarding the school’s name. He said that
participants were free to make submissions
in this regard, and some
had indeed done so. The appellants took issue with this assertion and
filed three confirmatory affidavits
in support of their contention
that participants were not allowed to discuss the school’s
name. I deal with this issue in
greater detail later in the judgment.
[28]
The consultation process was delayed by two events, which occurred in
early March 2021, namely the implementation
of country-wide
loadshedding and elections for a new governing body. The process
eventually commenced on 11 March 2021 and concluded
on 28 March 2021.
By that time, the process had reached saturation point, in other
words, the discussions did not yield any fresh
input, and
participants were merely repeating the same views.
[29]
The steering group reports were thereafter submitted to the Unit
which compiled a draft report. That report
was presented to Mr Roux
in April 2021 and he distributed it to the other governing body
members. The report was thereafter vetted
at a meeting attended by Dr
Marais, a member of the Unit and members of the governing body. The
implications of the report were,
however, not discussed at that
meeting and, apart from correcting a few grammatical errors, the
meeting concluded that the contents
of the report were factually
correct.
[30]
Mr Roux and Mr Conradie, the school principal and member of the
governing body, thereafter, met with Dr Marais
on 22 April 2021 to
discuss the Unit’s report. Dr Marais was satisfied that the
discussion groups were sufficiently representative
of the school
community and that the report established that they were ready to
discuss the school’s future. The report also
concluded that
there was agreement regarding the school’s core values, which
were: academic excellence; innovating leadership;
Afrikaans as
language of instruction; and an inclusive culture. It was clear to
everybody that the school’s name and what
it represented, were
incompatible with those values.
[31]
The governing body considered the Unit’s report at its meeting
on 6 May 2021. The report was not analysed
in detail since all the
governing body members were aware of its contents and Dr Maris had
prepared a briefing based on core characteristics,
which he had
extracted from the report. The governing body members were asked to
express their views on Dr Marais’s assessment
of the report,
namely that the school’s symbols, including its name, should be
reviewed as well as the process that should
be adopted to ensure
community participation. They all expressed reservations about the
appropriateness of the school’s name
and were of the view that
it was incompatible with the school’s core values of a
Christian ethos and inclusivity. They were
therefore unanimous that
the school’s symbols, including its name, should be changed,
subject to further investigation into
the financial implications of
that decision and the formulation of a fair process for further
consultation regarding a new name.
[32]
On 13 May 2021, Dr Marais and Mr Roux met with the steering committee
members to provide feedback regarding
the decision taken on 6 May
2021. While everybody agreed with the school’s core values as
formulated by Dr Marais, three
steering committee members disagreed
with the decision to change the school’s name. They were Ms
Veronica van Zyl, Ms Mette
Warnich – who also filed affidavits
in support of the application – and Mr Gert Visser. The other
members were of the
view that a name change had been supported by
most participants at the group discussions.
[33]
On Dr Marais’s advice, a new task team was thereafter formed to
advise the governing body on the formulation
of a consultative
process with stakeholders; criteria against which proposed new names
could be evaluated; and the financial implications
of a name-change.
The task team decided that invitations should be sent to all persons
on the school’s database to propose
new names – the only
qualifications being that the name should not be that of a person,
should preferably be Afrikaans, should
not have any political
connotations, and should enhance the school’s identity.
[34]
The invitations were duly dispatched on 11 August 2021. Six hundred
and twenty-six of the recipients responded
– 301 proposing that
the current name be retained and 325 suggesting new names. The task
team then evaluated the proposed
new names, shortlisted eight and
eventually submitted four names to the governing body for
consideration. They also assessed the
cost implications of changes to
signage and information technology.
[35]
The governing body considered the task team’s report at its
meeting on 22 September 2021. It decided
that only two of the
four names submitted by the task team were acceptable, namely Protea
Akademie and DF Akademie. The persons
on the school database were
thereafter invited to vote for one of the two names through a digital
‘Voting Crowd’ virtual
platform. In addition to persons
on the database, learners who had already enrolled for the 2022
academic year as well as their
parents, were also eligible to vote.
[36]
The voting for a new name took place on 15 October 2021. Of the 3 466
votes received, the overwhelming majority,
namely 85% proposed DF
Akademie. The governing body thereafter ratified the voting results
and decided on DF Akademie as the school’s
new name. The name
was thereafter submitted to the Department for verification that
there were no other educational institutions
bearing that name.
In
the high court
[37]
In the high court, the appellants relied on the following appeal
grounds: (a) in changing the school’s
name the governing body
acted ultra vires its powers under the Schools Act; (b) the
consultative process adopted by the governing body was procedurally
unfair and irrational
and did not accord with the prescripts of s 3
of the Promotion of Administrative Justice Act 3 of 2000 (PAJA); and
(c) the decision
to change the school’s name was not rationally
connected to the information before the governing body.
[38]
While the high court’s judgment dealt with several points other
than the review grounds raised by the
appellants, namely, among
others, the question whether the impugned decision constituted
administrative action as defined in PAJA
and the issue of undue
delay, they were not pursued in this Court. I consequently focus my
attention only on those submissions
that were repeated in argument
before us.
The
appellants’ contentions
[39]
The appellants’ submission that the governing body did not have
statutory power to change the school’s
name was founded
primarily on the assertion that while s 16(1) of the Schools Act
vests the governance of a public school in its
governing body, that
section expressly provides that ‘it may only perform such
functions and obligations and exercise only
such rights as prescribed
by the Act’. Relying on the minority judgment in Head
of Department, Department of Education, Free State Province v Welkom
High School and Others (Welkom
High School),[2]
the appellants argued that the governing body is a creature of the
Schools Act and consequently derives all its powers from that
statute. According to the appellants, there was, therefore, no scope
for inferring any implied powers beyond those provided for
by the
Schools Act.
[40]
They criticised the procedure adopted by the governing body on the
following grounds. First, they contended
that the governing body has
impermissibly departed from the procedure to which it had committed
in its letters to parents, learners
and other interested parties in
June and July 2020. They relied on Chairpersons’
Association v Minister of Arts and Culture and Others[3]
for the submission that an undertaking given by a public authority
regarding a procedure is binding.
[41]
Second, they submitted that the consultation process during March
2021, which was facilitated by the steering
committee members, did
not concern the primary issue of the school’s name but had by
then mutated into a debate about ‘The
school we dream of’
and the identity of the school. The appellants contended that that
procedure was disingenuously devised
to stifle forthright debate
about the question whether the school’s name should be changed.
Participants at the discussion
groups were therefore not allowed to
debate that issue, so they argued.
[42]
In this regard, the appellants pointed to the fact that Ms van Zyl
and Ms Warnich (who were members of the
steering committee), as well
as Mr de Haan, all confirmed that no discussions regarding the
school’s name were allowed in
the groups. They submitted that
the governing body did not address these averments in reply but
merely proffered a bald denial.
[43]
Third, they asserted that the members of the governing body did not
have access to the raw data of the steering
committee sessions but
were merely provided with a one page summary and recommendations
prepared by Dr Marais. The Unit’s
report was not tabled at the
governing body meeting held on 6 May 2021, nor was it discussed or
adopted at that meeting. The report
could therefore not have informed
the governing body’s decision to change the school’s
name. That decision was also
taken without any input from the
steering committee, so the argument went.
[44]
Fourth, they argued that the governing body’s decision to cease
the consultation process because Dr
Marais was of the view that he
had heard enough and that a point of ‘saturation’ had
been reached, was irrational.
According to the appellants, that
decision can also not pass muster because the governing body was
required to consult widely and
provide a fair opportunity to all
interested parties to express their views.
The
governing body’s submissions
[45]
The governing body argued that while the Schools Act does not
expressly empower it or, for that matter, any
other organ of state or
functionary, to change the school’s symbols, it must be implied
that the power vests in the governing
body by virtue of its
governance obligations. Its primary function is to serve the best
interests of the school and its learners
and it therefore has a
fiduciary duty towards the school.[4]
Its fiduciary duty to promote the best interests of the school must
therefore, by necessary implication, include decisions regarding
the
school’s symbols, including its name. It is manifest that
neither the provincial Department nor the Minister of Education
is
better placed than the governing body to decide on the school’s
name. This was recognised both by the Department and by
FEDSAS.
[46]
It further submitted that while contending that the governing body
does not have the power to change the
school’s name, the
appellants did not proffer a construction of the Schools Act that
vests this power in any other functionary
or organ of state. The
interpretation contended for by the appellants would therefore lead
to the absurd situation that the name
of a school can never be
changed.
[47]
The governing body also took issue with the appellants’
submissions regarding the fairness and rationality
of the
consultative process and the decision to change the school’s
name. It submitted that the impugned decision was preceded
by
extensive consultation with all role players and was taken with due
consideration of all relevant information gathered during
the
steering committee group sessions. The decision to change the
school’s name, which was fundamentally irreconcilable with
its
stated ethos and values, was, according to the governing body, thus
self-evidently rational.
The
high court’s findings
[48]
The high court disagreed fundamentally with the appellants’
submissions. Regarding the appellant’s
submission that s 16(1)
of the Schools Act has the effect of limiting the governing body’s
powers to those expressly mentioned
in the Act, the high court said
that it is wrong to consider the section in isolation. What was
required, the high court found,
was a purposive interpretation of the
Act that avoids a ‘simplistic and one-dimensional construction
of its provisions’.
Based on such a construction, it concluded
that the governance functions of the governing body are wide ‘but
not untrammelled’.
[49]
The governance functions mentioned in s 20 of the Schools Act place
the governing body in a fiduciary relationship
with the learners,
educators, parents as well as the broader community. It was in the
exercise of that fiduciary obligation always
to act in the school’s
best interests that it decided to change the name.
[50]
The high court further found that the power to change the school’s
name ‘was also aligned with
the power of the SGB [the governing
body] to develop a mission statement for the school.’ This is
one of the functions mentioned
in s 20 of the Schools Act.
[51]
The interpretation contended for by the appellants, the high court
found, would mean that the name of a school
can never be changed
under the existing legislation. This is an absurdity that can be
avoided by a reasonable and contextual construction
of the Schools
Act.
[52]
The high court found no fault with the procedure adopted by the
governing body. Regarding the fairness of
the consultative procedure
and rationality of the impugned decision, the high court held that it
was not unreasonable for the governing
body to devise a consultation
process in accordance with the advice of Dr Marais and the guidelines
contained in the FEDSAS circular;
the decision to terminate the
consultation after a ‘saturation point’ had been reached
was reasonable in the circumstances;
and the decision to change the
school’s name was taken after ‘a proper and fair process
with proper consultation given
the circumstances of this case’.
It accordingly dismissed all the appellants’ review grounds.
Analysis
Does
the governing body have implied power to change the school’s
name?
[53]
The governing body was established in terms of s 16(1) of the Schools
Act. That section vests the governance
of public schools in their
governing bodies. In Hoërskool
Ermelo,
the Constitutional Court said that while the concept of governance is
nowhere defined in the Schools Act, s 20 confers on the
governing
body certain core functions relating to the adoption of a
constitution and code of conduct for learners; developing a
mission
statement; determining the times of the school day; administering and
controlling the school’s property; and recommending
the
appointment of educators and non-educator staff to the Head of
Department. These are the essential governance functions but
they are
not exhaustive.[5]
[54]
In giving content to the concept of ‘governance’, both
the Constitutional Court and this Court
relied on the definition of
‘governance’ in the English
Oxford Dictionary.
It defines the term, among others, as ‘the action or manner of
governing, controlling, directing or regulating influence,
the manner
in which something is governed or regulated, method or management,
system of regulations’.[6]
[55]
One can only truly understand the vital role of school governing
bodies in realising the vision of ‘a
new national education
system for schools which will redress past injustices in educational
provision, advance the democratic transformation
of society, combat
racism and sexism and all other forms of unfair discrimination and
intolerance’,[7]
if regard is had to where it fits into the scheme of the Schools Act.
A governing body is, in partnership with the relevant Head
of
Department, Member of the Executive Council and the Minister,
responsible for the running of public schools. The provisions
of the
Schools Act are carefully crafted to strike a balance between the
duties of the various partners in ensuring an effective
education
system.[8]
In this partnership, it is the governing body that represents the
interests of parents, teachers, present and former leaners as
well as
the community in which the school is located. It is for this reason
that the Schools Act vests in the governing body those
functions that
relate to the identity and ethos of the school, namely, to adopt a
constitution, develop the mission statement of
the school, and adopt
a code of conduct for learners.[9]
[56]
Since a governing body exercises ‘defined authority over some
of the domestic affairs of the school’
and is meant to be ‘a
beacon of grassroots democracy in the local affairs of the school’,
it stands in a position of
trust towards the school.[10]
This fiduciary duty, in the words of the Constitutional Court in
Hoërskool
Ermelo,
must be exercised on the understanding that a school is not ‘a
static and insular entity’, and the fiduciary duty
‘is to
the institution as a dynamic part of an evolving society’. A
governing body’s fiduciary obligations are
not limited only to
parents and learners, but to ‘the broader community in which
the school is located and in the light of
the values of our
Constitution’.[11]
[57]
Since the Schools Act is silent regarding in which entity or person
the power to change the name of a school
vests, this question must be
answered through a contextual and purposive interpretation of its
provisions.[12]
And since the Schools Act regulates the constitutional right to
education, the starting point must be s 39 (1) of the Constitution.
That section enjoins courts, when interpreting the Bill of Rights ‘to
promote the values that underlie an open and democratic
society based
on human dignity, equality and freedom’. Section 39(2) of the
Constitution enjoins courts, when interpreting
any legislation, to
promote the ‘spirit, purport and objects of the Bill of Rights.
[58]
Our courts have pronounced the following principles apropos the
interpretation of statutory provisions, which
may implicate
fundamental rights:
(a)
a generous construction, which affords claimants ‘the fullest
possible protection of constitutional
guarantees’ should be
preferred over ‘a merely textual or legalistic one’;[13]
(b)
courts should guard against adopting a ‘blinkered’
approach which considers a particular
provision in isolation without
due regard to its context;[14]
(c)
this Court, in Hoban
v Absa Bank Limited t/a United Bank,[15]
held that ‘context’ does not only mean those parts of the
legislative provision which immediately precedes and follow
the
passage, which is being construed, but ‘it includes the entire
enactment in which the word or words in contention appear’;[16]
(d)
the Constitutional Court in Department
of Land Affairs and Others v Goedgelegen Tropical Fruits
emphasised that ‘[a]lthough the text is often the starting
point of any statutory construction, the meaning it bears must
pay
due regard to context. This is so even when the ordinary meaning of
the provision to be construed is clear and unambiguous’;[17]
and
(e)
words can only be read into a statute by implication if the
implication is a necessary one ‘in
the sense that without it
effect cannot be given to the statute as it stands.’[18]
[59]
The appellants’ singular focus on s 16(1) of the Schools Act,
which provides that the governing body
may only perform such
functions and obligations and exercise only such rights as prescribed
by the Act, is fundamentally at odds
with the abovementioned canons
of statutory construction. The governing body’s submission that
s 16(1) must be contextually
construed, having regard to the purpose
of the legislation and other relevant provisions thereof, on the
other hand, accords with
the approach adopted by the Constitutional
Court in Welkom
High School.[19]
In that case the Constitutional Court held that a school governing
body is ‘akin to a legislative authority within the public
school setting, being responsible for the formulation of certain
policies and regulations in order to guide the daily management
of
the school and to ensure an appropriate environment for the
realisation of the right to education’.
[60]
The Constitutional Court further found that even though the Schools
Act does not expressly empower a governing
body to formulate a
pregnancy policy, that power must be implied, having regard to its
governance functions and fiduciary obligations.
Khampepe J, in
finding that the promulgation of a pregnancy policy falls within a
governing body’s governance responsibilities,
said that [w]hile
the powers of governing bodies are limited to “defined autonomy
over some of the domestic affairs of the
school”, no other
partner in the statutory scheme for the running of public schools is
empowered, or is as well placed as
a school governing body, to
formulate a pregnancy policy for a particular school.’ [20]
[61]
In my view, and by parity of reason, the same must go for the
position of a governing body insofar as it
relates to decisions
regarding the symbols and identity of a school, including its name.
The high court correctly found that there
is no other entity better
placed than the governing body to decide those issues. The governing
body is a democratically elected
entity, which represents the best
interests of the school, educators, learners and the community served
by the school. It is thus
best placed to decide on issues pertaining
to the school’s symbols and its identity.
[62]
Counsel for the governing body has correctly submitted that governing
bodies regularly exercise several functions,
which are not mentioned
in the Schools Act, such as fundraising, marketing, meetings with
parents and enforcement of the obligation
to pay school fees. It
would be absurd to suggest that governing bodies are precluded from
performing those functions simply because
the Schools Act does not
expressly empower them to do so.
[63]
It is furthermore significant that while the Schools Act does not
expressly preclude a school’s governing
body from taking
decisions regarding its name, s 21 of the Schools Act expressly
mentions other powers which are excluded from
a governing body’s
governance functions, namely, among others, maintenance of school
buildings, determination of extra-mural
curriculum; choice of
subjects in provincial curriculum policy, and the purchase of
textbooks and other educational material or
equipment. A governing
body may, however, apply to the Head of the Department to be
allocated those functions.
[64]
In terms of s 20(1)(m)
of the Schools Act, the Minister or Member of the Executive Council
may, by notice in the Government Gazette
and Provincial Gazette,
respectively, allocate additional functions consistent with the
Schools Act to governing bodies. While the departmental circular
was
not issued in terms of that section, it is significant that both that
circular as well as the guidelines issued by FEDSAS assume
that the
power to change a school’s name vests in its governing body. In
Welkom
High School[21]
the Constitutional Court also found it ‘instructive’ that
both the National and Provincial Department of Education
issued
notices predicated on the assumption that the promulgation of a
pregnancy policy falls within the governing body’s
governance
responsibilities.
[65]
A further indication of the centrality of governing bodies in matters
pertaining to the symbols and identity
of a school is to be found in
s 12A of the Schools Act. That section regulates the merger of public
schools and provides, in subsection
6(b), that the merged
interim governing body ‘must decide on the budget and
differences in codes of conduct and school fees, as
well as any issue
that is relevant to the merger or is prescribed, until a new
governing body is constituted in terms of sections
23 and 28’.
That section is also silent regarding the power to decide on a name
for the merged school but, in my view, it
is axiomatic that that
power must vest in the interim governing body.
[66]
The submission that governing bodies have implied powers to decide on
the name of a school or to change it,
is thus compelling and
consonant with a contextual and purposive interpretation of the
Schools Act. The alternative construction,
which the appellants
contend for, is manifestly incompatible with the purpose and scheme
of the Schools Act and will result in
absurd consequences.
Procedural
fairness
[67]
In terms of s 3 of PAJA, administrative action, which materially and
adversely affects the rights of any
person, must be procedurally
fair. In terms of subsection 2(a), a fair procedure depends on
the circumstances of each case. The minimum requirements for fair
administrative procedure are adequate
notice of the proposed action;
reasonable opportunity to make representations; a clear statement of
the proposed action; notice
of any right to appeal or review; and
notice of the right to request reasons. In terms of subsection 3(4)
of PAJA, an administrator
may depart from any of those requirements
if it is reasonably justifiable, having regard, among others, to the
objects of the empowering
provisions in terms of which the
administrative action is contemplated; the likely effect of the
administrative action; and the
urgency of the matter.
[68]
The question then arises whether the consultative procedure adopted
by the governing body conformed to these
prescripts. I am of the view
that it did for the following reasons. First, it is manifest that the
procedure adopted by the governing
body was informed by its belief
that the school’s name must reflect its ethos and be
representative of its identity. A debate
regarding the
appropriateness of the school’s name and whether it should be
changed could therefore not reasonably be based
on a simplistic
process that required a ‘for’ or ‘against’
answer.
[69]
Dr Marais’s advice that the decision regarding the name should
instead be informed by a dialogue regarding
the school’s ethos,
identity and symbols was therefore rational and ensured that the best
interests of the school and its
learners would remain cardinal. In my
view, the governing body’s belief that agreement regarding the
school’s core
characteristics should inform a decision either
to change or retain its name was eminently reasonable.
[70]
Second, the appellants’ criticism of the governing body’s
decision to stop the consultation process
when it had reached a point
of ‘saturation’ is untenable. It is self-evident that in
any consultative process a point
would be reached when no new ideas
are proffered and participants are merely repeating the same views.
At that stage it would serve
no purpose to continue with the process.
[71]
Third, the appellants’ insistence that the decision should have
been taken through a referendum is
impractical and irrational. The
implication of that submission is that the governing body should be
bound by the majority view,
no matter how irrational or harmful it
may be to the school. In my view, that proposition is self-evidently
flawed. The power to
decide on the school’s symbols vests in
the governing body and it has the fiduciary responsibility to
exercise that power
in the best interests of the school.
[72]
Fourth, the contention that the governing body disingenuously
departed from the procedure to which it has
committed also has no
merit. The letters which the governing body dispatched to persons on
its database during June and July 2020,
were explicit about the fact
that the consultation process also related to the possibility of a
name-change.
[73]
Moreover, the appellants’ contention that participants in the
group discussions were prohibited from
raising the issue of the
school’s name is not supported by the established facts. Apart
from the confirmatory affidavits
filed by some of the facilitators at
the discussion groups, the fourth appellant, in correspondence to Mr
Roux, expressed his satisfaction
with the process and confirmed that
participants were allowed to raise the issue of the name-change. The
procedure adopted by the
governing body was therefore manifestly fair
and rational.
The
rationality of the decision to change the school’s name
[74]
The appellants’ submission that the decision to change the
school’s name was taken without due
consideration of the
relevant information, is not supported by the facts. Although the
discussions at the meeting on 6 May 2021
were based on Dr Marais’s
summary of the Unit’s report, all the members of the governing
body had been furnished with
the report previously and were thus
aware of its contents. The decision to review the school’s
name, subject to further investigation
into the financial
implications, was therefore taken with due regard to the contents of
the report.
[75]
I find that the decision to change the school’s name to DF
Akademie was also taken pursuant to a fair
and extensive consultative
process during which all interested persons were given an opportunity
to express a view. Even though
the governing body would not have been
bound to implement the majority view, the majority did in fact vote
in favour of the new
name. The name of Dr Malan harks back to the
apartheid era, an association that is fundamentally at odds with the
school’s
ethos of inclusivity and its transformative vision. It
is undeniably a hindrance to the school’s declared commitment
to advance
its vision of inclusivity and transformation. The papers
contain several poignant statements by learners expressing concern
that
the school’s name, and what it connotes, may negatively
impact on their future. The governing body’s decision to purge
the school of this unfortunate association with a disgraced legacy is
thus undeniably rational and in the best interests of the
school and
all its stakeholders.
[76]
In summary then, I find that in changing the school’s name, the
governing body was acting within the
ambit of its implied powers in
terms of the Schools Act; that the procedure it adopted to consult
interested parties was comprehensive,
fair and rational; and that the
decision to change the school’s name was taken with due regard
to, and rationally connected
to the information before it. The appeal
must therefore fail.
Costs
and order
[77]
The appellants, relying on the principle enunciated in Biowatch
Trust v Registrar, Genetic Resources and Others,[22]
submitted that the application raises constitutional issues of public
importance and they should therefore not be mulcted with
costs if the
appeal is dismissed. I do not agree. The appellants brought the
application in their private and personal capacities.
The matter also
does not raise any constitutional issues but instead concerns the
appellants’ determination to preserve a
name, which is
reminiscent of South Africa’s archaic past characterised by
racial division, inequality and oppression and
is manifestly
inconsistent with the constitutional values of democracy, racial
unity and equality. I am accordingly of the view
that costs should
follow the result.
[78] In
the result, I make the following order:
The
appeal is dismissed with costs including the costs of two counsel,
where so employed.
J E SMITH
JUDGE OF APPEAL
Appearances
|
For
|
T
|
|
Instructed
|
Bern
|
|
|
Honey
|
|
For
|
J
|
|
Instructed
|
Harmse
|
|
|
JH
|
[6]
Grey
College
ibid para 65; Welkom
High School
fn 1 above para 60.
[7]
Preamble to the Schools Act.
[8]
Welkom
High School fn
1 above para 66.
[9]
Schools Act subsections 20(1)(b),
(c)
and (d).
[10]
Hoërskool
Ermelo fn
4 above para 57.
[11]
Hoërskool
Ermelo
fn
4 above para 80.
[15]
Hoban v
Absa Bank Limited t/a United Bank 1999
(2) SA 1036 (SCA).
[17]
Goedgelegen
Tropical Fruits fn
12 above para 53.
[20]
Welkom
High School para
66.
[21]
Welkom
High School para
65.
Source link