THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Reportable
Case No: 021/2016

In the matter between

THE MEC: DEPARTMENT OF EDUCATION
NORTH WEST PROVINCE
FIRST APPELLANT

THE HOD: DEPARTMENT OF EDUCATION
NORTH WEST PROVINCE

SECOND APPELLANT

and

FEDSAS

RESPONDENT

Neutral citation: MEC: Department of Education Northwest Province v FEDSAS
(021/2016) [2016] ZASCA192 (01 December 2016)

Coram:
Maya AP, Wallis and Swain JJA and Fourie and Dlodlo AJJA

Heard:
09 November 2016

Delivered:
01 December 2016

Summary: Education – Powers of the MEC to make regulations relating to the
administration of public schools hostels – s 27(1) of the North West Schools
Education Act 3 of 1998 – ss 9, 12 and 20(1)(g) of the South African Schools Act
84 of 1996 – interpreted in the light of s 29(1) and 28(2) of the Constitution –
hostel regulations within the powers of the MEC.

_________________________________________________________________

ORDER
_________________________________________________________________

On appeal from: North West Division, Mahikeng (Kgoele J sitting as court of first
instance):
1  Leave to appeal is granted.
2  The appeal is upheld with no order as to costs.
The order of the court a quo is set aside and replaced with the following order:
„The application is dismissed.‟
________________________________________________________________
JUDGMENT
_________________________________________________________________
Dlodlo AJA (Maya AP, Wallis and Swain JJA and Fourie AJA concurring):
[1] The respondent, the Federation of Governing Bodies for South African
Schools (FEDSAS) launched an application in the North West Division of the High
Court seeking orders reviewing and setting aside the „Regulations relating to the
Administration of Public school hostels‟ promulgated in the North West Provincial
Gazette Extraordinary 7031, GN 430 of 2012, of 31 August 2012 (the hostel
regulations). The application was opposed by the Head of Department, Education
and Training, North West Province (the HoD). The High Court upheld the
application and declared that the hostel regulations were „unlawfully promulgated,
ipso facto void and of no force or effect‟. Leave to appeal against that order was
refused by the High Court on the basis that the appeal had been perempted.
However, this court (per Leach JA and Plasket AJA) referred the application for
leave to appeal for oral argument.

BACKGROUND FACTS
[2] The Department of Education in the North West Province had received
numerous complaints of learners being unfairly excluded and others being
expelled from hostels without recourse to the provisions of the law. This resulted in
those learners being unable to go to school at all. There were also reports of
abuse of authority including „the charging of high and exorbitant boarding fees and
school fees.‟

[3] The impugned hostel regulations are reportedly the result of an intense
study by the Department on how to achieve the realization of the rights guaranteed
by the Constitution. The Department identified the „lack of access to schools by
learners, more especially in rural areas‟, as „one of the challenges that impacted
on the provision of quality education and learner achievement‟.

[4] On the relationship between the provision of hostels and access to
education, the position is articulated in para 3.1 of the answering affidavit:
„Boarding facilities provide access to education for learners from remote rural areas and
farming communities. Such facilities also provide learners with exposure to the
environment beyond the confines of their own community. They provide an answer for
learners living in places where the State cannot provide schools, thus reducing the
difficulties of transport across distances including costs, the dangers involved in it and the
time being consumed. Boarding facilities also provide access to a choice of education and
access to further education for learners whose local schools are limited to lower level
grades.‟
This was admitted by FEDSAS stating that boarding facilities do provide relief for a
variety of circumstances, for example, where parents are transferred their children
are able to remain at school which has hostel facilities. In FEDSAS‟s view, the
Department must either expend capital on new schools closer to those deprived of
educational access, or build more hostels at existing schools to accommodate

those learners. It was accepted that boarding facilities enable learners to pursue
specialised curricular directions such as technical, agricultural, science and
mathematics fields which may not be available to them at their local school.

[5] There are a number of reasons why boarding facilities provided by hostels
play a vital role in the provision of access to education. Boarding facilities provide
a disciplined environment particularly in cases of families of single working
parents, families in which the parents are compelled to travel extensively, or
families which are unable to provide after-school supervision for learners. They
provide many disadvantaged learners with an opportunity to enjoy better living
conditions and sometimes better care than they would experience in their own
home environment. Basic facilities such as electricity and shelter, television,
computers and media centres are made accessible in some boarding facilities.
Boarding facilities also facilitate participation in extra-curricular activities including
sports and cultural activities.

[6] Boarding facilities provide a relatively safe environment for children, many
of whom are at risk in that they live in informal settlements and townships and are
without supervision for much of the day. They provide a stable environment for
children from broken families or homes with special needs and problems. They
facilitate positive social development and the ability to accept others from different
social or cultural backgrounds. They promote independence, self-discipline and
the ability to work as part of a team of learners.

[7] The provision of boarding facilities can be a cost efficient measure in small,
sparsely populated rural and farming communities. The hostel facilities offer
disadvantaged learners from rural areas, who would otherwise have to travel long
distances to school, better living conditions that are conducive to learning.
Learners travelling long distances to school and back home are exposed to all
kinds of challenges such as arriving late for school or being tired due to the long

hours they have to spend on the road. The accommodation of learners in boarding
facilities will evidently eradicate these challenges and reduce the dropout rate in
schools.

THE LAW
[8] The impugned hostel regulations were promulgated in terms of s 27 of the
North West Schools Education Act 3 of 1998 (the North West Schools Act) read
with s 9(3) of the South African Schools Act 84 of 1996 (SASA). These must be
read in the light of the Constitution. Section 29(1) of the Constitution provides:
„Education
(1) Everyone has the right –
(a) to a basic education including adult basic education.‟
And s 28(2) of the Constitution provides:
„A child‟s best interests are of paramount importance in every matter concerning the child.‟

[9] The most recent pronouncement by the Constitutional Court on the
importance of basic education is found in Federation of Governing Bodies for
South African Schools v MEC for Education, Gauteng & another  [2016] ZACC 14;
2016 (4) SA 546 (CC) (Fedsas v MEC for Education, Gauteng) para 3 as follows:
„. . . access to teaching and learning has not been freely and widely accessible to all
people at all times.  All forms of human oppression and exclusion are premised, in varying
degrees, on a denial of access to education and training. The uneven power relations that
marked slavery, colonialism, the industrial age and the information economy are girded, in
great part, by inadequate access to quality teaching and learning. At the end of a long and
glorious struggle against all forms of oppression and the beginning of a democratic and
inclusive society, we, filled with rightful optimism, guaranteed universal access to basic
education. We collectively said: “[e]veryone has the right to a basic education, including
adult basic education.”‟ (Footnote omitted.)

Similarly, the Constitutional Court observed in Governing Body of the Juma Musjid
Primary School & others v Essay NO & others (Centre for Child Law & another as
Amici Curiae) [2011] ZACC 13; [2011] 8 BCLR 761 (CC) paras 42 and 43 as
follows:
„The significance of education, in particular basic education for individual and societal
development in our democratic dispensation in the light of the legacy of apartheid, cannot
be overlooked. The inadequacy of schooling facilities, particularly for many blacks was
entrenched by the formal institution of apartheid, after 1948, when segregation even in
education and schools in South Africa was codified. Today, the lasting effects of the
educational segregation of apartheid are discernible in the systemic problems of
inadequate facilities and the discrepancy in the level of basic education for the majority of
learners.
Indeed, basic education is an important socio-economic right directed, among other
things, at promoting and developing a child‟s personality, talents and mental and physical
abilities to his or fullest potential. Basic education also provides a foundation for a child‟s
lifetime learning and work opportunities. To this end, access to school – an important
component of the right to a basic education guaranteed to everyone by section 29(1)(a) of
the Constitution – is a necessary condition for the achievement of this right.‟ (Footnotes
omitted.)

[10] The right to basic education guarantees access thereto, which must
include, where appropriate, access to hostels because of their importance in
making basic education accessible. In terms of Schedule 4 of the Constitution,
„education at all levels, excluding tertiary education‟ is a concurrent provincial and
national legislative competence. This concurrent competence operates as
described by the Constitutional Court in Fedsas v MEC for Education, Gauteng
para 26:
„Education is a functional area of concurrent national and provincial legislative
competence. Parliament may legislate on education and a province too. In turn, the
Premier and MECs in a province exercise authority by implementing provincial legislation.
The legislative competence of a province cannot be snuffed out by national legislation
without more. The Constitution anticipates the possibility of overlapping and conflicting

national and provincial legislation on concurrent and national legislative competences.‟
(Footnotes omitted.)

[11] The Constitutional Court in Head of Department, Mpumalanga Department
of Education & another v Hoërskool Ermelo & another [2009] ZACC 32; 2010 (2)
SA 415 (CC) paras 55-56 described the role of SASA as follows:
„The avowed purpose of the Schools Act is to give effect to the constitutional right to
education. Its preamble records that the achievement of democracy has consigned to
history the past system of education which was based on racial inequality and
segregation, and that the country requires a new national system for schools which will
redress past injustices in the provision of education and will provide education of a
progressively high quality for all learners. The new education system must lay a
foundation for the development of all people‟s talents and capabilities and advance the
democratic transformation of society, and combat racism, sexism, unfair discrimination,
and contribute to the eradication of poverty. The preamble also expresses the intent to
advance diverse cultures and languages and to uphold the rights of learners, parents and
educators. It also makes plain that the statute aims at making parents and educators
accept the responsibility for the organisation, governance and funding of schools in
partnership with the State.
An overarching design of the Act is that public schools are run by three crucial partners.
The national government is represented by the Minister for Education whose primary role
is to set uniform norms and standards for public schools. The provincial government acts
through the MEC for Education who bears the obligation to establish and provide public
schools and, together with the Head of the Provincial Department of Education, exercises
executive control over public schools through principals. Parents of the learners and
members of the community in which the school is located are represented in the school
governing body which exercises defined autonomy over some of the domestic affairs of
the school‟. (Footnote omitted.)
See also MEC for Education, Gauteng Province & others v Governing Body,
Rivonia Primary School & others [2013] ZACC 34; 2013 (6) SA 582 (CC) para 36.

[12]  Section 12 of SASA provides:
„Provision of public schools
(1) The Member of the Executive Council must provide public schools for the education
of learners out of funds appropriated for this purpose by the provincial legislature.
(2) The provision of public schools referred to subsection (1) may include the provision of
hostels for the residential accommodation of learners.‟
Section 20(1)(g) identifies the function of governing bodies, subject to the Act, as
the power to:
„administer and control the school’s property and buildings and grounds occupied by the
school, including school hostels, but the exercise of this power must not in any manner
interfere with or otherwise hamper the implementation of a decision made by the Member
of the Executive Council or Head of Department in terms of any law or policy.‟

[13] The preamble to the North West Schools Act provides that its purpose is:
„To provide for a uniform system for the organisation and funding of schools; to amend
and repeal certain laws relating to schools; to cater mainly for the best educational
interests of the child by providing an education of progressively high quality and upholding
the rights of all learners, parents and educators, and to promote their acceptance of
responsibility for the organisation, governance and funding of schools in partnership with
the State; and to provide for matters connected therewith.‟

[14] Section 27(1) of the North West Schools Act provides in relevant part:
„Regulations
27 (1) The Member of the Executive Council in consultation with the Head of Department
may make regulations which are not inconsistent with any law, as to –
(a)  any matter which shall or may be prescribed by regulation under this Act;
(b) any matter which the Member of the Executive Council may deem necessary or
expedient to prescribe in order to achieve the objectives of this Act‟.

The purpose of the hostel regulations as stated in regulation 2(1) is „to regulate the
administration and control of hostels, the admission of learners to hostels,
disciplinary procedures and matters related thereto.‟

DISCUSSION
[15] FEDSAS submitted in reliance upon Ngcobo & others v Van Rensburg
1999 (2) SA 1057 (SCA) para 11, that the North West Schools Act cannot be read
disjunctively, or in a manner where only the preamble determines the objectives of
the Act. It emphasised that, when analysing s 27(1)(b) of the North West Schools
Act, this must be done contextually and not by reference to the preamble alone. To
determine whether a functionary has acted intra vires his or her legislative powers,
the ambit of such power must be discernible by reference to the objects of the
entire North West Schools Act. Absent an apparent object, the functionary does
not have that power and acts ultra vires. In making these submissions FEDSAS
relied on Minister of Health NO v New Clicks South Africa (Pty) Ltd & others
(Treatment Action Campaign & another as Amici Curiae) 2006 (2) SA 311 (CC)
para 144 where the following appears:
„Where the making of regulations is challenged on this ground, lawfulness depends on the
terms of the empowering statute. If the regulations are not sanctioned by the empowering
statute they will be unlawful and invalid.‟

[16] FEDSAS argued that in the absence of any express statutory authority, the
general empowering provision finds application only in matters of an administrative
nature and cannot be used to make regulations of a substantive nature. Relying on
Hoërskool Ermelo, it was submitted that the intention of the Legislature in the two
statutes is that the power to run school hostels is placed in the hands of the
parents and guardians of learners through School Governing Bodies (SGBs).

[17] The issue in this appeal engages the right to basic education enshrined in s
29 of the Constitution. Unlike other socio-economic rights, the right to basic
education has no internal limitation requiring it to be progressively realised. It is a
right which is „immediately realizable‟. See Juma Musjid Primary School para 37;
and Minister of Basic Education & others v Basic Education For All & others [2015]
ZASCA 198; 2016 (4) SA 63 (SCA) para 36-37.

[18] All legislation must be read in a manner which promotes the spirit, purport
and objects of the Bill of Rights (s 39(2) of the Constitution). This is an obligation
placed on courts regardless of the approach adopted by the litigants. See
Phumelela Gaming and Leisure Ltd v Gründlingh & others [2006] ZACC 6; 2007
(6) SA 350 (CC) paras 26-27. Additionally, all statutory instruments must be
interpreted purposively, contextually and consistently with the Constitution. See
Stratford & others v Investec Bank Ltd & others [2014] ZACC 38; 2015 (3) SA 1
(CC) para 19; Natal Joint Municipal Pension Fund v Endumeni Municipality [2012]
ZASCA 13; 2012 (4) SA 593 (SCA) para 18.

[19] The assertion that the MEC had simply no power to promulgate the hostel
regulations, militates against the established principle of interpretation that powers
expressly granted must be interpreted to include those powers reasonably
necessary or incidental to those powers. See City of Cape Town v Claremont
Union College 1934 AD 414 at 420 recently followed in Engen Petroleum Limited v
The Business Zone 1010 CC trading as Emmarentia Convenience Centre [2015]
ZASCA 176 para 21.

[20] The regulation-making power in s 27(1) of the North West Schools Act,
extends to what the MEC deems „necessary or expedient to prescribe in order to
achieve the objectives of this Act‟. This phrase as submitted by the appellant,
confers power „of the widest possible character‟ and leaves it to the decision-
maker to decide „what method to follow in order to achieve the purpose stated in

the subsection.‟ See Catholic Bishops Publishing Co v State President & another
1990 (1) SA 849 (A) at 861F. As mentioned above, the objects of the Act include
„the best educational interests of the child by providing an education of
progressively high quality.‟

[21] The constitutional right to education in s 29(1) and the best interests of the
child learner provided for in s 28(2) of the Constitution must be promoted and
protected. These provisions envisage that the right to education goes substantially
further than the provision of classrooms. In a country as large as ours, with
scattered population in rural areas, access to education must necessarily include
the provision of hostels to enable learners living far from schools to obtain an
education. Legislation which gives effect to the right to education requires a
generous interpretation. The provision of hostels is thus an essential component
for facilitating the right of access to education.

[22] The MEC is vested with regulation-making powers. This is clear from ss
12(1) and 12(2) of SASA. The MEC is empowered in terms of s 27(1)(b) of the
North West Schools Act to make regulations deemed necessary or expedient in
order to achieve the objects of the North West Schools Act. The right to education
must include the provision of necessary facilities which includes hostels. SGBs do
not have exclusive authority over the governance of schools and by extension,
school hostels and accordingly do not have unfettered powers to administer school
hostels. Section 20(1)(g) of SASA provides that the exercise and administration of
powers over school hostels must not in any manner interfere with or otherwise
hamper the implementation of a decision made by the MEC or HoD in terms of any
law or policy. The MEC and the HoD accordingly have a say in the administration
of school hostels, contrary to the contention by FEDSAS that the administration of
school hostels is its exclusive preserve. The relationship between the Minister, the
MEC, HoDs and SGBs in the overall administration of school matters in terms of
SASA was recognised by the Constitutional Court in Head of Department,

Department of Education, Free State Province v Welkom High School & others
[2013] ZACC 25; 2014 (2) SA 228 (CC) paras 36-37 where it was held, inter alia,
that:
„The State‟s obligations to ensure that the right to education is meaningfully realised for
the people of South Africa are great indeed. The primary statute setting out these
obligations is the Schools Act. That Act contains various provisions governing the
relationships between the Minister, members of provincial executive councils responsible
for education (MECs), HoDs, principals and the governing bodies of public schools. It
makes clear that public schools are run by a partnership involving school governing
bodies (which represent the interests of parents and learners), principals, the relevant
HoD and MEC, and the Minister. Its provisions are carefully crafted to strike a balance
between the duties of these various partners in ensuring an effective education system.‟
(Footnote omitted.)

[23] FEDSAS‟ claim to the exclusive governance of hostels disregards the
constitutional obligation of the MEC to ensure access to education. This would be
hampered if the MEC were precluded from promulgating regulations relating to
access to hostels for learners as these regulations do. The authority to promulgate
the regulations is a necessary and ancillary power to the constitutional and
legislative duty to provide basic education. This must be understood within the
broader constitutional scheme of cooperative governance (ss 40 and 41 of the
Constitution) that enjoins all spheres of government to adhere to the principles of
unity, indivisibility and coherence in inter-spherical government relations as well as
the fostering of friendly relations assistance and support. This must also be seen
in the context of concurrent legislative competence where the MEC is enjoined to
make basic education accessible to everyone. Thus the MEC‟s power to make
regulations is also derived from his statutory power to arrange for the provision of
education, and in many instances, this cannot be done without providing a hostel.
Once the hostel is provided, the MEC must make regulations pertaining to that
hostel. The MEC has the power under SASA to prescribe codes of conduct. It
would thus be absurd to say that he can do that for the school premises, but not
the hostel. If that was the case, it would mean that conduct that is unacceptable in

the school buildings (such as vandalism) is not a disciplinary offence if it occurs in
the school hostel.

[24] Relying upon ss 146-150 of the Constitution, FEDSAS submitted that the
inconsistency between the sets of legislation was sufficient to invalidate the hostel
regulations. This argument was, however rejected by this court and the
Constitutional Court in Fedsas v MEC, Gauteng. The Constitutional Court laid
down the approach to possible conflicts as follows (paras 27-28):
„The conflict resolution scheme of sections 146, 149 and 150 of the Constitution departs
from the conventional hierarchy that provincial legislation may not be in conflict with
national legislation. Automatic repugnancy between the two classes of legislation does not
arise. The scheme readily acknowledges and manages the potential conflict related to
concurrent national and provincial law-making competences. Under the scheme,
provincial legislation prevails over national legislation except if the national legislation
applies uniformly countrywide or the matter cannot be regulated effectively by respective
provinces or the matter is one listed in the Constitution as requiring uniformity across the
nation. None of these considerations apply here.
Even if there was conflict, it does not render the national or provincial legislation on
Schedule 4 matters invalid. A court must first attempt to avoid the conflict by preferring
any reasonable interpretation of the two pieces of legislation which avoids conflict. If the
conflict persists, the provincial legislation prevails. It must be added that national
legislation may enjoy supremacy over provincial law only in accordance with the test laid
down in sections 146(2) and (3) of the Constitution and in terms of section 148 if section
146 does not apply. However, the trumped provincial or national legislation is not to be
struck down. It simply „becomes inoperative for as long as the conflict remains.‟

[25] The argument of FEDSAS demands that unless SASA set out in detail the
powers of the MEC in relation to hostels, any regulation-making powers conferred
by the North West Schools Act could not be competently exercised in relation to
hostels. This is not correct. The impugned regulations do not unlawfully limit the
powers of SGBs. In Hoërskool Ermelo, the Constitutional Court acknowledged the

important role of SGBs, but stressed that the powers of SGBs are not absolute
and are subject to a range of limitations. Section 16(2) of SASA provides that an
SGB „stands in a position of trust towards the school,‟ and s 20(1)(a) provides that
the SGB  „must promote the best interests of the school and strive to ensure its
development through the provision of quality education for all learners at that
school‟.

[26] FEDSAS submits that the definition of both „learners‟ and „school‟ has been
expanded by the regulation and are „contrary to SASA and cannot prevail, and
none of the individual regulations can pass constitutional muster‟. This is not so,
because as correctly pointed out by the appellant, the need to have appropriate
definitions was a practical mechanism of confirming the ambit of the regulations in
relation to hostels. The suggestion that some of the impugned regulations are
irrational is contrary to the requirements of rationality review. The executive has a
wide discretion „in selecting the means to achieve its constitutionally permissible
objectives‟ and courts may not interfere with the means selected „simply because
they do not like them or because there are other more appropriate means that
could have been selected‟. See Albutt v Centre for the Study of Violence and
Reconciliation & others [2010] ZACC 4; 2010 (3) SA 293 (CC) para 51. The
question is simply whether the means selected are rationally related to the
objectives sought to be achieved. The court must merely determine whether there
is a „sufficient connection‟ between the regulations and the objective they seek to
achieve and not whether it was „the best decision [it] could have made or whether
[it] could have made a different decision‟. See Minister of Defence and Military
Veterans v Motau & others [2014] ZACC 18; 2014 (5) SA 69 (CC) para 70.

[27] FEDSAS disregards the objectives sought to be achieved in the ambit of
the right to education and the best interests of the learner. The MEC can lawfully
make regulations pertaining to a school, and he can equally do so in relation to
hostels because they are an integral part of schools. The appeal must accordingly

succeed. In accordance with the principle in Biowatch Trust v Registrar Genetic
Resources 2009 (6) SA 232 (CC) Counsel for the appellant did not ask for an
order for costs.

ORDER

[28] In the result, the following order is made:

1  Leave to appeal is granted.
2  The appeal is upheld with no order as to costs.
The order of the court a quo is set aside and replaced with the following order:
„The application is dismissed.‟

______________________
D V Dlodlo

Acting Judge of Appeal

APPEARANCES

For appellant
G J Marcus SC (with him O K Chwaro and M
Makoti)
Instructed by:

Mokhetle Inc, Mahikeng

Phatshoane Henney Attorneys, Bloemfontein

For first respondent
J I Du Toit SC (with him M J Merabe)
Instructed by:

Michael Randell Attorneys, Mahikeng

Claude Reid Attorneys, Bloemfontein
MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME
COURT OF APPEAL

THE MEC: DEPARTMENT OF EDUCATION NORTH WEST PROVINCE &
ANOTHER V FEDSAS CASE NO 021/2016

From:  The Registrar, Supreme Court of Appeal
Date:
Status:  Immediate

Please note that the media summary is for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal.

The Supreme Court of Appeal today upheld an appeal against a judgment of the
high court, Mahikeng, North West Division, concerning the reviewing and setting
aside of the ‘Regulations relating to the Administration of Public school hostels’
promulgated in the North West Provincial Gazette Extraordinary 7031, GN 430 of
2012, of 31 August 2012 (hostel regulations). The issue on appeal was whether the
court a quo was correct in finding that the hostel regulations were unlawfully
promulgated, ipso facto void and of no force or effect, due to the fact that the MEC
had no power to promulgate the hostel regulations.  The Supreme Court of Appeal
held that the MEC is vested with regulation-making powers and that it can lawfully
make regulations pertaining to schools and hostels as they form an integral part of
schools.  The appeal succeeds.

-
ends -