THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Case number:  278/08

In the matter between:

KIMBERLEY JUNIOR SCHOOL

FIRST APPELLANT
THE GOVERNING BODY OF THE
KIMBERLEY JUNIOR SCHOOL

SECOND APPELLANT

and

THE HEAD OF THE NORTHERN
CAPE EDUCATION DEPARTMENT

FIRST RESPONDENT
PAUL MELVILLE THEUNISSEN

SECOND RESPONDENT
SEATILE SARAH RANTHO

THIRD RESPONDENT
DONNA-LEE MARCELÉ BRAND

FOURTH RESPONDENT

Neutral citation:
Kimberley Junior School v The Head of the Northern
Cape Education Department (278/08) [2009] ZASCA 58
(28 May 2009)

CORAM:

STREICHER ADP, BRAND, MAYA, SNYDERS et
MHLANTLA JJA
HEARD:

21 MAY 2009
DELIVERED:
28 MAY 2009

SUMMARY:
Employment of Educators Act 76 of 1998 – appointment
of principal of public school by first respondent in terms of
s 6(3) of the Act – recommendation by school governing
body found to be essential prerequisite for such
appointment
–
held
on
the
facts
that
such
recommendation had never been made – appointment
consequently set aside.

______________________________________________________________

ORDER
_____________________________________________________

On appeal from:
Kimberley High Court (Bosielo AJP et Majiedt J
sitting as court of first instance.)

1.
The appeal is upheld with costs.
2.
The order of the court a quo is set aside and replaced with an order in
the following terms:
'(a)
The decision taken by the first respondent to appoint the third
respondent as principal of the first applicant, is hereby reviewed
and set aside.
(b)
The first respondent is ordered to pay the applicants' costs.'

_____________________________________________________

JUDGMENT
______________________________________________

BRAND JA  (Streicher ADP, Maya, Snyders and Mhlantla JJA concurring)

[1] The appellants in this matter are the Kimberley Junior School ('the
School') and the Governing Body of the School ('the SGB'). The first
respondent is the Head of the Northern Cape Education Department ('the
HoD') while the second, third and fourth respondents are Mr Paul Theunissen
('Mr Theunissen'), Mrs Seatile Rantho ('Mrs Rantho') and Mrs Donna-Lee
Brand ('Mrs Brand') respectively. Only the HoD actively involved himself in
these proceedings. The matter has its origin in the decision of the HoD to
appoint Mrs Rantho – a black female person – instead of Mr Theunissen – a
white male person – as principal of the School. The application by the School
and the SGB to the Kimberley High Court for that decision to be reviewed and
set aside was dismissed by Majiedt J, with Bosielo AJP concurring. The
appeal against that judgment is with the leave of the court a quo.

[2] The issues between the parties will best be understood in the light of
the factual background that follows. At the beginning of May 2006 the

Northern Cape Education Department ('the Department') advertised for
applications to fill various vacant teaching posts in its area. Included amongst
these was the vacancy for the position of principal at the School. Seven
applicants applied. Two of those, who did not comply with the requirements
stated in the advertisement, were sifted out by the district office of the
Department. Of the remaining five, four were short-listed for interviews by an
interview committee of the SGB specially constituted for that purpose in
accordance with directives from the Department. The interviewing and
assessment procedure to be followed by the interview committee was likewise
prescribed in detail by the Department. Inter alia the committee was required
to put a series of questions to each candidate that were aimed at determining
the candidate's ability in twelve prescribed categories. Every committee
member was then called upon to score the candidate's performance in each
category. In the end, these scores were added up and the average mark
calculated. Following upon its assessment of the four candidates involved in
the manner prescribed, the interview committee made its proposals to the
SGB. These were adopted by the latter and conveyed to the HoD in a letter of
12 June 2006.

[3] That letter and the ensuing correspondence between the SGB and the
HoD are directly relevant to the dispute that eventually arose for
determination. This explains the somewhat extensive extracts that are to
follow.
•
In its letter of 12 June 2006 the SGB informed the HoD:
'Re: Appointment of Principal
In the nomination of the above post, equity, redress and representivity were carefully
considered at both the shortlisting and the interviewing process.
The demographics of the school are attached.
Having calculated the scores of the four candidates the following is relevant:
1.
Mr P Theunissen, who obtained a score of 98.8, has been a deputy principal
for 9 years and acting principal for 6 months. He has excellent experience,
sound knowledge of the administration and financial management of a
primary school. He has taught for 17 years in a primary school and has

insight into current education issues relevant to primary school education. He
has had leadership experience in a multi-cultural school.
2.
Mrs S Rantho, the second candidate, obtained a score of 58.1. She is
currently HOD at a Secondary School in Bloemfontein and does not have
teaching experience in a primary school. Nor does she have adequate
administration and management skills to be a principal of a Primary School.
3.
Mrs D-L Brand, the third candidate, obtained a score of 55.8. She is a
Foundation Phase educator and has some experience in an acting HOD
position. As such she lacks the necessary administration and management
skills required to be principal of a suburban school with more than 700
learners.
It is very evident that Mr P Theunissen is the only suitable applicant to take up the
post of principal at Kimberley Junior School.'
•
The demographics of the school attached to the letter showed that the
learner population was made up of 60 per cent African; 25 per cent Coloured;
8 per cent Indian and 7 per cent white learners. It also showed that the top
management at the School consisted of one white male and three white
female persons. The letter also accompanied several forms prescribed by the
Department, including form NCK2 which described all three candidates as
being 'recommended for appointment'.
•
On 12 October 2006 the HoD decided to appoint Mrs Rantho as
principal and conveyed that decision to the SGB in a letter of the same date. It
reads:
'I refer to the above-mentioned matter and your recommendation for the appointment
of a principal at your school.
Having considered the recommendation and ensured that you have complied with
the requirements in section 6(3) of the Employment of Educators Act, 76 of 1998, in
that at least three candidates have been recommended for appointment as
contemplated in section 6(3)(c) and having satisfied myself that there has been
compliance with the provisions of section 6(3)(b). I am satisfied with your
recommendation and shall proceed with the appointment of Ms S S Rantho as per
your recommendation.'
•
The SGB's response to this letter was dated 25 October 2006. The
relevant part reads as follows:
'This letter serves to confirm our telephone discussion held on Monday 23 October
2006 and has reference to your letter signed 12 October 2006, but only received 19

October 2006, . . . It is obvious that there is a patent error in your letter in that you
state that you accept the Governing Body's recommendation that Ms S S Rantho be
appointed as the Principal of Kimberley Junior School. . . . This is not what was
recommended by the Governing Body and I again attach the recommendation that
Mr. P Theunissen is the only suitable candidate.
You also state very clearly that the Governing Body had followed the required
procedure correctly in terms of the relevant sections of the Act.
If it is not a patent error on your part then I respectfully request that you supply the
Governing Body with:
(1)
reasons for your deviation from our recommendation . . .
(2)
. . . '
•
It is not clear from the papers what was said during the telephone
conversation of 23 October 2006, but, as I see it, not much turns on that.
What is clear is that Mrs Rantho was informed of her appointment on 25
October 2006.

[4] On 31 October 2006 representatives of the Governing Body met with
the HoD. In a letter of that date to the HoD, the chairperson of the Governing
Body recorded what he regarded to be the gist of the meeting as follows:
'Our meeting this morning scheduled for 09h00 and held at the Department of
Education has reference. . . .
I would like to place on record my understanding of our meeting and my request for
you to reconsider your decision forwarded to myself on 12 October 2006.
You made it clear that due to a technical misinterpretation, by the Governing Body, of
Section 6(3)(c) of the Employment of Educators Act, 76 of 1998 you chose one of the
three candidates put forward by the Governing Body, notwithstanding the fact that
only one clear candidate was indicated as suitable in the letter dated 12 June 2006.
You further indicated that as the Governing Body and the Department of Education
have differing interpretations as to the intention of the abovementioned Act that the
Governing Body now only has the courts to turn to, to make a final interpretation of
the law, as your decision is final and there is no further appeal process.
. . . '
•
The HoD concluded the exchange of correspondence by his letter of 10
November 2006, which reads:
'With reference to your letter dated the 25th October 2006, I wish to respond as
follows:

1.
There is no error in the position that I have taken in my letter dated the 12th
October 2006. I believe this position was fully explained to you at our
meeting.
2.
To the extent that you are not aware of the reasons for my decision which I
believe were given to you at our meeting I wish to re-iterate them:
2.1
While I accept that the recommendation complies with Section 6(3) [of the
Employment of Educators Act 76 of 1998] an obligation is placed on me by
Section 7(1) to always have regard to the democratic values and principles
set out in Section 195 of the Constitution. This I have to do while taking into
account the ability of the candidate and the need to address the imbalances
of the past. Given the context of the school I have striven to meet this
obligation in appointing Ms Rantho.
2.2.
I am satisfied that with the necessary support Ms Rantho will be able to
discharge her duties as principal of your school.
. . . '

[5] The correspondence shows an appreciation by both parties that the
roles of both the HoD and the Governing Body in the present context are
governed by s 6(3) of the Employment of Educators Act 76 of 1998. In terms
of s 6(1) the authority to appoint, promote or transfer any educator employed
by a provincial department of education vests in the head of that department.
That authority is, however, subject to s 6(3) of which the relevant part
provides:
'(3)(a) . . . (A)ny appointment, promotion or transfer to any post on the educator
establishment of a public school may only be made on the recommendation of the
governing body of the public school . . .
(b)
In considering the applications, the governing body . . . must ensure that the
principles of equity, redress and representivity are complied with and the governing
body . . . must adhere to-

(i)
the democratic values and principles referred to in section 7 (1);

(ii)
any procedure collectively agreed upon or determined by the Minister
for the appointment, promotion or transfer of educators;

(iii)
any requirement collectively agreed upon or determined by the
Minister for the appointment, promotion or transfer of educators which the candidate
must meet;

(iv)
a procedure whereby it is established that the candidate is registered
or qualifies for registration as an educator with the South African Council for
Educators; and

(v)
procedures that would ensure that the recommendation is not
obtained through undue influence on the members of the governing body.
(c)
The governing body must submit, in order of preference to the Head of
Department, a list of-

(i)
at least three names of recommended candidates; or

(ii)
fewer than three candidates in consultation with the Head of
Department.
(d)
When the Head of Department considers the recommendation contemplated
in paragraph (c), he or she must, before making an appointment, ensure that the
governing body has met the requirements in paragraph (b).
(e)
If the governing body has not met the requirements in paragraph (b), the
Head of Department must decline the recommendation.
(f)
Despite the order of preference in paragraph (c) and subject to paragraph (d),
the Head of Department may appoint any suitable candidate on the list.
(g)
If the Head of Department declines a recommendation, he or she must-

(i)
consider all the applications submitted for that post;

(ii)
apply the requirements in paragraph (b) (i) to (iv); and

(iii)
despite paragraph (a), appoint a suitable candidate temporarily or re-
advertise the post.
(h)
The governing body may appeal to the Member of the Executive Council
against the decision of the Head of Department regarding the temporary appointment
contemplated in paragraph (g).
(i)
The appeal contemplated in paragraph (h) must be lodged within 14 days of
receiving the notice of appointment.
(j)
The appeal must be finalised by the Member of the Executive Council within
30 days.
(k)
If no appeal is lodged within 14 days, the Head of Department may convert
the temporary appointment into a permanent appointment . . ..'

[6] To complete the legislative picture; s 7(1) of the Act – to which
reference is made in s 6(3)(b)(i) – provides:
'(1) In the making of any appointment or the filling of any post on any educator
establishment under this Act due regard shall be had to equality, equity and the other

democratic values and principles which are contemplated in section 195 (1) of the
Constitution of the Republic of South Africa, 1996 (Act 108 of 1996), and which
include the following factors, namely-

(a)
the ability of the candidate; and

(b)
the need to redress the imbalances of the past in order to achieve
broad representation.'

[7] In formulating its case for the review of the HoD's decision to appoint
Mrs Rantho instead of Mr Theunissen, the SGB accepted, quite correctly, so it
seems, that that decision had been taken in terms of s 6(3)(f). Departing from
that premise its contentions, broadly stated, were twofold. First, that Mrs
Rantho was not a 'suitable candidate' for the position of principal as required
by the subsection. Secondly, that although the subsection allows the HoD to
deviate from any order of preference proposed by the SGB, Mr Theunissen is
so markedly better qualified for the position and so markedly outscored Mrs
Rantho during the interview procedure, that her appointment could not be
justified on any reasonable grounds.

[8] The response to the first proposition elicited from the HoD was in
essence that, since the SGB recommended Mrs Rantho as one of three
candidates for the position, albeit as a distinct second option, it is not open to
it to argue that she is not suitable. In this regard the HoD referred to the
definition of 'recommendation' in the Concise Oxford English Dictionary,
namely, 'to put forward with approval as being suitable for a purpose or role'.
The proposition by the SGB that it recommended someone who it regarded as
not suitable, so the HoD contended, therefore amounts to a contradiction in
terms. As to the markedly superior score attained by Mr Theunissen during
the interview and assessment procedure, the HoD's response appears to be
encapsulated by the following statement in his answering affidavit:
'The constitutional imperative of the need to redress imbalances of the past in order
to achieve broad representation as echoed in Section 7(1) of the EEA and
Section 195(1)(h) and (i) of the Constitution could only be given effect to by
appointing as principal of [the School] someone other than [Mr Theunissen]. These
constitutional imperatives could, in my respectful submission, only be achieved by
appointing [Mrs Rantho] as principal of [the School].'

[9] The way in which the battle lines were thus drawn led the court a quo
to believe that the dispute presented for determination turned on whether the
HoD had properly exercised the discretion bestowed on him in terms of
s 6(3)(f) when he decided to appoint Mrs Rantho instead of Mr Theunissen.
Having thus understood the dispute, the court proceeded to decide it in favour
of the HoD. Its ratio decidendi appears from the following statement (in para
23):
'I unreservedly endorse this approach by the HOD. Once he had taken the position,
correctly so in my view, that the three candidates proffered for recommendation had
been regarded as suitable for appointment after having undergone a rigorous and
extensive process of sifting and evaluation, he was not only at liberty, but in fact
enjoined by legislation, particularly by the Constitution, to exercise his discretion in
favour of a candidate who would promote equity, redress and representivity. The top
management demographics is clearly out of proportion to the learner demographics
at the school. This required redress as envisaged by the applicable legislation. In my
view therefore, it cannot be said that his decision was not rationally connected to the
purpose of the empowering legislation.'

[10] But as I see it, a proper analysis of the facts directs the spotlight to an
issue which is entirely different from the one identified by the court a quo. As
the court a quo saw it, the question was essentially the same as the one that
arose in Head, Western Cape Education Department v Governing Body, Point
High School 2008 (5) SA 18 (SCA), namely, whether the HoD had properly
exercised his discretion under s 6(3)(f). In my view, the real enquiry in this
case, however, relates to the antecedent question, namely, whether the HoD
had any discretion to make an appointment under s 6(3)(f) at all. That, in turn,
depends on the answer to the more pertinent question, whether the SGB had
recommended Mrs Rantho to be appointed as principal of the School. The
question arises from the pre-condition in s 6(3)(a) – which could hardly be
stated in any clearer terms – that 'any appointment, promotion or transfer . . .
[of an educator by the head of the department to a post at a public school]
may only be made on the recommendation of the governing body of the public
school . . .' (See also Head, Western Cape Education Department v
Governing Body, Point High School (supra) para 10.) The same theme is

maintained in s 6(3)(f). Though the head of department is not bound by the
order or preference proposed by the governing body, he or she can only
appoint from the list of candidates recommended by the latter.

[11] Under common law, necessary preconditions that must exist before an
administrative power can be exercised, are referred to as 'jurisdictional facts'.
In the absence of such preconditions or jurisdictional facts, so it is said, the
administrative authority effectively has no power to act at all (see eg Paola v
Jeeva NO 2004 (1) SA 396 (SCA) paras 11, 14 and 16). The same principle
finds application under the provisions of the Promotion of Administrative
Justice Act 3 of 2000 – PAJA – albeit that the formulation is in somewhat
different terms (see President of the Republic of South Africa v South African
Football Union 2000 (1) SA 1 (CC) para 168). This is borne out, for example,
by the following statement by Cora Hoexter, Administrative Law in South
Africa 227:
'Section 6(2)(a)(i) of the PAJA gives effect to s 33(1) of the Constitution [which
guarantees the right to administrative action that is lawful] by allowing judicial review
of administrative action where the administrator who took it "was not authorised to do
so by the empowering provision". Section 6(2)(f)(i) of the PAJA similarly provides that
an administrative action may be reviewed where it "is not authorised by the
empowering provision". These two provisions reflect the position at common law.'

[12] In administrative law parlance the head of department's power to
appoint under s 6(3)(f) is therefore dependent on the jurisdictional fact of a
recommendation by the governing body. As was pointed out by the
Constitutional Court in President of the Republic of South Africa v South
African Football Union (supra) para 168 note 132, the judgment of Corbett J in
South African Defence and Aid Fund v Minister of Justice 1967 (1) SA 31 (C)
remains the leading authority on jurisdictional facts in our law. In that
judgment Corbett J (at 34 in fine – 35C) identified two categories of
jurisdictional facts that can be encountered in empowering legislation. The
first category, described as 'objective jurisdictional facts', includes the type of
fact or state of affairs that must exist in an objective sense before the power
can validly be exercised. Here the objective existence of the fact or state of

affairs is justiciable in a court of law. If the court finds that objectively the fact
or state of affairs did not exist, it will declare invalid the purported exercise of
the power.

[13] In the second category, that of subjective jurisdictional facts, the
empowering statute has entrusted the repository of the power itself with the
function to determine whether in its subjective view the prerequisite fact or
state of affairs existed or not. Expressions often used by the legislature to
express this intent are, eg, 'in his or her opinion' or 'if he or she is satisfied
that' the particular fact or state of affairs exists. In this event the question is
not whether the prescribed fact or state of affairs existed in an objective
sense. The court can only interfere where it is shown that the repository of the
power, in forming the opinion that the fact or state of affairs existed, had failed
to apply its mind to the matter. Whether a particular jurisdictional fact can be
said to fall within the one category or the other, will depend on the
interpretation of the empowering statute.

[14] On my interpretation of s 6(3)(a) and s 6(3)(f) the prerequisite of a
recommendation by the governing body falls in the first category, ie of
objective jurisdictional facts. For the existence of this fact, the HoD in this
case relied on the form NCK2 which specifically described all three names
submitted as 'recommended candidates'. Self-evidently, however, the form
must be read together with the SGB's letter of 12 June 2006. The pertinent
question is therefore whether form NCK2, read with that letter, can objectively
be construed as a recommendation of three candidates, including Mrs
Rantho, for the position of principal of the School. The HoD concluded that it
did. From his answering affidavit it appears that that conclusion evolved from
the following process of reasoning: s 6(3)(c)(i) requires in peremptory
language that the governing body 'must submit a list of at least three names of
recommended candidates'. Moreover, s 6(3)(c)(ii) provides for the eventuality
that a governing body finds itself unable to recommend three candidates. In
that event it can submit a list of fewer than three candidates, but in
consultation with the head of department. In this case, so the HoD's reasoning
went, the SGB made no attempt to invoke the s 6(3)(c)(ii) procedure. It must

therefore be understood to have recommended three candidates as required
by s 6(3)(c)(i).

[15] The replying affidavit on behalf of the SGB presented the explanation
that its members were unaware of the s 6(3)(c)(ii) option because the
directives of the Department and the form NCK2 itself provided for no
alternative but to submit the names of three candidates. Consequently the
SGB decided that, although they found only one candidate suitable, they
would submit three names but recommend only one. However, as I have said,
the question is not what the SGB intended nor what the HoD thought. The
question is whether form NCK2 read with the letter by the SGB of 12 June
2006 can objectively be construed as a recommendation of Mrs Rantho as
principal of the school.

[16] The term 'recommendation' is so commonly used that dictionary
definitions can hardly contribute to greater clarity. But the definition of the term
in the Concise Oxford English Dictionary which both the HoD and the court a
quo found helpful, namely 'to put forward with approval as being suitable for a
purpose or role', accords with my understanding of the term. Simply stated the
question is thus: can form NCK2 read with the letter of 12 June 2006 be
understood to put three candidates, including Mrs Rantho, forward as suitable
candidates for the post of principal? I believe the answer to the question is:
clearly not. In fact, the letter conveys the exact opposite. By saying in the last
sentence that only one of the three candidates referred to is suitable, the
author clearly intended to convey that the other two are not. Logic allows for
no other inference. Moreover, what I regard as the only sensible inference is
accentuated by two comments in paragraph 2 of the letter with specific
reference to Mrs Rantho, namely, first that she has no experience in teaching
at a primary school and, secondly, that she does not have adequate
administration and management skills to be a principal of a primary school.

[17] The HoD's response to the first comment is that teaching experience at
a primary school is not required by the advertisement for the post. But that is
neither here nor there. The author of the letter obviously thought, rightly or

wrongly, that it was and therefore concluded that Mrs Rantho's lack of such
experience rendered her unfit for recommendation. The second comment in
paragraph 2 of the letter the HoD regarded, so he said (in para 36.3) as 'an
acceptance by the [SGB] that [Mrs Rantho] does have administration and
management skills to be a principal of a primary school, albeit inadequate'. I
find the answer untenable. How can Mrs Rantho be understood to be
recommended as suitable to be a principal if her administration and
management skills were assessed to be inadequate to perform that function?
What is more, what goes for Mrs Rantho must also go for Mrs Brand who can
plainly not be understood to be recommended. It is true that form NCK2 on its
own describes all three nominees as 'recommended candidates', but the
message conveyed by the letter is so clear that it can hardly be obscured by
the contents of the form.

[18] As to the HoD's process of reasoning based on his interpretation of
s 6(3)(c), my conclusion is this: though I agree with his interpretation of the
section, his reasoning cannot be sustained. Section 6(3)(c)(i) plainly requires
a governing body to recommend at least three candidates. For the
recommendation of a lesser number it must consult the head of the
department with a view to invoke the procedure under s 6(3)(c)(ii). What the
SGB tried to do in this instance, namely to nominate or put up the names of
three candidates, but to recommend only one, is simply not permitted by
s 6(3)(c). The SGB was supposed to recommend three candidates. But the
HoD's inference that the Governing Body did in fact do something just
because it was required to do so, simply does not follow. Experience of life
dictates otherwise. Things are often not what they are supposed to be. The
question remains whether, on a proper interpretation of its letter of 12 June
2006, the SGB did in fact recommend three candidates. For the reasons I
have given, I believe the answer to that question is 'self-evidently not'.

[19] In the absence of the jurisdictional fact of a recommendation by the
SGB the HoD had no authority to make an appointment. Or – in the language
of s 6(2)(a)(i) and s 6(2)(f)(i) of PAJA – absent any recommendation by the
SGB, the HoD was not authorised by the empowering provision to make an

appointment. It follows that his appointment of Mrs Rantho as principal of the
School falls to be set aside. In the event, the SGB requested that we should
appoint Mr Theunissen as principal of the School. I do not believe that would
be appropriate. Apart from the principle of separation of powers, which
dictates that a court should be hesitant to usurp executive functions, there
was in this case not even a proper recommendation by the SGB as
contemplated by s 6(3)(c). In the circumstances, both the SGB and the HoD
should, in my view, be afforded the opportunity to perform their respective
functions in terms of s 6(3) in a proper manner.

[20] In the result it is ordered that:
1.
The appeal is upheld with costs.
2.
The order of the court a quo is set aside and replaced with an order in
the following terms:
'(a)
The decision taken by the first respondent to appoint the third
respondent as principal of the first applicant is hereby reviewed and set aside.
(b)
The first respondent is ordered to pay the applicants' costs.'

…………………
F D J BRAND
JUDGE OF APPEAL

COUNSEL FOR APPELLANT:
J G VAN NIEKERK SC

Instructed by:

ENGELSMAN, MAGABANE INC

KIMBERLEY

Correspondents:

LOVIUS BLOCK ATTORNEYS

BLOEMFONTEIN

For Respondent:

L T SIBEKO SC

Instructed By:

THE STATE ATTORNEY

KIMBERLEY

Correspondents:

THE STATE ATTORNEY

BLOEMFONTEIN
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
28 MAY 2005
Status:
Immediate

KIMBERLEY JUNIOR SCHOOL

FIRST APPELLANT
THE GOVERNING BODY OF THE
KIMBERLEY JUNIOR SCHOOL

SECOND APPELLANT

and

THE HEAD OF THE NORTHERN
CAPE EDUCATION DEPARTMENT

FIRST RESPONDENT
PAUL MELVILLE THEUNISSEN

SECOND RESPONDENT
SEATILE SARAH RANTHO

THIRD RESPONDENT
DONNA-LEE MARCELÉ BRAND

FOURTH RESPONDENT

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

On 28 May 2009 the SCA upheld an appeal by the Kimberley Junior School and the
Governing Body of that school against a judgment of the Kimberley High Court in
favour of the Head of the Northern Cape Education Department (HoD).

The matter arose from a decision by the HoD to appoint Mrs Rantho – a black
female person – instead of Mr Theunissen – a white male person – as principal of
the School. The application by the School and the Governing Body to the High Court
for that decision to be reviewed and set aside, was dismissed with costs.

The basis for the High Court's decision was essentially that, in terms of the
Employment of Educators Act 76 of 1998 the discretion to make the appointment
was bestowed upon the head of the department and that he could not be faulted in
the exercise of that discretion.

The SCA found, however, that in terms of s 6(3) of the Act, the HoD's discretion to
make an appointment is dependent on the prerequisite of a recommendation by the
Governing Body of at least three candidates. On a proper analysis of the facts, so
the SCA found, there was no proper recommendation by the Governing Body.
Consequently the HoD had no discretion to make any appointment at all. In the
result the HoD's appointment of Mrs Rantho was set aside. The request by the

school and the Governing Body that the court should appoint Mr Theunissen was,
however, refused, essentially on the basis that that will be for the HoD to consider in
the light of a proper recommendation by the Governing Body.