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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Reportable

Case no: 506/19

In the matter between:

THE SCHOOL GOVERNING BODY GREY COLLEGE,
BLOEMFONTEIN
APPELLANT

and

DEON SCHEEPERS

FIRST RESPONDENT
SOUTH AFRICAN TEACHERS’ UNION

SECOND RESPONDENT
FEDERATION OF GOVERNING BODIES OF                                      AMICUS CURIAE
SOUTH AFRICAN SCHOOLS
Neutral citation:
The School Governing Body Grey College, Bloemfontein v
Scheepers and Another (Case no 506/19) [2020] ZASCA 82 (03 July 2020)

Coram:
Navsa, Schippers and Nicholls JJA and Koen and Eksteen AJJA

Heard:
18 May 2020

Delivered:

This judgment was handed down electronically via e-mail to the
parties’ legal representatives on 03 July 2020. It has been published on the Supreme
Court of Appeal website.

Summary:  Education South African Schools Act 84 of 1996 (the Act) – Employment
of Educators Act 76 of 1998 (the EEA) – professional management of school – what it

entails – role of principal contrasted with role of governing body – principal executing
functions and duties under provisions of the Act and not in terms of delegation by
governing body – in withdrawing principal’s functions governing body acting beyond
its statutory authority.

___________________________________________________________________

ORDER
___________________________________________________________________

On appeal from: Free State Division of the High Court, Bloemfontein (Musi AJP and
Van Zyl J, sitting as court of first instance): judgment reported sub nom Scheepers v
School Governing Body, Grey College Bloemfontein and Others (Suid-Afrikaanse
Onderwys-Unie Intervening) [2018] ZAFSHC 210

The appeal is dismissed with costs, including the costs of two counsel.
___________________________________________________________________

JUDGMENT
___________________________________________________________________

Navsa JA (Schippers and Nicholls JJA and Koen and Eksteen AJJA concurring):

[1] From the perspective of the first respondent, Mr Deon Scheepers, the question
to be addressed in this appeal, expressed sardonically, would be the following: Is a
school principal still a school principal when he or she is no longer to perform the key
functions attached to that role? The question appears rhetorical because the answer
seems self-evident. Not so, would be the instant retort from the appellant, the School
Governing Body of Grey College, Bloemfontein (the SGB), for that would be a
mischaracterisation of their dispute with Mr Scheepers, who was employed as the
school principal.  All it did, said the SGB, in a decision it made, which is at the centre
of this appeal, was to withdraw some of the powers and functions it had delegated to
Mr Scheepers as principal. He was still free to continue conducting teaching and
learning activities at the school.

[2] Technically, the question to be addressed in this appeal is whether the SGB,
established in terms of the provisions of the South African Schools Act 84 of 1996 (the
Act),1 acted within its powers when, at a special meeting held on 15 May 2018, it
purported to recall all delegated SGB powers from the then principal, the first
respondent, and simultaneously appointed Mr Jurie Geldenhuys as interim school
manager to manage, on behalf of the SGB, all school activities, with the exception of
teaching and learning activities. The second respondent, the South African Teachers’
Union (the SAOU), a registered trade union in the education sector, representing some
36 000 members, including Mr Scheepers, had sought and was granted leave to
intervene by the court below, the Free State Division of the High Court, Bloemfontein
(Musi AJP and Van Zyl J, sitting as court of first instance). It also sought a declaratory
order. More about that later. The Federation of Governing Bodies of South African
Schools (FEDSAS), a national representative organisation of public schools’ school
governing bodies, was admitted as amicus curiae in relation to this appeal.

[3] I shall, in due course, deal with the detailed background and the full reasoning
of the court below when it adjudicated an application brought by Mr Scheepers to
review and set aside the SGB’s aforesaid decisions. For the moment, it suffices to set
out its essential conclusions in relation to the application:
‘It is clear that the SGB was not entitled to take the decision that it took because the Act and
other policy instruments which covers the role, responsibilities and functions of the principal
does not sanction it. The SGB therefore did not have the necessary authority to do what it did.
The SGB was not authorised by the Act to take the decision that it did.
Furthermore it is clear that the decision was not preceded by a procedurally fair process. [Mr
Scheepers] was for all intents and purposes ambushed. When he requested time to prepare
himself that was refused. …
… The decision effectively stripped the principal of powers, duties and functions which are
entrusted to him by legislation and official policy.
…
In summary, a [school governing body] is an organ of State. [The Promotion of Administrative
Justice Act 3 of 2000 (PAJA)] is applicable to its decisions. [A school governing body] may
delegate some, not all, of its functions. It may delegate some of its functions to a principal.
The SGB in casu did not delegate any functions to [Mr Scheepers]; it abdicated its functions

1 See ss 16 and 23 of the Act.

and allowed [Mr Scheepers] to perform them. The Act does not allow the SGB to denude the
principal of functions entrusted to him by legislation, policy or the [Head of Department of the
Free State Department of Education (HOD)]. The SGB in casu stripped the principal of
functions that he must perform in terms of the Act and policies of the Department of Basic
Education. The SGB’s decision fell afoul of s 6(2)(a)(i) of the PAJA.’2

[4] The court below went on to grant the application with costs, including those
occasioned by the costs of two counsel. It also issued a declaratory order sought by
the SAOU, the details of which will be dealt with in due course. The court below also
dismissed the SGB’s conditional counter-application3 with costs, including the costs of
two counsel. In addition, the SGB was ordered to pay the SAOU’s costs. It is against
the conclusions referred to above and the resultant order that the present appeal is
directed. The detailed background is set out hereafter.

[5] Grey College in Bloemfontein (Grey) is a public school for boys. Mr Scheepers
had matriculated at Grey. It is one of the oldest and most well-known schools in South
Africa. After obtaining his education degree at the University of Stellenbosch, Mr
Scheepers taught at Grey for six years. He subsequently taught at Michaelhouse, in
KwaZulu-Natal, and in 2000 took up a post in the same province at Hilton College. In
2012 Mr Scheepers was head-hunted by Grey. The SGB recommended his
appointment as principal of Grey to the Head of the Free State Department of
Education (the HOD), in terms of s 20(1) of the Act, and he was appointed by the
Department as principal of the secondary school at Grey from 1 January 2013. He
took up his appointment and had served in that position until May 2018.

[6] On 3 May 2018 Mr Scheepers was invited by email to attend a special meeting
of the SGB, scheduled to take place on 15 May 2018. The email indicated that the
only item on the agenda was the withdrawal of ‘rights’ and ‘duties’ that the SGB had

2 See paras 87-88, 90 and 94 of the judgment of the court below: Scheepers v School Governing
Body, Grey College Bloemfontein and Others (Suid-Afrikaanse Onderwys-Unie Intervening) [2018]
ZAFSHC 210.
3 The counter-application was conditional upon the court below finding that a school governing body
has no express or implied authority to delegate any of its functions to a school principal. In that event
the SGB sought an order declaring that its decision to delegate any of its functions in terms of the Act
to Mr Scheepers was unlawful and invalid, alternatively, that such decision be reviewed and set aside
in terms of s 6(2) of the PAJA.

delegated to him. Mr Scheepers, via email, enquired of the chairperson of the SGB,
Mr Büchner, which rights and duties were being withdrawn. The response, by email,
was a terse statement that no delegated rights and duties had been withdrawn.

[7] Mr Scheepers persisted, and by way of a further email enquired, once again,
which rights and duties were in contemplation. The response from the chairperson
bears repetition:
‘Beste Deon
Dankie vir jou e-pos van 11 deser. As skoolhoof in diens van die Vrystaatse Departement van
Onderwys het jy sekere regte en verpligtinge wat uit hoofde van die Skolewet aan jou toegedig
is. Ek is nie van voorneme om al daardie regte en verpligtinge hierin uiteen te sit nie aangesien
jy op hoogte is van die bepalings van die Skolewet.
Soos jy weet is alle ander regte, verpligtinge, funskies en bevoegdhede wat jy tans uitoefen
en wat nie uit hoofde van die Skolewet voortspruit nie, deur die Beheerliggaam, hetsy uitdruklik
en/of stilswyend, aan jou gedelegeer.
Die doel van die spesiale Beheerliggaam vergadering en die enigste punt op die agenda is
duidelik, naamlik die terugtrekking van die Beheerliggaam se regte en verpligtinge wat aan
jou gedelegeer is.
Vriendelike groete…’4

[8] To this Mr Scheepers responded by stating, in an email, that as far as he was
concerned he was executing all of his duties in terms of the Act and that he required
clarity on the specific functions the SGB had in mind to withdraw.

[9] The chairperson did not respond to the last-mentioned email and Mr Scheepers
attended the meeting to which he had been invited, still in the dark.  He had no idea
of what the SGB required of him. At the meeting the chairperson commenced by

4 ‘Dear Deon
Thank you for your email of the eleventh instant. As school principal in the service of the Free State
Department of Education, you have certain rights and obligations that flow from the Schools Act. I do
not intend to set out all of those rights and obligations here, as you are aware of the provisions of the
Schools Act.
As you know, all of the other rights, obligations, functions and powers that you presently exercise, and
that do not flow from the Schools Act, have been either expressly and/or tacitly delegated to you.
The purpose of the special SGB meeting and the only point on the agenda is clear, namely, the
withdrawal of the SGB’s rights and obligations that have been delegated to you.
Kind regards’ [translation my own].

informing those in attendance that the SGB’s executive had identified certain issues
which potentially impacted on the trust relationship between Mr Scheepers, as
principal, and the SGB. He went on to state that the Act conferred distinct functions on
the principal and the SGB, respectively, and that the functions assigned to the principal
were limited to managing the academic activities of the school, while all other functions
had been delegated to the principal by the SGB. Mr Büchner went on to indicate that
the purpose of the meeting was to determine whether the SGB was ‘comfortable’ with
the manner in which Mr Scheepers had discharged those delegated functions and
duties.

[10] Mr Scheepers placed it on record that he had received no prior clarification on
the rights and duties that were in contemplation for withdrawal by the SGB. He sought
a postponement to enable him to deal with what was put to him at the special meeting.
He adopted the attitude that all his functions were being executed in accordance with
the provisions of the Act and his contract of employment with the Department.

[11] The SGB debated the matter and adopted the position that Mr Scheepers
simply had to look at the applicable provisions of the Act to appreciate the distinction
between his professional duties and those that were within the preserve of the SGB.
The SGB urged him to accept that all of the functions and responsibilities that s 20 of
the Act assigned to a school governing body were at least tacitly delegated to him by
the SGB.

[12] Mr Scheepers’ request for a postponement of the meeting was refused. Instead,
he was confronted with a list of complaints to which he was invited to respond. To his
mind the complaints that were listed were as follows:
‘[T]hat [Mr Scheepers] treated staff harshly and aggressively pursuant to a meeting that the
Chairman and Mr Grobbelaar, also a SGB member, had with educators of Grey College on
22 November 2016. In that meeting staff members of Grey College aired certain grievances
which [he] did not – or was unwilling to resolve;
that [he] victimized educators and bullied them;
that there was a lack of visible discipline at Grey College, Grey College’s code of conduct was
not an effective tool to manage discipline and there was an increase in disciplinary issues
which impacted on the academic part of Grey College;

that [he] was not equipped to handle complex racial issues;
that [he] sought to manipulate the outcome of the appointment of the SGB’s annual office
bearers in the run-up to the March 2018 elections;
that [his] wife had canvassed the voting roll for the 2017 annual office bearers with third parties
before the voting roll was announced;
that [he] broke [his] trust and contractual obligations with the Department by prematurely
informing certain candidates that they were unsuccessful in their bid to become deputy
principal of Grey College;
that [he] was unable to instil the Grey College values and traditions to learners;
that [he does] not enjoy the respect of learners because [he is] not emotionally connected to
them;
that [he is] not approachable to parents and parents are concerned about Grey College’s
academics.’

[13] Mr Scheepers was aggrieved that he had not been given any prior notice of any
of these complaints and was not provided with an opportunity to adequately prepare
to meet them. Towards the end of the meeting Mr Scheepers was asked how he
viewed the relationship of trust he was supposed to enjoy with the SGB. He responded
by stating that he did not have a strong trust relationship with the chairperson and
ascribed this to personal grievances being entertained by the chairperson behind his
back. Mr Scheepers acknowledged that this breakdown had occurred a long time ago.

[14] The SGB then proceeded to vote by secret ballot on whether the functions and
responsibilities delegated to Mr Scheepers by the SGB should be withdrawn. Fourteen
of the seventeen SGB members present at the special meeting voted in favour of the
motion. The following resolution was subsequently adopted:
‘[T]hat the Federation of Governing Bodies of South African Schools and [Mr Scheepers’]
representative engage in a process to manage the relationship between the parties in the best
interest of Grey College;
that, pending the finalisation of said process, the functions, responsibilities and duties of the
SGB that were either expressly or tacitly delegated to [Mr Scheepers] be withdrawn with
immediate effect;
that the SGB appoint Mr Geldenhuys as interim school manager to execute the delegated
functions of the SGB until a long-term solution could be implemented;

that Mr Geldenhuys would manage all school activities, with the exception of teaching and
learning, on behalf of the SGB, which, according to the SGB, entail the following:
(i) the management of school finances to the extent that those powers do not
specifically vest in [Mr Scheepers] in terms of the provisions of the Act;
(ii) the management of the extra-curricular activities, such as sport and culture;
(iii) the management of the school campus and assets, including the hostels;
(iv) the management of the personnel, where they are not performing academic
functions;
(v) communication and liaison internally and externally;
(vi) representing Grey College at all non-academic forums;
(vii) internal and external liaising;
(viii) management of Grey College’s ethos mission, values and spirit within the school
context;
(ix) the management of discipline;
(x) that [Mr Scheepers], as an employee of the Department, would continue with [his]
professional duty as school principal, limited to only those powers as assigned to [him]
in terms of [the Act].’

[15] Thereafter, the resolution was publicised by way of a memorandum addressed
to the Grey community, namely, learners, parents and personnel, under the heading
‘Drastic management decision following breakdown of trust between Grey College
Governing Body and School Principal’. (Emphasis added).

[16] Mr Scheepers was aggrieved at what he considered to be a process that was
procedurally unfair, that is, that he was given inadequate notice and information
concerning the contemplated action by the SGB and thereby deprived of a reasonable
opportunity to make representations in relation thereto. Furthermore, as far as he was
concerned, he was not provided with adequate or clear reasons for the decision made
by the SGB. The SGB’s belated reliance on the breakdown of trust, according to Mr
Scheepers, did not avail it because that had not been foreshadowed as a ground upon
which the decision was going to be based. He was not informed that he was going to
be confronted with the litany of complaints presented at the meeting. Some of the
complaints referred to at the meeting were related to incidents that dated back to 2016.

[17] Mr Scheepers contended that if, in effect, what was being contemplated by the
SGB was a disciplinary enquiry based on misconduct, then it ought to have followed
the disciplinary procedures in Grey’s code of conduct. The following are the pertinent
parts:
‘[A] determination by the Deputy Chairperson of the SGB that there is a prima facie case to
take action;
the appointment of an investigative committee consisting of at least three (3) individuals to
investigate allegations against a member;
furnishing the member with written description of the charges of misconduct against [them];
an opportunity to direct written representations;
the making of representations by the investigative committee to the SGB whether to impose a
reprimand or recommend to the HOD to either suspend the member or to terminate his or her
membership of the SGB.’
That process was clearly not followed.

[18] According to Mr Scheepers, insofar as any part of the public was to be affected
by the contemplated decision, a public enquiry ought to have been held, or a notice
and comment procedure resorted to, or some other fair procedure adopted. None of
these measures was taken. Those members of the public that the decision would
affect were not consulted.

[19] Mr Scheepers was adamant that there was no substantive basis for the decision
of the SGB. He insisted that the SGB could not deprive him of his statutory role, as
provided for by the Act, more particularly by s 16(3).  In taking the decision under
discussion, he submitted, the SGB acted contrary to the principle of legality. Mr
Scheepers did not contest that he was obliged to execute lawful instructions of the
SGB. However, according to him, the decision in question fell outside the scope of the
SGB’s powers.

[20] The aforementioned formed the basis of Mr Scheepers’ approach to court.
Given the apparent hostility between the chairperson and Mr Scheepers, and the
manner in which events unfolded, including written exchanges between the contesting
parties’ legal representatives prior to the commencement of litigation, it was

predictable that the application launched by Mr Scheepers would be vigorously
opposed. It is to the basis of that opposition that I now turn.

[21] In its opposition, the SGB raised a number of procedural points that did not find
favour with the court below and which, advisedly, were not persisted with on appeal.
Before us, the SGB criticised the court below for finding that its decision to ‘denude’
the principal of his powers was administrative action, as defined in s 1 of the PAJA. It
submitted that the court below should have held, in the light of Mr Scheepers’
assertions that it had acted unlawfully in revoking his powers, functions and duties,
that it was faced with a ‘legality’ review. Thus, so it contended, procedural irregularities
did not arise.

[22] The SGB, in opposing the application by Mr Scheepers, adopted the position it
had adopted prior to the litigation, namely, that the powers, functions and duties that
the principal had exercised before its impugned decision had been delegated to him
by the SGB. It was adamant that, as the repository of the original power and functions,
it could revoke them at will. In this regard it relied on s 16(1), read with ss 5, 7, 8, 9,
12A, and 20 of the Act. Paragraph 58.3 of Grey’s founding affidavit reads as follows:
‘I have been advised that there is nothing wrong, if the SGB no longer requires professional
staff to act on its behalf, to simply say so and get somebody else to act on its behalf.’
That, so it was contended, was made clear at the commencement of the meeting at
which the impugned decision had been taken.

[23] In the view of the SGB, any complaints Mr Scheepers might have had in relation
to the infringement of his labour law rights were to be taken up with his employer, the
Department. It reiterated that all it did, in revoking Mr Scheepers’ powers and
functions, was to retake the control that vested in it in terms of the provisions of the
Act. There was thus no unlawful withdrawal of Mr Scheepers’ powers, functions or
duties.

[24] In support of its fundamental premise, set out in the immediately preceding
paragraphs, the SGB pointed to the ultimate responsibility it held, in terms of the
provisions of the Act, for managing and controlling the finances of the school.
Furthermore, it was contended that in terms of the Personnel Administrative Measures

(PAM), 5 gazetted by the Minister of Education, the principal’s role in relation to
managing the school’s accounts and records is one in terms of which he is required to
act in consultation with the governing body. This meant that Mr Scheepers could
continue to fulfil these functions, despite the decision by the SGB. The SGB contended
that the decision did not impact on the exercise of Mr Scheepers’ statutorily conferred
powers and functions.

[25] Before us it was submitted, on behalf of the SGB, that the court below had erred
in rejecting its core submissions, set out above, by reliance, inter alia, on provisions
such as s 8A of the Act, which conferred on the principal the power to conduct random
searches of learners or their property during school hours. It was asserted that this
defined power did not confer an entitlement to manage school activities in the general
sense. It was notable, so counsel for the SGB asserted, that there was no power to be
found in the provisions of the Act conferring a general power to manage school
activities. Instead, so it was argued, the Act provides only for the ‘professional
management of the school’, and this relates to the implementation of educational
programmes and curriculum activities, in respect of which a principal is required to
report to the Department.

[26] Before us, in support of the essence of its case, it was submitted that the
provisions of PAM, which envisages the principal having an active role in promoting
the extra-curricular activities and encouraging learners’ voluntary participation in
sporting activities, do not militate against the lawfulness of the decision to revoke the
delegated powers. In short, so the argument went, although the power to manage such
activities vests in the SGB, the principal is not precluded from promoting or
encouraging extra-curricular activities. All that was revoked was the management
function, which, in any event, resides in the governing body.

[27] The same applied, so the SGB submitted, in relation to the provisions of PAM,
which enable a principal to conduct regular inspections of a school to ensure that the
school premises and equipment were being used properly and that good discipline

5 As determined by the Minister in terms of s 4 of the Employment of Educators Act 76 of 1998. See
GN 170 in GG 39684 of 12-02-2016.

was being maintained and, in addition, to be responsible for the hostel and all related
activities The court below was criticised for relying on these provisions in holding
against the SGB. The SGB took the view that the PAM and the Act vested the
management of the school in respect of those aspects in the SGB.

[28] Similarly, so it was contended on behalf of the SGB, the provisions of PAM, in
terms of which the principal was responsible for communication and liaison on behalf
of the school and for representing the school at non-academic fora, have to be seen
in the light that they concern delegated powers which the SGB could withdraw at any
time. In respect of the assistance that a principal provides to the governing body in
handling disciplinary matters, it was submitted that the obligation only exists if a
principal is called upon to fulfil it. This, it submitted, supported the position adopted by
the SGB, namely, that a school principal exercises all these functions at the behest of
the governing body and that all such functions entrusted to the principal could be
withdrawn at the instance of the governing body.

[29] It was accepted on behalf of the SGB that a principal has a duty to manage
educators and support staff. However, it was submitted that this must be seen in the
light of the obligation that a principal undertakes, namely the professional
management of a school, which relates to the exercise of academic and support
functions. I pause to record that a letter from the Head of Department, dated 4 July
2018 and addressed to the SGB, makes it clear that the Department did not side with
it in the conflict with Mr Scheepers. Furthermore, it considered the SGB to be mistaken
about its view of the provisions of the Act and considered Mr Scheepers to be the
principal of Grey. It is also clear from that letter that it considered FEDSAS to be on
the wrong side of the conflict. For completeness, it is also necessary to note that the
litany of complaints, presented to Mr Scheepers at the meeting at which the impugned
decision was taken, was repeated in the SGB’s answering affidavit, with specific
incidents referred to in some detail. We are not called upon to decide on the
correctness of those allegations by the SGB. I now turn to deal with the judgment of
the court below.

[30] Musi AJP (as he then was), at the outset, had regard to the judgment of the
Constitutional Court in Head of Department, Department of Education, Free State

Province v Welkom High School and Others; Head of Department, Department of
Education, Free State Province v Harmony High School and Another6  at para 124,
where the following appears:
‘Given the nature of the partnership [the Act] has created, the relationship between public
school governing bodies and the state should be informed by close cooperation, a cooperation
which recognises the partners’ distinct but interrelated functions. The relationship should
therefore be characterised by consultation, cooperation in mutual trust, and good faith. The
goals of providing high-quality education to all learners and developing their talents and
capacities are connected to the organisation and governance of education. It is therefore
essential for the effective functioning of a public school that the stakeholders respect the
separation between governance and professional management, as enshrined in [the Act].’

[31] The court below recorded that the SAOU had sought and been granted leave
to intervene in support of Mr Scheepers. The position of the SAOU was uncomplicated
and direct. It had intervened in support of its members, amongst whom there were
school principals and people aspiring to that position, and it contended that the SGB
had no power to retract, as it purported to do, the principal’s statutory powers, functions
and duties, which were statutorily mandated. The court below had rejected the SGB’s
submission that the SAOU had no standing.

[32] The court below had regard to the relevant provisions of the Act. It commenced
by noting that in terms of s 15 every public school is a juristic person with legal capacity
to perform its functions in terms of the Act. Musi ADP went on to consider s 16 and s
23, which make it clear that the governance of public schools is vested in governing
bodies.7  He also had regard to ss 6, 20, 36 and 38, in terms of which governing bodies
performed a number of functions, such as policy making, the setting, implementation
and control of budgets, the sourcing of finance and the administration and control of
school property.

6 Head of Department, Department of Education, Free State Province v Welkom High School and
Others; Head of Department, Department of Education, Free State Province v Harmony High School
and Another [2013] ZACC 25; 2014 (2) SA 228 (CC).
7 Section 16(1) of the Act states: ‘Subject to this Act, the governance of every public school is vested in
its governing body and may perform only such functions and obligations and exercise only such rights
as prescribed by the Act.’ (Emphasis added).

[33] In the view of the court below, a governing body, by its very nature and setting,
is unable to perform all of its functions by itself and that in the ordinary course it would
delegate some of its functions. This, it was held, is countenanced by the Act. The court
took into account that in terms of s 30, a governing body may establish committees to
perform some of its functions. With reference to Schoonbee and Others v MEC for
Education, Mpumalanga and Another 2002 (4) SA 877 (T), it held that in appropriate
circumstances and within the statutory framework, a governing body could delegate
some of its functions to a principal.

[34] Musi ADP recognised that delegation ‘postulates a revocable transmission of
subsidiary authority’.8 In other words, if a delegator is able to delegate some of its
functions it has a corresponding right to revoke such delegation. If the revocation has
to be preceded by a formal requirement, in terms of a statute or policy, then that has
to be complied with before the revocation can take place. Where no such requirement
has to be fulfilled, the delegator can revoke the delegation without more. The court
below looked to see whether the principal had in any form usurped any of the SGB’s
functions, duties or powers. In that exercise it considered whether there were statutory
provisions or a policy that enabled a principal to co-exercise functions, duties or
powers with a governing body. If the answer was in the affirmative, so it reasoned,
there could be no talk of an unlawful exercise of powers, functions or duties on the
part of the principal.

[35]  The court below considered s 16A of the Act and took into account what the
Constitutional Court, in Welkom, had said in relation thereto:
‘A principal must, in discharging his or her professional management duties, amongst other
things, implement educational programmes and curriculum activities, manage educators and
support staff, perform functions that are delegated to him or her by the HOD under whose
authority he falls and implement policy and legislation. In contrast, a school governing body’s
governance functions include promoting the school’s best interests and striving to ensure the
provision of quality education to all learners at the school, developing a mission statement for

8 See in this regard Executive Council, Western Cape Legislature and Others v President of the
Republic of South Africa and Others 1995 (4) SA 877 (CC) para 173.

the school, adopting a code of conduct for learners and administering school property (subject
to certain constraints).’9

[36] Against the SGB’s assertion that it had delegated to the principal the
administration of school funds, the court below had regard to the provisions of s 37 of
the Act, which reads as follows:
‘(1) The governing body of a public school must establish a school fund and administer it in
accordance with directions issued by the Head of Department.
(2) Subject to subsection (3), all money received by a public school including school fees and
voluntary contributions must be paid into the school fund.
(3) The governing body of a public school must open and maintain one banking account, but
a governing body of a public school may, with the approval of the Member of the Executive
Council, invest surplus money in another account.
(4) Money or other goods donated or bequeathed to or received in trust by a public school
must be applied in accordance with the conditions of such donation, bequest or trust.
(5) All assets acquired by a public school on or after the commencement of this Act are the
property of the school.
(6) The school fund, all proceeds thereof and any other assets of the public school must be
used only for—
(a) educational purposes, at or in connection with such school;
(b) educational purposes, at or in connection with another public school, by agreement with
such other public school and with the consent of the Head of Department;
(c) the performance of the functions of the governing body; or
(d) another educational purpose agreed between the governing body and the Head of
Department.
(7)(a) Money from the school fund of a public school may not be paid into a trust or be used
to establish a trust.
(b) if a trust was established from a school fund of a public school or if such money was paid
into a trust prior to 1 January 2002, such trust or payment is invalid and the money must be
paid back into the school fund.
(c) A governing body of a public school may not collect any money or contributions from
parents to circumvent or manipulate the payment of compulsory school fees and to use such
money or contributions to establish or fund a trust, and if such money or contributions of

9 Welkom op cit fn 3 para 39. (Citations omitted.)

parents were paid into a trust prior to 1 January 2002, the trust must pay such money or
contributions into the school fund.’

[37] Alongside ss 16A and 37 the court below considered s 42 of the Act, which
reads as follows:
‘The governing body of a public school must—
(a) keep records of funds received and spent by the public school and of its assets, liabilities
and financial transactions; and
(b) as soon as practicable, but not later than three months after the end of each financial year,
draw up annual financial statements in accordance with the guidelines determined by the
Member of the Executive Council.’

[38] Completing its conspectus of provisions of the Act relating to the administration
of school funds, the court took into account that, in terms of s 16A(2)(h), the principal
of a school has a duty to assist a governing body with the management of school
funds. That subsection provides:
‘The principal must—
…
(h) assist the governing body with the management of the school’s funds, which assistance
must include —
(i) the provision of information relating to any conditions imposed or directions issued
by the Minister, the Member of the Executive Council or the Head of Department in
respect of all financial matters of the school contemplated in Chapter 4; and
(ii) the giving of advice to the governing body on the financial implications of decisions
relating to the financial matters of the school…’
The court below held that was unclear how these functions were to be executed while
the newly appointed school manager, Mr Geldenhuys, was in charge. This becomes
all the more glaring, so the court below reasoned, when regard is had to the PAM, in
terms of which a school principal’s professional management of a school includes the
keeping of various kinds of accounts and records in relation to the use of school funds.

[39] Musi ADP went on to explore other provisions of PAM, including those that
authorise school principals, in relation to school activities, to prohibit drugs and
dangerous objects from being brought onto school premises. PAM provides for a
school principal to play an active role in promoting extra and co-curricular activities.

The court below held that the Act does not permit the SGB to strip the principal of
these functions and duties.

[40] The court below took into account that PAM also provides for a school principal
to ensure that school premises and equipment are properly utilised and that discipline
is maintained. So, too, a school principal is tasked with managing educators and
support staff. In doing so he/she is not restricted to managing only in relation to
academic functions. PAM also imposes a duty on school principals to represent the
school in communications with stakeholders. The court below asked the following
question:
‘How can a principal professionally manage a school and not at the same time manage the
vision, mission and values of the school as espoused by the SGB?’10
It went on to hold that the SGB overreached in stripping Mr Scheepers of these
management functions.

[41] The court below, having regard to what is set out in the preceding paragraphs,
reached the conclusions set out in para 3 above. It went on to add the following:
‘The unlawfulness of the act did not end there. The SGB summarily and unlawfully appointed
Mr Geldenhuys as the school manager of Grey College Secondary School. There is no
evidence that there is such a post on the establishment of the school. Mr Geldenhuys was the
principal of Grey College Primary School. His transfer or temporary secondment to Grey
College Secondary School was done without the intervention or authorisation of the HOD.’11

[42] It is against the conclusions set out in para 3 above and the resultant order that
the present appeal, with the leave of this court, is directed. To consider whether the
SGB acted within its powers, it is necessary to consider the applicable legislative
framework and then to decide whether the conclusions reached by the court below are
justified.

[43] There can be no doubt that the Act is transformative. It says so in the preamble,
which records that the achievement of democracy has consigned to history the past
system of education, based as it was on racial inequality and segregation. It notes that

10 See the high court’s judgment in Scheepers, op cit fn 1, para 85.
11 Ibid para 91.

a new national system for schools is required that will redress past injustices and
provide a progressively high-quality education for the nurturing and ultimate realisation
of the talents and capabilities of all our people.  The long title indicates that its purpose
is to provide a ‘uniform’ system for the ‘organisation, governance and funding of
schools’.

[44] As referred to above, every public school, in terms of s 15 of the Act, is
recognised as a juristic person with legal capacity. Section 16(1) states that ‘subject
to this Act, the governance of every public school is vested in its governing body’
(emphasis added). Significantly, the remainder of the section states that a governing
body ‘may perform only such functions and obligations and exercise only such rights
as prescribed by the Act’.

[45] Section 16(2) provides that a governing body stands in a position of trust
towards the school. In terms of s 18, a governing body is obliged to function in terms
of a constitution, which must comply with minimum requirements set by the MEC of
the applicable province. Such a constitution is required to provide for a meeting of a
governing body ‘at least once every school term’.12 Furthermore, a governing body is
required, in terms of 18(2)(b), to meet with parents, learners, educators and other staff
at least once every year. Section 18(2)(c) and (d) also obliges a governing body to
keep minutes of its meetings, which it must make available for inspection by the HOD.
Finally on this score, a governing body is required at least once a year to render a
report on its activities to parents, learners, educators and other staff of the school.

[46] In terms of s 18A(1) the MEC ‘must’, by notice in the Provincial Gazette,
‘determine a code of conduct for the members of the governing body of a public
school’, which must be ‘aimed at establishing a disciplined and purposeful school
environment dedicated to the improvement and maintenance of a quality governance
structure at a public school’.13 The code of conduct must be observed by all members
of a governing body, contravention of which may lead to a member’s suspension or
even termination by the relevant HOD.14

12 See s 18(2)(a).
13 See s 18A(2)
14 See s 18A(4) and (5).

[47] Section 20 is extensive. It sets out the functions of a governing body. The
relevant parts are set out hereafter:
‘(1) Subject to this Act, the governing body of a public school must—
(a) promote the best interests of the school and strive to ensure its development through the
provision of quality education for all learners in the school;
(b) adopt a constitution;
(c) develop the mission statement of the school;
(d) adopt a code of conduct for the leaners of the school;
(e) support the principal, educators and other staff of the school in the performance of their
professional functions;
(eA) adhere to any action taken by the Head of Department in terms of section 16 of the
Employment of Educations Act [76 of 1998 (the EEA)], to address the incapacity of a principal
or educator to carry out his or her duties effectively;
(f) determine times of the school day consistent with any applicable conditions of employment
of staff at the school;
(g) 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;
(h) encourage parents, learners, educators and other staff at the school to render voluntary
services to the school;
(i) recommend to the Head of Department the appointment of educators at the school, subject
to the Employment of Educators Act, 1998, and the Labour Relations Act, 1995;
(j) …
(k) at the request of the Head of Department, allow the reasonable use … of the facilities of
the school for educational programmes not conducted by the school;
…’

Subject to certain conditions a governing body may, in terms of the provisions of s 20,
establish posts for educators and non-educators.15  Section 20(8), in turn, provides
that the employment of these educators and non-educators must be in compliance
with the values and principles enshrined in s 195 of the Constitution and, when making

15 See ss 20(4), 20(5), 20(6) and 20(7).

appointments, a candidate’s ability, the principle of equity, the need to redress past
imbalances and representivity are all factors which must be taken into account.16

[48] Section 23 of the Act deals with membership of governing bodies of ordinary
public schools. It comprises elected members, the principal and co-opted members.
Elected members are comprised of parents of learners, both educators and non-
educators at the school, and school learners in the eighth grade or higher. Section 11
of the Act provides for the establishment of a representative council of learners at
every public school, while s 23(4) provides that the learner on the governing body is
to be elected by that council.

[49] Section 29 provides for office bearers of a governing body, which include at the
least a chairperson, a secretary and a treasurer. Section 30 permits a governing body
to establish committees, including an executive committee, and it may appoint persons
who are not members of the governing body to serve on such committees, provided
that each committee is chaired by a member of the governing body.

[50] In terms of s 34 of the Act the state is obliged to fund public schools from public
revenue. The responsible Minister, in terms of s 35, is responsible for setting norms
and standards for school funding. In terms of s 36 a governing body is required to take
reasonable measures within its means to supplement the resources supplied by the
state. In terms of s 37, set out in para 36 above, a governing body must establish a
school fund and administer it in accordance with directives from the HOD. In terms of
s 42, as referred to above, the governing body is required to keep records of funds
received and spent by the school and of its assets, liabilities and financial transactions.
It must draw up annual financial statements in accordance with directions of the MEC.

[51]  What, then, of the role of the principal? In terms of s 16(3) the ‘professional
management’ of a public school must be undertaken by the principal under the
authority of the Head of Department’ (emphasis added). Section 16A(1)(a) and (b),
under the title ‘Functions and responsibilities of principal of public school’, read as
follows:

16 Listed in paras (a)-(d) of s 20(8).

‘1(a) The principal of a public school represents the Head of Department in the governing body
when acting in an official capacity as contemplated in sections 23(1)(b) and 24(1)(j).
(b) The principal must prepare and submit to the Head of Department an annual report in
respect of—
(i) the academic performance of that school in relation to minimum outcomes and standards
and procedures for assessment determined by the Minister in terms of section 6A; and
(ii) the effective use of available resources.’

[52] The Act has more in mind for a principal. Section 16A(2) provides:
‘The principal must—
(a) in undertaking the professional management of a public school as contemplated in
section 16(3), carry out duties which include, but are not limited to—
(i) the implementation of all the educational programmes and curriculum activities;
(ii) the management of all educators and support staff;
(iii) the management of the use of learning support material and other equipment;
(iv) the performance of functions delegated to him or her by the Head of Department
in terms of this Act;
(v) the safekeeping of all school records; and
(vi) the implementation of policy and legislation;
(b) attend and participate in all meetings of the governing body;
(c) provide the governing body with a report about the professional management relating to
the public school;
(d) assist the governing body in handling disciplinary matters pertaining to learners;
(e) assist the Head of Department in handling disciplinary matters pertaining to educators and
support staff employed by the Head of Department;
(f) inform the governing body about policy and legislation;
(g) provide accurate data to the Head of Department when requested to do so;
(h) assist the governing body with the management of the school’s funds, which assistance
must include—
(i) the provision of information relating to any conditions imposed or directions issued
by the Minister, the Member of the Executive Council or the Head of Department in
respect of all financial matters of the school contemplated in Chapter 4;17 and
(ii) the giving of advice to the governing body on the financial implications of decisions
relating to the financial matters of the school;

17 Sections 34, 35, 36, 37 and 42, referred to in para 48 above, are located within Chapter 4 of the
Act.

(i) take all reasonable steps to prevent any financial maladministration or mismanagement by
any staff member or by the governing body of the school;
(j) be a member of a finance committee or delegation of the governing body in order to manage
any matter that has financial implications for the school; and
(k) report any maladministration or mismanagement of financial matters to the governing body
of the school and to the Head of Department.’

[53] Section 16A(3) provides:
‘The principal must assist the governing body in the performance of its functions and
responsibilities, but such assistance or participation may not be in conflict with—
(a) instructions of the Head of Department;
(b) legislation or policy;
(c) an obligation he or she has towards the Head of Department, the Member of the Executive
Council or the Minister; or
(d) a provision of the Employment Educators Act, 1998, and the Personnel Administration
Measure determined in terms thereof.’

[54] Section 8A(1) reads as follows:
‘Unless authorised by the principal for legitimate educational purposes, no person may bring
a dangerous object or illegal drug onto school premises or have such object or drug in his or
her possession on school premises or during any school activity.’
The relevant part of s 8A(2) provides:
‘Subject to subsection (3), the principal or his or her delegate may, at random, search any
group of learners or the property of a group of learners, for any dangerous object or illegal
drug, if a fair and reasonable suspicion has been established …’
Subsection 3 sets out factors that must be taken into account when such a search is
being contemplated.

[55] The EEA deals with the employment of educators by the State, the regulation
of their conditions of service, disciplinary matters, the retirement of educators and
matters connected therewith. ‘Educator’ is defined in section 1 as follows:
‘[A]ny person who teaches, educates or trains other persons or who provides professional
educational services, including professional therapy and education psychological services, at
any public school, departmental office or adult basic education centre and who is appointed
in a post on any educator establishment under this Act …’

[56] Section 3 of the EEA provides that the Director-General: Basic Education is the
employer of educators in the service of the national department and that the Head of
Department is the employer of educators in the service of the provincial department of
education in posts on the educator establishment of that department for all purposes
of employment. Section 4 provides for conditions of service to be determined by the
Minister, subject to the Labour Relations Act 66 of 1995 and collective agreements.
Different salaries and conditions may be determined by the Minister in respect of
different ranks and grades of educators. Section 7, consonant with the provisions of
the Act, provides that, in making appointments, regard must be had to the values and
principles enshrined in s 195 of the Constitution, and that the factors of candidate
ability, the need to redress the imbalances of the past and achieve broad
representation, shall be taken into account. Section 6 states that any appointment may
only be made on the recommendation of the governing body of a public school. In the
present case the SGB had recommended the appointment of Mr Scheepers who was
then appointed by the provincial Head of Department.18

[57] The provisions of PAM elaborate on the role of a school principal in a public
school, consonant with the provisions of the Act and the EEA. Under the title ‘AIM OF
THE JOB’, the following appears:
‘2.1 To ensure that the school is managed satisfactorily and in compliance with applicable
legislation, regulations and personnel administration measures as prescribed.
2.2 To ensure that the education of the learners is promoted in a proper manner and in
accordance with approved policies.’
The provisions of PAM then proceed to reiterate the functions of a principal as
encapsulated in the Act, the specific provisions of which are referred to above. The
clause dealing with ‘Personnel’ reads as follows, in relevant part:
‘3.2.1 To provide professional leadership within the school.
3.2.2 To guide, supervise and offer professional advice on the work and performance of all
staff in the school and, where necessary, to discuss and write or countersign reports on
teaching, support, non-teaching and other staff.

18 The letter of appointment states that Mr Scheepers has been appointed ‘in the post of Principal
(Post Level 4) – Salary Level 11 at Grey College Secondary School. The contract subsequently
signed confirms that. On the duties to be performed in terms of that contract, clause 7 records the
following: “The employee shall be expected to satisfactorily carry out all the tasks and duties normally
associated with the position…’

3.2.3 To ensure that workloads are equitably distributed amongst the staff.
3.2.4 To be responsible for the development of staff training programmes, both school-based,
school-focused and externally directed, and to assist educators, particularly new and
inexperienced educators, in developing and achieving educational objectives in accordance
with the needs of the school. …’
Other provisions of PAM deal with a principal’s role in relation to the academic
performance of the school, and in teaching. Clause 3.6 is entitled ‘Interaction with
stakeholders. The relevant parts read as follows:
‘3.6.1 …
3.6.2 To participate in community activities in connection with educational matters and
community building.’
Para 3.7 bears the title ‘Communication’. The relevant clauses appear hereunder:
‘3.7.4 To meet parents concerning learners’ progress and conduct.
…
3.7.8 To participate in departmental and professional committees, seminars and courses in
order to contribute to and/ or update professional views/standards.
3.7.9 To maintain contacts with sports, social, cultural and community organisations.’

[58] Chapter 5 of the EEA deals with incapacity and misconduct of educators.
Section 17 deals with categories of so-called serious misconduct, none of which is
applicable here, in respect of which dismissal is mandatory. The relevant parts of s
18(1) read as follows:
‘(1) Misconduct refers to a breakdown in the employment relationship and an educator
commits misconduct if he or she—
…
(f) unjustifiably prejudices the administration, discipline or efficiency of the Department of Basic
Education, an office of the State or a school or adult learning centre;
(g) misuses his or her position in … a school … to promote or to prejudice the interests of any
person;
…
(l) performs poorly or inadequately for reasons other than incapacity;
…
(q) while on duty, conducts himself or herself in an improper, disgraceful or unacceptable
manner;
…

(t) displays disrespect towards others in the workplace or demonstrates abusive or insolent
behaviour;
(u) intimidates or victimises fellow employees, learners or students…’

[59] Section 18(2) provides that ‘[i]f it is alleged that an educator committed
misconduct as contemplated in subsection (1), the employer must institute disciplinary
proceedings in accordance with the disciplinary code and procedures contained in
Schedule 2’.

[60] What is apparent is that the statutory architecture is to ensure symmetry and to
provide a platform for synergies between the different role players. In Welkom19
Khampepe J, referring to the Act, said the following (at para 36):
‘[T]he 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 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.’

[61] Welkom noted that the Act did not define ‘governance’, even though it placed
the responsibility for governance in the hands of governing bodies. It considered the
essential governance functions to be those listed in s 20(1), set out in para 47 above,
and although the Act placed ‘professional management’ of a public school in the hands
of the principal, it did not define that either.20 The Constitutional Court had regard to
the provisions of s 16A(2)(a), set out in para 52 above, which lists the functions and
responsibilities of a public-school principal. These were an essential part of his or her
professional management duties.21 It took the view that although the principal is a
member of the governing body, he or she occupies that position as a representative
of the HOD.

19 Op cit fn 3.
20 Ibid paras 37 and 38.
21 See para 39.

[62] In para 41 of Welkom Khampepe J said the following:
‘In addition to s 16A’s general delineation of a principal’s duties, each provision of [the Act]
dealing with a specific aspect of a school governance or administration provides further
guidance on the roles and responsibilities of the relevant actors.’

[63] In Welkom the Constitutional Court recognised a governing body’s authority to
determine a public school’s admission policy, subject to express stipulations aimed at
preventing the imposition of unfair admission requirements and further subject to
regulation prescribed by the Minister. A Head of Department, on the other hand, is
empowered to administer admissions. The Constitutional Court also appreciated that
governing bodies are entitled to set a language policy, again subject to certain
prescripts. So, too, is a governing body entitled to adopt a code of conduct, subject to
guidelines that might be determined by the Minister. In certain instances a governing
body may, as a precautionary measure, suspend a learner for up to seven days.22 The
court had regard to the power of a HOD, under certain circumstances, to intervene
directly in the affairs of the school.23 It will be recalled that a principal’s duties in relation
to the relevant HOD was dealt with earlier in the judgment.

[64] In para 49 of Welkom, the Constitutional Court returned to the theme of the
manner in which public schools are meant to function as a partnership. It said the
following:
‘Under [the Act], two things are perspicuous. First, public schools are run by a partnership
involving the state, parents of learners and members of the community in which the school is
located. Each partner represents a particular set of relevant interests and bears corresponding
rights and obligations in the provision of education services to learners. Second, the
interactions between the partners – the checks, balances and accountability mechanisms –
are closely regulated by [the Act]. Parliament has elected to legislate on this issue in a fair
amount of detail in order to ensure the democratic and equitable realisation of the right to
education. The detail must be respected by the executive and the judiciary.’24

22 See paras 43-46.
23 See paras 47-48 and the provisions of the Act there referred to.
24 See also, in this regard, Head of Department, Mpumalanga Department of Education and Another v
Hoerskool Ermelo and Another [2009] ZACC 32; 2010 (2) SA 415 (CC) para 56.

The Constitutional Court also stated that the Act must be read in conjunction with other
applicable legislation, in this context the EEA, which provides that an HOD is the
employer of public-school educators who are appointed to provincial departmental
posts, including principals.

[65] The Constitutional Court had regard to the Oxford English Dictionary which
defines ‘governance’ as, amongst other things, ‘(t)he action or manner of governing’,
‘(c)ontrolling, directing or regulating influence’ and ‘(t)he manner in which something
is governed or regulated; method of management, system of regulations’.25 In Ermelo
the Constitutional Court stated that a governing body’s primary function is to serve the
interest of the school and its learners.26 In Welkom the distinction was noted between
the ‘governance’ and the ‘professional management’ of a school. It said the following:
‘As is evident from s 16A(2)(a), the professional management of a public school consists
largely of the running of the daily affairs of a school by directing teachers, support staff and
the use of learning materials, as well as the implementation of relevant programmes, policies
and laws.’27

[66] Continuing, the court returned to the role of a governing body and contrasted it
with the role of the principal. The court said the following:
‘To my mind, therefore, a 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. By contrast, a principal’s authority is more executive
and administrative in nature, being responsible (under the authority of the HOD) for the
implementation of applicable policies (whether promulgated by governing bodies or the
Minister, as the case may be) and the running of the school on a day-to-day basis. It is this
understanding of a governing body’s governance obligations which must inform our
interpretation of [the Act].’28

25 Welkom op cit fn 3 para 60.
26  See para 57 of Ermelo, op cit fn 21.
27 Welkom op cit fn 3 para 62. (Citations omitted.)
28 Ibid para 63. The definition of ‘management’ in the Oxford English Dictionary (2008), applicable in
the present context, is also useful: ‘Organisation, supervision, or direction; the application of skill or
care in the manipulation, use, treatment, or control (of a thing or person), or in the conduct of
something’.

[68] As presaged by the question posed at the commencement of this judgment, the
SGB’s case is built on a house of cards. The SGB ignores the statutory architecture
and does not distinguish between the different roles played by the governing body and
the principal. It does not appreciate the distinction between its governance/legislative
function and the managerial/executive function of the principal. It is clear from its
answering affidavit that it sees the principal as having no original authority and adopts
the position that all his functions and duties derive from it. Paragraph 58.3 of the
answering affidavit, quoted in para 21 above, makes it clear that the SGB holds the
view that it can dispense with the principal’s professional role if and when it chooses.
The foundation of the SGB’s case is that s 20 of the Act is extensive in relation to its
role, that that section puts it in overall charge of the school, and that in performing his
task as principal, Mr Scheepers is merely acting on delegated authority. The SGB is
unjustifiably dismissive of the provisions of the Act, the EEA and the PAM that deal
with the role of the principal. It contended that the provisions of the Act restrict the
principal’s role to academic functions. That is palpably fallacious.

[69] Section 16 (3), in express terms, bestows a professional management authority
in relation to a public school on the principal. In that capacity he or she is not restricted
to managing only the academic programme of the school. Section 16A(2)(a) reaffirms
the professional management function of a principal and, far from restricting it, says
that what is listed thereunder as the duties of a principal is not exhaustive. In terms of
s 16(2)(a) the principal is required to manage all academic and support staff.
Furthermore, he is required to ‘manage’ the use of learning support material and other
equipment. These are functions that exist not because of the SGB’s delegation, but
by virtue of the provisions of the Act. The principal’s role in terms of s 8A(1), in
controlling what is brought onto school premises, is yet another aspect of his
management function and it does not derive from the SGB but from the provisions of
the Act. When the SGB recommended Mr Scheepers to be appointed principal it was
obliged, both in terms of the provisions of the Act and the EEA, to consider his ability
to perform that function which, by its nature, is managerial. It is, as indicated in the
provisions of PAM referred to above, and as one would expect, a position with a
specific ranking within the post of educators.

[70] Moreover, the resolution of the SGB, set out in para 14 above, in terms, confers
‘management’ functions on Mr Geldenhuys. These functions are encompassed within
the ‘professional management’ of the school, as envisaged in the Act, the EEA and
the PAM. This is what Mr Scheepers’ letter of appointment envisaged he would do.
The functions and duties assigned to Mr Geldenhuys are those within the remit of a
school principal. It is that list of functions that the SAOU sought to have declared as
part of a principal’s management functions and that relief was granted by the court
below. One need not be a lawyer or be versed in the specifics of the applicable
legislation to understand the role that a school principal plays. He or she is the day-to-
day face of the school; the first port of call for parents, learners, educators, other staff
and the community. Given the express terms of the applicable statutes and the incisive
and clear guidance from the Constitutional Court in Welkom, the attitude of the SGB,
with which FEDSAS aligned itself, is baffling. The SGB’s case is premised on a
fundamentally contorted view of the functions of a principal and a school governing
body. Sections 5, 6, 7 and 8 of the Act, on which the SGB relied for its view that the
principal exercised delegated powers, are of no assistance to it. Those sections deal
with the governing body’s authority in relation to admission to schools, the setting of
its language policy, religious observances and the adoption of a code of conduct. This
is in accordance with its ‘legislative’ and governance function. It was never the SGB’s
case that, in relation to that function, the principal impinged on its jurisdictional territory.
The SGB, on the other hand, sought to restrict the role of the principal to strictly
academic functions, despite the clear wording of the relevant provisions of the Act and
in the face of clear guidance from the Constitutional Court in Welkom.

[71] More accurately, the fundamental premise on which the impugned decision is
based is not only false but also contrived. It is clear that the relationship between the
chairperson of the SGB and Mr Scheepers has soured. It is equally clear form the
documents filed of record that there is tension between camps on either side. The
principal might be the victim of unjustified criticism by those opposed to him or he
might be conducting himself as described by them. The accusations by each camp
are serious. If there is a basis for a disciplinary case to be pursued against Mr
Scheepers by the SGB then that should be the route that is followed, rather than the
stratagem adopted here. It is disingenuous to suggest that whatever labour law
complaints Mr Scheepers might have he must take up with his employer, the HOD. In

taking the impugned decision the SGB not only acted beyond its statutory authority,
but also negated Mr Scheepers’ labour law rights. Wherever lies the fault for the
breakdown in the relationship, it cannot be in the school’s best interests that it
continues. What is required is sober reflection by all concerned. More often than not,
in situations such as the present it is difficult to persuade parties to retreat from
entrenched positions. The school’s interests are not best served by protracted
litigation, with attendant financial implications for all, and continuing tensions and
uncertainty. There should be a sustained effort to arrive at a solution that best serves
the school and any attempt at mediation should involve parties without a leg in either
camp. This ongoing tension might also be part of a greater turf war, including
organisations. In this instance the interest of FEDSAS and the SAOU diverge. The
legislation is there as a beacon. We must, all of us, get down to the real and urgent
business of realising the right to education, which is the pathway to the development
of the full potential of our learners and communities. This will only occur if every role
player understands its role and fulfils it. Put differently, the message to all the role
players is simply this: Put the learners first.

[72] The conclusion of the court below that the SGB lacked the statutory authority
to act in the manner complained of, by effectively preventing the principal from fulfilling
his statutory functions and duties, is correct. The assertion that the court below erred
in holding that the decision by the SGB constituted administrative action is also
unfounded. In Minister of Education, Western Cape, and Others v Governing Body,
Mikro Primary School, and Another  [2005] ZASCA 66; 2006 (1) SA 1 (SCA) 3 All SA
436 (SCA) para 20 this court held that a public school, along with its governing body,
is an organ of state.29 In Minister of Defence and Military Veterans v Motau and
Others30 the Constitutional Court, referring with approval to the decision of this court
in Grey’s Marine,31  divided the definition of ‘administrative action’ in s 1 of PAJA into
seven elements to be used as a practical guideline:
‘[T]here must be (a) a decision of an administrative nature; (b) by an organ of state or a natural
or juristic person; (c) exercising a public power or performing a public function; (d) in terms of

29 See also Welkom op cit fn 3 para 141.
30 Minister of Defence and Military Veterans v Motau and Others [2014] ZACC 18; 2014 (5) SA 69
(CC) para 33. (Citations omitted.)
31 Grey’s Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works and Others [2005] ZASCA
43; 2005 (6) SA 313 (SCA).

any legislation or an empowering provision; (e) that adversely affects rights; (f) that has a
direct, external legal effect; and (g) that does not fall under any of the listed exclusions.’

[73] The decision in question is quite clearly administrative action. But in this case
that issue is a red herring. All parties accepted that if it were to be held that the SGB
did not have the statutory authority to make the decision, that would be dispositive of
the appeal, irrespective of whether the decision constituted administrative action or
not.32 The challenge by the SGB on this point might have been motivated by the need
to avoid having to deal with procedural fairness issues. This appears to be premised
on the view that a legality challenge necessarily avoids questions related to procedural
impropriety. Even in that regard the SGB appears to be mistaken.33 However, having
regard to the conclusion reached above we need not entertain any of these issues any
further.

[74] A further issue raised on behalf of the SGB concerned the right of the SAOU to
intervene. It was contended on its behalf that the SAOU did not have a direct and
substantial interest but that in reality in only had a contingent interest and that none of
its rights were potentially adversely affected by the SGB’s decision. In short, it
submitted that the court below should not have allowed the intervention by the Union
and should not have ordered the SGB to pay its costs. It was contended on behalf of
the SGB that the present application did not implicate labour issues, which was all the
more reason not to permit the intervention. I disagree. The SAOU was clear about its
motivation. It has membership of tens of thousands, which includes principals and
deputy principals, and people who aspire to those positions and educators in general.
The SAOU exists to serve the interests of its members. For them it must be important
that there be clarity on the rights and statutory authority of important role players within
the public education sector. It also seeks to make a contribution to the development
of education legislation and policy. The declaratory order sought by the union falls
within the jurisdiction of the high court in terms of s 21(1)(c) of the Superior Courts Act
10 of 2013, which states that the court, at the instance of any interested party, can
enquire into and determine any existing, future or contingent right. In Cordiant Trading

32 See Minister of Education, Western Cape and Another v Beauvallon Secondary School and Others
[2014] ZASCA 218; 2015 (2) SA 154 (SCA) para 16
33 See Democratic Alliance v President of the Republic of South Africa and Others [2012] ZACC 24;
2013 (1) SA 248 (CC) paras 33-37.

CC v Daimler Chrysler Financial Services (Pty) Ltd34 this court, in referring to that
subsection’s predecessor, said the following:
‘Put differently, the two-stage approach under the subsection, consists of the following. During
the first leg of the enquiry the Court must be satisfied that the applicant has an interest in an
’existing, future or contingent right or obligation’. At this stage the focus is only upon
establishing that the necessary conditions precedent for the exercise of the Court’s discretion
exist. If the Court is satisfied that the existence of such conditions has been proved, it has to
exercise the exercise the discretion by deciding either to refuse or grant the order sought. The
consideration of whether or not to grant the order constitutes the second leg of the enquiry.’

[75] It is of course so that an applicant for leave to intervene must satisfy the direct
and substantial interest test. In SA Riding for the Disabled Association v Regional Land
Claims Commissioner and Others35  the Constitutional Court said:
‘This means that the applicant must show that it has a right adversely affected or likely to be
affected by the order sought. But the applicant does not have to satisfy the court at the stage
of intervention that it will succeed. It is sufficient for such applicant to make allegations which,
if proved, would entitle it to relief.’

[76] In this case it must be borne in mind that the SGB sought relief in a conditional
counter-application and sought to resist relief that implicated the rights of the SAOU’s
membership. In my view there can be no doubt that the declaratory order sought by
the SAOU and granted by the court below will lead to greater certainty for all
concerned. The court below was also correct in having regard to s 38 of the
Constitution, which deals with the right to approach a court for the enforcement of
rights. It recognises the rights, inter alia, of anyone acting as a member, or in the
interest of a group or class of persons, anyone acting in the public interest and an
association acting in the interests of its members. Thus, the court below cannot be
faulted for allowing the intervention by the Union, granting it relief and costs.

[77] Finally, in my view, FEDSAS contributed very little to the proceedings before
us. It will be recalled that the resolution adopted by the SGB sought to involve FEDSAS

34 Cordiant Trading CC v Daimler Chrysler Financial Services (Pty) Ltd [2005] ZASCA 50; 2005 (6) SA
205 (SCA) para 18.
35 SA Riding for the Disabled Association v Regional Land Claims Commissioner and Others [2017]
ZACC 4; 2017 (5) SA 1 (CC) para 9. (Citations omitted.)

as a facilitator/mediator, even though it is an organisation for school governing bodies.
The contemplated mediation exercise was predictably doomed to fail. FEDSAS
successfully sought to be admitted as amicus in this appeal. In its heads of argument
it was emphatic that it did not seek to take sides in the present dispute. Much of its
heads of argument was devoted to repeating the applicable provisions of the Act.
Despite disavowing partisanship it echoed the delegation argument made by the SGB.
It is very difficult to discern a different coherent thread to the submissions on behalf of
FEDSAS.

[78] For all the reasons set out above the following order is made:

The appeal is dismissed with costs, including the costs of two counsel.

________________________
M S NAVSA
JUDGE OF APPEAL

APPEARANCES:

For Appellant:

Adv G Engelbrecht SC, with Adv J Meraba
Instructed by:

Horn & Van Rensburg Prokuruers, Bloemfontein

For First Respondent:
Adv Kemp J Kemp SC, with Adv W van Aswegen
Instructed by:

Peyper Attorneys, Bloemfontein

For Second Respondent: Adv N Snellenburg SC, with Adv T Pienaar
Instructed by:

Lovius Block Attorneys, Bloemfontein

Amicus:

Adv J du Toit SC
Instructed by:

Hill McHardy & Herbst Attorneys, Bloemfontein

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

The School Governing Body Grey College, Bloemfontein v Scheepers and Another (Case no
506/19) [2020] ZASCA 82 (3 July 2020)

From:
The Registrar, Supreme Court of Appeal

Date:
03 July 2020

Status:
Immediate

The following summary is for the benefit of the media in the reporting of this case and does not
form part of the judgment of the Supreme Court of Appeal

Today the Supreme Court of Appeal (SCA) handed down judgment in an appeal against an order of the
Free State Division of the High Court, Bloemfontein (Musi AJP and Van Zyl J, sitting as court of first
instance). The appeal was dismissed with costs.

The matter concerned a dispute between the School Governing Body of Grey College, Bloemfontein
(the SGB) and the first respondent, the principal of Grey College secondary school, Mr Deon
Scheepers. Mr Scheepers was appointed as principal from 1 January 2013 by the Head of the Free
State Department of Education (the HOD) on the recommendation of the SGB. He served in that
position until May 2018, when the SGB purported to recall all delegated SGB powers from him.

At a special meeting of the SGB on 15 May 2018, Mr Scheepers was informed that the SGB’s executive
had identified certain issues which potentially impacted on the relationship of trust between him, as
principal, and the SGB. The SGB had taken the view that, as principal, Mr Scheepers’ functions were
limited to managing the academic activities of the school and that all other functions had been delegated
to him by the SGB. The purpose of the meeting, so it was said, was to determine whether the SGB was
comfortable with the manner in which Mr Scheepers had discharged those apparently delegated
functions.

At the meeting Mr Scheepers was confronted with a litany of complaints, including the harsh and
aggressive treatment of staff, that he victimized and bullied educators and that he was not approachable

to parents. Thereafter the SGB voted, by secret ballot, on whether the functions and responsibilities
delegated to him should be withdrawn. Fourteen of the seventeen members in attendance voted in
favour of the motion. A resolution was subsequently adopted to reflect this. It provided, inter alia, that
the functions, responsibilities and duties that were delegated to Mr Scheepers are withdrawn with
immediate effect. It also provided for the appointment of a so-called interim school manager, to execute
the delegated functions of the SGB until a long-term solution could be implemented. The interim school
manager would manage all school activities save for teaching and learning, which Mr Scheepers would
remain responsible for. This meant, according to the SGB, that Mr Scheepers would be continuing with
his professional duty as school principal, exercising only those powers that are assigned to him under
the South African Schools Act 84 of 1996.

Aggrieved at the decision, Mr Scheepers approached the court below to have it reviewed. He contended
that the SGB’s decision was unlawful and procedurally unfair. In his view, there was no substantive
basis for the decision and the SGB was thus acting beyond its powers. On the other hand, he argued
that had been deprived of a reasonable opportunity to make representations by not being given
adequate notice of and information concerning the contemplated action by the SGB. In addition, there
were no adequate or clear reasons provided for the SGB’s decision.

Opposing the relief sought by Mr Scheepers, the SGB maintained its view that the powers, functions
and duties which he exercised prior to the impugned decision had been delegated to him by the SGB.
As the repository of the original powers and functions, so the argument went, the SGB was entitled to
revoke them and, in so doing, retake the control that vested in it in terms of the provisions of the South
African Schools Act.

The high court considered the applicable legislative framework and concluded that the SGB had
overreached in stripping Mr Scheepers of the various functions and duties. It held that the SGB’s
decisions to recall all delegated governing body powers from Mr Scheepers and to simultaneously
appoint an interim school manager were unlawful and set them aside.

The SCA had regard to the functions and duties of governing bodies and school principals by
considering the applicable legislation as well as Constitutional Court jurisprudence on this subject. It
held that the SGB had ignored the statutory architecture which distinguished clearly between the
governance/legislative function and the managerial/executive function performed by the governing body
and the principal, respectively. It held, further, that the SGB was unjustifiably dismissive of the
provisions of the South African Schools Act and the other applicable legislation by adopting the position
that Mr Scheepers, as principal, derived all his functions and duties from it; that in performing his task
as principal, Mr Scheepers was merely acting on delegated authority. The decision of the court of a quo
that the SGB lacked the statutory authority to act in the manner complained of was thus confirmed.

In conclusion, the SCA held as follows:
‘[T]he fundamental premise on which the impugned decision is based is not only false but also contrived.
It is clear that the relationship between the chairperson of the SGB and Mr Scheepers has soured. It is
equally clear form the documents filed of record that there is tension between camps on either side.
The principal might be the victim of unjustified criticism by those opposed to him or he might be
conducting himself as described by them. The accusations by each camp are serious. If there is a basis
for a disciplinary case to be pursued against Mr Scheepers by the SGB then that should be the route
that is followed, rather than the stratagem adopted here. It is disingenuous to suggest that whatever
labour law complaints Mr Scheepers might have he must take up with his employer, the HOD. In taking
the impugned decision the SGB not only acted beyond its statutory authority, but also negated Mr
Scheepers’ labour law rights. Wherever lies the fault for the breakdown in the relationship, it cannot be
in the school’s best interests that it continues. What is required is sober reflection by all concerned.
More often than not, in situations such as the present it is difficult to persuade parties to retreat from
entrenched positions. The school’s interests are not best served by protracted litigation, with attendant
financial implications for all, and continuing tensions and uncertainty. There should be a sustained effort
to arrive at a solution that best serves the school and any attempt at mediation should involve parties
without a leg in either camp. This ongoing tension might also be part of a greater turf war, including
organisations. In this instance the interest of FEDSAS and the SAOU diverge. The legislation is there
as a beacon. We must, all of us, get down to the real and urgent business of realising the right to
education, which is the pathway to the development of the full potential of our learners and communities.
This will only occur if every role player understands its role and fulfils it. Put differently, the message to
all the role players is simply this: Put the learners first.

In the result, the appeal was dismissed with costs, including the costs of two counsel.