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Akani v pinnacle point casino

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The space of the house. The place you can see is in trouble. Stupid the way you cant get to your car with out a lift from a shuttle and it takes 30 min for them to come in low season.

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Register — opens a dialog box. Sign in — opens a dialog box. Stupid the way you cant get to your car with out a lift from a shuttle and it takes 30 min for them to come in low season Diane, South Africa.

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Like this one but not totally sure yet? Having to take transport to our lodge or not having a phone in the lodge Getting to and from the lodge was a pain and there was no telephone in the lodge to call transport.

Stayed in May Waiting for a cart when its high season holidays is terrible, they should allocate a cart to each block, or rethink that tiny roads leading to the block accommodation Stayed in April That a policy serves as a guide to decision-making and cannot bind the decision-maker inflexibly was well expressed in MEC for Agriculture v Sasol Oil , 47 where the Supreme Court of Appeal held:.

In Akani v Pinnacle Point Casino 50 the relationship between policy and legislation was soundly expressed as follows:. As a matter of sound government, in order to bind the public, policy should normally be reflected in such instruments.

Policy determinations cannot override, amend or be in conflict with laws including subordinate legislation. Otherwise the separation between Legislature and Executive will disappear.

In conclusion, the general position is that admission policies must be applied in a flexible manner. If there were good reasons to depart from the policy, it was always open to the principal or the Gauteng HOD to do so.

The Supreme Court of Appeal therefore erred when it concluded that the Schools Act placed admission decisions squarely in the hands of the Rivonia Governing Body and that the Gauteng HOD could not override the admission policy.

However, a decision to overturn an admission decision of a principal, or depart from a school admission policy, must be exercised reasonably and in a procedurally fair manner.

The first is the need to eradicate patterns of racial discrimination and to address the consequences of past discrimination which persist in our society, and the second is the obligation of procedural fairness imposed upon the government.

Both principles are based on fairness, the first on fairness of goals, or substantive and remedial fairness, and the second on fairness in action, or procedural fairness.

A characteristic of our transition has been the common understanding that both need to be honoured. It is to the analysis of procedural fairness that I now turn.

It has not been contested, and rightly so, that the decision of the Gauteng HOD to admit the learner in terms of Regulation 13 1 a constitutes administrative action and that the Department has a duty to act fairly.

In this regard, the Department argues as follows:. It would have been wholly impractical to have afforded the learner and the school a dedicated hearing in each of these thousands of cases.

In addition, the Department contends that there were no special circumstances in this case requiring any further consultation with the school.

This is because the Department and its representatives had already consulted with the school from September to November It is well established that the requirements of procedural fairness must be determined flexibly, having regard to the facts of the particular case.

Indeed as this Court recognised in Joseph: Administrative efficiency is an important goal in a democracy, and courts must remain vigilant not to impose unduly onerous administrative burdens on the State bureaucracy.

However, for the reasons that follow, it is plain to me that the Gauteng HOD was required to go further in the circumstances of this case.

First and most important: Ideally this should take place before the school year has begun. The steps should be taken well ahead of the beginning of an academic year.

However, the circumstances of this case demonstrate a significant departure from what may have been expected in the normal course.

Almost four weeks into the school year, the dictates of fairness required affording the school an opportunity to address the Gauteng HOD on the impact that such a placement would have on factors such as the quality of education of other learners at the school, access to resources for the learner herself, and the time that may have been required to accommodate the learner effectively.

This opportunity was never afforded to the school. There was a dispute on the papers regarding the details of that meeting. It came as a rude shock to the school, which had already settled into the school year thinking the matter had been resolved.

This is not to say that the Gauteng HOD was not entitled to exercise his power when he did. But the circumstances affect what the demands of procedural fairness were when he made his final decision.

As I see it, the Gauteng HOD should have afforded the school an opportunity to make representations and respond to the tenth-day statistics report, before the learner was forcibly placed in the school.

In the result, I find that the decision by the Gauteng HOD was not exercised in a procedurally fair manner. Apart from the specific procedural fairness flaws in the circumstances of this case, it is necessary to emphasise that, in disputes between school governing bodies and national or provincial government, cooperation is the required general norm.

Such cooperation is rooted in the shared goal of ensuring that the best interests of learners are furthered and the right to a basic education is realised.

Both provincial government and individual schools have to grapple with systemic capacity problems and their impact on education.

And they play an important role in improving that quality by supplementing state resources with school fees. However, the needs and interests of all other learners cannot be ignored.

As was recognised in Ermelo:. At the provincial level, government is under an obligation to ensure that there are enough school places for every child to attend school.

However, this obligation must, as the Onderwysersunie submitted, take into account the fact that determination of capacity is a complex process that applies not only to the school as an entity, but also to each and every grade and class within the school.

It involves a consideration of a range of interwoven factors relating to the planning and governance of the school as a whole.

Planning and coordination in partnership with school governing bodies is crucial. 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 capabilities 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 Schools Act.

I can do no better than to repeat those sentiments:. That applies to education too. In the present case they should have done so and that may well have prevented this long journey through the courts.

The Constitution and applicable legislation thus require the partners in the governance and management of schools to engage with one another in mutual trust and good faith on all material matters relating to that endeavour.

This case illustrates the damage that results when some functionaries fail to take the general obligation to act in partnership and cooperation seriously.

In the early stages of the tussle there was some engagement between the parties, albeit tense. The value of that engagement was demonstrated by the understanding between the school and the Department reached at the end of November By contrast, the manner in which the Gauteng HOD thereafter exercised his powers completely upended the process.

It created antagonism and mistrust, causing the Rivonia Governing Body to recoil. Desiring to safeguard its own authority, the school failed to place the interests of the learner first.

Instead, it resorted to litigation. Rather, and quite ill-advisedly, the school not only sought a declaratory order to establish the relative powers of the Rivonia Governing Body and the Department to determine admission capacity, but also sought relief requiring the learner to be placed in another primary school until she could be accommodated at Rivonia Primary.

However, as counsel for the school conceded before us, ordinarily one additional learner would not burden a school to the point of collapse.

In this case there is particular reason to emphasise the duties of co-operative governance and the impact they might have on the children concerned.

The duty on the parties to cooperate and attempt to reach an amicable solution is intimately connected to the best interests of the child.

Due to the failure of the parties to engage and reach agreement, the learner was physically placed at a desk and was caught in the middle of a disagreement which may well have been very traumatising for her.

To me this highlights the fact that the principle of co-operative governance is not merely a tool to ensure smoother intra-governmental relations, but one which has a direct effect on the people whom the government serves.

Both parties could and should have done more to prevent the need for litigation. As stated earlier, disagreement is not necessarily a bad thing, and we must expect that in trying to determine what the best interests of learners are there may be differing visions.

But one organ of state cannot use its entrusted powers to strong-arm others. All sides are required to work together in partnership to find workable solutions to persistent and complex difficulties — and resorting to court in every skirmish is not going to help in that process.

Disciplinary proceedings against the principal. An application for the review of the disciplinary proceedings instituted by the Department against the principal is not before us.

The appeal is upheld, and the Supreme Court of Appeal order is set aside. However, given my conclusions relating to the manner in which the Gauteng HOD exercised his powers, I am of the view that it would be fair that each party pays its own costs.

The following order is made:. The appeal is upheld to the extent set out below. The order of the Supreme Court of Appeal is set aside and replaced with the following order:.

This case concerns a little black girl whose dream was to obtain education at the school closest to her home. This policy was adopted by the Governing Body of Rivonia Primary School governing body ostensibly to protect the interests of the school and its learners.

The school in question is a public school which falls under the administration of the applicants who are all organs of state.

Attempts by the applicants to have the girl admitted to the school failed. Ultimately the applicants adopted robust action to force the school to admit her.

When the school refused to admit the girl, her mother approached the applicants for intervention. It was this intervention which gave rise to the dispute between the school and the applicants.

On being forced to admit the learner the school approached the High Court for relief. They sought the review of the decision by the Head of Department: They also sought that the impugned decision be set aside on the basis that it was procedurally unfair because the school or its principal was denied the opportunity to furnish reasons for not admitting the learner.

However, no facts were pleaded nor was there evidence furnished to support the latter claim. I return to this point below.

The High Court was not persuaded that any of the claims was established and consequently it dismissed the application. The governing body and the school appealed to the Supreme Court of Appeal.

The Supreme Court of Appeal approached the case on the footing that the principal question for determination was whether the governing body could decide the number of learners to be admitted to the school.

The power of the Head of Department to intervene, so it was held, was limited to cases where the school has exercised its power unreasonably, unconstitutionally or unlawfully.

Having found that the refusal to admit the girl was done in terms of a policy lawfully adopted by the governing body, the Supreme Court of Appeal issued the following order:.

This is the sole order that forms the subject matter of the appeal before us. It determines the scope of the appeal because in our law an appeal ordinarily lies against orders only.

The proposition is so trite that no authority need be cited for it. I have read the judgment prepared by my Colleague Mhlantla AJ the main judgment.

I agree that leave to appeal must be granted and that the appeal ought to succeed. However, I do not agree that the granting of the second and third declaratory orders is justified.

In my respectful view the question whether the Head of Department acted in a procedurally fair manner in issuing the instruction to the principal and in placing the learner in the school without giving the school the opportunity to make representations on the tenth-day statistics was not an issue raised in this Court by any of the parties.

Before us the sole issue was whether the order issued by the Supreme Court of Appeal was wrong. The parties themselves focused on that order.

The applicants challenged the order while the school defended it. In these circumstances I am unable to support the second and third declarators issued in the main judgment, even in the light of procedural fairness having been mentioned in argument.

This is so because procedural fairness was mentioned in the context of the complaint made by the school in its papers. It asserted that the principal was denied the opportunity to give her reasons for refusing to admit the learner.

It will be remembered that here we are concerned with motion proceedings. It is a fundamental principle of our law that the notice of motion and founding affidavit, together with its annexures, constitute pleadings and evidence which must justify the grant of the relief sought.

In Skjelbreds Rederi, 74 this principle was stated in these terms: Another basic rule in application proceedings is that the facts necessary to prove a claim must appear in the founding affidavit and its supporting documents.

Hence the proposition that an applicant must stand or fall by its petition and the facts alleged in it. It is now convenient to refer to allegations in the founding affidavit sworn to by the Deputy Chairperson of the governing body.

In relevant part she states:. This refers to the number of learners in the school on the tenth day of the new school year and is dealt with more fully hereunder.

He then instructed the school to admit the learner without delay. I respectfully submit to the above Honourable Court that this could not refer to an appeal process as it is envisaged in the relevant education legislation.

As I understand it, such an appeal needs to be resolved within 14 days after the appeal was lodged. This is a reference to statistics kept by the Gauteng Department of Education of student numbers on the tenth day of the new school year.

It now appears to be used by the Department to compare the attendance of a particular school with what it believes to be the capacity for each school.

I humbly submit that this statistic cannot override the admission policy of the First Applicant. The reason furnished for the contention is that the decision-maker acted beyond his powers.

The pleading does not refer at all to procedural fairness. In fact, barring the recordal of the relief set out in the notice of motion, the founding affidavit does not mention the failure to be heard at all.

Even in that regard, the school did not assert that it was denied a hearing in relation to the use of the tenth-day statistics.

The claim for relief was framed in these terms:. Apart from the fact that this claim was not properly pleaded in that no facts whatsoever were alleged in the founding affidavit to support it, there is undisputed evidence on record showing that the principal did furnish reasons for refusing admission to the Head of Department.

Indeed the main judgment finds that the principal submitted her reasons in November Therefore the claim for procedural fairness could not succeed even if it had been properly pleaded.

It follows that the High Court was right in dismissing this claim on the basis that the principal was afforded the opportunity to furnish reasons for her decision.

Without a doubt the pleaded claim for procedural fairness has no merit. This is the core of the differences between this and the main judgment.

Declarator on procedural fairness. In our system of law the issues determined in any court are defined in the pleadings by the parties themselves.

Adjudication of issues is undertaken at the instance or request of parties. In other words, it is the parties who decide which cause of action they would like to pursue in litigation.

Where a particular cause of action has been chosen and pleaded by an applicant or plaintiff and it turns out that the evidence adduced in its support does not sustain the action a court cannot, of its own accord, choose a different cause of action and find in favour of a losing litigant.

This is simply not open to any court. This principle was affirmed by this Court in many decisions. If, however, the pleadings, properly interpreted, establish that the applicant is asserting a claim under the [Labour Relations Act], one that is to be determined exclusively by the Labour Court, the High Court would lack jurisdiction.

An applicant like Mr Gcaba, who is unable to plead facts that sustain a cause of administrative action that is cognisable by the High Court, should thus approach the Labour Court.

The Court did not, of its own accord, decide the matter on the basis of the unfair labour practice claim, even though the facts pleaded sustained this claim.

The High Court dismissed the challenge and the applicant sought leave to appeal to this Court. This Court is obliged to follow them until they are overturned.

On this point the Court in Gcaba said: This is essential for the rule of law. A highest court of appeal — and this Court in particular — has to be especially cautious as far as adherence to or deviation from its own previous decisions is concerned.

It is the upper guardian of the letter, spirit and values of the Constitution. But it is young; so is the legislation following from it.

As a jurisprudence develops, understanding may increase and interpretations may change. At the same time though, a single source of consistent, authoritative and binding decisions is essential for the development of a stable constitutional jurisprudence and for the effective protection of fundamental rights.

This Court must not easily and without coherent and compelling reason deviate from its own previous decisions, or be seen to have done so. But there is no evidence on record supporting this finding.

This is at odds with a principle entrenched in our law that any relief granted by a court must be based on established facts.

This can hardly be a basis for holding that the school was denied the opportunity to make representations on the statistics. That was simply not the case they were called upon to meet in any of the courts before which the matter served.

Both in the opposing affidavit and written argument, the school asked for the dismissal of the application for leave and nothing more.

In our law a court ordinarily grants relief at the instance or request of litigants. Yet here the declaratory order on procedural unfairness is granted in circumstances where it was not requested.

More so, when the fact that this order is not supported by the proven facts is taken into consideration. Writing for the majority Chaskalson CJ said: I am unable to agree with this approach.

The general assistants at the appellant schools are not parties to this litigation. Although reference is made to the fact that the scheme is likely to lead to their retrenchment, no claim was made by the appellants on behalf of the employees.

The relief the appellants seek is relief designed to relieve them of the burden of continuing to employ the general assistants, and of having to pay the costs of retrenchments that might take place.

There is no evidence on record as to the terms and conditions of service of the general assistants of the appellant schools, other than that they are different to those of the general assistants employed by the [Western Cape Education Department].

No averment is made anywhere in the affidavits lodged on behalf of the appellants that the general assistants at their schools have any rights against the [Western Cape Education Department], or that they believe that they had such rights.

In this regard the Chief Justice said:. Although he concludes that the appellants are not entitled to the relief claimed by them, he would have made a declaration that the rights of the appellants to just administrative action have been infringed and would have directed the parties to submit further affidavits and argument dealing with the appropriate relief in the light of the finding made by him.

Due to the course that the litigation took, the implementation of the scheme was not raised in the founding affidavits and no relief was sought in that regard in the notice of motion.

The details of the scheme were placed on record by the [Western Cape Education Department] in [its] answering affidavits lodged on 14 February The appellants, in replying affidavits lodged some two months later on 17 April , complained that they had not been included in the negotiations that had taken place between the [Western Cape Education Department] and the trade unions.

The relief they sought, however, as expressed in the affidavit of Mr van der Merwe, the chairman of the first appellant, was that: At that point negotiations between respondents and the trade unions, if necessary, will be meaningful.

I am therefore unable to agree with Ngcobo J that the appellants are entitled to relief in the form proposed by him. Meaningful engagement and cooperation.

It is asserted that the Department exercised its powers with no regard to the role of the governing body.

Therefore what is said on this aspect does not form part of the ratio decidendi. The ratio comprises the reasoning necessary for the decision of the issues before a court.

What is stated in the course of articulating that reasoning but which is not essential to the determination of the issue at hand constitutes obiter dicta.

The obiter dicta have no binding authority. This was not done as part of addressing the systemic capacity problems but as resolution of a particular complaint.

But even in the context of systemic capacity problems, the Head of Department can hardly be accused of failing to engage with the school. None of them produced a positive result because the school refused to relax its admission policy and admit the learner, even though that policy had been relaxed in other cases.

The meeting was nothing but a plea to the school and the First Applicant to relax its policies in order to grant the learner a place in the school for In relevant part it reads:.

Rivonia Primary provide Mrs. Cele with a reviewed number. Our instructions are that the request to review the received waiting list number was rejected with the contempt it deserves.

Rivonia Primary and [its governing body], will not be part of any underhand activities. These facts illustrate that even in the face of scorn, the Department was willing to cooperate with the school in seeking an amicable solution to the problem.

In the meeting of 30 November when their plea failed, the officials from the Department suggested that they would place the learner at an alternative school if her parents agreed.

Apparently they did not agree, hence the impugned decision by the Head of Department. The assertion that the Head of Department adopted the heavy-handed approach to the issue loses sight of what really happened.

Faced with a contemptuous governing body and an intransigent principal, it is difficult to imagine that the Head of Department could have acted differently.

The principal associated herself with the stance adopted by the governing body. The main judgment indicates that this principle is distilled from certain paragraphs in Ermelo.

Instead these paragraphs deal with the revocation of a function entrusted to a school governing body. In these paragraphs Ermelo addresses the exercise of power to revoke the authority to make policy.

Ermelo states that the power to revoke must be exercised on reasonable grounds and in accordance with procedural fairness required by section 22 2 of the Schools Act.

Therefore, these paragraphs do not support the principle formulated in the main judgment.

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