The Constitutional Court has dismissed an application by the SA Council for Educators (SACE) for leave to appeal against a high court judgment that set aside its decision to refer a complaint for a hearing.
In July 2021 the Bloemfontein high court ruled that Sace’s disciplinary committee’s intention to refer allegations against Deon Scheepers, Grey College Secondary School principal, for a hearing was “irregular and unlawful” and set it aside.
This followed a complaint that members of the school’s governing body lodged against him with SACE, after a decision in May 2018 to strip him of his powers.
Scheepers successfully challenged the governing body’s decision in the high court and the Supreme Court of Appeal (SCA), which held that the governing body acted beyond its statutory authority.
The Free State education department then appointed an independent task team to investigate the underlying facts and causes that led to conflict between Scheepers and the governing body.
The task team recommended to the head of department that Scheepers be charged for serious misconduct.
The details of the alleged misconduct were not provided in court papers.
However, radio station OFM reported in October 2021 that some of the allegations against Scheepers in court documents before the high court, are that he victimised teachers and bullied them; he couldn’t handle complex racial issues at the school; 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; and 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.
The department then invited him to make submissions why “necessary measures should not be considered” against him.
But while the department was mulling over whether to take action against Scheepers, SACE entered the fray after obtaining a copy of the independent task team’s report and issued him with a summons in November 2020 to appear before a disciplinary hearing that was scheduled for February 2021.
Scheepers, who is now the principal of Wynberg Boys’ High School in Cape Town, then brought a review application in the Bloemfontein high court arguing SACE did not conduct a proper independent investigation of its own, but simply “latched” on to the independent task team’s report.
Judge Phillip Loubser and acting judge Collin Nekosie agreed, stating “it is manifestly clear that the council did not embark upon an independent investigation” and that “it merely took notice of the report of the independent task team and the recommendations contained therein”.
Disappointed with the judgment, SACE applied to the high court for leave to appeal, but it was turned down in December 2021. A subsequent petition for leave to appeal was dismissed with costs in March last year on the grounds that there were no reasonable prospects of success.
SACE then approached the Constitutional Court, which heard its application for leave to appeal in November last year.
In a unanimous judgment on Wednesday, the Constitutional Court stated that it will grant leave to appeal only if it is in the interests of justice to do so.
Acting justice Selby Baqwa stated the interests of justice inquiry involve weighing varying factors including “reasonable prospects of success, which although not determinative, carry more weight than other factors”.
“The question whether SACE properly exercised its public power to investigate Mr Scheepers is a factual inquiry. Whether an investigation in any given instance is a proper investigation falls for a case-by-case analysis.
“I do not think that this court’s views on the merits would result in the distillation of a principle or principles that would be applicable to all matters of this nature.”
He said whether an investigation as conducted by SACE is adequate “involves an evaluation of the facts”.
“This court has refused to entertain appeals that seek to challenge factual findings or the incorrect application of settled law to the facts by lower courts. Additionally, a factual dispute does not become a constitutional issue because it has been clothed as a constitutional issue.”
He ordered SACE to pay the costs of two counsel.
TimesLIVE
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