ELRC147-22/23WC

Panelist: Jonathan Gruss
Case No.: ELRC147-22/23WC
Date of Award: 19 June 2023

In the ARBITRATION between:

Wesley Neumann
( Applicant)


and


Western Cape Department of Education

(Respondent)


Applicant’s representative: Mr Seymour
Email


Respondent’s representative: Adv Williams
Email:


DETAILS OF HEARING AND REPRESENTATION

1. This dispute was scheduled for arbitration in terms of Section 191(5)(a) of the Labour Relations Act 66 of 1995 as amended (“the LRA”) read with Clause 7.2 of the ELRC Constitution : ELRC Dispute Resolution Procedures. The matter was set-down for arbitration and the proceedings were held on 8 February 2023, 9 February 2023, 10 February 2023, 13 February 2023, 14 February 2023, 20 April 2023, 21 April 2023, 22 April 2023, 24 April 2023, 25 April 2023, 26 April 2023, 24 May 2023 and 25 May 2023 at the respondent’s provincial head office situated at 1 North Wharf Square, 2 Lower Loop Street, Foreshore in Cape Town. The applicant, Wesley Neumann appeared in person and was represented by Mr Seymour an attorney. The respondent, Western Cape Department of Education was represented by Adv Williams instructed by the state attorneys. The parties submitted written closing arguments by agreement, the written closing arguments of both parties were forwarded to me via email by the ELRC on 5 June 2023. I requested an extension in rendering this award to the ELRC and extension was granted until 19 June 2023

ISSUE TO BE DECIDED
2. I am required to determine whether the applicant’s dismissal was both procedurally and substantively fair.

BACKGROUND TO THE ISSUES

3. At the commencement of the arbitration proceedings as confirmed by the pre-arbitration minute, the following were agreed as common cause:

3.1 The applicant was appointed as a teacher at Heathfield High School by the respondent on 1 January 2010. The applicant was promoted to departmental head on 1 April 2014 and on 1 July 2016, the applicant was promoted to deputy principal. The applicant on 1 October 2018 was promoted to principal.

3.2 During 2020 the applicant reported to the circuit manager, Jacqui du Plessis.

3.3 On 8 March 2020, the president announced the declaration of a national state of disaster and the early closure of schools from 18 March 2020.

3.4 On 20 July 2020, the School Evaluation Authority visited the school and wrote report.
3.5 The school was opened on 3 August 2020.

3.6 On 16 September 2020, the applicant was charged with misconduct.

3.7 Part A of the applicant’s application to the Labour Court under case number C387/2020 (to interdict the disciplinary hearing) was dismissed, with costs on 27 October 2020. Part B relating to the appointment of Me Schreuder had subsequently lapsed.

3.8 The disciplinary proceeding commenced on 3 December 2020.

3.9 On 11 October 2021 the applicant was found guilty on six charges of misconduct.

3.9.1 Misconduct in terms of section 18 (1)(r) of the Employment of Educators Act, Act 76 of 1998 (EEA) in that in February 2020, the applicant assaulted or threatened to assault a learner by pointing his finger on his face and or smacking him in his face.

3.9.2 Failure to carry out a lawful order without just or reasonable cause. The instruction was communicated to the applicant in the letter dated 24 July 2020 from the Head: Education Mr Schreuder wherein he was instructed to ensure that every grade 12 learner and the parents/guardians are informed, in writing of the requirement that every Grade 12 learner must physically be at school every day of the week from 3 August 2020, until the start of their NSC examination. The only exception is formal school holidays. Ensure that educators teaching Grade 12 learners are on duty and actively teaching Grade 12’s every day of the school week. This includes support educators from other Rates starting in from Grade 12 educators who have been accepted due to probability. Inform the governing body of the school, in writing, of the instructions and that any instructions or coercion to the contrary falls outside the functions of governance and oversight and are thus illegal in terms of the South African Schools Act, 1996 (Act 84 of 1996).

3.9.3 Disrespect in the form of abusive or insolent behavior. The applicant forwarded an email to Mr Schreuder on 26 July 2020 the contents of that email is viewed by the respondent as abusive and or insolent behaviour.

3.9.4 Bringing by including “all media houses” in the email addressed to the then Head of the Western Cape Department of Education (HOD).

3.9.5 Misconduct in terms of section 18 (1) (G) of the employment of educators act, in that from May to July 2020, the applicant must use his position, including his position as a representative of the HOD on the school governing body ( “SGB”) by inciting personnel and all learners and or the community and social media platform not attend school or to report for duty during the Covid 19 pandemic.

3.9.6 Breach of the respondent’s social media policy by inter-alia distributing pictures and/or posting videos on Facebook or posting statements and overcome commentary which irresponsibly criticised government policies.

3.10. The sanction of dismissal was imposed on 2 October 2021 by the presiding officer in respect of 5 of the 6 charges. On appeal the finding on the charge of assault or threatened to assault a learner was overturned. The finding on the remaining charges were upheld. The sanction of dismissal was also upheld, however as an alternative dismissal, the applicant was offered the option of accepting a demotion to Departmental Head position at 1 of 3 schools by no later than 20 May 2022.

3.11 The applicant rejected officer and was dismissed effective 20 May 2022.

3.12 On 23 May 2022, the applicant referred a dispute regarding his dismissal to the ELRC.
3.13. The following are facts in dispute. The facts that are in dispute are apparent from the Statement of Case and Defence. The applicant refers to the following fact in particular.

3.13.1 The instruction issued by the HOD, Brian Schreuder on 24 July 2020 was reasonable and lawful;

 3.13.2 The applicant had complied with instruction;

3.13.3 The applicant had engaged in abuse of or insolent behaviour;

3.13.4 The applicant had misused his position in supporting a campaigns to close schools;

3.13.5 The respondent had furnished the applicant with a social media policy subsequently had breached the employer social media policy;

 3.13.6 Heathfield High School was closed by the applicant during June / July 2020.

4. Issues that the panellist is required to decide
4.1 Whether the respondent followed a fair procedure, as per paragraph 2(b) of the Disciplinary Code and Procedure for Educators, in particular:

4.1.1 Whether the presiding officer of the discipline hearing failed to apply legal prescripts and should have recused herself when she consider the application for recusal;

4.1.2 Whether the presiding officer did not apply her mind to all the relevant facts of the case and ignore the material evidence of witnesses without the former circuit manager (Jaqui de Plessis), the SGB chairperson (Vasoula Bailey), and learner (Tania Syce); allegation of personal vendetta against the applicant and or the evidence of the district director (Granville Stander) in the former circuit manager (Jacqui du Plessis) when considering sanction.

4.1.3 Whether the sanction finding by the presiding officer is shocking inappropriate given in the circumstances of the case.

4.1.4 Whether the applicant is guilty of misconduct on those charges levelled against which were as upheld on appeal.

4.1.5 Whether the Department apply discipline selectively.

4.1.6 Whether the applicant, in the event of an unfair dismissal finding is a suitable candidate for reinstatement.

4.1.7 The applicant also following issues to be decided:

4.1.7.1 Whether the Government Gazette Regulations 639 dated 4 June 2020 is 11 to this dispute and if so, whether the respondent complied with it;

4.1.7.2 Whether there is sufficient evidence to conclude that the employee employer relationship was beyond repair and that warranted essential dismissal, in the event of a guilty finding on any of the charges.

SURVEY OF EVIDENCE

5. Section 138(1) of the LRA provides that the commissioner may conduct the arbitration in a manner that Commissioner considers appropriate in order to determine the dispute fairly and quickly, but must deal with the substantial merits of the dispute with the minimum of legal formalities. This is a brief summary of evidence considered as provided for in terms of Section 138(7)(a) relevant to the dispute at hand and does not reflect all the evidence and arguments heard and considered in deciding this matter.

RESPONDENT’S EVIDNECE

6. The respondent called Mr Granville Stander, Ms Bronagh Mammond, Ms Marie Louise Mocke, Ms Caren Nicolette Bydell and Mr Brian Schreuder as witnesses. Mr Stander testified under oath to the following effect.

6.1 He is currently the Director for the Cape Teaching and Learnership Institution that is responsible for training of educators. They coordinate in-service training of teachers and school leaders.

6.2 During 2020, he was district director for the Metro South with 214 schools falling under him. Heathfield High fell under his district. The circuit manager at the time was Ms du Plessis. Circuit managers takes charge of between 20 and 25 schools and they serve as a direct line manager in the circuit. The circuit manager would report to the district director and there were 9 circuits in his district. The reporting line for him at the time was for him to report to Mr Alan Meyer who was the chief director. Mr Meyer in turn would have reported to Mr Archibald Lewis who was at the time the Deputy Director-General. Who in turn would report to the Head of Department (Superintendent General).

6.3 On 14 December 2018 an email was forwarded for the induction of newly appointed principals to be held between 28 and 31 January 2019. (A15). During the induction process they would deal with policies and practices.. During March to April 2020 there was a hard Covid lockdown. In May 2020 the respondent started preparing for phase in of learners.

The circular dated 5 May 2020 signed by Head: Education Mr Schreuder was addressed to all principals and school management teams of all the public schools and sent for information of the governing bodies. The letter dealt with the reopening of schools phase 1, the return of SMT’s and cleaning staff. The correspondence indicated that the National Minister of the Department of Basic Education (DBE) Angie Motshekga announced on Friday, 30 April 2020 that the basic education sector would resume in phases over the weeks ahead. 

The circular further stated that the National Minister indicated that school management teams, non-teaching and especially cleaning staff are required to resume duty on 11 May 2020. Teaching staff would return on 18 May 2020 and the Grades 12 and 7 learners would return on 1 June 2020. Whilst the 11th and 18th were fixed dates, the National Minister indicated that the 1 June 2020 return date was for the first learner cohorts was a tentative date and would first require the National Corona Command Council and the Cabinet approval based on certain considerations. He wanted to ensure that principals, deputy principles and department heads had to returned back to school to prepare.

6.4 On a weekly basis the Head of Department would issue guidelines for the management of Covid 19 in public schools. Everyone had to be screened before entering the school. Learners returned on 1 June 2020. In turn according to the guidelines, the roles and responsibilities of principals and SMT’s had the overall responsibility to ensure orientation all staff and learners in line with the guidelines. They would have to make logistical arrangements for the orientation sessions and ensure that all teachers attend an orientation session explaining to staff the leave dispensation that will be applicable for teachers with comorbidities.

Principals were required to submit a complete list of such teachers who could qualify to work from home. The identified teachers were required to submit a leave application form with the required medical report to be submitted to principals. Principals were also required to develop a plan for their schools and oversee the thorough cleaning of the school before the arrival of teachers and learners and the ongoing cleaning and sanitising of the school on a daily basis. Parents were to be kept informed of the plans and the changes to be implemented.
6.5 According to circular guidelines (A56) school buildings had been standing vacant for almost 6 weeks. Because of the short lifespan of the coronavirus, school buildings were safe and hence, there was no need for a deep cleaned. Instead schools need to be cleaned thoroughly with disinfectants such as bleach and sanitiser.

6.6 The applicant on 16 May 2020 addressed a letter to him, as well as to the circuit manager and the chief director districts, Mr Meyer wherein he indicated that although he was prepared to work and contribute towards a smooth phasing in of the education sector during and after the lockdown, he found it difficult to do so “in line with the Minister’s speech” and not with the government gazette declaring that teachers can return as in the case of gazetted law with regard to essential workers, and those under alert level 4. 

The applicant indicated that he had taken a conscious decision that he would only ask non-teaching staff and SMT to report if everything was in place and he can absolutely assure their safety. The applicant indicated that he took this decision to safeguard the employees under his care in accordance with the Disaster Management Act and all relevant legislation thereof.

6.7 As from 13h00 on Saturday, 16 May 2020 no PPE’s were delivered to the school. The circuit manager Ms du Plessis also on the 16th at18h33 forwarded an email to the applicant wherein she undertook to definitely follow up on the delivery of the schools PPE on Monday and they would discuss the way forward on Monday.. On 21 May 2020 at 20h55 the applicant circulated an email to the district director as well as the circuit manager and Mr Meyer as well as himself wherein he confirms that the school received five thermometers, 15 gloves and masks.

He indicated in the email that as a manager of the institution, he feared that without the necessary cleaning materials and sanitiser to thoroughly clean the school he would be violating the Minister’s safety cautionary measures as outlined in the Disaster Management Act for employees to return to work. On receiving this email, he forwarded an email to Mr Plessis at 21h10 also on 21 May 2020 wherein he enquired if they could obtain some sanitiser and bleach from neighbouring school to assist until the applicant stock had arrived.

6.8 On 28 May 2020 at 09h17 Mr Plessis forwarded him a WhatsApp message wherein she confirmed visiting Heathfield High and that she spoke to the applicant re-Facebook post and he assured her that he did not post it. The applicant according to the message had sent the correspondence to the parents and the SGB members and he could only assume that one of them posted it. He responded to Mr Plessis at 09h23 that according to the advice of labour she should follow up with a formal letter both to the applicant and Nigel and a copy must be sent him for records purposes. Mrs Plessis responded to him indicating that she will do it and indicated that she wished that this would not be necessary. In that people are in a period of emotional uncertainty and were angry. They were lashing out and for them (respondent) to go the labour route would just create more anger and instability.

6.9 According to Ms du Plessis a reasonable, rational and conversational approach would reap far better reward and cooperation. On 29 May 2020 at 13h35 under the heading re-school reopening an email (A105) was addressed to him as well as to Mr Plessis and the applicant from Vasoula Baily the SGB chairperson for Heathfield High. The email indicated that further to the applicant’s email they the SGB had after much deliberation reached an unanimous decision not to open the school to learners and educators on 1 June 2020 as it is not safe for any of them to return to the school in that the school wasn’t disinfected as per the OHSA and there was an inadequate supply of disinfectants to receive learners. On 1 June 2020 at 08h56 an email was addressed to him by Ms Bailey wherein she requested to know when Heathfield High School would be disinfected and certified safe as per regulations. The applicant addressed correspondence (A106) to the SGB members as well as grade 12 parents under the heading “Re: The call to not to report to school/work”.

According to the correspondence the applicant indicated there had been an indefinite call by the majority of teaching unions in the sector for their members not to report to school on Monday, 25 June 2020. Unions were of the opinion that the non-negotiable safety measures are not in place and it was not safe for their members to return to school. The correspondence further highlight that the safety demands are, the life of all workers are paramount, they call on all members not to report to school on 25 May 2020, principals continue to monitor receipt PPE’s as promised by the WCED. That the WCED subject its schools to be inspected by the Department of Employment and Labour and compliance certificates are issued for schools only once they are ready. That the Western Cape Government appoint scanners to scan teachers and learners. 

The correspondence ended off indicated that in light of above and outstanding safety conditions at school, the applicant appeals to the SGB members to apply their own minds and to consider an application for the school to remain closed until this matter had been resolved. The letter was signed by the applicant as the principal.

6.10 On 29 May 2020 the Minister of Basic Education promulgated directives regarding the reopening of schools and measures to address, prevent and combat the spread of Covid 19 in National Department of Basic Education. In terms of the Government Gazette (A111) according to paragraph 4 grade 7, grade 12 and School of skills you year 4 are to return to school on 1 June 2020. The same letter that was addressed to the SGB and grade 12 learners’ parents calling not to report to school was posted on 30 May 2020 on posted on 30 May 2020 by the applicant on the schools Facebook page (A123). This type of email calling for schools not to be opened is not permissible in that it amounts to a challenge to the lockdown regulations and they are not allowed to close schools. The applicant as a principal is a member of the SGB, he also represents the superintendent general (Head: Education) and the interest of education.

6.11 On 2 June 2020 (A134-135) the applicant forwarded an email to him, to Ms Plessis and to the staff of Heathfield High School and to the SGB wherein he indicates that he has argued against sending their children back to school to complete a curriculum at the start of the winter season during the height of Covid 19 pandemic. To facilitate exams at the end of the year will be like regularly weighing the pig and expecting an increase in mass. The curriculum and times could and should have been adjusted for the safety of their children and their families. The applicant indicated in the email that he had been told to his face that if he wishes to earn money without working, he must hand over the keys to the school if he does not change his attitude towards the reopening of schools. 

The applicant placed on record that if there school does not receive additional resources required and not just limited PPE’s supplied to schools, they would not be able to sustain the minimum required safety measures as outlined in the relevant regulations. Furthermore, to this it was on record that they have for the past 10 years requested to be moved from the Quintile 5 status where they presently find themselves as per reason given. The applicant concludes that in order to receive learners and to continuous with schooling, he ask that the WCED verify that the school is safe or give him written instruction despite the inadequate measures for the resumption of teaching and learning. The applicant was provided the necessary resources.

 6.12 On 3 June 2020 Ms Plessis conducted an assessment and completed an assessment sheet (A139) wherein she confirmed that the school was ready and the only negative report was that only one general assistant was available. On 4 June 2020 at 10h00 he received a WhatsApp message (A140) from Ms Plessis wherein she reported that the psychologist, social worker and her would be meeting the Heathfield staff and she requested that he joined them. He indicated that he was tied up and therefore he would not make it. Ms Du Plessis did report back that she had a great session at Heathfield and they needed to source additional support for the maintenance and also a few toilets were out of order and they could manage now but they will be challenged with the return of other learners.

6.13 According to Heathfield High School Temporary Revised Education Plan (TREP) (A153) it is recorded therein that currently with the grade 12 learners are stationary and educators move from class to class, the movement of learners were limited and are only permitted to accommodate subjects (split). The Grade 12’s will be at school every day.

6.14 On 3 July 2020 a circular (A154) was sent to all principals of public schools providing for guidelines exemption from public school attendance. The circular indicated that if parent/guardian with a child in a public school do not wish to send their child to school for foreseeable future, then they must apply to the Head of Department. In terms of section 4 of the South African Schools Act, the Head of Department may exempt learners temporary and conditionally from compulsory school attendance, if it is in the best interest of the learner. The time periods of this concession would be assessed from time to time. Parents would be informed timeously via schools when this concession would end. The circular provided for three option, the first option application to exempt a learner with comorbidities temporary from compulsory school attendance; option two application to exempt learners with outcome comorbidities temporary and conditional from compulsory school attendance and the third option was the deregistration of a learner and application for home education.

6.15 On 25 June 2020, Ms du Plessis sent correspondence to him (A180) wherein she reported picketing on Wednesday, which was attended by two principals in circuit 3, Mr Isaac Arendse (acting principal of Steenberg high school) as well as the applicant. According to the correspondence the picket went ahead, outside of school hours from 07h00 to 08h00 on Thursday, 25 June 2020 and the principals left at 07h45 to ensure that they were at school by 08h00, the official start of the school day.

 6.16 On 4 July 2020, a letter (A223) was circulated and signed by Ms Bailey the SGB chairperson that was addressed to parents. The letter addressed to the periods indicated that it was abundantly clear that the WCED and the DBE were not considering the risk of the children endure by coming to school daily. The letter indicated that they had no other option but to strongly urge all parents and guardians not to send the children to school until after the peak of the Covid infections have been reached and until infection rates are decreasing. The letter concluded that the educators would continue to compile distant learning workbooks and resources to ensure that learning continues.

 6.17 Instruction was sent to the applicant advising him to inform the SGB that the instructions in closing the school was unlawful and had to be withdraw. The applicant was instructed to address a letter to the SGB and supply the Head of Department with proof of this. The letter sent by the SGB was never withdrawn.

6.18 On Sunday, 5 July 2020 a letter (A226) was addressed to the applicant by Ms du Plessis containing the exemption forms that must be given to all parents who wish to keep the children at home. The applicant on the same day (A227) responded to Ms Du Plessis and him noting the contents of the letter. Advising that the communication the addressee was referring to was authorised and sent/posted by the SGB and not by him.

6.19 On 6 July 2020 the applicant notified via email (A228) Ms du Plessis and him in that that morning a group of community members held a peaceful demonstration at the school encourage parents not to send the children to school. Subsequently they had no learners at school that day. The police did regular patrols which in his opinion fuels tension and anxiety levels of educators report for duty that morning.

6.20 On 7 July 2020, he visited the school and the applicant raise the issue with regard to general assistance and said that the SGB had employed parents to assist. The applicant undertook to issue a letter to the parents as per his instructions to keep the school open.

 6.21 Section 16A of the South African Schools act provide that the function and the responsibilities of a principal of a Public School is to represent the Head of Department in the governing body when acting in an official capacity as contemplated in section 23. Subsection (2) provides that the principal must in undertaking the professional management of the public school as contemplated in terms of section 16 (3) carry out the duties which include but are not limited to the implementation of all the education programs and curriculum activities; the management of all educators and support staff; the management of the use of learning support material and other equipment; the performance of functions delegated to him or her by the Head of Department terms of this Act; the safe keeping of all school records and the implementation of the policy and legislation. This includes informing the governing body about policy and legislation. Section 20(a) of the SASA that deals with the functions of all governing bodies provides that the governing body of a public school must promote the best interest of the school and strive to ensure its development through the provision of quality education for all learners at the school.

6.22 Under cross-examination reference was made by a media report from News 24 that showed an open letter penned by the principal, Mr Envil Wertheim of Aloe High School that shows a support for school closures. The open letter outlines why the author believes that being back at school during a pandemic is not working or could it be that the learners are generally dropped at school by the rich parents in the luxury sedans and don’t have to contend with the dangers of public transport, which his learners are exposed to? Or could it be that during level 5 and 4 of the lockdown the learners and their families could readily bunker down in their spacious homes, in the leafy suburbs, and that the social distancing the way it was meant to be practice because the grocery cupboards and the deep freezer was stocked up, while his learners could not do that because they live in shacks and indigent homes where social distancing is but a pipe dream? But, at the end of the year, they will be held as institutional excellence while his will be underperforming school. 

He was asked to go and speak to the principal concern although it is not aware of the circulated media post.
6.23 It was suggested to the witness that there was a vendetta by Mr Schreuder against the applicant in that he would not approve the applicant’s appointment as principal. This was because applicant went to the MEC complaining about the school’s Quintile situation. It was further suggested the applicant filed an interdict against the Head of Department.

7. Bronagh Hammon testified under oath to the following effect.
7.1 She is employed by the respondent as the director for communication and had been in that position since May 2018. As to her academic qualification she has a Master’s degree in International Relations and Political studies. Her job involves media liaison, executive support to the Head of Department, dealing with presentation, policy matters she is part of the executive for the respondent. There is a government communication infrastructure system communication policy that covers all government employees in South Africa.

 7.2 The policy is applicable for all communication with the news media including media releases, advisories, statements, interviews, conferences and briefings, letters to the editor, opinion pieces (op eds), technical announcement and other information material given to news media representatives for under the media engagement activities of the government. News media representatives is a collective term that includes but is not limited to reporters, editors, writers and researchers for newspapers, magazines, scientific journals and trade publications, radio or television stations or networks and online news services; bloggers and any other electronic or print media relating to news distribution that could serve as information outlet.

 7.3 Facebook, YouTube and twister is a medium of communication that is covered by the policy. Under the heading government employees as private citizens, the policy provides that any media communication emanating from government employees in their private capacity (blogs, social media post; letters to the editor) must subscribe to the Public Service Act (Act 103 of 1994) and the Code of Conduct for Public servants. Information acquired while on duty must not be used when voicing personal opinions and inappropriate media engagement is prohibited. This refers to engagement that brings the government, its departments or stakeholders into disrepute; undermines the integrity and reputation of the government, its leadership or its stakeholders; presents a personal viewpoint as a position that is held by the Department; disclose a sensitive/classified departmental information without proper authority comments on pending or current legal issues relating to the Department and any media communication representing an employee’s personal opinion as a private citizen not associated with the Department / Province or Municipality does not require any approval. However, government employee must ensure that the media is aware that he or she is writing in their personal capacity in that his or her views represent his personal opinion.

 7.4 There is a circular dated 7 August 2022 issued by the then Head of Education CJ Fourie that was addressed to Chief Director: Directors (head office and EMDC’s), Deputy Directors, Head of Sections at Head Office, Head of Education Institutions, all supervisory personnel and recognise staff association and unions. The circular dealt with the revised communication protocols for human resource management matters. The circular is also found on the respondent’s website. The circular deals with liaising with the press and provides that staff members may not liaise with the press and or other public media directly and may under no circumstances deal directly with enquiries from the press or other public media or politicians. Enquiries of this nature should be referred to the Director: Communication.

 7.5 The respondent has issued guidelines signed on 17 March 2017 by the acting Head of Education that deals with guidelines on social media and social networking in public schools, 2017 and the Western Cape. The guidelines provided when in school environment countless benefits accrued to learners, however the blurring of social and professional lines should be avoided, as it can result in embarrassing or otherwise inappropriate revelations. Attached to the circular is guidelines covering the following aspects, use of social media and social networking, social media in education, role and responsibilities, disadvantages of social media, template for the drafting of school policy on social media and social networking and safety risks relating to the use of social media and social networking by learners. The circular noted that advertisements of political or social nature or promoting the use of liquor, tobacco or any product or any of the school social media platforms are not allowed. Principals were required to bring the attached guidelines to the attention of members of staff and governing bodies. The guideline on social media and social networking in public schools, the purpose of the guideline was to do create awareness about some of the opportunities presented by social media for learners, educators, parents and schools within the learning environment. The scope of the guidelines apply to all learners employees of public schools in the Western Cape. Under the heading employees and learners at public school must give due consideration to the following when using social media and social networking sites privacy and circumspect must be responsibly applied, as any communication may be forwarded to other users and/or places in the public domain. The blurring of social and personal lines is to be avoided, as it can result in embarrassing or otherwise inappropriate revelations, for instance when activities such as to invite, to connect or to follow our instigated between educators and learners on social media educators must be aware that aspects of the profile can be available and visible to other users. Under the heading roles and responsibility it provides that public schools must draw up and publish a policy on the use of social media; inform users that the inflammatory, derogatory, false or offensive comments made on such information shared on the school’s Facebook page or similar platform will be deleted by its administrator; sensitise learners and employees to the appropriate it take for online activities and specify when and for what purpose the use of social media platform is acceptable within the school environment.

 7.6 As evident of the Facebook post (A121) on Heathfield High School Facebook page, although it states please note that this group is not managed by Heathfield High and its staff members but is rather administered by ex-students. It was specifically recorded therein that the administrators were the applicant, Wesley and Wardah. The letter addressed to grade 12 learners and their parents that was posted on the Heathfield High Facebook page (A123) with the headlines “the call to not to report to school/work” was communicated by the applicant in his professional capacity. The respondent received from the Argus newspaper via email (A149) an open letter sent to them by Vincent Hendricks dated 19 June 2020 concerning a letter from concerned principals wherein the principals who co-signed this open letter was Mr Isaac Arends, Mr Noel Isaacs, Mr V Hendricks and the applicant. Open letter was addressed to the South African Government and the just of the open letter dealt with the opening of schools and there was a call on principals elsewhere to speak out against early reopening of schools.

 7.7 There was also news article by News 24 on 24 June 2020 (A171) wherein the applicant told Groundup the Thursday pickets in Athlone and Retreat would highlight the content of the letter. The applicant according to the article told GroundUp that “Heathfield had 3 support staff who were general assistance (cleaners), 2 of whom were off because of risk with comorbidities. And therefore they only had 1 general assistant on site every day who is responsible for cleaning and sanitising and it’s a massive task because it’s the administrative block, all the classrooms, and ablutions for both learners and educators in the walkways. Just impossible for one person to do all that”.

 7.8 The applicant also on Facebook (A172) posted a message addressed to parent/guardian/picket supporters and therein he indicated that as concerned educators and principals, they will be holding a picket demonstration the next morning to protest against the premature reopening of the schools at the height of the deadly Covid 19 pandemic. The applicant called on all parents/educators and community to join them in voicing their concerns. The applicant also posted on his Facebook page 2 videos (A177) showing picketers with placards saying “rather miss a grade than dig a grave”, there was also a video posted (A179) that shows someone holding a placard that reads “Debbie you will soon be tried for murder” The placard was referring to the MEC for Education.

 7.9 The applicant also on Facebook posted (A181) an open letter addressed to the Premier of the Western Government, wherein he recorded they as the SGB of Heathfield high school, cannot stand back in light of unacceptable utterances made by Western Cape MEC of Education Debbie Schafer in an interview on ENCA on 26 June 2020. The message further records that they had made huge sacrifices for the liberation of education for all in this country but they are not prepared to sacrifice the lives of the teachers and children at the school in light of the prevailing Covid 19 pandemic (as per medical scientist and Premier Alan Winde, we are almost at the peak). It is clear, looking at the number of lives lost they are in a real crisis.

 7.10 Further to that the applicant also posted on his Facebook page (A182) an open letter addressed to the MEC Schafer regarding her response on ENCA news. The post further states that they, the young professional of Heathfield High School would like to address the matter discussed in the interview with ENCA news. As young educators entering the profession they find the MEC’s response thoughtless. To say that the principals lacked leadership and label them as …”.

 7.11 As to various videos posted by the applicant on his Facebook page on 1 July 2020 and 2 July 2020 concerning picketing, her take on the videos amounted to spreading of disinformation information on the respondent. At that stage learners and the parents were given choices they could apply for an exemption. The applicant also posted (A206) an article on 4 July on his Facebook page, the heading of the article was “MEC has no idea what is happening in underprivileged schools”. The applicant also on 4 July posted an open letter on his Facebook page (A207), the letter was addressed to the President of the Republic of South Africa as well as the Premier of the Western Cape. The posting concerned correspondence from concerned principals against a premature opening of schools. The article refers to a memorandum where the contents therein were centred on the postponement of the academic year and putting forward alternative dates and plans. It also encompasses solutions to the impasse and make an urgent appeal to the state a category address inequality in education. The article further indicates the memorandum was supported by 126 principals at schools in the Cape Flats, Township, Peri-urban and rural areas in the Western Cape.

7.12 The memorandum that was posted by the applicant on his Facebook page deals with a declaration of demands (A208-209). Also on 4 July the applicant posted a press release under the heading “education crisis: return and opening of schools”. The article refers to progressive organisations (teachers unions, workers unions and civil organisations) meeting to address the health and safety situation of learners, parents, teachers and support staff in the Western Cape. The post records that this formation agrees that the Western Cape Province had become the epicentre of the deadly coronavirus in South Africa and now things had now reached a crisis point. To date according to the post, the Western Cape had recorded 67351 cases that represent more than 50% of the total infection in South Africa. Most tragically, in the rate at which the virus was spreading in the working class areas they demand that grade 7 and grade 12 learners be at school and grade R to grade 11 students remain at home until the virus curve flattens. There will be no phasing in of other grades until the virus curve flattens, the formation rejects the ill-conceived plan to bring back grade 6, 11 and other grade are on Monday, 6 July 2020.

8. Ms Marie Louise Mocke testified under oath to the following effect.
8.1 She is employed by the respondent as a director for recruitment and selection and is responsible for all appointments. As relates to appointments, a school would upload a post, it would then be advertised the governing body would commence with the recruitment process and they after the nomination is referred to the respondent. Once the respondent receives the nomination document is audited in the far as check to see if the process was precision substantively fair. As it relates to the principal’s post that period in confirming an appointment takes between 6 and 8 months. The approval process depends on the availability of the Head of Department to approve an appointment.

 8.2 As it relates to the appointment letter signed for the applicant’s appointment should the Head of education be on leave the point it would be made by someone acting in that capacity. As relates to the applicant this appears to be the position. The closing date (A368) for applications for the principal’s post was on 20 October 2017, the acting Director for Recruitment and Selection signed the recommendation (A369) to appoint the applicant on 9 May 2018. The Chief Director: Districts signed the recommendation on 16 May 2018. It was noted on the recommendation form that the file be referred back to Employment Relations as the District is aware of the pending labour case.

 8.3 On 26 June 2018 the Deputy Director General: Institutional Development and Coordination signed recommending the appointment of the applicant. The acting Head; Education on 3 July 2018 signed the appointment letter to appoint the applicant. The competency basement assessment is conducted to determine the strength and shortcomings of a recommended candidate to be appointed. However should a SGB request training due to competency basement assessment then training would become obligatory. The delay in appointing the applicant amounted two months.

 8.4 As it relates the filling of the deputy principal post at Heathfield high school, the decision was taken after receipt of nomination document respondent decided not to proceed with the filling of the post as recommended by the SGB as the process was found to be procedurally flawed. The Head: Education on 23 October 2019 (A371) noted information file that the co-opted member acted as chairperson of the interview committee during the shortlisting process. Reference was made to section 30(b) of the SASA which states that the governing body may appoint persons who are not members of the governing body such committee on grounds of expertise, but a member of the governing body must share each committee. Should a dispute or grievance be lodged by the applicant, the respondent would not be in a position to successfully defend it. To ensure fairness, the process must be repeated from the shortlisting state with due regard to the above comments.

9. Ms Caren Nicolette Bydell testified under oath to the following effect.
9.1 She holds the post of Chief Evaluator of the Schools Evaluation Authority. They are an independent statutory body to conduct independent school evaluation in terms of the Western Cape Provincial Schools Education Act 12 of 1997. The conduct of education at public schools, they report to the MEC and to various stakeholders as to findings they may make. They evaluated learners’ achievements, quality of teaching, quality of learning, behaviour and safety, leadership and management and governance of parents and community. They were established in October 2019, and they started operating in February 2020 and continue to March 2020. By that time they conducted 8 full evaluations and then they had to stay at home due to the lockdown. When she returned to the office at the end of June 2020 they did not have any work. They had to computerise all reports. She felt that they had to look at the method of evaluation.

 9.2 By the time the schools were starting to operate, she proposed to the MEC that they should re-purpose their evaluations because they could not go in and evaluate in terms of Act. MEC’s response was that they should look at schools’ reaction to the Covid reopening. They needed to see how schools were going to accommodate learners. They did not focus on learners’ achievements, they focused more on teaching methods, rotation and sometimes platooning. They focused on behaviour and safety, governance and leadership. As it relates to how they selected the applicant school, Heathfield High that fell part of Metro South, they selected between 1 and 2 schools out of 5 primary schools and 7 high schools.

 9.3 She is the author of the report dated 21 July 2020 for Heathfield high school (A296-298). She was informed by Mr Maarman the evaluator that she sent to Heathfield High that he was not comfortable being at the school. She also called the circuit manager Ms du Plessis in that she wanted confirmation whether something happened the previous day.

 9.4 According to the report Heathfield High School was notified by her office on 16 July 2020 that it would be evaluated on Tuesday, 21 July 2020. In terms of report, the lead evaluator, Mr D Maarman contacted the school 6 times on 20 July 2020 to confirm the arrangements for the evaluation. The telephone rang the first time but no one answered the call. After initial call, there was no ring tone. Mr Maarman then contacted the principal, Mr W Neumann (applicant) on his cell phone, but the call was not answered. The message was left for the applicant to let him know when he could be called, but did not get a response. The evaluation team arrived at the school at 07h28. By this time some staff members were picketing in the street at the front gate. As there was no one at reception, the evaluators sanitise their own hands and sign the visitors register. At approximately 07h50, the secretary arrived and screened them as per protocol. On their request, the secretary went outside to call the principal who was picketing with other staff members. Two governing body members approach the evaluators and said that they had expected him on Monday, 20 July 2020 and that they must rather leave and make another appointment by the Circuit Manager.

 9.5 The evaluators request to speak to the principal before making such a decision. When the governing body members went to call the principal, Mr Maarman contacted her at 07h53 to inform her about the situation. When the applicant and the 2 governing body members return, Mr Maarman explained that they wish to obtain certain information and an opportunity to explain the purpose of the visit. It was then that the applicant invited the evaluators to his office. He explain and show the video clips of what had happened the previous day when the circuit manager had visited the school. He advised the evaluators not to continue with the visit because he could not guarantee their safety.

 9.6 They agreed that they would not force their way, but that they needed to see at least a few classrooms, the school ablution facilities and the Temporary Revised Education Plan (TREP) and obtain answers to a few questions. Mr Neumann was professional, willing to answer all questions and provide copies of all the requested documentation. He made a Covid 19 file containing all the guidelines and the documents available to the evaluation team. In the meantime, the front gate was locked and teachers stood in the doorway leading to the classrooms. Mr Neumann called the same 2 governing body members, inform them that an agreement had been reached and that they must ask the teacher to allow the evaluators to go to the classrooms and evaluate facility. The evaluation team was accompanied by the 2 governing body members whilst observing the classrooms and ablution facilities. Afterwards, they return to the principal’s office, received the requested document and left the school at approximately 09h10.

 9.7 The report recorded the follows findings. All extra desks and tables were removed from the classroom to accommodate a maximum of 6 learners per class. There was 250 ml bottle of hand sanitiser on each bench or table for each learner with his/her name on it. The school had only one WCDE appointed general assistant, the learners were responsible to keep themselves and the area around them sanitise when they attended school. The ablution facilities for the learners were clean and liquid soap was available. It was not clear how the school regulate the use of the facilities. The evaluators could not observe the screening of staff and visitors because the staff were picketing when they arrived.
9.8 The staff members arrived after the evaluators and joined their colleagues at the gate. When they returned from picketing, the evaluators were meeting with the principal in his office. However, there were 7 stands with hand sanitisers, tables with plastic shields and piles of leaflets with Covid 19 questionnaires in the foyer. The school had completed its TREP and informed parents accordingly. Initially the grade 12 learners attended school, but this was the 3 week that no learners were present. 

Apparently, accordingly the principal, governing body decided not to send children to school anymore and this decision was well supported by the parents. Teachers prepared hard copies of notes for all the grades before the lockdown and handed it out when the schools closed in March 2020. When the lockdown period was extended, teacher distributed learning material by the WhatsApp groups and Facebook. When they discovered that most learners did not have access to e-learning material, it was decided to revert to hard copies. Learners had to sign for and the large majority had collected their notes. The last few batches of notes had included tasks which the learners had to complete at home. The tasks were marked and teachers had invited struggling learners to school to address their specific needs. Six teachers had applied to work from home due to comorbidities. Three applications were declined and two of them have lodged appeals. According to the principal, the school was very well supported by the circuit manager, subject advisors, school psychologists and social workers. It had signed a memorandum of understanding (MOU) with the district office for R71000 for the printing of learning material. The governing body had received donations enabling them to pay the salaries of the 3 teachers it had appointed.

10. Mr Brian Kenneth Schreuder testified to the following effect.
10.1 He retired from the respondent on 31 March 2021, he was a superintendent general for the respondent for 4 years. As to qualifications, he is a qualified teacher with the BSC in mathematics. He was previously a school principal, district director, a director and also deputy director-general.

 10.2 The reporting lines starts with a school, then it is with a circuit manager, the district director, chief director: districts and the deputy director-general.

 10.3 In terms of the South African Schools Act, as a governance and professional management of public schools the governance of every public school is invested with the governing body and it may perform only such function and obligations and exercise only such rights as prescribed by SASA. Section 16 (3) of the SASA provides that subject to SASA and any applicable Provincial Law, the provincial management of a public school must be undertaken by the principal under the authority of the Head of Department. In terms of subsection 4, the Head of Department may close a public school temporary in the case of emergency if he or she believes on reasonable grounds that the lives of learners and staff are endangered or that there is a real danger of bodily injury to them or of damage to property.

 10.4 The Head of Department could close a school with intention to have the school sanitise. Subsection (5) further provides that when the Head of Department decides the school should be reopened, he or she must inform the governing body and the principal of the date on which a school must reopen. Section 16A(1)(a) provides under the heading functional responsibility of a principal of a public schools, provides that the principal of a public school represents the Head of Department in the governing body when acting in an official capacity as contemplated in terms of section 23(1)(b) and 24(1)(f). According to subsection (2) a principal must in undertaking the professional management of a public school as contemplated in terms of section 16 (3), carry out the duties which include but are not limited to the implementation of all education programs and curriculum activities; the management of all educators and support staff; the management of the use of learning support material and other equipment; the performance of the functions delegated to him or her by the Head of Department in terms of this Act; the safe keeping of all school records and the implementation of policy and legislation.

 10.5 A principal in terms of subsection (2)(f) must inform the governing body about policy and legislation. In terms of the Personnel Administration Measures (PAM) the consolidation of the terms and condition employment of educators determined in terms of section 4 of the Employment of Educators Act, 1998, the aim of the job of the principal is to ensure that the school is managed satisfactory and in compliance with applicable legislation, regulations and Personnel Administration measures as prescribed. 

To ensure that education of the learners is promoted the proper manner and in accordance with approved policies. As to duty and responsibility of the job, under the heading general/administrative principal is responsible for the professional management of the public school as contemplated in terms of Section 16A(3) of SASA.. In terms of Regulation 3.6.1 of PAM a principal is to serve on the governing body of the school and render all necessary assistance to the SGB in the performance of the function in terms of SASA; to represent the Head of Department in the governing body when acting in official capacity. In terms of sub-regulation 3.6.1.3 (d) and (e) the principal must inform the governing body about policy and legislation and assist the governing body in the performance of its functions and responsibilities, to assist or participate may not be in conflict with instructions of the HoD; legislation or policy; an obligation that he or she has towards the Hod, the MEC or the Minister; and the provisions of the EEA and PAM, determine in terms of EEA.

 10.6 The lockdown commenced on 26 March 2020.

 10.7 On 24 July 2020 he addressed correspondence (A323-326) to principals of all public schools, the heading of the correspondence “break in schooling”. In the letter he indicated that they have noted the announcement by President Ramaphosa regarding a break in the school calendar. He indicated that he was aware that there were many questions that may remain unanswered but he hoped the following would provide some guidance on how to manage the schools in the weeks to come. He then gave direction as he knew that the schools must have some degree of clarity now, as to schools breaks. He indicated that on 27 July 2020 as announced by the President, that public schools would close for a 4 week period and will open on 24 August 2020. He further indicated that the return of other grades from 24 August. 2020 would be communicated in due course when a decision is made by the National Department of Basic Education.

 10.8 He indicated in the correspondence the break in schooling of the next 4 weeks, however, this did not apply to all grades, nor for all staff. He indicated that they had decided that all learners, teachers and non-teaching staff in the Western Cape would have one week’s break (27 July to 31 July). Staff are not required to be at school during that week. This includes all teaching and non-teaching public service staff. Grade 12 learners, the teachers and non-teaching staff, as determined by the principal for the purpose of ensuring clean and safe running of the school, will return on 3 August 2020. This might include teachers that the principal and expertise required is needed to ensure teaching for all grade 12 learners. Principles must ensure that all grade 12 learners and their parents are informed that all grade 12 learners must be at school for every school day from 3 August. He indicated that he would elaborate on this in a separate correspondence. He further highlighted that all teaching and non-teaching public service staff must return to school from Monday 17 August 2020 to prepare for the additional grades.

 10.9 Another correspondence (A327-328) dated 24 July 2020 was addressed to principals of all public schools in the heading of the corresponding teaching and learning of grade 12 learners. He indicated that following the announcement of President Ramaphosa the previous night, he re-emphasised that all grade 12 learners should firstly be at school every day from 3 August 2020 (except for public and published school holidays), until they start their final National Senior certificate examinations. He indicated it had never been the intention for grade 12 learners be included in any rotation of school attendance in terms of the Temporary Revised Education Plans. Even if online learning can take place, it is not yet deemed to be an acceptable replacement to face to face teaching and learning. He therefore requested that Principals ensure that all grade 12 learners and their parents are fully aware of this requirement.

 10.10 Also on 24 July 2020 (A329-330) he addressed a letter to the applicant the heading thereof, teaching and learning of grade 12 learners at Heathfield High School. He indicated in the correspondence that it had been brought to his attention that the grade 12 learners at Heathfield High School had not attend the school for some time. If this is correct, whatever the reason(s), may be, it is unacceptable. Grade 12 is a culmination of the career of every learner. Some reach this milestone by overcoming several personal and social economic obstacles. Consequently, it is the department's responsibility to ensure that each learner, not only grade 12 make a success of his or her school career. The face-to-face engagement of a teachers with learners remain critical in the pedagogical enterprise which this department will protect at all costs. Despite the fact that the hard lockdown has resulted in erosion of teaching time, there are still sufficient days for effective teaching and learning for grade 12 before they write their final National Senior certificate (NSC) examination later that year. However, they need all their support and commitment as a face the final examinations of the 12 year schooling career. Every opportunity for teaching and learning is an essential and must be utilised fully by teachers to ensure effective and constructive use of the remaining time they have with grade 12’s. In the correspondence he therefore issued the following instructions to the applicant. Ensure that every grade 12 learner and their parent/guardian are informed, in writing of the requirements that every grade 12 learners must physically be at school every day of the week, from 3 August 2020, until the start of the final in the NSC examinations. The only exception is formal school holidays. Ensure that the educators teaching grade 12 learners are on duty and actively teaching grade 12 every day of the school week. This includes support educators from other grades standing in for grade 12 educators who have been exempted due to comorbidity. Inform the governing body of the school, in writing of these instructions in that any instructions or coercion to the contrary fall outside the functions of governance and oversight and are thus illegal in terms of the South African Schools Act. He concluded in the correspondence that the applicant must submit copy of the letters by the close of business that day, Friday, 24 July 2020.

 10.11 He also indicated in the correspondence the a directive had been received from Mr Mweli, the Director-General for the National Department of Basic Education, which urge Provincial departments to implement discipline procedures if an educator refused to report for duty and it’s also outlined the process to be followed if educators take part in any unprotected strike. He was indicated to the applicant that he (applicant) must communicate this to all staff and he ended the correspondence that he trust the applicant will ensure that the grade 12 learners entrusted to his care receive education in that this is their constitutional right so that the preparation of their future is not jeopardised any further.

 10.12 On Sunday, 26 July 2020 the applicant forwarded an email (A331) addressed to him as Head of Education as well as to all media houses. The heading of the email re-cautionary /intimidation letter. The applicant in the email indicated that he felt compelled to reply to his correspondence dated 24 July 2020. The applicant indicated that the reason for the SGB encouraging their near adult children to not come to school is because of very VALID SAFETY reasons. The applicant indicated that whilst he agrees with the witness’s sentiments and the social economic obstacles (of which the applicant has experienced) and also the importance of school combination this pales in comparison to the safety of their children where death could be the alternative. The applicant then indicated that it is unfortunate that as Head of Education the witness resorted to pre-1994 method of issuing instructions in Baasskap manner instead of engaging with the school and the problems that they are presently experiencing so that a solution could have been sought, this would as witness stated gone far towards the possible success of the learners’ academic progress. With the witnesses instructions as issued and the inaccuracies therein. The applicant indicated that he felt aggrieved that his right to be heard “audi alteram partem” had been violated, it was most unfortunate and line with ethos of the witness’s department. The applicant further indicated in the email that a letter would be sent to parents requesting that they send their children to school (albeit in unsafe environment) once the Minister of Basic Education gazettes the new dates for the school year as per the Disaster Management. The applicant further indicated that a copy of the witness’s instructions as per letter copied and will be presented to the SGB. 

The applicant further stated that history is repeat with politicians and bureaucrats that fought battles to the last drop of somebody else’s blood. In this case, it is the blood of there our children. Have stated that that he (applicant) is an educator who is fully committed to supporting the development of children for a better future? The applicant indicated that in future, he would like nothing more than to teach children safely in schools, so that, they can continue with their learning. There exists according to the applicant a global trend to return to the schools only when infection rate has stabilised. To alleviate from this trend is both unintelligent and reckless. The applicant stated therein that in the witness’s letter the witness enjoin Principals to see themselves are public servants who should remain loyal to the decisions of the Cabinet. 

According to applicant the witness did not apply this maxim to himself when he defied the decision with respect to the duration of the closure of school. This defiance according to the applicant, displayed repetitively. In conclusion the applicant stated that he need not be reminded of the very hard fought constitutional rights of the children, and the people of South Africa of which he is a ferrous student and he is committed to education as a youthful progressive leader and foresees many positive and their country’s education system.

 10.13 On 27 July 2020 the witness sent the applicant correspondence (A332) under the heading teaching and learning of grade 12 learners at Heathfield high school. The witness referred to the applicant’s response of Sunday, 26 July 2020 at 20h20 (and co-addressed to all media houses) to his letter of 24 July 2020 in connection with above matter refers. The witness noted the contents of the applicant’s email and his refusal to carry out the witness’s lawful instruction timeously as requested. The witness indicated in the correspondence that the subject line of the applicants email, its content and the tone of the applicant applied was noted and sadly regretted. On this score, the witness indicated that the applicant had no premise to engage the witness in the manner that he did, including disobeying a reasonable and lawful instruction. The applicant was informed that he had totally act contrary to the Disciplinary Code of Conduct as contemplated in the Employment of Educators Act, 76 of 1998. As such, this left the witness with no alternative but to act and consequently redress would now follow.

 10.14 Witness explained that on a day-to-day basis there would be interaction with the Head of Department concerning infection rates, trends, deaths and group infections. At the national level, the national department education and all provincial heads of education meet on a regular basis. The Council of Ministers (MEC) chaired by the National Minister where Heads of Department sat thereon. Whilst under the lockdown, the Department of Education was operating in that people had to be paid. Unions also engaged with the National Minister that includes NEHAWU. The decision taken by the President and cabinet were actually implemented by the Minister of Cooperative Affairs and the Minister of Basic Education. He issued guidelines for the management of Covid 19 in public schools on 25 May 2020. He also on 23 May 2020 issue guidelines as to the roles and responsibilities of school governing bodies (A101-103). Under the heading role of school governing bodies the guidelines provided that SGB’s must continue to ensure that it fulfils its functions as stated in section 20(1)(e) of SASA, “to support the principal, educators and other staff of the school in the performance of their professional duties.” The guidelines further provided that the Covid 19 pandemic required school governing bodies to support the school management team meeting the requirements for health and safety of school community.

 10.15 The National Minister of Basic Education published on 29 May 2020 in terms of the Disaster Management Act Regulations (A107-118) and directions in the Schedule regarding the opening of schools and measures to address, prevent and combat the spread of Covid 19 in the National Department of Basic Education, all Provincial Education Department, all Education District offices and in all Schools in the Republic of South Africa. The objectives was to provide for arrangements for a phase return of educators, officials and learners to schools and offices. The directive’s scope apply to all schools, offices and basic education institutions; learners; educators; and officials. As to the timetable, the phase in return of learners, educators, officials to schools would be as follows Grade 7 and Grade 12 and School of Skills; Year 4 would return on 1 June 2020 and Grade 11 would return on 6 July 2020. Grades 8 and 9 would return on 3 August 2020. The directive further provided that parents who choose not to send learners to school must apply to the Head of Department, in terms of Section 4 of SASA, who may exempt a learner entirely, partially or conditionally from compulsory school attendance, if it is in the best interest of the learner. The directive further provides that parents who choose not to send learners to school is obliged to apply for home education in terms of relevant sections of SASA.

 10.16 On 31 May 2020 he addressed correspondence (A127) to principals, school management teams and staff of all public schools, the heading of the correspondences was “grade 7 and 12 learners to return the next day, 1 June 2020. The correspondence indicated that principals and teachers in the Western Cape schools have been working hard to ensure clean schools, with hygiene and safety measures in place and plans made to receive grade 7 and 12 learners on 1 June 2020 in accordance with the Gazette promulgated last week by the Minister Motshekga. The correspondence further indicated that due to postponement of the scheduled media briefing by the Minister and conflict reports, there was some confusion about the reopening of schools. As a consequence, the Minister of Education in the Western Cape, Debbie Schafer released a media statement that evening informing parents and teachers of the plans for that week and to give assurance. The correspondence further highlighted that the National Department Basic Education had also released a statement that evening titled “Statement on resumption of duty in Basic Education Sector”.

10.17 On 1 June 2020 he issued a further directive (A128-129) the heading schools reopening for learners: 1 June 2020. In the directive he mentioned that while he has seen countless pictures of schools welcome learners and implementing safety measures at schools, he was distressed to also hear of a few schools that may have sent learners home that day who had arrived at school. This he indicated in the correspondence was totally unacceptable and he reminded principals that they are accountable for the safe of learners that have been sent to school by parents. He further indicated in the circular that he was aware of a small number of schools where principals had written to parents informing them not to send their children to school that day. This was in direct conflict with the Western Cape Education Department’s instructions, which is in line with the regulation published in the Gazette the previous week, indicating that the schools are to reopen for grade 7 and grade 12 learners on 1 June. He further highlighted in the circular that only valid reasons for school not to open, as if the required safety measures were not in place. If they are of the view that this was a case, principals were to ensure that they contact their circuit managers so that they could resolve the issue. The circular further highlighted that according to his information not all schools had received material in that they were not there to receive it. In the latter, they must contact their circuit managers to arrange to collect it at their district office. As relates disciplinary steps against principals sending letters to parents to keep the children at home, a decision was taken not to take action and try to indicate to the principal’s concerned because of the confusion about 8 June 2020, he made it clear that all schools must be opened on 8 June 2020.

 10.18 He did not request the School Evaluation Authority to visit Heathfield High and he was unsure if he was given a schedule of evaluations.

 10.19 Since December the last year there were no deaths of learners. Prior to the letter dated 26 July 2020 the applicant did not speak to him. However, the Department engaged with the applicant and other people and he was spoke to.

 10.20 As to what was contained in the correspondence he sent to the applicant, the applicant responded thereto and the subject of the charges were published in the newspaper (A334-335) known as “Die Son”.

 10.21 The Cape Argus on 30 July 2020 published an article “protesters demand an end to victimisation of teachers” the article had a picture of him and the applicant and another person. According to the article the Progressive Organisation Foundation (POF) rallied and marched to the offices of the Western Cape Education Department Head Brian Schreuder the previous day to table their demands and to show support for fired staff over the closure of schools. The group reiterated their demand for the immediate withdrawal of misconduct charges against school teacher Loren Arries-Hendrick who was charged with misconduct for allegedly telling others the previous week not report for work because of Covid 19.

 10.22 The article further recorded that the foundation also demanded that the Department not act against Heathfield high School Principal Wesley Neumann, following his appeal in an open letter to President Ramaphosa and his cabinet to shut down schools until it is safe to return. At the protest there was a poster with his face thereon and therein was written was “son of a bitch” At the demonstration he specifically told Isaacs that he was prepared to speak to the applicant and Isaac took him over to the applicant to where the applicant was standing. Up until then, as far as he can recall he had never met the applicant. He did not know how the applicant looks.

 10.23 Having regard to the applicant’s Facebook post on 23 September 2020 (A356-357) the applicant mentioned that after due consideration and examination of the charges brought against him, he was firm opinion the charge against him were personal and politically motivated. According the post according to the applicant his legal counsel strongly confirms this view. Regrettably according to the applicant this course of action by the Education authorities had been the trend over the last few years where officials take criticism personally and respond by victimising and dismissing teachers.

 10.24 The applicant specifically indicated that he had made a conscious decision to fight the absurd charges and if he is dismissed it would be a small price to pay to be able to obtain his freedom of speech and is right to deliver constructive criticism. The applicant further indicated in the post that it is by time they fixed the rot in the system and give all their teachers the support they deserve to by eradicating this infantile, retributive and punitive system of the department. The applicant’s Facebook post shows that the applicant had not regretted his actions and he says that he would do it again. The applicant cannot incite or urge parents not to send the learners to school. The applicant has shown no remorse and even in his own disciplinary hearing although his representative indicated the applicant would apologise, no apology was forthcoming in the disciplinary hearing. This to him shows that the applicant had no remorse for his actions.

 10.25 Under cross-examination, as it relates to the changing of Quintile classification of Heathfield High schools, this according to the witness is not dealt with by him as Head of Department.

APPLICANT’S EVDIENCE

11. Ms Tania Syce testified under oath to the following effect.

11.1 She is the ex-student of Heathfield High School and was there from 2015 to 2020 when she completed Grade 12. She was part of the Representative Council of Learners (RCL) and also a member of the SGB as the learner representative therein. She is currently studying at the Cape Peninsula University of Technology and is busy with her third year studying medical laboratory science.

11.2 The first term in 2020 was difficult and the second term you could not even imagine when the school reopened as to what was going through her mind. She simply did not want to go back to school. During the period March to June 2020 the study programme required them to fetch work, they worked in groups and they also had a WhatsApp group as a means of communication. In practice they would receive voice messages from the teachers and messages would be posted online. The majority of her class mates were on the WhatsApp group. On 1 June 2020 they were supposed to return to school and that date was changed to 8 June 2020.

11.3 She did not go back to school in that the parents decided to send her back to school. She was suffering from chest pains and suffered from anxiety attacks having to return to school considering the pandemic. She was aware that some of her classmates return to school. Her mother was part of the SGB and according to her understanding during July month not many of the learners were at school.

11.4 She protested with her mother and with other learners from other schools before school. During the period 3 to 6 August 2020 most grade 12’s were at school. Prior to Covid they would move around between classes and during 2020 the subject teachers would come to their class. Prior to Covid there were 40 to 50 learners in a class and during Covid there was about 5 learners in a class. They were not allowed to get up out of their seats. She felt isolated and alone and felt like she was in prison. After returning to school there was no protest action. The marks achieved for the matric class of the year 2020 was better than the previous year. During the period 18 March to 3 August 2020 she only went to school to fetch work. She took 7 subjects and had to collect 7 workbooks.

11.5 After 8 June 2020 after the other the grade 12’s return to school, she stayed at home on her own. She thinks that her parents applied for an exemption for her.

12. The applicant testified under oath to the following effect.

12.1 On a question about Mr Stander’s testimony that he had a fatherly chat with him, the meeting with Mr Stander materialised sometime in July 2020. The meeting was with Mr Stander and Ms du Plessis the acting circuit manager. The meeting was not a fatherly meeting, he was given an instruction to issue a letter that the school was open for learning and he had to circulate the letter. He expressed his concerns concerning safety, the lack of sanitisers and the lack of resources. He also indicated to Mr Stander that he was anxious. Mr Stander dismissed his safety concern and indicated that he is safer at school than at the Spar supermarket. He had expectations that Mr Stander would address his concerns and the attitude of Mr Stander was that if other schools could do it why could he not do it.

12.2 On a question concerning Mr Stander’s testimony that he had requested 2 principals to speak to him before he was charged. He listened to Mr Stander who made a misrepresentation in that he was formally charged. A debate started in the media concerning him going to be charged. Mr Najaar was one of the people that was part of the debate, Mr Najaar was part of the Progressive Principles Group. It came to Mr Najaar’s attention that he (applicant) was unhappy about what Mr Najaar had said. The meeting was arranged with him, Mr Najaar who had phoned him a Friday in the afternoon. On the Tuesday, both Mr Najaar and Mr Charthia a former principal met with him and with one of his deputy principal’s. This was around October/November 2020 this was after he was charged. Mr Johann Thompson was the deputy principal. Mr Najaar told him that he could arrange a plea with a lesser sanction as in the case of Mr Baker who got a sanction short of dismissal.

12.3 He took an interest as to what was happening with regard to the pandemic. As to him having to be at school from 1 June 2020, his role at school was to receive PPE’s, this was for 3 ½ weeks but none arrived. A lot of senior officials, asked him on the WhatsApp group about the rival PPE’s, his union asked him to be there and he was not happy. Prior to 1 June 2020 they asked for assistance in that they were not happy with the Quintile ranking of the school as a consequence to the wrong rating income received from the department was poor.

12.4 As to toilets, they had 18 toilets and only 3 were in a working order. The infrastructure of the ablution was poor and this inherited. The taps were also not working, they got a health report from department of health inspectorate from the City of Cape Town, that was in 2018 when he was acting as principal. They had a staff component of 30 educators and 3 were SGB employees. However, at the time of the pandemic 15 educators and support staff who suffered from comorbidities’ stayed away, this included both his deputies.

12.5 He emailed an abridged report (B51) on 8 June 2020 to his superiors, wherein he recorded that there were 101 out of 123 grade 12’s present at school and that all learners were undergoing an intense orientation programme. For record purposes he indicated that Heathfield High School had not received spray bottles, aprons, bleach (only initially 2), shoe covers, close for learners and educators, floggers for the classroom, liquid soap. There was no face shields and only masks. He indicated in the report that that the school had not been sanitised. That no support staff had been allocated to help with temperature screening, deep cleaning and monitoring. He also mentioned in the email that they had two out of three of the support staff on special leave due to comorbidities. Therefore, daily cleaning and sanitising of the school would be virtually impossible.

 12.6 A collective grievance (B13-15) was submitted by PAWUSA on behalf of its members who were station within the jurisdiction of Metro South Education District. Three of the support staff were members of PAWUSA. The collective grievance concerns the unhappiness of general assistance having to sanitise and disinfect classrooms and other areas of schools as relates to preventing the spread of the deadly virus Covid 19.

12.7 As relates to the article (B72-74) in the Mail and Guardian on 14 July 2020, SADTU had called for the immediate suspension of school reopening until after the Covid 19 peak arrived in the country. The article quoted “We must first deal with the health issue: we must make sure that the infections are reduced, the infections are avoided; we can prevent the loss of life, and then we can go to the other issues that need to be addressed.” He is a member of SADTU and serves on a branch of the union for 12 years and is an elected office bearer.

12.8 The impact of Covert 19 on Heathfield High resulted in him being verbally attacked by one of his departmental heads in that one of the staff member’s parents passed on because of Covid. As it relates to staff members contracting Covid, 2 educators, Mr Sidikwa and Mr Domas or Mr Hechter contracted Covid.

12.9 Heathfield High School is no fee school and a Quintile rating would determine how much funds (subsidy) a school receives. Heathfield High had rated as Quintile 5 and this meant they received R262 000 per year. This is the same that a Model C school receives, the lower a Quintile rating the more funds the school receives.

12.10 He admits that he posted (A123) on Facebook a message addressed to Grade 12 learners and parents, the heading of the post was “re-the call to not to report to school/work” message indicated that they had been an indefinite call by the majority of teaching unions in the sector for their members not to report to school from Monday, 25 May 2020. The message further read that the unions are of the opinion that the non-negotiable’s safety measures were not in place, and it’s not safe for their members to return to school. The post further indicated that in response to the call by the unions, number of staff members had not report to school and the same can be expected on Monday. The school management team, supported by the SGB decided that they are not ready to receive grade 12 learners on Monday. Parents, must be absolutely certain that all safety measures are in place before the children returns, as at school, the child’s health and safety is in his (applicant’s) hands.

12.11 Heathfield High School attendance on the following dates reflected following: 9 June 2022, 80.5% 123/99; 10 June 2020, 57.7%, 123/71; 11 June 2020, 66.7%, 123/82; 12 June 2020, 91.7%, 123/112; 15 June 2020, 91.8%, 123/113; 17 June 2020, 90.2%, 123/111 and 19 June 2020, 65%, 123/80.

12.12 As confirmed in the SGB emergency meeting minutes (B245-247), he advised the SGB that any decision they may take must be in line with legislation, and only the HoD may close the school. He further indicated to the SGB that learners not come to school would put the SGB in conflict with legislation, however it was up to the SGB to weigh up the pro’s and con’s concerning the safety of the learners and educators.

12.13 He explained the process of parents seeking exemption for learners not attending school and he handed out the forms. Some applied but there was no closing dates.

12.14 He sent out an invitation (B70) for an emergency grade 12 parents meeting on 9 July 2020 and indicated that the purpose of the meeting was to address the grade 12 academic programme for 2020 whilst they were experiencing the Covid 19 pandemic during extreme winter conditions.

12.15 As relates to the exemption forms by 21 July 2020 he had most the forms in. He however had questions with what would happen if a child was absent for more than 20 days, will the child be deregistered? He enquired about whether such a child be allowed to progress to the next level? He was told by Ms du Plessis to hold onto the exemption forms and she never returned to collect the forms. He was involved as a member of his union for the closure of schools until after the peak of the infection and was also part of the progressive principals forum.

12.16 As it relates to his Facebook post (A185) calling on principals and teachers to picket on Thursday, 2 July 2020 in the corner of Joe Marks and Prince George drive, permission to picket was not sought by him nor was permission granted. He further confirmed posting (A188) on his Facebook page containing 5 photographs showing the following caption “increase to resistance against the premature opening of schools.” “Now whilst infections are increasing intensify” he posted this as he was 1 of the 4 principals involved in organising the picket.

12.17 He further confirm posting a message (A201) of Facebook on 3 July 2020 wherein he called for the increase in the resistance against the premature opening of schools. The post also called for the closing of schools now whilst infections were increasing.

12.18 As it relates to the article (A202) in the newspaper with the caption “MEC has no idea what is happening in underprivileged schools” he did not write the letter. He did however repost (A206) the article on his Facebook page on 4 July 2020.

12.19 As it relates to the email (A205) sent by Fiona Southgate, wherein she recorded “As the SGB of Heathfield High School, we have come to a unanimous decision to close down the school until after the peak of the Covid 19 infection”. He phoned Fiona and told her that she could not make such a statement in her email.

12.20 He did receive an email (A224) from his circuit manager, Ms du Plessis wherein she addressed the email sent out by the SGB concerning the school’s closure, the circuit manager informed him that the SGB letter had to be withdrawn. The circuit manager further indicated that he is the respondent’s representative on the SGB and he will have to provide direction in this regard and it will have to be minuted, despite his personal views. The email further indicated that if parents chose to keep their children at home, that’s their prerogative, however, no one can/must instruct them to do so.

12.21 On 6 July 2020 he forwarded an email (A228) to Mr Stander and Ms du Plessis informing them earlier that morning that there was a group of community members who held a peaceful demonstration at the school encouraging parents not to send their children to school. Subsequently they had no learners at school that day. The police did regulator patrols which in his opinion fuelled tension and anxiety levels of educators reported for duty that morning.

12.22 During the period 5 July 2022 to 3 August 2020 there were no learners at the school and therefore there was no formal lessons.

12.23 As it relates to the report (A292-293) compiled by the circuit manager Ms du Plessis as to the report that 15 grade 12A learners who was scheduled to meet at 09h00, were prevented from entering the school premises by the community members. He did not personally see learners being prevented from entering the school.

12.24 Under cross-examination, in responding to the charges regarding “Charge 2” where he was accused that on or about 24 July 2020, as principal of Heathfield High School, he failed to carry out a lawful order or routine instruction without just or reasonable cause issued to him by Mr Schreuder, Head of Education to issue a letters to parents of Grade 12 learners ensuring that they attend school from 3 August 2020; ensuring that educators teaching Grade 12 learners are on duty and teaching the learners every day of the school week and inform the school governing body in writing of these instructions in that instructions or coercion to the contrary fall outside the functions of governance and oversight of the SGB and to submit copies of the above to Mr Schreuder, by the close of business on 24 July 2020 . He complied with instruction and therefore he is not guilty.

12.25 As to Charge 3 where it was alleged that he displayed disrespect towards Mr Schreuder, in the workplace or demonstrated abuse of or insolent behaviour towards him by remarking as follows: “You resort to pre-1994 methods of issuing instructions in Baasskap manner instead of engaging with the school” and “With your instructions as issued and inaccuracies therein” and “To deviate from this trend is unintelligent and reckless.” And “You clearly do not apply this maxim to yourself when you defy cabinet decision with respect to the duration of the closure of school.” And “This defiance you have displayed repetitively.” He indicated that he is not guilty on this charge, there was a context to what he wrote and it was not his intention to be disrespectful.

12.26 As to the charge alternative 2 to charge 4, where it was alleged that on or about 26 July 2020, he committed a common law offence, in that, as Principal of Heathfield High School he allegedly acted in a manner as to bring the Western Cape Education Department into disrepute, by including in his correspondence “All Media Houses” in the email he addressed to Mr Schreuder. The applicant indicated that he is not guilty on this charge in that he did not send the letter to all media houses.

12.27 As to charge 5 that during the period May to July 2020, as Principal of Heathfield High School, he incited personnel and or learners, and or community to undertake unprocedural and or unlawful conduct not to attend school or to report for duty during the Covid 19 pandemic via social media platforms. The applicant indicated that he is not guilty on this charge in that he did not incite anyone.

12.27 As to the alternative to charge 6 that the applicant failed to comply with or contravene EEA, to be read with the Public Service Regulations and or the Western Cape Social Media policy and/or the personnel administrative measures (“PAM”) in that during June and July 2020, he as principal of Heathfield High School on social media platforms distributed pictures and all posted videos on Facebook and / or; posted or distributed statements and/or commentary; and/or irresponsibly criticise the government policies. On this charge the applicant indicated that he is not guilty in what he did was not unlawful to his knowledge.

12.28 On a question why he did not agree to the competency test, the applicant indicated that that was not part of the requirements for the post. As it relates to the induction course during January 2019, this course he did not attend and that he never saw the invitation. He further confirmed that he did not ask for any induction training.

13. Ms Jacqueline Catherine du Plessis testified under oath to the following effect.

13.1 She started teaching in 1985 and joined as a district subject advisor in 2007. In 2014 she was project manager for underperforming learners. She officially retired in October 2019 and went on contract as the circuit manager until December 2020. She was circuit manager for 20 high schools stretching from Simon Stone to Heathfield High.

13.2 In October 2020 she attended a meeting with Anwar Allie, Grantwell Stander. This was in preparation of the disciplinary hearing. She received a notification to attend a disciplinary hearing, she thinks she received it from Mr Allie. Thereafter, there were two subsequent meetings regarding the disciplinary hearing. There was an online meeting where Council was involved. Mr Sali Fayker who was the Director of CR attended also attended the meeting. The third meeting was with Ms Williams, Mr Alllie and Melapi.

13.3 As to her attitude with regard to interaction with the applicant, she was asked on several occasions to report what was going on at the applicant school. She contacted the chief director, Mr Meyer and asked him if the applicant was being targeted. She felt that there was something was afoot. In the meeting with the respondent’s lawyers, she was asked whether she would support the applicant dismissal and she expressed that an organisation that dismisses someone with an alternative view is a weak organisation in that we need to engage.

13.4 She only became Heathfield High School’s circuit manager in January 2020. She had a principals meeting and that is where she met the applicant for the first time. There was a case of a teacher who was on contract who not converted and this was her second encounter with the applicant. In March 2020 she had an expulsion engagement with the applicant. She found the applicant an approachable person, a thinker and he came across as someone who wanted answers. The applicant was always professional and respectful. As it relates to statistics as found at B57 she requested the stats when the number of Grade 12’s dropped. She would personally call schools and asked why the learner numbers were dropping. She wanted to know why learners were not present at school and how they could get them to come to school.

13.5 On 1 June 2020 she went to the applicant school in the afternoon. The applicant was not there in the morning. The applicant and his deputy when she visited the school were preparing the venues. The applicant mentioned to her his fears and that he told her that he was not comfortable with opening in that no one had come to him and say that the school was safe to open. She enquired from applicant what would convince him, he said that if they could get the Department of Employment and Labour or Education to come certify that it was safe. This was the stance of all the unions. She enquired whether she could serve as a person in Education to certify that the place was safe and the applicant agreed thereto.

13.6 On either 2 or 3 June 2020 she did a walkabout of the applicant school with a checklist. She asked her assistant officer to do the same at other schools that had the same concerns. In her finding she found only three taps working and either the girls or the boys’ toilets were not functioning. Due to the fact that only the Grade 12 learners were returning, she enquired whether it was possible for the learners to use the staff toilets. There was only one general assistant and she told him that they were only going to have grade 12s and therefore they should manage with one general assistant. She then sent a message to Mr Stander that the school could open for now.

13.7 The only interaction she had with the governing body was about safety of the school prior to the opening of the school. They wanted to know who would validate their safety. She told them that the Department of Employment and Labour could not come and inspect the school. She received a WhatsApp message that the SGB had urged the parents to keep the children at home. She then drafted an email to the applicant so that he could retract the post. The applicant response was that he did not make post and it was the SGB that did it. There was however a post on Facebook that the school was not safe. On 3 July 2020 one general assistant was off sick. The SGB then met on 4 July 2020 and there was a request that the SGB try to get someone to come sanitiser the school because the general assistant was absent. A concern was raised that the grades 10 and 11 were supposed to return on 6 July 2020 which meant that over 400 children would be present and the school had not been sanitised. There was no explanation as to when the general assistant would be returning it was on this basis that the applicant requested the SGB to meet to discuss how to manage the situation.

13.8 As to the correspondence she addressed to the applicant on 5 July 2020 (B67) instructing him that the letter concerning the closure sent by the SGB had to be withdrawn. The applicant responded to her that he did not authorise nor did he send the post, it was done by the SGB.

13.9 On 6 July 2020 no learners attended school and on 7 July 2020 Mr Stander and her, visited the applicant’s school and the applicant was told by Mr Stander that he should issue a letter to the parents stating that the school was open. The applicant responded that he had a letter already that he issued to the Grade 12’s to invite the parents to a meeting to discuss, the reason for the school closure and the importance. She can recall that she and Mr Stander had two meetings with the applicant, the other one was in September 2020 to discuss an expulsion letter.

13.10 Her perception as to the charges concerning attendance, the Covid numbers were on the increase there were more and more educators who were self-isolating despite all of this, the teachers were at work. The Western Cape were leading in the infection numbers. The school closed on 24 July 2020.

13.11 In relation to the exemption application forms correspondence was addressed to the school (A226) wherein she requested the applicant to issue the documents to all parents who wish to keep their children at home. Only 85 actual exemption forms were handed in on 20 July 2020. On 3 August 2020, 59 Grade 12 learners attended school therefore 50% pitched up. She left the forms with the applicant in that not all the forms had been submitted. The applicant want to know firstly would their children be deregistered if they did not attend school. Whether those who were not attending school would be allowed to write examinations and would they be allowed to attend school in 2021. She escalated the applicant’s enquiries to Ms De Klerk by sending her an email on 20 July 2020. Ms de Klerk never reverted to her. As to the exemption process nothing happened. She was not contacted by any other parents at Heathfield high school requesting that the children stay at home.

13.12 As from 3 August 2020 her perception as the numbers attending school was good. She confirms that she did not give the applicant the social media policy and she herself had never seen said policy.

13.13 She confirms that at that the applicant’s disciplinary hearing she expressed some strong comments about the process and felt that this case was brought about because of a bruised ego. She did not find any merits in the case against the applicant. The applicant is a dedicated principal he served on the district sports committee, he debated issues. These are the type of people you need in education, they do not need compliance officers. However, on the other hand she believes that Mr Schreuder felt insulted and aggrieved by the applicant response to his letter and at no point did Mr Schreuder engaged the applicant nor her. She did engage the applicant about the letter and felt the case would not have come so far had there just been a discussion between the applicant and Mr Schreuder. She does not agree that the trust relation had broken down irretrievably and trust is a two-way street.

13.14 The instruction given to the applicant was to issue a letter. The teachers were at school from 2 June 2020, they were handing out workbooks to grade 8 to 11 and grade 12 were present from 8 June 2020. After a short break after 1 August 2020 the grade 12’s return back to school. From the beginning she was against the action taken against the applicant. The education sector would be poorer without the applicant.

13.15 Under cross-examination it was placed on record that 99% of the media releases was from the applicant. The witness confirmed that the applicant indicated that he was advised by his union not to put things on Facebook. She did not give the applicant permission not to process the exemption forms. She told him to submit the forms. The closing date for submission of exemption form was 31 July 202.

13.16 Under re-examination, the witness confirmed that she had between 3 and 4 interaction with the applicant and the applicant was physically at school during the period. She had other interactions via phone calls and emails and text messages with the applicant. Out of 123 grade 12, 120 wrote the exams.

14. Mr Noel Isaacs testified under oath to the following effect:

14.1 He had been employed in the province for 37 years and 16 of those was as principal. Usually you see a circuit manager twice a term when the visit schools and the district director may visit twice in four years. The head of Department never visits and Mr Schreuder visited his school once in that he came to congratulate the staff about their performance. He is also the chairperson of the ELRC chamber for the Western Cape and is the Labour representative. Each year Mr Schreuder would come to the ELRC chamber to do post-provisioning. He is a member of SADTU since the conception of the union. He was previously the chairperson for the southern suburbs branch and currently he is the regional chairperson. There is a principal’s forum. Each circuit has two representatives to sit on the district forum and East District as to delegates to sit on the provincial forum.

14.2 In the 2020 pandemic on a question how did SADTU respond to the pandemic, they did not have a face-to-face meeting so meetings were held virtually. The union members at ground level felt that the union was not vocal enough, not coming out with a strong enough message. The union did send out a letter by the provincial secretary to its members. The union indicated that it was important for them as SADTU in the province to add their voice in the current discussion and debate concerning the readiness of their schools. The correspondence further highlighted that although the respondent had constantly indicated that the province was ready to receive teachers and learners, SADTU Western Cape was not convinced. They also in the letter notified their members that the union had lodged a complaint against the respondent on 18 May 2020 with the Department of Employment and Labour with regard to non-compliance of Department of labour and Employment Gazette number 43257. The Department of Employment and Labour acknowledge receipt of the complaint but no action was taken to date.

14.3 The union called on the respondent to stop threatening their members with disciplinary action. There was a stay-away that SADTU initiated on 6 July 2020. On 6 July 2020 he sent out a letter to the school parents indicating that he could not guarantee their children’s safety. He was fearless but had to put forward a brave face at his school. One of the teachers at his school contracted Covid and the teacher ended up in hospital.

14.4 Under cross-examination the witness was referred to exhibit A263 where SADTU called for the closure of schools, according to the article the union secretary said he had not instructed their members to stop working.

ANALYSIS OF EVIDENCE AND ARGUMENT

15. The applicant presented arguments that he was unfairly targeted. The applicant suggested that the reason why he was targeted was that he lodged a complaint with the MEC against Mr Schreuder as it relates to the Quintile rating of the school. As explained by the applicant Quintile rating is influenced by the social economic factors of residence where the school is situated. The more impoverished the area where the school is situated due to parents not being able to pay school fees would receive a higher rating. The rating is between 1 and 5, and a rating of 5 is similar to what the Model C School is rated in that the parents of the learners at such schools are financially able to pay school fees. Whereas, an impoverished area would be rated either 1or 2. The problem with the locality of Heathfield High School is that where the school is located is not an impoverished suburb. However, the children that attend Heathfield High School come from outlining impoverished areas whereas children reside in the area where the school is situated did not attend Heathfield High School but other more affluent public schools. 

Mr Schreuder testified that as Head of Education he did not deal with the school Quintile rating. As far as I’m concerned there was not an iota of evidence presented by the applicant to support that he had been unfairly targeted. Should he argue that he was targeted due to his response to Mr Schreuder correspondence addressed to him, I am of the view that should you step on the tail of the snake it will puk you. I am not of the view that the disciplinary action taken against the applicant was contrived and instituted with ulterior motive. Had the applicant apologised to Mr Schreuder with sincerity for what was contained in the letter he addressed to Mr Schreuder I’m certain the outcome would have been different. I disagree with the notion that the evidence of the School Evaluation Authority supported the applicant’s case that he was targeted. Mr Schreuder did not them to do evaluation of schools where grade 12 learners were not attending face to face learning, it was the MEC who gave the instruction. It still does not mean that the applicant was targeted. It must be noted as testified by Mr Schreuder that he received correspondence from the Director General of the National Department of Basic Education insisting that disciplinary action be should be taken against educators go on an unprotected strike. 

This correspondence in my view appears to be the catalyst in the letter addressed to the applicant. The school’s evaluation report submitted by the school evaluation authority was not negative or prejudicial to the applicant.

16. Should I be wrong in this regard, I’m reminded of the matter between the National Director of Public Prosecutions v Zuma (573/08) [2009] ZASCA 1 (12 Jan 2009), wherein the Supreme Court of Appeal dealt with improper purpose and political considerations when determining whether to prosecute. The SCA held at [37] and [38] as follows:

“[37] The court dealt at length with the non-contentious principle that the NPA must not be led by political considerations and that ministerial responsibility over the NPA does not imply a right to interfere with a decision to prosecute (para 88 et seq). This, however, does need some contextualisation. A prosecution is not wrongful merely because it is brought for an improper purpose. It will only be wrongful if, in addition, reasonable and probable grounds for prosecuting are absent,36 something not alleged by Mr Zuma and which in any event can only be determined once criminal proceedings have been concluded.37 The motive behind the prosecution is irrelevant because, as Schreiner JA said in connection with arrests, the best motive does not cure an otherwise illegal arrest and the worst motive does not render an otherwise legal arrest illegal.38 The same applies to prosecutions.39

[38] This does not, however, mean that the prosecution may use its powers for ‘ulterior purposes’. To do so would breach the principle of legality. The facts in Highstead Entertainment (Pty) Ltd t/a ‘The Club’ v Minister of Law and Order40 illustrate and explain the point. The police had confiscated machines belonging to Highstead for the purpose of charging it with gambling offences. They were intent on confiscating further machines. The object was not to use them as exhibits – they had enough exhibits already – but to put Highstead out of business. In other words, the confiscation had nothing to do with the intended prosecution and the power to confiscate was accordingly used for a purpose not authorised by the statute. This is what ‘ulterior purpose’ in this context means. That is not the case before us. In the absence of evidence that the prosecution of Mr Zuma was not intended to obtain a conviction the reliance on this line of authority is misplaced as was the focus on motive.41

36 Beckenstrater v Rottcher & Theunissen 1955 (1) SA 129 (A); Relyant Trading (Pty) Ltd v Shongwe [2007] 1 All SA 375 (SCA). For Canada: Prouxl v Quebec (Attorney General) 2001 SCC 66, [2001] 3 SCR 9.
37 Thompson v Minister of Police 1971 (1) SA 371 (E) 375A-D.
38 Tsose v Minister of Justice 1951 (3) SA 10 (A) 17.
39 Beckenstrater v Rottcher & Theunissen 1955 (1) SA 129 (A).
40 1994 (1) SA 387 (C). The correctness of this judgment does not arise for decision
41 Beckenstrater v Rottcher & Theunissen 140B-F. “

17. The majority of the evidence against the applicant is based on documentation such as extracts from social media posts and print media. The applicant was dismissed on specific charges, the first it was alleged that the applicant as principal of Heathfield High School failed to carry out a lawful order or routine instruction without just or reasonable cause, issued to him by Mr Schreuder the Head of Education to issue a letter to the parents of Grade 12 learners ensuring that they attend school from 3 August 2020; ensuring that educators teaching grade 12 are all on duty and teaching the learners every day of the school week; and or inform the school governing body in writing of these instructions in that the instruction or coercion to the contrary falls outside the functions of governance and oversight of the SGB. The applicant was to submit to Mr Schreuder by the close of business on 24 July 2020 letter he has written. The applicant never issued letters as instructed and instead he forwarding Mr Schreuder letter to the SGB in my view this does not amount to him issuing a letter to the parents and the SGB. The reason why the SGB need to be informed in writing is that by closing the school they fall outside the function of governance and oversight in that only the Head of Education can do so. The instruction was not unlawful and not unreasonable it was not for the applicant to refuse the instruction based on his interpretation of the lockdown regulations. As testified by Mr Schreuder before regulations are issued there are internal consultations with the various stakeholders and therefore he would have been aware before the promulgation as to what was to come. 

I agree that the instruction for the applicant to provide Mr Schreuder with copies of letters addressed to the parents and to the SGB by the close of business on 24 July 2020 was unreasonable. However, the applicant subsequently did not provide Mr Schreuder with such letters.

18. As relates to the charge that the applicant displayed disrespect towards Mr Schreuder, the Head of Education in the workplace or demonstrated abuse of or insolent behaviour towards him by making the following remarking: “You resort to pre-1994 methods of issuing instructions in Baasskap manner instead of engaging with the school” and “With your instructions as issued and inaccuracies therein” and “To deviate from this trend is unintelligent and reckless.” And “You clearly do not apply this maxim to yourself when you defy cabinet decision with respect to the duration of the closure of school.” And “This defiance you have displayed repetitively.” Having regard to contents of the correspondence the applicant sent Mr Schreuder, the comments showed disrespect, by telling Mr Schreuder that he is resorting to pre-1994 methods of issuing instructions in a Baasskap manner instead of engaging with the school has unfortunately a racial under tone that makes what he wrote more serious. By telling Mr Schreuder that he is unintelligent and reckless and that Mr Schreuder was clearly not applying the maxim to himself when he defied cabinet decisions with respect to duration of the closure of schools that he is defiance is displayed repetitively. In my view this amounts to an act of gross insubordination not only insolence in that what the applicant is doing is challenging the authority of Mr Schreuder. The reference to pre-1994 and baasskap in my view ultimately implies that Mr Schreuder is a racist or demonstrating the mentality of an apartheid racist boss.

19. As it relates the charge that the applicant acted in such a manner as to bring the Western Cape Education Department into disrepute by including “all media houses” in the aforementioned email address to Mr Schreuder by the applicant. The applicant denies that he circulated the email to media houses, however the email in question was published. I simply do not believe the applicant when he says he did not circulate the email address to Mr Schreuder to media houses. Why insert as an addressee to all media houses where you have no intention to do so? Considering the frequency and excessiveness of the applicant’s Facebook posts the probabilities favour the conclusion that the email was circulated to media houses by the applicant and that is why the contents of the correspondence was published and therefore on this charge the applicant is guilty.

20. On the charge that the applicant incited personnel and learners in the community not attend school or to report for duty during Covid 19 pandemic via social media platforms, the posts speak for themselves. By indicating that you are the principal of a specific school as the person distributing posts calling for the closure of schools, for parents not to send learners to school and for educators to stay away from school/work amounts to an act of incitement. Reposting and sharing press releases in the form of a Facebook post that includes calling for the increase in the resistance against the premature opening of schools and close schools now while infections are increasing amounts of the act of incitement. Furthermore, one needs to do no more than to peruse through both the applicants bundle and the respondent’s bundle and the posts speak for themselves. I found the applicant guilty on this charge as well. When the applicant testified having regard to the excessive postings and volume of posts by the applicant I enquired from the applicant whether social media had become a compulsion or an addiction for him. The applicant indicated that he was not addicted.

21. As to the charge of the applicant breaching Public Service Regulations, the Western Cape social media policy and PAM during June and July 2020 he is principal of Heathfield High School disrebute pictures and or posed videos on Facebook and posted or distributed statements or commentaries and are irresponsibly criticised Government Policies. The applicant claims that he was not aware of the social media policy and Ms du Plessis confirmed that she had never seen the policy. However, some rules are so known that there is no need for them to be displayed or published. Firstly the evidence of Ms Hammon was that the policies are found in the respondent’s web site. Distributing pictures, post and videos on social media such as Facebook as well as statements and commentaries that amounts criticising ones employer amounts to an act in bringing the employers good name into this repute. The applicant was also told by his union to stop posting on Facebook. I therefore find his guilty on this charge as well.

22. As it relates to the challenge of inconsistency what the applicants refers to as different strokes for different folks. The applicant was not dismissed one charge alone, other than other employees waging social media campaign against the respondent those individuals the applicant chose as a comparator did not make themselves guilty of insubordination and displayed disrespect in the manner the applicant did towards Mr Schreuder, the then Head of Education.

23 Was the sanction of dismissal unfair for the contraventions committed by the applicant? It should be noted that the applicant lodged an appeal against his dismissal and the MEC as an alternative to dismissal offered the applicant a demotion to the position of departmental head. The applicant unfortunately chose not to accept the demotion. As testified by Mr Schreuder the applicant had an opportunity to apologise at his disciplinary hearing for his behaviour and no such apology was forthcoming. Ultimately the Facebook post referred to by Mr Schreuder subsequent to the applicant’s dismissal demonstrates that the applicant has shown no remorse, the applicant has intimated that he would do so again if faced with the same situation. The applicant was a salary level 4 principal and considering the level of media coverage that includes social media, in my view had the respondent not dismiss the applicant this would have sent out a message to other principals that it is okay rubbish on social media the name and reputation of the Head of Education or any other official in management position. 

I do agree that it is unfortunate that the respondent has lost competent teacher who is popular unfortunately in my view the respondent had no choice. What does concern me during the arbitration, when Mr Schreuder testified the applicant could have apologised to Mr Schreuder and no such apology was forthcoming. Simply put, the applicant has shown no remorse for his actions. The sanction of dismissal is appropriate under the circumstances. The fact that Ms du Plessis and Mr Stander expressed the opinion that they could work with the applicant in future does not lend itself automatically to a finding that the trust relationship had not been breached irretrievably. In determining whether there is a breach in the trust relationship one must have regard to the seriousness of the transgression and then ask oneself the question, would it be reasonable for an employer such as the respondent in this case to trust the applicant considering what has transpired. As previously mentioned in order for there to be some chance of remedying the trust breach, an employee and the applicant must show genuine remorse.

24 The reliance by the applicant’s own section 48 of the Minister of employment and Labour’s promulgation in my view cannot be sustained. Section 48 provides that an employee may refuse to perform any work is circumstances arises which with reasonable justification appear to that employee to pose an imminent or she rest to the exposure of Covid 19. Section 53 further provides that no person may threaten to take any action against the person because such person is exercised or intends to exercise a right in terms of section 48. Section 54 also provides the no employee may be dismissed, disciplined, prejudiced or harassed for refusing to perform work as contemplated in clause 48. During the period in question June to August 2020 the applicant was at work and never refused to attend his place of work. The instructions communicated to him by Mr Schreuder posed no imminent and serious risk to the exposure to Covid 19 to applicant. Under cross examination, Mr Isaacs he testified for the applicant confirmed this fact under cross-examination by the respondent.

25 Was the dismissal procedurally unfair? Having regard to the applicant’s procedural challenge is contained in the pre-arbitration minute and contained in the applicants statement of case that the presiding officer failed to provide legal principles, was biased and should have recused herself when she considered the application for recusal. The presiding officer did not apply her mind to all relevant facts to the case and simply ignored material evidence of witnesses like the former circuit manager, Ms du Plessis, the SGB chairperson Ms Bailey and learner Ms Sycle. That the presiding officer ignore the fact that the former head of Department head of a personal vendetta against the applicant and failed to treat his evidence with caution. The presiding officer interpret facts to suit her findings of guilt the presiding officer failed to consider the evidence of the district director Mr Stander and Ms du Plessis holistically when considering an appropriate sanction both of them testified that they can work with the applicant and find him some one respected by his peers within the Department sanction is shockingly inappropriate given the circumstances in evidence in the case.

26. In the matter between Avril Elizabeth Home for the Mentally Handicapped v CCMA & others [2006] 9 BLLR 833 (LC) the Labour Court held that the draft Bill (LRA) requires a fair, but brief, pre-dismissal procedure and they opted for a more flexible, less onerous, approach to procedural fairness for various reasons and not all procedural defects result in substantial prejudice to the employee. The Court further held that on this approach, there is clearly no place for formal disciplinary procedures that incorporate all of the accoutrements of a criminal trial, including the leading of witnesses, technical and complex “charge sheets”, requests for particulars, the application of the rules of evidence, legal arguments, and the like. The nature and extent of the fair procedure requirements established by the Labour Relations Act and the Code is supported by international labour standards. 

The conception of the right to a hearing prior to dismissal is reflected in the Code. When the Code refers to an opportunity that must be given by the employer to the employee to state a case in response to any allegations made against that employee, which need not be a formal enquiry, it means no more than that there should be dialogue and an opportunity for reflection before any decision is taken to dismiss. In the absence of exceptional circumstances, the substantive content of this process as defined by item 4 of the Code requires the conducting of an investigation, notification to the employee of any allegations that may flow from that investigation, and an opportunity, within a reasonable time, to prepare a response to the employer’s allegations with the assistance of a trade union representative or fellow employee. The employer should then communicate the decision taken, and preferably communicate this in writing. The Court further held that there was no legal basis for the application of the rule against bias in that the formulation and application of a rule against bias, clearly applied the criminal justice model of procedural fairness, and the standards associated with it.

27. The chairperson of the applicant’s disciplinary hearing was an independent legal practitioner, the applicant was represented legally in his disciplinary hearing as well as respondent. I can find no fault in the pre-dismissal procedures adopted by the respondent except to comment that the proceedings were far too formal mimicking an arbitration and that is why the disciplinary hearing sat for 20 days. The test for procedural fairness is not the same as what is contained in section 145(2)(a) of the LRA when reviewing an award.

28. I requested the applicant’s representative to address me in closing arguments as to possible conflict between the applicant as a principal that represents the Head of Education on the SGB and a union member and office bearer. When the applicant testified her referred to what he was doing as part of a campaign. As a principal there will be occasions when you in your official capacity as a principal you may be conflicted between your loyalties as a manager and a representative of the Head of Education and your loyalties as an office bearer of a union and its members and causes that you may support. There are times as a loyal manager that you may have to abstain from expressing an opinion or a view point that is inconsistent with that of your employer. For instance the applicant at one meeting with the SGB indicated correctly so that they cannot close the school and at the same meeting he tell the SGB that they must look at the pros and cons in sending you children back to school. In such instance you must quiet or follow the official stance of your employer. You cannot figuratively run with the hares and hunt with the hounds. When you do so there will be conflict of interest. Mr Noel Isaacs as a principal came across as someone who was able to separate his duties as a principal and his duties as an office bearer.

28. I therefore make the following award.

AWARD

29. The applicant, Wesley Neumann’s dismissal was both procedurally and substantively fair. The applicant is not entitled to any relief.

Name: Jonathan Gruss
(ELRC) Arbitrator