The Constitutional Court has rejected an application by the South African Council of Breeders (SACE) for leave to appeal against a High Court ruling that overturned its decision to refer a complaint to a hearing.
In July 2021, the Bloemfontein High Court ruled that the SAS Disciplinary Committee’s intent to bring the allegations against Deon Scheepers, the headmaster of Gray College High School, for a hearing was “irregular and unlawful” and set aside the case.
This followed a complaint filed against him by members of the school board with SACE, following a decision in May 2018 to strip him of his powers.
Scheepers successfully challenged the governing body’s decision in the Supreme Court and Supreme Court of Appeal (SCA), which held that the governing body acted outside its legal authority.
The Free State Department of Education then appointed an independent task force to investigate the underlying facts and causes that led to the conflict between Schippers and the governing body.
The task force recommended that the department chair charge Scheepers for gross misconduct.
No details of the alleged misconduct were given in the court papers.
However, OFM broadcaster reported in October 2021 that some of the allegations against Scheepers in court documents before the Supreme Court, are that he sacrificed and bullied teachers. He could not deal with complex racial issues at school; sought to manipulate the results of the appointment of annual office officials to the Deputy Secretary-General in the run-up to the March 2018 elections; He broke his trust and contractual obligations with the department by prematurely informing some candidates that they had been unsuccessful in their bid to become Deputy Principal of Gray College.
The Chamber then invited him to provide feedback as to why “necessary action” was not taken against him.
But while the department was considering action against Scheepers, SACE entered the fray after obtaining a copy of the ITF report and issued him a summons in November 2020 to appear before a disciplinary hearing that was scheduled for February 2021.
Schippers, who is now Headmaster of Wynberg Boys’ High School in Cape Town, has filed a request for review in Bloemfontein High Court arguing that SACE had not conducted a proper independent investigation on its own, but was simply “committed” to the independent team’s report.
Justice Philip Loebser and Acting Justice Colin Nikosi concurred, stating that it was “clearly clear that the Board did not initiate an independent investigation” and that it “only took note of the Independent Task Force’s report and the recommendations therein”.
Disappointed with the ruling, SACE applied to the Supreme Court for leave to appeal, but it was denied in December 2021. A subsequent petition for leave to appeal with costs was denied in March last year on the grounds of a lack of reasonable prospects of success.
SACE then applied to the Constitutional Court, which considered her application for leave to appeal in November last year.
In a unanimous ruling on Wednesday, the Constitutional Court said it would only grant leave to appeal if it was in the interests of justice.
Acting Justice Selby Bagua has stated that the interests of achieving justice involve the weight of various factors including “reasonable odds of success, which although not decisive, carry more weight than other factors”.
“The question whether SACE properly exercised its general authority to investigate Mr Schippers is a factual investigation. Whether an investigation in any particular case is an appropriate investigation is within the scope of a case-by-case analysis.
“I do not think that this Court’s opinions on the merits will result in summarizing a principle or principles which can be applied to all matters of this nature.”
He said whether the SACE investigation was appropriate “includes an assessment of the facts.”
“This court has declined to hear appeals seeking to challenge factual findings or improper application of law settled on facts by lower courts. In addition, a factual dispute does not become a constitutional issue because it has been covered as a constitutional matter.”
SACE was ordered to pay for two attorneys.