Governing Body of Bopasetjhaba and Others v Premier of the Free State Province and Others

Bopasetjhaha Primary School was sharing facilities with another school and, to prevent overcrowding, the Free State Department of Education repeatedly promised to build a new school with 20 classrooms. They later withdrew this promise. The School Governing Body (SGB) thereafter launched an application seeking a review of the decision not to erect the new school buildings, and to compel the Department to take all action necessary to ensure the construction of new buildings.

The SGB argued that the unilateral decision revoking the earlier promises constituted administrative action. They therefore had a right to be consulted before the decision was withdrawn. The respondents contended that the decision fell within the prerogative of the MEC as it was a policy, commercial and financial decision that was not susceptible to judicial review.

The Court observed that flowing from 12(1) of the South African Schools Act, the size and type of facilities to be made available is the prerogative of the MEC. The Court drew parallels with an earlier Constitutional Court decision that the allocation of subsidies by MECs to independent schools constituted administrative action. The Court reasoned that the disputed decision similarly constituted administrative action. The Court found that the SGB could have had a legitimate expectation that the undertaking would be honoured or at the very least that they would have been heard before a decision to the contrary was made. Their expectation was breached by not being afforded an opportunity to be heard. The decision was withdrawn and the MEC and Premier were ordered to give the SGB a hearing before making any decision.