The High Court in Pretoria has dismissed an application by the School Governing Body (SGB) of Pretoria High School for Girls (PHSG) to force the Gauteng Department of Education (GDE) to hand over a controversial investigative report into allegations of racism at the institution.

In a judgment delivered by Justice G.N. Moshoana on 11 November, the court ruled that the SGB was improperly attempting to use court procedural rules to circumvent the Promotion of Access to Information Act (PAIA) after abandoning its application under that statute. The ruling effectively denies the SGB immediate access to the full report, which forms the basis of its planned application to review and set aside the findings.

The core dispute stems from allegations of racism levelled against twelve learners at PHSG. Following an internal school investigation, the learners were cleared of any wrongdoing, a finding later supported by the Thabo Mbeki Foundation (TMF). Dissatisfied with this outcome, the Member of the Executive Council (MEC) for Education in Gauteng commissioned a fresh investigation under section 9(1) of the Gauteng School Education Act.

While an extensive executive summary of the subsequent investigative report was shared at a GDE media conference, the full report itself was withheld from the PHSG SGB, which prompted the legal action.

The SGB made several attempts to secure the document, including abandoning an urgent application for its delivery and halting a request via PAIA. The current application, brought in terms of Rule 30A of the Uniform Rules of Court, sought to compel the GDE to include the Report as part of the “record of proceedings” for the SGB’s review application, as mandated by Rule 53.

Justice Moshoana rejected this argument, finding that the GDE had complied with Rule 53(1)(b). The judge clarified that the report, being the conclusion of the investigation, constitutes a “decision” and is therefore not a “record of proceedings,” which consists of the material that precedes the decision.

Justice Moshoana was highly critical of the SGB’s legal strategy, stating the SGB was trying to use the court rules as a “safe haven” to “scupper the provisions of PAIA.”

The SGB’s Rule 30A application was dismissed, with costs reserved to be costs in the cause, acknowledging the acrimonious nature of the ongoing litigation.

While the PHSG SGB’s review application remains pending, it must now proceed without the full investigative Report, potentially limiting its grounds for challenge until it successfully accesses the document through the proper PAIA channel.