On 3 October the Constitutional Court (CC) ruled in favour of the MEC for Education in instructing the principal of Rivonia Primary School to admit a learner in excess of limit in the school’s admissions policy.[1] This Brief provides a breakdown of the events leading up to the case and a brief account of what the outcome of the case means for schools.
This is a case about who has the power to decide the capacity of public schools: the School Governing Body (SGB), the Provincial Department of Education, or a combination of the two.[2]
Background/Outline of events
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In 2010 a prospective learner was refused a place in Grade 1 for the 2011 academic year at Rivonia Primary School. The learner was placed on a waiting list.[3]
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The grounds for refusal were that the school had reached its capacity of 120 learners per grade (the capacity decided on by the School Governing Body (SGB)).[4]
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The mother lodged a complaint with the Gauteng Department of Education, and lodged an appeal to the MEC for Education in Gauteng Province.
- The Department overturned the refusal and instructed the principal to admit the learner.
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On the 7th of February 2011 the mother brought her learner to the school, but the principal still refused to admit the learner.
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The following day officials from the Department arrived at the school and physically placed the learner in an empty desk in a Grade 1 classroom.
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The school subsequently brought an application to the South Gauteng High Court seeking confirmation that it had the power to determine the school’s admissions policy and admit or refuse learners according to that policy. The court dismissed the application.[5]
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The school then appealed to the Supreme Court of Appeal which held that the Department did not have the power to override the school’s admissions policy. The court declared that the HOD’s instruction to the principal to admit the learner, contrary to the school’s admission policy, was unlawful, as was placing the learner in the school.[6]
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On appeal to the Constitutional Court (CC) in the case ‘MEC for Education in Gauteng Province and Others v Governing Body of Rivonia Primary School and Others’ the majority of the Court concluded that the HOD did in fact have the power to admit the learner.
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The CC held that, in terms of the Schools Act, the SGB may determine capacity as part of its admissions policy, but that the Department maintains ultimate control over the implementation of admission decisions.
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The CC also held that despite the fact the HOD had not exercised his power in a procedurally fair manner, provincial Regulations afford the HOD specific power to overturn a principal’s rejection of a learner’s application for admission.[7]
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Finally, the Court held that co-operation is the compulsory norm in disputes between school governing bodies and national or provincial government. Such co-operation is rooted in the shared constitutional goal of ensuring that the best interests of learners are furthered and that the right to basic education is realised.[8]
Analysis
This case focused on one learner at one school; however it leads to the broader consideration of the right of access to education versus the quality of education, and who is ultimately in control of the capacity of schools.[9]
What does this judgement mean for schools and School Governing Bodies? The outcome of this case does not mean that School Governing Bodies have no power, or that parents should suddenly be concerned that schools with governing bodies are going to all be forced to accept many more learners than they have stated capacity for. Realistically it means that the public schooling system needs to be run as a partnership between national government, provincial government and school governing bodies.[10] SGB’s are allowed to set their own admission requirements and limits, but they are also obliged to take into account the necessity of placing every learner, and so place extra learners if the Department instructs them to do so. Ann Skelton, director of Centre for Child Law, believes that the judgement was important in clarifying who has the final say in admissions disputes. However, she also told the Mail & Guardian that "[t]his does not mean, though, that SGBs have no power – they can still decide what their admissions policies are – the court just said that those policies are not inflexible."[11]
What does this judgement mean for schools and School Governing Bodies? The outcome of this case does not mean that School Governing Bodies have no power, or that parents should suddenly be concerned that schools with governing bodies are going to all be forced to accept many more learners than they have stated capacity for. Realistically it means that the public schooling system needs to be run as a partnership between national government, provincial government and school governing bodies.[10] SGB’s are allowed to set their own admission requirements and limits, but they are also obliged to take into account the necessity of placing every learner, and so place extra learners if the Department instructs them to do so. Ann Skelton, director of Centre for Child Law, believes that the judgement was important in clarifying who has the final say in admissions disputes. However, she also told the Mail & Guardian that "[t]his does not mean, though, that SGBs have no power – they can still decide what their admissions policies are – the court just said that those policies are not inflexible."[11]
Where to from now?
The CC judgement helps to put a marker in the sand on the issue of SGB’s limiting the number of learners admitted to their schools versus the needs of the Department of Education to ensure the right of access to education is fulfilled.
Ultimately not that much is going to change. It does not look like the Department of Education is now suddenly going to force all class sizes to increase, rather the judgement highlights the fact that, due to capacity constraints in the country, schools, even schools with SGB’s, will need to be flexible regarding their capacity levels.
NOTES
Ultimately not that much is going to change. It does not look like the Department of Education is now suddenly going to force all class sizes to increase, rather the judgement highlights the fact that, due to capacity constraints in the country, schools, even schools with SGB’s, will need to be flexible regarding their capacity levels.
NOTES
[1]http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71654?oid=411973&sn=Detail&pid=71616, Accessed 8 October 2013.
[2] Constitutional Court Media Summary, http://www.saflii.org/za/cases/ZACC/2013/34media.pdf, Accessed 8 October 2013.
[3] http://www.lrc.org.za/press-releases/2711-2013-05-08-press-statement-rivonia-primary-school-equal-education-and-the-centre-for-child-law-to-submit-evidence-at-constitutional-court, Accessed 8 October 2013.
[4] Constitutional Court Media Summary, http://www.saflii.org/za/cases/ZACC/2013/34media.pdf, Accessed 8 October 2013.
[5] Ibid.
[6] Ibid.
[7] Ibid.
[8] http://www.lrc.org.za/press-releases/2711-2013-05-08-press-statement-rivonia-primary-school-equal-education-and-the-centre-for-child-law-to-submit-evidence-at-constitutional-court, Accessed 8 October 2013.
[9] http://www.caveatlegal.com/lessons-from-the-rivonia-primary-school-case-how-schools-and-education-authorites-can-ensure-that-they-act-lawfully-and-fairly-in-decisions-on-admissions/, Accessed 8 October 2013.
[10] http://www.caveatlegal.com/lessons-from-the-rivonia-primary-school-case-how-schools-and-education-authorites-can-ensure-that-they-act-lawfully-and-fairly-in-decisions-on-admissions/, Accessed 8 October 2013.
Sarah Tobin – sarah@hsf.org.za
Intern
Helen Suzman Foundation
