On Thursday 9 May 2013, Equal Education (EE) and the Centre for Child Law (CCL) as amici curiae (friends of the court) will present arguments to the Constitutional Court in the Rivonia Primary School case. EE and CCL are represented by the Legal Resources Centre (LRC). The case will determine who has the final say on setting the capacity of public schools – school governing bodies (SGBs) or the Provincial MEC for Education.
In 2011, Rivonia Primary refused to enrol a grade one learner because the school’s SGB had capped capacity at 120 learners per grade and the school was “full”. The Department instructed the school to admit the learner. The incident brought into question whether the ultimate power to determine a public school’s enrolment capacity lies with the Provincial Department of Education or the SGB. The High Court ruled that the MEC had the final say; however, that decision was overturned on appeal to the Supreme Court of Appeal.
The matter goes far beyond the interests of the specific child whose admission gave rise to this litigation, as she will remain in theschool whatever the outcome. EE and CCL will submit that what is critically at stake is determining the appropriate balance of power between SGB’s and MEC’s when determining the capacity of public schools. EE and CCL will submit that the correct balance is not achieved by permitting MECs’ little or no power to override the capacity decision of a SGB. This appears to be the implication of the SCA judgment and the argument to be advanced by Rivonia Primary before the Constitutional Court. The appropriate balance is also not achieved by allowing a MEC to freely override the admission decisions of a SGB, which might appear to be the implications of the argument advanced by the MEC before the Constitutional Court.
EE and CCL will submit that capacity determinations are a shared power which SGBs and MECs must exercise in a co-operative and constructive spirit. Whilst SGBs are well placed to make initial capacity determinations this does not bind the MEC. This is because MEC’s have a responsibility to ensure that all learners in their province are placed in a public school. MEC’s can therefore intervene to admit learners in excess of a SGB set capacity. However, MEC intervention should only occur where there is a good cause and must be done in a lawful, reasonable and procedurally fair manner.
EE and CCL take the view that the historical, political and economic context cannot be ignored in deciding this case. There are two very different realities operating in our public schooling system. A majority of schools are overcrowded, lack adequate infrastructure, books, furniture and competent teachers. Learners in these schools come from impoverished homes and do not pay fees. A significant minority of public schools have, as a product of Apartheid, inherited excellent infrastructure, have parent bodies with professional qualifications able to assist with governing the school, attract competent teachers because they are well-located and offer an attractive working environment. These schools are able to supplement their facilities and teaching staff and drastically reduce their learner to teacher ratios through the collection of fees. Whilst many public schools have 50 or 60 learners per class, RivoniaPrimary averages 24 children per class.
EE and CCL recognise that this is a sensitive issue and do not support policies that seek to destroy or diminish these more privileged public schools in the name of equality. However the law must, and does, support ensuring greater and fairer access to well-resourced public schools, while the work goes on to bring the majority of public schools up to an acceptable level.