Equal Education acts through the law to promote change in education.
Grootkraal Primary School Case
Grootkraal UCC Primary School, a small but vibrant rural school in Oudtshoorn, faces an uncertain future. A public school on private land, owned by a Trust seeking to redevelop the land for commercial purposes, it is threatened with closure and the relocation of its learners. The case of Grootkraal, before the Cape High Court once more, is one of competing claims – a conflict between private interests and educational rights in which the lives of children are in the balance.
For over 80 years, Grootkraal has been at the heart of a close-knit community of learners, teachers, parents and church-goers. Once an impoverished farm school, it is now a source of immense pride for the community. Despite the fact that it is situated in a rural area and falls within the poorest quintile of schools, it nevertheless offers a computer laboratory and a vegetable garden which provides most of the learners with their only meal for the day. Grootkraal is also the community’s place of worship, accommodating a church on the same site.
The strength of the community has, however, been tested due to a lack of opportunity in the area – people were forced to move away in pursuit of work and a better quality of life. In spite of these difficulties, there remains a strong sense of community largely because of the commitment of learners and parents to school and church. But the community is at risk once more.
An understanding of the history of farm schools in South Africa is crucial to understanding the complex situation in which Grootkraal finds itself. During Apartheid, farm owners were able to open and close state-subsidised schools situated on their property, at their discretion. They could also determine the size of the school, what was taught and who could attend. This racist legal framework within which farm schools operated left in its wake a legacy of tenure insecurity and grossly inadequate school infrastructure.
The South African Schools Act, passed in 1996, sought a tentative remedy to this. Section 14 of the Act provides a mechanism whereby the private property owner, often a farmer, can voluntarily enter into an agreement with the MEC for Education to provide some security of tenure to a school.
In the case of Grootkraal, the Western Cape Education Department (WCED) maintains that it cannot afford to pay the rent demanded by the land owner and, as such, is unable to come to an agreement in terms of section 14. The owners of the land, the Kobot Besigheid Trust, plan to build a game farm and resort on the site currently occupied by the school. In response to the WCED’s decision to close Grootkraal and relocate its learners to Voorbedrag, a school 18 kilometres away, Grootkraal sought and was granted an emergency interdict in June 2011. The order prevented the WCED from closing the school, and instructed it to engage with Grootkraal and the Trust in order to reach an agreement as envisaged by the Act. However, a suitable agreement has not been reached and the Trust has therefore initiated eviction proceedings.
The outcome of the case is significant not merely for Grootkaal but for farm schools throughout the country whose security of tenure is similarly precarious.
Recently, it has been suggested that the Constitution and the law are a barrier to transformation, impeding substantive redress for historical injustices, land reform in particular. Equal Education (EE) joined the proceedings as amicus curiae in order to to bring to the Court’s attention section 58 of the Schools Act, which authorises the MEC to expropriate land, with reasonable compensation, “if it is in the public interest to do so…for any purpose relating to school education in a province.” If an agreement cannot be reached in terms of section 14, expropriation must be considered. It is clear from the MEC’s own affidavit that this option was never properly considered.
In this case expropriation is in fact the only course of action in which all parties would have their constitutional rights protected. This would include the land owner, which, in terms of Section 25 of the Constitution must receive compensation that is “just and equitable, reflecting an equitable balance between the public interest and the interests of those affected.”
Without security of tenure right to a basic education will remain under threat.
It would appear, however, that the MEC takes a different view. The WCED characterised the closure of Grootkraal and its merger with Voorbedrag as a ‘relocation’. In so doing, the WCED tried to circumvent the important procedural safeguards that apply when a public school on private land closes and/or merges with another. The MEC must not only comply with these procedural safeguards; he must also consider all options including expropriation.
After the matter was heard in the Western Cape High Court, the Centre for Child Law and Lawyer’s for Human Rights were joined to the proceedings. The Centre for Child Law has been ordered to collate a report on what would be in the best interests of the learners at the school. Lawyers for Human Rights are representing a segment of the community and are arguing that the community/church are the rightful owners of the land on which the school is based.
What the case of Grootkraal makes clear is that the Constitution and the South African Schools Act enable real reform. Where then is the political will?
UPDATE:
The Centre for Child Law (CCL) was asked by the court to compile a report on what would be in the best interests of the children. Centre for Child law has filed this affidavit. Carina Du Toit (the attorney for CCL) in paragraph 127 of the affidavit concludes that it is “overwhelmingly in the children’s best interests that they continue to attend Grootkraal.” And in paragraph 130 she “strongly recommends” that the MEC considers “all the available legal remedies including expropriation before it considers closing Grootkraal.”.
All the court documents are avaliable online:
- Notice of Motion
- Grootkraal pleadings
- Applicant’s founding affidavit
- Applicant’s confirmatory affidavit
- Second and third respondant’s notice of opposition
- Second and third respondant’s replying affidavits
- Second and third respondant’s confirmatory affidavit
- Applicant’s replying affidavit
- Amicus Curiae application
- MEC in response to Amicus Curiae application
- SGB in response to Amicus Curiae application
- Grootkraal/EE heads of argument
- MEC response to heads of argument
- Centre of Child Law – joinder application
- Centre of Child Law – joinder application (2)
- LHR notice of set down for joinder application
After years of campaigning and mobilising by Equal Education members, the Minister of Basic Education Angie Motshekga promulgated Regulations Relating to Minimum Uniform Norms and Standards for Public School Infrastructure on 29 November 2013. This school infrastrcture law sets out the obligations on the State to fix the crisis in South Africa’s school infrastructure.
In 2014 EE and the EE Law Centre raised a number of concerns with the Department of Basic Education (DBE), relating to the vague and open ended wording of the Norms and Standards. The Minister asked for time to work on implementation, and undertook to respond to our concerns during January of 2015. As of October 2015, no response had been received, and the provincial plans for implementing the regulations reflected the same worrying vagueness and uncertainty as the law itself.
During August 2015 the EELC assisted EE in analysing the implementation plans, and addressing letters to all Provincial Education MECs about the inadequacies in the plans.
The EELC represented EE in the Bhisho High Court in March 2018, challenging the loopholes in the Norms law, and in seeking an order from the Court that the Minister must take certain minimum steps to oversee and monitor implementation of a binding set of standards for school infrastructure.
Victory! In July 2018 the Bhisho High Court ruled entirely in EE’s favour in the #FixTheNorms case!
While Minister Motshekga and the nine Education MECs then filed an appeal against the judgment with the Constitutional Court, the Constitutional Court refused to entertain the appeal!
View some relevant court documents belows:
–Constitutional Court order dismissing appeal by Minister Motshekga and MECs
–Final #FixTheNorms judgment part one 19 July 2018
–Final #FixTheNorms judgement part two 19 July 2018
-View the Notice of Motion setting out the relief that EE and Amatolaville Primary seek
-View the Founding Affidavit of EE’s General Secretary, Tshepo Motsepe
-View the Answering Affidavit of the Minister of Basic Education, Angie Motshekga part 1
-View the Answering Affidavit of the Minister of Basic Education, Angie Motshekga part 2
-View the Answering Affidavit of the Minister of Basic Education, Angie Motshekga part 3
-View the Replying Affidavit of EE’s General Secretary, Tshepo Motsepe
-View EE’s Replying Affidavit Annexure 1 0f 2
-View EE’s Replying Affidavit Annexure 2 of 2
-View the Supporting Affidavit of EE’s Deputy Head of Policy and Training, Daniel Scher
-View Section 27’s affidavit as amacus curiae
–View State’s Heads of Argument part 1
-View State’s Heads of Argument part 2
-View State’s supplementary Heads of Argument
In November 2017, the Polokwane High Court in Limpopo began to hear evidence in the trial of the Komape family against the State in Komape v Minister of Basic Education and Others.
The trial comes after five-year-old Michael Komape tragically died after falling into a dilapidated pit latrine at his school, Mahlodumela Lower Primary School in Chebeng Village, Limpopo on 20 January 2014.
On 26 June 2015 the Komape family launched their case in the Polokwane High Court, represented by public interest law firm, SECTION27. Michael’s family demanded the State compensate them for the trauma, loss of income, and grief they have suffered and continue to suffer as a result of his death.
On 13 June 2016 Equal Education (EE) was admitted as a friend of the Court (amicus curiae) in the matter. EE sought status as an amicus curiae to demonstrate the history of our campaign for the adoption of binding Regulations on Minimum Norms and Standards for School Infrastructure. Our submissions to the Polokwane High Court demonstrate the knowledge the State had, or ought to have had, of the crisis of inadequate and unsafe school conditions in South Africa, as well as that the Department of Basic Education (DBE) did not meet the constitutional duty to ensure safe infrastructure at Limpopo schools.
Komape v Minister of Basic Education and Others was heard in the Polokwane High Court from 13 November 2017 to 1 December 2017. The Court granted an order by consent, ordering government to compensate the Komape family for past and future medical expenses; funeral expenses; and income Michael’s mother lost whilst unemployed.
On 23 April 2018 the Polokwane High Court handed down judgment in the matter.
- The judge agreed with the Komape family’s claims for certain damages, but he dismissed the claim for emotional shock and grief.
- The judge ordered the Limpopo Department of Education (LDoE), by means of a structural order, to remove all plain pit latrines and provide sufficient and safe toilets in Limpopo. The LDoE was also ordered to provide the Court with a report on implementation of the structural order by the end of July 2018.
On 5 June 2018 the Komape family appealed part of the High Court’s judgment, including the claim for grief suffered by the family.
More than two months later, on 31 August 2018 the LDoE filed their report in compliance with the structural order. The report complained of a lack of budget and stated that the eradication of pit latrines in the province would take 14 years. The LDoE said they would only be able to start removing plain pit latrines in 2026!
On 27 September 2018 the Komape family submitted a response to the LDoE’s report. In their response they questioned the accuracy of the information relied on by the LDoE, particularly in relation to budgeting, and they stated the plan failed to meet the basic requirement of reasonableness.
On 5 October 2018 EE also submitted a response to the LDoE’s report. EE’s response particularly highlighted that the LDoE’s report failed to meet the requirements of the structural order in that it does not identify and take the necessary steps in addressing the most dangerous sanitation conditions facing learners in the province. EE emphasised that waiting until 2026 to start eradicating pit latrines violates the rights of learners.
On 2 September 2019 the Komape family’s appeal, Rosina Komape and Others v Minister of Basic Education, in relation to their claim for damages was heard by the Supreme Court of Appeal. EE once again acted as amicus curiae.
In the Supreme Court of Appeal, EE provided three reasons for why the claim for grief must be recognised, namely:
- The existing common law does not provide compensation for the severe infringements of the Komape family’s constitutional rights that occurred when Micheal died in a pit latrine at his school.
- The common law does not concern itself with the rights of the person who has died. There is no remedy for the violation of Michael’s constitutional rights to family life, to basic education, and to have his best interests protected and his dignity. The common law does not allow the Komape family to vindicate the rights of their lost family member in recognition of their inextricable link to him.
- We also argued that the common law does not adequately address the need for deterrence. The conduct of the State respondents was egregious. Michael’s death was not only negligent, but a result of repeated and unexplained inaction. They were fully aware of the unsafe conditions at Michael’s primary school and their reckless disregard of this state of affairs is undeniable.
Judgment in the appeal matter has been reserved.
Court documents:
Limpopo Education Department sanitation plans
Part one EE response to Limpopo Education Department sanitation plans
Part two EE response to Limpopo Education Department sanitation plans
Judge Mokgohloa’s judgment in Equal Education’s application to be admitted as Amicus Curiae
The Heads of Argument of Equal Education in the Application to be Admitted as Amicus Curiae
Equal Education’s Heads of Argument
Supreme Court of Appeal: Appellants’ Heads of Argument
Harmony High School Court Case
The Constitutional Court has admitted Equal Education (EE) as a “friend of the Court” in a court case that will decide whether school governing bodies can suspend pregnant learners. The Free State Department of Education appealed to the Constitutional Court after a Supreme Court of Appeal judgment that significantly hampered the Department’s ability to quickly and efficiently intervene when unlawful school governing body policies deny learners access to their schools. The matter will be heard at the Constitutional Court tomorrow, 5 March 2013, at 10h00.
The Constitutional Court will decide on whether the head of a provincial education department may instruct a principal not to implement a school governing body policy that would result in the unlawful suspension of a learner. The matter initially came before the High Court after two Free State schools, Harmony and Welkom High, sought to suspend learners because they had fallen pregnant. In the Harmony matter the 17 year old learner concerned had already given birth in July 2010. She returned to school and had been attending classes for a full school term before she was informed that she would have to leave unless she was able to produce a medical certificate proving that she had not given birth.
The Head of Department will argue that the pregnancy policies unfairly discriminate on the basis of gender and pregnancy, violate female learners’ right to a basic education and are not taken in the best interest of the child or the individual circumstances of affected learners. These pregnancy policies also violate national and provincial policies aimed at ensuring that pregnant learners are able and encouraged to attend school as long as they are medically able and to return to school as soon as possible after giving birth.
Both the High Court and the Supreme Court of Appeal found that a Head of Department was essentially powerless and could not instruct a principal to ignore a school governing body pregnancy policy. Both lower courts ruled that Heads of Department would have to first go to court in order to secure the learners’ return to school.
At the hearing EE will argue that the lower courts are incorrect because:
- Heads of Department are under a duty to ensure that all learners’ constitutional rights are protected;
- the South African Schools Act makes Heads of Department responsible to ensure that no learner is unlawfully denied access to a school through unlawful suspensions or discrimination;
- The South African Schools Act gives Heads of Department the power to intervene by instructing principals to ignore school governing body policies that are unlawful, unconstitutional or otherwise unreasonable;
- The Free State Head of Department acted reasonably and was therefore entitled to intervene to ensure the swift and immediate return of the learners to Harmony and Welkom High; and
- Requiring Heads of Department to first obtain court order prior to intervening flies in the face of the structure of the South African Schools Act, would result in costly and inefficient use of limited education resources and is to the detriment of learners’ who would suffer from continued discrimination whilst cases are pending.
All the court documents are available online:
- 12 May 2011: Free State High Court ruling
- 28 September 2012 : Supreme Court of Appeal Ruling
- Gauteng Department of Education’s application for leave to appeal to the Constitutional Court
- 23 January 2013: Equal Education’s application to be admitted to the Constitutional Court as a “friend of the court”
- Equal Education’s Heads of Argument for Constitutional Court
- Judgment of the Constitutional Court
For more information please contact
Lisa Draga (EE Law Centre Attorney) on 0726500214
Yoliswa Dwane (EE Chairperson) on 072 342 7747
Kate Wilkinson (EE Media Officer) on 082 326 5353
Holford Complaint
In 
August 2011 Equal Education lodged a complaint with the Advertising Standards Authority of South Africa (ASASA) against a radio advertisement promoting Smart Kids Brain Boost [PDF]. The advertisement placed by Patrick Holford claimed that the supplement would assist children to be at the top of their class. Mr Holford’s website advertised Smart Kids Brain Boost as a micronutrient supplement containing phospholipids, amino acids and vitamin B.
At the time the product sold for R149.95 on Mr Holford’s website.
In its complaint Equal Education argued that Mr Holford’s claim that this supplement would improve the school performance of children was unsubstantiated and misleading. In this regard the advertisement was in violation of clauses 4.1 and 4.2 of the ASASA advertising code.
The claim also violated clauses 14.2.1 and 14.2.2 of the ASASA advertising code which state:
14.2.1 … Advertisements should not exploit the natural credulity of children or their lack of experience and should not strain their sense of loyalty.
14.2.2 Instances where the above principle may apply are, inter alia, the following:
- for a commercial product or service which contains any appeal to children which suggests in any way that unless the children themselves buy or encourage other people to buy the product or service, they will be failing in some duty or lacking in loyalty toward some person or organisation, whether that person or organisation is the one making the appeal or not;
- which leads children to believe that if they do not own the product advertised they will be inferior in some way to other children or that they are liable to be held in contempt or ridicule for not owning it; …
On 10 May 2012 the ASASA ruled in favour of Equal Education’s complaint. It ordered Mr Holford to withdraw the claim that the product would result in improved mental or scholastic performance. Furthermore, Mr Holford was ordered to stop using the product name, Smart Kids Brain Boost.
It was wrong for Mr Holford to make unsubstantiated claims that take advantage of the desire young people have to succeed in school. Succeeding in school requires adequate resources, good teachers, and hard work. There is unfortunately no short-cut based on Mr Holford’s products.
Read more:
There is no magic pill for success at school, Cape Times, 31 August 2011
ASA upholds Equal Education complaint against Patrick Holford, Quackdown!, 14 May 2012
Education complaint upheld, The Sowetan, 17 May 2012
Lerato Radebe Case
This case arose after EE and the EELC had already mediated and resolved five different incidents in the Western Cape where Rastafarian learners had been discriminated against because the wearing of dreadlocks as a hairstyle was prohibited by their school. (Further details of these matters can be supplied if needed)
There were four applicants in this matter: affected learner, her father and mother and EE.
In April of this year Mr Radebe, the father of Lerato Radebe, sent an e-mail to EE seeking assistance because his 13 year old daughter had been prevented from attending classes at her school, Leseding High, in Thabang Welkom. She had been taken from her class every day and made to sit in the staffroom because she refused to cut her dreadlocks. The school’s code of conduct prohibited the wearing of dreadlocks. The family are followers of the Rastafarian faith and Lerato wears her hair in this manner because it is a practise associated with her faith. Mr Radebe had relentlessly and repeatedly sought the assistance of district officials, officials in the MEC’s office, the Minister’s office, two chapter nine institutions and even the local media in an attempt to protect his daughter’s rights to freedom of religion and to receive a basic education. Eventually a fellow Rastafarian suggested he contact EE.
EELC first addressed a letter to the Principal of the School and the Chairperson of the Governing Body which was copied to the HOD of the Free State Basic Education Department and the MEC for Basic Education. The letter spelt out the relevant legal and policy framework and demanded that Lerato be allowed to attend classes immediately, a remedial plan be devised and implemented so that Lerato could catch up on lessons missed, that provision be made for her to take any formal assessments which she had been prevented from taking and that the school issue a formal written apology to Lerato and her family for violating Lerato’s rights.
We received a response from the HOD which stated the Lerato was no longer registered at Leseding High and which also stated that the parents of the school had decided in a meeting that the school’s code of conduct could not be changed to accommodate one learner. The letter pointed out that in terms of the South African Schools Act the power to adopt a code of conduct vests with the SGB and not with the Free State HOD. The letter also questioned the authenticity of Lerato’s adherence to the Rastafarian faith and claimed that her belief was not “sincerely held” and therefore the Pillay pronouncement by the Constitutional Court on religious exemptions was inapplicable.
We filed an urgent application in the Free State High Court. Acting Judge Phalatsi granted a final order which included declarations that the principal and SGB chairperson’s conduct in banishing Lerato from her class during school hours constitutes a suspension which is unlawful and discriminatory and that the principal, SGB chairperson, District Director, Head of Department, MEC and Minister’s conduct in the matter violated Lerato’s rights to equality, dignity, freedom of religion, expression, association and a basic education. The Judge interdicted the principal and SGB chairperson from harassing, disadvantaging, victimising or discriminating against Lerato. He also ordered the principal, SGB chairperson and district director to meet with Lerato and her parents within 5 school days of the date of the court order concerning the drafting of an educational remedial plan for Lerato which must be implemented and completed by 16 July.
During the course of preparing our papers we debated the desirability of citing the South African Human Rights Commission as a respondent in the matter or inviting them to join as an additional applicant in the matter or suggesting that they intervene as an amicus. Mr Radebe had turned, unsuccessfully, to the Commission for assistance before approaching EE. We decided to invite the Commission to join as either an applicant or to file an amicus application. The SAHRC, however, was reluctant to join as an applicant or amicus in the matter and instead agreed to file a supporting affidavit endorsing the relief that we were seeking. One of the forms of relief that we sought from the Court was an order requiring the Principal, Chairperson of the SGB and District Director to ensure that the majority of officials or employees under their direction “participate wholeheartedly in an education and relationship building workshop to be provided by the Human Rights Commission”. Whilst we realised that the likelihood of obtaining an order along these lines were quite slim the idea was to plant the workshop seed for purposes of discourse around the litigation. The Chairperson of the Human Rights Commission, Mr Mushwana, in his supporting affidavit indicated that “the SAHRC is ready, willing and able to carry out such educational or awareness training as the Court may order”
Whilst Acting Judge Phalatsi ultimately did not order relief on the workshop front the Judge nevertheless stated in his judgment that he would “appeal to the respondents and the powers that be, to educate and make our people aware of the important and advantages of accepting our religious diversity”.
In the immediate aftermath of the judgment we were informed of disruptions at the school including the principal and chairperson of the SGB removing all learners from the class and insisting that no learning would take place whilst special exceptions were being made for a specific learner (Lerato subsequently confirmed this with us). We were also told about a protest at the school by a group of parents who wanted Lerato to be removed from the school. After we sent a letter to the State Attorney threatening contempt of court proceedings we received an invitation from the MEC to meet with him at his offices to discuss the judgment, the Free State Education Department’s intention to ensure that it was respected and implemented and a constructive way forward to prevent a repetition of the Lerato scenario in other Free State schools. Shortly thereafter we were advised that the disruptions at Leseding High had come to a halt.
At our meeting in Bloemfontein the MEC made an unequivocal undertaking to respond to the problems highlighted by the Radebe judgment by conducting educational awareness workshops with all education districts within the Free State Province. District management and school principals will participate in these workshops which will teach participants about the latest legal and policy developments regarding learners’ rights, including the Radebe decision. These educational training sessions will highlight as unacceptable any form of racial discrimination, or gender discrimination such as discrimination against pregnant learners in schools.
We have drafted a letter to the SAHRC encouraging them to touch base with the Department about possible collaboration on this project. EELC has also indicated to the MEC that we are happy to provide input in shaping the content of the workshop program.
All the court documents are available online:
Moshesh Senior Secondary School
In 2012 Equal Education (EE) was contacted by Eastern Cape (EC) learners describing appalling problems at their rural school, Moshesh Senior Secondary School.
When EE visited the school in June 2012 it became aware of numerous problems. These included:
- Teachers arriving late for classes and leaving early. Teachers were also frequently absent from school without explaining their absence. In these cases alternative arrangements have not been made to ensure that teaching continued.
- There was a shortage of qualified teachers for critical subjects at the school.
- The principal was absent from the school for nine months, from October 2011 to June 2012.
- On his return, the principal failed to carry out basic administrative tasks that threatened the chances of learners writing their final exams.
- The principal also unlawfully expelled two grade 12 learners.
- Curriculum planning and delivery were not occurring and were not being monitored by the principal or the district.
- The school was underperforming in the matric examinations, there was high repetition and dropout.
- There were not enough textbooks at the school. Some learners used outdated textbooks from 1986 that did not meet the current curriculum requirements.
Folowing the trip EE made a documentary about the learners at Moshesh.
Equal Education tried to resolve these problems by contacting the Maluti district director Mr Mtatyana, the acting superintendent general Mr Mgonzo and Eastern Cape education MEC Mr Makupula from June 2012 until November 2012. However, despite numerous written and telephonic correspondences, most of the problems were not resolved.
In November 2012, Palesa Manyokole, a grade 12 learner at Moshesh, with the support of 9 other learners from Moshesh Senior Secondary School, Equal Education and her mother, filed papers against the district director, the EC Head of Department, the EC MEC for Education, the school principal, the Director General and the Minister of Basic Education, Angie Motshekga. Palesa kep a register for her teachers that is being used as evidence of absentism [PDF].
The story has been covered by the Mail and Guardian, The Sowetan, The Times and the South African Press Association.
Court documents:
In November 2012 Palesa; her mother, Madimo Mouthloali; 9 other learners at Moshesh; and Equal Education’s chairperson, Yoliswa Dwane, filed founding and supporting papers in the Bhisho High Court in the Eastern Cape:
- Palesa Manyokole’s founding affidavit [PDF].
- Madimo Mouthloali’s supporting affidavit [PDF].
- Yoliswa Dwane’s supporting affidavit [PDF].
- 9 learners’ supporting affidavits [PDF].
On 12 December 2012 MEC Makupula filed his answering affidavit [PDF].
In response to MEC Makupula’s answering affidavit two replying affidavits were filed:
- Palesa Manyokole’s replying affidavit [PDF].
- Yoliswa Dwane’s replying affidavit [PDF].
On 22 April 2013 the EE Law Centre sent a letter to the State Attorney seeking clarity on a number of issues including the remedial plans for the current grade 11s and the 12s and the capacity of the school governing body [PDF].
A settlement is reached.
On Thursday 13 June 2013, four days before the scheduled hearing of the matter, Equal Education and the Eastern Cape Department of Education met in East London to discuss progress made to resolve the problems at the school and to chart a way forward. The department reported that:
-they had investigated financial mismanagement at the school
-the school principal was currently under suspension
-a new acting principal had been appointed to turn the school around
-a new school governing body had been appointed and was being supported by the department
-they were investigating the adequacy of the educators at the school against the curriculum needs of the school as well as the status of school governing body posts
-the department had investigated the textbook shortages and had undertaken to ensure that all shortages would be addressed
-they had declared Moshesh SSS as an underperforming school and had instituted measures to address the underperformance
As a result of these efforts by the Eastern Cape Department of Education, the learners and Equal Education agreed to postpone the hearing of the matter pending resolution of the outstanding questions.
A settlement agreement has been reached and settles the matter on the following basis:
1) School management and governance
The respondents have undertaken to:
-institute and finalise disciplinary proceedings against the suspended principal of Moshesh Senior Secondary School
-appoint an acting principal to take over the management of the school
-provide on-going support to the newly appointed acting principal and SGB
2) Vacant educator posts: The department undertakes to monitor teacher attendance and discipline.
3) Provision of LTSM: The department is to ensure full provision of learner teacher support materials.
4) Compliance with section 58B: No later than one month after signing this settlement, the department is to submit a report that provides details on the following:
-academic performance of the school, per subject and grade
-how the district office will work with and support the school to develop and implement a strategy to improve academic performance
-development of a school improvement plan
5) Grade progression and registration: The department is to investigate and assist the learners who were compelled to write accounting exams instead of tourism.
6) Catch-up plan: Provision by the department of a catch-up plan for grade 11 and 12 learners for all subjects the learners did not receive adequate teaching and textbooks for in 2012.
7) School hostel: The department is to conduct a needs assessment for the Moshesh hostel and submit a report by the end of the 2013 academic year.
8) Costs: The second respondent undertakes to pay the cost of this application.
The settlement will assist the school and the community to improve the teaching and learning conditions and governance at this school. We will also assist the community, parents and learners to monitor the implementation of the settlement conditions.
Equal Education continues to welcome dialogue with the Eastern Cape Education Department to ensure that underperforming schools in a similar position to that of Moshesh Senior Secondary are fully supported so that all learners in the province can receive a quality education.
What Happened after the settlement
Almost year after the settlement was reached, we went to visit Moshesh to see if there had been any progress made since the settlement and we found that the school was still in the same conditions it was in before the settlement. The only part of the order that was implemented was the replacement of the old principle with the new one.
We then decided to meet with a number of stakeholders including the district, community members, learners, parents, teachers and the teachers union in order to find a way forward as to how we make sure the court order is implemented. All the meetings did not assist in getting a clear commitment in making sure the problems at the school are fixed.
On the 11th of August we sent a letter of demand to the department in aid of specific performance on the settlement. The department has till the 25th of August to respond to the letter.
Rivonia Primary School Case
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? In this case, Rivonia Primary School refused to admit one additional learner because the capacity set by the SGB policy had been reached. Although the learner was subsequently admitted, the question of who has decision making power about admission to public schools needs to be determined.
The High Court found that the Department has the final word on admissions.
The decision of the High Court was overturned on appeal to the Supreme Court of Appeal (SCA). The SCA found that the power to determine admission policy lies with the School Governing Body. The SCA held that in terms of s 5(5) read with s 5A of the South African Schools Act the governing body of a public school has authority to determine the capacity of a school as an incident of its admission policy, and that provincial authorities may not ‘override’ the policy. The Basic Education MEC has responsibility to place all children seeking public school access in a province, and it is thus both lawful and logical that the MEC should have a say in admissions policy. However, government must act reasonably, and if it insists on the admission of children over and above the capacity as set by the SGB, then it must provide extra resources such as teachers and classrooms.
The SCA noted that the case concerned “a school located in an affluent, historically white suburb, where a little more than half the learners were white” but said that “none of this is relevant”. However, EE and CCL take the view that the historical, political and economic context cannot be ignored. There are two very different realities operating in the public schooling system. A majority of schools lack adequate infrastructure, books, furniture and competent teachers. The learners come from impoverished home and do not pay fees. A significant minority of public schools have 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, and are able to supplement their facilities and teaching staff due to fees collected. Whilst many public schools have 50, 60 or 70 learners per class, the Rivonia Primary School averages 24 children per class.
EE recognises that this is a sensitive issue and does not support policies that seek to destroy or diminish these adequately-resourced 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.
EE and the Centre for Child Law (both represented by the Legal Resources Centre) have been admitted as amicus curiae (friends of the court) in order to support a Constitutional Court finding along the following lines:
- Government at national and provincial levels does have the power to act in relation to admissions to public schools, although the individual school has set a maximum capacity in its admissions policy. Even where a School Governing Body has the power to adopt an admissions policy that includes a determination of capacity, such a policy can never be binding on the relevant HOD or MEC for education or be applied rigidly and inflexibly by any party concerned.
- The government must exercise its power to place a child above the capacity set in a school’s admissions policy lawfully, reasonably and following a fair procedure. When exercised with regard to individual schools, the proper ambit of the government’s power is fact-specific, and may include consideration of a school’s admissions policy as well as historical disparities in public school funding.
- While this present case concerns the situation of one learner, the Court’s decision on the contentious issue of learner capacity will have far-ranging consequences for all South African children in a variety of contexts. The amici will draw attention to such contexts.
Court Documents
High Court
- Rivonia Primary School (applicant) Heads of Argument [PDF]
- Equal Education (amicus) Heads of Argument [PDF]
- Centre for Child Law (amicus) Heads of Argument [PDF]
- High Court Judgement [PDF]
Supreme Court of Appeal
- Equal Education’s (amicus) Founding Affidavit [PDF]
- Rivonia Primary School (applicant) Heads of Argument [PDF]
- Gauteng Basic Education MEC (respondent) Heads of Argument [PDF]
- Equal Education (amicus) Heads of Argument [PDF]
- Supreme Court of Appeal Judgement [PDF]
Constitutional Court
- Gauteng Basic Education Application for Leave to Appeal to the Constitutional Court [PDF]
- Equal Education and Centre for Child Law Heads of Argument [PDF]
- Ann Skelton’s (Director for the Centre for Child Law) Founding Affidavit [PDF]
- Federation of Governing Bodies for South African Schools (amicus) [PDF]
- Rivonia Primary School (respondent) Heads of Argument [PDF]
An opinion piece on the court case was written by Doron Isaacs and Lisa Draga was published in The Star on 9 May 2013.
Link to the website of the Centre for Child Law, co-amicus with EE in this case.
Link to the website of the Legal Resources Centre, legal representatives of EE in this case.
