Equal Education has joined as a friend of the court (amicus curiae) in the interests of protecting the right and responsibility of Provincial Education Departments to ensure equitable access to public schools
Arguments began today in the South Gauteng High Court in the case being brought by the School Governing Body of Rivonia Primary School (the first applicant) together with the school itself (second applicant). The case is being brought against the MEC for Education in Gauteng, the Head of the Gauteng Department of Education (HOD), and other officials of the Gauteng Department of Education.
This case arose when the HOD, in February 2011, instructed the school principal to enrol a Grade 1 learner to the school, after the learner had been told by the school that the school was full. The school, which has one of the best teacher-pupil ratios of any public school in Gauteng, said it could take no more than 120 learners into four grade 1 classes.
The applicants are arguing that this instruction was unlawful in that it violated the SGB’s right to determine the school’s admissions policy. The respondents argue that the MEC has an overriding duty to ensure every child has a place in school.
The legal question which is at the heart of this case is:
“Whether on a proper interpretation in accordance with section 39(2) of the Constitution and with due regard to the fundamental rights to equality (s 9 of the Constitution) and education (s 29 of the Constitution) of the statutory framework for admissions to public schools,
– the governing body of a public school is vested with the power to determine the enrolment capacity of that school as an incident of its power under s 5(5) of the South African Schools Act 84 of 1996 to determine the admissions policy of a school, or the governing body’s power to determine the admissions policy of a school does not extend to the power to determine the enrolment capacity of a school, having regard to the duty of the provincial MECs for Education under s 3(3) of the South African Schools Act 84 of 1996 to ensure that the public education system can provide school places to all learners of compulsory school going age.”[1]
Equal Education, as an amicus in the case, will argue as follows:
- The question of ‘capacity’ cannot be seen as totally separate from the ‘admissions policy’ which an SGB is required to determine. An SGB must therefore indicate, in its admissions policy, what is believes the capacity of the school to be.
- However, the SGB should do this in line with a policy determined by the MEC. The SGB would therefore be constrained to indicate its capacity by the policy formulated by the MEC.
- Furthermore, when acting in terms of a provincial or national admissions policy, the MEC retains the power to override decisions about school capacity made by an SGB, including in a case relating to an individual learner. Importantly here, the policy basis for such interventions is important to prevent the arbitrary exercise of power.
- Therefore, we will argue that also ‘capacity’ is a feature of an ‘admissions policy’, the Act requires that the final decision about a school’s capacity rests with the MEC.
- In our submission we also note the failure of the national Minister to assist in this area by failing to enact Minimum Norms and Standards for School Infrastructure and School Capacity.
- The above arguments take into account the provisions of the South African Schools Act, read together with the Constitution (including the right to a basic education – s29, and the right to equality s9).
Equal Education’s involvement in this matter is on the basis of principle. It is important that public schools are accessible and conduct themselves equitably. It is also important that educational authorities conduct themselves consistently on the basis of clear policy. EE’s submission to the court does not deal with the specific facts of this case, only the legal and constitutional principles.
Lawyers acting on behalf of Equal Education will begin arguments in court tomorrow, Tuesday 4 October 2011, at 10am.
For more information contact Dmitri Holtzman 082 733 5000 / dmitri@equaleducation.org.za
