The Legal Resources Centre (LRC), on behalf of Equal Education (EE) and the Centre for Child Law (CCL), has filed an application in the Constitutional Court for admission as amici curiae (friends of the court) in the upcoming Rivonia Primary School appeal case. The LRC will ask that it be permitted to present arguments to the Constitutional Court in an appeal against the judgment of the Supreme Court of Appeal.
The appeal will be heard by the Constitutional Court on 9 May 2013.
In 2011, Rivonia Primary’s School Governing Body (SGB) refused to grant enrolment to a grade one applicant, providing a catalyst for ensuing litigation over whether the ultimate power to determine a public school’s enrolment capacity (and, in turn, whether a student is permitted admission) lies with the Gauteng Provincial Department of Education or the SGB. The High Court, in first instance, found that the Department has the final say on admissions. However, that decision was overturned on appeal to the Supreme Court of Appeal (SCA), with the SCA finding that the power rests with the SGB.
The present matter goes far beyond the interests of the specific child whose admission gave rise to this litigation, as she will remain in the school, whatever the outcome of the litigation. EE and CCL contend that what is critically at stake in this matter is the relationship between the powers of SGBs, on the one hand, and provincial departments of education, on the other, with regard to determining the capacity of a school and the admission of learners. They further submit that is an interpretation of the relevant legislation and the Constitution which produces an appropriate balance between the powers of SGBs and provincial departments of education.
If admitted as amici curiae, EE and CCL will submit that this appropriate balance is not achieved by permitting such departments little or no power to override the admission decisions of an SGB, which appears to be the implication of the SCA judgment and the argument to be advanced by Rivonia Primary before the Constitutional Court. This appropriate balance is also not achieved by allowing such departments to freely override the admission decisions of an SGB, which might appear to be the implications of the argument advanced by the MEC before Constitutional Court. Rather, if admitted as amici curiae, EE and the CCL will advance submissions to the Court setting out the relevant principles concerning how and in what circumstances a provincial department of education may override the admission decisions of an SGB and the factors to be taken into account in this regard. This will achieve the appropriate balance that is required.
If admitted, the amici curiae, will not take a particular position regarding whether the DOE’s conduct was lawful, but rather will submit that:
- National government has the ultimate power and duty to establish the enrolment capacity of public schools under the South African Schools Act (the Act);
- Provincial governments also have significant powers under the Act;
- An SGB has autonomous power to adopt an admissions policy in terms of the Act, including the power to make a determination of the school’s capacity;
- The SGB’s admissions policy and determination of the school’s capacity is only the starting point for the consideration of whether to admit students;
- The relevant MEC or Head of Department (HOD) may override, with some constraints, an SGB’s policy and determination; and
- Where the placement of students at a school by the MEC/HOD cannot be satisfied by the school’s existing resources, the MEC/HOD must provide the necessary extra resources.
The founding affidavit is available online [PDF].
For more information please contact:
- Khumbulani Mpofu, LRC’s Communications and Marketing Officer, at 011 838 6601.
- Ann Skelton, Director of the Centre for Child Law, at 012 420 4502/ 082 4432702.
- Kate Wilkinson, Equal Education’s Media Officer, at 082 326 5353.
