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Finely Balanced Policy Issues: The Saga Continues

01 August 2013

Routledge Modise

As readers may recall, the decision handed down by the Supreme Court of Appeal in the Rivonia Primary School matter was reported extensively in the media.

The Member of the Executive Council for Education in Gauteng, the Head of the Gauteng Department of Education and the District Director Johannesburg East (collectively the Applicants), unhappy with the judgement, applied to the Constitutional Court for leave to appeal in the matter of the Governing Body of Rivonia Primary School, Rivonia Primary School and Carol Drysdale, the principal of the school, being the First, Second and Fifth Respondents respectively.

The matter was opposed by the governing body and the school (the Respondents), three amici were admitted and argument was heard on 9 May 2013. The judgement is currently outstanding and is expected to be delivered soon.

In the heads of argument filed by the Applicants, they stated that the central issue for determination is whether the governing body or the Department had the authority to determine whether the school had reached its capacity.

Early on in the heads of argument filed, the issue of race was addressed as the Department had, in earlier proceedings, raised issues of equality and the legacy of apartheid due in part to the fact that the school is located in an historically "white" suburb and that "Rivonia Primary is able to attract wealthier parents who can afford to contribute to ongoing investment in the school only because they are situated within historically white areas". In opposition to this, the Respondents relied on the fact that 46% of the learners at the school are black. While the race issue is of interest and is important contextually, it is not the focus of this article and as such must not be allowed to detract from the administrative and constitutional issues at play.

According to the empirical evidence contained in the Applicants' Heads of Argument, in the 2010 school year the Johannesburg East district, which includes the area in which the school is located, had to accommodate 10 790 learners who migrated to Gauteng for the first time. This is the second highest intake apart from Tshwane South and, at the time the high court heard the matter, the budget for the following three financial years was R533m , R655m and R591m, 40% of which was for the provision of new schools in newly developed areas.

The Applicants argue that the powers of the governing body, as set out in s5(5) of the Schools Act (84 of 1996), only allows it to make policy for admissions and not to administer admissions. It is the Department that is to make the individual decisions that determine whether a particular learner is admitted or not and it need not be bound by the school's admission policy.

They further argued that the SCA erred in its judgement on the basis that the school cannot determine its capacity thereby depriving the HoD of any power to exceed that capacity and that the decision-making powers as to whether to accept or decline a student vests with the Department.

They maintained that the SCA should not have taken cognisance of the fact that the school had created its own purported capacity (as a result of the parents funding teachers and classrooms), as this is inconsistent with a previous judgement, and further that such a consideration ignores history and education under the apartheid era.

It is apposite to point out that, at a basic level, the Department's argument appears to be based on the desire it has to see every learner receive a basic education. This was acknowledged by the school in its heads of argument.

In the heads of argument filed by the Respondents, they argued that the Applicants failed to deal with relevant sections in the Act, the Regulations and the National Education Policy Act and that in failing to do so, they incorrectly interpreted the Act and the powers they believe they possess.

The Respondents drew the Constitutional Court's attention to the fact that the school had complied with what was required of it in that it supplements the state's resources to improve the quality of education to its learners, it had built extra classrooms, employed additional educators while considering how many learners it could take and the resources necessary in order to ensure that learners received good quality education.

They questioned whether the MEC for Education in Gauteng had actually complied with the provisions of the Act, which require that annual reports are furnished to the National Minister as to the steps taken to remedy the lack of capacity in schools. The Respondents proposed that there was a lack of planning on the part of the Department.

The line taken by the Respondents was that the school had the power to make the admission policy, it had submitted its admission policy to the Head of Department and no issue had been taken with it. In fact the policy had actually been signed off by two Department officials, and the Department failed to take into account all circumstances of the situation, including the other public schools in the area that had capacity to accommodate the learner.

Two of the amici curiae in the matter, taking the stance that there are powers afforded to governing bodies and powers afforded to government but that these are not clearly divided, attempted to provide solutions for the reconciliation of these powers. They sought to introduce "an appropriate balance" in terms of which the admission policy must be the starting point in determining capacity, the MEC may then override the admission policy in a procedurally fair and lawful manner where there is good cause to do so. The amici further looked into what would be "good cause" and finally proposed that where placement of additional children would incur further costs, the department must make the necessary resources available.

The judgement is still outstanding, hut the Constitutional Court has handed down another judgement involving the powers of education departments, which may impact the outcome of this matter.

In the Welkom and Harmony High Schools case, two schools' governing bodies adopted policies whereby pregnant learners would be excluded from school for certain time periods. The Head of Department for the Free State Department of Education, in response to the exclusion of two pregnant learners from the schools, issued an instruction to the principals to readmit these two learners. In the decision handed down on 10 July, the Constitutional Court found that while the pregnancy policies were prima facie unconstitutional, the Free State Head of Department had acted unlawfully. Relevant to the Rivonia case was the finding by the Constitutional Court that the schools were entitled to adopt policies of this nature and that the Head of Department of the Free State Education Department had avenues by which he could address his concerns but these avenues had not been used and, therefore, his conduct was unlawful insofar as he failed to adhere to the provisions of the Act.

This may be suggestive of the approach the Constitutional Court may adopt in the Rivonia case but we will have to wait and see.

When the Rivonia case is examined it has to be posited that it would have been cheaper for taxpayers had the Department found some other place in which to accommodate the learner rather than this expensive reaction which involves launching proceedings at the Constitutional Court.

Alternatively, the Minister of Education could have acted in a positive manner as prescribed by the legislation. In terms of s5A of the Act, the Minister has the power to establish norms and standards for the capacity of a school. This was not done and this entire matter and the costs incurred by government in proceeding with this litigation could have been avoided had the Minister done his job.

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