The matter involved Rivonia Primary School, an English-medium public school in Johannesburg. In 2012, the Supreme Court of Appeal (SCA) overturned an earlier High Court judgment by ruling that the SGB was within its rights to refuse admission to a Grade 1 pupil on the grounds that the school was full to capacity. 

In 2010, a prospective Grade 1 learner was unsuccessful in finding placement at that school for the academic year starting in 2011, and was placed on a waiting list.  According to the school, it had reached its stated capacity of 120 learners for the grade, as provided for in its admission policy. Dissatisfied, the mother of the learner complained first to the Department of Education and then also lodged an appeal with the Gauteng Member of the Provincial Executive (MEC). Accordingly, the matter was taken up by the MEC for Education, Gauteng, and the school principal was instructed to admit the learner to the school. 

The Gauteng Head of the Department of Education (HOD) purported to withdraw the principal’s admission function and delegated it to another official. The Department’s representatives proceeded to take control of the situation and therafter physically placed the learner in one of the school’s Grade 1 classrooms, seating her at an empty desk that had been installed for a learner with attention and learning difficulties.

The school then approached the South Gauteng High Court, Johannesburg (High Court) for relief aimed at the Department’s decision to override the school’s admission policy, the forced admission of the learner, as well as the withdrawal of the principal’s admission function.  

The school hinged its argument on the power afforded to governing bodies in section 5(5) of the South African Schools Act 84 of 1996 (Schools Act), which provides:

“Subject to this Act and any applicable provincial law, the admission policy of a public school is determined by the governing body of such school”.

The High Court concluded that the Gauteng MEC is the ultimate arbiter as to whether a learner should be admitted to a public school, and that the Department is empowered to intervene where necessary to ensure that children threatened with being deprived of access to schooling may be accommodated. On the facts of the present case, the Court was satisfied that the Department had acted fairly and reasonably.

Dissatisfied with the outcome, the school appealed to the SCA. That Court unanimously upheld the appeal and declared that the instruction given to the principal to admit the learner, contrary to the school’s admission policy, was unlawful, as was the placing of the learner in the school. The Court held that section 5(5) of the Schools Act expressly provides that the admission policy of a school is determined by its governing body, and that this neccessarily includes the determination of its capacity. The MEC for education in Gauteng however contended that such decisions should not rest with SGB’s because provincial education authorities must ensure that all children enjoy their right to education. 

The MEC was given leave to appeal against the SCA judgment to the Constitutional Court.

According to the MEC, the SCA erred in its interpretation of the provisions of the Schools Act. Whilst the MEC no longer contested that the governing body of a school is entitled to determine capacity as part of its admission policy, they submit that the power vested in governing bodies by section 5(5) should not beoverstated. They contended that, although the governing body makes admission policies, the Schools Act and provincial legislation make it clear that a decision to reject a learner taken at school level is never final, but is rather subject to confirmation by the Department.

The MEC contended that this interpretation of the applicable statutory framework is one required by section 39(2) of the Constitution, read with the fundamental rights to equality and education, and the duties resting on the state to “respect, protect, promote and fulfil the rights in the Bill of Rights”. It was contended that this is because the fundamental rights to education and equality require school capacity to be determined ultimately at a systemic level by a provincial education department, and not at the level of an individual school by its governing body.

The school supported the SCA’s reasoning that the Schools Act vests the power to determine the capacity of a school in the school governing body. They submitted that the applicants’ interpretation of the Gauteng Regulations conflicts with national legislation, and that the national legislation must prevail.  

The school contended that, in any event, the Gauteng HOD did not have the right simply to ignore the admission policy and instruct the principal to admit the learner and that the Gauteng HOD should have taken steps to set the admission policy aside or withdraw the power from the Rivonia Primary School SGB as this would have more aligned his official conduct with the provisions of the Schools Act.

In a judgment written by acting judge Mhlantla, the majority of the Constitutional Court concluded that the SGB may, in terms of the Schools Act, determine capacity as part of its admissions policy but that this power is subject to other provisions of the Schools Act, which states that the Department maintains ultimate control over the implementation of the admission decisions. In doing so, the Court ruled that the HOD had the power to admit the learner and that the capacity determination as set out in the schools admission policy, could notinflexibly limit the discretion of the HOD.

The majority however held that in this case, the HOD had not exercised his power as set out in the Schools Act in a procedurally fair manner. In this instance “procedurally fair” means that the HOD and MEC should have followed the necessary steps and procedures as set out in the Schools Act before it intervened in the manner which it did. This in turn is important for SGBs as it means that government cannot act in an arbitrary manner – and if it does, such action can be set aside on review. 

Where the Schools Act thus empowers a governing body to determine policy in relation to a particular aspect of school functioning, a head of department or other government functionary cannot simply override the policy or act contrary to it, as happened in this case. Apart from ensuring just administrative action on the side of government, this determination also allows for a pressure valve where there is a dispute between the school (or its SGB) and the HOD or MEC about admissions. At a first glance, the judgment may seem to ring the death knoll for admission policy-making powers of SGB’s. This is not the case. The judgment is well balanced for it reiterates on the one hand the legal position and framework for SGBs to determine admission policies in terms of the Schools Act, and in that way does not derogate from schools and their SGBs to indeed determine such policies. On the other hand, the judgment balances that right and capacity by stating that although the Head of Department (Gauteng Province in this instance) had the power to admit a learner in excess of Rivonia Primary School’s admission policy, such power must be excercised in a procedurally fair manner.

The judgment is important to public schools, since their ability to continue to provide excellent non-racial education may depend directly on their power to determine capacity and whether their schools are full. The dispute also brought to the fore a number of issues: the right of learners to access basic education and the striking of an appropriate balance between the powers and duties of provincial education departments and school governing bodies. Also implicated in this are the interests of parents in the quality of their children’s education, and the state’s obligation to ensure that all learners have access to basic schooling.

We must also remember that the solution to poor education cannot be based on attempts to squeeze as many pupils as possible into schools that already provide quality education, but rather that education departments should provide more and better schools – so that all pupils have access to quality education.

The Court reminded both parties that the Constitution provides us with the reference point – the best interests of our children – and stated that trouble begins when we lose sight of that reference point.  

Justice Mhlantla reminded the parties that scenarios ought to be avoided where parties become more absorbed in staking out the power to have the final say, rather than fostering partnerships to meet the educational needs of children. 

Finally, the Court held that co-operation is the compulsory norm in disputes between school governing bodies and national or provincial government. Such co-operation is rooted in the shared constitutional goal of ensuring that the best interests of learners are furthered, and that the right to basic education is realised.

by Adv Jacques du Preez, Centre for Constitutional Rights

[Photo credit: thomas_slyFoterCC BY]