On Thursday, 5 May 2016, the Constitutional Court will hear the matter of FEDSAS v Member of the Executive Council and Head of Department, Gauteng Department of Education (CCT 209/15). Equal Education has been admitted as amicus curiae (friend of the court).
The matter concerns a challenge by the Federation of Governing Bodies for South African Schools (FEDSAS) against various aspects of the Gauteng Regulations for Admission of Learners to Public Schools (“the Regulations”).
The Supreme Court of Appeal (SCA) unanimously dismissed the majority of FEDSAS’s arguments. However, FEDSAS, unhappy with the outcome of the SCA judgment, appealed to the Constitutional Court.
The battle over the Regulations follows a history of cases where school governing bodies of predominantly more well-resourced schools have fought to preserve control over admissions at schools. FEDSAS contends that the Regulations threaten to encroach on the powers of school governing bodies to control public school admissions.
As amicus curiae, EE believes, like the Gauteng Department of Education (GDE), that what is fundamentally at stake in this case is the need to ensurepublic school assets are not monopolised in service of the interest of only current learners and their parents. This is particularly so as there is deep inequality in the distribution of public school resources along racial lines. EE further argues that the legislation must be read in light of the desperate inequality persisting in Gauteng, and the need of the GDE to ensure that there is an equitable distribution of learners across the system.
EE holds that the use of geographical location will continue to reinforce racial segregation, as learners’ in poorer areas are unable to access better education opportunities in better resourced areas, amounting to unfair discrimination. EE submits that the default regime which determines school feeder zones solely on the basis of proximity coincides with racially based apartheid urban divisions. The result is the reinforcement of inequality as learners in poorer areas are unable to access better education opportunities in better resourced areas. The current enrolment strategy in dealing with school capacity has seen township schools bursting at the seams; while FEDSAS-aligned schools, which are public schools, are operating with few learners in classrooms.
Beyond the legal and political arguments, we have seen practically on the ground how the current status quo affects parents and learners. Parents have had to lie about where they live in order for their children to well-resourced schools, or parents who would rather have their children sit at home than attend under-performing or dysfunctional schools.
EE deems this an important case for equitable access to education. Achieving radical redistribution of resources in the education system is an on-going and complex struggle. Section 29 of the Constitution (the right of access to education) has been interpreted by our courts to impose an obligation on the State to not only provide education but to also simultaneously redress past imbalances caused by racially discriminatory laws and practices of the Apartheid era.
We would like to see the Constitutional Court reaffirm that public school resources cannot be monopolised for the benefit of the historically privileged, but must be put to work in the project of redressing the inequalities and injustices of the past.
For further comment contact:
Tshepo Motsepe (EE General Secretary) – 071 886 5637
Nombulelo Nyathela (EE Spokesperson) – 060 503 4933
Sheryll Dass (EELC Senior Attorney) - 021 461 6582