Grootkraal UCC Primary School, a small but vibrant rural school in Oudtshoorn, faces an uncertain future. A public school on private land, owned by a Trust seeking to redevelop the land for commercial purposes, it is threatened with closure and the relocation of its learners. The case of Grootkraal, before the Cape High Court once more, is one of competing claims – a conflict between private interests and educational rights in which the lives of children are in the balance.
For over 80 years, Grootkraal has been at the heart of a close-knit community of learners, teachers, parents and church-goers. Once an impoverished farm school, it is now a source of immense pride for the community. Despite the fact that it is situated in a rural area and falls within the poorest quintile of schools, it nevertheless offers a computer laboratory and a vegetable garden which provides most of the learners with their only meal for the day. Grootkraal is also the community’s place of worship, accommodating a church on the same site.
The strength of the community has, however, been tested due to a lack of opportunity in the area – people were forced to move away in pursuit of work and a better quality of life. In spite of these difficulties, there remains a strong sense of community largely because of the commitment of learners and parents to school and church. But the community is at risk once more.
An understanding of the history of farm schools in South Africa is crucial to understanding the complex situation in which Grootkraal finds itself. During Apartheid, farm owners were able to open and close state-subsidised schools situated on their property, at their discretion. They could also determine the size of the school, what was taught and who could attend. This racist legal framework within which farm schools operated left in its wake a legacy of tenure insecurity and grossly inadequate school infrastructure.
The South African Schools Act, passed in 1996, sought a tentative remedy to this. Section 14 of the Act provides a mechanism whereby the private property owner, often a farmer, can voluntarily enter into an agreement with the MEC for Education to provide some security of tenure to a school.
In the case of Grootkraal, the Western Cape Education Department (WCED) maintains that it cannot afford to pay the rent demanded by the land owner and, as such, is unable to come to an agreement in terms of section 14. The owners of the land, the Kobot Besigheid Trust, plan to build a game farm and resort on the site currently occupied by the school. In response to the WCED’s decision to close Grootkraal and relocate its learners to Voorbedrag, a school 18 kilometres away, Grootkraal sought and was granted an emergency interdict in June 2011. The order prevented the WCED from closing the school, and instructed it to engage with Grootkraal and the Trust in order to reach an agreement as envisaged by the Act. However, a suitable agreement has not been reached and the Trust has therefore initiated eviction proceedings.
The outcome of the case is significant not merely for Grootkaal but for farm schools throughout the country whose security of tenure is similarly precarious.
Recently, it has been suggested that the Constitution and the law are a barrier to transformation, impeding substantive redress for historical injustices, land reform in particular. Equal Education (EE) joined the proceedings as amicus curiae in order to to bring to the Court’s attention section 58 of the Schools Act, which authorises the MEC to expropriate land, with reasonable compensation, “if it is in the public interest to do so…for any purpose relating to school education in a province.” If an agreement cannot be reached in terms of section 14, expropriation must be considered. It is clear from the MEC’s own affidavit that this option was never properly considered.
In this case expropriation is in fact the only course of action in which all parties would have their constitutional rights protected. This would include the land owner, which, in terms of Section 25 of the Constitution must receive compensation that is “just and equitable, reflecting an equitable balance between the public interest and the interests of those affected.”
Without security of tenure right to a basic education will remain under threat.
It would appear, however, that the MEC takes a different view. The WCED characterised the closure of Grootkraal and its merger with Voorbedrag as a ‘relocation’. In so doing, the WCED tried to circumvent the important procedural safeguards that apply when a public school on private land closes and/or merges with another. The MEC must not only comply with these procedural safeguards; he must also consider all options including expropriation.
After the matter was heard in the Western Cape High Court, the Centre for Child Law and Lawyer's for Human Rights were joined to the proceedings. The Centre for Child Law has been ordered to collate a report on what would be in the best interests of the learners at the school. Lawyers for Human Rights are representing a segment of the community and are arguing that the community/church are the rightful owners of the land on which the school is based.
What the case of Grootkraal makes clear is that the Constitution and the South African Schools Act enable real reform. Where then is the political will?
The Centre for Child Law (CCL) was asked by the court to compile a report on what would be in the best interests of the children. Centre for Child law has filed this affidavit. Carina Du Toit (the attorney for CCL) in paragraph 127 of the affidavit concludes that it is "overwhelmingly in the children's best interests that they continue to attend Grootkraal." And in paragraph 130 she "strongly recommends" that the MEC considers "all the available legal remedies including expropriation before it considers closing Grootkraal.".
All the court documents are avaliable online: