This is a case about who has the power to decide the capacity of public schools -- the School Governing Body (SGB), the Provincial Department of Education, or a combination of the two? In this case, Rivonia Primary School refused to admit one additional learner because the capacity set by the SGB policy had been reached. Although the learner was subsequently admitted, the question of who has decision making power about admission to public schools needs to be determined.
The High Court found that the Department has the final word on admissions.
The decision of the High Court was overturned on appeal to the Supreme Court of Appeal (SCA). The SCA found that the power to determine admission policy lies with the School Governing Body. The SCA held that in terms of s 5(5) read with s 5A of the South African Schools Act the governing body of a public school has authority to determine the capacity of a school as an incident of its admission policy, and that provincial authorities may not ‘override’ the policy. The Basic Education MEC has responsibility to place all children seeking public school access in a province, and it is thus both lawful and logical that the MEC should have a say in admissions policy. However, government must act reasonably, and if it insists on the admission of children over and above the capacity as set by the SGB, then it must provide extra resources such as teachers and classrooms.
The SCA noted that the case concerned “a school located in an affluent, historically white suburb, where a little more than half the learners were white” but said that “none of this is relevant”. However, EE and CCL take the view that the historical, political and economic context cannot be ignored. There are two very different realities operating in the public schooling system. A majority of schools lack adequate infrastructure, books, furniture and competent teachers. The learners come from impoverished home and do not pay fees. A significant minority of public schools have inherited excellent infrastructure, have parent bodies with professional qualifications able to assist with governing the school, attract competent teachers because they are well-located and offer an attractive working environment, and are able to supplement their facilities and teaching staff due to fees collected. Whilst many public schools have 50, 60 or 70 learners per class, the Rivonia Primary School averages 24 children per class.
EE recognises that this is a sensitive issue and does not support policies that seek to destroy or diminish these adequately-resourced public schools in the name of equality. However, the law must, and does, support ensuring greater and fairer access to well-resourced public schools, while the work goes on to bring the majority of public schools up to an acceptable level.
EE and the Centre for Child Law (both represented by the Legal Resources Centre) have been admitted as amicus curiae (friends of the court) in order to support a Constitutional Court finding along the following lines:
Supreme Court of Appeal
An opinion piece on the court case was written by Doron Isaacs and Lisa Draga was published in The Star on 9 May 2013.
Link to the website of the Centre for Child Law, co-amicus with EE in this case.
Link to the website of the Legal Resources Centre, legal representatives of EE in this case.