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[2021] ZAWCHC 212
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Hesewu and Another v School Governing Body, Sunningdale Primary School and Another (15908/2020) [2021] ZAWCHC 212 (26 October 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
Case number: 15908/2020
Before: The Hon. Mr Justice Binns-Ward
Hearing: 20 October 2021
Judgment:
26 October 2021
In the
matter between:
SANGO
MELIKHAYA HESEWU
First
Applicant
FELICIA
LENOHOLO
HESEWU
Second Applicant
and
SCHOOL
GOVERNING BODY, SUNNINGDALE
PRIMARY
SCHOOL
First
Respondent
MINISTER
FOR EDUCATION: WESTERN CAPE
Second
Respondent
JUDGMENT
(Delivered by email to the parties and release to SAFLII.)
BINNS-WARD J:
[1]
The applicants, who reside at West Beach in
the Blouberg area of Cape Town, applied as a matter of urgency for
the following relief:
1.
The review and setting aside of the
decision of the first respondent, which is the school governing body
of Sunningdale Primary
School, made on 1 July 2020, refusing their
application for the admission of their daughter to the school as a
learner in Grade
R;
2.
The review and setting aside of the
decision of the second respondent, who is the Minister of Education
for the Western Cape, dismissing
their appeal against the refusal by
the first respondent of their application for their daughter’s
admission to Sunningdale
Primary School;
3.
An order declaring that the first
respondent’s admission policy ‘
allowing
or preferring only learners of Sunningdale Primary School to have an
address designated by the City of Cape Town “Sunningdale”
and/or those who have siblings at Sunningdale Primary School to be
invalid, unlawful and inconsistent with the Constitution
’;
[1]
4.
A direction that their daughter be admitted
and enrolled at Sunningdale Primary School as a Grade R learner for
the 2021 school
year.
[2]
The notice of motion set the application
down for hearing on the urgent roll on Friday, 27 November 2020.
Very shortly before
the enlisted date, however, the applicants
removed the matter from the roll, without tendering wasted costs, and
indicated that
they would instead pursue the relief sought in the
ordinary course. By the time the matter was removed from the
court’s
urgent roll the first respondent had already delivered
its answering papers, and the second respondent, who elected to abide
the
decision of the court, had delivered an affidavit for the
assistance of the court explaining her decision to turn down the
applicants’
appeal against the decision of the school governing
body. The respondents’ papers had obviously been prepared
under
the constraints of the shortened time periods stipulated by the
applicants when they gave notice of their intention to apply for
relief as a matter of urgency.
[3]
The evidence does not disclose as much, but
it appeared to be common ground, when the matter was argued, that the
applicants were
successful in enrolling their daughter in Grade R
for 2021 at another school close to their home. Accordingly,
they
no longer required a setting aside of the decision of the
governing body not to grant their daughter admission to Sunningdale
Primary.
The applicants, however, delivered replying papers in
March 2021, in which they indicated their intention to pursue the
application
only in respect of the declaratory order sought that the
first respondent’s admission policy was invalid, unlawful and
inconsistent
with the Constitution. They averred that they that
they were pursuing the application for that relief ‘
in
the public interest
’. The
averment was plainly made with the provisions of section 38(d) of the
Constitution in mind.
[2]
[4]
The applicants thereby purported in their
replying papers to convert an application that had been brought by
them in their own interest,
in their capacities as the parents and
guardians of their minor child, into one brought in the public
interest. I indicated
at the hearing that this was
unacceptable. Apart from the fact that it is a trite that an
applicant must make out its case
in its founding papers and is not
permitted to do so in its replying papers, the broader potential
impact of a determination of
the question in the abstract as one to
be determined in the public interest, rather than only in relation to
the applicants’
application for their daughter’s
admission to the school, which was the basis upon which the founding
papers were drafted,
[3]
would require wider notice. If the issue were to be approached
as one to be determined in the public interest, the national
minister
and quite probably also the statutory bodies that advise her on
matters of policy, including the formulation of admissions
policy for
public schools,
[4]
would be necessary parties. Entertaining the application on a
different basis to that in respect of which the provincial
minister
provided an explanatory affidavit would also be unfair to the second
respondent. A notice in terms of Rule 16A of
the Uniform Rules
would also need to be given, for it is very conceivable that other
school governing bodies and organisations
with an interest in
education might wish to be heard. The application is
accordingly being considered on the basis it was
brought, that is as
an application brought by the applicants in their own interest.
[5]
Sunningdale is a suburb immediately
adjacent to West Beach, where the applicants live. It appears
from the Google Maps included
in the papers that the two suburbs
adjoin each other along the R27 West Coast Road that runs parallel
to, and a kilometre or so
inland from, the Bloubergstrand beach.
West Beach, as its name suggests, is closer to the beach, and
Sunningdale is on the
inland side of the R27.
[6]
The Sunningdale Primary School is situated
in Sunningdale. The text of the impugned admissions policy
suggests that the school
was established in 2012 ‘for first
time admissions and enrolment in 2013’. It is an
‘
ordinary public school
’
within the meaning of the
South African Schools Act 84 of 1996
.
[5]
It is therefore a school established in terms of the second
respondent’s obligation, in terms of
s 12(1)
of the Act,
to ‘
provide schools for the
education of learners out of funds appropriated for this purpose by
the provincial legislature
’.
[7]
The second respondent’s
aforementioned statutory duty to provide public schools reflects the
obligation placed on the state
in terms of s 29 of the Constitution
to provide at least basic education to everyone in the country.
[6]
To the same end, the Schools Act makes school attendance compulsory
for all children between the ages of 7 and 15, or when
the child
reaches the ninth grade, whichever occurs first.
[7]
Mr
Njeza
,
who appeared for the applicants, accepted, correctly so in my view,
that it is a necessarily implied feature of the second respondent’s
aforementioned duty that she ensure an equitable distribution of
public schools so as to facilitate fair and effective access to
education to local communities throughout the Province. As far
as practically possible, children should not have to travel
unduly
long distances to their nearest school.
[8]
In my judgment it is also implicit in the
nature of the statutory obligation that the provincial minister must
ensure that the schools
that are established have sufficient capacity
to meet the basic educational needs of local communities. So,
whereas s 12(3)
of the Schools Act obliges the members of provincial
executive councils to ‘
ensure that
there are enough school places so that every child who lives in his
or her province can attend school
’,
it would not be good enough if the school places provided were in
places where it would be unduly difficult for affected
learners to
get to.
[9]
These observations find support, I think,
in the criticism directed by the Constitutional Court at the
Mpumalanga provincial education
authorities in
Head
of Department : Mpumalanga Department of Education and Another v
Hoërskool Ermelo and Another
[2009] ZACC 32
(14 October
2009); 2010 (2) SA 415
(CC) ;
2010 (3)
BCLR 177
(CC) on the facts of that case for their failure to make
adequate provision for local communities in the establishment of
schools
in the town of Ermelo.
[8]
It was by reason of that failure that it became necessary for 113
black pupils of the town who sought English medium education,
but for
whom no classroom space was available at English medium schools in
the area, to be accommodated on an exigent basis in
an Afrikaans
medium school with spare infrastructural capacity. The
governing body sought to exclude them on the basis of
the school’s
commitment to Afrikaans medium instruction that was incorporated in
its admissions policy.
[10]
In the current matter, the evidence is that
there are several schools in the Blouberg area, including a few
independent schools.
Sunningdale Primary School appears to be
the only public school in Sunningdale and there is also at least one
in West Beach.
The Sunningdale Primary School offers Grade R
facilities, whilst the primary school in West Beach does not.
However, there
is a primary school in another area adjacent to West
Beach that does offer such facilities, and where a place was
available for
the applicants’ daughter when their application
to enrol her at Sunningdale was unsuccessful. The other school,
Bloubergrant
Pre-Primary School, which is 1 km from the applicants’
home, is actually slightly more proximate than the Sunningdale
Primary
School. There is no evidence to suggest that there is a
material difference in the quality of the education available at
these two public schools, nor is there any evidence that the
demographic composition of the learners enrolled at the two schools
differs materially.
[11]
Sunningdale Primary School has four Grade R
classrooms. Provincial policy determines that there should be a
maximum of 30
learners in a Grade R class. The school’s
capacity to admit Grade R learners is therefore capped at 120.
The
school received at least 200 applications for admission to Grade
R for the 2021 school year. It was able to accept only 117
of
them. The remaining three places were kept open to allow for
the contingency that 3 learners from the 2020 Grade R classes
would
require to repeat the grade.
[12]
The evidence is that applications are
numbered in chronological order of receipt. There is a dispute
between the applicants
and the first respondent as to where in the
numerical order of applications the application for the applicants’
daughter
ranked. The applicants allege that they were number 51
in order, whereas the first respondent says that the application was
191. Applying the rule in
Plascon-Evans
,
[9]
the court is bound, in any determination of the matter on paper, to
accept the respondent’s version unless it is obviously
far-fetched and untenable, which is not the case in this instance.
The particulars of the applicants’ application are
in any event
captured on a pro forma list on which the number 191 is pre-printed
at the relevant place. The probabilities
therefore in any event
support the first respondent’s version. According to the
first respondent, 152 properly completed
applications for places in
Grade R were received before the applicants’ application was
lodged.
[13]
‘
School governing bodies are a
vital part of the democratic governance envisioned by the Schools
Act. The effective power to run
schools is indeed placed in the hands
of the parents and guardians of learners through the school governing
body
.’
[10]
The Constitutional Court has held that s 20 of the Schools Act,
which provides for the functions of all governing bodies,
must be
construed to impose upon such bodies the management of the school
‘
not only in the interests of
those who happen to be learners and parents at the time but also in
the interests of the broader community
in
which the school is located
and
in the light of the values of our Constitution
’.
[11]
The construction recognises the relevance of public schools as facets
of the communities in which they are located. It
acknowledges
the relevance of a connection between location and community.
[14]
The point was emphasised in para 99 of the
judgment in
Hoërskool Ermelo
,
where Moseneke DCJ explained that the governing body was obliged to
determine its policies not only with regard to the interests
of the
school’s enrolled learners but also those of the ‘
of
the community in which the school is located and the needs of other
learners
’. In speaking of
the ‘
needs of other learners
’,
the learned deputy chief justice was dealing in that case with the
effect of the absence of adequate classroom capacity
to accommodate
other learners living in the area in which the school concerned was
situated. In that case the governing body
was required to
reassess its policies having appropriate regard to the school
admission capacity problem faced by the broader local
community
assessed in the context of dwindling enrolment numbers and consequent
spare capacity at the school concerned.
[15]
Section 5 of the Schools Act regulates
admission to public schools. Section 5(1) provides that a
public school must admit
learners and serve their educational
requirements without unfairly discriminating in any way.
Section 5(5) provides that,
subject to the other provisions of the
Act and any applicable provincial law, the admission policy of a
public school is determined
by the governing body of the school.
The provisions of s 5 of the Schools Act are replicated in all
material respects
in s 41 of the Western Cape Provincial School
Education Act 12 of 1997.
[16]
The admission of learners to public schools
is also addressed in the
National Education Policy Act 27 of 1996
.
That Act empowers the national minister of education to determine
national policy on various matters including the admission
of
students to ‘
education
institutions
’, such being defined
to mean ‘
any school contemplated
in the
South African Schools Act, 1996
’.
Policies formulated under the
National Education Policy Act are
required by s 4 of the Act to be directed at ‘
the
advancement and protection of the fundamental rights of every person
guaranteed in Chapter 2 of the
Constitution and in terms of
international conventions ratified by Parliament
’.
The Act’s provisions make it clear that policies made under the
Act are the product of a consultative process
with a range of
stakeholders, including the Council of Education Ministers, the Heads
of Education Departments Committee and the
National Education and
Training Council.
[17]
The national minister has published a
national policy in respect of admission to ordinary public
schools.
[12]
Its expressed purpose is to provide a framework to all provincial
departments and governing bodies of public schools for
developing
school admission policies. It provides that provincial heads of
department are responsible for the administration
of learners to
public schools. A part of that responsibility is the duty to
coordinate the provision of schools and the administration
of
admissions of learners to ensure that all eligible learners are
‘
suitably accommodated
’.
Governing bodies are required to make a copy of their school’s
admission policy available to the head of department.
The
evidence is that the first respondent duly made Sunningdale Primary
School’s admission policy available to the head of
department.
[18]
The national admissions policy also lays
down requirements in respect of the documentation that must accompany
an application for
a learner’s admission. It was certain
shortcomings in this regard and the time taken to rectify them that
occasioned
some delay to the applicants in the current matter in
submitting a compliant application. In ordering the receipt of
admission
applications, Sunningdale Primary School ranks the
applications in order of compliant applications. There was
nothing exceptionable
about that in my judgment.
[19]
The national admissions policy allows heads
of departments, after consultation with representatives of governing
bodies, to determine
feeder zones ‘
in
order to control the learner numbers of schools and co-ordinate
parental preferences
’. The
policy provides that ‘(s)
uch
feeder zones need not be geographically adjacent to the school or
each other
’.
[20]
Paragraph 34 of the national admissions
policy provides as follows:
If a feeder zone is created-
(a)
preference must be given to a
learner who lives in the feeder zone of a school or who resides with
his or her parents at an employer's
home in the feeder zone;
(b)
a learner who lives outside the
feeder zone is not precluded from seeking admission at whichever
school he or she chooses. However,
access to a chosen school cannot
be guaranteed;
(c)
a learner who lives within the
feeder zone of a school A must be referred to the neighbouring school
B, if school A is oversubscribed.
If school B is oversubscribed, an
alternative school within a reasonable distance must be found by the
Head of Department.
If that is not possible, school A must
admit the learner;
(d)
the preference order of admission
is:
(i)
learners whose parents live in the
feeder zone, in their own domicile or their employer’s
domicile;
(ii)
learners whose parent’s work
address is in the feeder area; or
(iii)
other learners: first come first served.
[21]
The Western Cape Department of Education
has chosen not to determine feeder zones. The second respondent
pointed out in her
explanatory affidavit that the Department is
astute to the fact that there are pro’s and con’s to
feeder zones.
Her evidence regarding the perceived advantages
and disadvantages of feeder zones generally, and in respect of
Sunningdale in particular,
went as follows:
37. It is quite common for the
admission policies of public schools to give preference to applicants
who reside in a defined area proximate to that school.
38. These proximity
requirements are not ones which are imposed by me or the WCED.
As
noted in the school’s answering papers, the WCED has elected
not to impose so called ‘Feeder zones’ for all public
schools. However, individual public schools are permitted to give
preference to learners from a geographical area proximate to
the
school,
should they so wish
(and provided this does not result
in unfairness or indirect discrimination).
39. I note that in general the
use of “catchment areas” or “feeder zones”
for school admission decisions raises complex policy-based
considerations:
39.1
On the one hand
, proximity to
the school is undoubtedly an important consideration for learners.
This means that learners spend less time commuting,
and the school
becomes a centre of community life. This in turn allows learners and
their parents or guardians to become fully
immersed in the school
community. Using a geographical area also serves as a useful
objective selection criterion. This avoids
the situation in
which schools use vague or more subjective criteria to ‘cherry
pick’ only the top academic, sport,
or cultural achievers. Such
a system may also lead to the perpetuation of systemic disadvantage.
39.2
On the other hand
, using
proximity as the main admission criterion can in many cases lead to
indirect discrimination and the perpetuation of racial
disadvantage.
This occurs in cases in which the vestiges of structural apartheid
mean that some areas are still dominated
by one racial group. If
proximity is used as a determinative criterion in these areas, then
the inevitable result will be that
the learners at the school will
reflect the demographics of the area, leading to minimal levels of
integration.
40. The WCED and I navigate
these considerations by leaving it to individual schools to determine
the extent to which a catchment area is a determinate if selection
criterion, or not. In the circumstances the WCED does not impose
feeder zones as a requirement for
all
schools. But that
does not mean that we shun the idea of proximity as an important
selection criterion for
many
schools.
41.
In this case
there
was no basis for me to doubt (based on the appeal before me) that the
benefits of using proximity as a criterion outweigh
the risks. There
was simply no suggestion that this catchment area led to any form of
indirect discrimination.
42. I note that in the papers
before this Court the Applicants now suggest that residents of
Sunningdale are ‘rich and white’ (founding affidavit,
paragraph 36.2); and that restricting the admission to
Sunningdale is discriminatory ‘because [it] is a suburb which
is essentially inhabited by white South Africans’ (founding
affidavit, paragraph 45).
43. I fully appreciate the
concern that apparently neutral geographical boundaries can in some
cases be abused to effect a discriminatory result. If this is
done, the WCED and I act decisively against such an admission
policy.
This is not, however, a case in which such an argument can be raised:
43.1
First
, as a matter of
process, this basis was not raised by the Applicants in their appeal
to the SGB, or in their appeal to me. If the
Applicants believed that
this was a factor which would influence my decision, they should have
raised it in their appeal before
me. Having chosen not to do so, it
is not open to them to criticise my decision for not taking this
consideration into account.
43.2
Second
, as a matter of
substance, there is with respect no objective basis for the Court to
accept the evidence regarding the demographic
makeup of Sunningdale,
as opposed to the area of West Beach (where the applicants stay).
An analysis of the school’s
admissions statistics does not bear
out any suggestion that it employs admission requirements to favour
learners of one race or
another. All indications are that the area is
middle class and more integrated than many other areas.
44. I also fully appreciate
that geographical catchment areas for schools can in some cases
appear, at first blush, to operate harshly. Many children who live
relatively close to a school may fall just outside of the
geographical
catchment area. I would, however, note the following:
44.1
First
, In all cases in
which there is a catchment area, its boundaries must be clearly
defined somewhere. This will always mean that
some perspective
learners will fall just beyond the catchment area. This is
unfortunate, but unavoidable.
44.2
Second
, The WCED
liaises with schools to co-ordinate catchment areas of different
schools. This is reflected in the school’s answering
papers,
which evidence that the WCED and principals of local schools meet to
discuss the extent of their respective catchment areas.
Under this
arrangement, the West Beach area (where the Applicants reside) falls
under the catchment of Blouberg Ridge Primary School
(answering
affidavit, para 45-47). Although Blouberg Ridge does not
currently have a Grade R class, there are several other
Grade R
facilities in the area. These include Bloubergrant Pre-Primary
School.
45. In these circumstances I
was satisfied that the catchment area set in the school’s
admission policy was a reasonable, lawful and fair measure. As it
happens, the Applicants reside outside of the Sunningdale area.
Although they are near to the school, they are even closer to
Blouberg Ridge Primary School (which is 1.6 kms away on public
roads),
and the Bloubergrant Pre-Primary School (which is 1 km away
on public roads).
[22]
The second respondent testified that the
Western Cape Department of Education left it to the individual
governing bodies of the
public schools in the Province to determine
as part of the schools’ admission policies whether to determine
feeder zones
for their respective schools. I think it would be
fair to say that the second respondent’s evidence in this
regard
falls to be understood within the context of an appreciation
by her that the Department is charged with an oversight role that
would include being satisfied, when a school submits its admissions
policy to the Head of Department, as required in terms of the
national policy on admissions, that the submitted policy does not
offend against the requirements of the Schools Act or any applicable
national or provincial policy and does not have a discernibly adverse
impact on the Department’s responsibility to ensure
that all
eligible learners in the Province are ‘suitably accommodated’.
It is any event evident from the second
respondent’s treatment
of the applicants’ appeal to her against the school’s
decision not to admit their daughter
that she was satisfied that
there was nothing unlawful or unacceptable in the pertinent terms of
the admissions policy of Sunningdale
Primary School.
[23]
The impugned provisions of Sunningdale’s
admissions policy read (linguistic warts and all) as follows:
... It is
the School’s policy that the following preference be afforded
to applications:
7.3 First, except for Grade 1,
a learner must have passed and met the requirements of the grade
immediately below the grade into which admission is sought.
Children admitted to Grade R are automatically admitted to Grade 1
(if they have met the minimum academic requirements) and need
to
provide the school with one term’s written notice if the Grade
1 place will not be accepted. No applications for Grade
1 will be
necessary, in this case.
7.4 Second, preference will be
given to a learner whose Parent(s) legal Guardian(s) lives at
an
address designated by the City of Cape Town as Sunningdale within a
0-3 km radius of the school, and for whom SPS is the nearest
English
speaking public primary school measured by public road to the
residence of the learner. Parent(s)/legal guardian(s) of
such a
learner must provide evidence and adhere to the following:
·
He, she or they is/are the
owner(s) of the property by way of a title deed reflecting the same
address
·
He, she or they is/are in
possession of a signed lease agreement in his/her/their name(s) (not
a sublease) in respect of the property.
·
Should the term of lease be of a
negligible period, then it is in the sole discretion of the Principal
to decline the application
on such grounds.
7.5 Third, preference will
only be given to siblings if the admissions criteria has been met,
i.e. address falls within the geographical area of 0-3 km and is
Sunningdale and the application has been received within the
stipulated admissions dates. This includes Grade R as Grade R is not
compulsory.
7.6 Four, the language of
learning and teaching of SPS is English 1
st
Language and
Afrikaans 2
nd
Language and thus it will be required that
the learner is proficient in English and have a suitable level of
Afrikaans as per the
grade applied for.
7.7 Five, should the admission
criteria be met and there is an oversubscription of applications,
these will be assessed based on the order of the date on which the
fully completed application and all supporting documents were
received.
The
applicants’ attack is directed at paragraphs 7.4 and 7.5 of the
school’s admission policy, which determine a feeder
zone and
give preference to applicant learners who have a sibling already at
the school. On a literalist reading of paragraph
7.5, it seems
to add nothing to the feeder zone preference, but Ms
Gabriel
,
who appeared for the first respondent conceded that in practice
preference was given to the application of any learner who had
a
sibling already at the school irrespective of whether the applicant
lived within the geographical limits of Sunningdale.
[24]
The applicants’ counsel initially
sought to argue that it was outside the powers of a school governing
body to determine a
feeder zone. He relied in support of that
contention on the provisions of the abovementioned national policy on
public school
admissions, which expressly refers to the authority of
a head of department to determine feeder zones. He submitted
that
it followed that because such authority had been expressly
invested in heads of department it had therefore been implicitly
excluded
from the ambit of matters a governing body could include in
its policy. Later in his argument, he appeared to abandon that
argument when he submitted that in the current case, and by
implication in all comparable cases, a governing body that wished to
delimit a feeder zone for admissions purpose should do so by adopting
a fixed radius from the school as the boundaries for such
zone, as
opposed to fixing it with reference to a geographic boundary in terms
of a town planning layout. In my judgment
there is no merit in
either of the contentions.
[25]
As to the first of them, s 5(5) of the
Schools Act provides in unqualified terms that a public school’s
governing body
determines the school’s admissions policy.
It was not open to national minister in a policy declared in terms of
the
National Education Policy Act to
derogate from the substantive
provisions of the Schools Act, and I have no reason to think that by
para 33 of the policy,
from which I quoted in paragraph [19]
above, she had any intention to do so. On
the contrary, it is the heads of departments’ authority to
determine feeder
zones that is qualified because they may exercise it
only after consulting the affected school governing bodies.
[26]
As to the second contention, the second
respondent has pointed out, realistically, if a feeder zone is
determined, its boundary
has to be delineated at some point. Mr
Njeza
suggested it should be done by drawing a circle around the school
with a given radius of 3 or 5 kilometres. That is indeed
one
possible way of delineating the boundary, but, depending on the
circumstances, it could be quite irrational. What, for
example,
if three of the quadrants of the notional circle were unpopulated, or
certain of them much less densely populated than
the others?
What if parts of the circle coincided with the feeder zone of an
equivalent school in the adjoining area?
One can readily
conceive of several methods of delimiting a feeder zone. Any of
them would be unexceptionable so long as
it was rational. The
applicants have not demonstrated that there is anything unreasonable
or irrational about the delimitation
of the school’s feeder
zone consistently with the boundaries of the suburb in which it is
situated. The Grade R enrolment
figures suggest that the
delimitation on that basis allows for the enrolment of all the
applicants from the Sunningdale area and
that the spaces left over
are taken up by learners admitted from the surrounding suburbs.
There is no indication that the
facilities of the school are not
fully available to the community to which it is local. If the
Grade R application figures
are anything to judge by, Sunningdale
Primary appears to be a very popular school with far more applicants
for admission than its
capacity can accommodate. Its admissions
policy nevertheless allows it to accommodate all the applicants for
Grade R admission
from its feeder zone plus many from homes in
adjoining areas outside the zone.
[27]
The applicants described Sunninghill as
‘
inhabited mainly by rich and
white people
’. Elsewhere in
their founding affidavit the applicants alleged that the feeder zone
had the effect of excluding children
from Parklands, another
adjoining suburb, that was said to have a significant population of
blacks and lower income earners.
They allege that some parts of
Parklands are closer to the school than some parts of Sunningdale
that fall within the feeder zone.
The implication in their
evidence in this regard was that the refusal of their daughter’s
admission application was a manifestation
of racial discrimination on
the grounds that the admission policy’s delimitation of the
feeder zone with reference to the
municipal boundaries of the suburb
had an indirect discriminatory effect on racial lines.
[28]
The first respondent disputed the
applicants’ allegations in this regard. The deponent to
the first respondent’s
answering affidavit denied the
applicants’ allegation that Parklands North, which is the part
of Parklands closest to Sunningdale,
was ‘
demonstrably
black and of lower income
’. She
also denied that Sunningdale was ‘
demonstrably
inhabited by rich, white people
’.
She pointed out that West Beach, where the applicants live, was ‘
also
not a predominantly lower income area
’.
[29]
The second respondent, as appears from the
passage from her explanatory affidavit quoted above, is of the view
that ‘
(a)ll indications are that
the area is middle class and more integrated than many other areas
’.
[30]
None of the parties has provided empirical
evidence concerning the demographics of Sunningdale or West Beach.
As mentioned,
the various areas mentioned adjoin, or are in close
proximity to, one another, and there is no objective evidence to
establish
that there is a material, or indeed any, difference in the
socio-economic status or ethnic mix of the people who live in them.
[31]
On my counting, 65 of the 117 learners
admitted for 2021 were from outside Sunningdale. Thirty-four of
the 65 learners admitted
from outside Sunningdale were siblings of
learners already enrolled at the school and 23 of the 52 admissions
from within the Sunningdale
feeder zone were siblings of older
children already attending the school. Four of the admissions
from outside the feeder
zone were from West Beach. All but one
of the admissions from West Beach were of the white demographic.
Of the 52 learners
admitted from the suburb of Sunningdale, nine were
not white. And of the 65 admitted from outside Sunningdale, 27
were not
white. Forty-eight of the 117 learners admitted to Grade R
were from Parklands or Parklands North, 25 of them were not white.
Twenty-three of the learners from the Parklands areas had siblings at
the school.
[13]
[32]
Mr
Njeza
argued that one was able to deduce from the demographic composition
of the Grade R classes for 2021 that Sunningdale was predominantly
inhabited by the white demographic. The figures support that
proposition, and assuming it to be sound it would also support
the
conclusion that the school demographic broadly represents the current
make-up of the local community of the area that the school
was put
there to serve.
[33]
But the admissions statistics show that the
majority of entrants to Grade R came from outside Sunningdale, and
that 41.5% of them
were not white learners, a significant proportion
of which came from Parklands. There is simply no objectively
verifiable
evidence to support an allegation of racially based
exclusion or unfair discrimination. On the contrary, the
undisputed evidence
is that school’s admissions policy is
subject to regular review in consultation with representatives of
several other primary
schools in the surrounding area and the Western
Cape Education Department to ensure that, in an appropriately
integrated manner,
it effectively serves the educational needs not
only of the Sunningdale community, but also of the broader Blouberg
community,
including Parklands and West Beach.
[34]
The evidence points ineluctably to the fact
that the applicants’ application for their daughter’s
admission failed because
it was submitted comparatively late relative
to the competing applications. For that reason it would have
met with a similar
fate in any application system in which a feeder
zone determined by a head of department in terms of the national
policy in respect
of admission to ordinary public schools was
applicable. This is so because the order of preference fixed
under first respondent’s
admissions policy mirrors in all
material respects that applicable in admissions policies to which
paragraph 34 of the national
policy pertains (i.e. those determined
by heads of departments, rather than by governing bodies). The
only difference is
the absence in the national policy of any
provision in respect of sibling admissions.
[35]
The sibling preference is racially
neutral. There is also a rational basis for it, as pointed out
in the second respondent’s
explanatory affidavit. The
Minister stated that many schools include an admission criterion that
favours learners who have
older siblings already at the school. She
offered three reasons in support of the cogency of such a policy: (i)
that it contributed
towards making public schools a centre of the
community and encouraged parents to become involved in the life of
the school, which
becomes less likely if parents’ attention is
divided between different schools attended by their children, (ii) it
avoids
the pressure on parents who could otherwise have to drop and
collect children at or from different schools, which may have
different
school hours and (iii) it can be beneficial for
children from the same family to be at the same school and to share a
familiar
environment.
[36]
Unsurprisingly, not much was advanced in
oral argument in support of this basis for the attack on the
first respondent’s
admissions policy.
[37]
For all the foregoing reasons I have
concluded that the applicants have not made out a case for an order
declaring the first respondent’s
admissions policy to be
unconstitutional.
[38]
The first respondent’s counsel argued
that in the context of the applicants’ daughter having been
enrolled in Grade
R at a nearby school, the applicants’
interest in the first respondent’s admissions policy had become
an abstract one
and the declaratory relief that it sought would have
no impact on their legal rights and interests. With reference
to
Ex parte Nell
1963 (1) SA 754
(A), Ms
Gabriel
submitted that in the circumstances the
court should exercise its discretion against entertaining the
application for a declaratory
order, irrespective of its possible
merit.
[39]
The applicants undoubtedly had a relevant
interest when the proceedings were instituted, and in my view the
question is whether
in the subsequently altered situation in which
the issue of their daughter’s admission to Sunningdale Primary
School has
become moot the court should enter into the question of
the constitutional compatibility of the governing body’s
admission
policy. Ordinarily, it is a question that falls to be
dealt with as a preliminary issue. I have reserved addressing
it to the end of the judgment because I was of the view that
notwithstanding its arguable mootness, the subject matter of the
declaratory relief sought by the applicants was potentially one of
more general interest that could usefully be determined in the
current litigation.
[14]
I consider that it would be in the interests of justice to give a
definitive judgment on the issues raised by the applicants.
Doing so would, in my view, be of practical benefit by way of
guidance to the first respondent and the Western Cape Education
Department as well as to parents applying for admission to schools
with comparable policies, of which I gather from the second
respondent’s explanatory policy there are many. I say
that fully appreciating that each case turns on its own facts,
and in
no way meaning to detract from the duty of a school governing body
and the supervising department of education to be mindful
of the
peculiar needs and interests of the local community when it devises
and regularly revises its admissions policy.
[40]
Lastly, consideration must be given to the
question of costs. The relief sought by the applicants was of a
constitutional
nature.
[41]
The general rule
in constitutional
litigation is that an unsuccessful litigant in proceedings against
the state ought not to be ordered to pay costs;
Biowatch Trust v
Registrar, Genetic Resources
[2012] ZACC 14
(3 June
2009); 2009
(6) SA 232
(CC);
2009 (10) BCLR 1014
(CC) at para 21-25, following
Affordable Medicines Trust and Others v Minister of Health and
Another
[2005] ZACC 3
;
2005 (6) BCLR 529
(CC);
2006 (3) SA 247
(CC) at para 138. In
Biowatch
loc. cit., Sachs J
identified a three-fold rationale for the rule: (i) that the
prospect of adverse costs orders should not
have unduly chilling
effect on persons seeking to assert their constitutional rights;
(ii) the serving of the public interest
by the enrichment of
‘the general body of constitutional jurisprudence’; and
(iii) as the state bears primary
responsibility for ensuring
that both the law and state conduct are consistent with the
Constitution, if there should be a genuine,
non-frivolous challenge
to the constitutionality of a law or of state conduct, it is
appropriate that the state should bear the
costs if the challenge is
good, but if it is not, then the losing non-state litigant should be
shielded from the costs consequences
of failure. In this way
responsibility for ensuring that the law and state conduct is
constitutional is placed at the correct door.
[42]
It has, however, repeatedly been stated by the Constitutional Court
that what has become generally known as ‘the
Biowatch
rule’
is not an inflexible one. In
Motsepe v Commissioner for
Inland Revenue
[1997] ZACC 3
(27 March
[1997] ZACC 3
;
1997), 1997 (2) SA 897
(CC)
1997 (6) BCLR 692
at para 30, Ackermann J writing for the
Court observed ‘
In my view one should be cautious in
awarding costs against litigants who seek to enforce their
constitutional right against the
state, particularly where the
constitutionality of a statutory provision is attacked, lest such
orders have an unduly inhibiting
or “chilling” effect on
other potential litigants in this category. This cautious approach
cannot, however, be allowed
to develop into an inflexible rule so
that litigants are induced into believing that they are free to
challenge the constitutionality
of statutory provisions in this
court, no matter how spurious the grounds for doing so may be or how
remote the possibility that
this court will grant them access. This
can neither be in the interests of the administration of justice nor
fair to those who
are forced to oppose such attacks.
’
That passage has been cited in a number of subsequent judgments of
the Court. In
Hotz and Others v University of Cape Town
[2017] ZACC 10
(12 April
2017); 2017 (7) BCLR 815
(CC);
2018 (1) SA
369
(CC), which arguably represents the most benevolent application
of the
Biowatch
rule to date, it was still acknowledged that
it does not operate inflexibly. Litigation that is frivolous or
vexatious was
given as an example where there may be a deviation from
it.
[43]
Litigation may be characterised as
vexatious not only when it is instituted with the intention just to
vex the opposing party, but
also where, no matter how bona fide the
instituting litigant, it has put the other side to unnecessary
trouble and expense which
the other side ought not to have to bear.
Compare in this regard
In Re
Alluvial Creek
1929 CPD 532
at 535,
which has been cited with approval on innumerable occasions
(including by the Constitutional Court in
Camps
Bay Ratepayers and Residents Association and Another v Harrison and
Another
[2010] ZACC 19
(4 November
2010); 2011 (2) BCLR 121
(CC) ;
2011 (4) SA 42
(CC), at para 76,
n. 72). In the current matter I consider that the
applicants’ challenge to the first respondent’s
admissions policy was so lacking in substance that it would be unjust
for the first respondent to be expected to carry the expense
of
successfully opposing it. While it raised an issue of practical
interest in the abstract, the applicants’ allegations
in
support of their constitutional challenge were wholly
unsubstantiated.
[44]
I am mindful that in
Hotz
,
it was held that the ‘nature of the issues’ rather than
the ‘characterisation of the parties’ is the primary
consideration in the application of the
Biowatch
rule, but I do not understand the judgment to imply that in
considering the ‘nature of the issues’ the substance, or
lack thereof, of the basis upon which they are raised by the
unsuccessful litigant is an irrelevant consideration. I also
do
not read the judgment to hold that the character of the parties is
never something to be taken into account in making an order
as to
costs that would be fair and just in a constitutional case.
[45]
Whilst the governing body of a public
school might qualify as an organ of state (cf.
MEC
for Education in Gauteng Province and Other v Governing Body of
Rivonia Primary School and Others
[2013] ZACC 34
(3 October 2013); 2013 (6) SA 582 (CC); 2013 (12) BCLR
1365 (CC)),
[15]
I do not think the first respondent is the type of organisation that
Sachs J had in mind when stating the third of the three-fold
rationale for the
Biowatch
rule. In my view, it is fairly clear that the learned judge
there had in mind manifestations of the state that were funded
by
public purse. In the current matter the state contributes only
3% of the funding required to run the Sunningdale Primary
School, and
the indications are that the expenses of the governing body in
meeting the litigation instituted by the applicants
would have to be
met entirely from funding provided by the learners’ parents or
guardians and come from monies that could
otherwise be applied by the
parent body for maintaining and improving the school’s
resources and the betterment of the standard
of schooling offered by
it. The costs incurred by the Department of Education in
respect of the comprehensive explanatory
affidavit put in by the
Minister are a quite distinguishable matter. The Department is
more identifiably the relevant organ
of state with
responsibility
in a matter like this ‘
for ensuring
that the law and state conduct is constitutional’. In a
case of this sort it is what Sachs J would
call ‘the
correct door’.
[46]
For all the foregoing reasons an order will issue in the
following terms:
1.
The application is dismissed.
2.
The applicants are liable, jointly and
severally, for the first respondent’s costs of suit, including
the wasted costs incurred
in respect of the aborted enlistment of the
application for hearing on 27 November 2020.
A.G. BINNS-WARD
Judge
of the High Court
APPEARANCES
Applicants’
counsel:
A. Njeza
Applicants’
attorneys:
Venfolo Lingani Attorneys Inc
Cape Town
First
respondent’s counsel:
P. Gabriel
First
respondent’s attorneys:
De la Rey Attorneys
Bellville
Second
respondent’s attorneys:
State Attorney
Cape Town
[1]
I quote from the notice of motion.
[2]
Section 38 of the Constitution provides:
‘
Anyone
listed in this section has the right to approach a competent court,
alleging that a right in the Bill of Rights has been
infringed or
threatened, and the court may grant appropriate relief, including a
declaration of rights. The persons who may approach
the court are –
a)
anyone acting in their own
interest;
b)
anyone acting on behalf of another
person who cannot act in their own name;
c)
anyone acting as a member of, or in
the interest of, a group or class of persons;
d)
anyone acting in the public
interest; and
e)
an association acting in the interest
of its members.
’
[3]
That much is made clear in para 8 and 9 of the
founding papers.
[4]
The Council of Education Ministers, the Heads of
Education Departments Committee and the National Education and
Training Council.
See paragraph [16]
below
in this regard.
[5]
As distinct from a public school for learners
with special education needs or one that provides education with a
specialized focus
on talent, including sport, performing arts or
creative arts. See s 12(3) of the Schools Act.
[6]
The Schools Act has been described as ‘
a
sequel
’ to the obligations
imposed on the State by s 29’; see
Head
of Department : Mpumalanga Department of Education and Another v
Hoërskool Ermelo and Another
[2009]
ZACC 32
(14 October
2009); 2010 (2) SA 415
(CC) ;
2010 (3) BCLR 177
(CC) in para 54.
[7]
Cf.
Governing Body
of the Juma Musjid Primary School v Essay NO
[2011] ZACC 13
;
2011 (8) BCLR 761
(CC) at para 38.
[8]
At para 103-104.
[9]
Plascon-Evans Paints (Tvl) Ltd. v Van Riebeck
Paints (Pty) Ltd
[1984] ZASCA 51
(21
May 1984)
[1984] ZASCA 51
; ;
[1984] 2 All SA 366
(A);
1984 (3) SA 623
(A), at
634E-635C (SA).
[10]
Hoërskool Ermelo
para
79.
Id para 80.
[11]
Underlining supplied.
[12]
In GN 2432 of 1998, published in GG 19377
of 19 October 1998.
[13]
The statistics in this paragraph have been taken
from the information provided in the schedules annexed as AA5 and
AA6 to the
first respondent’s principal answering papers.
The information has apparently been reviewed by the Western Cape
Education
Department, and there has been no suggestion that it is
materially inaccurate.
[14]
Cf.
Independent
Electoral Commission v Langeberg Municipality
[2001] ZACC 23
;
2001 (3) SA 925
(CC) at para 11 and
AB
and Another v Pridwin Preparatory School and Others
[2020] ZACC 12
(17 June
2020); 2020 (9) BCLR 1029
(CC);
2020 (5) SA
327
(CC) at para 48-59 and 109 -117 and the other authorities
referred to there.
[15]
In
Head of
Department, Department of Education, Free State Province v Welkom
High School and Another; Head of Department, Department
of
Education, Free State Province v Harmony High School and Another
[2013] ZACC 25
(10 July
2013); 2013 (9) BCLR 989
(CC);
2014 (2) SA
228
(CC) at para 124, the Court spoke of the Schools Act having
created ‘a partnership’ between ‘between public
school governing bodies and the state’.