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[2011] ZAGPJHC 182
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Governing Body of the Rivonia Primary School and Another v Mec for Education: Gauteng Province and Others (11/08340) [2011] ZAGPJHC 182; [2012] 1 All SA 576 (GSJ); 2012 (5) BCLR 537 (GSJ) (7 December 2011)
REPORTABLE
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
CASE NO
:
11/08340
DATE:07/12/2011
In the matter between:
THE GOVERNING BODY OF
THE
RIVONIA PRIMARY
SCHOOL
....................................................
First
Applicant
RIVONIA
PRIMARY
SCHOOL
.......................................................
Second
Applicant
and
MEC
FOR EDUCATION: GAUTENG PROVINCE
......................
First
Respondent
HEAD OF DEPARTMENT:
GAUTENG
DEPARTMENT OF EDUCATION
.........................
Second
Respondent
DISTRICT
DIRECTOR: JOHANNESBURG EAST D9 –
GAUTENG
DEPARTMENT OF EDUCATION
.............................
Third
Respondent
CELE:
STHABILE
…....................................................................
Fourth
Respondent
MACKENZIE:
AUBREY
...................................................................
Fifth
Respondent
DRYSDALE:
CAROL
......................................................................
Sixth
Respondent
J U D G M E N T
MBHA, J
:
INTRODUCTION
[1] In this application the applicants seek:
certain declaratory relief and
an order setting aside a decision taken by the Head of Department:
Gauteng Department of Education
(“
the
HoD
”),
instructing the Principal of the Rivonia Primary School (“
the
school
”) to
enrol a learner in Grade 1 at the school, alternatively himself
enrolling the learner at the school, contrary to
the provisions of
the admission policy of the school (“
the
admission policy
”)
and not having been taken or arrived at in accordance with the
provisions of Circular 21 of 2010 (“
the
Circular
”);
an order declaring that the
appeal by the learner’s parent to, and the decision by the
HoD was not in accordance with
the provisions of the admission
policy and the Circular and that it be reviewed and set aside; and
1.3 an order setting aside the
decision of the HoD withdrawing the admission function delegated to
the Principal of the school.
[2] The applicants also seek wider interdictory relief to the effect
that:
the Member of the Executive
Council for Education: Gauteng Province (“
the
MEC
”) and
officials of the Gauteng Department of Education (“
the
Department
”)
are interdicted from unlawfully interfering with the governance of
the school;
the first to fifth respondents
are interdicted from compelling the school or its Principal to
admit learners other than in compliance
with the school’s
admission’s policy.
[3] There is also a
constitutional issue for determination in respect of which Equal
Education and the Centre for Child Law have
intervened as
amici
curiae
, namely:
3.1 Whether on a proper
interpretation of the statutory framework for admissions to public
schools in accordance with section 39(2)
of the Constitution and with
due regard to the fundamental rights to equality (section 9 of the
Constitution) and education (section
29 of the Constitution):
3.1.1 The governing body of a public school is vested with the power
to determine the enrolment capacity of that school as an
incident of
its power under
section 5(5)
of the
South African Schools Act 84 of
1996
to determine the admission policy of a school; or
The governing body’s
power to determine admissions policy does not extend to the power
to determine the enrolment capacity
of a school, having regard to
the duty of the provincial MEC’s for Education under
section
3(3)
of the
South African Schools Act 84 of 1996
to ensure that
the public education system can provide school places to all
learners of compulsory school going age.
[4] This application was
launched on 24 February 2011 and was ultimately enrolled and argued
over two days on 3 and 4 October 2011.
Having regard to the effluxion
of time and the best interests of the learner, the applicants no
longer seek to reverse the admission
of the learner or to prevent her
continued attendance at the school. The remainder of the orders
sought remain in dispute for determination
by this court.
[5] At the outset, the court
commends the stance adopted by the applicants to allow the learner to
remain at the school. The court
also appreciates the enormous
assistance provided by counsel and the professional manner in which
matter was presented. I am particularly
grateful for oral
submissions so ably presented by counsel and the well-prepared heads
of argument.
THE FACTUAL MATRIX AND BACKGROUND TO THE DISPUTE
[6] The first applicant, a
school governing body duly elected and constituted in terms of
sections 16 and 23 of the South African
Schools Act 84 of 1996 (“the
Act”), has determined a policy governing the admission of
learners to the second applicant,
a public primary school as defined
in section 1 of the Act, which provides
inter
alia
, that:
6.1 Having regard to certain material and relevant factors like the
number of appropriately sized classrooms, the optimum desk
working
space requirements of learners, the number of available educators and
so forth, the school has the capacity to admit a
maximum of 840
learners in all 7 grades, that is 120 learners per grade;
Applications for admission
commence in July and close at the end of September for the
enrolment of learners for the following
year, as stipulated by the
HoD;
6.3 A parent who wishes to enrol
a child at the beginning of a particular year, must register the
learner in the year preceding
the school year in which the learner
seeks admission;
6.4 The application for
admission must be duly and properly completed on the relevant
documentation and be supported by the documentation
required under
the relevant legislation;
6.5 The admission of learners is
determined
inter alia
by the residence of the learner’s parents and/or their place of
employment relative to the geographical position of the school
(“the
catchment area”).
[7] The school opened the
application process for the admission of learners to Grade 1 for the
school year starting January 2011
on Tuesday 13 July 2010. On 15 July
2010 the fourth respondent, the mother of the learner, came to the
school and collected an
application form which she subsequently
returned to the school on 21 July 2010. Chronologically, the fourth
respondent was the
140
th
applicant and the learner was allocated number 140 on the “A”
waiting list which catered for children whose parents
resided or were
employed within the school’s catchment area.
[8] On 17 August 2010 the school
wrote to all prospective applicants, including the fourth respondent,
informing them that they
would be notified by no later than 5
November 2010 whether or not their applications were successful. On
26 October 2010 the school
wrote to the fourth respondent and
notified her that her application for the admission of the learner
was unsuccessful and that
all unsuccessful applicants’ details
had been forwarded to the District Office which would communicate
with her regarding
the learner’s admission to a school closest
to her residence and/or work area and which had space to accommodate
the learner.
[9] On 5 November 2010 the
school notified the fourth respondent that the learner had been
placed on a waiting list “A”
as the school had reached
its capacity for Grade 1 for the year 2011. On the same day, the
fourth respondent purportedly launched
an appeal directly to the
Office of the Member of the Executive Council against the
non-admission or refusal by the school to admit
the learner.
[10] On 2 February 2011 the
second respondent telefaxed a letter to the Principal of the school,
recording that the learner’s
parent had approached his office
for assistance, that he had perused all documents submitted to him
regarding the application for
the admission of the learner and that
according to the “
10
th
day statistics
”
which relate to the number of learners in the school on the 10
th
day of the new school year, the school had not reached its capacity.
The second respondent instructed the school to admit the
learner
without delay. This letter was sent to the school under cover of a
memorandum which recorded that its content was the purported
outcome
of an appeal from the Head of the Department.
[11] On Monday 7 February 2011
the fourth respondent arrived at the school with the learner
demanding that the learner be admitted
to Grade 1. The Principal
suggested that the fourth respondent take the learner home pending
the resolution of the dispute concerning
the learner’s
admission which was between the first applicant and the second
respondent.
[12] On 8 February 2011 the
fourth respondent and the learner returned to the school accompanied
by an official from the second
respondent’s office, Mr Petlele,
who demanded that the learner be enrolled in a Grade 1 class at the
school. Mr Petlele
advised the Principal that the admission function
delegated to her in terms of the Circular was withdrawn with
immediate effect.
On that same day, a notice was telefaxed to the
Principal in which it was recorded that the HoD, acting in terms of
section 62(3)
of the Act, was withdrawing the admission function that
had been delegated to her in terms of the Circular in her capacity as
the
Principal of the school.
[13] The District Office
Director, Mr Matabane, also arrived at the school and handed a notice
to the Principal in which it was
recorded that the HoD had delegated
the admission function to Mr Matabane in his capacity as the District
Director. The said Mathabane
then marched the learner to the nearest
Grade 1 classroom and deposited her on an empty desk.
THE MAIN ISSUE FOR DETERMINATION
[14] The central dispute in this
application concerns the question whether the capacity of a public
school is determined by that
school’s governing body, having
regard to the sectional interests of learners admitted to that
school, or by the provincial
education department that is under a
statutory duty to find sufficient capacity within all the public
schools of the province to
provide public schooling to all of the
school age learners in the province.
THE APPLICANTS’ CORE SUBMISSIONS
[15] The applicants’ core
submissions are, briefly, that:
15.1 In terms of section 5(5) of
the Act, which provides that
“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”,
a
public school’s
governing body (“
SGB
”)
is the sole body that can determine its admission policy. This
policy must comply with the Constitution, the
South African Schools
Act 84 of 1996
and the applicable provincial law;
15.2 there is no statutory or
other legal power given to the MEC or HoD to determine the capacity
of a public school. Determining
the capacity of a school is an
inherent and necessary incident of any admissions policy;
15.3 the HoD, MEC and
departmental officials (collectively referred to as “
the
Department
”) are
bound by the school’s admission policy and may not ignore or
override it. This follows from the constitutional
principle of
legality;
15.4 should the Department
disagree with any aspect of a school’s admission policy, it may
not ignore it but should use the
remedies available to it to set
those aspects aside;
15.5 the HoD has no authority or
power to determine a school’s capacity;
departmental circulars are not applicable provincial law; and
15.7 any appeal to the MEC must
be fair, providing all parties namely the parents, Principal and
school governing body the opportunity
to make representations.
THE FIRST TO THIRD RESPONDENTS’ CORE SUBMISSIONS
[16] The first to third
respondents’ contentions can be summarised as follows:
16.1 Having regard to the
relevant statutory framework as interpreted in accordance with
section 39(2) of the Constitution with
due regard to the fundamental
rights to equality and education, which are found in sections 9 and
29 respectively of the Constitution,
the question of school capacity
is not one which can legitimately be determined by the admission
policy drawn up by an individual
school governing body. Rather it is
one which has to be determined at a systemic level by the provincial
education department
16.2 If each public school were
entitled to determine how many learners it would accommodate, this
would prevent the public educational
resources of the province from
being used in an equitable and efficient manner having regard to the
schooling needs of the learners
of the province and would create the
risk of a class of school age children being denied access to public
education
16.3 The racially discriminatory
system of education spending under apartheid has bequeathed to the
province a public schooling
system in which some schools (the former
model C schools of the old “
white
”
education department situated in historically “
white
”
suburbs) are much better resourced than most other schools in the
system. Thus if the school governing bodies of these
former model C
schools were to be allowed to determine their school capacities at
levels far lower than those of the rest of the
public schooling
system, the racially discriminatory historical privileges bequeathed
by apartheid would be capable of entrenchment
under the new
democratic order.
THE LEGISLATIVE FRAMEWORK AND THE PRINCIPLES OF STATUTORY
INTERPRETATION
[17] Section 29 of the
Constitution entrenches the right to education and provides in
relevant part that:
“
(1)
Everyone has the right –
to a basic education, including adult basic education; and
to further education, which
the state, through reasonable measures, must make progressively
available and accessible.
”
[18] Section 39(2) of the
Constitution provides that:
“
When
interpreting any legislation … every court …
must
promote the spirit, purport and objects of the Bill of Rights.
”
(emphasis added)
[19] The Constitutional Court
has repeatedly pronounced on the obligations arising from section
39(2) for the interpretation of
legislation. In
Investigating
Directorate: Serious Economic Offences and Others v Hyundai Motor
Distributors (Pty) Ltd and Others
[2000] ZACC 12
;
2001 (1) SA 545
(CC) (“
Hyundai
”)
at para [23], Langa
DCJ stressed that because of section 39(2), “
judicial
officers must prefer interpretations of legislation that fall within
constitutional bounds over those that do not, provided
that such an
interpretation can be reasonably ascribed to the section
”.
[20] In
Phumelela
Gaming and Leisure Ltd v Grundlingh and Others
[2006] ZACC 6
;
2007 (6) SA 350
(CC) at paras [26] to [27], the court emphasised that
the section 39(2) duty is one in respect of which “
no
court has a discretion
”
and must “
always
be borne in mind
”
by the courts. Indeed, this is so even if a litigant has failed to
rely on section 39(2).
[21] There are two independent
obligations that emerge from the Constitutional Court’s
jurisprudence in this regard. The
first obligation might
conveniently be referred to as the “
Hyundai
obligation
”:
This is that if a provision is reasonably capable of two
interpretations and one interpretation would render it
unconstitutional
and the other not, the courts are required to adopt
the interpretation that would render the provision compatible with
the Constitution.
Thus, in
Hyundai
the Court held that:
“
The
Constitution requires that judicial officers read legislation, where
possible, in ways which give effect to its fundamental
values.
Consistently with this, when the constitutionality of legislation is
in issue, they are under a duty to examine the objects
and purport of
an Act and to read the provisions of the legislation, so far as is
possible, in conformity with the Constitution.
…
judicial officers
must prefer interpretations of legislation that fall within
constitutional bounds over those that do not, provided
that such an
interpretation can be reasonably ascribed to the section.
”
[22] The second obligation is
that if the provision is reasonably capable of two interpretations,
section 39(2) requires the adoption
of the interpretation that
“
better
”
promotes the spirit, purport and objects of the Bill of Rights. This
is so even if neither interpretation would render
the provision
unconstitutional. See
Wary
Holdings (Pty) Ltd v Stalwo (Pty) Ltd and Another
[2008] ZACC 12
;
2009 (1) SA 337
(CC) at paras [46], [84] and [107].
[23] Thus, as the Constitutional
Court explained in
Fraser
v Absa Bank Ltd (NDPP as Amicus Curiae)
[2006] ZACC 24
;
2007
(3) SA 484
(CC) at para
[47]
:
“
Section
39(2) requires more from a Court than to avoid an interpretation that
conflicts with the Bill of Rights. It demands the
promotion of the
spirit, purport and objects of the Bill of Rights. These are to be
found in the matrix and totality of rights
and values embodied in the
Bill of Rights. It could also in appropriate cases be found in the
protection of specific right, like
the right to a fair trial ….
”
[24] Our Constitution places a
duty on all the courts to interpret legislation in a manner that is
consistent with the Constitution
and that best promotes
constitutional values.
[25] The primary right involved
in this matter is the right to a basic education. This right is
guaranteed by section 29(1)(a)
of the Constitution. It is enshrined
in the Bill of Rights. In terms of section 7(2) of the Constitution
the State must respect,
protect, promote and fulfil these rights.
Accordingly, the statutory powers, rights and obligations of the
applicants and the
first to third respondents must be understood in
the context of the constitutional commitment to substantive equality
in section
9, and, importantly the constitutional guarantee of access
to a basic education in section 29(1)(a).
THE RIGHT TO BASIC EDUCATION
[26] The importance of the right
to basic education is underscored by the fact that, unlike other
socio-economic rights it is not
subject to the limits of
“
availability of
resources”
or
“reasonable
legislative measures”.
As Nkabinde J succinctly summed it in
Governing
Body of the Juma Musjid Primary School and Others v Essay NO and
Others
2011 (8) BCLR
761
(CC) at para [37],
“
It
is important, for the purpose of this judgment, to understand the
nature of the right to “a basic education” under
section
29(1)(a). Unlike some of the other socio-economic rights, this right
is immediately realisable. There is no internal limitation
requiring
that the right be “progressively realised” within
“available resources” subject to ‘reasonable
legislative measures’. The right to a basic education in
section 29(1)(a) may be limited only in terms of a law of general
application which is ‘reasonable and justifiable in an open and
democratic society based on human dignity, equality and freedom’.
This right is therefore distinct from the right to ‘further
education’ provided for in section 21(1)(b). The state
is, in
terms of that right, obliged, through reasonable measures, to make
further education ‘progressively available and
accessible’.
”
26.1 Secondly, central to the
quest and government’s commitment to transforming the current,
unjust and unequal basic education
system is not only about
redressing past injustices, but importantly it is also about breaking
the cycle of poverty that perpetuates
the patterns of class and
racial inequality generation after generation. Undoubtedly, the
right to education is an empowerment
right that enables people to
realise their potential and improve their conditions of living. The
importance of education as a
tool to liberating and affirming people
was recognised in
Head
of Department: Mpumalanga Department of Education and Another v
Hoërskool Ermelo
2010
(2) SA 415
(“
Hoërskool
Ermelo
”) at para
[2] where Moseneke DCJ observed that:
“
It
is trite that education is the engine of any society. And therefore,
an unequal access to education entrenches historical inequity
since
it perpetuates socio-economic disadvantage.
”
[27] Nkabinde J expressed
herself at para [42] to [43] as follows:
“
[42]
The significance of education, in particular basic education for
individual and societal development in our democratic dispensation
in
the light of the legacy of apartheid, cannot be overlooked. The
inadequacy of schooling facilities, particularly for many blacks
was
entrenched by the formal institution of apartheid, after 1948, when
segregation even in education and schools in South Africa
was
codified. Today, the lasting effects of the educational segregation
of apartheid are discernible in the systemic problems
of inadequate
facilities and the discrepancy in the level of basic education for
the majority of learners.
[43] Indeed, basic education
is an important socio-economic right directed, among other things, at
promoting and developing a child’s
personality, talents and
mental and physical abilities to his or her fullest potential. Basic
education also provides a foundation
for a child’s lifetime
learning and work opportunities. To this end, access to school –
an important component of the
right to a basic education guaranteed
to everyone by section 29(1)(a) of the Constitution – is a
necessary condition for
the achievement of this right.
”
[28] The same approach was taken
by the United Nations Committee on Economic, Social and Cultural
Rights (CESCR) which explained
the position in General Comment 13 as
follows:
“
Education
is both a human right in itself and an indispensible means of
realising other human rights. As an empowerment right,
education is
the primary vehicle by which economically and socially marginalized
adults and children can lift themselves out of
poverty and obtain the
means to participate fully in their communities.
”
THE RIGHT TO EQUALITY
[29] Section 9 of the
Constitution provides that everyone is equal before the law and has
the right to equal protection and benefits
of the law. It further
provides that equality includes the full and equal enjoyment of all
rights and freedoms. Clearly, the
Constitution is committed to
redressing the injustices of our racist past including the creation
of an equal and egalitarian society
that is not only formally equal,
but substantively equal. Substantive equality requires positive and
purposive action to redress
current imbalances in the distribution of
resources. In
Bato
Star Fishing (Pty) Ltd v Minister of Environment Affairs and Tourism
and Others
[2004] ZACC 15
;
2004 (4) SA
490
(CC), at para [74], Ngcobo J pointedly if not poignantly
observed:
“
In
this fundamental way, our Constitution differs from other
constitutions which assume that all are equal and in so doing simply
entrench existing inequalities. Our Constitution recognises that
decades of systematic racial discrimination entrenched by the
apartheid legal order cannot be eliminated without positive action
being taken to achieve that result. We are required to do more
than
that. The effects of discrimination may continue indefinitely unless
there is a commitment to end it.
”
[30] Expressing the same
commitment to dismantling the huge legacy of inequalities spawned by
apartheid, Moseneke J said in
Minister
of Finance and Another v Van Heerden
[2004] ZACC 3
;
2004 (6) SA 121
(CC), at para [27] (“Van Heerden”) that
the Constitution “
enjoins
us to dismantle
”
all “
forms of
social differentiation and systematic under-privilege, which still
persist
” and to
“
prevent the
creation of new patterns of disadvantage
”.
[31] While many facets of
present-day South African society remain unequal, the inequality is
particularly stark and tragic in
the realm of basic education. Our
society still has a gargantuan challenge to undo what the
Constitutional Court described in
Hoërskool
Ermelo (supra)
at para
[2] as the “
painful
legacy of our apartheid history
”
that effectively deprived black schools of resources, while lavishing
resources on white schools. Regrettably this ill-advised
policy
resulted in a plethora of socio-economic problems plaguing our
society, including the rampant crime. The Constitutional
Court
explained, in
Hoërskool
Ermelo (supra
) at para
[46], the root cause of continuing inequality in basic education as
follows:
“
It
is so that white public schools were hugely better resourced than
black schools. They were lavishly treated by the apartheid
government. It is also true that they served and were shored up by
relatively affluent white communities. On the other hand, formerly
black public schools have been and by and large remain scantily
resourced. They were deliberately funded stingily by the apartheid
government. Also, they served in the main and were supported by
relatively deprived black communities. That is why perhaps the
most
abiding and debilitating legacy of our past is an unequal
distribution of skills and competencies acquired through education.
”
[32] It is with that
understanding of the right to equality (section 9) and the right to
basic education (section 29(1)) of the
Constitution in mind, that I
proceed to consider the proper interpretation of the
South African
Schools Act, 84 of 1996
in the context of the specific issues to be
determined.
THE SOUTH AFRICAN SCHOOLS ACT, 84 OF 1996 (“
THE
ACT
”)
[33] The primary purpose of the
Act is to provide for the organization, governance and funding of
schools. It commenced on 1 January
1997. Section 5 deals with
admission to public schools. In terms of section 5(1), a public
school must admit learners and serve
their educational requirements
without unfairly discriminating in any way. In
Hoërskool Ermelo
(
supra
)
at para [55], the Constitutional Court recognised that the purpose of
the Act is to give effect to the constitutional right to
education.
[34] The Act identifies four key
role-players in the running of public schools and delineates their
specific roles and responsibilities.
These are:
34.1 the National Minister of
Education who is responsible for norms and standards;
34.2 the MEC who is responsible
for establishing and providing schools;
34.3 the HoD who exercises
executive authority over the school through the Principal; and
34.4 the school governing body
which exercises “
defined
autonomy
” over
certain domestic affairs of the school.
[35] As will be seen shortly,
the school governing body exercises its delineated functions subject
to various forms and degrees
of oversight, supervision and
intervention exercised by the HoD and the MEC in fulfilling their
broadly stated functions.
[36] Section 3(1) introduces the
notion of compulsory attendance and provides for the compulsory
attendance of learners at school.
This section states that every
parent must cause every learner to attend school from the first
school day of the year in which
the learner turns seven (7) years,
until the last school day of the year in which the learner reaches
the age of fifteen (15) or
the ninth grade, whichever occurs first.
[37] Crucially, section 3(3)
places an obligation on the MEC for education to ensure that there
are enough school places so that
every child who lives in his or her
province can attend school. If the MEC cannot comply with his or her
obligation under section
3(3) because of a lack of capacity existing
at the date of commencement of the Act, section 3(4) provides that he
or she must take
steps to remedy such lack of capacity as soon as
possible and must report, on an annual basis, to the Minister on the
progress
achieved in doing so. Section 12(1) of the Act places an
obligation on the MEC to provide public schools for the education of
learners
out of funds appropriated for that purpose by the provincial
legislature.
[38] The Act places the
obligation on the HoD to ensure compliance by learners with the
requirement of compulsory attendance.
It also empowers the HoD to
exempt a learner from compulsory attendance.
[39] Section 16(1) of the Act
provides that subject to the Act, the governance of every public
school is vested in its governing
body. This section provides
further that the governing body may only perform such functions and
obligations and exercise only
such rights as prescribed by the Act.
The HoD is represented in the school governing body by the Principal
of a school.
[40] In
Hoërskool
Ermelo (supra)
at para
[57], the Constitutional Court defined the primary function of the
school governing body as being to look after the interests
of the
school and its learners. The court further held that the school
governing body is meant to be a beacon of grassroots democracy
in the
local affairs of the school.
[41] Section 16(3) provides that
subject to the Act and any applicable provincial law, the
“
professional
management
” of a
public school must be undertaken by the Principal under the authority
of the HoD. “
Professional
management
”
includes,
inter alia
,
the implementation of all educational programmes and curriculum
activities, the management of all educators and staff and the
implementation of policy and legislation.
[42] Section 20 sets out the
functions of school governing bodies and provides that a school
governing body must:
42.1 promote the best interests
of the school and strive to ensure its development with the provision
of quality education for
all learners at the school;
42.2 adopt a constitution and
develop a mission statement of the school;
42.3 support the Principal,
educators and staff in the performance of their functions;
42.4 determine times of the
school day;
42.5 administer and control the
school’s property. The Act provides however that in doing so,
the school governing body
does not hamper the implementation of the
decision made by the MEC or HoD in terms of any law or policy;
42.6 discharge all other
functions imposed upon the school governing body by the Act and as
determined by the Minister or the MEC;
42.7 section 21 allows for the
school governing body to apply to the HoD for the allocation of
further functions listed in the
section;
42.8 section 22 provides that
the HoD may on reasonable grounds withdraw a function of a governing
body. Thus in Hoërskool
Ermelo (
supra)
,
at para [71], the Constitutional Court held that the power to
withdraw a function of a governing body extends to all functions
of a
governing body envisaged in sections 20 and 21. The court found that
the school governing body’s power to formulate
the school’s
language policy could be withdrawn under section 22.
[43] On matters of discipline,
only the HoD has the power, in terms of section 9(2) of the Act, to
determine whether or not to
expel a learner if such learner has been
found guilty of serious misconduct after disciplinary proceedings
conducted in terms of
the Act. The parent or the learner may appeal
against the expulsion to the MEC. If a learner is expelled, and if
such learner
is subject to compulsory attendance, the Act places an
obligation on the HoD to make alternative arrangements for the
learner’s
placement at a public school. The school governing
body does not have the powers to expel a learner. If the learner has
been found
guilty of serious misconduct after due process, the school
governing body may impose a suspension for a period not exceeding
seven
days or make recommendation to the HoD to expel the learner.
[44] Most importantly, in
matters affecting learners’ attendance at schools, the Act
makes all the decisions of the school
governing body subject to the
oversight of the HoD. As will show later, this approach applies not
only to disciplining learners
who are already attending schools, but
also in determining how many learners each public school must accept.
Section 16(4) of
the Act provides that the HoD may close a public
school temporarily in the case of an emergency if he or she believes
on reasonable
grounds that the lives of learners and staff are
endangered or that there is a real danger of bodily injury to them or
of damage
to property. Only the MEC may, in terms of section 33,
close a public school permanently. Clearly, the school governing
body
does not have any role in school closures.
[45] Section 35 of the Act
provides that the Minister must determine national quintiles for
public schools and national norms and
standards for school funding
after consultation with the Council for Education Ministers and the
Minister of Finance. This funding
is for non-personnel,
non-infrastructural expenditure relating to the daily running of the
school. Section 36(1) of the Act places
an obligation on a school
governing body to take all reasonable measures within its means to
supplement the resources supplied
by the State in order to improve
the quality of education. Section 36(2) however, imposes a
restriction that the school governing
body may not enter into any
loan or overdraft agreement so as to supplement the school fund
without the written approval of the
MEC.
[46] The school governing body
has the duty to establish a school fund and to administer it in
accordance with directions issued
by the HoD. The school governing
body is also required, annually, to prepare the school budget which
shows the estimated income
and expenditure for the school for the
coming year. This budget first has to be approved by the majority of
parents at a special
general meeting. Again, the school governing
body has some autonomy but operates subject to the direction and
oversight of the
MEC and the HoD.
[47] Clearly, the Act makes
provision for an important but limited role for school governing
bodies in managing schools. One sees
that across a variety of
functions, school governing bodies are subordinate to the HoD and the
MEC.
THE PROVINCIAL ADMISSION POLICY REGULATIONS : CIRCULAR 21/2010
[48] In June 2010 the second
respondent distributed the Circular, issued in terms of section 5(7)
of the Act and Regulation 2(1)
of the Admission Regulations
promulgated by General Notice No. 4138 of 2001 under the Gauteng
School Education Act No. 6 of 1995
(“the Regulations”),
and which purports to regulate the management of admissions to public
ordinary schools for 2011,
the relevant provisions of which provide
that:
No school will be declared full
before the admission process is
finalized;
The District Director is the person who determines and declares
a school to be full and his or
her decision in this regard will be informed by
inter
alia
, the school’s
capacity and admission data;
48.3 The District Director shall
consider declaring a school full upon receipt of a written
application together with supporting
evidence, from the Principal;
A school that is declared
full by the District Director will be informed in writing;
The learner enrolment capacity of a school is determined by the
HoD;
A parent of a learner who
is dissatisfied with the Principal’s
decision not to admit a learner may lodge an objection to the
District Director by completing Annexure B1 (to the Circular); and
A parent of a learner may
appeal against the decision of the
District Director to the MEC by completing the MEC’s appeal
form.
[49] In terms of Regulation 2(1)
of the Regulations, the administration of the admission process is
the responsibility of the HoD.
For reasons of convenience, the HoD
generally delegates the school based stage of this process to the
school Principal. However
the ultimate responsibility remains that
of the HoD. Regulation 13(1)(a) provides that if a Principal, acting
on behalf of the
HoD refuses to admit a learner to a school, he or
she must provide reasons in writing for his or her decision to the
HoD and the
parent and the HOD must either confirm or set aside the
decision made by the Principal. This provision supplements section
5(9)
of the Act by requiring the HoD to consider whether to confirm
or set aside a refusal of admission before there is a need for the
MEC to consider an appeal against a refusal of admission. Clearly,
Regulation 13(1)(a) creates a statutory safeguard which the
HoD can
use:
1. to correct errors made by his
delegated officials, like the school Principal, in administering the
admissions process,
2. to remedy admission decisions which have been taken in
circumstances which are calculated to create a reasonable
apprehension
that the learners who have been refused admission have
not been treated fairly, and
3. to address systemic imbalances in the admission of learners to
public schools and thereby to ensure that unplaced learners
are
accommodated within the schools best placed to admit them.
[50] Following from what I have
stated above, the applicant’s contention that the Circular is
not legislation or regulation
and that there is no empowering statute
or regulation authorising its creation and, consequently, that it has
no binding effect
save to the effect that it echoes already binding
legislation, is misconceived and simply incorrect. The Circular
clearly forms
part of the applicable provincial legislation that
regulates admissions to public schools in Gauteng Province.
Consequently, it
is binding on the applicants in this case.
DOES THE SCHOOL GOVERNING BODY’S POWER TO DETERMINE THE
SCHOOL ADMISSIONS POLICY INCLUDE THE POWER TO DETERMINE THE MAXIMUM
CAPACITY OF THE SCHOOL?
[51] The applicants contend, on
the strength of section 5(5) of the Act, that there is no statutory
or other legal power given
to the MEC or the HoD to determine the
capacity of a public school and that determining the capacity of a
school is an inherent
and necessary incident of any admissions policy
which is determined solely by the school governing body. They
contend accordingly,
that as section 5(5) of the Act does not confer
any power on the MEC or the HoD to determine the admission policy of
a public school,
their only remedies in respect of unreasonable
conduct by a school governing body are judicial review or the
withdrawal of functions
from a school governing body.
[52] In support of these
submissions, the applicants place reliance on the following
decisions:
52.1 In
Minister
of Education, Western Cape and Others v Governing Body Mikro Primary
School and Another
2006 (1) SA 1
(SCA) (“
Mikro
”)
the Supreme Court of Appeal held that:
52.1.1 Section 20(1) of the Act
provides that a school governing body must perform a number of
functions, including the determination
of the admission policy, and
neither the Act nor the Norms and Standards confer any power on the
MEC or HoD to determine the admission
policy of a public school;
In the event of a school
governing body unreasonably refusing to change its language
policy, and by necessary implication,
also its admission policy,
the MEC and the HoD may take steps to have such unreasonable
refusal reviewed and set aside in
terms of section 6(2)(h) of
PAJA. Secondly, the HoD may, subject to certain procedural
requirements, withdraw a function
of the school governing body;
and
52.1.3 Although the Department
admits learners to a public school, the admission policy of the
school is determined by the governing
body of the school. By
admitting learners or instructing the Principal to admit learners
contrary to the admission policy of the
school, the Department
substitutes its own admission policy for that of the school. In so
doing, it is acting unlawfully as it
does not have the power to
determine an admission policy for a school. Even if the admission
policy is invalid, the Department,
MEC or the HoD does not, in terms
of the Act, have the power to determine an admission policy for the
school.
52.2 In
Queenstown
Girls High School v MEC, Department of Education, Eastern Cape and
Others
2009 (5) SA 183
(CK) (“
Queenstown
Girls High
”),
the Full Bench of the Eastern Cape High Court, Bisho, held that it is
not the responsibility or function of officials
in the Department to
second-guess a Principal’s decision relating to the admission
of a prospective eligible learner to a
public school. The court held
further, that if the HoD appoints the Principal of a school to act
under his or her authority in
giving effect to the school’s
admission policy, other officials in the Department have no authority
to instruct the Principal
to change his decision or to instruct him
to admit a particular learner to the school.
52.3 In
Welkom
High School and Others v HoD Education Free State Province and Others
(Cases 5714 and 5715/2010) (“
Welkom
High School
”)
the court held that the HoD and the Department of Education in the
Free State, had no power to override the admission policy
of a school
and that a school governing body exercises defined autonomy over
particular domestic affairs of a school such as the
admission policy
and language policy of the school.
[53] The applicants submit that
it is clear that
in
casu
, the HoD and the
Department had no right to disregard the school’s admission
policy and instruct the school to admit the
learner. It follows, so
it was submitted, that the decision to withdraw the delegation to the
Principal was designed to give effect
to unlawful conduct and could
not have been
bona
fide
.
[54] The contentions by the
applicants, however, beg the following questions:
54.1 Does the power to determine
a school’s admissions policy include the power to determine how
many learners it would accommodate?
54.2 Even if the school
governing body did have the power to set out in its admissions policy
how many learners a school could
accommodate, would that bind the HoD
and the MEC when they exercise their powers under the Act?
[55] As I have pointed out
above, the Act has delineated specific roles and functions for
various role-players in the running of
public schools, one of which
is the school governing body. Clearly, the Act envisages a very
defined role for the school governing
body in the running of a public
school. As the Constitutional Court aptly pointed out in
Hoërskool
Ermelo
(
supra
)
the school governing body’s role is confined to focusing on the
“
local affairs
”
of the school. Even within the context of admissions, while the
school governing body is empowered to determine a school’s
admission policy, the application thereof must be made in a manner
determined by the HoD. An ultimate right of appeal to the MEC
exists. This right of appeal to the MEC in respect of a decision
refusing admission, by definition applies to specific decisions
in
respect of individual learners. Most importantly, the Act even goes
so far as to empower the HoD to withdraw a function of the
school
governing body.
[56] In contradistinction, the
Act places the obligation to realise the rights of learners on the
MEC and the HoD. It creates
the obligation of compulsory attendance
but requires the MEC to ensure that every learner in his or her
province is accommodated
in a public school. It also gives the HoD
the right to decide whether or not to admit or to expel and then
gives the relevant
learners the right to appeal against those
decisions to the MEC. Even where the HoD decides to expel a learner,
the Act obliges
him or her to ensure that if the learner is subject
to compulsory attendance, the learner is accommodated in another
public school.
[57] This scheme of the Act is
important to understanding section 5(5), and the impact of an
admission policy on the manner in
which the HoD and the MEC carry out
their functions under the Act.
THE MEANING OF SECTION 5(5) IN THE LIGHT OF SECTIONS 3(3) AND 3(4
)
[58] While section 5(5) empowers
the school governing body, subject to the Act and applicable
provincial legislation, to determine
the admission policy of a
school, the exact meaning and content of that function is not spelt
out in the Act. Significantly, despite
the fact that the applicants
invoke and rely on section 5(5), they make no attempt whatsoever to
define what the section encompasses.
[59] From the provisions of the
Act it is clear that the function of determining the admission policy
of a school, is not an all
encompassing one since the Act has
allocated certain admissions related powers and functions to other
role-players as I have demonstrated
above. This means that, under
the Act, the MEC is the ultimate arbiter of whether or not a learner
should be admitted to a public
school.
[60] Section 5A(1)(b) of the
Act, empowers the Minister, after consultation with the Council of
Education Ministers, to prescribe
by regulation minimum uniform norms
and standards for “
capacity
of a school in respect of the number of learners a school can admit
”.
According to section 5A(2), the norms and standards contemplated in
subsection (1) must provide for, but not be limited
to the following:
“
(b)
in respect of the capacity of a school –
the number of teachers and the class size;
quality of performance of a school;
curriculum and extra-curricular choices;
class room size and;
utilisation of available
class rooms of a school.
”
[61] Once such norms and
standards have been prescribed, section 58C(2) provides that the MEC
“
must ensure that
the policy determined by a governing body in terms of section 5(5)
and 6(2) complies with the norms and standards
”.
In addition, section 58C(6) provides that the HoD must:
“
(a) in
accordance with the norms and standards contemplated in section 5A
determine the minimum and maximum capacity of a public
school in
relation to the availability of classrooms and educators, as well as
the curriculum programme of such school; and
(b) in respect of each public
school in the province, communicate such determination to the
chairperson of the governing body and
the Principal, in writing, by
not later than 30 September of each year.
”
[62] It is clear from the
provisions of sections 5A and 58C of the Act that in providing for
the promulgation of norms and standards
on capacity, the Act
envisaged national government limiting the ambit of the power
conferred on a school governing body to adopt
an admission policy.
[63] In my view it would provide
significant guidance to school governing bodies and provincial
governments on the issues raised
in this matter if the National
Minister of Basic Education were to act in terms of section 5A read
together with section 58C, and
promulgate norms and standards on
capacity.
[64] It is however important to
point out that the Act does not only confer powers on the national
sphere of government in this
regard. These provisions must be read
with the obligations on the MEC, which are contained in sections 3(3)
and (4) of the Act,
to ensure that there are enough school places so
that every child who lives in a province can attend a public school.
This would
be consonant with the Constitutional right of access to
basic education for all children. Section 3(3) imposes an obligation
on
the MEC to ensure that there is sufficient capacity so that each
individual child in the province can attend a public school. Section
3(4) imposes an additional, remedial obligation on the MEC: if he or
she is unable to comply with the obligation under section
3(3), he or
she must take steps to remedy such lack of capacity as soon as
possible. Thus sections 3(3) and (4) impose two types
of an
obligation and power on the MEC:
64.1 The first is to take steps,
at a provincial and systemic level, to increase capacity within
different parts of the province.
This may entail building new
schools, increasing the capacity of existing schools by building new
classrooms and taking similar
steps.
64.2 The second is to take
individualised action to ensure that “
every
child
” is able
to attend school and to take steps “
as
soon as possible
”
to remedy any lack of capacity preventing any child from attending
school. Most importantly, this obligation is only triggered
when, on
the facts of a particular case, there is a threat that a child will
be prevented from accessing a public school due to
lack of capacity.
[65] Clearly, the obligation
established in section 3(3) has two related but distinct components.
The first obligation is to ensure
that there are enough school
places. The second obligation is to ensure that every child in the
province can attend school. The
second obligation cannot be totally
subsumed under the first. In other words, the obligation should not
be reduced simply to the
act of building classrooms numerically
sufficient, in theory, to accommodate the aggregate of all learners
in the province. The
MEC is also duty-bound to utilise the full
range of his or her powers to ensure that every child attends school.
[66] In my view, the applicants’
contention that the MEC or HoD has no statutory or other legal power
to determine the capacity
of a school is unsustainable. It would be
extraordinary if the question of school capacity were to fall outside
of the provincial
education department when that department is
statutorily bound by section 3(3) of the Act, to ensure that every
child in the province
can attend school.
[67] I am also of the view that
the powers of MEC’s under sections 3(3) and 3(4) should ideally
be exercised in terms of
policies adopted by provincial governments
in respect of the capacity of public schools. This will ensure that
the first power
to take steps at a systemic level is embodied in a
carefully developed policy that sets out the objectives of the
relevant provincial
government in respective of capacity. The
adoption of a policy will also guard against the arbitrary exercise
of the second remedial
power to act in respect of individual learners
who are threatened with exclusion from a public school due to
capacity constraint.
[68] The applicants contend that
the provisions of sections 3(3) and 3(4) do not override the power
conferred on school governing
bodies but that they only qualify such
power. Although they do not squarely address the nature of the
obligations and the concomitant
powers of the MEC under section 3(3)
and (4), the applicants appear to contend that the power of school
governing bodies under
section 5(5) is insulated from the MEC’s
powers under section 3(3) and 3(4).
[69] This argument is however
flawed having regard to the following:
69.1 the school governing
bodies’ power under section 5(5) is expressly made subject to
the Act;
69.2 the applicants have stopped
short of defining what is understood by the term “
admissions
policy
” and why
it includes within its ambit the power to declare the maximum
capacity of a school; and
69.3 to the extent that it is
textually plausible to interpret sections 3(3) and (4) in the manner
contended for by the applicants,
a court is obliged to choose an
interpretation which best gives effect to the rights contained in the
Bill of Rights, an aspect
I now turn to consider.
[70] As the first to third
respondents correctly submit, it cannot be disputed that the racially
discriminatory system of education
spending under apartheid has
bequeathed to this country and to the Gauteng Province in particular,
a public schooling system in
which some schools (the former Model C
schools of the old “
white
”
education department situated in historically “
white
suburbs
”) are
much better resourced than most other schools in the system. The
first to third respondents have ably demonstrated
that the
traditionally white schools have systemically lower learner-to-class
ratios than historically black schools. It is also
true that in most
cases, formerly black schools support a larger number of students
without the physical resources of privileged
schools in traditionally
white areas, or the ability to hire additional teachers.
[71] Although all schools are
now open to children of all races, the consequences of apartheid
forced removals and racially exclusive
zoning mean that the majority
of formerly white schools remain disproportionately white, while the
majority of black schools continue
to serve almost solely black
children. As Langa DP noted in
City
Council of Pretoria v Walker
[1998] ZACC 1
;
1998 (3) BCLR 257
(CC) at para
[32]
:
“
The
effect of apartheid laws was that race and geography were
inextricably linked.
”
[72] The second applicant is no
exception to this pattern of continued racial disparity. It operates
in a predominantly white
area and continues to serve a predominantly
white group of children while maintaining the lowest learner to class
ratio in the
area. The applicants contend that the school governing
body had to raise private funds for the construction of nine of the
school’s
thirty classrooms and to employ additional teachers to
attain the current low learner to class ratio in the area. However,
whilst
the applicants’ desire to offer the best possible
education for its learners is laudible, the Constitution does not
permit
the interest of a few learners to override the right of all
other learners in the area to receive a basic education.
[73] In my view, providing a
basic education across race and class requires government
intervention in the preliminary power of
school governing bodies to
determine admissions policies. Leaving schools to determine their
admission policy, including the power
to determine their capacity,
and subject only to appeals in individual cases, one unwittingly
creates space privileged schools
can use and manipulate that power to
fortify rather than dismantle existing inequalities. Schools such as
the applicants could
thus craft admissions policies that allow them
to continue to offer a premium education to their learners, while
ignoring the increased
demand their action places on other schools in
the area that are already operating with fewer resources and higher
learner-to-class
ratios.
[74] In my view, interpreting
the Act to deny government the ability to intervene to ensure an
equitable distribution of learners
across all schools in the areas
prevents it from fulfilling its obligation under section 7(2) of the
Constitution to “
respect,
protect, promote and fulfil
”
the right to equality and to a basic education. Denying government
the power to distribute and equalise schooling resources
is a
serious barrier to its valiant and laudable attempts, as was stated
in
Van Heerden
(
supra
)
at para [31], to “
eradicate
socially constructed barriers to equality and to root out systematic
or institutionalised under-privilege
”.
As committed South Africans this is the new vision that we should
all be aspiring for. A society where, irrespective
of race or class,
every child can, without hindrance, access education.
[75] The problem is not confined
to the admission policies of traditionally privileged schools. The
question that arises is what
would happen if a large number of
schools grouped together decided to alter their admissions policies
to reduce the number of learners
they would accommodate? On the
applicants’ approach, the MEC would be powerless to intervene
to ensure that there are enough
school places for every child who
lives in his or her province to attend school as required by section
3(3) of the Act. The MEC
would simply have to accept such attempt to
derail the movement towards substantive equality and in the process
deny children their
right to a basic education. Such an approach is
not only untenable but is incongruent with the Constitutional vision
of transforming
our society, including all its facets into an equal
and egalitarian one where people will be given the space and
opportunities
to realize their full potential.
[76] The applicants’
reliance on the decisions in
Mikro
(supra),
Queenstown
Girls High School (supra) and
Welkom High School
(supra)
in support of
their submission that their interpretation of the Act is such that it
prevents government interference with a school
governing body’s
determination of its admissions policy is misplaced. The singular
and important distinguishing factor
in
casu
is the existence
of Regulation 13(1)(a) of the Admission Regulations in the Gauteng
Province, which empowers the HoD to inter alia,
either confirm or set
aside the refusal of an admission of a pupil to a public school, and
which does not exist or find application
in the respective provinces
where these above-named cases originated. Hence the facts of this
case are distinguishable.
[77] Clearly, while the power to
determine an admission policy vests in the first instance in school
governing bodies, that power
must,
as the court found in
Hoërskool Ermelo
(supra)
at para [61]
“
be understood
within the broader constitutional scheme to make education
progressively available and accessible to everyone”
.
This is a constitutional imperative. The court also emphasised the
vital role of government in regulating the language, and
by logical
extension, the admissions policies of schools. It held that
permitting the power to rest exclusively with school governing
bodies
would be inconsistent with the state’s duty to ensure that
there are enough school places for every child who lives
in a
province in terms of section 3(3) of the Act, and its duty to ensure
that a public school must admit learners without unfairly
discriminating in any way as determined by section 5(1) of the Act.
In fact to allow this kind of situation to prevail might subvert
the
very noble ideals by government to ensure equal and quality education
for all.
[78] I accordingly conclude
that section 5(5) does not and should not be interpreted to include
the unqualified and exclusive
power to any school governing body to
determine a school’s maximum capacity.
[79] It has to be stressed that
the school governing body does not have or should not have interests
which are at odds with the
department. Both must be committed to one
vision of offering a basic education to all children in the area
where it is situated.
As the Constitutional Court held in
Laerskool
Generaal Hendrik Schoeman v Bastian Financial Services (Pty) Ltd
2009 (10) BCLR 1040
(CC), at para [3]:
“
SGB’s
are part of the state apparatus designed to secure the provision of
the right to education under the Bill of Rights.
”
[80] In circumstances in which
capacity limits threaten to prevent one or more children from access
to education by attending a
public school within a province, the MEC,
quite apart from his or her obligation to take steps to increase
capacity, has the power
under section 3(4) to intervene in relation
to one or more schools to require that children threatened with being
deprived of access
be accommodated. In those circumstances, this
power is not ultimately subject to the contents of any admission
policy adopted
by a school governing body, as this would render it
impossible for the MEC to discharge this obligation. This power
exists in
addition to the HoD’s power under section 22 of the
Act to remove the function of a school governing body to determine
its
admission policy. The section 22 power permits the HoD to take
over the function of determining the school’s admission policy.
The MEC’s power under 3(3) and 3(4) does not permit him or her
to take over the determination of the admission policy. It
does
however permit him or her to establish the policy basis upon which
questions of school capacity should be determined by school
governing
bodies, and to take remedial steps to ensure that every learner is
accommodated in a manner that maintains a fair allocation
of
educational resources in the province.
[81] Needless to say, the
principle of legality which underpins our Constitution, requires that
the power on the HoD and the MEC
to intervene to ensure access to a
public school will need to be exercised lawfully. I have no doubt
that in intervening in the
manner they did in this matter, they acted
within the powers entrusted to them.
[82] For the reasons set out
above, I find that the applicants have not made out a case that:
82.1 section 5(5) includes the
power of school governing bodies finally to determine a school’s
maximum capacity; and
82.2 that the admissions policy
determined by the school governing body binds the MEC and HoD.
THE PROCEDURAL FAIRNESS COMPLAINT: DECISION OF THE HOD
INSTRUCTING THE PRINCIPAL TO ENROL THE LEARNER, ALTERNATIVELY HIMSELF
ENROLLING
THE LEARNER AT THE SAID SCHOOL
[83] I have set out the
structure of Regulation 13(1)(a) above. In terms of this Regulation
there was, in my view, no need for
the HoD to consult the Principal
or the school prior to taking his decision because the reasons for
their refusal of the learner’s
admission had to be conveyed to
him administratively. In any event, the Principal had furnished the
reason for the learner’s
unsuccessful application in her email
of 5 November 2010 wherein the Principal advised the learner’s
parent that the reason
for the non-admission of the learner was that
“
the school had
reached its capacity for Grade 1 2011
”.
[84] Furthermore, quite apart
from the Principal’s aforesaid e-mail, the Department and its
representatives consulted with
the school on four different occasions
in an attempt to resolve the problem relating to the learner’s
admission to the school
before the HoD made the decision to set aside
the school’s decision not to admit the learner. Such meetings
occurred on
17 September 2010, 23 September 2010, 5 October 2010 and
on 30 November 2010.
[85] In my view, the Department
was accordingly well aware of the school’s attitude in relation
to the application for the
learner’s admission and there was no
violation of procedural fairness in the HoD’s decision on 2
February 2011 to set
aside the decision to refuse the learner
admission to the school.
[86] The HoD acted lawfully in
deciding to overturn the Principal’s refusal of the learner’s
application for admission.
Once the learner’s application had
been accepted by the HoD, she had to be admitted to the school. It
follows that there
can be no valid complaint about the HoD’s
direction to the Principal to admit her.
[87] In the light of all that has
been stated above, it follows that the orders sought in prayers 2 to
7, 9 and 10 of the Notice
of Motion are inconsistent with and fail to
acknowledge the power of the MEC in terms of sections 3(3) and (4) of
the Act to take
remedial steps to ensure that no child is prevented
from accessing a public school due to incapacity fall to be
dismissed. In
any event, the specific order that was sought to
remove the learner form the school has since been abandoned by the
applicants
and has become academic.
THE COMPLAINT IN RELATION TO THE WITHDRAWAL OF THE ADMISSION
FUNCTION DELEGATED TO THE PRINCIPAL OF THE SCHOOL
[88] The applicants aver that
the withdrawal of the admission function delegated to the Principal
of the school was not exercised
bona
fide
.
[89] It is common cause that on
8 February 2011, the fourth respondent and the learner came to the
school accompanied by Mr Tlhage
Petlele, an official employed in the
office of the HoD who advised the Principal that the admission
function delegated to her in
her capacity as Principal of the school
in terms of Circular 21/2010 is withdrawn by the second respondent.
A telefax to this
effect was sent to the Principal on the same date
in which the HoD confirmed that the Principal’s delegated
admission function
was withdrawn in terms of section 62(3) of the
Act.
[90] The first to the third
respondents admit the withdrawal of the Principal’s powers but
contend that the reason for the
withdrawal was that she had failed to
give effect to the decision of the HoD to overturn her original
failure to admit the learner
to the school and that it was as a
result, untenable for the delegated power to remain in place.
[91] The relief sought must be
considered in the light of the broader context within which the
department has to discharge its
constitutional duty to provide public
schooling to all learners of school going age and within the
statutory framework of the Act
and the Admission Regulations. As I
have pointed out above, in terms of Regulation 2(1) the HoD is
responsible for the administration
of the admission of learners to a
school. The Principal acting in her official position as such and
also as an employee of the
department, administers the process of
admissions on behalf of the HoD.
[92] I have already found that
the HoD acted lawfully when he overturned the Principal’s
decision to refuse the learner admission
to the school. Whilst the
HoD acted within his rights and powers to set aside the Principal’s
decision, the question arises
whether the procedure followed in
withdrawing the Principal’s delegated powers was done in a fair
manner.
[93] It is common cause that the
withdrawal of the Principal’s powers was done summarily and
that she was never afforded
an opportunity to furnish reasons why her
delegated powers of admissions should not be withdrawn. In my view,
the withdrawal of
the Principal’s delegated powers in relation
to the admission of pupils at the school was widely couched and was
unnecessary
in the circumstances. This is because this entire
dispute concerned a single learner in whose respect I have already
found that
it was pertinently legal for the Department to intervene
regarding her admission to the school.
[94] As the Principal was never
afforded an opportunity to state her case before the withdrawal of
her delegated powers of admissions,
I find that the HoD’s
conduct in this respect was arbitrary and unlawful and consequently
falls to be reviewed and set aside.
Even though the Principal was
acting as the delegated official and employee of the Department, the
nature of her job function
as a school Principal charged with the
administration of admissions of learners to the school, is such that
she should have been
afforded an opportunity to furnish reasons why
her delegated powers of admissions should not be withdrawn. This is
in line with
the age-old
audi
alteram principle. It
is obvious that such arbitrary action by the HoD must have had a
negative impact on the general administration
of admissions at the
school. I am accordingly of the view that the withdrawal of the
delegated power could have been couched in
a more specific manner and
confined to the learner in this case.
[95] For these reasons I am of
the view that the withdrawal of the delegated powers of the Principal
was unlawful and falls to
be set aside. It follows that the
applicants have made out a case for the grant of this specific order
in the Notice of Motion.
THE PUBLIC NAMING OF THE LEARNER INVOLVED
[96] An issue I find very
disturbing in this case has been that the learner involved has been
openly and freely named, not only
in the present court papers, but
also in the media debates that have taken place around this case.
[97] The learner’s mother,
who is the fourth respondent, states in her answering affidavit:
“
After
the meeting on 9 March 2011 this matter was discussed on 702 Radio
and reported in The Star Newspaper. In these reports the
identity of
the parents was mentioned as well as the grade of the learner. This
conduct is prejudicial to
[the
learner]
and has a
potential to isolate her.
”
This is not denied or dealt with in the applicants’ replying
affidavit.
[98] The Constitutional Court
has referred to the fact that it has adopted a practice of not
disclosing the identities of children
involved in cases before it
whether by referring to the children or their parents. In
Johncom
Media Inv Ltd v M and Others
2009 (4) SA 7
(CC), at para [42], Jafta AJ said:
“…
this court could in terms of section 172(1) prohibit all
publication of the identity of and any information that may reveal
the
identity of any party or child in any divorce case before any
court. This is the position adopted in the Child Care Act
[section
8(3) No. 74 of 1983]
.
It is also important to emphasise that this court has adopted the
approach of not disclosing the identities of children
and vulnerable
parties in all appropriate cases.
”
[99]
Regrettably, however, by the time that this occurs, it is often too
late for the damage caused by the unfortunate disclosure
already made
to be undone.
[100] The present case
demonstrates the point. At the commencement of the proceedings I made
an order that the identity of the
learner be no longer publicly
disclosed. However, the fact of the matter is that it is already
publicly known that the learner
was the subject of the dispute
between the school, the Department and her mother. This is
particularly disturbing given the serious
allegations and
counter-allegations that have already been made.
[101] In my view, the applicants
ought not to have named the learner in the present application at
all. Furthermore all the parties
– the applicants, the
Department and the learner’s mother – ought to have
prevailed upon the media to ensure
that they did not reveal the
learner’s identity. In any event the media were under an
independent constitutional duty not
to reveal the learner’s
identity. The duties not to reveal the learner’s identity flow
from the learner’s rights
under the Constitution, including:
101.1 the right to have her best
interests to be paramount in all matters concerning her, in terms of
section 28(2) of the Constitution;
101.2 the right to be protected
from maltreatment, abuse or degradation, in terms of section 28(1)(d)
of the Constitution;
101.3 the right to human
dignity, in terms of section 10 of the Constitution; and
101.4 the right to privacy, in
terms of section 14 of the Constitution.
[102] As the Constitutional
Court has explained in
S
v M
(Centre
for Child Law as Amicus Curiae)
[2007] ZACC 18
;
2008
(3) SA 232
(CC) at para
[18]
: the learner’s rights are
independent from those of his or her parents:
“
Every
child has his or her own dignity. If a child is to be
constitutionally imagined as an individual with a distinctive
personality,
and not merely as a miniature adult waiting to reach
full size, he or she cannot be treated as a mere extension of his or
her parents,
umbilically destined to sink or swim with them.
”
[103] There can be no doubt that
the applicants, the department, the learner’s parents and the
media all bore constitutional
duties in relation to the learner’s
rights as set out above. In the circumstances this Court implores
all parties in similar
situations in the future to be sensitive
insofar as reporting on and the revealing the identity of children in
proceedings of this
nature is concerned.
[104] Another disturbing aspect
that needs specific mention is the unsatisfactory manner in which the
learner was brought to the
second applicant’s premises both on
7 and 8 February 2011, and ultimately deposited in an empty desk in
one of the Grade
1 classes. No doubt this must have been
traumatising for the learner to be at centre stage while there was
ongoing dispute between
her mother, the officials from the Department
and some school personnel regarding her admission. All of this could
have been avoided
by leaving the learner at home whilst the problem
played itself out.
RECOMMENDATION TO THE NATIONAL MINISTER OF BASIC EDUCATION
[105] I direct that this
judgment, specifically the contents of paragraphs [60-63]
above, be brought to
the attention of the National Minister of Basic Education.
COSTS
[106] Save for the fourth and
fifth respondents, all other parties are of the view that each party
should pay their own costs.
Regard being had to the nature of this
case, in particular that it is of public interest and is designed to
give guidelines on
the interpretation of statutory powers and
obligations of all the role-players involved in the education of our
children, the suggestion
finds favour with the court.
[107] It is noteworthy that the
fourth and fifth respondents elected not to file any heads of
argument. Furthermore, the applicants
saw it fit to abandon seeking
the relief that the learner be removed from the school. I have also
taken into consideration that
there are serious disputes of fact
between the applicants and the fourth and fifth respondents which are
so far-reaching that no
costs order could be made without first
hearing oral evidence.
[108] In the circumstances, I am
unable to assent to the fourth and fifth respondents’ request
that they be awarded costs
by the applicants.
[109] I accordingly make the
following order:
Section 5(5)
of the
South
African Schools Act No 84 of 1996
, does not appropriate to a school
governing body the unqualified power to determine a public school’s
admission policy
The power to determine the maximum capacity of a public school in
Gauteng Province vests in the Gauteng Department of Education
and
not in the school governing body.
The Gauteng Department of
Education has the power to intervene with the school governing
body’s power to determine the admission
policy of a public
school.
The Member of the Executive for
Education, Gauteng Province, is the ultimate arbiter whether or not
a learner should be admitted
to a public school.
The application in respect of
prayers 2 to 7, 9 and 10 of the Notice of Motion is dismissed.
The application succeeds in respect of prayer 8 of the Notice of
Motion.
Each party shall pay their own costs.
______________________________
B
H MBHA
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
DATES OF
HEARING
:03-04
OCTOBER 2011
DATE OF
JUDGMENT :07 DECEMBER 2011
COUNSEL FOR
THE APPLICANTS :G PRETORIUS SC
A
KEMACK SC
INSTRUCTED
BY
:JOUBERT
SWART
INC
COUNSEL FOR
THE
FIRST
TO THIRD RESPONDENTS :M CHASKALSON SC
N
MJI
INSTRUCTE
D
BY :THE STATE
ATTORNEY
COUNSEL FOR
THE
FOURTH
& FIFTH RESPONDENTS :M SELLO
INSTRUCTED BY
:MDLULWA NKHUHLU INC
COUNSEL FOR
THE FIRST
AMICUS :K PILLAY
J BRICKHILL
INSTRUCTED BY :THE LEGAL
RESOURCE CENTRE
COUNSEL FOR
THE SECOND AMICUS
:S
BUDLENDER
INSTRUCTED BY :CENTRE FOR
CHILD
LAW