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[2015] ZAGPJHC 85
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Fedsas v Minister of the Executive Council, Department of Basic Education, Gauteng Province and Another (2015/18246) [2015] ZAGPJHC 85 (26 May 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA,
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 2015/18246
DATE: 26 MAY 2015
In the matter between:
FEDSAS
...............................................................................................................................
APPLICANT
And
THE MEMBER OF THE EXECUTIVE
COUNCIL,
.........................................
1ST
RESPONDENT
DEPARTMENT OF BASIC EDUCATION,
GAUTENG PROVINCE
THE HEAD OF
DEPARTMENT:
........................................................................
2ND
RESPONDENT
DEPT. OF BASIC EDUCATION
GAUTENG PROVINCE
J U D G M E N T
WRIGHT J
1. The applicant is the Federation of
Governing Bodies of South African Schools. On 26 February 2015 Mr
Ngobeni the head of department
for Gauteng Province, Education signed
a document headed “Process of Admission”. In it he set
out a timetable indicating
various stages in the process for the
admission of learners to schools in Gauteng. Sometime after this
there appeared on the Department’s
website a document which
gives the applicant reasonable cause to think that the rights enjoyed
by schools, as recognised in the
26 February 2015 document, have been
taken away to some extent by the more recent website document.
2. The document of 26 February 2015
recognises, in paragraph 2.5 that schools may submit copies of
waiting lists to the District
Director for approval and placement of
learners by the District Director. It is common cause that paragraph
2.5 is lawful. However,
in the later website document, more
particularly in paragraph 2, bullets 2 and 3 Mr Ngobeni writes
“Schools with Internet
connectivity will be able to draw
reports and Waiting Lists to be signed off by District Directors.”
Mr Ngobeni also writes
that “Schools without Internet
connectivity will receive reports and Waiting Lists from the District
Director. This process
is equated to the signing off of Waiting Lists
as outlined in the Regulations.” This difference leaves the
applicant with
the reasonable fear that the schools will no longer be
allowed to author and submit their own lists.
3. Under
section 5(5)
of the
South
African Schools Act 84 of 1996
“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.” In my view
schools’ governing bodies are entitled, if not obliged to
formulate admissions policies.
The Legislature could not have
intended these policies to operate in a vacuum. Under
section 6(2)
the governing body of a public school may determine the language
policy of the school subject to the Constitution, the Schools
Act and
any applicable provincial law.
4. Under section 5(1) of the Schools
Act “a public school must admit learners and serve their
educational requirements without
unfairly discriminating in any way.”
Under section 5(7) “An application for the admission of a
learner to a public
school must be made to the education department
in a manner determined by the Head of Department.” In paragraph
52 of the
decision in MEC for Education, Gauteng Province v Governing
Body Rivonia Primary School
2013 (6) SA 582
CC it was held that the
Department maintains ultimate control over the implementation of
admission decisions. It was held in paragraph
60 that the decision of
the Gauteng Head of Department to admit a learner in terms of
Regulation 13(1)(a) constitutes administrative
action and that the
Department has a duty to act fairly.
5. In my view the District Director and
Head of Department must consider, along with all other
considerations, the admission and
language policies of schools when
making a decision under section 5.
Order:
1. Pending the final determination of
Part B of the application as contained in the notice of motion dated
19 May 2015 the following
order will operate.
2. Schools are entitled to prepare and
submit waiting lists A and B.
3. In so doing, schools may take into
account their admission and language policies.
4. The District Director and the Head
of Department must, when considering the lists, take into account,
along with all other relevant
and lawful considerations, the schools’
admission and language policies.
5. The question of costs is reserved
for determination by the court hearing Part B.
GC WRIGHT J
JUDGE OF THE HIGH COURT,
GAUTENG LOCAL DIVISION,
JOHANNESBURG
On behalf of the Applicant:Adv JI Du
Toit SC Adv MJ Engelbrecht
Instructed by: Hurter Spies Inc
012 664 0708
On behalf of the Respondent: Adv M
Sikhakhane SC
Instructed by: The State Attorney
011 330 7600/35
Dates of Hearing: 26 May 2015
Date of Judgment:26 May 2015