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[2015] ZASCA 149
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Member of the Executive Council for Education, Gauteng and Another v Federation of Governing Bodies for South African Schools (20420/2014) [2015] ZASCA 149; [2015] 4 All SA 591 (SCA) (16 October 2015)

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
Reportable
Case
No: 20420/2014
In
the matter between:
MEMBER
OF THE EXECUTIVE COUNCIL
FOR
EDUCATION, GAUTENG

FIRST APPELLANT
HEAD
OF DEPARTMENT OF EDUCATION,
GAUTENG

SECOND APPELLANT
and
FEDERATION
OF GOVERNING BODIES FOR
SOUTH
AFRICAN
SCHOOLS

RESPONDENT
Neutral
citation:
MEC
for Education, Gauteng v Fedsas
(20420/2014)
[2015] ZASCA 149
(16 October 2015).
Coram:
Mpati
P, Navsa, Shongwe and Dambuza JJA and Van der Merwe AJA
Heard:
25
August 2015
Delivered:
16
October 2015
Summary:
Education
– public schools – powers of governing bodies to
determine admissions policy and capacity of public schools
not
absolute –
s 5(5)
of the
South African Schools Act 84 of
1996
must be read with other applicable law – education
department exercises ultimate control – powers of the
department
to be exercised reasonably – parties must engage
with each other in good faith – principle of co-operative
governance
paramount.
ORDER
On
appeal from:
Gauteng
Local Division of the High Court, Johannesburg (Janse van
Nieuwenhuizen AJ, sitting as court of first instance):
The
following order is made:
1
The late prosecution of the appeal is condoned;
2
The appellants are ordered to pay the respondent’s costs of the
application for condonation;
3
The appeal is upheld with costs, such costs to include the costs of
two counsel;
4
The order of the court below is set aside and is substituted with the
following:
‘
(a)
Save to the very limited extent set out below, the application is
dismissed with costs of two counsel.
(b)
Regulation 2(2A)
of the regulations published under the General
Notice 1160 of 2012 is declared invalid and of no force and effect.
JUDGMENT
Dambuza
JA (Mpati P, Navsa and Shongwe JJA and Van der Merwe AJA concurring):
[1]
The dispute in this appeal arose as a result of publication, in
General Notice 1160
of 2012,
[1]
of regulations relating to the admission of learners to public
schools in the Gauteng Province. Pursuant to a challenge launched
by
the respondent, the Gauteng Local Division of the High Court,
Johannesburg (per Janse van Nieuwenhuizen AJ) struck down some
of the
impugned regulations. This appeal is with the leave of the court
below.
[2]
The appellants also brought an application for condonation of the
late filing of their
notice of appeal and for reinstatement of the
appeal. They explained that following the granting of the order of
the court a quo
an application for leave to appeal was filed,
timeously, with the Constitutional Court. That application failed.
Thereafter a second
application was filed with the Gauteng Local
Division, Johannesburg (the high court) for leave to appeal the order
in question.
It is as a result of that application that the appeal
presently serves before us. However, the notice of appeal which
should have
been filed by 5 February 2014 was never filed. The
reasons stated are far from satisfactory. They varied from pressures
of work
in the office of the State Attorney, Johannesburg; the
attorney who handled the matter not ‘fully appreciating the
deadline’;
to a ‘misunderstanding’ between and
remissness on the part of members of the appellants’ legal
teams. The only
basis on which the application for condonation is
opposed, is lack of prospects of success of the appeal.
[3]
The delay or failure in the proper prosecution of this appeal is
inexcusable. No valid
reasons have been given for the appellants’
non-compliance with the rules of this court relating to the timeous
prosecution
of an appeal. However, because of the importance of the
subject-matter of the appeal, which affects the rights and interests
of
countless children, it is in the interest of justice that the
appeal be reinstated and the issues in question be considered by this

court.
[4]
On 18 July 2011, the first appellant, the Member of the Executive
Council for Education,
Gauteng (MEC) published in the General Notice
1929 of 2011
[2]
proposed amendments to regulations relating to admission of learners
to public schools in Gauteng (the original regulations).
[3]
In that notice comments were invited from interested parties or
organisations on the draft amendments. Pursuant to the invitation
for
comments the respondent, the Federation of Governing Bodies for South
African Schools (Fedsas), consulted extensively with
its membership
in Gauteng on the proposed amendments. Following such consultations
it submitted comments to the Gauteng Department
of Education (GDE).
The comments were broadly in line with the grounds on which Fedsas
subsequently challenged the amendments in
the high court application.
Although Fedsas complains that its comments only received perfunctory
treatment, it admits that effect
was given to some of them.
[5]
In challenging the amended regulations, Fedsas contended that they
were in conflict
with the provisions of s 5(5) of the South
African Schools Act 84 of 1996 (the Schools Act), the National
Education Policy
Act 27 of 1996 (NEPA), the Admission Policy for
Ordinary Public Schools,
[4]
,
the Gauteng Education Policy Act 12 of 1998 (GEPA), and the Gauteng
School Education Act 6 of 1995 (GSEA). It was argued on behalf
of
Fedsas that the regulations were
ultra
vires
the enabling legislation in terms of which they were promulgated,
namely, the provisions of s 11(1) of the GSEA. A further
ground
on which the amendments were attacked was that they were
unconstitutionally promulgated in contravention of the provisions
of
s 3 of the Promotion of Administrative Justice Act 3 of 2000
(PAJA) and s 33 of the Constitution of the Republic of
South
Africa, 1996 (the Constitution) in that they were not enacted in a
procedurally fair manner. It was also contended that they
violated
the principle of legality and rationality.
[6]
The high court struck down the regulations, mainly on the basis that
they were in
conflict with national legislation and were
ultra
vires
the enabling provincial legislation. The court found that they
encroached on the autonomy of governing bodies. It also found that

some of the regulations were adopted in a procedurally unfair manner,
and that others were not reasonable and justifiable.
[7]
In this appeal the appellants, the MEC and the Head of Department of
the GDE (the
HOD), contended that any differences or overlap that may
exist between the regulations and the national and provincial
legislation
in question do not constitute a conflict; they do not
render the regulations invalid.  Their argument was that
regulations
which deal with admissions to public schools and issues
of capacity of those schools are within the authority provided for in
the
provisions of s 11(1) of the GSEA in terms of which they
were promulgated, and that none of the regulations are invalid on

procedural or substantive grounds.
[8]
Before turning to consider the specific regulations, something must
be said about
the nature and background which provide the context for
the dispute before us. The issues raised in this appeal arose against
a
history of a sustained power struggle between provincial education
departments and school governing bodies over governance and
management of public schools in this country. This contestation has
come to court on a number of occasions.
[5]
At the centre of these disputes is the education of the children of
the country. For that reason, courts have emphasized
that it is
paramount that those involved should do their best to resolve the
disputes with the utmost sense of responsibility.
[6]
However, recent history shows a regrettable enduring power struggle
over authority to provide access to schools between the provincial

departments of education, Fedsas and some of its affiliates around
the country.
[9]
Immediately after the dawn of democracy, the South African government
set out to reform
and democratise the education system that had, in
the past, manifested in separate public schools for each of the
racial groups
in the country due to the system of apartheid. As with
all other aspects of South African life, that system was marked by
disproportionate
government spending on the education of white
children above the children of other racial groups, least of all
black children.
[10]
It is widely accepted that substantive democracy, however defined,
has not been fully realized
in most parts of the world because,
amongst other things, the traditional models of democracy have
inherent challenges such as
favouring the rich and talented,
oppressing minorities, self-interested decision-making, elitism,
bureaucracy and other such factors.
[7]
It is these challenges that continue to beset our public school
education system. Progress has been made however in improving the

country’s education system. As far back as 1994 the right to
basic education was entrenched in the Interim Constitution and
later
in the Final Constitution.  In 1996, in its preamble, NEPA
provided that legislation should be adopted to facilitate
the
democratic transformation of the national education system such that
it serves the needs and interests of all the people of
South Africa.
Thereafter a number of education policies were developed as well as a
relatively comprehensive national and provincial
legislative
framework.
[11]
One of the fundamental changes effected by the democratic government
in reforming the country’s
education system, was the
implementation of a participative and co-operative school governance
system involving government, education
authorities and local school
communities represented by school governing bodies. The Schools Act
was enacted in the spirit of transformation
of the public school
education system. It provides, inter alia, for a power sharing
arrangement between the State, parents and
educators. This
collaborative administration system was intended to enhance access to
decent basic education for all learners irrespective
of race, talent,
intellectual and behavioural dispositions, and to lay a solid
foundation for the development of the country. In
Head of
Department, Department of Education, Free State Province v Welkom
High School & others
2014 (2) SA 228
(CC) Froneman and
Skweyiya JJ, in a separate concurring judgment, highlighted the need
for participants in school governance to
engage with each other in
good faith to uphold the principles of co-operative governance and to
comply with their duty to act in
the interests of learners. The
learned judges referred, in para 140 of the judgment, to the
principles of co-operative government
and intergovernmental relations
that are also extended to organs of State within each sphere of
government in s 41 of the
Constitution. That section reads:
‘
Principles
of co-operative government and inter-governmental relations
(1)
All spheres of government and all organs of state within each sphere
must –
.
. .
(h)
co-operate with one
another in mutual trust and good faith by –
(i)
fostering friendly relations;
(ii)
assisting and supporting one another;
(iii)
informing one another of, and consulting one another on, matters of
common interest;
(iv)
co-ordinating their actions and legislation with one another;
(v)
adhering to agreed procedures; and
(vi)
avoiding legal proceedings against one another.’
It
must be stressed that governing bodies of public schools are state
organs and discharge their duties as part of the State machinery

engaged in the crucial program of providing access to basic education
to all the children of the country. Courts have emphasized
that
public schools must be managed not only in the interests of those who
happen to be learners and parents at a specific time
but also in the
interests of the broader community in which the schools are located
and in the light of the values of our Constitution.
[8]
[12]
As stated, in this appeal it was submitted on behalf of the MEC that
the regulations are not
in conflict with legislation and policies
adopted for the purpose of regulating the process of providing access
to education. It
was argued that even where there appears to be
differences or overlaps, those involved in implementing them have a
duty to read
these legal instruments harmoniously. They were enacted
to ‘strike a balance between the interests of individual
schools,
their learners and parents on the one hand, and the broader
public interest on the other’, so it was submitted. The
submissions
on behalf of the MEC are correctly focused on public
schools being public assets through which the right to education is
realized.
Accordingly, each public school has an obligation to
facilitate the realization of the right to basic education to as wide
a number
of learners as reasonably possible.
[13]
On the other hand, the approach adopted by Fedsas is that where the
regulations in question relate
to matters already provided for in
national or provincial legislation, the overlap constitutes a
conflict. In the alternative,
even if there is no conflict, the power
to make them has been exercised unreasonably and unjustifiably, so
contends Fedsas.
[14]
Cardinal to Fedsas’ argument is that s 5(5) of the Schools
Act places the power to
determine the admission policy of a school in
the hands of governing bodies of schools. Indeed s 5(5) of the
Schools Act 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.’
The
argument by Fedsas was that although s 11(1) of GSEA permits the MEC
to make regulations for admission of learners to public
schools, the
authority so conferred does not mandate the MEC to make regulations
relating to capacity of schools as she purported
to do in the
regulations. Therefore, in as far as the regulations purport to
empower the MEC to exercise authority in respect of
determination of
the capacity of schools, they are
ultra
vires
.
[15]
Quite significantly, Fedsas contended that there is no factual basis
for ‘the broad generalization’
by the MEC that the
original regulations allowed for risk of monopolization of public
assets for the exclusive benefit of current
learners and their
parents at the expense of the broader public interest. The contention
was that the reference by the MEC, to
‘deep inequality in the
distribution of public resources along racial lines’ is
designed to improperly manipulate legislation
and governance of
schools in Gauteng.
[16]
The background to which I have referred belies the contentions by
Fedsas. In my view the argument
by Fedsas ignores important factors
that have been firmly recognized by the courts.
The
enduring disparities in the education system which are a legacy of
the apartheid system are a matter of common knowledge and
have been
repeatedly acknowledged by our courts. The need for sustained reform
in our public education system is firmly established.
In
Head
of Department, Mpumalanga Department of Education & another v
Hoërskool Ermelo & another
2010
(2) SA 415
(CC) the Constitutional Court, per Moseneke DCJ, while
considering the exclusionary effect of a single-medium (Afrikaans)
language
policy of a school on learners, acknowledged the ‘scars’
left by the system of apartheid on the South African society,
the
worst of which is the vast discrepancy in access to public and
private resources. The court remarked that while much remedial
work
has been done since the advent of constitutional democracy, deep
social disparities remain. Specific reference was made to
the
disparities in the resourcing of black and white public schools; that
while white public schools inherited and still enjoy
the legacy of
lavish treatment from the apartheid government, black public schools
remain scantily resourced as a result of deliberate
miserly funding
by the government. The Court held: ‘that is why perhaps the
most abiding and debilitating legacy of our past
is an unequal
distribution of skills and competencies acquired through
education.’
[9]
[17]
It is in the context of the pressing need for public education reform
that education is listed
in Schedule 4 of the Constitution as a
functional area of concurrent national and provincial legislative
competence. Both Parliament
[10]
and the Provincial Legislatures
[11]
may legislate on Schedule 4 matters. Consequently, as the MEC
contended, the possibility of overlap and conflict in national and

provincial legislation – complained of by Fedsas – was
always anticipated.
[12]
The Constitution regulates the approach in the event of such
conflict, and the courts, in interpreting such legislation will seek

a reasonable interpretation of the national and provincial
legislation that avoids the conflict.
[13]
[18]
Notably, the criticism by Fedsas ignores the fact that the
difficulties that the MEC sought to
address through the regulations
are broader than racial and income capacity differences in our
society, they extend to even distribution
of learners of various
intellectual ability and behavioural dispositions amongst public
schools. Indeed, the provisions of s 29
of the Constitution (the
right to education) leave no room for restricted access to basic
education for burdensome or less talented
learners.
[19]
In addition, the issues raised in this dispute have largely been
settled by the Constitutional
Court. The scope of policy making
authority conferred on governing bodies by the Schools Act has been
comprehensively considered
by that court. I can do no better than
refer to
Ermelo
(above) in which the Constitutional Court
outlined the approach to the power of school governing bodies to
determine a school’s
language policy as follows (paras 57 –
59):
‘
The
power to determine a school’s language policy vests in the
governing body. Section 6(2) of the Schools Act provides that
the
governing body of a public school “may determine” the
language policy of the school. The legislation devolves the
decision
on the language of instruction onto the representatives of parents
and the community in the governing body. It accords
well with the
design of the legislation that, in partnership with the State,
parents and educators assume responsibility for the
governance of
schooling institutions. A governing body is democratically composed
and is intended to function in a democratic manner.
Its primary
function is to look after the interest of the school and its
learners. It is meant to be a beacon of grassroots democracy
in the
local affairs of the school. Ordinarily, the representatives of
parents of learners and of the local community are better
qualified
to determine the medium best suited to impart education and all the
formative, utilitarian and cultural goodness that
comes with it.
This
does not, however, mean that the function to decide on a medium of
instruction of a public school is absolute or is the exclusive

preserve of the governing body. Nor does it mean that the only
relevant consideration in setting a medium of tuition is the
exclusive
needs or interests of the school and its current learners
or their parents.
The
power of the governing body to determine language policy is made, in
so many words, “subject to the Constitution, [the
Schools] Act
and any applicable provincial law”. This qualifier is obviously
superfluous in relation to the Constitution
because all law is
subservient to our basic law. All that may be said is that the
qualifier emphasises that the power to fashion
a policy on the medium
of instruction must be accorded contours that fit into the broader
ethos of the Constitution and cognate
legislation. In addition, it
seems plain that the power must be understood and exercised subject
to the limitation or qualification
the Schools Act itself imposes. In
a rather unusual provision, the authority to fix a language policy is
conferred by national
legislation, but may be further qualified by
“
any
applicable provincial law
”.
(My emphasis,
footnotes omitted.)
[20]
These remarks are apposite to the dispute before us. The similarity
in the wording of ss 5(5)
and 6(2) of the Schools Act is no mere
coincidence.
[14]
It
signifies the intention of the legislature that congruent
interpretation must be accorded to these provisions.
[21]
In their own terms the provisions of the two sections are subject to
‘any applicable provincial
law’. Counsel for the MEC
correctly submitted that the Constitutional Court has already held
that the ‘provincial law’
referred to in
Ermelo
includes these regulations, although in their original form at the
time. The GSEA which specifically empowers the MEC to make these

regulations is a provincial law.
[15]
As will become apparent in the discussion below, the regulations do
not conflict with national and provincial legislation.
[16]
In
Rivonia
,
[17]
the Constitutional Court considered the provisions of s 5(5) of
the Schools Act. In doing so, it examined previous judgments
relating
to the interplay between the powers of the State, the provincial
education department and school governing bodies, as
derived from the
Schools Act. At para 49 of the judgment the court outlined the
principles for harmonious interpretation of relevant
legislation as
emanating from the relevant judgments as follows:
‘
(a)
Where the Schools Act empowers a governing body to determine policy
in relation to a particular
aspect of school functioning, a head of
department or other government functionary cannot simply override the
policy adopted or
act contrary to it. This is so even where the
functionary is of the view that the policies offend the Schools Act
or the Constitution.
However, this does not mean that the school
governing body’s powers are unfettered, that the relevant
policy is immune to
intervention, or that the policy inflexibly binds
other decision-makers in all circumstances.
(b)
Rather, a functionary may intervene in a school governing body’s
policy making
role or depart from a school governing body’s
policy, but only where that functionary is entitled to do so in terms
of powers
afforded to it by the Schools Act or other relevant
legislation. This is an essential element of the rule of law.
(c)
Where it is necessary for a properly empowered functionary to
intervene in a policy-making
function of the governing body (or to
depart from a school governing body’s policy), then the
functionary must act reasonably
and procedurally fairly.
(d)
Further, given the partnership model envisaged by the Schools Act, as
well as the
co-operative governance scheme set out in the
Constitution, the relevant functionary and the school governing body
are under a
duty to engage with each other in good faith on any
disputes, including disputes over policies adopted by the governing
body. The
engagement must be directed towards furthering the
interests of learners.’
(Footnotes
omitted.)
The
Constitutional Court also referred (para 42) to the direct role
played by the provincial department of education in terms of
ss 5(7)
to 5(9) of the Schools Act in the admission of learners to school, as
an indicator of the expressly intended interventionist
role of the
department in the admission of learners to schools.
[18]
[22]
It is against this background that the regulations and the objections
thereto must be considered.
Regulation
2(2A)
[23]
Regulation 2(2A) provides that:
‘
The
Department may determine the minimum standards for the formulation of
the admission policy for specialist schools, technical
schools and
education institutions.’
This
regulation had not been part of the proposed amendments published for
comment. It resulted from representations made by the
Governor’s
Alliance, a public school governing association, pursuant to the
notice and comment procedure. That association
suggested that
proposed regs 4(2) and (4), which relate to feeder zones, should not
apply to specialist schools which focus on
talent, including sport,
performing arts and creative arts.
[19]
Effectively, reg 2(2A) recognises that the specified categories of
schools may require different admission policies. The concern
of the
Governor’s Alliance was that, because of the nature of special
schools, regs 4 (2) and (4) would unduly restrict
special
schools from proper engagement when selecting learners to attend
those schools.
[20]
[24]
As is apparent from its provisions, the regulation will not, on its
own, have any impact even
on the specified categories of schools
until the minimum standards are issued. It was common cause before us
that that process
constitutes administrative action, and therefore
will require its own notice and comment process. The high court does
not appear
to have considered these factors. Its finding that this
regulation impacts on the autonomy of school governing bodies to
determine
admission policy without executive interference, appears to
have resulted from a bare textual comparison of the provisions of
s 5(5)
of the Schools Act with the regulation. No threat of
prejudice to Fedsas could be shown. Counsel for the department
indicated that
the MEC would be amenable to clarification of the
provisions of the regulation by adding the words ‘after
consultation’
following the word ‘may’ in the
regulation. Although such an amendment will, strictly speaking, be
superfluous, it
would put paid to any fear of the minimum standards
being enacted without consultation.
[25]
A further aspect, in the regulation, requires attention. Before us
the parties were in agreement
that the words ‘and education
institutions’ are problematic and should be deleted from the
regulation. The inclusion
of these words was erroneous. Counsel for
the MEC confirmed that it had not been the latter’s intention
to include ‘education
institutions’ in this regulation.
That much is evident from the mere reading of the regulations and the
definition of “education
institutions” in NEPA.
[21]
As already explained, the intention in promulgating this regulation
was to create a special dispensation for special schools and

technical schools, separate from that applicable to other public
schools. The inclusion of ‘education institutions’
in the
regulation detracts from that purpose and renders the regulations
unclear and incomprehensible, especially when regulation
2(2A) is
read with regulation 4 (relating to feeder zones).
[26]
It is competent for this court to review delegated legislation on the
grounds that it is vague,
unclear or incomprehensible.
[22]
All laws, including delegated legislation, must be clear,
comprehensible, accessible and predictable in their application.

In this case there is a third aspect on which the regulation was
criticised. Fedsas contended, in its founding papers, that the

granting of the powers to ‘the department’ was improper.
The MEC conceded this and suggested, in her answering affidavit,
that
the words ‘the department’ should be replaced by the
words ‘the MEC’. In the light of all these discrepancies

and the many respects in which the regulation falls foul of the
requirements for validity I am of the view that the appropriate

remedy would be for it to be struck down. The MEC may apply her mind
to its reformulation should she still wish to do so.
Regulation
3(7): Confidential report
[27]
Regulation 3(7) provides that:
‘
When
a learner has applied to a school, neither the governing body of that
school nor any person employed at that school may request
the
learner’s current school or any person employed at that school
to furnish it with a confidential report in relation to
that
learner.’
[28]
‘Confidential report’ is defined in regulation 1 as ‘a
report containing information
about the financial status of a parent,
whether the parent can afford the school fees and employment details
of a parent or any
other information that may be used to unfairly
discriminate against a learner’. Fedsas contended that it is
entitled to this
information. It complained that the regulation
constitutes a serious inroad to the admission criteria of public
schools; that it
is
ultra
vires
and in conflict with s 4 of GSEA;
[23]
that it is too vague and frustrates the ability of school governing
bodies to discharge their responsibility to ensure safety of
their
learners. The MEC on the other hand contended that the regulation is
not an absolute bar to obtaining information on a learner.
It is
intended to prevent unfavourable or potentially prejudicial
information about a learner to form the basis of the decision
as to
whether the learner should be admitted to a school or not. On a
proper reading of the regulation, once a learner is admitted
to a
school, the required information can be obtained to enable the new
school to prepare for the learner beforehand, so it was
submitted.
[29]
It became apparent during the hearing of the appeal that Fedsas was
mostly concerned about being
unable to obtain, beforehand,
information about an applicant learner who might threaten the
security of other learners. I may just
state that in as far as the
provisions of the regulation seek to ensure that learners are not
refused admission on the basis of
their parent’s ability to pay
school fees the regulation is unassailable. Whilst the concern for
the safety of learners is
understandable and accords with the
responsibilities of school governing bodies, it is a concern that
affects all public schools.
But no public school enjoys more
protection from burdensome learners than others, and the
constitutional right to education extends
equally to all children,
including those who are considered burdensome for various reasons.
Therefore the regulation, in as far
as it is intended to prevent
unfair discrimination against those learners perceived as burdensome,
is well within the responsibility
of advancing the ideals of the
Constitution. Indeed, a correct interpretation of the regulation is
that the prohibition against
obtaining the information is only
effective prior to admission of a learner: ‘when a learner has
applied for admission’.
Once the learner is admitted, before
physical attendance at the school, the school may seek the
information it requires in order
to prepare properly for the learner
concerned.
[30]
In holding that the regulation is an unjustifiable and unreasonable
encroachment on the functions
of the governing body, the high court
found that learners who have been refused admission have adequate
remedies in the appeal
process provided for in the Schools Act.
However, that argument ignores the fact that it is the core
responsibility of public schools
to indiscriminately provide basic
education to the children of the country; if one school is entitled
to refuse admission on the
grounds of the information concerned, all
schools will be entitled to do so; thus avoiding their responsibility
to the prejudice
of the learners. Consequently the regulation is
rational, reasonable and justifiable.
Regulation
4: Feeder Zones
[31]
This regulation provides for determination by the MEC, of feeder
zones for schools in the province.
It provides that:
‘
4. (1)
Subject to the National Policy Act No 27 of 1996 and other applicable
laws the MEC may, by notice in the Provincial Gazette,
determine the
feeder zone for any school in the Province, after consultations with
the relevant stakeholders have been conducted.
(2)
Until such time as the MEC has determined a feeder zone for a
particular school, in
relation to a learner applying for admission to
that school, the feeder zone for that school will be deemed to have
been determined
so that a place of residence or work falls within the
feeder zone if:
(a)
relative to that place of residence or place of work, the closest
school which the
learner is eligible to attend, or
(b)
that place of residence or place of work for that parent is within
5km radius of the
school.
(3)
The MEC may, by notice in the Provincial Gazette, designate one or
more primary schools
as feeder primary schools for a particular high
school.
(4)
Until such time as the MEC has designated one or more primary schools
as feeder primary
schools for a particular high school, in relation
to a learner applying for admission to that high school, any primary
school to
which that high school is the closest high school which the
learner is eligible to attend shall be deemed to have been designated

as a feeder primary school for that high school.
(5)
Subregulations (2) and (4) shall not apply to specialist schools,
technical schools,
agricultural schools or industrial schools.’
[32]
In striking this regulation down, the high court found that it was
ultra vires
as the power to determine feeder zones is
specifically conferred on the HOD by s 33 of the National Admissions
Policy. That court
found that neither s 5 of the Schools Act nor
s 11(1) of GSEA empowers the MEC to determine feeder zones.
Section 33
of National Admissions Policy reads:
‘
A
Head of Department, after consultation with representatives of
Governing Bodies, may determine feeder zones of ordinary Public

Schools in order to control the learner numbers of schools and
co-ordinate parental preferences. Such feeder zones need not be

geographically adjacent to the schools or each other.’
Section 11(1)
of GSEA reads:
‘
Subject
to this Act, the Member of the Executive Council may make regulations
as to the admission of learners to public schools.’
[33]
Initially, central to Fedsas’ objection to this regulation was
the view that reg 4(1) is
an impermissible intrusion on the powers of
school governing bodies’ authority relating to admission of
learners and capacity
of schools. However, before us counsel for
Fedsas correctly conceded that there is no proper basis for objecting
to this regulation,
particularly as it is within provincial
competence and provides for consultation before the MEC makes any
decision on feeder zones.
[34]
Regarding reg 4(2), the argument was that, because the MEC has not
yet determined any feeder
zones in terms of the National Admissions
Policy, schools are free to determine their own feeder zones and they
probably have done
so. The creation of default feeder zones under reg
4(2)(b) detracts from this freedom, and is contrary to the National
Admissions
Policy and the
audi
alteram partem
principle, so it was submitted. Moreover, so the argument went, the
default position is open-ended as there is no obligation on
the MEC
to commence the consultation process
[35]
The MEC accepted the need for consultation but argued that in the
meantime, the need for a default
position is inescapable. The
argument was that prior to determination of feeder zones, it is
untenable to leave such determination
to the unsystematic, exclusive
authority of governing bodies, thus allowing for the risk that some
areas might be left without
schools. I agree. Determination of feeder
zones will entail extensive consultations. In the meantime, the
default feeder zones
regime as created by reg 4(2) appears to be most
rational and reasonable. And although the regulation was published
for comment,
it does not seem that Fedsas presented an alternative
default feeder zone determination system; it is not Fedsas’
case that
it did. The default feeder zone regime attempts to ensure
that each child has ready access to a school closest to either his or

her home or parent’s place of employment. The regulation, in my
view, meets both the rationality and reasonableness requirements.

Further, as submitted on behalf of the MEC, it is a matter of logic
that the power to make regulations as to admission of learners
to
public schools necessarily includes the power to determine the feeder
zones; both entail the systematic placement of learners
from specific
zones at particular schools.
[36]
The authority of policy made in terms of the NEPA over provincial
government departments was
comprehensively considered in
Minister
of Education v Harris
2001
(4) SA 1297
(CC) para 11, where the court held that such policy does
not create legal obligations that bind the provinces.
[37]
A further complaint by Fedsas that the default position is unworkable
for boarding schools disappears
when consideration is had to the fact
that regs 5(11) and (12) allow boarding schools to admit learners
from beyond the default
feeder zones.
Regulations
5 and 8
[38]
The contentious portions in these regulations may be summed up as
follows: Regulation 5(7)(c)(iv)
provides for learners who, at the end
of an application period, have been unsuccessful in securing
admission to a school, to be
advised of their right to object and
appeal in terms of reg 16. Regulation 5(8)(a) empowers the District
Director to place any
learner who has not been placed at any school
30 days after the end of the admission period, at any school which
has not been declared
full in terms of reg 8. Regulation 5(9) places
an obligation on the HOD to secure admission to schools within the
province, of
learners who, under reg 5(8), remain unplaced 45 days
after the end of the admission period. Regulation 5(10) provides that
in
effecting placement in terms of regs 5(8) and (9) the District
Director and HOD must have regard to the proximity of the school
to
the learner’s place of residence or his or her parent’s
place of work and the capacity of the school to accommodate
the
learner, relative to the capacity of other schools in the district.
Regulation 8(1) empowers the HOD to determine the objective
entry
level enrolment capacity of a school for the purpose of placing
learners whose applications for admission have not been accepted
at
any school. Regulation 8(2) empowers the HOD or his or her delegate
to declare a school to be full for the purposes of entry
level
admissions at schools. Regulation 8(3) empowers the HOD or his or her
delegate to declare full, a school that has reached
its objective
entry level enrolment capacity. In terms of reg 8(4) a school that is
declared full by the HOD will be informed in
writing.
[39]
Again, the basis of the objection by Fedsas to these regulations was
that they constitute an
unjust encroachment on the powers of the
school governing body. It was also contended that they are an
irrational and unlawful
delegation of powers, and that they are
inconsistent with the provisions of s 5(7) of the Schools Act,
which prescribes that
an application for admission of a learner must
be made to the education department. It was the view of the high
court that reg
5 impermissibly encroaches on the admissions
policy-making powers of the Minister as provided for in s 5A of
the Schools Act.
[24]
[40]
An important factor that Fedsas misses is that under reg 5 the HOD
exercises the powers conferred
in limited circumstances: in respect
of learners whose applications for admission have not been accepted
at schools in the public
schooling system. The regulation is not
irrational; its purpose is evident from the provisions thereof.
Regarding reg 8 the contention
by Fedsas, that determination of
public schools’ capacity is an exclusive policy of school
governing bodies, is incorrect.
The Constitutional Court, at para 40
of
Rivonia
,
endorsed the approach of this court, that the power to determine
admissions policy of a school necessarily includes determination
of a
school’s capacity. I therefore agree with the submission, on
behalf of the MEC, that the provisions of the regulation
fall within
the ambit of his or her powers relating to admissions. The regulation
is not
ultra
vires
.
Neither does it constitute unlawful delegation of powers. As already
stated, the department has authority to exercise reasonable
control
over admissions and capacity in public schools.
Regulation
11
[41]
This regulation provides for transfer of a learner from one school
(including an independent
school) to a public school. Fedsas
objected, in particular, to the provisions of regs 11(3) and (4)
which authorize the District
Director, for good cause, to transfer a
learner to a school that has not been declared full or to admit the
learner to that school,
taking into account certain factors. Those
factors include the reasons for leaving the first school
[25]
and the capacity of the school to which the learner seeks
admission,
[26]
relative to the capacity of other schools. The high court found the
regulation to be within the parameters of the MEC’s statutory

powers under s 11(1) of the GSEA. However, it held that, for the
same reasons as in respect of regulations 5 and 8, the capacity

determination power provided for in the regulation is
ultra
vires
the MEC’s statutory powers’. The court then ordered that
the words ‘that has not been declared full’ be
severed
from reg 11(4). It also declared that regs 11(3) and 11(5)(c) were
ultra
vires
s11(1)
of GSEA. For the same reasons stated in respect of regulation 5 and 8
that declarator falls to be set aside. It is also a
relevant factor,
once again, that under this regulation authority vests only in
specified circumstances.
Regulation
16
[42]
Regulation 16 provides that a learner who has been refused admission
to a public school may first
lodge an objection to the HOD; if
dissatisfied with his/her decision, the learner may appeal to the
MEC. It reads thus:
‘
Objections
and Appeals
16.
(1)  If, at the end of the application period, a learner is
refused admission to a school, the principal must, inform the
parent,
in writing, of his or her rights of objection and appeal under these
Regulations.
(2)
A parent of a learner, who wishes to lodge an objection against a
decision contemplated in Regulation 5(7)(c)(iii) may
object to the
Head of Department within 7 school days of being provided with the
documents listed in Regulation 5(7)(c)(iii) and
(iv).
(3)
A parent who lodges an objection must do so on an objection form
similar to Annexure D to these Regulations.
(4)
A parent who is dissatisfied with the decision of the Head of
Department contemplated in subregulation (2) may, within
7 school
days of being informed or of being provided with the reasons of the
Head of Department, appeal against that decision to
the MEC by
lodging an appeal form similar to Annexure E to these Regulations.
(5)
Within 15 school days of receiving an appeal contemplated in
subregulation (4), the MEC must take his or her decision
on the
appeal and provide the parent with reasons for any decision not to
uphold the appeal.’
The
objection by Fedsas to this regulation was a perceived conflict with
the provisions of reg 5(9) of the Schools Act. As set out
before, the
latter section states that a learner who has been refused admission
to a public school may appeal to the MEC. The argument
by Fedsas is
that reg 16 introduces a new layer of appeal between the school
principal and the MEC.
[43]
The high court held that the MEC may not delegate his or her appeal
power to the HOD. In my view,
the provisions of regulation 16 do not
constitute delegation of authority to an HOD to decide an appeal. As
provided in s 5(8)
of the Schools Act, only when the HOD
confirms refusal of admission can a learner be said to have been
refused admission to a public
school. That section provides that
where an application for admission of a learner to a public school,
made in terms of s 5(7),
is refused, the HOD must inform the
parent, in writing, of such refusal and the reasons therefor. Under
reg 16(1) the communication
of the right to object and appeal comes
into play where
a
principal
informs
a parent of a refusal of admission of a learner. The regulation
merely emphasizes that such refusal as communicated by a
school
principal is not final until the HOD has had the last word on it. The
regulation therefore neither constitutes an additional
layer of
appeal, nor is it in conflict with the provisions of s 5(8) of
the Schools Act.
[44]
For all these reasons the following order is made:
1
The late prosecution of the appeal is condoned;
2
The appellants are ordered to pay the respondent’s costs of the
application for condonation;
3
The appeal is upheld with costs, such costs to include the costs of
two counsel.
4
The order of the high court is set aside and is substituted with the
following:
‘
(a)
Save to the very limited extent set out below, the application is
dismissed with costs of two counsel.
(b)
Regulation 2(2A) of the regulations published under the General
Notice 1160 of 2012 is declared invalid and of no force and
effect.’
______________________
N Dambuza
Judge
of Appeal
APPEARANCES:
For
the Appellant:

W Trengove SC, S Budlender and B Lekokotla
Instructed by:
The State Attorney,
Johannesburg
c/o
The State Attorney, Bloemfontein
For
the Respondent:

J Du Toit SC and C Dreyer
Instructed by:
Michael Randell Attorneys
Port Elizabeth
c/o
Claude Reid, Bloemfontein
[1]
Gauteng
Regulations on Admission of Learners to Public Schools, 2012, GN
1160,
Provincial
Gazette
127, 9 May 2012.
[2]
General Notice
1929 of 2011,
Provincial
Gazette
154
of 18 July 2011.
[3]
The original
Gauteng Regulations on Admission of Learners to Public Schools were
promulgated under General Notice 4138,
Provincial
Gazette
129 of 13 July 2001.
[4]
As published by
the Minister of Education in terms of s 3(4)
(i)
of
NEPA in GN 2432,
GG
19377
of 19 October 1998.
[5]
See for example,
Premier,
Mpumalanga & another v Executive Committee, Association of State
Aided Schools, Eastern Transvaal
1999 (2) SA 91
(CC);
Head
of Department, Mpumalanga Department of Education & another v
Hoërskool Ermelo & another
2010 (2) SA 415
(CC);
MEC
for Education, Gauteng Province & others v Governing Body,
Rivonia Primary School & others
2013 (6) SA 582
(CC);
FEDSAS
v MEC of Department of Education and Training, North West Province &
another
[2014]
ZANWHC 17
;
Yolanda
Tshona v Principal, Victoria Girls High School & others
,
a judgment of the Eastern Cape Division, Grahamstown unreported case
no 2764/2006 of 17 October 2006.
[6]
See eg
Head
of Department, Department of Education, Free State Province v Welkom
High School & others
2014(2)
SA 228 (CC).
[7]
See
Marius H Smit and Izak J Oosthuizen 'Improving school governance
through participative democracy and the law' (2011) 31
South
African Journal of Education
55.
[8]
Head of
Department, Mpumalanga Department of Education & another v
Hoërskool Ermelo & another
2010
(2) SA 415
(CC) para 80.
[9]
Paragraph
46.
[10]
In terms of
section
44(1
)(a)
(ii)
and
b
(ii)
of the Constitution.
[11]
In terms of
section
104(1)
(b)(
i)
of the Constitution.
[12]
Mashava v
President of the Republic of South Africa & others
[2004] ZACC 6
;
2005 (2) SA 476
(CC) para 49.
[13]
Section 150 of the
Constitution, which provides:
‘
150
Interpretation of conflicts
When
considering an apparent conflict between national and provincial
legislation, or between national legislation and a provincial

constitution, every court must prefer any reasonable interpretation
of the legislation or constitution that avoids a conflict,
over any
alternative interpretation that results in a conflict.’
[14]
Section
5
(5)
of the Schools Act 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.’
Section
6(2) of the Schools Act provides that:
‘
The
governing body of a public school may determine the language policy
of the school subject to the Constitution, this Act, and
any
applicable provincial law.’
[15]
Section
11(1) of the GSEA provides that:
‘
Subject
to this Act, the Member of the Executive Council may make
regulations as to the admission of learners to public schools.’
[16]
Particularly the
Schools Act and the GSEA.
[17]
MEC for
Education, Gauteng Province & others v Governing Body, Rivonia
Primary School & others
2013 (6) SA 582 (CC).
[18]
Section
5(7) provides that:
‘
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.’
Section
5(9) reads: ‘
Any
learner or parent of a learner who has been refused admission to a
public school may appeal against the decision to the Member
of the
Executive Council.’
[19]
Regulation 2(2)
provides that:
‘
The
admission policy of a school, determined by the governing body of
that school in terms of section 5(5) of the Schools Act,
may not be
inconsistent with the provisions of the Regulations.’
Regulation
4 confers on the MEC authority to determine feeder zones for schools
within the (Gauteng) Province and provides for
a default position
until the MEC makes the determination.
[20]
The department
realized that technical schools would also suffer the same prejudice
hence the inclusion of those schools in reg
2(2A).
[21]
An
‘
education
institution’ is defined in s1 of NEPA as ‘any school
contemplated in the
South African Schools Act, 1996
’
[22]
See eg L M Du
Plessis ‘Statute Law and Interpretation’ in 25(1)
Lawsa
(2
ed) para 296. .
[23]
This section
provides that: ‘No power conferred by this Act shall be
exercised in a manner which is unreasonable and unjustifiable.’
[24]
See s 5A(1)(b).
[25]
Regulation
11(5)(a).
[26]
Regulation
11(5)(c).