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[2012] ZASCA 194
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Governing Body of the Rivonia Primary School and Another v MEC for Education: Gauteng Province and Others (161/12) [2012] ZASCA 194; 2013 (1) SA 632 (SCA); [2013] 1 All SA 633 (SCA) (30 November 2012)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 161/12
Reportable
In the matter between:
THE GOVERNING BODY OF THE RIVONIA
PRIMARY
SCHOOL
..........................................................................................
FIRST
APPELLANT
RIVONIA PRIMARY SCHOOL
....................................................
SECOND
APPELLANT
and
MEC FOR EDUCATION: GAUTENG PROVINCE
.......................
FIRST RESPONDENT
HEAD OF DEPARTMENT: GAUTENG
DEPARTMENT
OF EDUCATION
.....................................................................
SECOND
RESPONDENT
DISTRICT DIRECTOR: JOHANNESBURG
EAST D9 –
GAUTENG DEPARTMENTOF EDUCATION
..............................
THIRD
RESPONDENT
CELE: STHABILE
....................................................................
FOURTH
RESPONDENT
MACKENZIE: AUBREY
................................................................
FIFTH
RESPONDENT
DRYSDALE: CAROL
...................................................................
SIXTH
RESPONDENT
AMICI CURIAE, EQUAL EDUCATION AND
THE CENTRE FOR CHILD LAW
Neutral citation:
The
Governing Body of the Rivonia Primary School v MEC for Education:
Gauteng Province
(161/12)
[2012] ZASCA 194
(30 November
2012)
Coram
: Nugent, Cachalia,
Shongwe, Wallis JJA and Saldulker AJJA
Heard: 16 November 2012
Delivered: 30 November 2012
Summary: In terms of s 5(5) read
with
s 5A
of the
South African Schools Act 84 of 1996
the governing
body of a public school has authority to determine the capacity of a
school as an incident of its admission policy.
Provincial education
authorities may not ‘override’ the policy.
____________________________________________________________________
ORDER
____________________________________________________________________
On appeal from:
South Gauteng
High Court, Johannesburg (Mbha J sitting as court of first instance):
The appeal is upheld with costs, such
costs to be paid by the first, second and third respondents. The
order of the high court is,
save for paras 6 and 7 thereof, set aside
and the following order substituted in its place:
‘
It is
declared that the instruction given to the principal of the Rivonia
Primary School to admit the learner contrary to the school’s
admission policy, and the placing of the learner in the school, were
unlawful.’
JUDGMENT
____________________________________________________________________
CACHALIA JA (NUGENT, SHONGWE,
WALLIS JJA AND SALDULKER AJA CONCURRING):
[1] What occurred in this case might
have occurred at any public school that had a waiting list for the
admission of learners –
and there are many such schools. As it
happens, it occurred at a school located in an affluent, historically
white suburb, where
a little more than half the learners were white.
Much was made of that in the judgment of the court below, and in the
affidavits
filed by the respondents, and in argument that was
advanced before us on their behalf, but none of it is relevant to
this appeal.
The issues before us concern the structure of governance
of all public schools, wherever located, whatever their
circumstances,
and whatever the composition of their learners.
[2] The school concerned is Rivonia
Primary School. It declined to admit a child to its Grade 1 class for
the 2011 school year,
because she was twentieth on the waiting list,
against the insistence of her mother. The mother persisted in her
demand that the
child be admitted and garnered the support in her
cause of officials of the Gauteng Department of Education. Some weeks
into the
school year the head of the department (HoD) instructed the
principal to admit the child. Before the governing body could meet to
consider the instruction, officials of the department arrived at the
school and summarily deposited the child in a classroom. That
high-handed conduct can only be deprecated. For reasons I now turn to
it was also unlawful.
[3] Governance of public schools is
regulated by the
South African Schools Act 84 of 1996
.
Section 5(5)
of the 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 principal question that arises in
the appeal is whether that entitles the governing body to determine
the number of learners
the school may admit. The provincial
government contends that it falls within its authority to do so, and
not the authority of
the governing body.
[4] Rivonia Primary School is a public
school situated in one of Johannesburg’s more affluent,
historically white areas. Since
the days when schools were racially
segregated, the school’s learner-profile has changed
materially. In February 2011 it
had 388 black learners, 52 of whom
were in Grade 1. This represented 46% of the total learners at the
school.
[5] The governing body had prepared an
admission policy, which the department accepted on 4 March 2010, in
which the capacity of
the school was set at 770 learners, of which
120 could be accommodated in Grade 1.
[6] The school’s post
provisioning for the 2011 year, funded through the provincial budget,
was a total number of 22 educators
– including the principal, a
deputy principal, three heads of department and 17 teachers –
determined on the basis
of 37 children per class. The school,
however, had a lower learner-class ratio of 24 learners per class –
one of the lowest
ratios in the province. This is because the
governing body employed 22 additional educators to ensure each
child’s adequate
supervision. From 2000 to 2009 the governing
body spent R3 251 036 on construction projects including building
nine further classrooms.
The parents – not the department –
funded these extra costs. They did so to ensure that their children
would have a
solid foundation to equip them for their later school
years.
[7] The governing body determined its
capacity by taking into account a number of factors, including its
statutory obligation to
promote the best interests of the school, and
to ensure its development through the provision of quality education.
The number
of educators, their space requirement, the number of
designated classrooms, and the optimum desk working space, were all
factored
into making this determination. There is no suggestion that
it set its capacity unreasonably or irrationally.
[8] The school opened its application
process for admission of children to Grade 1 for the school year
starting in January 2011
on 13 July 2010. Over the next few days many
application forms were collected. The mother of one of the children,
with whom this
appeal is concerned, collected hers on 15 July and
submitted it to the school on 21 July. At this stage the school had
handed out
191 application forms of which 139 had been returned. At
the time the child’s mother submitted her application for entry
to Grade 1 – which had a capacity of 120 – she was number
140 on the admission list.
[9] On 26 October 2010, the school
informed the mother by e-mail that her child’s application for
admission was unsuccessful
and that her details had been sent to the
District Office to assist her with finding a place for the child. The
e-mail went on
to say that she would be advised in due course where
her child may be accommodated. Meanwhile the child would remain on
the waiting
list. Similar notices were sent to other unsuccessful
applicants.
[10] On 4 November 2010 the mother
wrote to the principal, Ms Carol Drysdale, asking why her application
had not been accepted.
Ms Drysdale gave the reason in a letter
the following day: the school had reached its capacity. The letter
also stated that
her application was then number 14 on the waiting
list, presumably because some of the children ahead of her on the
waiting list
had been accommodated at other schools.
[11] The mother then lodged an appeal
against this decision with the MEC for Education on 5 November 2010.
Meanwhile she continued
to put pressure on officials of the
department to place her child at the school. There were various
meetings between the governing
body, Ms Drysdale and the department’s
officials to find a solution. At a meeting on 30 November 2010
it appears to
have been accepted that the child would have to wait
her turn until a place became available. Her mother then enrolled her
at a
private school, Lifestyle Montessori School, where she commenced
attending classes on 12 January 2011.
[12] Late in January 2011, with the
school year well underway, the mother’s appeal was brought to
the MEC’s attention.
Mr Len Davids, the Deputy Director General
of the department, and deponent to the respondents’ answering
affidavit, explained
the extraordinary delay in bringing the matter
before the MEC as ‘due to administrative issues’. Bearing
in mind that
the appeal had been lodged on 5 November, and
almost three months had since passed, this anodyne explanation is
hardly acceptable.
[13] The MEC, quite properly, declined
to entertain the appeal before the HoD had dealt with the matter in
accordance with reg 13
made under the Gauteng School Education Act 6
of 1995. This is because reg 14 allows an appeal to the MEC only
after the HoD has
considered the matter, which had not happened.
1
So the MEC referred the matter to the
HoD for attention.
[14] On 2 February 2011 the matter
took a new turn. The HoD, Mr Boy Ngobeni, informed Ms Drysdale by
letter that the school’s
‘tenth day statistics’
revealed that it had not reached its capacity. (The department uses
these statistics to determine
the number of children who have been
enrolled at a school.) The letter went on to instruct her to admit
the learner forthwith.
[15] It appears that Mr Ngobeni’s
conclusion that the school had not reached its capacity was based on
information gleaned
from the statistics, which showed that the school
had admitted 124 learners to Grade 1 even though its stated capacity
was only
120. The school, however, explains that it is common
practice to accept a few more learners as substitutes for those who
had been
accepted but do not arrive to take up their positions. This
explains the discrepancy between the statistics and the actual number
of admitted learners, and refutes Mr Ngobeni’s suggestion that
the school had incorrectly stated its capacity. It is, however,
clear
that by instructing Ms Drysdale to admit the child, Mr Ngobeni was
not acting on the terms of the mother’s original
complaint and
in accordance with reg 13, but on this new information.
[16] Five days later, on 7 February,
the mother arrived at the school to have her child admitted. Ms
Drysdale explained that an
urgent meeting of the governing body had
been called to discuss the issue, and asked her to leave with her
child while the matter
was being resolved. Not satisfied, the mother
left after telling Ms Drysdale that ‘she is going straight to
the MEC’s
office’.
[17] The following day, on 8 February,
she returned to the school with her child. This time she was
accompanied by an official from
the department, Mr Thlage Petlele,
who was armed with an instruction from Mr Ngobeni to Ms Drysdale to
admit the child. They encountered
a representative of the governing
body, Mr Paul Lategan, who requested them to await the outcome of
their attempt to resolve the
dispute, and not to subject the child to
any further unpleasantness.
[18] Mr Petlele presented a letter to
Mr Lategan and Ms Drysdale from Mr Ngobeni. It stated that Ms
Drysdale’s admission function
as the principal had been
withdrawn. Some thirty minutes later another official, Mr Babsy
Matabane, arrived at the school. He handed
a letter to Ms Drysdale
informing her that the admission function had now been delegated to
him.
[19] Mr Lategan again asked the
officials to remove the learner pending a resolution of the dispute.
But they were adamant that
they were acting on the authority of the
HoD, and they were there to place the learner. Mr Lategan phoned the
department’s
legal division to intervene, but the official who
responded, Mr Qinso Zwane, was not willing to entertain his plea.
[20] The two officials, accompanied by
a security guard, then proceeded to the Grade 1 classrooms with the
child and her mother.
They arrived at one of the classrooms with the
least number of learners and after speaking to the teacher decided
not to place
the child in that classroom. They then went to another
classroom where they met a teacher outside that classroom. They asked
her
to allow them entry so that they could place the child there and
she obeyed. They entered and seated the child at an empty desk
that
had been installed earlier that morning for a child with attention
and learning difficulties, and then left.
[21] The appellants – the
governing body and the school – applied to the South Gauteng
High Court for declaratory and
interdictory relief aimed at the
department’s decision to override the school’s admission
policy on capacity, the withdrawal
of Ms Drysdale’s admission
function, and the forced admission of the child. In the interests of
the child the appellants
commendably abandoned the relief concerning
her admission.
[22] Save for the relief pertaining to
the withdrawal of Ms Drysdale’s admission function, which
the court (Mbha J) granted,
2
the application was dismissed. With
the leave of the high court the appellants now appeal that order. The
respondents do not cross-appeal
the order that the withdrawal of
Ms Drysdale’s admission function ‘was not exercised
bona fide and is set aside.’
[23] After leave was granted there was
a new development. On 9 May 2012 the MEC amended the regulations on
the admissions of learners
to public schools in Gauteng.
3
Regulation 8, as amended, now provides
that the HoD – not the governing body – shall determine
the capacity of a school.
4
The respondents contended that this
regulation rendered the appeal moot.
[24] Courts will generally decline to
entertain litigation in which there is no live or existing
controversy. That is principally
for the benefit of the court so as
to avoid it being called to pronounce upon abstract propositions of
law that would amount to
no more than advisory opinions. The
principle so far as appeals are concerned is captured in s 21A of the
Supreme Court Act 59
of 1959, which allows an appeal to be dismissed
on the ground alone that the judgment or order sought will have no
practical effect
or result.
[25] The lawfulness or otherwise of
the HoD’s conduct is certainly a live issue. It also cannot be
said that our decision
on the matter will have no practical effect.
The submission that the new regulation has overtaken events assumes
that the regulation
is valid – which is not before us to decide
– but the proper meaning of the Schools Act is relevant to
deciding that
question. Moreover, our decision will indeed have a
practical effect so far as Ms Drysdale, who has an interest in the
appeal,
is concerned. We were informed from the bar that she was
subjected to disciplinary sanctions for not complying with the HoD’s
instruction. That instruction, as will emerge later in this judgment,
was unlawful. She was given a final warning and had a month’s
salary deducted.
[26] I turn, then, to the structure of
governance in public schools.
[27] The first democratically elected
Parliament passed the Act soon after the Constitution was adopted.
Its objective, according
to the long title, was to ‘[t]o
provide for a uniform system for the organisation, governance and
funding of public schools’.
The preamble records that schools
would henceforth be governed democratically with learners, parents
and educators assuming this
responsibility in partnership with the
State. Public school governance, in the words of the Education White
Paper which preceded
the Act, would become part of the country’s
new structure of democratic governance.
5
It would represent a radical departure
from the model of the authoritarian control of education of the
pre-constitutional era.
[28] The governance of public schools
is now vested in their governing bodies whose functions, obligations
and rights are prescribed.
6
Their membership in primary schools is
elected from the learners’ parents, educators and staff
members.
7
They may co-opt other members to
assist in discharging their functions.
8
The principal serves ex officio on the
governing body as a representative of the HoD
9
and must assist the governing body to
perform its functions and responsibilities.
10
It is implicit in this that the
principal is obliged to implement the policies lawfully determined by
the governing body within
its sphere of authority.
[29] A governing body stands in a
position of trust towards the school.
11
It promotes the school’s best
interests and strives to ensure its development by providing quality
education to the learners.
12
Implicit in this model of governance
is an acceptance on the lawmaker’s part that the state cannot
provide all the resources
for the proper functioning of a high
quality schooling system. So governing bodies are enjoined to ‘take
all reasonable measures
within [their] means to supplement the
resources supplied by the State in order to improve the quality of
education provided by
the school . . .’
13
[30] Governing bodies thus have a
mandate – indeed, an obligation – to raise additional
funds through the active involvement
of the parents, who in return
for their financial contributions are given a direct and meaningful
say in school governance and
the employment of school funds.
14
Governing bodies set their own school
fees and prepare budgets for approval by the general meeting.
15
It is in pursuance of that injunction
that Rivonia Primary School’s governing body has been able to
reduce its learner-educator
ratio by building extra classrooms and
employing additional educators.
[31] Section 20(1) details a long list
of functions that the governing body performs. In addition to these
the Act explicitly makes
language policy,
16
religious policy observance
17
and admissions policy
18
–
the subject of the present
dispute – the responsibility of the governing body.
[32] While school governance is the
responsibility of the governing body, the professional management of
the school is undertaken
by the principal under the authority of the
HoD.
19
In undertaking the professional
management of a school a principal must carry out several duties,
including implementing educational
programmes and curriculum
activities, managing educators and support staff,
20
maintaining the discipline of
educators, support staff and learners, and, importantly, implementing
policies and legislative prescriptions.
21
[33] Admission to public schools is
thus under the control of their governing bodies, which both devise
and implement their admission
policies. The HoD is responsible for
the administration of the admission process. The Act specifies that
applications for the admission
of learners are made to the department
in the manner that the HoD determines.
22
In practice, as happened in this case,
the HoD delegates the administration of this function to principals.
23
The HoD, acting through the principal,
is thus responsible both for professional management, and for the
administration of admission,
which must necessarily be administered
in accordance with the governing body’s admission policy.
[34] Before I consider the central
issue in this appeal – whether a governing body has the
authority to determine school capacity
as an incident of admission
policy, and if so whether a provincial authority may override this
determination – it must be
borne in mind from what I have said
thus far that the structure of the Act and its underlying philosophy
places the governance
of the school in the hands of the local
community through the governing body, while officials of the
department are responsible
for professional management and for the
administration of admissions. These functions are distinct and a
failure to see them as
such will compromise the objectives of Act and
be at odds with its scheme.
[35] That does not mean, however, that
the authority of a governing body to govern a school is absolute. The
White Paper foresaw
that governing bodies might exceed, or fail to
exercise, their powers, and envisaged an oversight role for the
provincial government,
which it explained thus:
‘
The
province would need to reserve the right to intervene to ensure that
law and policy were being upheld, and in particular that
funds were
properly administered and accounted for. There would need to be
provision for the provincial authority to withdraw certain
responsibilities from a governing body at its own request, or in the
event of seriously unsatisfactory performance.’
24
[36] That was embodied in s 22(1) of
the Act, which authorises the HoD, on reasonable grounds, to withdraw
any one or more of the
functions of a governing body, but only after
informing the governing body of his intentions and the reason
therefor, granting
the governing body a reasonable opportunity to
make representations, and giving due consideration to those
representations. Any
person aggrieved by a decision of the HoD may
appeal to the MEC. But the HoD is only able to take action under this
section if
the governing body performs the function allocated to it
or exercises any power conferred on it unreasonably,
unconstitutionally
or otherwise unlawfully. He may also intervene
under s 25(1) if he determines on reasonable grounds that the
governing body has
ceased to perform any function, in which case he
may appoint other persons to perform the function.
25
These powers may be exercised in
addition to his right to institute review proceedings against the
governing body. It was not contended
that any of these provisions
gave him the authority to override the principal’s decision and
to admit the child.
[37] I turn, then, to the main issue
raised by this appeal, which is the authority to determine the
capacity of a school. I have
pointed out that s 5(5) of the Act
expressly provides that the admission policy of a school is
determined by its governing body.
That must necessarily include the
determination of its capacity, which is central to admission to the
school and forward planning,
and particularly the determination of
its budget. Any doubt on that score is removed by s 5A, which allows
the Minister of Education
to prescribe minimum and uniform norms and
standards for ‘the capacity of a school in respect of the
number of learners a
school can admit’. The factors to be taken
account of in setting those norms and standards are set out in s
5A(2)(b), and
include the number of teachers and the class size; the
quality of performance of a school; the curriculum and
extra-curricular
choices; the classroom size and the utilisation of
available classrooms. In terms of s 5A(3) – a critical section
–
a governing body must, when compiling its admission policy,
comply with these norms and standards. In the event that the school
has an existing policy, it must, in terms of s 5A(4), within a
period of 12 months after the Minister has prescribed the norms
and
standards, review its admission policy to ensure its consistency.
That the governing body is enjoined to compile and review
its
admission policy in accordance with such norms and standards makes it
clear beyond doubt that the admission policy contemplated
by the Act
includes the capacity of the school.
[38] Equally clear is the role the Act
gives to the provincial authorities – in s 58C – to
ensure compliance with such
norms and standards.
26
Section 58C(2) imposes an obligation
on an MEC to ensure that a school’s admission policy, which I
have said includes its
capacity, accords with national norms and
standards. Sections 58C(5) and (6) set out the duties of the HoD in
respect of the determination
of infrastructure and capacity at public
schools to ensure compliance with norms and standards. Once the HoD
communicates this
determination to the school
27
the governing body is able to take the
necessary steps to prepare its budget and fulfil its responsibility
to supplement the school’s
resources.
28
[39] Thus each of the partners in this
tri-partite arrangement – the governing body, the Minister and
the provincial authorities
– has defined responsibilities.
29
Where the Minister has determined
national norms and standards after consulting the Council of
Ministers, the governing body must
ensure that its admission policy
accords with such norms and standards. (The Minister has not
prescribed norms and standards for
the capacity of schools.) In this
regard it is accountable to the MEC. The HoD, in turn, must account
to the MEC for ensuring that
the norms and standards are met.
30
[40] While governing bodies are
charged with determining their admission policies, including the
capacity of the school, they do
not have a free hand in doing so. The
Act specifies that a school’s admission policy may not be
unfairly discriminatory,
31
may not require an admission-test to
be administered to a learner
32
and may not refuse admission to a
learner because the parent has not paid or is unable to pay the
school fees.
33
And as I observed earlier, a governing
body must necessarily act reasonably and rationally when determining
its capacity.
[41] Notwithstanding those clear
provisions of the Act, the respondents contend that the provincial
government has the final say
on the capacity of a school, and is
entitled to override the capacity set by the governing body. They
find the source of that alleged
power in ss 3(3) and 3(4). Section
3(3) obliges the MEC to ‘ensure that there are enough school
places so that every child
who lives in his or her province can
attend school . . .’. Section 3(4) obliges the MEC, if he or
she cannot comply with
subsection (3) because of a lack of
capacity existing at the time of commencement of the Act, to ‘take
steps to remedy
such lack of capacity as soon as possible’ and
to ‘make an annual report to the Minister on the progress
achieved in
doing so’.
[42] The respondents rely in addition
on s 39(2) of the Constitution
34
,
which calls for the courts to promote the spirit, purport and objects
of the Bill of Rights when interpreting statutes, which,
they submit
‘compels’ us to interpret the provisions in this manner
so as to give effect to the constitutional rights
to equality
35
and to basic education.
36
In this contention they are supported
by the amici curiae, Equal Education and the Centre for Child Law.
The high court accepted
these contentions.
[43] A plain reading of ss 3(3) and
3(4) makes it clear that they are concerned with the MEC’s
obligation to ensure that infrastructure
is provided for compulsory
attendance of all children in the province between the ages of seven
and 15 years of age as envisaged
by s 3(1).
37
To this end these provisions require
the MEC to determine the infrastructural shortcomings that impede the
fulfilment of this objective
and to report annually to the Minister
on any remedial steps being taken to remedy these problems. They
plainly have no relation
to the governance of a school.
[44] A contextual reading of these
provisions lends further support to this interpretation. Section 3(1)
imposes a duty on every
parent to ensure a child’s attendance
at school. A parent who fails to comply with this duty is liable,
under s 3(6), to
prosecution. Where the reasons for a child’s
absence from school are unknown, s 3(5) imposes a duty on the
HoD to investigate
the circumstances of the child’s absence and
to take the necessary remedial steps, including issuing a written
notice to
the parent to comply. No mention is made of any duty on a
school regarding the compulsory attendance of children. Quite simply
there is no hint in the text of s 3 that suggests that its purpose is
to deal with any issue concerning the admission policy of
a school,
much less to override it.
[45] Properly understood, s 3 deals
with compulsory attendance and the provision of infrastructure for
this purpose, and s 5 with
admissions. Neither section qualifies or
limits the other. There is simply no room in their language to
support any other interpretation.
The submission of the respondents
that the Bill of Rights compels their interpretation requires us to
ignore the language to achieve
what they believe would be a socially
desirable result – giving them the power to override the
policies of governing bodies
to advance the objectives of the
Constitution. The lawmaker chose to give the power over admission
policy to governing bodies so
as to promote democratic school
governance. And it limited the provincial education department’s
role to the ‘minimum
required for legal accountability’.
38
I find nothing constitutionally
offensive about this choice.
[46] The facts of the case show how
misplaced the respondents’ reliance on ss 3(3) and 3(4) is. The
parent of the child and
the department were not faced with the
problem that the child would not be able to attend a school or be
denied the right to receive
a basic education – she had already
been admitted to another school. Nor was the child’s right to
equality at issue.
On the contrary had the school succumbed to the
department’s pressure to admit the child while others were
awaiting their
turn on the waiting list ahead of her, it would have
unfairly given her preference over those children.
[47] The facts also show that the
department accepted the school’s admission policy in March 2010
and received the updated
policy in line with reg 2(3).
39
Both policies appear to have been
carefully considered: they demonstrate that the governing body had
determined the school’s
capacity rationally after considering a
range of factors relating to its available facilities and programmes.
The first policy
determined the capacity at 770 learners, and the
second at 840. Included among the policy objectives are to ensure
that the admission
of learners is done in a ‘fair, practical
and transparent manner’ and that ‘no learner will be
unfairly discriminated
against’.
[48] Once having determined its
admission policy it remains for the governing body to apply that
policy. It is within the power
of a governing body to apply its
policy flexibly to meet the exigencies of a particular case –
indeed, in this case the admission
policy of Rivonia Primary School
expressly reserved its right to exceed its capacity – and it
must naturally exercise that
power when the occasion demands. Just as
it must act rationally and reasonably when determining its policy so
it must act rationally
and reasonably in its application.
[49] Counsel for the respondents
contended that because the school was able to reduce its
learner-educator ratio, this imposed an
obligation on it to admit the
child, failing which the MEC had the duty to override the school’s
refusal to do so. But as
I have said the school has been able to
improve its learner-educator ratio in the lower grades by investing
substantial funds for
which the parents have themselves paid. I agree
with the appellants’ contention that it is perverse for the
department to
use this fact to compel the school to accept more
children. Were the department to be correct that would operate as a
disincentive
for parents to contribute by way of fees and fundraising
to improve the quality of education of their schools, and would be at
odds with their obligation under s 36(1) to supplement resources
supplied by the State, according to their means.
[50] Once Rivonia Primary School’s
governing body lawfully adopted its admission policy, then subject to
what I have said
above regarding the HoD’s authority to
intervene where this power is exercised unreasonably,
unconstitutionally, or otherwise
unlawfully, it bound the MEC and the
HoD. They could not ignore it much less override it, no matter how
well meaning. The HoD was
quite entitled to ask the governing body to
exercise the discretion embodied in the policy to exceed its
capacity, so as to accommodate
a learner who had not been placed, and
the governing body would be obliged to consider such a request on
reasonable and rational
grounds. If the governing body or the
principal on its behalf exercised that discretion on an incorrect
basis and refused to admit
the child, the Act and the regulations
provided a safety valve. Section 5(9) read with reg 14 allowed an
appeal to the MEC for
the child who had been refused permission and
reg 13(1)(a) gave the HoD, before the appeal, the authority to set
aside the decision
of the principal. But all that ought to have been
done in accordance with the policy. That is not what occurred in this
case. On
the contrary, the HoD first issued an unlawful instruction
to the principal to admit the child. Then the officials of the
department
were told that the governing body would shortly be meeting
to consider the case, but far from awaiting its decision they
proceeded
to deposit the child nonetheless.
[51] The high court, as I mentioned
earlier, relied on reg 13(1)(a), as the immediate source of the HoD’s
authority to compel
the school to enrol the child. But the regulation
gives the HoD no such power; it would be
ultra vires
if it
purported to do so because it would be contrary to the statute. This
much is trite. Regulation 13(1)(a) simply allows the
HoD ‘to
confirm or set aside’ a principal’s decision to refuse
admission to a learner. That decision is one made
under the school’s
admission policy and the decision to confirm it or set it aside is
likewise made under that policy. In
any event, it is clear that on
the facts of this case, the HoD did not purport to set aside Ms
Drysdale’s decision.
[52] It would not be out of place to
observe that I find the approach of Mr Ngobeni and the department’s
officials in this
case most disturbing. There was not one bit of
evidence to suggest that the school has ever refused admission to a
child –
including this child who happens to be black – on
the grounds of race or has unfairly discriminated against any child
on
this basis. Counsel for the respondents quite properly accepted
this much during the hearing. The school’s refusal to admit
the
learner in this case had nothing to do with her race or her
background. It came about solely because her application was far
down
the waiting list. The department’s stated policy itself
expressly requires admission to follow the chronological sequence
of
applications and the mother in this case was obliged to stand in
line, just as the parents of the other learners who had submitted
late applications had to do. She was not entitled to preferential
treatment, from the school or the department.
[53] But instead of treating this
matter as an ordinary dispute relating to the application of the
school’s admission policy
the department opprobriously invoked
the ugly spectre of race to obfuscate its unlawful conduct: In his
answering affidavit, Mr Davids
stigmatises the school as being
in a ‘peculiarly privileged position that can primarily be
linked to the historical disparities
in the resourcing of public
education under Apartheid’. It draws a learner enrolment, he
continues, that remains disproportionately
‘white’ when
compared to the overall demographic profile of the province. This
theme is pursued in counsel’s
heads of argument to make the
case that s 39(2) of the Constitution compels an interpretation
that disallows ‘privileged
governing bodies in historically
white areas to entrench racially discriminatory privileges bequeathed
by Apartheid’.
40
The facts simply do not sustain the
suggestion that that occurred in this case, and an admission policy
that did that would be unlawful.
[54] To conclude, governing bodies are
enjoined to determine school policies, including their capacity,
while provincial departments
are responsible for the professional
management of schools and administration of admission. These
functions must not be conflated.
The determination of capacity must
comply with national norms and standards set by the Minister and must
be determined on reasonable
and rational grounds. Just as a governing
body may determine the school’s capacity, so too does it have a
discretion to exceed
that capacity if the circumstances require, and
that discretion must also be exercised on rational and reasonable
grounds. But
it is not open to the HoD summarily to override that
authority as occurred in this case.
[55] I mentioned earlier that Ms
Drysdale was sanctioned for failing to comply with the HoD’s
unlawful instruction. Although
the sanctions imposed on Ms Drysdale
are not before us, I am confident that the department is sufficiently
gracious to withdraw
these sanctions in the light of this judgment.
[56] In the high court the parties had
agreed that no costs order would be made. In the result the appeal is
upheld with costs,
such costs to be paid by the first, second and
third respondents. The order of the high court is, save for paras 6
and 7 thereof,
set aside and the following order substituted in its
place:
‘
It is
declared that the instruction given to the principal of the Rivonia
Primary School to admit the learner contrary to the school’s
admission policy, and the placing of the learner in the school, were
unlawful.’
_________________
A CACHALIA
JUDGE OF APPEAL
APPEARANCES
For first and second Appellants: G C
Pretorius SC (with him A Kemack SC)
Instructed by:
Shepstone & Wylie, Johannesburg
Webbers, Bloemfontein
For first, second and third
Respondents: D I Berger SC (with him Ms N Mji) Instructed by:
The State Attorney, Johannesburg
The State Attorney, Bloemfontein
Further Interested Parties: S
Budlender (with him J Brickhill)
Instructed by:
Mdlulwa Nkhuhlu Inc, Johannesburg
Centre for Child Law, Pretoria
Legal Resources Centre, Johannesburg
1
Regulations
13 and 14. GN 4138, PG 129, 13 July 2001.
2
‘
1.
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.
2. 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.
3. 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.
4. 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.
5. The application in
respect of prayers 2 to 7, 9 and 10 of the Notice of Motion is
dismissed.
6. The application
succeeds in respect of prayer 8 of the Notice of Motion.
7.
Each party shall pay their own costs.’
3
GN
1160, PG 127, 9 May 2012.
4
‘
8
Declaring schools full
(1) Notwithstanding the
provisions of the admission policy of a school, or the provisions of
any national or provincial delegated
legislation or any
determination made in terms thereof, for the purpose of placing
learners whose applications for admission
have not been accepted at
any school in the public schooling system, until such time as norms
and standards contemplated in
section 5A(2)
(b)
of the
South
African Schools Act are
in force the objective entry level learner
enrolment capacity of a school shall be determined by the Head of
Department.’
5
The
Organisation, Governance and Funding of Schools (Education White
Paper 2), GN 130, February 1996 (Organisation, Governance
and
Funding White Paper) para 3.17.
6
Section
16(1).
7
">
7
Section
23(2).
8
">
8
Section
23(6).
9
">
9
Section
16A(1).
10
Section
16A(3).
11
">
11
Section
16(2).
12
">
12
Section
20(1).
13
">
13
Section
36(1).
14
">
14
P
J Visser ‘Some Thoughts on Legality and Legal Reform in the
Public School Sector’
(2006) 2
TSAR
359
at 360.
15
Section
39.
16
">
16
Section
6(2).
17
">
17
Section
7.
18
">
18
Section
5(5).
19
">
19
Section
16(3).
Minister of Education, Western Cape v Governing Body,
Mikro Primary School
2006 (1) SA 1
(SCA) para 5;
The Head of
Department: Department of Education, Free State Province v Welkom
High School & Harmony High School
[2012]
ZASCA
150
(28 September 2012) para 11.
20
Section
16A(ii).
21
">
21
Sections
16A2(vi)
and
16A2
(e).
22
">
22
Section
5(7).
23
Section
16A2(iv).
24
">
24
Organisation,
Governance and Funding White Paper para 3.20.
25
Head
of Department, Mpumalanga Department of Education v Hoërskool
Ermelo
2010 (2) SA 415
(CC) paras 72, 81 and generally at paras
82-85.
26
Section
58C
inserted by
s 11
of Act 31 of 2007.
27
Section
58C6(b).
28
Section
36(1).
29
Head
of Department, Mpumalanga Department of Education v Hoërskool
Ermelo
2010 (2) SA 415
(CC) para 56.
30
Section
58C(e).
31
Section
5(1).
32
Section
5(2).
33
Section
5(3)(a).
34
Section
39(2) provides:
39
Interpretation of Bill of Rights
‘
When
interpreting any legislation, and when developing the common law or
customary law, every court, tribunal or forum must promote
the
spirit, purport and objects of the Bill of Rights.’
35
Section
9 of the Constitution.
36
Section
29 of the Constitution provides:
‘
(1)
Everyone has the right–
(a)
to a basic
education, including adult basic education; and
(b)
to further
education, which the state, through reasonable measures, must make
progressively available and accessible.’
37
Section
3, under the heading ‘Compulsory attendance’, provides:
‘
(1)
Subject to this Act and any applicable provincial law, every parent
must cause every learner for whom he or she is responsible
to attend
a school from the first school day of the year in which such learner
reaches the age of seven years until the last
school day of the year
in which such learner reaches the age of fifteen years or the ninth
grade, whichever occurs first.’
38
See
Organisation, Governance and Funding White Paper para 3.17.
39
Regulation
2(3) provides that the governing body must make a copy of the
admission policy of the school available to the Head
of Department
for certification.
40
The
Heads of Argument were drawn by Mr Berger’s predecessor, who
was not available to argue the matter.