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[2016] ZACC 14
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Federation of Governing Bodies for South African Schools (FEDSAS) v Member of the Executive Council for Education, Gauteng and Another (CCT 209/15) [2016] ZACC 14; 2016 (4) SA 546 (CC); 2016 (8) BCLR 1050 (CC) (20 May 2016)
Heads of arguments
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT
209/15
In the matter
between:
FEDERATION OF
GOVERNING BODIES
FOR SOUTH AFRICAN
SCHOOLS
Applicant
and
MEMBER OF THE
EXECUTIVE COUNCIL
FOR EDUCATION,
GAUTENG
First
Respondent
HEAD OF
DEPARTMENT OF EDUCATION, GAUTENG
Second
Respondent
and
EQUAL
EDUCATION
Amicus
Curiae
Neutral citation:
Federation of Governing Bodies for South African Schools v Member
of the Executive Council for Education, Gauteng and Another
[2016]
ZACC 14
Coram:
Mogoeng CJ, Moseneke DCJ, Bosielo AJ, Cameron J, Froneman J,
Jafta J, Khampepe J, Madlanga J, Mhlantla J, Nkabinde J
and Zondo J
Judgment:
Moseneke DCJ (unanimous)
Heard on:
5
May 2016
Decided on:
20 May 2016
Summary:
Regulations Relating to the Admission of Learners to Public
Schools in Gauteng — validity of amendments promulgated in 2012
— no conflict between national and provincial legislation —
impugned regulations are rational, reasonable and justifiable
—
cooperative governance to ensure universal access to basic education
— MEC to determine feeder zones
ORDER
On appeal from the
Supreme Court of Appeal (hearing an appeal from the High Court of
South Africa Gauteng Local Division, Johannesburg):
1. Leave to appeal is granted save in respect of the abandoned costs
order of the Supreme Court of Appeal.
2. The appeal against the order of the Supreme Court of Appeal is
dismissed, subject to paragraph 3.
3. The first respondent, Member of the Executive Council for
Education, Gauteng, is directed to determine the feeder zones for
public schools in Gauteng province in the manner required by
regulation 4(1) of the Regulations Relating to the Admission of
Learners
to Public Schools within a reasonable time but not later
than 12 months from the date of this judgment.
JUDGMENT
MOSENEKE DCJ
(Mogoeng CJ, Bosielo AJ, Cameron J, Froneman J, Jafta J, Khampepe J,
Madlanga J, Mhlantla J, Nkabinde J and Zondo J
concurring)
Introduction
[1]
Teaching and learning are as old as human beings have lived.
Education is primordial and integral to the human condition.
The new arrivals into humankind are taught and learn how to live
useful and fulfilled lives. So education’s formative
goodness to the body, intellect and soul has been beyond question
from antiquity. And its collective usefulness to communities
has been recognised from prehistoric times to now. The
indigenous and ancient African wisdom teaches that “
thuto ke
lesedi la sechaba
”; “
imfundo yisibani
”
(education is the light of the nation) and recognises that education
is a collective enterprise by observing that it takes
a village to
bring up a child.
[2]
Of this Aristotle, Immanuel Kant, Karl Marx, Mahatma Gandhi,
Helen Keller, Nelson Mandela, Kofi Annan,
Malala
Yousafzai
, the Holy Bible, Buddha, and the Holy Quran
have said:
“
Education is an ornament in prosperity and
a refuge in adversity.” –
Aristotle
“How then is perfection to be sought? Wherein lies our
hope? In education, and in nothing else.” –
Immanuel Kant
“The education of all children, from the moment that they can
get along without a mother's care, shall be in state institutions.”
– Karl Marx
“
If we want to reach real peace in this
world, we should start educating children.” –
Mahatma
Gandhi
“Education should train the child to use his brains, to make
for himself a place in the world and maintain his rights even
when it
seems that society would shove him into the scrap-heap.” –
Helen Keller
“Education is the great engine of personal development.
It is through education that the daughter of a peasant can
become a
doctor, that the son of a mineworker can become the head of the mine,
that a child of a farmworker can become the president
of a great
nation. It is what we make out of what we have, not what we are
given, that separates one person from another.”
– Nelson
Mandela
“
Education is a human right with immense
power to transform. On its foundation rest the cornerstones of
freedom, democracy
and sustainable human development.” –
Kofi Annan
“There are many problems, but I think there is a solution to
all these problems; it’s just one, and it’s education.”
–
Malala Yousafzai
“
My people are destroyed for lack of
knowledge.” – The Holy Bible:
Hosea 4:6
“To have much learning, to be skilful in handicraft,
well-trained in discipline, and to be of good speech – this is
the greatest blessing.” – Buddha
“Are those equal, those who know and those who do not know?
It is those who are endowed with understanding that receive
admonition.” – The Holy Quran: Surah Al Zumar 39:9
[3]
Despite these obvious ancient virtues, access to teaching and
learning has not been freely and widely accessible to all people at
all times. All forms of human oppression and exclusion are
premised, in varying degrees, on a denial of access to education
and
training. The uneven power relations that marked slavery,
colonialism, the industrial age and the information economy
are
girded, in great part, by inadequate access to quality teaching and
learning. At the end of a long and glorious struggle
against
all forms of oppression and the beginning of a democratic and
inclusive society, we, filled with rightful optimism, guaranteed
universal access to basic education. We collectively said:
“[e]veryone has the right to basic education, including
adult
basic education”.
[1]
[4]
Even so, disputes on access to basic education in our society
are not scarce. There are continuing contests on the governance
of public schools and policies on admission of learners. This
despite a number of precedents of our courts that were meant
to clear
the murky waters of the shared space between school governing bodies
and provincial executives charged with the regulation
of public
schools.
[2]
[5]
Here, this contestation plays itself out in an application for
leave to appeal against an order of the Supreme Court of Appeal in
which the applicant seeks an order reversing orders 3 and 4(a) of
that Court.
[3]
[6]
The hub of the remedy sought is the invalidity of certain
amendments to the Regulations Relating to the Admission of Learners
to
Public Schools published in 2012.
[4]
More tightly, the central issue is whether the Regulations are
inconsistent with the South African Schools Act
[5]
(Schools Act) or with the applicable provincial law,
[6]
or are invalid because they are irrational or not reasonable nor
justifiable.
[7]
In preceding courts, the span of the attack of the applicant
was wide and included several specified regulations. However,
in this Court, its target of challenge has narrowed down to
regulation 3(7); regulation 4(2) read with regulation 4(1);
regulation
5 read with regulation 8; regulation 11(5) and regulation
16. The respondents urge us to dismiss the appeal as none of
the
impugned regulations offend for the reasons contended for by the
applicant.
[8]
The dispute is between two stakeholders to our public school
system. The applicant is the Federation of Governing Bodies for
South African Schools (FEDSAS), a national representative
organisation for school governing bodies. The first respondent
is the Member of the Executive Council for Education, Gauteng (MEC)
and the second respondent is the Head of Department for Education,
Gauteng (HOD).
[7]
The dispute has drawn in Equal Education (amicus), a membership-based
democratic movement of learners, teachers, parents
and community
members. It has been admitted to make submissions as a friend
of this Court.
Background
[9]
The origin of the difference between the parties was on 18
July 2011 when the MEC published draft amendments to the
Regulations.
The MEC did this under the authority of section
11(1) of the Gauteng School Education Act
[8]
and invited comments from interested parties. FEDSAS submitted
comments within a month of the invitation.
[9]
[10]
In its representations, FEDSAS was unhappy with a significant
part of the proposed regulations. It took issue with 29
provisions
in the draft amended regulations. A broad
description of its concerns should suffice. It viewed the
amended regulations
as invalid because they contradicted national
legislation.
[10]
They were an encroachment on the powers of the school governing
bodies and their remit was beyond the empowering legislation.
The amended regulations transgressed section 5 of the Schools Act
because they empowered officials to enforce admission on schools.
That was at odds with section 5 that points to the admission of
learners by a school governing body only. And in turn, the
section limits the HOD’s involvement in placing unsuccessful
applicants in different schools. FEDSAS adds that the
amended
regulations violated the principle of legality and were enacted in a
procedurally unfair manner.
[11]
[11]
The respondents say that they gave the representations serious
consideration and altered some of the draft amended regulations to
meet some of the concerns of FEDSAS and other people and bodies that
made submissions. The amended regulations were ultimately
promulgated on 9 May 2012.
[12]
FEDSAS remained unhappy with the
amendments and turned to the South Gauteng High Court (High Court).
In motion proceedings,
it mounted a facial attack on the validity of
selected regulations. It challenged the validity of the
regulations mainly
on three grounds: (a) they were in conflict with
the Schools Act; (b) they were
ultra
vires
the powers conferred on the MEC
by section 11(1) of the Gauteng School Education Act; and (c) they
were not reasonable and justifiable
in terms of section 4 of the
Gauteng School Education Act. The MEC opposed the application.
[13]
The High Court upheld the
application with costs. It struck down several of the
regulations as invalid for one or more of
the grounds advanced by
FEDSAS. They included regulation 2(2),
[12]
regulation 2(2A),
[13]
regulation 3(7),
[14]
regulation 4,
[15]
regulation 5 read with regulation 8,
[16]
regulation 11
[17]
and regulation 16.
[18]
[14]
The MEC and HOD approached the Supreme Court of Appeal.
That Court upheld the appeal and reversed the decision of the High
Court save in one respect.
[19]
It held that none of the impugned regulations were invalid on
procedural or substantive grounds. It found that the
Regulations were enacted in terms of section 11(1) of the Gauteng
School Education Act.
[15]
On FEDSAS’ submission that section 5(5) of the Schools
Act entrusts the school governing bodies with the power to determine
admission policies, the Supreme Court of Appeal found that
FEDSAS failed to take into account the enduring disparities in
the
education system characterised by the legacy of apartheid. The
Court observed that there is a need to reform the public
education
system, and for that reason, the Court recognised that education
under Schedule 4 of the Constitution is a concurrent
function between
the national and provincial Legislatures. That being so, it
acknowledged that there is likelihood of overlap
and conflicts
between national and provincial legislation. The Court took the
view that FEDSAS’ submissions failed
to take into account that
the impugned regulations were aimed at achieving even distribution of
learners of various intellectual
ability and behavioural dispositions
amongst public schools. Ultimately, the Court observed that the
Regulations went beyond
the racial profiles of learners and income
capacities of their parents.
[16]
The Court pointed out that the issue of policy-making
authority entrusted on governing bodies by the Schools Act had been
dealt
with by this Court and it is now settled that even though there
are certain powers entrusted on the governing bodies of schools,
the
power does not exist in a vacuum and should be exercised in
accordance with the applicable provincial law.
[20]
[17]
The Supreme Court of Appeal then considered the impugned
regulations individually. It agreed with the High Court and
struck
down regulation 2(2A) on the ground that the inclusion of
“education institutions” in the regulation detracts from
its main purpose.
[18]
The Court found regulation 3(7) to be reasonable as it
protects burdensome learners from unfair discrimination and ensures
that
the right to education extends equally to all learners.
[19]
It observed that the determination of feeder zones in terms of
regulation 4 entailed extensive consultations. It found
regulation
4 to be rational and reasonable as it attempts to ensure
that learners have ready access to schools that are closest to their
homes
or their parent’s workplace.
[20]
The Supreme Court of Appeal held that regulation 5 read with
regulation 8 was neither
ultra vires
nor constituted unlawful
delegation of power. It relied on
Rivonia Primary
School
and held that the Gauteng Department of Education
(Department) had the authority to exercise reasonable control over
admissions
and capacity in public schools. For the same
reasons, the Court also overturned the High Court finding that
regulation
11 was beyond the MEC’s powers.
[21]
L
astly, the Supreme Court of Appeal considered regulation 16.
It held that the regulation does not constitute delegation of
authority to the HOD to decide appeals. And the regulation does
not constitute an additional layer of appeal nor is it in
conflict
with the provisions of section 5(8) of the Schools Act.
[21]
[22]
Having cleared the deck, what remains is to decide whether
this Court ought to hear the appeal mounted by FEDSAS. Should
leave
be granted, I will have to decide its merits but only of the
specific regulations impugned in this Court.
Leave to appeal
[23]
The application engages important constitutional questions of
equitable access to education – a promise made by section 29
of
the Constitution. We are also required to interpret national
and provincial legislation in light of our supreme law.
The
contest between the applicant, representing certain school governing
bodies, and provincial government is neither new nor of
passing
public interest. The concern of equitable access to quality
basic education is of vast public importance. It
is certainly
worthy of the attention of this Court. Leave to appeal the
specified orders of the Supreme Court of Appeal should
be granted.
[24]
The applicant also sought leave to appeal against the costs
order made by the Supreme Court of Appeal against it on the ground
that
it impinges on its section 34 right in the Constitution and it
is inconsistent with
Biowatch.
[22]
The respondents have abandoned the costs order in their
favour. The costs order no longer has binding force on the
applicant nor may the respondents enforce it. Thus, there is no
live controversy on costs between the parties. There
is no
proper appeal to hear. Leave to appeal the costs order must be
refused.
[23]
Merits
Conflict between national and provincial legislation
[25]
The foremost contention of the applicant is that
provincial legislation that conflicts with
national legislation is unconstitutional and is required to be struck
out. The
applicant adds that the Regulations and particularly
regulation 5 read with regulation 8 have
caused
a conflict between national and provincial legislation.
[26]
I think not. This contention
ignores the provisions of the Constitution and the Schools Act.
Education is a functional
area of concurrent national and provincial
legislative competence.
[24]
Parliament may legislate on education and a province too.
[25]
In turn, the Premier and MECs in a province exercise authority by
implementing provincial legislation.
[26]
The legislative competence of a province cannot be snuffed out by
national legislation without more. The Constitution
anticipates
the possibility of overlapping and conflicting national and
provincial legislation on concurrent provincial and national
legislative competences. In
Mashavha
this Court pointed out:
“It is inherent in our constitutional system, which is a
balance between centralised government and federalism, that on
matters in respect of which the provinces have legislative powers
they can legislate separately and differently. That will
necessarily mean that there is no uniformity.”
[27]
[27]
For this very reason, the Constitution has
extensive provisions geared to regulate envisaged conflict between
provincial and national
legislation.
The conflict
resolution scheme of sections 146, 149 and 150 of the Constitution
departs from the conventional hierarchy that provincial
legislation
may not be in conflict with national legislation. Automatic
repugnancy between the two classes of legislation
does not arise.
This scheme readily acknowledges and manages the potential conflict
related to concurrent national and provincial
law-making
competences. Under the scheme, provincial legislation prevails
over national legislation except if the national
legislation applies
uniformly countrywide or the matter cannot be regulated effectively
by respective provinces or the matter is
one listed in the
Constitution as requiring uniformity across the nation. None of
these considerations apply here.
[28]
Even if there was conflict, it does not render the national or
provincial legislation on Schedule 4 matters invalid. A court
must first attempt to avoid the conflict by preferring any reasonable
interpretation of the two pieces of legislation which avoids
conflict.
[28]
If the conflict persists, the provincial legislation prevails.
[29]
It must be added that national legislation may enjoy supremacy over
provincial law only in accordance with the test laid
down in sections
146(2) and (3) of the Constitution and in terms of section 148 if
section 146 does not apply. However, the
trumped provincial or
national legislation is not to be struck down. It simply
“becomes inoperative for as long as
the conflict remains”.
[30]
[29]
The Regulations are legislation
authorised by provincial legislation. A plain reading of
regulations 5 and 8 reveals that
they are consonant with or may be
read in harmony with the scheme of sections 5(1) to (5) of the
Schools Act
[31]
and the National Education Policy Act. The power of the
school governing body to formulate admission policy is clearly
subject to limitations in sections 5(1) to (3) of the Schools Act
and provincial law as commanded by section 5(5) of the Schools
Act.
About this I say more below as I look closer at each of the impugned
regulations in this Court.
Regulation 3(7) – unfair discrimination
[30]
Regulation 3(7) disallows a learner’s prospective school
from requesting confidential information from her current
school.
[32]
In effect the regime prevents a school from obtaining the
confidential report
[33]
before making the admission decision. The applicant claims that
a portion of the definition of “confidential report”
renders the regulation irrational, unreasonable and not justifiable
because it prevents the disclosure of “any other information
that may be used to unfairly discriminate against a learner”.
In its founding papers, the applicant argued that the
definition stood in the way of the school’s right to
“discriminate fairly”. At the hearing, the
applicant
submitted that the problem with the regulation is that the
prohibition is very wide, and suggested that the portion of the
regulation
that talks of “other information” could be
remedied by listing specific information on what is permissible or
not permissible
information to access. The applicant also
illustrated that its need for the confidential report is, amongst
other things,
to assess special education needs of learners before
their admission.
[31]
The respondents have disclosed that the purpose of the
regulation is served by precluding a school from accessing a
learner’s
confidential report before admission to the school
she has applied to. The regulation is designed to prevent
unfair discrimination
against a learner during the admission phase.
That is a plainly legitimate purpose.
[32]
The respondents have set out uncontested facts on the
Department’s experience relating to admission patterns.
Schools
that are told in advance of admission that a learner has
learning or remedial difficulties or is troublesome, tend to refuse
that
learner’s admission. Schools would rather have
higher achieving learners and better results. The respondents
explained that schools may purport to reject learners for reasons
other than their remedial difficulties or troublesome behaviour.
In that event, it is difficult for the learner’s parents to
know the true reason for the non-admission. The MEC is
correct
that there can be no justification for one school to shift the burden
of admission of a troublesome learner onto other
schools. It is
quite reasonable and justifiable that the Department prefers to
arrest the real prospect of unfair discrimination
by preventing
access to confidential information before admission.
[34]
Moreover, the ban on accessing confidential information of a learner
stays valid only during the admission phase. Thereafter
the
school may call for the information on a learner it has already
admitted.
[33]
I think the means the MEC has used are properly aligned to the
objective of preventing unfair exclusion of a learner at the point
of
admission to a school. The measure in regulation 3(7) is
properly tailored to arrest the specific mischief of potential
unfair
discrimination. Save for revealing the preference of the
applicant, none of the grounds it has advanced show that
the
regulation is not rational, reasonable or justifiable. The
legitimate thrust of the regulation is to screen learners
from unfair
discrimination. This is plain from the heading and from the
provisions of regulations 3(1) to (6) read as a whole.
This
attack of regulation 3(7) is meritless and must fail.
Regulation 4(1) and 4(2) – feeder zones
[34]
Regulation 4(1) and (2) provide:
“(1) Subject to the
National Education 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 consultation 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 school is
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 a
5 km radius of the school.”
[35]
In the High Court, the applicant impugned
regulations 4(1)
and
(2) and they were struck down. In this Court both the applicant
and amicus accept that the MEC was rightly empowered
to fix feeder
zones for schools. However, both the applicant and the amicus
are unhappy about the default feeder zones set
by the MEC in
regulation 4(2)
, albeit for different reasons. The applicant
contends that despite its use of the permissive “may”,
regulation 4(1)
compels the MEC to determine feeder zones “after
consultation with relevant stakeholders”. A default
regime frustrates
the right of school governing bodies to
consultation before feeder zones are set. The applicant, like
the amicus, asks this
Court to compel the MEC to exercise his or her
power to determine feeder zones in terms of
regulation 4(1)
by a
predetermined date or in accordance with a published timetable.
[36]
The applicant’s attack is limited to requiring the MEC
to make a determination under
regulation 4(1).
I have sympathy
for the applicant’s contention that the MEC may not create a
permanent default regime of feeder zones
and thereby escape the duty
to consult “relevant stakeholders” which would obviously
include school governing bodies.
[37]
The respondents argued that
regulation 4(1)
is permissive and
that the MEC may in his or her discretion set only default feeder
zones for schools. I think not.
There is indeed much to
be said for the applicant’s insistence that the word “
may
”
in
regulation 4(1)
should be read to mean “
must
”.
This construction is stoutly supported by the introductory
phrase in
regulation 4(2)
which makes plain that a default feeder
zone is envisaged only “
until such time as the MEC has
determined a feeder zone for a particular school
”.
[35]
Default feeder zones are obviously intended to be
transitional. They are set unilaterally and indeed do deny
relevant
stakeholders meaningful participation in a matter that
affects a school materially. I accept the invitation of the
applicant
that the MEC must be directed to set feeder zones required
by
regulation 4(1)
within a reasonable time and not later than
12 months from the date of this order.
[38]
The amicus also made a substantive attack on the
constitutional validity of the default feeder zones presently
prescribed in
regulation 4(2)
on the ground that they unfairly
discriminate by perpetuating apartheid geography. The gut of
the objection is that default
feeder zones are defined in spatial
terms of place of residence or of work. Since the apartheid
residential and workplace
lines remain firm, the impact of the
criteria of the MEC is to prolong and legalise racial exclusion.
[39]
There is traction in the contention of the amicus. But I
am uncertain that an amicus could introduce a new cause of action
–
unfair discrimination – and press for a remedy that none of the
parties has sought.
[36]
Happily I do not have to decide the issue because the order we will
make will compel the MEC to formulate fresh rules for
feeder zones as
required by
regulation 4(1).
Regulation 5
(placing an unplaced learner at any school) and
regulation 8
(declaring a school full)
[40]
Regulation 5(8)
provides that despite “the provisions of
any school admission policy”, the District Director may at the
end of the
admission period place an unplaced learner “at any
school” that has not been declared full and where there remains
no unplaced learners on the waiting list. In addition,
regulation 8
provides that “notwithstanding the provisions of
the admission policy of a school” and until norms and standards
required
by the Schools Act are in force, “the objective entry
level learner enrolment capacity of a school shall be determined by
the [HOD]” who may also declare the school full if the school
has reached its enrolment capacity.
[41]
The applicant complains that regulations 5 and 8 are
irrational and not justifiable because they cannot be read
harmoniously with
sections 5(1) to (3) of the Schools Act. The
regulations oust a vital partner – the school governing body –
from
the public school model imagined in the Schools Act. The
amicus’ grievance is that these powers are open-ended and are
granted without strictures that would banish arbitrariness. The
respondents submitted that the powers are narrow, defined
and
rational as their purpose is to ensure the placement of all unplaced
learners as the Constitution
[37]
and Schools Act
[38]
require. They added that, in any event the safeguard is that
the HOD’s decision would amount to administrative action
that
is open to judicial review.
[42]
The irresoluble conflict of provincial and national law seen
by the applicant fails to have proper regard to how the provisions of
section 5(1) to (3) qualify and limit section 5(5) of the Schools
Act. Section 5 regulates admission to public schools.
Its
opening provision in section 5(1) is plain and emphatic: “[a]
public school must admit learners and serve their educational
requirements without unfairly discriminating in any way”.
Section 5(2) requires a school governing body not to administer
a
test related to the admission of a learner. Obviously, a
learner may not be excluded only on account of failing to satisfy
a
test the school might choose to put up. Section 5(3) introduces
a number of grounds on which a learner may never be refused
admission. These include an inability or failure to pay school
fees or failure to subscribe to the mission statement of the
school.
Then follows section 5(5) whose exact words bear repetition:
“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.”
[43]
The provision has at least two important internal qualifiers.
First, the governing body determines admission policy of a
school
subject to the Schools Act and “any applicable
provincial law”. About this, in
Rivonia Primary
School
, Mhlantla AJ (as she then was) explained that—
“there is an important textual qualifier in section 5(5)
subjecting a school governing body’s power to other provisions
of the Schools Act, as well as to applicable provincial law. The
effect of this is that the determination of admissions may
be subject
to provincial government’s intervention in terms of the Schools
Act, or applicable provincial law if the intervention
is provided for
in those instruments.”
[39]
[44]
Secondly, it is trite that the admission policy of a school
must conform to all applicable law including provincial law. It
cannot be otherwise because that is what the rule of law requires.
It is so that when a school fashions its admission policy
it will be
actuated by the internal interests of its learners. It is also
quite in order that a school seeks to be a centre
of excellence and
to produce glittering examination and other good outcomes. But
public schools are not rarefied spaces only
for the bright,
well mannered and financially well-heeled learners. They
are public assets which must advance not only
the parochial interest
of its immediate learners but may, by law, also be required to help
achieve universal and non-discriminatory
access to education.
[45]
That, however, must occur within the broader framework of all
valid law led by the vision of universal access to education embraced
by the Constitution. The duty to place unplaced learners falls
on the MEC who must ensure that there are enough school places
so
that every child can attend school.
[40]
Similarly, the power to determine learner enrolment capacity and
declare a school full or not, in the absence of norms and
standards
required by the Schools Act that are in force, rightly falls on the
HOD. Absent this power the statutory task of
the MEC and HOD to
place unplaced learners may come to naught.
[46]
Regulation 5 read with regulation 8 is rational, reasonable
and justifiable and it is not at odds with section 5(5) of the
Schools
Act. Even if they were, they are plainly reconcilable
with the scheme of the statute.
[47]
It remains important to recognise that school governing bodies
are a vital lifeblood to proper and fulsome learning and teaching.
Parents must be meaningfully engaged in the teaching and learning of
their children. The Schools Act carves out an important
role
for parents and other stakeholders in the governance of public
schools. School governing bodies are made up in a democratic
and participatory manner and ordinarily would advance the legitimate
interests of learners at a school. The Constitution
and the
Schools Act also entrust vital tasks related to the education of our
children to the MEC and HOD. In the past, this
Court has
correctly cautioned against undue dominance of school governing
bodies by the provincial Executive. We have called
for
cooperative governance between statutory creatures – school
governing bodies and the MEC and HOD – entrusted with
effective
and universal access to basic education. Of this, Froneman J
and Skweyiya J wrote in
Welkom High School
:
“The school governing bodies and HOD are organs of state. In
terms of section 41(1)(h) [of the Constitution] they
have an
unequivocal obligation to co operate with each other in mutual
trust and good faith by assisting and supporting one
another,
informing one another of, and consulting one another on, matters of
common interest, co-ordinating their actions, and
avoiding legal
proceedings against one another.”
[41]
Regulation 11(5) – transfer of learners between schools
[48]
The applicant’s written argument extends to an attack on
regulation 11(5) as vague and inoperable.
[42]
It empowers a District Director to consider the relative capacity of
other schools in a district as a criterion for placing
a learner in a
particular school. At the hearing this line of attack was not
pressed on us. Regulation 11(5) has built
in several factors
that the District Director has to consider before exercising the
power and it is for the narrow purpose of admitting
a learner to a
school that has not been declared full. The school governing
body’s role is understandably parochial
but the HOD’s is
provincial. Here too, the guiding purpose is to ensure that
every learner is placed in a school. This
attack that
regulation 11(5) is irrational or unreasonable or unjustifiable has
no merit.
Regulation 16 – objections and appeals
[49]
The applicant argues that the objection process envisaged by
regulation 16 impinges on the right of the parent of a learner to
appeal
directly to the MEC.
[43]
This observation is prompted by an amendment to the Regulations that
inserts an extra layer of objection by a parent first
to the HOD.
But the HOD’s decision is subject to an appeal to the MEC.
That process is anticipated by section
5(9) of the Schools Act.
I do not think that the extra layer of the appellate process
amounts to a delegation of authority
by the MEC to the HOD to decide
an appeal. Regulation 16(4) preserves the appeal to the MEC in
so many words. None
of his or her appellate powers are shed in
favour of the HOD. It is consequently unnecessary to enquire
whether a delegation
of this kind is permissible in terms of section
105 of the Gauteng School Education Act that regulates delegation of
power and
assignment of duties.
Conclusion
[50]
The Supreme Court of Appeal reached a supportable conclusion
in relation to the merits of the appeal before it. I will grant
leave to appeal but dismiss the appeal save to the extent of
requiring the MEC to determine new feeder zones in terms of
regulation
4(1) within 12 months of the date of delivery of this
judgment. The MEC and HOD have been substantially successful
but there
is no cause to make an order as to costs. FEDSAS
raised important constitutional questions and I find no valid cause
to have
it bear costs of the application.
Order
[51]
The following order is made:
1. Leave to appeal is granted save in respect of the abandoned costs
order of the Supreme Court of Appeal.
2. The appeal against the order of the Supreme Court of Appeal is
dismissed, subject to paragraph 3.
3. The first respondent, Member of the Executive Council for
Education, Gauteng, is directed to determine the feeder zones for
public schools in Gauteng province in the manner required by
regulation 4(1) of the Regulations Relating to the Admission of
Learners
to Public Schools within a reasonable time but not later
than 12 months from the date of this judgment.
For the Applicant: J
I Du Toit SC, C Dreyer and J Merabe instructed by Claude Reid Inc
For the First and
Second Respondents: W Trengove SC, S Budlender and B Lekokota
instructed by the State Attorney
For the Amicus
Curiae: T Ngcukaitobi and F Hobden instructed by Equal Education Law
Centre
[1]
Section 29(1) of the Constitution provides:
“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.”
[2]
See, for instance,
Head of Department, Department of Education,
Free State Province v Welkom High School and Others
[2013] ZACC
25
;
2014 (2) SA 228
(CC);
2013 (9) BCLR 989
(CC) (
Welkom High
School
);
MEC For Education, Gauteng Province and Others
v Governing Body, Rivonia Primary School and Others
[2013] ZACC
34
;
2013 (6) SA 582
(CC);
2013 (12) BCLR 1365
(CC) (
Rivonia
Primary School
); and
Head of Department, Mpumalanga
Department of Education and Another v Hoërskool Ermelo and
Another
[2009] ZACC 32
;
2010 (2) SA 415
(CC);
2010 (3) BCLR 177
(CC) (
Hoërskool
Ermelo
).
[3]
The Supreme Court of Appeal judgment was delivered on 16 October
2015. Orders 3 and 4(a) of that decision read:
“3 The appeal is upheld with costs, such costs to include the
costs of two counsel;
4 The order of the High 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.’”
[4]
Gauteng School Education Act (6/1995): Regulations Relating to the
Admission of Learners to Public Schools, 2012, GN 1160
Provincial
Gazette
127, 9 May 2012 (Regulations).
[5]
84 of 1996. Section 5(5) of the Schools Act provides:
“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.”
[6]
Section 11(1) of the Gauteng School Education Act 6 of 1995
provides:
“Subject to this Act, the Member of the Executive Council may
make regulations as to the admission of learners to public
schools.”
[7]
Together, the MEC and the HOD are referred to as “the
respondents”.
[8]
6 of 1995.
[9]
FEDSAS submitted their comments on 17 August 2011.
[10]
FEDSAS referred to the Constitution and legislation, including the
Schools Act, Gauteng School Education Act,
National Education Policy
Act 27 of 1996
, Admission Policy for Ordinary Public Schools and the
Gauteng Education Policy Act 12 of 1998.
[11]
In terms of section 33 of the Constitution and
section 3
of the
Promotion of Administrative Justice Act 3 of 2000
.
[12]
Regulation 2(2)
provides that “[t]he
admission policy of a school, determined by a governing body of that
school in terms of section 5(5)
of the [Schools Act], may not be
inconsistent with any provision of these regulations”. The
Court held that the regulation
was reasonable and justifiable.
[13]
Regulation 2(2A)
provides that “[t]he
Department may determine the minimum standards for the formulation
of the admissions policy for specialist
schools, technical schools
and education institution”. The Court concluded that a
procedural defect invalidated regulation
2(2A) and that the
regulation must be set aside.
[14]
Regulation 3(7)
provides that “[w]hen a
learner has applied for admission 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”. The Court held that the regulation was
unjustifiable
and unreasonable as it offended section 4 of the
Gauteng School Education Act.
[15]
Regulation 4(1) provides “[s]ubject to the
National Education
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 consultation with the relevant
stakeholders have been conducted”.
Regulation 4(2)
provides “[u]ntil 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”.
The
Court held that section 11(1) of the Gauteng School Education Act
does not empower the MEC to determine feeder zones. It
held
regulation 4 to be beyond the power given by section 11(1) and
invalid.
[16]
Regulation 5
specifies how applications for
admission must be made to the HOD. It empowers the
District Director to place learners
on a waiting list at
schools that have not been declared full by the HOD in terms of
regulation 8. The Court held regulation
5, save for regulation
5(5), to be
ultra vires
and
invalid
.
In order to save regulation 5(5) the Court deleted the words “in
accordance with regulation 5(9)”.
[17]
Regulation 11
deals with the procedure to be
followed in order to transfer a learner between schools. The
High Court held that even though
the regulation falls within the
ambit of the MEC’s powers in terms of section 11(1) of
the Gauteng School Education
Act, it is nonetheless
ultra
vires
.
This is because
the regulation enjoins the District Director to
transfer a learner to a school that has not been declared full.
The Court
saved the regulation by deleting the words “that has
not been declared full”.
[18]
Regulation 16
provides for an objection process
by a parent of a learner to the HOD, prior to an appeal to the MEC.
The Court held that
in terms of section 105 of the Gauteng School
Education Act, the MEC is not empowered to delegate to the HOD her
power to decide
an appeal. The High Court held that the
regulation impinges on the right of a parent to appeal directly to
the MEC and
found that the regulation was
ultra
vires
.
[19]
The Supreme Court of Appeal held that “[r]egulation 2(2A) of
the regulations published under the General Notice 1160
of 2012
is declared invalid and of no force and effect”.
[20]
See above n 2.
[21]
Although FEDSAS’ objection to the regulation was that it was
in conflict with section 5(9) of the Schools Act, the
Supreme
Court of Appeal held that the regulation was not in conflict with
section 5(8) of the Act.
[22]
Biowatch Trust v Registrar, Genetic Resources and Others
[2009] ZACC 14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC)
(
Biowatch
).
[23]
The principles relating to costs between private parties and the
State have been settled in
Biowatch –
there is no need
to address them again here. In
Biowatch
this Court held
that if a private party lost against the State in constitutional
litigation, costs should not be granted against
the private party.
[24]
See Schedule 4 Part A to the Constitution.
[25]
See sections 44(1)(a)(ii) and (b)(ii) read with section 104(1)(b)(i)
of the Constitution.
[26]
Section 125(2)(a) of the Constitution.
[27]
Mashavha v President of the Republic of South Africa and Others
[2004] ZACC 6
;
2005 (2) SA 476
(CC);
2004 (12) BCLR 1243
(CC)
(
Mashavha
) at para 49.
[28]
Section 150 of the Constitution.
[29]
Section 146(5) of the Constitution.
[30]
See section 149 of the Constitution.
[31]
Section 5 of the Schools Act provides:
“(1) A public school must admit learners and serve their
educational requirements without unfairly discriminating in any
way.
(2) The governing body of a public school may not administer any
test related to the admission of a learner to a public school,
or
direct or authorise the principal of the school or any other person
to administer such test.
(3) No learner may be refused admission to a public school on the
grounds that his or her parent—
(a) is unable to pay or has not paid the school fees determined by
the governing body under section 39;
(b) does not subscribe to the mission statement of the school; or
(c) has refused to enter into a contract in terms of which the
parent waives any claim for damages arising out of the education
of
the learner.
(4) The Minister may by notice in the Government Gazette, after
consultation with the Council of Education Ministers, determine
age
requirements for the admission of learners to a school or different
grades at a school.
(5) 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.
(6) In determining the placement of a learner with special education
needs, the Head of Department and principal must take into
account
the rights and wishes of the parents of such learner.
(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.
(8) If an application in terms of subsection (7) is refused, the
Head of Department must inform the parent in writing of such
refusal
and the reason therefor.
(9) 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.”
[32]
See above n 14.
[33]
Regulation 1 defines “confidential report” as “a
report containing information about the financial status of
a
parent, whether the parent can afford school fees and employment
details of a parent or any other information that may be used
to
unfairly discriminate against a learner”.
[34]
See
Member of the Executive Council for Education, Gauteng and
Another v Federation of Governing Bodies for South African Schools
[2015] ZASCA 149
;
[2015] 4 All SA 591
(SCA) at para 30.
[35]
Emphasis added.
[36]
In
De Beer NO v North-Central Local Council and South-Central
Local Council and Others (Umhlatuzana Civic Association Intervening)
[2001] ZACC 9
;
2002 (1) SA 429
(CC);
2001 (11) BCLR 1109
(CC) at
para 31 the Court held that an amicus is not entitled to raise a new
cause of action.
[37]
Section 29(1)(a).
[38]
The preamble of the Schools Act realises the need to “provide
an education of progressively high quality . . . [and] uphold
the
rights of all learners”. Section 3(3) of the Act
prescribes that “[e]very Member of the Executive Council
must
ensure that there are enough school places so that every child who
lives in his or her province can attend school”.
Section
34 further obliges the State to “fund public schools from
public revenue on an equitable basis
in order to ensure the
proper exercise of the rights of learners to education
and the
redress of past inequalities in education provision”.
(Emphasis added.)
[39]
Rivonia Primary School
above n 2 at para 41.
[40]
See section 3(3) of the Schools Act.
[41]
Welkom High School
above n 2 at para 141.
[42]
Regulation 11(5) provides:
“In making a decision in terms of sub-regulation (3) to admit
a learner to a particular school, the District Director shall
have
regard to—
(a) the reasons of the learner for applying to leave the school at
which he or she is currently enrolled;
(b) whether the learner would have qualified for the waiting list A
for the school to which he or she seeks admission if he or
she were
to have applied as an entry phase learner; and
(c) the capacity of the school to which the learner seeks admission
relative to the capacity of—
(i) any other schools in respect of which the learner would have
qualified for the waiting list A if he or she were to have applied
as an entry phase learner; and
(ii) other schools in the District.”
[43]
Regulation 16(2) provides:
“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 [HOD]
within 7 school days of being provided with the documents listed in
regulation 5(7)(c)(iii) and (iv).”