Joint Press Release by Equal Education, Centre for Child Law, Legal Resources Centre

On Friday 30 November the Supreme Court of Appeal delivered judgment in the Rivonia Primary School case. Equal Education and the Centre for Child Law, represented by the Legal Resources Centre, brought an amicus application. Judge Cachalia, for a unanimous bench, wrote:

"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."

This decision overturned a high court decision that had granted the ultimate governance role over the determination of a school's capacity to provincial education authorities.

But the SCA held that in terms of s 5(5) read with s 5A of the South African Schools Act the governing body of a public school has authority to determine the capacity of a school as an incident of its admission policy, and that provincial authorities may not ‘override' the policy.

We agree with the SCA that the highhanded manner of intervention by Gauteng education authorities in this instance was completely unacceptable. However we believe that the public interest in realising quality and equal education for all, underpinned by the constitutional rights to equality and education, requires that the governance of school admissions must remain primarily in the public domain, rather than appropriated entirely by individual schools with understandably narrower interests.

This important case arose out of the denial of a place for a grade 1 applicant in 2011. The court notes that the case concerned "a school located in an affluent, historically white suburb, where a little more than half the learners were white" but says that "none of this is relevant". However, in our view the historical, political and economic context cannot be ignored. There are two very different realities operating in the public schooling system.

A majority of schools lack adequate infrastructure, books, furniture and competent teachers. The learners come from impoverished home and do not pay fees. A significant minority of public schools have inherited excellent infrastructure, have parent bodies with professional qualifications able to assist with governing the school, attract competent teachers because they are well-located and offer an attractive working environment, and are able to supplement their facilities and teaching staff due to fees collected. Whilst many public schools have 50 or 60 learners per class, the Rivonia Primary School averages 24 children per class.

We would not support policies that sought to destroy these more privileged public schools in the name of equality. However, we believe that the law must, and does, support ensuring greater and fairer access to well-resourced public schools, while the work goes on to bring the majority of public schools up to an acceptable level. We therefore believe that the SCA has erred in its findings.

In the Constitutional Court, if the Gauteng Department of Education seeks leave to appeal, we will seek to be admitted as amicus curiae in order to support a finding along the following lines:

• The question of ‘capacity' cannot be seen as totally separate from the ‘admissions policy' which an SGB is required to determine. An SGB must therefore indicate, in its admissions policy, what it believes the capacity of the school to be.
• Furthermore, when acting in terms of a provincial or national admissions policy, the MEC is not bound by the initial determination of school capacity made by an SGB, and has the power to intervene, including in a case relating to an individual learner. The MEC should intervene in terms of applicable provincial or national policy, and the policy basis for such interventions is important to prevent the arbitrary exercise of power.
• We will also argue that stability would best be achieved by the promulgation, by the national Minister of Minimum Norms and Standards for School Capacity, in terms of s 5A.

For more on our legal submissions thus far, click here.

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The LRC, EE and the CCL deeply mourn the passing of Arthur Chaskalson, and commit ourselves to advancing his remarkable legacy. Amongst his many remarkable achievements Justice Chaskalson was the founder of the Legal Resources Centre, and remained a trustee of the Legal Resources Centre Trust until his death. He was also the founding chairperson of the Equal Education Law Centre. We extend our sincere condolences to his family.

Statement issued by Doron Isaacs, Equal Education, Deputy General Secretary, Ann Skelton, Centre for Child Law, Director, and Sarah Sephton, Legal Resources Centre, Attorney, Head of Grahamstown Office, December 3 2012

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