COMMENT

Lesufi's amendments erode trust

Christine Botha says admission's policy will now have to be approved by Gauteng DoE HOD

PROPOSED AMENDMENTS TO GAUTENG PUBLIC SCHOOL REGULATIONS ERODE TRUST AT THE COST OF ACCESS TO BASIC EDUCATION

Following the Pretoria High Court judgment in the Overvaal High School (Overvaal) matter and the subsequent violent protests that erupted, it is understandable that little trust exists between School Governing Bodies (SGBs) of public schools and the Gauteng Education Department. In January 2018, the Pretoria High Court found that the Gauteng Education Department arbitrarily instructed Overvaal, a single-medium Afrikaans school, to accept 55 English learners, without first considering the available capacity at surrounding English schools. The Constitutional Court, on the same grounds, refused the Gauteng Education Department’s leave to appeal the Overvaal High Court judgment. 

SGBs’ distrust recently flared up again with the publication of draft amendments to the regulations relating to the admission of learners to public schools in Gauteng (draft amendment regulations). The draft amendment regulations, among others, propose three important amendments. The first relates to the admission policies by SGBs, the second to the determination of feeder zones by the Head of the Gauteng Education Department (HOD) and lastly, the capacity assessment of public schools. 

The draft amendment regulations should be viewed against the school system’s partnership model, provided for in the South African Schools Act (the Schools Act). The aim of the partnership model is to co-operatively ensure the constitutional right to basic education is fulfilled. This aim can only be achieved if all three levels (national, provincial and the SGBs) fulfil their specific functions and if there is a uniform understanding on the application of determinative criteria.

At national level, the Minister of Basic Education (the Minister) is obliged to publish uniform norms and standards for public schools in terms of the Schools Act. The uniform norms and standards provide guidance to both provincial education departments and SGBs in fulfilling their distinct duties.

At provincial level, the provincial education department must (together with the HOD) establish public schools and ensure each learner is placed at a school. The last level, the governing body of a public school, consists of parents and community members. The SGB, having personal knowledge of a school, is responsible for the school’s governance, which includes determination of the school’s admission and language policies. It is specifically with learner enrolment disputes in this regard that many legal disputes have arisen.

The Constitutional Court has however confirmed (in the matter of MEC for Education in Gauteng Province and Others v Governing Body of Rivonia Primary School and Others) that in such disputes, the HOD may override a school’s admission policy and place a learner at a school but importantly - reasonable procedure must be followed. In the same breath, SGBs must consider that schools do not operate in a vacuum.

The draft amendment regulations overturn this partnership model by creating legal uncertainty, leading inevitably to arbitrary decision-making. This is specifically seen with the proposal that a school’s admission policy must be submitted for approval to the HOD. Currently, the HOD must only certify that a school’s admission policy adheres to the Schools Act, the Gauteng School Education Act and the admission-policy regulations.

There is also the Admission Policy for Ordinary Public Schools made by the Minister, to which all admission policies must adhere. The amendment, however, proposes that the HOD must be satisfied the school’s admission complies with certain additional criteria. This includes considering the “needs of the broader community in which the school is located” and the HOD must be satisfied the admission policy does not “unreasonably exclude” a learner on various listed grounds, such as language and belief.

It is unclear how the HOD will determine and apply the “needs of the broader community” to each public school and neither the Schools Act nor the Admission Policy for Ordinary Public Schools refers to this criterion. In this instance SGBs are left in the dark on its determination and no prior consultation with SGBs are provided for. The Admission Policy for Ordinary Public Schools, in line with the Constitution, forbids any “unfair discrimination” in a school’s admission policy.

The reference to “unreasonably exclude” does not equate to “unfair discrimination”, which is a legal determinative that can be tested in Court. These criteria therefore create legal uncertainty. Legislation, in terms of the Rule of Law, must be clearly formulated to avoid arbitrary application. Also, no consideration is afforded to the interaction between a school’s language policy and its admission policy in these amendments.

Legal uncertainty is further created with the proposed determination of feeder zones and the capacity assessment of a school by the HOD. In a nutshell, the HOD, when determining a school’s feeder zone, must now consider certain criteria. These include the school’s capacity, the capacity of surrounding schools, and the population density.

Logically this presupposes that that there is no capacity assessment dispute. To determine the minimum and maximum capacity of each school, the amendment obliges school principals to provide the HOD with certain information by 30 June each year. This includes information on the size of classrooms and the number of educators. This, according to the amendment, is to ensure the HOD complies with section 58C (6) of the Schools Act.

However, this section of the Schools Act presupposes that the Minister provided national minimum norms and standards for capacity (in terms of section 5A(1)(b) of the Schools Act) for the HOD to use. No such minimum capacity norms in terms of section 5A(1)(b) exist. The only guidance relating to capacity can be indirectly found in the Minister’s Minimum uniform norms and standards for public school infrastructure. Section 5A(1)(b) of the Schools Act however, provides specific criteria the Minister must consider on determining these minimum capacity norms, including the curriculum and quality of a school’s performance. Therefore, it is unclear how these criteria will be applied by the HOD and no provision is made for prior consultation with SGBs. This could again lead to arbitrary decision-making.

To rebuild trust in the partnership model, each role player must first fulfil and be held accountable for its statutory obligations. The draft amendment regulations create legal uncertainty and can only lead to further breakdown of this fragile relationship, which will inevitably come at a cost to access to basic education. 

Ms Christine Botha is Legal Officer, Centre for Constitutional Rights. This article was first published in Afrikaans on www.maroelamedia.co.za