VICTORY FOR THE RIGHTS TO BASIC EDUCATION AND EQUALITY IN THE ‘RIVONIA PRIMARY SCHOOL CASE'

JUDGEMENT OF THE SOUTH GAUTENG HIGH COURT CONFIRMS THAT THE PROVINCIAL DEPARTMENT OF EDUCATION HAS THE ULTIMATE AUTHORITY TO DETERMINE THE CAPACITY OF A SCHOOL

Judgement was handed down yesterday in the case between Rivonia Primary School and the MEC and Head of Department of the Gauteng Department of Education.

The Governing Body of Rivonia Primary School had brought the case against the Department after the school was ‘forced' to accept a Grade 1 learner. The school had refused to accept the learner because it said it had reached its capacity for Grade 1 learners for that year - which the school had set as 120 learners for Grade 1. However, after the learner's parent appealed against the refusal to admit the child the HOD instructed the school to do so.  

The Court found that although the South African Schools Act gives School Governing Bodies the authority to determine their own admission policies this does not mean that they also have the authority to determine the school's capacity to the exclusion of the authority of Provincial Departments. Judge B H MBHA noted in his judgement that:

"Although schools are now open to all children of all races, the consequences of apartheid forced removals and racially exclusive zoning mean that the majority of formerly white schools remain disproportionately white, while the majority of black schools continue to serve almost solely black children."

"[Rivonia Primary] is no exception to this pattern of racial disparity...The applicants contend that the school governing body had to raise private funds for the construction of nine of the school's thirty classrooms and to employ additional teachers to attain the current low learner-to-class ratio in the area. However, whilst the applicants' desire to offer the best possible education for its learners is laudable, the Constitution does not permit the interest of a few learners to override the right of all learners in the area to receive a basic education."

"In my view, providing a basic education across race and class requires government intervention in the preliminary power of school governing bodies to determine admissions policies.  Leaving schools to determine their admission policy, including the power to determine their capacity...one unwittingly creates space privileged schools can use and manipulate that power to fortify rather than dismantle existing inequalities."

"In my view, interpreting the Act [South African Schools Act] to deny government the ability to intervene to ensure that an equitable distribution of learners across all schools in the areas prevents it from fulfilling its obligation under section 7(2) of the Constitution to ‘respect, protect, promote and fulfil' the right to equality and to a basic education."

Equal Education (EE), represented by the Legal Resources Centre (LRC), joined in this case as an amicus curia (a friend of the court) because we believed this case would have an impact on future efforts of the Department of Education to ensure that all learners have an equal right to a basic education. This obligation requires the Department to have the power to intervene and have the ultimate say as to schools' capacity, which the court agreed with.   

The court also made an important pronouncement on the need for the National Minister to adopt norms and standards in line with her powers in terms of s5A of the South African Schools Act. The judgment notes that:

"...it would provide significant guidance to school governing bodies and provincial governments on the issues raised in this matter if the National Minister of Basic Education were to act in terms of section 5A read together with section 58C, and promulgate norms and standards on capacity."

In fact it is quite possible that this whole dispute could have been avoided had the Minister adopted norms and standards in terms of s5A of the South African Schools Act. Section 5A empowers the Minister, after consultation with the Council of Education Ministers, to prescribe regulations for minimum norms and standards for: school infrastructure; school capacity and the provision of learning and teaching support materials.  Equal Education has for the last two years been campaigning for the Minister to adopt national minimum norms and standards for school infrastructure, which are provided for by s5A along with the power to adopt norms and standards for school capacity and for learner teacher support materials. To date the Minister has failed to prescribe any of these norms and standards.

The court has ordered that this be brought to the attention of the National Minister.

Equal Education has brought this to the attention to the Minister Motshekga on numerous occasions and we now urge her to take heed of this judgement.

The South African public is waiting for her to take steps to provide the children of the working class and the poor with better infrastructure. Minister Motshekga must set standards for school capacity so there is uniformity in the application of the law and policies. This is in the interest of equality and quality in education.

Statement issued by Dmitri Holtzman and Yoliswa Dwane, Equal Education, December 8 2011

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