Education: Moseneke’s view an archaic cliché
The swan song of Justice Dikgang Moseneke, Deputy Chief Justice of the Constitutional Court, was the FEDSAS case.
The judgment has been hailed as advancing human rights and uplifting the poor. Panyaza Lesufi, head of department (HoD) of the Gauteng Department of Education (GDE) was ecstatic. In an interview on Radio 702, Lesufi pronounced it a victory against apartheid spatial planning and the poor would finally have access to decent schooling.
The judgment is both an indictment on the GDE’s failure to provide decent schooling for most black children and a potential threat to a successful suburban schooling. Effectively Lesufi said that as long as township children attended their nearest GDE school, they would receive an inferior schooling. Other commentators hailed that poor children would no longer be “denied” quality education.
Equal Education (EE), which was an amicus curiae in support of the GDE, says on its website “the default feeder zone regime to which EE has objected will have a limited lifespan – opening the door for more equitable access to education that does not simply perpetuate race and class privilege along apartheid geographical lines”.
The system does not perpetuate race and class privilege. EE’s response suggests either that it doesn’t know how the system works and who benefits, or that it equality is all even if quality has to reduce to achieve it. It also implicitly admits the failure by the authorities to provide quality education in townships.
FEDSAS appealed against regulations promulgated by the GDE in 2012 as being contrary to national and provincial legislation. The schools most likely to be affected are suburban state schools, derisively referred to as “Former Model C” schools.
State schools are either fully state-funded, or partially state-funded and partly private. With the latter, the state pays for a certain number of teachers (and administration staff). If a school wants more teachers, the School Governing Body (SGB) will fund their employment from school fees.
State schools are divided into ‘quintiles’ determined by the economic environment in which they are situated. Quintiles 1 to 3 are non-fee paying (poor) schools and are supported entirely by the state. Quintile 4 and 5 schools are situated in “wealthy” areas, and so SGBs are empowered by law to set school fees to increase the finances.
There are almost 3 000 schools in Gauteng. Notwithstanding a margin of error, there are 1 278 township schools, 798 suburban schools, 69 specialist and special-needs schools, 763 private and independent schools and 95 rural schools. This article only concerns ordinary township and suburban schools.
Just over 60% of schools are in townships. About 36% of suburban schools are Afrikaans medium. There are 510 English medium only suburban schools – about 25% of all ordinary schools. A relatively small number of those are schools that would be considered high achieving academic schools. A significant amount of the current tension is between organisations promoting the interests of Afrikaans schools and the GDE.
At a typical Quintile 5 school, the state provides a certain number of teachers based on pupil numbers, some administrative staff and some financial contribution. The latter is often less than 2% of the budget. Parents at each annual general meeting approve a budget together with a school fee that they agree they can afford in order to meet the budget.
Most budgets accommodate + 30% of pupils to be exempt from paying fees, as well as provide for parents who just don’t pay fees but can afford to. Seventy percent of parents accept having to cross-subsidise other people’s children.
Experience shows that if non fee-paying pupils exceed 30% it becomes increasingly difficult for paying parents to afford school fees necessary to maintain a school. Fewer SGB teachers can be hired, teacher:pupil ratios increase and fewer other costs can be met.
Budgets aim to achieve teacher:pupil ratios of between 1:30 and 1:35; additional teaching aids, extra-mural activities and maintenance.
The state owns school properties but parents have to maintain them; easily 15% to 20% of the budget.
A mischievous impression is perpetuated of “leafy lily white” suburban schools. However, most English medium schools have between a large minority and a complete majority of black pupils. The black middle-class living or working in the area and the children of domestic workers who live and/or work in an area, contributes to this.
Quintile 5 school fees are paid with after-tax money – money spent after taxes have already been paid by parents for education. If the judgment achieves the possible negative results, the GDE is going to have to spend more money on schools it now relies on parents for.
The South African Schools Act realises the need to “provide an education of progressively high quality” and 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”.
In Gauteng’s situation this creates enormous tensions between the autonomy of suburban schools with little government funding and a government under pressure to provide schooling.
The potential deterioration of these schools – the GDE’s best performing – make Moseneke’s judgment supporting the regulations a real concern. The regulations give the HoD greater power to determine school admissions. For many years there has been considerable pressure on SGBs from the GDE to admit children that do not meet admission policy criteria.
According to Moseneke, "it is now settled that even though there are certain powers entrusted to the governing bodies of schools, the power does not exist in a vacuum, and should be exercised in accordance with the applicable provincial law."
Going forward, public schools will more and more be expected to "take into account the … disparities in the education system characterised by the legacy of apartheid”; to “help reform the public education system"; and to be “governed in a manner that caters for more than only the interests of the current parents and learners”.
Moseneke says that children need to be “[protected] from unfair discrimination, and (schools must ensure) that the right to education extends equally to all learners". There can be no justification for leading schools to “cherry-pick” only the top-performing and best-behaved children, and to consign a mass of poorer-performing and troublesome ones to less-well-resourced schools.
"The power of the school governing body to formulate admissions policy is clearly subject to limitations…" and the power to "determine learner enrolment capacity and declare a school full or not ... falls on the HOD.”
Admissions are a particularly significant issue in Gauteng because Gauteng of all provinces has to place an increasing numbers of children each year, because more and more people are moving into the province, or children are being sent to be educated in Gauteng because parents believe they will get a better education than that provided in their home provinces.
Tim Gordon, National CEO of the Governing Body Foundation (GBF), one of a number of governing body groupings that assist SGBs to apply the laws correctly, opines that the “judgment could sound the death-knell of the concept of public schools so carefully crafted in the post 1994 period, and take us back to the era of state schools. He said that the big difference between the two is that in a public school significant space is created for public, parental and community inputs, influence and decision-making, whereas in a state school system there is very little such space. “It will be a great pity if that is allowed to happen,” he said.”
Schools are no longer allowed certain information (largely financial) about a pupil before admission, in case such information can be used to unfairly prejudice a child. It is highly problematic to assume in advance that there will be discrimination or that it will necessarily be unfair.
Schools are only entitled to the information after the pupil has been admitted. It is then too late to determine whether the parents have to subsidise more pupils than it can afford to.
Moseneke held that if schools that are told in advance of admission that a learner has learning or remedial difficulties or is troublesome, they tend to refuse that learner admission.
If Moseneke is correct, is it unfair. Schools usually do not admit pupils with special needs because they don’t have the resources to cater for such needs. It can be very disruptive for an ordinary school to manage children with special needs.
Schools will try to admit the best performing pupils. The reputation of a school depends on them. This in turn attracts fee-paying parents. Such pupils also have a positive impact on academically weak pupils.
Parents have the right appeal to the GDE against a refusal to admit. Sweeping regulations are not necessary.
The Court ordered the MEC to set feeder zones within a reasonable time and not later than 12 months from the date of the order. Currently most suburban schools’ admissions policies provide for a 5 km feeder zone. This obliges the SGB to accept onto its A List any pupil who lives in or who has a parent who works in the zone. This applies irrespective of whether the parent/s can afford to pay school fees or not.
The B List comprises those pupils who neither live in nor have a parent working in the zone. These pupils are accepted if the school’s admissions are not filled from the A List. Schools have to consider the fee-paying ability of those on the B list if the school is to be managed run in terms of the budget.
The judgment empowers the District Director to place an unplaced pupil “at any school that has not been declared full and where there remain no unplaced pupil on the waiting list”. This has been a matter of bitter contestation between suburban schools and the GDE for many years. The GDE has often leapfrogged pupils over those on the waiting lists. The regulation at least requires the waiting list to be dealt with first.
The HoD now has the formal right to determine whether a school has reached its enrolment capacity. Not only can this throw the budget into chaos, but the GDE has on occasion ignored the safety rules regarding the capacity of classrooms.
Moseneke said that it is 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.
Moseneke’s view both reflects an archaic cliché and inaccurate view of suburban schools. It also takes no account of how the quintile system functions.
Pupils who have been schooled in academically weak township primary schools, provide huge challenge to suburban high schools. While some pupils can be assisted with bridging, others can’t and don’t cope.
Moseneke submits that SGBs “and HOD … 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.”
Trust and good faith have often been at a premium. Each party had very different obligations and priorities.
As the GBF says “Clearly all our admissions policies in Gauteng will now have to be redrafted – and there will be very little that we can put into them … At the same time, we hope that good common sense will prevail, and that officialdom will not opt for measures that will clearly be to the detriment of education. We also trust that we will be party to any considerations of change, and it goes without saying that we will work to the very end in the interests of an effective public schooling system for the country.”
A tipping point for suburban schools will be reached once fees cannot increase beyond a certain amount while there is an increase in the number of pupils who cannot pay fees. The quality of the schools has to diminish to a greater or lesser extent. Suburban schools can and have been of great benefit to poor black children but they can’t solve the GDE’s much larger problem.
Increasingly paying parents will move their children to private schools. And most will be black.
In the meantime, township schools will still not have improved.
Sara Gon is a Policy Fellow at the IRR, a think tank that promotes economic and political liberty. Follow the IRR on Twitter @IRR_SouthAfrica.
1. Federation of Governing Bodies for South African Schools (FEDSAS) v Member of the Executive Council for Education, Gauteng and Another (CC) T 209/15)  ZACC 14 (20 May 2016).
3. Gordon, Tim Controversial Concourt ruling set to impact on Western Cape Schools Annexure to Special “Admissions” edition of Undercurrents edition May 2016 – The Constitutional Court Admissions Saga – contact GBF www.gbf.org.za
4. Governing Body Foundation, Special “Admissions” edition of Undercurrents edition May 2016 - The Constitutional Court Admissions Saga – contact GBF www.gbf.org.za