Last week the ANC Youth League and COSAS issued statements condemning the recent judgment of the Supreme Court of Appeal in favour of Rivonia Primary in its litigation against the Gauteng Education Department. It is disappointing, but not surprising, that a coalition of NGOs including Equal Education, the Centre for Child Law and the Legal Resources Centre are also urging the Department to take the matter to the Constitutional Court.
Equal Education - which is an organisational offshoot of the Treatment Action Campaign - should be commended for raising the profile of South Africa's education crisis. But although South Africa is no longer ignorant about the existence of the crisis, Equal Education misunderstands both the causes of failure and the solutions which should be devised to remedy the situation.
The Rivonia judgment matters because it touches upon so many of the assumptions that have defined and undermined public policy in post-Apartheid South Africa. The question before the Court concerned who has the legal power to determine the capacity and, more broadly, the admissions policies of public schools.
Although the High Court had taken a different view, a unanimous Supreme Court held that the law is clear in this regard. Section 5(5) of the South African Schools Act states that: ‘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.'
The governing body of Rivonia Primary had set the school's capacity for Grade 1 learners at 120. The child in question had been denied admission because her application was the 140th to have been submitted. In a brazen act the Head of Department purported to ‘withdraw' the admission function from the Principal and ‘re-delegate' it to a mid-ranking official who proceeded to forcibly ‘deposit' the child at an empty desk at the school (which happens to be reserved for disabled students).
This was, of course, completely unlawful and has now been ruled as such by the Supreme Court.
Articles - such as this superb piece by Alex Eliseev - have focused on how the Rivonia Primary case exhibits the insidious, obnoxious effects of the race card that routinely casts a sinister shadow of censorship over public debate. My aim is to highlight two further points which are enormously important for our constitutional democracy.
1. Centralisation vs devolution of power
School admissions policies must be fair, impartial and transparent - indeed, this is required by the right to equality enshrined in section 9 of the Constitution. But as with other matters such as the curriculum, testing and teacher training, there is no reason why, in a country as large and diverse as South Africa, a monolithic and deeply dysfunctional bureaucracy is better placed than individual schools to craft optimal policies.
There has been no shortage of centralisation in post-Apartheid South Africa. Individual liberty and free choice are routinely confiscated in the name of social progress and ‘transformation.' As compensation, South Africans have been offered communal ‘service delivery' which is distributed through ill-defined processes of ‘public consultation.' In other words, the State has assumed sole responsibility for construction, allocation and delivery in a system that is hardwired for corruption and capriciousness.
And when the heavily weighed down and deeply dysfunctional State fails to deliver, NGOs typically turn to human rights litigation in the hope that judicially managed intervention will succeed where centrally driven State intervention has not.
This leads us to the second problem...
2. Equal Education's strategy and tactics
Equal Education is, of course, entitled to take a different view to me. Last week they released a statement urging that ‘the governance of school admissions must remain primarily in the public domain, rather than appropriated entirely by individual schools...'
In a normal democracy, ideological debate over school governance would be held in the open and ultimately would be settled by the electorate at the ballot box. If Equal Education disagrees with section 5(5) of the South African Schools Act and instead wants admissions policies to be controlled by a central authority, they should lobby the national Parliament or Gauteng Provincial Legislature to amend the legislation.
The trouble with relying directly on the constitutional rights to education and equality is that democratic debate would be shut down: if successful, social democrats would entrench their principles, whilst the views of liberal democrats and libertarians would effectively be declared unconstitutional. Public policy would become ossified and it would become impossible to develop alternative means of governing the country and delivering public services.
Why not give parents the freedom to choose?
Rivonia Primary is world class largely because of a dedicated group of teachers, strong leadership, the absence of political interference and parents who diligently pay fees (and make substantial additional contributions). Excellence did not come easily or automatically. Moreover, excellence in public services is inherently fragile.
The simple fact is that we are not going to save South African education by pouring even more resources into a broken system, nor by trying to squeeze every child into Rivonia Primary.
What is needed is radical reform which places choice in the hands of parents through the introduction of transparency, rigorous testing and competition. For instance, each January provincial governments could issue parents with progressively weighted vouchers worth, on average, R 11 000 per child, and allow private sector service providers to drive up standards as they compete for business.
Presently, only wealthy South Africans (notably including ANC and COSATU politicians) can afford to choose the best possible education for their children. Publicly funded vouchers would allow the poorest and most marginalized people to make use of the ultimate system of accountability whereby poor performance results in parents moving their child from one service provider to another.
Such reforms have been enormously successful across the world - yet they are anathema to Equal Education. This is because many civil society groups have aligned themselves so closely with COSATU that they have come to conflate the objectives of trade unions with the interests of children. Instead of delivering schooling to students, the essential purpose of the Department of Basic Education has become to fund the world's largest and most expensive welfare system for adults.
Instead of taking on Rivonia Primary, why doesn't Equal Education turn its attention to the elephant in the room - its ally COSATU? Teachers' salaries account for 86% of the national education budget, yet COSATU affiliated teachers (who dominate large parts of the education system) return a notoriously poor service.
A post-ANC Western Cape has already shown how much can be achieved in a relatively short period of time through the determined implementation of sensible, modest reforms. The Democratic Alliance will undoubtedly be at the centre of a post-ANC South Africa. It should urgently turn its attention to defining an education policy that is both radical and truly progressive, one that challenges the vested interests that have strangled opportunity in this country for far too long.
Richard Wilkinson is an MSc student at the Oxford Internet Institute, at Oxford University. He authors the blog policyXchange:http://policyxchange.wordpress.com / @policyXchange. He can be followed on Twitter at @RichWilkinsonCT
This article was published with the assistance of the Friedrich-Naumann-Stiftung für die Freiheit (FNF). The views presented in the article are those of the author and do not necessarily represent the views of FNF.
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