Rivonia Primary School: EE and CCL apply for admission as amici curiae

The Legal Resources Centre (LRC) will, on behalf of the Equal Education (EE) and Centre for Child Law (CCL), apply to the Constitutional Court for admission as amici curiae(friends of the court) in the Rivonia Primary School case. The LRC will ask that they be able to present arguments to the Constitutional Court in an appeal against the judgment of the Supreme Court of Appeal. The matter will be heard in the Constitutional Court on 9 May 2013.

This is a case about who has the power to decide the capacity of public schools- the SGB or the Provincial Department of Education? In this case, Rivonia Primary School refused to admit one additional learner because the capacity set by the SGB policy had been reached. Although the learner was subsequently admitted, the question of who has decision making power about admission to public schools needs to be determined.

The High Court found that the Department has the final word on admissions. The decision of the High Court was overturned on appeal to the Supreme Court of Appeal (SCA). The SCA found that the power to determine admission policy lies with the School Governing Body. 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.

CCL and EE agree with the SCA that the highhanded manner of intervention by Gauteng education authorities in this case was completely unacceptable. However, the MEC has responsibility to place all the children seeking public school access in a province, and it is thus both lawful and logical that the MEC should have a say in admissions policy. However, The amici stress that government must act reasonably, and if it insists on the admission of children over and above the capacity as set by the SGB, then it must provide extra resources such as teachers and classrooms.

The SCA noted that the case concerned "a school located in an affluent, historically white suburb, where a little more than half the learners were white" but said that "none of this is relevant". However, EE and CCL take the view that 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.

EE and CCL recognise that this is a sensitive issue and do not support policies that seek to destroy or diminish these more privileged public schools in the name of equality. However, they 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.

EE and CCL seek to be admitted as amicus curiae in order to support a Constitutional Court finding along the following lines:

* Government at national and provincial levels does have the power to act in relation to admissions to public schools, although the individual school has set a maximum capacity in its admissions policy. Even where a School Governing Body has the power to adopt an admissions policy that includes a determination of capacity, such a policy can never be binding on the relevant HOD or MEC for education or be applied rigidly and inflexibly by any party concerned.

• The government must exercise its power to place a child above the capacity set in a school's admissions policy lawfully, reasonably and following a fair procedure. When exercised with regard to individual schools, the proper ambit of the government's power is fact-specific, and may include consideration of a school's admissions policy as well as historical disparities in public school funding.
• While this present case concerns the situation of one learner, the Court's decision on the contentious issue of learner capacity will have far-ranging consequences for all South African children in a variety of contexts. The amici will draw attention to such contexts.

The LRC is an independent, non-profit, public interest law clinic, which uses law as an instrument of justice to provide legal services for the vulnerable. 

The CCL was established by the University of Pretoria and its main objective is to promote child law and uphold the rights of children in South Africa, within an international and regional context.

EE is a movement of learners, parents and community members. It works to promote quality education for all through campaigns grounded in detailed research and policy analysis and supported, where appropriate, by litigation.

Statement issued by Khumbulani Mpofu, LRC's Communications and Marketing Officer, Ann Skelton, Director of the Centre for Child Law, and Doron Isaacs, Deputy Secretary General of Equal Education, February 28 2013

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