GDE STATEMENT ON RECENT JUDGEMENT

27 May 2015

The Gauteng Department of Education (“Department”) notes the judgement handed down by Wright J in the South Gauteng High Court yesterday in the urgent application brought against the Department by FEDSAS. The Department is of the view that the case brought by FEDSAS is flawed and is motivated by concerns that do not accord with our Constitution as well as the regulatory framework governing education, and particularly access to education in our new democracy.

The Department is of the view that the learned Judge erred in his judgment for the following reasons:

1. In point 1 of his order, the Learned Judge states that schools are entitled to prepare and submit Waiting List A and B. The Department agrees that this statement accords with applicable law, including Regulation 7 of the Regulations on Admission of Learners to Public Schools, 2012 and it also accords with current practice within the province, and we confirm that use of the e-platform Admission App will not in any way affect the schools ability to prepare Waiting List A and B.

2.The second part of his order states that “in so doing, (preparing the submitting waiting lists), the school may take into account, their admission and language policies. The Department has a problem with this point, firstly because it is contrary to Regulation 7 on Admission of Learners to Public Schools, which clearly states the criteria that the school must consider when they are compiling their respective Waiting Lists.

3. Regulation 7 on Preferential Rights to Admission as an Entry Phase Learners provides as follows:

(1) “For the purposes of entry phase admissions to a primary school, the school must keep a waiting list A and a waiting list B.

(a) Applicants for admission to a primary school will be entered on the waiting list A if—

(i) their place of residence is within the feeder zone of the school;

(ii) at least one of their parent’s place of employment is within the feeder zone of the school; or

(iii) they have a sibling attending the school.

(b) All applicants for admission to a primary school who do not qualify for the waiting list A—

(i) must be entered on the waiting list B; and

(ii) must be advised in writing by the school that they should seek admission at a school for whose waiting list A they qualify.

(2) For the purposes of entry phase admissions to a high school, the school must keep a waiting list A and a waiting list B.

(a) Applicants for admission to a high school school will be entered on the waiting list A if—

(i) their place of residence is within the feeder zone of the school;

(ii) at least one of their parent’s place of employment is within the feeder zone of the school; or

(iii) they have a sibling attending the school.

(b) Applicants for admission to a high school who do not qualify for the waiting list A will be entered on the waiting list B.

(3) All applicants for admission to a school must be entered on the waiting list for which they are eligible, in the order in which their applications were received by the school.

(4) All available places at the school must be filled:

(a) from waiting list A, in the order of the position of the applicant on waiting list A; or

(b) if places remain after all applicants on waiting list A have been offered places, from waiting list B, in the order of the position of the applicant on waiting list B.”

4. Point 3 of the learned judge’s order states that in considering the lists that have been submitted by the schools for his approval, the District Director and the Head of Department (“HOD”) must take into account, along with other relevant and lawful considerations, the schools admission and language policies.

5.The Department wants to reiterate that no school shall exclude a learner on the basis of language. The Department confirms its commitment to complying with the applicable regulatory framework which includes the school’s admission and language policies.

6. The Right to Education is one of the most fundamental rights in the Constitution and if any school, when applying its language and admissions policy, acts contrary to the Constitution, that policy must be disregarded. This principle has been confirmed by the Constitutional Court in various judgments, including the Rivonia Primary School case. The District Director and the HOD when excersing their obligations to admit learners, will take into account, the Constitution, a child’s right to education and what is in the best interest for that learner and the educational system in Gauteng to enusre that it complies with that Constitutional imperative.

7. Although this is an interim order, it is the intention of the Department to pursue its rights and ensure that the both the spirit and the letter of the Constitution are upheld when the review part of this FEDSAS case is fully argued on its merits in due course. In doing so, it will, as it did in the Rivonia case in which the position of the Department was vindicated by the Constitutional Court, ensure that access to education as a Constitutional right is upheld and given substance.

8. As a matter of record, we wish to state that FEDSAS is misleading the Court and the public, by stating that this case is about language rights. This case is not about language rights. Language rights are protected in the Constitution and will always be respected by the Department, as they have in the past and will be in the future. This is an issue about access to education and the issue of language is being used as a false shield to exclude those who are entitled to education at a school that they qualify to attend in terms of the applicable legislation. That is the real issue here. By raising the issue of language and threats to that language, FEDSAS is resorting to tactics that demean it and those that it claims to represent.

9.  Education and access to education is a right that should, and must, co-exist with the language rights enshrined in our Constitution. This issue is not about ‘’taking away any language”, rather, it is about using what we have as a country, and in this case, schools, using what they have to the full advantage of those who qualify to attend that school. This is not about Afrikaans, isiZulu or Setswana being under threat, it is about moving forward as a country and utilising what we have in the best interest of our people.

Statement issued by the Gauteng Department of Education, May 27 2015