CONSTITUTIONAL COURT CONFIRMS PROVINCIAL GOVERNMENT'S POWER TO HAVE THE FINAL SAY ON SCHOOL CAPACITY

Equal Education (EE) welcomes the Constitutional Court ruling confirming that the Head of Department of Education in Gauteng was empowered to instruct the principal of Rivonia Primary School to admit a learner in excess of the limit in its admission policy. EE, represented by the Legal Resources Centre, intervened as a friend of the court in the High Court and subsequently on appeal to the Supreme Court of Appeal and Constitutional Court. The purpose of EE's intervention was to advance an argument that an appropriate balance ought to be struck between provincial departments and student governing body (SGB) powers in relation to learner capacity at schools.

Rivonia Primary is a public school situated in a historically wealthy suburb of Johannesburg. Its parent body is able to provide extra resources in order for the school governing body to ensure better facilities and more teachers for the learners, thus improving the quality of education and keeping class sizes to a minimum.

The school argued that section 5(5) of the South African Schools Act gave the power to school governing bodies to have the sole and final say on the maximum capacity of a school, and the Gauteng HOD lacked the power to admit the learner to the school in excess of the capacity fixed in the SGB admission policy. The effect of the school's argument is that it need not consider the broader systemic educational crisis or the constitutional imperative to provide a basic education for all learners in South Africa.

However, the Constitutional Court correctly held that school governing body policies are not unfettered. Continuing disparities in accessing resources and quality education perpetuate socio-economic disadvantage, thereby reinforcing and entrenching historical inequity. EE welcomes the reasoning that schools cannot become islands of privilege and that the state and school governing bodies share the responsibility of realising learners' rights to quality and equal education. In this constitutional framework, SGB policies must be flexible.

The Department is under a constitutional and statutory duty to ensure that existing public school infrastructure in the province is utilised as efficiently as possible. The Department cannot allow a situation where some public schools accommodate far fewer learners than their infrastructure can and should support, while other public schools are over-crowded.

The implications of Rivonia foreshadow the next legal challenge on the relationship between the state and school governing bodies to reach the Constitutional Court. The Federation of Governing Bodies of South African Schools (FEDSAS) has sought to challenge the power of the Gauteng MEC to make norms and standards for school capacity. The resistance by FEDSAS to these regulations is illustrative of attempts to remove wealthy public schools from the collective responsibility for education in South Africa.

Statement issued by Yoliswa Dwane, EE Chairperson and Brad Brockman, EE General Secretary, October 4 2013

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