ConCourt to decide on school admissions
The Constitutional Court reserved judgment on Thursday on the issue of who had the final say on school admissions.
The Constitutional Court reserved judgment on Thursday on the issue of who had the final say on school admissions.
It will now decide between a school's right to determine whether it is filled to capacity, and the Gauteng education department's right to force it to take on more pupils.
The matter stems from 2011, when Rivonia Primary School in Johannesburg refused to admit a Grade One pupil in 2011, saying it had no space.
The Gauteng education department intervened and instructed the school governing body (SGB) to override its policy and admit the pupil.
The school's SGB filed a challenge in the High Court in Johannesburg against the education head of department and its MEC's right to set aside its admissions policy -- but lost.
It approached the Supreme Court of Appeal, which upheld the school. The department, for its part, then sought relief in the Constitutional Court.
It argued that its duty to ensure there was enough place for a child overrode the SGB's powers to determine a school's capacity to accept a child.
The department told the court on Thursday that the school could have admitted the one extra Grade One pupil when the application was received in 2010, for the school year of 2011.
When it refused the child, it had the lowest pupil ratio in Grade One in its cluster, and the second lowest in the district, the department's counsel Matthew Chaskalson said.
He said that by the end of 2010, there were 3000 unplaced primary school pupils in that school's district nine alone, and 1000 in the Rivonia Primary School cluster.
The department had already provided 1447 more ordinary class rooms, 300 toilets, and 75 new grade R classes for over 60,000 pupils in 2010.
It was a "formidable" achievement, but not enough for the unprecedented number of new applications, so schools had to use existing facilities as effectively as possible.
Parents were attracted to schools in historically white areas because during apartheid the "Bantu" schools only received 12 percent of the budget of white schools, so the latter were historically better off.
But those schools could not hold onto that discrimination.
"Schools don't cease to be a public resource just because parents put money in," said Chaskalson. "Schools belong to a community."
The school had suggested that the child, who fell into the school's "catchment" zone, be placed instead at Parkhurst Primary School, but that was "across two CBDs", submitted Chaskalson.
He said schools could make policy, but could not decide who did and did not get admitted.
Section Nine of the Schools Act gave the MEC for education the right to make a decision on an appeal by a parent.
However, decisions needed to be fair. So if the school had had to form a new class to take an extra 30 pupils, that would be unfair to the school.
If a school finds itself in this position, it can apply to a court for an order compelling the education department to provide more space.
Outside the court, protesters carried posters demanding an end to what they regarded as racist admission policies and policies that discriminated on language grounds.
Matakanye Matakanye, general secretary of the National Association of School Governing Bodies, said: "We will not stand by when the Constitution of our country is being trampled upon."
According to Steven Budlender, his clients Equal Education and the Centre for Child Law, as friends of the court, accepted that "in the first instance" the school governing body (SGB) had the right to determine an admissions policy.
But the Schools Act gave the education MEC decision-making powers regarding appeals.
Budlender said, unfortunately, the basic education minister had not formulated norms and standards regarding schools' capacity, as this would have helped resolve the issue.
In terms of the Constitution, every child had a right to basic education, but to be fair, the MEC and head of the education department could only depart from the SGB admissions policy when there was good cause to do so.
Parents' financial contribution to a school was relevant, but was not the determining factor.
Counsel for Rivonia Primary, Gerrit Pretorius, agreed that Gauteng's education department head had the final say on school admissions, but the decision should be well-considered.
Factors that should be considered included whether there was another school with capacity, within a reasonable distance, which the child could attend.
This needed to be discussed between the department and the school.
He said Rivonia Primary was run by a "fantastic principal" and only 47 pupils of the over 800 were not paying fees. Forty-six percent of the pupils are black.
The SA Onderwysersunie (SAOU) (SA Teachers Union) believed the department should only become involved if the school governing body was acting unlawfully, unreasonably or unconstitutionally.
Forcing a school to take an extra 100 pupils would infringe on the rights of the children. But if this had to be done, it should happen in a planned and systematic way.