Access to Education in the Face of Discrimination
Though the right to a basic education is enshrined in the South African Bill of Rights, many children still experience numerous barriers to even accessing admission to a public school. The Legal Resources Centre (LRC) is involved in both frontline advocacy and strategic litigation to challenge the discriminatory entry criteria posed by government o cials and school governing bodies.
The LRC is currently involved in several cases which seek to clarify the roles and powers of a school governing body (SGB). In South Africa, the governance of every public school is vested in its SGB. This body stands in a position of trust towards the school and is composed of the principal plus parents and other community members, as elected by the school’s parent membership. With wide-ranging powers granted under the South African Schools Act 84 of 1996, which include such responsibilities as administering and controlling the school’s property, formulating a student code of conduct, and determining a school’s admissions policy, an SGB holds substantial sway over a student’s educational experience. The LRC is committed to ensuring that SGB powers are necessarily circumscribed and informed by the South African Schools Act, as well as by the rights and values enshrined in the South African Constitution.
Exclusion of Refugee Children
Owing to the broad and inclusive language in the Bill of Rights, the right to a basic education is a orded to everyone who is physically within the borders of South Africa, regardless of his or her immigration status. Furthermore, the South African Schools Act 84 of 1996 prohibits schools from using immigration status as a basis for exclusion. Nevertheless, refugee children are still frequently denied or delayed entry to a public school by Department of Education o cials, who demand that the children provide proof of their refugee status. The Cape Town LRC office is active in advocating on behalf of these children. To date, the LRC’s demand letters against the Western Cape Provincial Department of Education have been sufficient to reverse the governmental intransigence and successfully secure the children’s access to schooling.
Power to Determine Language Policy
Another barrier faced by schoolchildren highlights the legal and practical complexities of balancing competing constitutional rights in the new democratic South Africa: namely the issue of school language policy. Under the Constitution, eleven o cial languages are recognised, and everyone also “has the right to receive education in the official language or languages of their choice in public educational institutions where that education is reasonably practicable.” In most South African public schools today, English is one of, if not the sole, language of instruction. Schools which choose to use another official language have the reasonable expectation that students admitted to the school be capable of understanding and receiving instruction in that language. Unfortunately, as a legacy of apartheid, many of the best quality public schools use only English or Afrikaans as their language of instruction. Due to the poor quality and poor facilities of many of the public schools, there is a high demand for these schools and subsequently insu cient places at them for all children who apply. As taxpayer funded public entities, public schools must also be responsive to the language needs of their surrounding communities and catchment areas. This tension between language rights and access to education is illustrated in the ongoing case involving Hoërskool Fochville, in Gauteng.
Hoërskool Fochville is an Afrikaans-medium institution and the only high school in town. Youth who desire an English education must either attend the poorer resourced former black- only high school in the adjacent township, or travel 40 kilometres each way to schools in the neighbouring city. A growing population, and changing demographics, have heightened the demand for an English language high school in Fochville proper. In the summer of 2011, 30-plus English-speaking students sought entry to the school’s grade 8 class. Hoërskool Fochville denied them admission as they did not have a strong command of Afrikaans. In response, and in consideration of the overcrowded conditions at neighbouring schools, the Gauteng Department of Education intervened to have the students admitted as an English-medium cohort within Hoërskool Fochville.
In late 2011, Hoërskool Fochville launched a court application to declare that the Department of Education had overstepped its powers in contravention of the school’s language and admissions policy. As an urgent interim remedy, the school sought to have the English-speaking students removed from the school. In January 2012, the court rejected the school’s requested interim remedy.
The LRC acts for the Center for Child Law (CCL) in this matter, which in turn is representing the students in question. In 2012, the LRC reached an agreement with the school that the English- speaking students would remain at Hoërskool Fochville pending the ongoing litigation. Due to a similar case still before the Constitutional Court, which will likely affect the relevant arguments forwarded by each party, the Fochville matter has yet to be litigated on its merits. In the meantime, the LRC is closely monitoring the situation at Hoërskool Fochville to ensure that the English-speaking students are receiving competent instruction and fair treatment from the school. Considering the various ongoing legal uncertainties over a school governing body’s powers vis-à-vis those of the government, as well as the sensitive nature of school language policies in the new democratic South Africa, the LRC envisions a crucial and ongoing strategic litigation role in the Fochville case. In addition, the school has rejected the intervention sought by the LRC on behalf of the Centre for Child law, arguing that the students can only be represented by their parents or their guardian’s and that the LRC and the CCL have no standing to act for these students.
Power to Determine Classroom Size
The case of Rivonia Primary School highlights the impact that SGB policies can have on the constitutional right to a basic education. The dispute arose in 2011 when the school, having determined through its admissions policy that it was already full, refused to admit an additional student into its grade 1 class. The Gauteng Department of Education (GDE) intervened and ordered Rivonia Primary to admit the child. In response, the school launched court proceedings against the GDE. In 2012, the South Gauteng High Court ruled in the GDE’s favour and held that a public school’s enrolment limit is ultimately determined not by an SGB, but rather by the applicable provincial department of education. This decision was then appealed to the Supreme Court of Appeal, which heard the case in November 2012, and later argued once more before the Constitutional Court in May 2013.
The LRC represents the two amici curiae in this matter. In its submissions before the Constitutional Court, the LRC urged the judges to consider the effect on children and their access to education if an SGB has final say over the enrolment capacity of its school. A situation could be envisioned in which an SGB declares its school to be full even if that school had some of the lowest enrolment gures and student-teacher ratios in the area. A child denied admission would then have to travel further away from his or her home to attend another school with places still available. The head of the provincial Department for Education, who is statutorily obligated to provide a school place for every South African child, would also be constrained from fulfilling his or her duty.
The LRC further argued that the Court must take into account the broader socio-economic context, and in particular, the legacy of inequality in education in South Africa. Because SGBs of public schools are allowed to charge school fees and allocate the monies towards additional facilities and teachers beyond what government funding would otherwise provide, fee-paying versus non-fee paying public schools often evince substantial disparities in infrastructure resources and student-teacher ratios. An education department without powers to override an SGB’s admissions policies would be seriously undermined in its efforts to equitably distribute educational resources in public schools.
The LRC therefore argued that while a SGB may make the initial determination of capacity in its admissions policy, the SGB admissions policy and determination of capacity is not binding on the relevant provincial department. It was contended that the department may only depart from the SGB’s admission policy and determination of capacity where there is good cause to do so, having regards to such factors as the number of students having to be placed at the school, the alternatives for placement of the students, and the cost implications for the school concerned of the placement of the students. The LRC strongly believes that its submissions forwarded a constitutionally balanced approach which, while respecting both a SGB’s policy-making powers and the government’s obligation to provide a school placement for every South African student, places foremost for consideration the right of all learners to a basic education. Judgment was handed down in the Rivonia Primary School matter by the Constitutional Court on 3 October 2013. The judgment has confirmed that the Head of the Department of Education has the power to override a SGB’s admission policy but that its power must be exercised lawfully.
In the South Gauteng High Court of South Africa (Johannesburg)
Case No. 2011/46091
In the application of:
Centre for Child Law
The Minister of Basic Education
Respondent in joinder application
In the matter between:
The Governing Body of Hoërskool Fochville
The Member of the Executive Council: Education, Gauteng Province
Head of Department: Education, Guateng
Judith n Dube
Mrs M Billitane No And 35 Other Persons Listed on Nom1
Notice of Motion
Fochville: Founding Affidavit
Here follow excerpts from the founding affidavit of Carina Du Toit an attorney at the Centre for Child Law, University of Pretoria. This is an application for leave to intervene
The intervening party is THE CENTRE FOR CHILD LAW (“the CCL”). The CCL was established by the University of Pretoria in terms of a constitution. The main objective of the CCL is to establish and promote child law and uphold the rights of children in South Africa, within an international and regional context, and in particular to use the law and litigation as an instrument to advance such interests.
II. Purpose of the Application
1. The purpose of this application is:
1.1 To apply to intervene in the application under the above mentioned case number, on behalf of the 37 children listed on “NOM 1” as well as all other children who might have an interest;
1.2 To set out the circumstances surrounding the children directly affected by the main application as well as their views and wishes in respect of the matter and to propose appropriate relief for the children;
1.3 The 37 children currently attending Hoërskool Fochville who are the children of the Fifth and further Respondents listed on NOM1 and who cannot litigate on their own behalf due to their status as minors, have a direct and substantial interest in the subject matter of this application having regard to the relief sought by the applicants in the main application. Section 38(b) is thus relied upon;
1.4 The children similarly placed to the 37 children directly affected who may wish to be admitted to Hoërskool Fochville in the future and may be barred from doing so due to the school’s admissions and language policy have a direct and substantial interest in the main application; and are represented in terms of section 38(c) of the Constitution;
1.5 It is in the public interest that the interests of the children be represented in this matter in terms of section 38(d) of the Constitution.
2. The relief sought by the applicants relating to the decision of the Department to admit the 37 children is of vital importance to the children and should the order be granted, it will have a signi cant impact on their lives.
3. The application thus concerns them directly and I submit that substantial injustice would result if the CCL is not separately joined as an intervening party to represent the children. Furthermore, the children are concerned about the effect it would have on their younger siblings and other neighbouring children should the Department be prevented from admitting other English speaking learners to Hoërskool Fochville. Although the interests of the children and their parents (the Fifth and further Respondents) may appear to coincide, there remains a potential con ict of interests. Furthermore, the facts relating specifically to the children, their circumstances and their views are not fully canvassed on the papers before this court nor has legal argument been advanced on their behalf.
4. The intervention of the children as parties will allow them all rights of participation in the legal process, including service of documents, participation in mediation and settlement negotiations and the right to appeal the outcome of the main application.
5. The best interests of the children are the paramount consideration in all matters affecting the child. The children will be directly affected by the application. The views of the children are an important factor in ascertaining their best interests and they have a right to participate in proceedings which will affect their lives.
6. I point out further that the children have a right to participate in matters which concern them in terms of both national and international law:
6.1.1 Section 10 of the Children’s Act states that:
“Every child that is of such an age, maturity and stage of development as to be able to participate in any matter concerning that child has the right to participate in an appropriate way and views expressed by the child must be given due consideration.”
6.1.2 Article 12 of the United Nations Convention on the Rights of the Child states this principle in similar terms.
6.1.3 Article IV(2) of the African Charter of the Rights and Welfare of the Child (which has been rati ed by South Africa) provides that:
“In all judicial or administrative proceedings affecting a child who is capable of communicating his or her views, an opportunity to be heard either directly or through an impartial representative as a party to the proceedings, and those views shall be taken into consideration by the relevant authority in accordance with the provisions of appropriate laws.” (Own emphasis)
6.2 I submit that the minor children plainly have a direct and substantial interest in the main application and the CCL should be joined as a party to the proceedings to allow the children to effectively exercise their rights.
7. The children have a right to a basic education, to receive education in a language which they understand and not to be discriminated against.
8. The CCL has knowledge of and experience in litigating on the protection of children’s right to basic education. In particular, CCL successfully litigated as applicant in the Eastern Cape to eliminate mud structure schools and to provide proper infrastructure to these schools.
9. The CCL was also involved as amicus curiae in education cases concerning admissions and learner pregnancy policies.
10. More importantly, the CCL has in-depth knowledge and expertise in representing both individual children and groups of children and as such is ideally suited to act on behalf of the group of children concerned in this matter and in the public interests.
11. Should this honourable court refuse to grant the CCL leave to intervene it will prejudice the children.
IV. Factual Background
Brief facts relating to the main application
12. The children directly affected are the children of the Fifth and further Respondents listed in the notice of motion. They are 13 or 14 years old and live in Fochville and the surrounding townships Kokosi and Greenspark (“the children”).
13. They were enrolled at Hoërskool Fochville (“the school”) in January 2012 as the first Grade 8 English medium class at the school. There are 37 learners in the Grade 8G class and they currently remain enrolled at the school.
14. The children were enrolled at the school on the direction of the Department of Basic Education, Gauteng who were of the view that the school has the capacity to accommodate the 37 children.
15. The enrolment of the 37 children was opposed by the school and its school governing body who argue that the school lacks capacity to admit the children and furthermore that its language policy does not allow for enrolment of children who are to be taught in English, as the school is a single medium school which teaches in Afrikaans.
16. The applicants thus seek an order in the main application to interdict the enrolment of the children to the school
V. The Children’s Views on Hoërskool Fochville
17. During discussion it was clear that the children enjoyed the standard of education immensely. The girls enjoyed sport and extra- curricular activities more than the boys but mostly the children were adamant about enjoying their education and especially their assigned class teacher.
18. Each child has some subject that he/she is passionate about. Many of the children listed Afrikaans as their favourite subject. The other subjects that they favour are arts and culture, English and social science. They prefer these subjects because they o er insight into di erent kinds of people and the wider social context. Given their qualitatively positive experiences, it is not surprising that the children greatly value their education at Hoërskool Fochville.
What the Children Do Not Like About Hoërskool Fochville:
19. In general, the children responded that they do not like the following about Hoërskool Fochville:
19.1 being subjected to racism;
19.2 feeling anxious about whether they will be allowed to remain in the school;
19.3 feeling uncertain about the future enrolment of other children at the school;
19.4 challenges that they face and feeling left out as a result of the single medium
20. The children feel targeted and isolated by the teachers. They are frequently blamed for disciplinary problems. One child stated that ‘when some children do things that they are not supposed to be doing, then the teacher says that it is the black children.’
ANXIETY ABOUT BEING ABLE TO REMAIN IN THE SCHOOL
21. The children have been made to feel that they are imposing on the school and the teachers and that they are making life di cult for the school. They feel that the school is just tolerating them or doing them a favour by allowing them to be there.
22. A large number of children mentioned that they do not receive computer classes whilst all the Afrikaans grade 8 learners get computer classes. Some teachers have also discussed the court case with the children and told them that they will not be in the school for grade 10. The children were told by several teachers that the court case is to get them out of the school.
UNCERTAINTIES IN RELATION TO FUTURE ENROLMENT
23. I point out that the children are not only concerned over their own future in Hoërskool Fochville. They are also worried about whether their siblings and friends will be admitted to Hoërskool Fochville.
24. They are also aware that this will cause problems in respect of space and teachers to teach in English and they were quite protective of Hoërskool Fochville in this respect. They asked us who will give the school more classrooms, desks, chairs and teachers.
SINGLE MEDIUM OF INSTRUCTION
25. Every child complained about feeling left out or things being di cult because the teachers only speak Afrikaans. All the announcements are made in Afrikaans and assembly is only in Afrikaans. When they are not in class, the teachers will not engage with them in English but will only answer in Afrikaans.
26. During the June examinations all the grade 8 learners from all the classes wrote exams together but the 37 English learners were moved to a separate classroom to write exams during November. This was to ensure that announcements for the class were made in English. The children understood that this was for practical purposes so that exam announcements and explanations did not have to be repeated in English and Afrikaans.
27. However, it still made them feel isolated as if they are again singled out.
VI. The Children’s Views on Attending Another School
28. Of the 37 children, 12 indicated that they would like to move to a di erent school if given the choice.
29. One child indicated that he/she was not sure whether he/she wanted to move to a di erent school. This is the same child who earlier indicated that he/she was not sure whether he/she liked Hoërskool Fochville. The other 24 children all indicated that they would not want to move to a di erent school.
30. The main reasons why the majority of the children say that they do not want to move to a di erent school if given the choice are that they have friends at Hoërskool Fochville and there are very good teachers even if not all of them are friendly. The school has excellent facilities and extra sports and culture activities. The children are deeply concerned that they will lose the friends that they have made and that they will have to make new friends and start over again in a new school.
31. Of concern to the children is the financial effect that it would have on their parents if they have to go to a di erent school. The children want to attend an English medium high school and are under the impression that the high school in Kokosi teaches in seTswana. They will therefore have to travel to Carletonville or Wonderfontein to attend an English school which is approximately 26 km away from Kokosi.
32. The children are deeply concerned about the negative impact travelling to Carletonville will have on their education, health and safety, family finances, and emotional and social well- being if they have to devote over an hour each day to travel a minimum of 44 kilometres to attend school. Many of the children think that their education will be negatively affected if they have to spend hours each day on crowded, unpredictable public transportation.
33. It costs several hundred rand each month for one person to travel every weekday between the Carletonville and the Fochville areas. The children are aware of the impact this cost would have on their families.
34. None of the children come from families with considerable financial resources. The children feel sad and uncomfortable that their parents would have to divert funds away from other necessary expenses so to pay for their transport. Some of the children have parents with uctuating incomes. At least one child expressed the concern that sometimes, there just is not enough money to pay for transport to get back home from school. It puts children and parents in a troubling situation when children have to gure out a way to travel more than 20 kilometres without money. Attending school in Fochville means that the child can walk home if necessary. This would be impossible if attending school in Carletonville.
35. A number of children live in Fochville close to Hoërskool Fochville and feel that it would affect them negatively to have to travel to Carletonville. When asked how it would make the children feel to have to move to another school they provided the following answers:
36. Not only is there the increased transport cost but it also means that they will not be able to attend sports and cultural events because they will be dependent on public transport.
37. The children already experience the transport from Kokosi to Fochville as unreliable. On the days that the transport is late or does not show up, Fochville is close enough to walk to school or take a taxi. This would not be possible if they attend school in Carletonville.
38. Their parents have also spent a signi cant amount of money on buying the full uniform for Hoërskool Fochville which they will have to replace if they move to a di erent school.
39. The children are also concerned about the time it would take to travel from Kokosi/Fochville to Carletonville and the effect that would have on their education. They think they will be tired from all the travelling every day.
VII. Appropriate Relief in Respect of the 37 Children
40. It is clear from the answers provided by the children and it came out clearly in conversation that the children are experiencing racism on a daily basis.
41. Some are bullied and the boys especially feel unwelcome. It appears as if the African and white girls have become friends and the African girls feel welcome to participate in sports and cultural events. The African boys experience more discrimination.
42. The fact that only Afrikaans is spoken is extremely isolating. The children have been made painfully aware of the fact that they are imposing. The teachers and especially the Principal discussed the court case with the children and questioned the children on what they think will happen in Grade 10. They feel that they are blamed for any disciplinary problems. Teachers will blame a disturbance on ‘the black children’. The children feel that they are targeted because they are creating extra work for the principal and the teachers.
43. Despite this, the children show remarkable resilience. They respect the school, the teachers and especially the standard of education they are receiving. The majority of them quite simply love the school and are determined to remain there. All of the children noted the excellence of the teachers even if they felt that a teacher may be racist towards them.
44. Several children remarked that they know they are the ‘first’ to attend the school and that they consider themselves to be pioneers for other English speaking African children to come after them.
45. They want to ght to stay in Hoërskool Fochville to ensure that their friends and siblings can also attend the school. A large number of the children live in Fochville and live next door to white children who attend Hoërskool Fochville.
46. The children think that the teachers and white children feel as if they want to take over Hoërskool Fochville but what they really want is to be a part of it and to be allowed to attend the school closest to them.
47. The CCL does not seek specific relief on behalf of the children in respect of the challenges relating to racism and the use of language, but places the information before the Court to assist it to appreciate the circumstances of the children. The CCL also provides the information to the SGB and the government respondents to enable them to take it into account in considering the relief that they seek and to inform the spirit and manner in which all the parties conduct the litigation and engage with one another and with the children.
48. The CCL proposes the following specific relief in relation to the children, which it is submitted will be in the best interests of all the children at Hoërskool Fochville, including the new English- speaking learners:
48.1 declaring that the children of the Fifth to further Respondents listed in NOM1 have a right to receive education at Hoërskool Fochville with English being their medium of instruction;
48.2 directing the provincial government authorities to engage meaningfully with the SGB and the children about:
48.2.1 Whether the children of the Fifth to further Respondents listed in NOM1 will remain in Hoërskool Fochville beyond 2013;
48.2.2 Whether any further English speaking children will be admitted to Hoërskool Fochville; and
48.3 If the children of the Fifth to further Respondents are going to remain in Hoërskool Fochville and/or if more English speaking children are admitted to Hoërskool Fochville then the parties are directed to engage to determine the resources and support required, including whether and to what extend the following may be required:
18.104.22.168. additional teachers;
22.214.171.124. additional infrastructure
126.96.36.199. additional financial support;
188.8.131.52. counselling and/or mediation and/or education on diversity for the children;
184.108.40.206. additional Afrikaans tuition for the English-speaking children.
49. It is respectfully submitted that this relief will be in the best interests of all the children at Hoërskool Fochville, will enable the parties to move towards nding a constructive solution to the challenges facing the school and the provincial authorities and, most importantly, safeguard the right to a basic education of the 37 children. It is submitted that an engagement order provides the best legal mechanism to enable the parties to work together to nd creative and appropriate solutions.
50. Accordingly an order is sought in the following terms:
50.1 granting the CCL leave to intervene in order to represent the children of the Fifth to further Respondents listed in NOM1;
50.2 declaring that the children of the Fifth to further Respondents listed in NOM1 have a right to receive education at Hoërskool Fochville with English being their medium of instruction;
50.3 directing the provincial government authorities to engage meaningfully with the SGB and the children about:
50.3.1 Whether the children of the Fifth to further Respondents listed in NOM 1 will remain in Hoërskool Fochville beyond 2013;
50.3.2 Whether any further English speaking children will be admitted to Hoërskool Fochville; and
50.4 If the children of the Fifth to further Respondents are going to remain in Hoërskool Fochville and/or if more English speaking children are admitted to Hoërskool Fochville then the parties are directed to engage to determine the resources and support required, including whether and to what extend the following may be required:
220.127.116.11. additional teachers;
18.104.22.168. additional infrastructure
22.214.171.124. additional financial support;
126.96.36.199. counselling and/or mediation and/or education on diversity for the children;
188.8.131.52. additional Afrikaans tuition for the English-speaking children.
Carina du Toit
AFFIRMED AND SIGNED before me at PRETORIA on this the 18TH day of DECEMBER 2012, the Deponent having acknowledged that she knows and understands the contents of this Affidavit, and that the contents are true, that she has no objection to this affidavit, and that the oath to be binding on his conscience.
Commissioner of Oaths
In the Constitutional Court of South Africa
CASE NO. CCT 135/2012
In the matter between:
Member of the Executive Council for Education in Gauteng Province
Head of Department: Gauteng Department of Education
District Director Johannesburg East D9: Gauteng Department of Education
The Governing Body of the Rivonia Primary School
Rivonia Primary School
First Amici curiae
Centre for Child Law
Second Amici curiae
Written Submission on Behalf of Equal Education and the Centre for Child Law (AMICI Curiae)
1. The Centre for Child Law (CCL) and Equal Education (EE) were admitted as amici curiae (separately) in the High Court. The CCL obtained an order in that court that the identity of the child in this matter not be made public. Both the CCL and EE made submissions regarding the powers of the parties in respect of admissions. In view of their concordance of views on the central questions in this matter and in order to avoid a proliferation of amici curiae, the two organisations have participated jointly as amici curiae on appeal in the Supreme Court of Appeal (SCA) and in this Court.
2. Both EE and the CCL are committed to securing an equal and quality education for every child in South Africa. EE and the CCL ght – not against government, school governing bodies (“SGBs”) or any particular role-player – but against the inequalities pervading our current educational system, in which a handful of schools previously reserved for white learners educate a small minority of learners with a disproportionate share of available resources while schools formerly reserved for black (mostly poor) learners struggle to use minimal resources to provide even a basic education for huge numbers of learners.
3. The decision of the SCA in this matter has the potential to undermine the government’s duty to ensure that all learners are accommodated in schools and to distribute educational resources equitably. This outcome would make it impossible for EE and CCL to achieve their missions.
4. The amici curiae do not seek to take any particular position in respect of the lawfulness of the conduct of the parties in this matter in respect of the admission of the learner. In any event, the respondents abandoned the relief originally sought in respect of the learner.
5. The amici curiae also do not address submissions on the provincial legislation and regulations, or the provincial circulars and policy documents. These instruments vary from province to province and time to time. EE and CCL are concerned rather with determining more durable principles regarding the allocation of roles and responsibilities under the South African Schools Act 84 of 1996 (“the SA Schools Act”).
6. The amici curiae con ne themselves to the central legal question underlying the appeal: To what extent does the SA Schools Act vest in government and SGBs the power to act in respect of admission of learners to public schools and to determine the capacity of public schools?
7. In approaching this question, however, EE and the CCL adopt a di erent perspective to those of the parties. Whereas both sets of principal parties focus primarily on the respective powers of SGBs and government, EE and CCL seek to approach the question from the perspective of the effect on children seeking admission at public schools. In this regard, there are two important points of departure for the amici curiae.
8. First, from the point of view of EE and the CCL, the present matter goes far beyond the interests of the specific child whose admission gave rise to this litigation.
8.1 The parties to the litigation have in any event agreed that the child will remain at the school, whatever the outcome of the litigation.
8.2 Rather, EE and CCL contend that what is critically at stake in this matter is the relationship between the powers of SGBs, on the one hand, and provincial Departments of Education, on the other, with regard to the admission of learners.
8.3 In determining these powers, it is necessary to consider the broader socio-economic context, in particular the legacy of inequality in education, which threatens the constitutional rights to equality and to a basic education. The SCA erred in consciously excluding this context from consideration.
8.4 The amici curiae accordingly make submissions on the context that must inform the interpretation of the legal provisions in issue in this matter.
9. Second, what is necessary in this regard is an interpretation of the relevant legislation and the Constitution which produces an appropriate balance between the powers of SGBs and provincial Departments of Education.
9.1 This appropriate balance is not achieved by permitting such Departments little or no power to override the admission decisions of an SGB, which appears to be the implication of the SCA judgment and the argument advanced by Rivonia Primary before this Court.
9.2 This appropriate balance is also not achieved by allowing such Departments to freely and with little constraint override the admission decisions of an SGB, which might appear to be the implications of the argument advanced by the MEC before this Court.
9.3 A zero-sum result in favour of either of the sets of principal parties does not t with the constitutional or statutory scheme and would impact detrimentally on children seeking access to public schooling.
Interpretive Context – Inequality in Education
Interpretation in Terms of Section 39(2) – Purpose and Context
10. Section 39(2) of the Constitution provides that “[w]hen interpreting any legislation … every court … must promote the spirit, purport and objects of the Bill of Rights.” (emphasis added)
11. The basic application of section 39(2) was authoritatively laid down in Investigating Directorate: Serious Economic O ences and Others v Hyundai Motor Distributors (Pty) Ltd and Others. Langa DCJ expressed the basic principle that “judicial officers must prefer interpretations of legislation that fall within constitutional bounds over those that do not, provided that such an interpretation can be reasonably ascribed to the section.”
12. In a line of decisions since Hyundai, this Court has adopted a contextual and purposive approach to statutory interpretation, which expressly requires courts to “have regard to the context in which the words occur, even where the words to be construed are clear and unambiguous.”
13. The context is not limited – as the SCA approached it – merely to textual context. The Constitution – and, by extension, statutes interpreted in terms of section 39(2) – “must be understood as responding to our painful history and facilitating the transformation of our society so as to heal the divisions of the past, lay the foundations for a democratic and open society, improve the quality of life for all and build a united and democratic South Africa.” This Court has emphasised that courts must pay “close attention to the socio-economic and institutional context in which a provision under examination functions.”
The SCA’s Failure to Consider the Socio-Economic Context
14. The SCA rejected the submissions of the amici curiae regarding context and adopted a de-contextualised approach that is inconsistent with the requirements of the Constitution when interpreting legislation, especially legislation that engages constitutional rights. The SCA’s de-contextualised approach is apparent from the following:
14.1 The SCA began by noting that Rivonia Primary “happens” to be “a school located in an a uent, historically white suburb, where a little more than half of the learners were white” but held that these facts were not “relevant” to the appeal.
14.2 In considering the arguments advanced by the amici curiae regarding the interpretation of sections 3(3) and 3(4) of the SA Schools Act, the SCA purported to adopt both a “plain reading” of the provisions and a “contextual reading”. However, the “contextual” reading is limited to the other provisions of the SA Schools Act.
14.3 The SCA then employed certain of the facts of the specific case – having earlier held that the factual position of Rivonia Primary was not relevant – to hold that the reliance on sections 3(3) and 3(4) was “misplaced” because the child was not faced with the problem that she would not be able to attend a school as she had already been admitted to another school. The SCA held that, on the specific facts of the case, the child’s rights to a basic education and to equality were not threatened. In other words, the SCA adopted the facts of this case as the context against which to interpret the legislation, excluding the broader socio-economic context.
14.4 Finally, the SCA characterised the arguments of the applicants regarding the legacy of inequality in education as “the ugly spectre of race”, holding that there was no evidence of direct racial discrimination against the specific child. The SCA accordingly took a narrow view of equality and considered only the portion of the right to equality that prohibits (direct) unfair discrimination on grounds of race. The SCA erred in this respect. As this Court held in Van Heerden,
“our Constitution heralds not only equal protection of the law and non-discrimination but also the start of a credible and abiding process of reparation for past exclusion, dispossession, and indignity within the discipline of our constitutional framework.”
15. As this Court held in Van Heerden, our Constitution embraces a “conception of equality that goes beyond mere formal equality and mere non-discrimination which requires identical treatment”.
16. It is not necessary to establish that Rivonia Primary has unfairly discriminated against learners in order to contend that laws applicable to the school should be interpreted so as best to address the systemic inequality in education. To the extent that schools that are in a relatively better position may perceive this approach to impose an unfair burden, it is a burden that the Constitution requires, as Sachs J explained in his separate concurring judgment in Van Heerden:
“For as long as the huge disparities created by past discrimination exist, the constitutional vision of a non-racial and a non-sexist society which reflects and celebrates our diversity in all ways, can never be achieved. Thus, though some members of the advantaged group may be called upon to bear a larger portion of the burden of transformation than others, they, like all other members of society, benefit from the stability, social harmony and restoration of national dignity that the achievement of equality brings.”
17. Moreover, this context of inequality is particularly acute in the education environment. O’Regan J recognised this in her partially dissenting judgment in MEC for Education: KwaZulu-Natal v Pillay. She stressed that, although the position of black children in the post-apartheid period has “improved somewhat”, the “pattern of disadvantage engraved on our education system by apartheid has not been erased”. O’Regan J observed that “although the law no longer compels racially separate institutions, social realities by and large still do.”
18. Nowhere in its judgment does the SCA acknowledge the socio-economic context beyond the facts of the immediate case. To the contrary, the SCA expressly excludes the broader context from consideration. On the SCA’s approach, the rights to a basic education and equality are irrelevant to the matter unless the specific facts reveal that a child was denied access to a public school because of her race.
The Contextual Factors Relevant to Interpreting the SA Schools Act
19. EE and the CCL therefore contend that a proper interpretation of the relevant provisions of the Constitution and the relevant provisions of SA Schools Act must accordingly take account of, among others, the following considerations and legal principles:
19.1 The duty of all courts to interpret all legislation in a manner that “best” promotes the spirit, purport and objects of the Bill of Rights, provided that this does not produce an interpretation that is unduly strained;
19.2 The right of access to a basic education enshrined by section 29(1)(a) of the Constitution, which right is “immediately” realisable and not subject to the “availability of resources” or to “reasonable legislative measures” and which right is critical to the achievement of human dignity and equality;
19.3 The need for government to have the ability to intervene, in appropriate circumstances and subject to the various constraints that we outline below, in order to ensure an equitable distribution of learners across all schools. This is necessary for government to fulfil its obligation under section 7(2) of the Constitution to “respect, protect, promote and fulfil” the rights to equality and a basic education;
19.4 South Africa has yet to undo the painful legacy of our apartheid history in which white public schools enjoyed the resources lavished by government and relatively a uent white communities, while black public schools were doubly deprived by deliberately inadequate government funding and the relatively impoverished conditions of black communities;
19.5 The constitutional imperative to transform the current unequal basic education system is therefore aimed both at redressing past injustices and breaking the cycle of poverty that reproduces the patterns of class and racial inequality generation after generation.
The Difficulties Caused by the SCA’s Interpretation
20. It may be that the SCA was correct to express unhappiness about the conduct of the government o cials in this case. However, even if that is so, the legal principles and interpretations adopted by the SCA in its judgment have the potential to undermine the government’s power to equitably distribute educational resources and to ensure a public school place for every South African learner.
21. This is especially the case given that if the judgment of the SCA turns primarily on the interpretation of the SA Schools Act, which applies to all nine provincial education departments.
22. In light of the broader context we have already outlined, the SCA judgment gives rise to a variety of practical difficulties:
22.1 If individual schools were able to almost entirely determine their own capacities, better resourced schools could use that power to fortify existing inequalities.
22.2 What would happen if a large number of such schools grouped together and decided to alter their admissions policies to reduce the number of children they would accommodate, in the name of upholding their own learners’ rights to education? On the approach of the SCA, it appears that the MEC would be largely powerless to intervene save by building further schools. Whilst building further schools is a crucial power and duty of an MEC, it should not be the only recourse, particularly not in the short-term.
22.3 Similarly, even assuming there was no change of stance by the schools, what is the position if the MEC were to nd at the commencement of a school year that there are given children in a specific area that simply cannot be accommodated by any of the schools in the area according to their admissions policies? This scenario would be more acute in a rural context where schools are spaced signi cantly apart. Such a situation could arise due to an unexpected increase in the number of children presenting themselves for registration in Grade 1 or for some other reason. Whatever the reason, it cannot be that the MEC is prevented from assisting those children.
22.4 These are not merely theoretical concerns. The problems and intense debates about how to accommodate learners occur at the beginning of every school year in various parts of the country.
23. At the same time, the amici curiae are acutely mindful of the fact that providing proper education for all learners cannot be achieved only by accommodating learners in existing schools. There is a statutory and constitutional duty on the State to provide additional educational facilities where this is necessary, albeit that doing so may take some time.
National and Provincial Government and SGBS All Have Roles to Play in Determining School Capacity
The Common Interests to be Served by SGBS and Government
24. The contextual approach outlined above requires that the provisions of the SA Schools Act must be interpreted as a whole, rather than focusing on section 5(5) in isolation. In addition, it is necessary to ask which interpretation best promotes the rights to a basic education and equality in a context of systemic inequality in access to public schooling.
25. SGBs play a key role as part of the State apparatus designed to secure the provision of the right to education under the Bill of Rights. However, while an SGB is primarily tasked with looking after the interests of the school and its own learners, it must also manage the public resources entrusted to it in the interests of the broader community and in light of the values of the Constitution.
26. It is thus submitted that school capacity is a matter in respect of which government in the national and provincial spheres and SGBs all
have roles to play. Initially, both sets of principal parties asserted exclusive powers in relation to school capacity. However, the principal parties have both partially softened their initial positions during the course of the litigation:
26.1 The applicants now accept that admissions policies adopted by SGBs can deal with capacity, though that policy cannot in exibly bind a provincial department.
26.2 Rivonia Primary now expressly accepts that its admissions policy must be applied in a exible manner, and appears to accept a narrow form of appeal (in terms of Regulation 13 of the previous Gauteng Regulations), provided that such decision is “in accordance with the admissions policy”.
27. However, both sets of parties still contest the primary or decisive power to decide when a school is full and whether it should admit a child.
28. The amici curiae stress that the SGB does not have interests separate or at odds with the government. Both must be committed to o ering a basic education to all children in the area, not only those children who happen to be enrolled at the school. In the words of this Court in Laerskool Generaal Hendrik Schoeman: SGBs are “part of the State apparatus designed to secure the provision of the right to education under the Bill of Rights.”
29. In order to serve this common set of interests, the SA Schools Act confers powers in respect of capacity of public schools on national government, provincial government and SGBs.
The Powers of National Government, SGBS and Provincial Government
30. It is important to bear in minds that there are three role-players with powers and duties in respect of admissions and capacity issues.
31. First, government at the national level has the ultimate power and duty to establish the enrolment capacity of public schools in terms of section 5A(1)(b) of the SA Schools Act.
31.1 The fact that the Minister for Basic Education has not exercised the power to make such norms and standards is a matter for great regret. Recognising this, when this matter was before the High Court Mbha J directed that his ndings regarding the need for norms and standards on capacity be drawn to the attention of the Minister as a “recommendation”. The concerns motivating Mbha J were entirely well-founded.
31.2 The Minister’s failure to make such norms and standards, however, certainly does not, however, disable the Provincial Education Departments from themselves dealing with questions of admission and capacity. To the extent that Rivonia Primary contends otherwise, it is incorrect.
32. Second, an SGB has its own autonomous power to adopt an admissions policy, in terms of section 5(5) of the SA Schools Act. The power to do so includes the power of the SGB to make a determination of the capacity of that school.
32.1 It is clear that an admissions policy may address capacity from section 5A(1)(b), which provides for the Minister to prescribe norms and standards for “capacity of a school in respect of the number of learners it can admit” and section 5A(4), which requires an SGB to review any policy adopted in terms of section 5(5) to ensure that it complies with the norms and standards made by the Minister.
32.2 In addition, it is appropriate that an SGB should make the initial determination of capacity because it is in the best position to do so, given its knowledge of its own resources. However, although legally obliged to take into account systemic capacity needs beyond its own school and learners, an SGB is not well-placed to know what the capacity needs are in its district or province.
33. Third, government at the provincial level also has signi cant powers in relation to admissions to and the capacity of public schools.
33.1 The powers include powers of a general, standard-setting nature, such as section 58C(6) of the SA Schools Act, as well as the power to act directly in response to a particular learner’s application to a specific school.
33.2 These provisions must be read with the obligation on the MEC, contained in sections 3(3) and (4) of the Act, to ensure that there are enough school places so that every child who lives in the province can attend school.
33.3 Section 3(3) imposes an obligation on the MEC to ensure that there is sufficient capacity so that each individual child in the province can attend a public school. Section 3(4) imposes an additional, remedial obligation on the MEC, if she is unable to comply with the obligation under section 3(3), to take steps to remedy such lack of capacity as soon as possible.
33.4 Sections 3(3) and (4) impose two types of obligation (and power) on the MEC:
33.4.1 The first is to take steps, at a provincial and systemic level, to increase capacity within di erent parts of the province. This may entail building new schools, increasing the capacity of existing schools by building new classrooms, and taking similar steps. (The respondents appear to accept that the provisions impose this obligation, but contend that sections 3(3) and 3(4) go no further.)
33.4.2 The second is to take individualised action to ensure that “every child” is able to attend school and to take steps “as soon as possible” to remedy any lack of capacity preventing any child from attending school. Importantly, this obligation is only triggered when, on the facts, there is a threat that a child will be prevented from accessing a public school due to lack of capacity.
33.4.3 It is submitted that the obligation in section 3(3) has two related but distinct components. The first obligation is to ensure that there are enough school places. The second obligation is to ensure that every child in the province can attend school. The second obligation cannot be totally subsumed under the first. In other words, the obligation should not be reduced simply to the act of building classrooms numerically sufficient, in theory, to accommodate the aggregate of all learners in the province. The MEC is also duty-bound to utilise the full range of his or her powers to ensure that every child can attend school.
33.5 It is submitted that the powers of MECs under sections 3(3) and 3(4) should ideally be exercised in terms of regulations made or policies adopted by provincial government in respect of the capacity of public schools. This will ensure that the first power to take steps at a systemic level is embodied in a carefully developed policy that sets out the objectives of the relevant provincial government in respect of capacity. The making of regulations or adoption of a policy will also guard against the arbitrary exercise of the second, remedial power to act in respect of individual learners who are threatened with exclusion from a public school due to capacity constraints.
33.6 However, the absence of such regulations or policies cannot mean that the provincial government is disabled from acting regarding admissions and capacity where this is what the circumstances demand.
34. In the next section we make submissions on how these powers are reconciled and an appropriate balance is struck.
Striking and Appropriate Balance
The Admissions Policy of the SGB Must be the Starting Point
35. While the SGB may make the initial determination of capacity in its admissions policy, the SGB admissions policy and determination of capacity is not binding on the relevant HoD or MEC. It also cannot be applied rigidly and in exibly by any party concerned, including both public schools and government actors. Rather, the policy and determination of school capacity is the starting point for the consideration of whether to admit given learners.
36. In Ermelo, Moseneke DCJ held that SGBs must determine their language policy – and by logical extension, also their admissions policy – with regard to the broader social context in which they operate:
“The governing body of a public school must … recognise that it is entrusted with a public resource which must be managed not only in the interests of those who happen to be learners and parents at the time but also in the interests of the broader community in which the school is located and in the light of the values of our Constitution.”
37. While the power to determine an admissions policy vests “in the first instance” in SGBs, that power must be understood within the broader constitutional scheme, including the right to education, that we have described above.
38. The Court in Ermelo also emphasised the vital role of government in regulating the language (and admissions) policies of schools. Permitting the power to rest exclusively with school governing bodies would be “inconsistent” with the State’s duty to ensure that there are enough school places for every child who lives in a province (s 3(3) of the Schools Act) and its duty to ensure that a public school must admit learners without unfairly discriminating in any way (s 5(1) of the Schools Act).
39. To translate this Court’s comments on lan- guage policy in Ermelo to the context of admis- sion policies, the respondents’ “insular construc- tion of s 5(5) would in certain instances frustrate the right to [a basic education] and therefore thwart the obvious transformative designs of sec- tion [29(1)] of the Constitution.”
40. The amici curiae accordingly contend that section 5(5) does not and should not be interpret- ed to include the unquali ed power to determine a school’s maximum capacity.
41. In circumstances in which capacity limits threaten to prevent one or more children from attending a public school within a province, the MEC – quite apart from his obligation to take positive steps to increase overall capacity (by building schools and increasing infrastructure) – has the power under section 3(4) to intervene in relation to one or more schools to ensure that children threatened with being deprived of access are accommodated. In those circumstances, this power is not ultimately subject to the contents of any admission policy adopted by a school govern- ing body, as this would render it impossible for the MEC to discharge this obligation.
42. This power exists in addition to the HoD’s power under section 22 of the SA Schools Act to remove the function of an SGB to determine its admissions policy. The section 22 power permits the HoD to take over the function of determining the school’s admissions policy. The MEC’s power under sections 3(3) and 3(4) does not permit her to take over the determination of the admissions policy. It does permit her to establish the policy basis upon which questions of school capacity should be determined by SGBs, and to take remedial steps to ensure that every learner is accommodated in a manner that maintains a fair allocation of educational resources in the province.
43. Accordingly, the relevant MEC/HOD may override an SGB’s admissions policy and determination of capacity and direct that further learners be admitted into the school. While this power derives in the first place from sections 3(3) and 3(4) of the SA Schools Act, individual provinces may also make regulations (as Gauteng has done) and adopt policies to guide the exercise of this power and ensure that it is exercised in a fair and non-arbitrary manner.
Constraints on the ‘Override’ Power of Provincial Government
44. However, in order for the ‘override’ power to strike an appropriate balance between provincial education departments and SGBs, it is critical that it be subject to various constraints.
45. The amici curiae submit that, in interpreting the relevant statutory provisions in light of the context and relevant constitutional provisions, this Court should clarify that the following constraints exist in this regard:
45.1 The SGB’s admission policy and determination of capacity must form the starting point for the enquiry of the MEC/HOD.
45.2 The MEC/HOD may only depart from the SGB’s admission policy and determination of capacity in a procedurally fair manner, meaning that the SGB must be a orded an adequate opportunity to make representations and reasons must be provided for any such departure.
45.3 The MEC/HOD must act lawfully and comply with whatever regulations are applicable in a province to govern the exercise of the power.
45.4 The MEC/HOD may only depart from the SGB’s admission policy and determination of capacity where there is good cause to do so.
45.5 In determining what constitutes good cause, MEC/HOD must have regard to all relevant considerations, including:
45.5.1 The number of learners having to be placed at the school;
45.5.2 Whether the learners seeking placement are on the A waiting list or the B waiting list of the school and, if not, the reasons for this;
45.5.3 The alternatives for placement of the learners;
45.5.4 The relative capacity constraints of other schools in the areas in which the learners live or in which their parents work;
45.5.5 The cost implications for the school concerned of the placement of the learners; and
45.5.6 The extra facilities that may be required at the school concerned due to the placement of learners, including additional teachers, classrooms, toilets and so on.
46. In the event that the placement of children by the MEC/HOD at the school is over and above the SGB’s determined capacity and will produce additional costs or require additional resources which the school cannot reasonably be expected to accommodate within its existing budget, the MEC/HOD must make available those resources.
46.1 This is necessary so as not to undermine the obligation of an SGB in terms of section 36(1) of the SA Schools Act to “take all reasonable measures within its means to supplement the resources supplied by the State in order to improve the quality of education provided by the school to all learners at the school”. Where SGBs have taken steps to supplement resources and improve their facilities, such e orts should be complemented, not undermined, when provincial departments act to increase the demand on the schools’ resources.
46.2 Where a provincial government places additional children at a school, it may be necessary to couple the exercise of that power with the provision of additional educators on the post establishment of the school and providing additional infrastructure.
47. At the same time, this Court should make clear that providing proper education for all learners cannot be achieved only by accommodating learners in existing schools. There is a statutory and constitutional duty on the State to provide additional educational facilities where this is necessary, albeit that doing so may take some time.
48. In summary, the amici curiae make the following submissions:
48.1 The SCA erred in interpreting the provisions of the SA Schools Act without having regard to the socio-economic context, in particular the systemic inequality that persists in public education in South Africa.
48.2 Interpreted so as best to promote the rights to equality and to a basic education, the SA Schools Act confers powers in respect of admission to, and capacity of, public schools on SGBs and on government in the national and provincial spheres.
48.3 Government and SGBs serve common interests in this regard – the interests of all children seeking access to public schooling. They should strive to exercise their powers in a co-operative and constructive spirit.
48.4 The Minister has the power to make norms and standards on capacity and, in order to facilitate the implementation of the SA Schools Act and to ful l the right to a basic education, she should make such norms and standards. In the absence of norms and standards, however, SGBs and provincial government nevertheless have powers in relation to the determination of school capacity.
48.5 The starting point is the power of an SGB to adopt an admissions policy that includes an initial determination of capacity in terms of section 5(5).
48.6 However, when an SGB has determined the capacity of a school at a certain gure in an admissions policy, that determination is not binding on either the SGB or government. Provincial government has the power – in terms of sections 3(3) and 3(4) of the SA Schools Act and any applicable provincial regulations – to intervene to admit children in excess of the initial capacity determination of the SGB.
48.7 However, the provincial government must act lawfully, reasonably and procedurally fairly in intervening in this manner, and do so only where there is good cause to depart from the SGB’s policy. We have outlined above the considerations that must be taken into account in this regard.
48.8 In the event that the placement of children by the MEC/HOD at the school is over and above the SGB’s determined capacity and will produce additional costs or require additional resources which the school cannot reasonably be expected to accommodate within its existing budget,, the MEC/HOD must make available those resources.
49. It is therefore respectfully submitted this Court should uphold the appeal against the decision of the SCA and, in doing so, provide guidance to provincial governments and SGBs regarding an appropriate balance between their respective powers.
50. The amici curiae do not seek an order as to costs.
Counsel for Equal Education and the Centre for Child Law (amici curiae)
Chambers and the Legal Resources Centre
18 April 2013
List of Authorities
South African Schools Act 84 of 1996
- Bato Star Fishing (Pty) Ltd v Minister of Environmental A airs and Tourism and Others 2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC)
- Centre for Child Law and Others v Minister of Basic Education and Others  4 All SA 35 (ECG)
- City Council of Pretoria v Walker 1998 (2) SA 363; 1998 (3) BCLR 257 (CC)
- Du Toit v Minister for Safety and Security and Another 2010 (1) SACR 1 (CC); 2009 (12) BCLR 1171 (CC)
- Governing Body of the Juma Musjid Primary School & Others v. Essay N.O. 2011 (8) BCLR 761 (CC)
- Head of Department: Mpumalanga Department of Education and Another v Hoërskool Ermelo and Another; 2010 (2) SA 415 (CC)
- Investigating Directorate: Serious Economic O ences and Others v Hyundai Motor Distributors (Pty) Ltd and Others 2000 (10) BCLR 1079 (CC); 2001 (1) SA 545 (CC)
- Laerskool Generaal Hendrik Schoeman v Bastian Financial Services (Pty) Ltd 2012 (2) SA 637 (CC)
- MEC for Education: KwaZulu-Natal v Pillay 2008 (1) SA 474 (CC)
- Minister of Finance and Others v Van Heerden 2004 (6) SA 121 (CC)
- South African Police Service v Public Servants Association 2007 (3) SA 521 (CC);  5 BLLR 383 (CC)
- Wary Holdings (Pty) Ltd v Stalwo (Pty) Ltd and Another 2009 (1) SA 337 (CC)
- Academic authorities
- C Hoexter Administrative Law in South Africa (2 ed, 2012)