The Rivonia school admissions saga might have been avoided if Minister Angie Motshekga had published norms and standards for school capacity.
"If the minister had published norms and standards for school capacity then schools would know exactly how admissions should happen," said director for the Centre for Child Law at the University of Pretoria, Ann Skelton.
In 2011 Rivonia Primary School refused admission to a grade one pupil saying the school was full. The Gauteng education department intervened, instructing the school to accept the pupil, but the battle between the school's governing body and the department still went to court.
The South Gauteng High Court ruled in favour of the department, which claimed it had the final say in school admissions. The matter only got hotter when the Supreme Court of Appeal overturned this decision in December last year in favour of the school governing body. Now, the department has appealed to the Constitutional Court in an attempt to contest this.
"Could all the drama have been avoided? Yes, it's very likely having norms and standards in place would have solved much of the problems around school admissions by setting out what is acceptable in terms of class sizes," Skelton said.
Motshekga weighed in on the fiery debate two weeks ago, saying that if the application to the Constitutional Court was unsuccessful, she would change the law because she had a public duty to ensure that every school pupil had a place at school.
Minimum norms and standards
It is quite possible that the Rivonia case may not have arisen in the first place if provincial education departments were acting in terms of minimum norms and standards for school capacity, said director of the Equal Education Law Centre, Dmitri Holtzman, "or at least it would have been quite a different case".
The Centre for Child Law and Equal Education intervened in the matter as amici curiae because, they argued, the South African Schools Act requires that the final decision about a school's capacity rests with the provincial education minister.
The groups agreed that a school governing body can have its own admissions policy but, they said, it should include what it thinks the capacity of its school should be and that this must be in line with the provincial education minister's policy.
The Schools Act provides the minister with the authority to develop regulations relating to the capacity of schools, Holtzman said, and these would give clarity on "the way in which the capacity of schools is determined, and who should have the final say on what a school's capacity is".
No such regulations have been adopted by the minister, he said.
Certain problems around the powers of school governing bodies might have persisted, Skelton said, but until those norms and standards are set "we might see sagas like the Rivonia case carrying on cropping up".
Spokesperson for the Gauteng education department, Charles Phahlane, said he "could not comment" on the absence of these norms and standards.
The basic education department did not respond to questions by the time of publication of this story.