Landmark legal action has pinpointed serious abuses of the legislative power provincial education departments wield over schools.
In April the Free State Department of Education withdrew the powers of Bopasetjhaba Primary School’s governing body, apparently in an attempt to shut the school down. This followed the school governing body’s (SGB) insistence that the department fulfil its promise to build a new school for hundreds of learners who are sharing premises with another school.
Last month the department did an about-turn and restored the SGB’s powers — but only after legal intervention. The department used its powers to withdraw the SGB’s functions in an attempt ”to shut the school down as a means of stifling dissent”, the SGB argued in its application to the Bloemfontein High Court.
The SGB also said the department took the action without consulting it or parents. Wits University’s Centre for Applied Legal Studies (Cals) has been assisting the SGB.
”Since the intervention of Cals, we have been informed of a number of other instances in the northern Free State in which schools have been closed down, or are under threat of closure, without consultation,” said Stuart Wilson, research officer at Cals.
A Cals submission to a ministerial committee on school management and governance, appointed by Minister of Education Kadar Asmal to undertake a review of school governance, says the ”dissent” at Bopasetjhaba was linked directly to the provincial department reneging on its agreement with the governing body to build a new school.
The South African Schools Act says a provincial head of education can withdraw the functions of a governing body ”without prior communication” only in ”cases of urgency”.
The new school the Free State department promised to build is intended to accommodate hundreds of Bopasetjhaba students who have been sharing premises with Lembethe Primary School since 1993.
Construction of the new school was due to start in March this year, but late last year the provincial government informed the SGB that it was postponing this until the 2005/06 financial year.
After the SGB failed to obtain an explanation from the department for the postponement, it approached the Public Protector and the Human Rights Commission. In January, the Sowetan reported on the school’s plight. The SGB governing body finally approached Cals for legal assistance in March.
Soon after the article appeared, ”the provincial department decided to withdraw its promise to construct a new school … the [governing body] did not learn of this decision until well after it was taken … [nor] was it consulted on the provincial department’s decision to close the school down [by withdrawing the governing body’s functions],” said the Cals submission to the ministerial committee. The provincial department also suspended the principal of the school for talking to the press.
In this case the provincial department used its powers to withdraw the Bopasetjhaba SGB’s functions and suspend the principal because, among other reasons, it was alleged that the ”principal and the [governing body] had misrepresented the situation … in the media and the principal had sent learners from his school to gather signatures for a petition demanding the construction of a new school”, said the Cals submission to the ministerial committee.
But ”these allegations were simply being used as a device to thwart the demand for a new school and attempt to close down the existing school unlawfully”, said Cals.
However, the department’s spokesperson, Solly Magalefa, said that ”it is not correct to allege that [its] decision to withdraw the functions of the SGB [was] a smokescreen”.
The decision followed reports of ”irregularities at the school”, including ”alleged threats by the SGB to disrupt classes in the township”.
Kate Savage, the attorney representing the Bopasetjhaba SGB, said, ”This is an important case within the context of school governance … The concern is for more rural communities, which don’t have access to lawyers who can launch proceedings to ensure that schools are allowed to continue functioning properly.
”What one wants to do is to bring a few high-profile cases to ensure that provincial departments know what they are supposed to be doing in terms of the South African Schools Act.”