Late last year, Education Minister Naledi Pandor announced that 40% of learners countrywide would benefit from fee-free schooling in 2007. At about the same time, the department of education defeated an application brought by 17 historically Model C schools in the Pietermaritzburg area in which they sought to suspend the implementation of their obligations under new regulations exempting parents from the payment of school fees.
From these developments it would appear that, more than a decade into post-apartheid education, we have finally succeeded in creating a pro-poor legal framework for schools funding, guaranteeing learners access to their constitutional right to a basic education. Yet closer scrutiny suggests that aspects of this framework remain constitutionally questionable due to flaws in both conception and implementation.
The key features of the legal framework are:
- State provisioning for non-personnel expenditure for schools by ranking schools into quintiles, from the poorest to the least poor, and funding them accordingly.
- The establishment of no-fee schools.
- In fee-paying schools, the exemption policy is improved. The new formula is meant to factor into a determination of exemption eligibility the number of dependants parents have attending fee-paying schools. Also significant is the rule placing the onus on a school to prove that it has implemented the regulations before taking legal action against a parent.
But certain major flaws restrict the pro-poor potential of the new framework. First, the method used for ranking schools is flawed. Schools are ranked based on the wealth of surrounding communities. This fails to take cognisance of certain post-apartheid realities. Learners from poor communities travel to other areas to attend better-resourced schools for improved educational opportunity. In areas such as informal settlements, where there is no infrastructure, learners have no choice but to travel to schools in other areas.
As a result, there are many schools in wealthier communities that cater for poorer learners. These schools are inaccurately ranked and, as a direct consequence of this, they receive low state allocations. Given the absence of sufficient fee revenue, combined with insufficient state funding, these schools exist in deteriorating conditions.
Second, there is widespread non-implementation of the exemption policy at fee-paying schools. The exemption policy is premised on the notion that a poor learner can attend any school he or she wishes: his or her parents need only apply for a fee exemption if eligible. But research suggests that, despite the simplification of the formula at fee-paying schools, the exemption policy is unlikely to succeed. This is because schools risk losing essential fee revenue by granting exemptions and, in the absence of any incentive — such as being compensated for exemptions, or being sanctioned for breaking the law — they will continue not to implement the policy.
Many schools do not have exemption policies in place. In research interviews with principals, many speak of the ”strategies” they employ to collect school fees, many (or all) of which are unlawful. These include expulsion, threats of expulsion, threats of denying learners the chance to write exams and the withholding of reports and textbooks. The Pietermaritzburg schools’ defeated attempt to challenge the new regulations was yet another bad faith ”strategy” by the schools to flout their obligations. No doubt, other schools will devise more ”strategies”.
The Constitution entrenches the right to a basic education. In the well-known Grootboom case, the Constitutional Court acknowledged that state policy in respect of socio-economic rights must address the needs of the ”poor” and ”vulnerable”. The standard of review it established in respect of socio-economic rights was to determine whether state measures were reasonable in progressively facilitating access to the right in question. One of the criteria for evaluating reasonableness entails an inquiry into whether a policy is reasonable both in conception and implementation.
A framework that fails to accurately rank a school to ensure adequate funding is conceptually flawed. To the extent that school authorities ignore the obligations of the exemption policy, the framework cannot be implemented. These flaws raise concerns about the constitutionality of the new framework.
Faranaaz Veriava is a lawyer based at the Centre for Applied Legal Studies at Wits University