Following landmark legal action in June concerning school fees, the education department has revealed it is now working out how to compensate schools for fee exemptions. The larger issue of free education was discussed at the ANC policy conference at the end of June.
Department Director General Duncan Hindle was responding to questions the Teacher put to him in light of the previous Friday’s court order directing Durban’s Hunt Road Secondary School to comply with legislation concerning fee exemptions.
The application to the Durban High Court had been brought by Wits University’s Centre for Applied Legal Studies (Cals) and Audrey Ngubane and Emily Ngwira, two single, unemployed mothers of pupils attending Hunt Road. The South African Human Rights Commission (HRC) supported the application as a friend of the court.
The respondents were the school, its governing body, national Education Minister Naledi Pandor and KwaZulu-Natal Education Minister Ina Cronjé
The applicants argued that the school failed to implement key elements of fee-exemption policy, such as informing parents in writing of their rights to exemptions and how to apply. They also said the school had unlawfully obtained debt judgements against the two mothers, and that Cals had obtained court orders rescinding these judgements during the past 18 months.
The action aiming to compel Hunt Road to comply with fee-exemption laws was set down for argument, but the applicants and the school reached an agreement beforehand that then became an order of the court.
The order interdicts the school from proceeding with any debt actions instituted against parents for unpaid fees unless it can show that those parents would not have qualified for exemptions. The school is also required to write to all parents informing them of the exemptions policy and inviting them to apply, as well as to process all applications received and advise parents who are refused exemptions of their right to appeal and how to do this.
“The order was an unequivocal victory,” said Cals advocate Faranaaz Veriava. She said Cals initiated the action as a test case to begin “to address the nationwide, systemic failure on the part of many schools to enforce the legal framework protecting poor parents and learners who cannot afford school fees.”
But the case “illustrates that we are dealing with an irrational policy,” she said, especially the legal framework’s failure to provide for compensation to schools who do grant exemptions.
The schools attorney, Ken Dixon, said he did not think the school would survive: “The combination of the schools inability to collect outstanding fees and underfunding from the KwaZulu-Natal education department is going to have a devastating effect on the school.”
Hindle said: “We are pleased with the outcome of the case, which essentially requires schools to comply with the legislation.” Pandor “has raised, in various forums, the need to compensate schools for their exemptions, and details of this are being worked out at present.”
He rejected the school’s argument in its papers that if the court granted the Cals application, this “would have a highly detrimental effect on the continued existence of the school.”
“We would not have drafted policy that had such an effect,” said Hindle. “And the fact that other schools are complying with the policy and still exist is evidence of this.”
But the ANC was considering the costs of schooling, he said. “The key debate is whether to adopt a horizontal split, to provide [for example] free primary schooling for all, even the rich, or a vertical split, to support the poor at all levels of the system.”
While welcoming the outcome of the case, the HRC drew attention to acting judge Gavin Morley’s “concern that the department of education, both at national and provincial level, was not represented” and his “dissatisfaction at the fact that the school was not properly funded.” The HRC also said it intended to engage with the department and the school on these issues.
Responding to the judge’s first concern, Hindle said that Pandor “chose not to defend the action”. On the second, he said: “I am not sure what [the judge] would regard as a school being properly funded. Unless he also has ideas about how to generate the funds to ensure all schools are properly funded, according to his definition, I am not sure he should venture such opinions.”