The head of the provincial department of education has ultimate control over how many pupils can be admitted to a school, the Constitutional Court said on Thursday.
" … the school governing body may … determine capacity as part of its admissions policy. However, this power is subject to other provisions … which states that the department maintains ultimate control over the implementation of the admissions decisions," the court said in its summary of the judgment.
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 (SGB) and the department continued in court.
The South Gauteng High Court at the time ruled in favour of the department, which claimed it had the final say in school admissions. But the matter only got more heated when the Supreme Court of Appeal overturned this decision in December last year in favour of the SGB.
The Constitutional Court said the appeal court "erred in finding that the [head of department] could only exercise … power 'in accordance with the [school's admission] policy'."
Judge AJ Mhlantla also found that the manner in which the head of department had placed the child in the Rivonia school – instructing his officials to go to the school and physically seat the learner at an empty desk – was not procedurally fair.
Mhlantla stated in the judgment that "a decision to overturn an admission decision of a principal, or depart from a school's admission policy, must be exercised reasonably and in a procedurally fair manner".
Co-operation is compulsory, the court said, in disputes between SGBs and national or provincial government.
The judgment is a victory for nongovernmental organisations Centre for Child Law and Equal Education, who are amici curiae to the case.
Who has the final say?
Ann Skelton, director of Centre for Child Law, told the Mail & Guardian that going to court every time there was a dispute of this nature was unfeasible.
"We needed to know who has the final say," she said.
"This does not mean, though, that SGBs have no power – they can still decide what their admissions policies are – the court just said that those policies are not inflexible."
The court emphasising the importance of co-operation between the school and the department in resolving these disputes "was very good", she said.
"We thought that the manner in which the head of department acted left a lot to be desired and was not in the best interests of the child. It is very good that the court said that a co-operative approach must be taken in the future," Skelton said.
She said the Centre for Child Law and Equal Education stood by their position, however, that if the department wanted to place a large number of pupils in a school – about 20 or 30, for example – then the state, and not the school, must provide the resources to accommodate them.