/ 14 November 2013

Pupils come before school politics

Pupils Come Before School Politics

The Constitutional Court's judgment last month in the dispute between Rivonia Primary and the Gauteng department of education was highly anticipated because of the complex and conflicting interests it needed to mediate.

On the one hand, there is the broad state imperative to ensure that all pupils have access to a basic education and, on the other, there are the interests of parents at individual schools in ensuring the quality of their own children's education.

The dispute arose in 2010 when a pupil was refused a place in grade one at the school for the 2011 academic year. The school argued it had reached its capacity of 120 pupils per grade – the limit stipulated in the admission policy of the school governing body (SGB).

The pupil's mother complained to the department, which argued that the school could accommodate this one additional pupil. The head of the Gauteng department's reasoning included that the school had already exceeded its capacity of 120 by admitting 124 pupils in grade one, and ordered the principal to admit the pupil.

On February 7 2011, the pupil's mother brought the pupil to the school, insisting that the school admit the pupil. The principal refused. The following day, departmental officials arrived at the school and placed the pupil at a desk in one of the school's classrooms.

The school then approached the courts for a determination of whether the department had the power to override the SGB's admission policy – specifically its capacity determination – and thereby direct the school to admit the pupil to the school.

After proceeding through the lower courts, the final appeal on the matter was heard in the Constitutional Court.

Unexpected
The court's judgment in October is distinguishable from previous cases that also addressed the powers of departmental heads to override SGB policies. In the Ermelo language case and the Free State pregnancy case, the Constitutional Court held that the heads of the respective provincial education departments involved did not have the power to override the language and pregnancy policies of individual SGBs.

But, in the Rivonia case, the court ruled that, although SGBs do have the power to determine admission policy in terms of the South African School Act, that power is never final but is subject to provincial confirmation.

"[T]he general position is that admission policies must be applied in a flexible manner," the judgment said. "The capacity determination as set out in Rivonia Primary's admission policy could not have inflexibly limited the discretion of the Gauteng [head of department]. If there were good reasons to depart from the policy, it was always open to the principal or the Gauteng [head of department] to do so."

Here, the court relied on a textual qualifier in the Act that says an SGB determines the admission policy of a public school subject to the broader provisions within the Act and any applicable provincial law.

The relevant Gauteng regulations provided that, if a principal refused to admit a pupil, the principal had to provide reasons to the department, which would then be required either to confirm or to set aside the principal's decision.

Although the court found that the department's head could override the SGB admission policy, it held that this decision was not exercised fairly and the head should have afforded the school an opportunity to make representations defending its decision.

A noteworthy feature of the Rivonia judgment was the inclusion of what has become known as the doctrine of "meaningful engagement", derived from the Constitutional Court's jurisprudence on housing evictions, into its jurisprudence on school governance.

Co-operation is key
The judgment elaborated on the "co-operative governance" in the three-tier structure as established in the previous school governance cases – that is, the school, the province and the national department.

It noted that the national minister may "prescribe uniform norms and standards for the 'capacity of a school in respect of the number of pupils a school can admit' ". But the court noted, with regret, the difficulties that had arisen in the Rivonia case because of the absence of these norms.

The judgment also noted the obligation of the provincial department to provide a basic education to all pupils in a province. The schools Act requires MECs to ensure that "there are enough school places so that every child who lives in his or province can attend school". Finally, the court noted the role of SGBs in developing admission policies.

The court then emphasised that provincial departments and SGBs are legally obliged to negotiate with each other in the "best interests of the pupils" before resorting to litigation. Quoting a passage from the judgment in this year's Free State pregnancy case, the court stated that there is a constitutional and legislative "obligation on the partners in education to engage in good faith with each other before turning to the courts".

The court noted that in the Rivonia case the head of department had adopted a "heavy-handed approach" in attempting to address the concerns of the province while the school rushed to "safeguard its own authority". Both did so without sufficient regard for the wellbeing of the pupil.

Requiring that provincial departments and SGBs meaningfully engage with each other is laudable in principle. The difficulty, however, is that it appears to place the onerous responsibility for solving vexed problems in education, such as systemic capacity concerns, squarely within the domain of the lower two tiers of school governance.

At the same time, the first tier of school governance, the national government, seemingly receives a mild rap on the knuckles from the court for its failure to fulfil its role in the careful scheme of co-operative governance.

Surely, if the national government provided clearer parameters on school capacity, the inherent and inevitable tension between provincial departments grappling with systemic concerns and individual schools preoccupied with the immediate interests of the quality of their own children's education would be minimised?

Indeed, without these parameters, it is perhaps overly idealistic to expect all but the most progressive SGBs to factor broader systemic considerations into their various policy-making functions. The exclusionary practices of some schools, as evidenced in recent school governance litigation, such as in the Ermelo language case and in the Free State pregnancy case, provide proof of this.

Faranaaz Veriava is a human rights lawyer. This is her monthly column on the right to basic education.