Public participation in education under threat
The minister of basic education, Angie Motshekga, has announced the ministry’s decision to close thousands of small schools across the country, according to recent media reports.
The reports also suggest that the minister already has plans afoot to amend the South African Schools Act to make it easier to amalgamate or close schools with fewer than 135 pupils.
Motshekga’s decision comes on the heels of a recent Supreme Court of Appeal judgment in December last year, in the Beauvallon case, in which she was the third respondent .
The appeal court overturned a high court decision that prevented the Western Cape education department from completing controversial school closures it initiated in 2012.
School closures must follow the process set out in section 33 of the Schools Act.
This section provides that any provincial education MEC can close a public school by notice in a provincial gazette.
But section 33 precludes MECs from doing this without a prior process of public participation.
Guidelines for MECs
In terms of section 33(2) of the Act, MECs must:
• Inform a school governing body (SGB) of their intention to close its school and their reasons for this;
• Enable the SGB to make representations in terms of the law; and
• Conduct public hearings, giving communities sufficient notice to make representations about any intended closures.
In 2012 the department of basic education published a document titled Guidelines for the Rationalisation of Small or Non-viable Schools.
These guidelines are premised on the notion that “larger, better-resourced schools” – with more teachers and better curriculums, as well as the provision of their infrastructure – provide a higher quality of education than smaller schools do with few teachers and educational resources.
The guidelines also set out the process for closing schools and elaborate briefly on the public participation process, as set out in section 33(2) of the Schools Act.
In the Beauvallon case at the start of the 2012 school year, the Western Cape education department identified 27 schools for possible closure. Following the processes established in the national and its own provincial guidelines, the department recommended to the MEC that he consider the 27 schools for possible closure at the end of 2012.
The MEC then initiated the school-closure process set out in section 33(2) of the Act. At the end of this process the MEC decided to close 20 of the 27 schools.
Of these 20 schools, 17 brought an application in the high court in Cape Town for the MEC’s decision to be reviewed and set aside. In both the high court and the Supreme Court of Appeal, the main pivot on which the case turned was the legality of the MEC’s decision.
The chief questions were whether the MEC had properly complied with the public participation process established in section 33(2) and whether the process was procedurally fair.
The high court found in favour of the 17 schools and held that the reasons the MEC furnished for his decisions were inadequate and so precluded the school and the broader community from making any meaningful representations.
After scrutinising the department’s and the MEC’s reasons for deciding to close these schools, the court also held that the decisions on the school closures were irrational and inconsistent, because the circumstances of certain schools the MEC decided to close were similar to those at other schools the MEC had decided not to close.
Based on this difference in the MEC’s decisions, the court found a demonstration of apparent inconsistency in the provincial officials’ application of the underlying policies for school closure.
For example, following representations during the public participation process, some schools were closed on the basis that they were multigrade schools – yet the Western Cape’s education officials decided to keep open other multigrade schools.
The appeal court took a different view on these two questions and overturned the high court decision. It held that, although the reasons the officials gave for closing the schools may not have been detailed, it was sufficient that they had communicated the gist of the reasons for the schools’ closures – such as “dwindling learner numbers” or “multigrade teaching” – and that all stakeholders could respond to them.
Regarding only one school, the appeal court found that there had been an unfair process because the provincial officials had not communicated the material reasons on which the MEC had based his decision.
The court therefore set aside the decision to close that particular school.
The appeal court also held that the MEC’s inconsistent decisions about similar schools did not by itself suggest irrationality. It noted that, because no two schools are identical, the MEC had to make a “judgment call”, based on the relevant circumstances in each case, to “achieve the desired end of improving education in the province”.
The concern about Motshekga’s recent announcement is not that she intends to close thousands of schools. In fact, there appear to be many cogent reasons for closing small schools and ensuring their pupils have access to schools of better quality.
Rather, the concern is that any amendment of current laws to make the closure process easier is more than likely to entail a whittling-down of the public participation process to avoid the lengthily drawn-out one in Beauvallon case.
But, if there is any lesson to be gleaned from the Beauvallon case, it is to caution against the undermining of any process of public participation: such processes ought to be strengthened to ensure meaningful participation rather than be undermined.
The public participation process is necessary to ensure that the best interests of each and every pupil are taken into consideration and that each pupil can have access to an education.
The mobilising efforts of the Save Our Schools campaign in the Beauvallon case raised the safety of pupils who have to walk to schools further away in neighbourhoods plagued by gang violence. The reliability of pupils’ transport was also improved.
Different considerations could arise in other contexts, such as pupils moving from no-fee to fee-paying schools, unaffordable to their parents, or pupils having to attend schools that teach in languages different from their mother tongues.
If rural or farm schools are targeted for closure, officials will also have to consider how to transport or accommodate pupils travelling long and dangerous distances to attend school.
Although much of the litigation in the Beauvallon case centred on the debate about whether there had been meaningful public participation during the closure process, the high court did note that this process, albeit an imperfect one, had persuaded departmental officials and the MEC not to close at least seven out of 27 schools but instead to institute alternative plans to support the schools.
When looking at the emotive and complex problems of school closures, it is imperative that South Africa does not whittle down the Schools Act’s prescribed processes, which aim ultimately to ensure the protection of pupils’ rights.
Faranaaz Veriava is a human rights lawyer, based part time at public interest organisation Section27. She writes in her personal capacity