/ 2 June 2017

Law clinic is fighting for justice in education

(John McCann)
(John McCann)

Thousands of families struggle to get justice and gain recourse to their constitutional rights.

But the law can play a role in addressing education injustice, according to the recently published annual report of the Khayelitsha-based Equal Education Law Centre.

The centre is one of only a few community-based law clinics and provides free legal services on education-related issues.

In 2016, the centre’s walk-in legal clinic assisted more than 170 people faced with a wide range of problems, such as foreign pupils being excluded from schools, pupils facing abuse at school, unfair disciplinary processes and allegations of corruption in schools.

The centre demonstrates the power of lawyers working together with a social movement and in communities. Born largely from the work of its sister organisation, Equal Education, the centre uses the law to advance struggles for quality and equal education.

In August, the centre moved from Cape Town city to a new social justice hub, the Isivivana Centre, in Khayelitsha, which is also home to several other social justice movements and activist organisations, including the Treatment Action Campaign, the Social Justice Coalition, and Doctors Without Borders (MSF). It is also the new home of Equal Education itself.

Because the clinic deals only with education-related matters, the centre’s lawyers can readily identify repeated problems and develop strategies to address them. This enables the centre to connect individual stories to larger needs for change.

An example is the story of Michelle Saffer, a single mother, who cannot afford school fees. Her situation became the basis of a court case that challenged the very system through which divorced parents can claim exemptions from paying fees.

Education, like justice, is not a commodity but, to bolster school budgets, the law allows some public schools to charge fees. Legislation does allow poor families to be exempt from paying fees but the process involved is not always fairly implemented.

Saffer experienced this first-hand. She could not pay her daughter’s school fees and sought an exemption. The school asked that the application form be completed by Saffer and her former husband.

But, because Saffer has a difficult history with her former spouse, she regarded the school’s request as unreasonable.

She submitted her application and explained that her financial position should be considered separately from that of her ex-husband’s.

The school governing body’s view was that Saffer and her former husband were a “family unit” and, when applying for exemption, the financial information of both biological parents had to be taken into account. The school wanted to consider their combined income.

The head of the Western Cape education department also refused to overturn the governing body’s decision.

Saffer believed that this approach was not only unfair but also humiliating.

The centre, after several failed attempts at engagement, and with the emergence of other clients at the walk-in clinic who have similar problems, took the matter to court in a bid to ensure that fee exemption processes do not discriminate against people in Saffer’s position.

On May 25 last year, her case was heard in the Western Cape High Court. The court, finding partly in Saffer’s favour, declared that divorced and separated biological parents are jointly, rather than jointly severally, liable for the payment of state school fees for their children. This meant the school could only demand half the fees from Saffer. But the court maintained the fee exemption itself should be determined on the basis of both parents’ income.

The Western Cape education department has taken the case to the Supreme Court of Appeal in Bloemfontein, while the centre, on behalf of Saffer, is defending. The outcome will be significant for single mothers struggling to receive fee exemptions.

Saffer’s case provides insight into the power of the centre’s model, connecting individual stories with systemic change. Activist lawyers listen to these kinds of stories daily and provide assistance, not only to the people of Khayelitsha but also to the rest of the country’s citizens.

The centre’s annual report is available on its website. In addition to Ms Saffer’s case, it describes many of the stories from the walk-in clinic, the centre’s work with Equal Education and its research and policy interventions.

Daniel Linde is an attorney and the deputy director of the Equal Education Law Centre. Visiteelawcentre.org.za or call 021 461 1421