There can be no doubt that the high degree of autonomy given to all public schools in the South African Schools Act and exercised on their behalf by elected school governing bodies has in itself presented challenges to the schooling system.
These challenges are wide-ranging as they affect many aspects of the public school system, including admissions, language policy, finance, staffing, curriculum choices and extra-mural activities.
Exercising these competencies, powers and responsibilities in a broad system of government, a government which also has mandates to carry out, is a delicate balancing act. Key to achieving this balance is recognising the centrality of the well-being of pupils.
When our schools and education authorities are unable to resolve disputes between themselves in good faith and instead frequently rely on the courts to settle matters, it is often the interests of pupils that are inadvertently compromised.
Protracted litigation involving our public schools, education authorities and other stakeholders in education is a financial drain on limited public and school funds. Not only does it distract from the core focus of ensuring the delivery of quality education but it also, by its adversarial nature, fails to foster a co-operative and collaborative relationship between everyone involved in education.
Perhaps, with the wisdom of hindsight, much of the litigation that we have seen could have been avoided had the parties involved made decisions that were informed by a clear understanding and appreciation of their respective rights and responsibilities.
A close study of the cases that have come before our courts since 1994 will show that the distinct roles and responsibilities of education authorities and school governing bodies have been the subject of much contestation and often protracted litigation.
As the demand for greater access to quality schooling exceeds the availability of suitable schools each year, we have seen, for example, education authorities seek expedient and ill thought through measures to force public schools to take in more pupils than they are willing to admit.
From simply ignoring the admission and language policies of public schools to unlawfully withdrawing the powers of governing bodies to determine such policies, our education authorities have made decisions that our courts have confirmed were not informed by the applicable legal framework.
In these cases, we have seen school governing bodies and governing body associations vehemently defend their power to determine the admission and language policies of their schools. And we have seen our courts repeatedly confirm that this power is not absolute and needs to be balanced with the responsibility of education authorities to ensure access to schooling.
A close study of the cases will also show that the policy decisions of public schools on matters such as pregnancy, school uniforms and school fee exemptions have been the subject of protracted litigation and been found wanting by the courts for the discriminatory effect that they have on pupils.
Time and again, our courts have stressed the need for school governing bodies and education authorities to act in accordance with the distinct powers and functions ascribed to them in law and, importantly, to work together to find workable solutions to the problems they face — solutions that ultimately protect and promote the best interests of pupils.
Reflecting on these cases, we have learnt the following: a clear and accurate understanding of the legal framework applicable to public schools makes for better and informed decision-making and avoids the need for costly litigation.
Appreciating the importance of a clear and accurate understanding of the legal framework within which our schools are required to function, Oxford University Press Southern Africa has recently published the Oxford South African Dictionary of School Terminology.
Compiled by Clive Roos and Michael Wilter, specialists in South African education and its legal framework, this dictionary supports all stakeholders in understanding the schooling framework, enabling them to think and act in an informed way.
Packed with more than 750 key terms from the South African Schools Act, the Employment of Educators Act and other relevant national laws and regulations, the dictionary clearly explains meaning and context and explores complex issues through the use of diagrams and notes on relevant case law.
In the hands of a school principal, governing body member, educator, government official, nongovernmental organisation, legal practitioner, academic, parent or member of the media, the dictionary becomes a powerful resource in the effective running of our schooling system.— Issued by Oxford University Press South Africa