As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
It is an uncontested fact that there are vast disparities in the quality of education provided to children at different public schools in South Africa. Although there are some laudable exceptions, the quality of education provided at schools in more affluent areas is generally far better than the quality of education provided at schools situated in poorer areas. Given the lingering effects of apartheid town planning and racial dispossession, this means that schools formerly exclusively reserved for white children often produce the best results. How to address this injustice has become one of the most intractable but emotionally laden issues in South Africa.
The legal battle between the Governing Body of the Rivonia Primary School and the Department of Basic Education about who may determine the number of learners a school may admit, occurs against this problematic backdrop. However, the suggestion that the battle over the admission of the grade 1 pupil to Rivonia Primary School would never have reached the courts if the mother of the child was not politically well-connected (apparently having direct access to the Gauteng MEC for Basic Education) and the fact that she demanded special treatment for her child, further complicates the matter.
Late last year the Supreme Court of Appeal (SCA) ruled that the South African Schools Act grants the right to determine the number of learners to be admitted to a school to that school’s Governing Body, not to the MEC. Relying on section 5(5) of the Act, which states that “the admission policy of a public school is determined by the governing body of such school”, Cachalia JA (writing for a unanimous bench of 5 judges) dismissed the arguments from the Department of Basic Education that sections 3(3) and 3(4) of the Act granted the power to determine the number of children to be admitted to each school to the MEC.
Section 3(3) obliges the MEC to “ensure that there are enough school places so that every child who lives in his or her province can attend school . . .”. Section 3(4) obliges the MEC, if he or she cannot comply with subsection (3) because of a lack of capacity existing at the time of commencement of the Act, to “take steps to remedy such lack of capacity as soon as possible” and to “make an annual report to the Minister on the progress achieved in doing so”. Relying on a so called “plain reading” of these sections, the SCA stated that these sections were concerned with the MEC’s obligation to ensure that infrastructure is provided for compulsory school attendance of all children in the province, not with determining how many children could be accepted by each school in accordance with the admissions policy determined by the Governing Body.
It is unclear what the MEC is supposed to do if children are denied schooling because all the Governing Bodies in an area have decided, on reasonable and rational grounds, that their schools cannot admit more children. As it takes a while to build new classrooms, one assumes those children not admitted to any school will be denied an education until such time as the Department had increased the number of classrooms to accommodate them. This effective denial would be in breach of section 29(1) of the Constitution, which states that “everyone has the right to basic education”. That is why the Department (as well as Equal Education who intervened in the case) argued for a constitutionally appropriate interpretation of the Act as required by section 39(2) of the Constitution to allow the MEC to determine how many children should be admitted to each school.
It must be said that the Act prohibits any Governing Body from discriminating against any child when making admissions decisions. A school is also prohibited from administering any test related to the admission of a learner to a public school. No learner may be refused admission to a public school on the grounds that his or her parent is unable to pay or has not paid the school fees or because the child does not subscribe to the mission statement of the school.
Section 22 of the Act authorises the HoD, on reasonable grounds, to withdraw any one or more of the functions of a governing body – including its power to decide on the admission of pupils – after following a prescribed process. This means that if a Governing Body refuses to admit a child on racial grounds the Department can intervene and withdraw that Governing Body’s power to make decisions on admissions. But what happens if there are reasonable and rational admissions policies in place at all the surrounding schools but there simply is no place for a pupil in any of the public school in the area where the child lives? Must the child sit at home and wait for better days?
There are two questions at the heart of this dispute. First, to what extent should affluent parents be allowed to buy exclusive education for their children through their control of the Governing Body of a school situated in a wealthy area? The Schools Act (adopted in 1996 by our democratic Parliament) surprisingly seems to suggest that wealthy parents should be allowed to buy a better life for their children and that children of poorer parents do not deserve the same quality of schooling than the children of wealthy parents. As the SCA explains, in terms of the Schools Act:
A governing body stands in a position of trust towards the school. It promotes the school’s best interests and strives to ensure its development by providing quality education to the learners. Implicit in this model of governance is an acceptance on the lawmaker’s part that the state cannot provide all the resources for the proper functioning of a high quality schooling system. So governing bodies are enjoined to ‘take all reasonable measures within [their] means to supplement the resources supplied by the State in order to improve the quality of education provided by the school…’ Governing bodies thus have a mandate – indeed, an obligation – to raise additional funds through the active involvement of the parents, who in return for their financial contributions are given a direct and meaningful say in school governance and the employment of school funds.
The second underlying question is whether, given the governance framework adopted by the Schools Act, the Department of Basic Education could have done more to improve the quality of schooling at those schools where Governing Bodies cannot pour resources into a school to improve the quality of the education there because they cannot charge more school fees or because they do not have the management expertise and know-how that would assist them to hold the headmaster and the teachers of that school to account for their performance.
The answer is that the Department could do more but that it has, inexplicably, not done so. One way of addressing the problem of underperforming schools is for the Minister of Basic Education to make use of section 5A of the Schools Act to prescribe minimum and uniform norms and standards for a school.
The section states that such norms and standards has to deal with infrastructure (dealing with the availability of classrooms; electricity; water; sanitation; a library; laboratories for science, technology, mathematics and life sciences; sport and recreational facilities; electronic connectivity at a school; and perimeter security); the capacity of a school in respect of the number of learners a school can admit (dealing with the number of teachers and the class size; quality of performance of a school; curriculum and extra-curricular choices; classroom size; and utilisation of available classrooms of a school); and the provision of learning and teaching support material (dealing with stationery and supplies; learning material; teaching material and equipment; science, technology, mathematics and life sciences apparatus; electronic equipment; and school furniture and other school equipment).
In terms of the section, a Governing Body must comply with these norms and standards and is required to compile and review its admission policy in accordance with such norms and standards. As no such norms and standards have yet been promulgated, the Rivonia Primary School could not be compelled to adhere to these norms and standards, which aggravated the problem.
Under pressure from the NGO Equal Education, the Minister of Basic Education this week did promulgate draft norms and standards, but these are so vague and nonsensical that they would be of little use in the current case, nor would it be of use to improve the infrastructure and the management of pupil placement at schools. Thus the draft norms and standards require that a school be provided with “adequate sanitation facilities that promote health and hygiene standards and that comply with all applicable laws”; “basic water supply which complies with all relevant laws; and “where reasonably practicable, a school should be provided with some form of connectivity for purposes of communication”.
The draft guidelines seem to kick for touch, empowering MEC’s to develop plans to provide better facilities to schools. But we do not need more plans to be developed. What we need is the enforcement of clear and detailed minimum norms and standards to ensure that each school provides education of a basic minimum quality in an environment conducive to learning. Surely it is untenable that 93% of public schools have no libraries, almost 2500 schools have no water supply and 46% of schools still reportedly use pit latrines? More detailed minimum norms and standards about the number of pupils that could be admitted to each school would also enable the Department to force schools to admit more children in cases where children would otherwise be denied an education.
Meanwhile we will have to wait and see whether the Constitutional Court overturns the SCA decision or whether other measures will be required to deal with difficult cases where children might be denied access to education through no fault of their own.BACK TO TOP