South Africa: Provincial Power Trumps A School's Governing Council

In a long-running argument between the Governing Body of the Rivonia Primary School and the Gauteng Provincial Education Department, (CCT135/12 [2013] ZACC 34 (3 October 2013) the Constitutional Court started out, in its majority judgement, by referring to s29 which it states "guarantees everyone the right to a basic education" and observing that this constitutional guarantee is "inaccessible for large number of South Africans". Further that there are disparities in "accessing resources and quality education perpetuate socio-economic disadvantage, thereby reinforcing and entrenching historical inequity". With this introduction it is no surprise that the Constitutional Court found it to be in agreement, in part, with the Gauteng Department of Education.

Included in the proceedings were the parents of the student who had been refused admission, equal education, centre for child law and the Suid Afrikaanse Onderwysersunie (Onderwysersunie), the latter three having been admission as amici curiae.

Due to the fact that this matter first reared its head in 2011 it is necessary to recap the salient facts of the matter. In 2010 a prospective Grade 1 student was refused a placement for the school year commencing January 2011 on the basis that the school had reached its capacity, as provided for in its admission policy; she was accordingly placed on the waiting list. The mother of the learner complained to the Department and thereafter to the Gauteng MEC. Following the Department having reached an agreement with the school, the MEC referred the matter to the HOD of the Department of Education.

During January 2011, once the school term had already started and the student was attending a private school, the HOD considered the situation and overturned the refusal. The HOD gave an instruction to the school to admit the student immediately. The principal called an urgent meeting of the Governing Body, and admission was again refused. The HOD withdrew the principal's function, delegated it to another official and physically placed the student in one of the classrooms.

The matter was taken to the High Court with the school seeking declaratory and interdictory relief. The High Court found that the Department is entitled to intervene as it is the final arbiter. The Supreme Court of Appeal declared that the placement of the student in the school was unlawful.

The three issues to be determined before the Constitutional Court were whether the Gauteng HOD was vested with decision-making power, and if so, whether the Gauteng HOD was empowered to depart from the school's admission policy and, if so, whether the Gauteng HOD's exercise of the power to admit the student was reasonable and procedurally fair.

The first issue required a consideration of the statutory powers of the Governing Body as opposed to the powers of the Department. According to the Constitutional Court's interpretation of the Schools Act, there is a three-tier partnership consisting of the national government, provincial government and the parents of the learners. When considering this three-tier approach in relation to admission and capacity the first tier is the Minister of Basic Education, who should prescribe minimum uniform norms and standards for the "capacity of a school in respect of the number of learners a school can admit".

The Department, at provincial level carries an obligation in terms of the Schools Act to ensure that there are sufficient schools to give effect to the Constitutional right. Where there is insufficient capacity it must take steps to remedy to the situation. The department is also responsible for ensuring the school, through its Governing Body, complies with the prescribed norms and standards. At the third tier, the school, the Governing Body is responsible for determining the admission policy.

The Constitutional Court agreed with the SCA in that s5A(3) of the Schools Act may include a determination as to capacity but said that this doesn't give the Governing Body an extensive role. Its role must be considered in light of the qualifying provisions in s5(5) which imposes certain provincial government oversight.

The Constitutional Court found that s5(9) of the Schools Act allows the MEC to consider admission refusals and overturn an admission decision taken at school level. In considering this first issue the Constitutional Court also examined the principles which had been expounded in two other cases dealing with the status of a school's admission policy, which it had heard. The Constitutional Court said the principles were:

• Where the Schools Act empowers a Governing Body to determine policy, the policy cannot be overridden by the government.
• Government may intervene or depart from the policy where it is empowered by the Schools Act or other relevant legislation.
• Government must act reasonably or procedurally fairly in intervening or departing from the policy.
• The government functionary and the school must engage with one another in a matter which has students' best interests at heart.

Judge Mhlantla writing for the majority said that, in terms of the Schools Act, the "Department maintains ultimate control over the implementation of admission decision" and that the Gauteng HOD was "lawfully empowered to admit learners to Rivonia Primary".

In relation to the second issue, the Constitutional Court focused on the relationship between policy and legislation, the Schools decision having been made in terms of the policy. The court found that the policy does not bind the Department or limit its discretion. It noted that where good reasons occur, the choice to depart from the policy was an option always open to the Department and the School.

In determining the third issue the court agreed that the decision taken by the Department was administrative action and it was for this reason that it had a duty to act fairly. It referred to a previous judgement in which it said the requirements of procedural fairness are to be determined flexibly and must be based on the facts of the case. Upon analysis of the facts the court found that the Department was required to go beyond that which it had done in making its decision. It took note of the fact that the decision was made only once the school year had started and three months had elapsed since the principal had submitted her reasons for refusing entry to the school.

The Constitutional Court said that due to the fact that the matter was only considered by the Department four weeks into the school year it would have been fair to give the school an opportunity to address the Department on the changes, which would exist in the school if the student was to be admitted. Further, the Constitutional Court said that the school was not given the opportunity regarding statistics that had been interpreted by the Department. Later in the majority judgement these failures on the part of the Department were described as "procedural fairness flaws".

After addressing the three key issues the Constitutional Court turned its attention to the "systemic capacity issues" in the country. Here the court emphasised the need for co-operation between schools and the Department while keeping the best interests of students at heart. It addressed the balance that must be created between allowing as many children as possible into the school and the quality of education that is to be provided. As submitted by Onderwysersunie, the obligation to provide schooling to every child must take into account the factors that are to be considered in determining capacity.

The Constitutional Court was critical of the manner in which the parties had engaged with one another and of the school for failing to consider the best interests of the student. The Constitutional Court stated that "both parties could and should have done more to prevent the need for litigation".

The minority judgement written by Jafta J with Zondo J concurring, started out by referring to the case as "a little black girl whose dream was to obtain education at the school closest to her home. Standing in the way of realising that dream was an inflexible application of the school's policy". From this introduction the judgement drew attention, once again, to the relationship between the two parties and the fight that had ensued with disregard for the student's best interests.

Jafta supported the decision that the Department was allowed to instruct the school to accept the student. Disagreeing with the majority decision on the matter, he said that the only issue before the Constitutional Court was whether the SCA Order was wrong. Jafta said that the cause of action pleaded in the founding papers was that the "decision-maker's lack of power to make the decision taken" and that procedural fairness was not referred to in the papers at all.

The minority further found that apart from the claim not having been pleaded on the papers, there was no evidence established to support a finding of a lack of procedural fairness. Further, along the same line, that the argument contained references to procedural fairness is insufficient and cannot "justify a determination of an issue that was neither pleaded nor proved in evidence" on the record.

Finally, the minority was of the view that the court had not be called upon to grant declaratory relief - attention was drawn to the fact that the school only asked for the application for leave to appeal to be dismissed. Jafta, in support of the view that this conduct was unusual, referred to a previous case where the Constitutional Court had refused to grant an order where orders were not asked for, nor supported by the pleadings, nor the evidence which was led.

The minority also disagreed with the majority's criticism of the Department's attitude towards the "systemic capacity issues" and its relationship with the Governing Body saying that this was never an issue raised by the parties and the consideration of this was not a component of the issues before the court.

Interestingly for lawyers and law students Jaffa, in the minority judgement, provided an explanation of ratio decidendi and obiter dicta. The minority stated that regardless of what was found, there was evidence that the Department had engaged the school on four occasions with a view to the policy being relaxed and that the school had persisted with its attitude of refusing to admit the student despite the policy having been relaxed on previous occasions.

The minority also disagreed with the formulation of the first principle as expounded in similar cases, as discussed and said that a proper reading of the paragraph referred to does not support the proposition that the Department cannot act contrary to policy or override a policy that offends the Constitution. 

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