On 3 October, the Constitutional Court handed down its decision in the Rivonia Primary School case.
The Court’s decision comes as a firm reminder to all public schools and education authorities to ensure that their learner admissions actions are lawful, reasonable and procedurally fair and are ultimately taken in the best interests of learners.
Time and time again, our courts have held that our public schooling system is run by a partnership between national government, provincial government and school governing bodies. The Rivonia Primary School case is no exception.
Like any effective partnership, a healthy degree of co-operation between the State and school governing bodies is required to ensure that the best interests of learners are served. This means that schools and provincial education authorities need to co-operate in good faith with each other to protect and promote the best interests of learners.
In the context of school admissions, the Constitutional Court has confirmed the following:
- Governing bodies of public schools have significant powers to determine their admissions policy (including the power to provisionally determine when their schools are full), but these powers are not unfettered.
- The admissions policies of public schools must be applied in a flexible manner and with reference to the broader constitutional need to ensure that education is progressively available and accessible to everyone.
- Provincial education authorities may intervene in a school governing body’s policy-making role or depart from that school governing body’s admissions policy in the following circumstances:
- where the law specifically empowers them to do so;
- where this is done in a reasonable and procedurally fair manner; and
- after meaningful engagement with the school governing body concerned, which engagement must be directed at protecting and promoting the best interests of learners.
- In particular, the Head of a Provincial Education Department may in limited circumstances intervene in matters where a public school refuses admission of a learner on the basis that the school is full. This intervention must be permitted by provincial law and made in accordance with any minimum uniform norms and standards issued by the Minister of Basic Education regarding the capacity of public schools. To date, these minimum uniform norms and standards have not been issued and the majority of provinces do not have provincial laws that specifically empower the Head of the Provincial Education Department to intervene in such matters.
- Any decision of a public school to refuse a learner admission may be taken on appeal to the Provincial Minister / MEC for Education. It is the role of the Provincial Minister / MEC for Education to determine whether a school’s refusal to admit a learner is consistent with that school’s admissions policy.
To avoid interventions by provincial education authorities in admissions processes, public schools need to ensure that their admissions processes are transparent and fair and that their admissions decisions are lawful. Where necessary, public schools should work co-operatively with provincial education authorities in this regard.
Mike was admitted as an attorney in 2009 and rose to the level of senior associate at Bowman Gilfillan before being appointed as the Head of the Education Ministry in the Western Cape Government. Mike now consults through Caveat Legal as a specialist on education law issues.