By Duncan Wild on 3 October 2013.

The case concerns whether it is the Provincial Department of Education or the governing body of a public school that has the power to determine the number of learners that the school may admit, and whether the Provincial Department of Education may override any determination in this respect by a governing body.

The Constitutional Court, in a judgment authored by Acting Justice Mhlantla with  Deputy Chief Justice Moseneke, Justices Froneman, Khampepe, Nkabinde and Skweyiya and Acting Justice Bosielo concurring, found that although the school governing body had the ability to determine the capacity of a school, a Provincial Department maintains ultimate control, and a school’s admission policy cannot inflexibly limit the discretion of the Head of Department.

In 2010 the governing body of Rivonia Primary School (“the School“) had prepared an admission policy which was accepted by the Gauteng Department of Education (“the Department“).  According to this policy the capacity of the school was set at 770 learners, of which 120 would be admitted to Grade 1.

The School had declined to admit a child to its Grade 1 class for the 2011 school year. The child was twentieth on the waiting list of applicants for admission. The mother of the child appealed to officials in the Department. A few weeks into the 2011 school year the head of the Department instructed the principal of the School to admit the child. Before the governing body of the School had made a decision on the instructions of the Head of Department, in a letter to the principal the Head of the Department purported to withdraw the principal’s admission function. Officials from the Department arrived at the School shortly thereafter to physically place the child in a classroom.

The relevant provision is Section 5(5) of the South African Schools Act 84 of 1996 (“the Act“), which provides that subject to the Act and any applicable provincial law, “the admission policy of a public school is determined by the governing body of such school.”

The South Gauteng High Court held, per Mbha J, that the Act does not appropriate to the school governing body the unqualified power to determine the school’s admission policy, and that the power to determine the maximum capacity of a public school in Gauteng vests in the Gauteng Department and not in the school governing body.  It also held that the Member of the Executive for Education, Gauteng Province, has the power to intervene in the school governing body’s power to determine the admission policy of a public school.

The Supreme Court of Appeal, per Cachalia JA writing for a unanimous court, held that the governing body’s power under section 5(5) of the Act to determine the admission policy of a school necessarily includes the power to determine the school’s capacity.  Any doubt of this is removed by section 5A of the Act, which allows the Minister of Education to prescribe minimum and uniform norms and standards for ‘the capacity of a school in respect of the number of learners a school can admit’, and then requires the school’s governing body to comply with these norms and standards when compiling the school’s admission policy.

The Supreme Court of Appeal overturned the order of the High Court (save for the order of costs in that court, and relief pertaining to the withdrawal of the School principal’s admission function), and declared that the instruction given to the School principal to admit the learner contrary to the school’s admission policy, and the placing of the learner in the school, were unlawful.

The majority of Constitutional Court broke the case down into three parts: first, whether the Department had the power to decide to admit a learner to a public school; second, if so, whether the Department could admit a learner contrary to a capacity determination in a school’s admission policy; and third, if the answer was yes to both previous questions, whether in this case the Department had exercised that power reasonably and fairly. 

The Constitutional Court found that is is clear that section 5(5) and 5A of the Act clearly give the power to determine school admission policy to the governing body of that school. However, that power is subject to the other provisions of the Act. Other provisions of the Act make it clear that the Department plays a role in admissions (for example application for admission is made to the Department), and “the implementation of admissions policy at a school level is the responsibility of the principal, acting under the authority of the head of department.”  In addition, the Gauteng Department of Education Regulations for the Admission of Learners to Public Schools (“Gauteng Regulations“) allow a learner or parent to appeal a principal’s refusal to admit a student to the Head of Department, and then the MEC.

Moving onto the second question, the majority held that “the scheme of the Schools Act in relation to admissions indicates that the Department maintains ultimate control over the implementation of admissions decisions”. As the Department has this power, a school’s admissions policy cannot be read to inflexibly limit it. The Constitutional Court therefore found that the Department could override a school’s admissions policy.

But, on third question, the Constitutional Court found that the decision to override an admission decision, or admission policy, “must be exercised reasonably in a procedurally fair manner.” The Constitutional Court held that in this case, this had not happened. According to the Court the Department should have given the principal an opportunity to address the Department on the impact admitting the learner would have had at the school, such as the impact on quality of education and access to resources. In addition, the Department in a meeting with the school had indicated it was satisfied that the learner was placed on the school’s waiting list, but a few months later the Head of Department’s decision to admit the leaner constituted an about-turn on the position indicated at the previous meeting. Overall then the Court found the Department had not exercised its power in a procedurally fair manner.

Mhlantla AJ also emphasized that the parties were obliged to operate in partnership, and the Department should not have an adopted such a heavy handed approach, but at the same time the school should have put the interests of the learner first. In short, all sides should have done more to try to avoid litigation.

Justice Jafta wrote a dissent in which Justice Zondo concurred. In the minority judgment, Jafta J agreed that leave to appeal should be granted, and that the SCA was incorrect in finding the Department did not the ultimate authority over school admissions. However, he disagreed that the Constitutional Court should consider the question of whether the Department had to act procedurally fairly, and had in fact done so. He argued that for procedural reasons, this question was not properly before the Court, and so should not be decided by it.

Download the judgment here.