The more contentious proposed amendments in the Basic Education Laws Amendment Act were related to powers of School Governing Bodies (SGBs). The Bill provides for a limitation of SGB powers in relation to several functions, including appointment processes, as well as introducing an approval process for policies done by the SGBs.

But before dealing with BELA and the principles we submit should guide any proposed amendments to school governance provisions, perhaps it’s important to deal with the context of schooling in our country, as well as the reasons behind the adoption of the decentralised school governance.

The South African public schooling system is known to be a ‘fundamentally bifurcated’ or ‘hybrid’ education system, in terms of which there are two different systems of schooling. The first being the well-resourced schools which are the wealthy independent and former model-C schools, and to a lesser extent, the former Indian schools. The second schooling system caters for poor, predominantly African learners, and consists of most public schools, existing in varying degrees of under-resourcing and dysfunctionality. Learners attending historically disadvantaged schools usually perform far below their counterparts attending historically advantaged and better resourced schools, with many learners struggling to move beyond basic literacy and numeracy skills.

These historical disparities continue to be recognised in policy as well as Constitutional Court jurisprudence.

Decentralisation as a concept has some of its genesis in the pre-democratic era, when the state used the principle to ensure that parents had a say in school administration because they contributed by paying fees. In post-apartheid South Africa, government systematically embarked on dismantling the previous segregated education racial order as well as comprehensively revising the entire education policy environment at all levels of the education system. Part of this was a strong call for the democratisation of the state and the education system. This was meant to create a system of educational governance that entrenched community participation at the school level and simultaneously intervened to redress the inherited educational imbalances. This would also lead to an increase in political legitimacy of the government, by giving rights to the previously excluded groups to partake in the running of their schools, ensuring that local conflict remained local as much as possible and making parents and communities equal stakeholders in education.

It is against this context that the proposed BELA amendment should be considered. While we believe BELA makes some very important legislative reforms, in addressing school governance, enough regard must be paid to the importance of SGBs as acknowledged and reinforced in our jurisprudence.

School governance has, of course, not been without its challenges. BELA clearly seeks to address these. These challenges are also context-specific. On the one hand, the more well-resourced schools’ SGBs have used their powers to enact policies that preserve their status. This includes using admission and language policies that exclude certain groups of learners. One such case is currently playing itself out in the High Court in a dispute between the Gauteng Department of Education and a high school refusing to admit learners on the basis of their language policy. On the other hand, the SGBs of the under-resourced schools have been plagued with dysfunctionality, corruption and, in some instance, principals using their influence to control SGBs, leaving very little accountability and actual participation.

In both these cases, provincial education departments have had no choice but to intervene. SGBs that are well resourced, either on their own or through SGB federations, have taken the Department to courts resulting in significant jurisprudential developments. These cases have created a set of guiding principles which we argue must underpin any legislative reform on school governance.

The first such principle is an acknowledgement of the impact of apartheid education in perpetuating inequality and the necessity to redress this. This acknowledgement of the apartheid legacy has shaped the approach of the courts in the school governance disputes. An example would be in the Ermelo case. In this case the Constitutional Court had to decide whether or not a Head of Department (HOD) of a provincial department of education had the power to override the SGB’s power to determine the language policy of its school.

The Court held that the powers of SGBs at individual schools could not be exercised in isolation of the broader systemic issues in education, but must be understood within the context of the broader constitutional scheme and the imperative to redress the legacy of apartheid education.

The second is recognition of the right to basic education as an empowering right. The Court has repeatedly chosen to use the broader education jurisprudence to discuss significance of the right to basic education as an empowerment right. An example is in the FEDSAS case. In this case the Federation of Governing Bodies for South African Schools (FEDSAS) brought an application challenging the validity of specific provisions of the Gauteng regulations to the admission of learners to public schools. The most contentious was a provision that until such a time that the MEC has determined a feeder zone for schools, parents must enroll their children in schools within a 5km radius of their homes or place of work. The Court made note of the nature of the right. It held that:

So education’s formative goodness to the body, intellect and soul has been beyond question from antiquity. And its collective usefulness to communities has been recognised from prehistoric times to now… Despite these obvious ancient virtues, access to teaching and learning has not been freely and widely accessible to all people at all times. All forms of human oppression and exclusion are premised, in varying degrees, on a denial of access to education and training. The uneven power relations that marked slavery, colonialism, the industrial age and the information economy are girded, in great part, by inadequate access to quality teaching and learning.

The third is the Court’s appreciation of the importance of cooperative governance which must include participative or local and grassroots decision-making. In Head of Department, Department of Education, Free State Province v Welkom High School; Head of Department, Department of Education, Free State Province v Harmony High School and Another, the Constitutional Court addressed the legality of an instruction from HOD of the Department of Education in the Free State to two school principals to ignore the pregnancy policies developed by their respective SGBs. The principals at both schools had, in terms of their SGB policies, prohibited two learners from returning to school in the year they had given birth. The HOD in both cases instructed the principals to readmit the learners immediately. In that case the Court stressed the nature of school governance. The Constitutional Court noted that:

Under the Schools Act, two things are perspicuous. First, public schools are run by a partnership involving the state, parents of learners and members of the community in which the school is located. Each partner represents a particular set of relevant interests and bears corresponding rights and obligations in the provision of education services to learners. Second, the interactions between the partners – the checks, balances and accountability mechanisms – are closely regulated by the Act.

The fourth is the emphasis on the doctrine of meaningful engagement. In MEC for Education in Gauteng and Others v Governing Body of Rivonia Primary and Others (‘Rivonia’). The dispute between Rivonia Primary, a former ‘model C’ school, and the Gauteng Department of Education (GDE) arose in 2010 when a learner was refused a place in Grade 1 at the school for the 2011 academic year. The school’s reason for its refusal was that it had reached its capacity in terms of its admission policy determined by the SGB. The HOD overturned the school’s refusal of the application and issued an instruction to the principal to admit the learner. The school thereafter approached the courts for a determination of whether the HOD had the power to override the SGB’s admission policy. The Constitutional Court held that while SGBs do have the power to determine admission policy in terms of SASA that power is never final but is subject to provincial confirmation.

The Rivonia judgment imported the doctrine of ‘meaningful engagement’ from the Constitutional Court’s housing evictions jurisprudence into its school governance jurisprudence. Thus, the Court emphasised that in terms of the “partnership model”, provincial education departments and SGBs are legally obliged to negotiate with each other in good faith and in “best interests of the learners” before resorting to litigation. Thus, the imperative towards apartheid redress to ensure a quality education for all South Africa’s learners must be balanced against the principles of cooperative governance between the different tiers of school governance, including at a local level which is done by SGBs. Furthermore, where there are disputes between the different tiers of school governance, these structures are legally obliged to, in good faith, negotiate with each other.

BELA, as it currently stands, has been criticised widely as an attempt to usurp the powers of SGB and for undermining the principles set out in the cases. While we welcome the efforts to align the legal framework with jurisprudential developments, such alignment must accord with the principles established by the jurisprudence. These principles are important because they locate the right to a basic education within our historical context and a recognition of our duty to reform and redress past injustices. Further, they require the state to take into account the nature of the right at play, thus ensuring that the nature of the obligations imposed on role-players is well understood. Additionally, these principles acknowledge the important role that SGBs play in schooling and the need for that role to be promoted and protected in a constitutionally compliant manner. Lastly, these principles speak to dispute resolution amongst these stakeholders – requiring meaningful engagement and less of a heavy-handed approach. So, while we wait for the next BELA bill, we would hope that these principles are front and centre in shaping the reforms necessary to making education work. DM

Thabang Pooe and Faranaaz Veriava are researchers at Section27.

Photo: School children walk past a line of police officers during the continuing #feesmustfall protests against the cost of higher education in Johannesburg, South Africa, 12 October 2016. EPA/KIM LUDBROOK.