In the week of 15 January 2017, we saw parents, political parties and interested groups protest outside the gates of Hoerskool Overvaal in Vereeneging. At various points, the protest turned violent, with some being injured and others arrested. At the centre of the dispute was an instruction from the Gauteng Department of Education (GDE) to Hoerskool Overvaal, an Afrikaans medium school, to admit 55 learners, who would require tuition in English, to the school. The school in turn petitioned the North Gauteng High Court on an urgent basis seeking to have the instruction set aside on the grounds that the GDE’s instruction was procedurally flawed and unlawful. The school added that the instruction was contrary to both the school’s language and admission policies.

The department in turn argued that the school did in fact have capacity and it had a duty to place learners who had not yet been placed in schools. The department also cited the need to transform the school by asking the school to adopt a dual-medium language policy in response to broader community interests. The department claimed that the effect of the current language policy was to exclude black learners from the school.

In the papers it is noted that two of the neighbouring schools filed affidavits included in the applicant’s papers, noting that they had space to admit the 55 learners and that they were already operating as English/dual-medium schools. Later, the judge noted that due to pressure from the department, including threats of dismissal, these schools reversed their claims and stated in a later affidavit that they were full to capacity.

On 15 January 2018, Judge Prinsloo issued a judgment finding in favour of the school. In his judgment, Prinsloo found that the instruction issued by the GDE offends the principle of legality. The judge found that both the school’s language and admission policies were submitted and known by the GDE – and no objection was raised against them, nor have they been found by the department to be non-compliant with any laws in any way. Thus, the department had no authority to override the school’s policies.

On the department’s conduct, the court concluded that the conduct amounted to an attempt to defeat the ends of justice and as such their conduct ought to be investigated by senior officials in the department.

It is not the first time that we, as a society, have had to grapple with the difficulties around dealing with injustices that exist as a result of our past. The education system continues to bear the biggest brunt. In Ermelo, a case regarding whether or not a Head of Department of a provincial department of education had the power to override the School Governing Body’s power to determine the language policy of its school, the Constitutional court noted that:

“Apartheid has left us with many scars. The worst of these must be the vast discrepancy in access to public and private resources. … Unequal access to opportunity prevailed in every domain. Access to private or public education was no exception. While much remedial work has been done since the advent of constitutional democracy, sadly, deep social disparities and resultant social inequity are still with us.”

So, while section 29 of the Constitution guarantees everyone the right to a basic education, this promise is still to be realised. The reality is that schools are plagued with radically unequal distribution of resources, related to a history of systematic discrimination. This makes access to a quality education, as guaranteed by the Constitution, inaccessible for large numbers of South Africans.

The question we need to deal with in cases like this is not whether, but how, to address this problem of uneven access to education, particularly because there are various stakeholders, a diversity of interests and competing visions. Inevitably, there will be tension, but in finding solutions it is important for us to ensure that the best interests of our children are paramount. It seems that in this case everyone forgot this vital reference point – people were more concerned with power and having a final say than fostering partnerships to meet the educational needs of children.

While we agree with the judgment, we find that the judge did not go as far as is necessary, particularly as has been done by the Constitutional Court in similar cases. We have a long list of cases that have dealt with disputes between schools/SGBs and Departments of Education. In the Ermelo case, the court held that an HOD could only do this on “reasonable grounds and in order to pursue a legitimate purpose”, and in accordance with specified due process provisions, which were not followed in this instance. Despite this finding, the court nevertheless directed the school to review its language policy to accommodate English-speaking learners that could not be accommodated elsewhere because other schools in the area were already full.

Another example is the Welkom judgment, where the Constitutional Court addressed the legality of an instruction from the 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. The court held that SGBs have the power to develop the pregnancy policies at their schools, even though the policies in these instances undermined the rights of pregnant learners. The HOD therefore couldn’t just override these policies but had to follow the processes set out in the SA Schools Act. The court nevertheless ordered the two schools implicated to review their respective pregnancy policies.

The Constitutional Court in both cases invalidated the conduct of the provincial departments of education concerned but went further to address the transformative aspect in each of the school. In both instances, the court adopted a pragmatic approach. An approach that ought to have been adopted in this case particularly because of the interests at play. Instead the High Court in this instance selectively applied existing jurisprudence by setting aside the unlawful conduct of the department but not following through with a remedy that requires the school to examine its policies.

Schools such as Overvaal, which have traditionally catered for mainly white and comparatively privileged learners, need to ensure that their policies not only speak to their current student population, but also to the interests of the broader community.

These cases must serve as a lesson to all stakeholders. They address key issues, and if they had been applied in this dispute may not have resulted in the events of last week.

The first is the need to recognise our historical context and the corresponding duty to reform and redress past injustices.

The second is the need for the state to take into account the nature of the right at play, including the need to ensure that the interests of children are paramount – thus safeguarding that the nature of the obligations imposed on role-players is well understood. Third is a healthy respect and acknowledgment of the important role that SGBs play in schooling and the need for that role to be promoted and protected. And where this is contested, it must be challenged in a constitutionally compliant manner.

Last, stakeholders must engage each other in a meaningful way – this is not only for Overvaal and district officials, this also applies to the other schools in the district. The Rivonia judgment, a case involving a dispute between Rivonia Primary, a former model C school, and the department, when a learner was refused a place in Grade 1, imported the doctrine of “meaningful engagement” from the constitutional court’s housing evictions jurisprudence into its school governance jurisprudence. 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 the “best interests of the learners” before resorting to litigation. Had this kind of engagement happened, we would not be in this position.

We would be remiss if we did not stress the importance of the Basic Education Laws Amendment Bill (BELA) as it seeks, in part, to resolve this tension.

Like many disputes of this nature, we are required to strike an appropriate balance between the powers and duties of provincial education departments and school governing bodies. Connected to this are the interests of parents in the quality of their children’s education, and the state’s obligation to ensure that all learners have access to basic schooling. We will continue to fail our children if we constantly fail to adhere to carefully crafted principles set out in our jurisprudence. In cases like this, only our children lose. DM

Thabang Pooe is a legal researcher at SECTION27

File Photo: Protesters blocked a main road leading up to Overvaal school with debris and burning tyres. Photo: GroundUp