By Nomfundo Manyathi-Jele

Federation of Governing Bodies for South African Schools v Member of the Executive Council for Education, Gauteng and Another (CC) (unreported case no CCT/209/15, 20-5-2016) (Moseneke DCJ)

In a unanimous decision handed down at the Constitutional Court (CC) on 20 May, outgoing Deputy Chief Justice, Dikgang Moseneke, ordered that Gauteng Education Member of the Executive Council (MEC), Panyaza Lesufi, must determine the feeder zones for public schools in the province within 12 months from the date of the judgment.

This order follows an application to the court by the Federation of Governing Bodies of South African Schools (FEDSAS) in which it appealed last year’s Supreme Court of Appeal ruling, which found that the Gauteng Education Department had the final say over schools’ admission policies and feeder zones.

In terms of current school admission regulations, pupils living within a 5km radius of a school – or those who have a parent working in the area – have a right to attend that school. These applicants are automatically placed on waiting list A, whereas those from outside the 5km radius are relegated to waiting list B.

Background

According to the judgment, the dispute is between two stakeholders of the public school system. The applicant, FEDSAS, a national representative organisation for school governing bodies and the first respondent, the MEC, and the second respondent, the Head of Department for Education, Gauteng (HOD). The dispute drew in Equal Education, a membership-based democratic movement of learners, teachers, parents and community members, as Amicus Curiae.

According to the judgment, the CC was tasked to determine whether certain amendments to the Regulations on Admission of Learners to Public Schools published in 2012 were invalid. The central issue was whether the regulations were inconsistent with the South African Schools Act 84 of 1996 (Schools Act) or with the applicable provincial law – s 11(1) of the Gauteng School Education Act 6 of 1995, which states: ‘Subject to this Act, the Member of the Executive Council may make regulations as to the admission of learners to public schools’ – or are invalid because they are irrational or not reasonable nor justifiable.

Regulations in question

The applicant focused on regs 3(7); 4(2) read with 4(1); 5 read with 8; 11(5) and 16. These regulations speak on the following:

• Regulation 3(7) speaks on unfair discrimination. This regulation disallows a learner’s prospective school from requesting confidential information from his or her current school. The applicant claims that a portion of the definition of ‘confidential report’ renders the regulation irrational, unreasonable and not justifiable because it prevents the disclosure of ‘any other information that may be used to unfairly discriminate against a learner.’ In its founding papers, the applicant argued that the definition stood in the way of the school’s right to ‘discriminate fairly.’ The applicant submitted that the problem with the regulation is that the prohibition is very wide, and suggested that the portion of the regulation that talks of ‘other information’ could be remedied by listing specific information on what is permissible or not permissible information to access. The applicant also illustrated that its need for the confidential report is, among other things, to assess special education needs of learners before their admission.

The CC considered reg 3(7) and held, as the respondents contended, that this regulation properly combats unfair discrimination.

• Regulation 4(1) and 4(2) focuses on feeder zones. It states:

‘(1) Subject to the National Education Policy Act No. 27 of 1996 and other applicable laws the MEC may, by notice in the Provincial Gazette, determine the feeder zone for any school in the Province, after consultation with the relevant stakeholders have been conducted.

(2) Until such time as the MEC has determined a feeder zone for a particular school, in relation to a learner applying for admission to that school, the feeder zone for that school will be deemed to have been determined so that a place of residence or work falls within the feeder zone, if:

(a) relative to that place of residence or place of work, the school is the closest school which the learner is eligible to attend; or

(b) that place of residence or place of work for that parent is within a 5 km radius of the school.’

On the issue of feeder zones, the CC held that the default position created by reg 4(1), which determines feeder zones on a geographical basis, is indeed an interim, transitional arrangement. It also found traction in the submission that since the Apartheid residential and workplace lines remain firm, the impact of the default feeder zone position is to prolong and legalise racial exclusion. The CC compelled the MEC to formulate fresh rules for feeder zones as required by reg 4(1), which is a major victory for learners in Gauteng.

• Regulation 5 and 8. Regulation 5 speaks on placing an unplaced learner at any school and reg 8 focuses on declaring a school full. According to the judgment, reg 5(8) provides that despite ‘the provisions of any school admission policy’, the District Director may, at the end of the admission period, place an unplaced learner ‘at any school’ that has not been declared full and where there remains no unplaced learners on the waiting list. In addition, reg 8 provides that ‘[n]otwithstanding the provisions of the admission policy of a school’ and until norms and standards required by the Schools Act are in force, ‘the objective entry level learner enrolment capacity of a school shall be determined by the [HOD]’ who may also declare the school full if the school has reached its enrolment capacity.

‘The applicant complain[ed] that regulations 5 and 8 are irrational and not justifiable because they cannot be read harmoniously with sections 5(1) to (3) of the Schools Act. The regulations oust a vital partner – the school governing body – from the public school model imagined in the Schools Act. The amicus’ grievance is that these powers are open-ended and are granted without strictures that would banish arbitrariness. The respondents submitted that the powers are narrow, defined and rational as their purpose is to ensure the placement of all unplaced learners as the Constitution and Schools Act require. They added that, in any event the safeguard is that the HOD’s decision would amount to administrative action that is open to judicial review,’ Justice Moseneke stated.

Justice Moseneke found that reg 5 read with reg 8 is rational, reasonable and justifiable and it is not at odds with s 5(5) of the Schools Act. ‘Even if they were, they are plainly reconcilable with the scheme of the statute,’ he said.

• Regulation 11(5) speaks on the transfer of learners between schools. The applicant argued that reg 11(5) was vague and inoperable. The regulation empowers a District Director to consider the relative capacity of other schools in a district as a criterion for placing a learner in a particular school. ‘Here too, the guiding purpose is to ensure that every learner is placed in a school. This attack that regulation 11(5) is irrational or unreasonable or unjustifiable has no merit,’ stated Justice Moseneke.
• Regulation 16 deals with objections and appeals. The applicant argued that the objection process envisaged by reg 16 impinges on the right of the parent of a learner to appeal directly to the MEC. Regarding this point Justice Moseneke said: ‘This observation is prompted by an amendment to the Regulations that inserts an extra layer of objection by a parent first to the HOD. But the HOD’s decision is subject to an appeal to the MEC. That process is anticipated by section 5(9) of the Schools Act. I do not think that the extra layer of the appellate process amounts to a delegation of authority by the MEC to the HOD to decide an appeal. Regulation 16(4) preserves the appeal to the MEC in so many words. None of his or her appellate powers are shed in favour of the HOD. It is consequently unnecessary to enquire whether a delegation of this kind is permissible in terms of section 105 of the Gauteng School Education Act that regulates delegation of power and assignment of duties.’

The CC held that there was no conflict between the Schools Act, the regulations and applicable provincial law.  Rather, the regulations were held to be legislation authorised by provincial legislation and may be read in harmony with the Schools Act and other national legislation.

Nomfundo Manyathi-Jele NDip Journ (DUT) BTech Journ (TUT) is the news editor at De Rebus.

This article was first published in De Rebus in 2016 (Aug) DR 44.