News Analysis – Rivonia the start of school battles

2013-05-13 10:00

Just before tea on Thursday, Deputy Chief Justice Dikgang Moseneke cut to the heart of the now infamous Rivonia Primary School court battle.

The Constitutional Court was listening to Advocate Steven Budlender, who was addressing a debate about whether the department of education should be allowed to force wealthy former Model C schools to put learners in the uncrowded classrooms made possible by parent donations at those schools.

Interrupting Budlender, Moseneke said we “should have parents fully engaged in the upbringing of their children”.

“One of the banes of our times is that parents are disengaged from the schools their children go to, so that makes the most difference, doesn’t it?”

The South African Schools Act envisions a high level of parental involvement in schools by giving school-governing bodies wide powers.

Section 5 of the act, at the centre of the Rivonia court battle, is one such section, stipulating that a governing body has the right to determine a school’s admission policy.

But the apartheid legacy means that most former Model C schools have inherited the best resources and infrastructure, which in turn have attracted wealthy parents able to sink great resources into their schools to ensure quality education.

On the other end of the scale are significantly under-resourced schools that have to deal with large student populations.

According to the Constitution, government has a duty to provide everyone with a basic education. The act raises this bar by calling for progressively high-quality education for all learners.

So in any particular region where there are overcrowded, under-resourced schools and roomy, well-resourced schools, conflict between the rich governing body and the department is inevitable.

The Rivonia case is not the best test case for who should have the final say over whether a school is full or not.

Budlender, who appeared for NGOs Equal Education and the Centre for Child Law, pointed out that the conduct of the Gauteng education department in the case was “perhaps regrettable”.

According to the words of Judge Boissie Mbha, who first heard the case in the high court, a departmental official “marched the learner to the nearest Grade 1 classroom and deposited her on an empty desk”.

Advocate Gerrit Pretorius, arguing for the governing body in the Constitutional Court, pointed out that this desk had been installed for a child with attention and learning difficulties.

Pretorius said the department’s heavy-handed conduct in this case had its genesis in accusations of racism and discriminatory practice by Rivonia Primary.

The Supreme Court of Appeal found absolutely no basis for any such allegation and called the department’s approach “disturbing”.

The student in question also came from a relatively well-off background and had been in a private preprimary school.

But the facts of similar cases show that governing bodies are not always beyond reproach.

In cases like that of Fochville Hoërskool, which is currently before the South Gauteng High Court, allegations have been made that an admission and language policy were adopted to exclude poor learners.

This is why the Centre for Child Law argues for the department to be able to intervene in the affairs of a school in a balanced and constrained matter.

What is clear is that disputes between governing bodies and the department over admissions will become more frequent as quality education becomes more scarce.

As Pretorius argues: “The parlous state of education in South Africa is so well known that the court may take judicial notice thereof.”

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