Pay up, says ConCourt

2013-04-26 00:00

THE KwaZulu-Natal Department of Education is expected to fork out about R5,7 million to the province’s independent schools to compensate them for a shortfall in the subsidies they received for the 2009 financial year.

This follows a majority ruling by six judges of the Constitutional Court yesterday — with four others dissenting — which held that the department was obliged to pay what it had publicly promised in a notice sent to the schools in September 2008.

In the notice the department set out the “approximate funding levels” for the 2009/2010 financial year.

In May 2009, after the first subsidy payment for the year had already fallen due, the department issued a circular warning schools that they should expect a subsidy cut of not more than 30% for that financial year.

The subsidies that were eventually paid to independent schools for 2009 were on average 30% less than those set out in the 2008 notice.

The KwaZulu-Natal Joint Liaison Committee, an association of independent schools, subsequently brought an application in the high court in Pietermaritzburg urging the court to enforce the department’s undertaking to pay the entire year’s subsidy in full.

The application was dismissed and the Supreme Court of Appeal subsequently also refused leave to appeal.

The issue was referred to the Constitutional Court where argument was heard in November last year.

In yesterday’s majority judgment, the ConCourt held that even though the 2008 notice did not amount to a contract between the schools and the department, it did constitute a public promise to pay.

The ConCourt said it was a constitutionally sound principle in law that a public official who promises to pay specified amounts to named recipients cannot unilaterally reduce the amounts to be paid after the due date for payment had passed.

For that reason it ordered the department to pay the schools the amounts that had been specified in the 2008 notice, which fell due for payment on April 1, 2009.

The Independent Schools Association of SA (Isasa) said it believed the judgment was critical for holding all provincial education departments to account in future legal actions.

Isasa executive director Dr Jane Hofmeyr told The Witness the judgment affected 119 independent schools in KZN.

She estimated that the total amount recoverable by these schools from the department in terms of the ruling was about R5,7 million.

She feared that some of the independent schools might be forced to shut down because the department had continued in the past three years to underpay the subsidy.

Only 0,02% of the department’s budget was allocated to independent schools subsidies, which was a “pathetic amount” of their budget.

Hofmeyr said she did not anticipate any delay by the department to reimburse them.

“You don’t ignore a ConCourt judgment. We’ll be after them,” she added.

Of the Isasa schools in the country about 40 independent schools charge below R7 000 for school fees, she said.

In a written statement, Hofmeyr said Isasa in particular welcomed the ConCourt’s findings that the right to basic education applied to all pupils in both public and independent schools; its acknowledgment that independent schools were a saving on the public purse; and the confirmation that under public law the government was bound to pay subsidies to independent schools in terms of an “enforceable promise” and could not retroactively reduce them.

She said future legal actions were possible in order to seek more substantial relief and claiming the full annual subsidy.

Education Department spokesperson Muzi Mahlambi said top management would meet on Monday to study the verdict, after which it would be able to give a comprehensive comment.

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