Western Cape schools interdict explained
2013-03-20 14:30
Cape Town - The reasons for granting an urgent interdict
stopping the closure of 17 schools were handed down by the Western Cape High
Court on Wednesday.
Judge Elizabeth Baartman briefly entered court room two
to explain that the interdict was granted in December and that the court was
now providing reasons for the judgment.
The majority judgment by Baartman and Judge Siraj Desai
was not read into the record.
The minority judgment by Judge Dennis Davis was also not
read in.
The main reason for granting the interdict rested on the
schools' argument that provincial Education MEC Donald Grant failed to
meaningfully consult with them on the closures.
The applicants' lawyer Norman Arendse had argued that the
Schools Act of SA required Grant to allow schools governing bodies and
communities a "reasonable opportunity" to make submissions to him.
He said that failing to do so amounted to a
"material irregularity, which vitiates the closure decisions".
Grant announced last year that 27 schools faced possible
closure for various reasons.
Public hearings were advertised, held and attended by
school governing bodies, parents and civil society.
Following these hearings, Grant announced in October that
he had decided to only close 20 of the schools after careful consideration.
He said these schools either had low enrolment numbers,
multi-grade classes or a decline in pupil numbers.
Desai found that the department's public hearings were
conducted in a "peculiar manner", without two-way debates or any
consultation processes.
"The hearings were patently farcical," Desai
said in his judgment.
"They were merely platforms for the Western Cape
education department to passively listen to the community and then report back
to the MEC."
He said that public hearings implied at the very least a
public dialogue, if not debate, with the elected representatives or delegated
officials.
The court said public hearings assumed greater importance
in this matter.
The right to education
The right to a basic education was accorded due
importance in the Constitution and the affected schools, largely rural, had an
"unfortunate legacy" which had to be prioritised if the imbalances of
the past were to be redressed.
There were also a significant number of schools involved,
and each school was located in a marginalised community.
"Viewed cumulatively, these factors warrant a proper
dialogue with the affected communities to enable them to make an informed
decision with regard to the future schooling of their children.
"The public dialogue must be a genuine attempt to
reach an agreement, which best suits the interests of all and enhances the
values enshrined in the Constitution."
The court thus found that the hearings did not meet this
criteria and that Grant's conduct fell below the standard required by the
Constitution and the relevant statutory provisions.
In the minority judgment, Judge Dennis Davis said that
after "anxious reflection", he would only have made an order in the
case of two schools.
It was his finding that Grant had showed
"commendable commitment to compel compliance with the requirements of the
act as I have interpreted them".
His view of the act was that Grant had complied with the
act in allowing representations, and that there was no legal basis for
importing the concept of "meaningful engagement" into the wording of
that section.
Decision to close the schools
Davis' opinion was that the act ultimately empowered
Grant to make the final decision on school closures.
He said the applicants had failed to make out a case that
a right to education had been compromised.
The interdict was against Grant, his department, Basic
Education Minister Angie Motshekga, and Justice and Constitutional Development
Minister Jeff Radebe.
It prohibited these parties from closing or merging the
schools and moving pupils, teachers, and resources.
It also compelled the parties to take all reasonable steps
to ensure necessary services were provided to the schools.
Eighteen schools originally contested the closure, but
one of the institutions, Tonko Bosman in Somerset West, agreed to closure.
The main review application was likely to be heard in
May.
- SAPA
