KZN schools fight for funds

2012-11-23 00:00

THE Constitutional Court has reserved judgment in a case concerning a decision by the KZN Education Department drastically to cut subsidies to independent schools halfway through a school year.

The issue before the Concourt is whether or not the department was legally bound to honour a notice it had issued to independent schools in the province, in September 2008, in which it set out its “approximate” funding levels for the financial year 2009/2010.

On May 5, 2009 — seven months after the notice went out — the department sent a circular indicating that, due to budgetary constraints, the schools should expect a cut in their subsidies of not more than 30% of their original budget.

According to a media summary issued by the Concourt yesterday, the subsidies eventually paid to the independent schools that financial year varied, but were, on average, 30% less than what they were promised in terms of the notice.

It has been reported in the media that the issue was raised with the Public Protector recently by the National Alliance of Independent Schools (Naisa), which has accused five of the country’s education departments of maladministration regarding payment of subsidies to low- and medium-fee independent schools.

Dr Jane Hofmeyr of the Independent Schools Association of South Africa has been quoted as saying the sustainability of independent schools in the country is being threatened.

The KwaZulu-Natal Joint Liaison Committee — an association of independent schools — launched an application in the KZN High Court in November 2010 against the provincial and national education departments in a bid to force them to comply with the notices and pay the full subsidies.

The application was dismissed on a legal technicality concerning the meaning of the word “approximate” in the department’s notice.

Leave to appeal to the Supreme Court of Appeals was also refused.

It has now been submitted on behalf of the independent schools concerned in the Concourt, that by sending out the notice the KZN Education Department had acted with an intention to enter into a binding contract with them.

It was argued that the past practice of the department had been to award precisely the amount mentioned in the notice, that the affected schools had to be able to budget for themselves, and that the court should order the department to pay the amounts promised in the 2008 notice.

The department contended, however, that no contract exists and that the 2008 notice was merely a guideline to schools.

The Centre for Child Law (CCL), which was admitted as a friend of the court (amicus curiae), submitted that children’s basic right to education was threatened by the decision to reduce subsidies.

The CCL submitted that the notice had created a legitimate expectation that the amounts promised would not be drastically cut after the schools had already budgeted, and should be enforced.

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