Western Cape schools interdict explained

2013-03-20 14:30
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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.

Read more on:    norman arendse  |  siraj desai  |  dennis davis  |  donald grant  |  cape town  |  education

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