THE AUTHORITY TO DETERMINE ADMISSION POLICY BY A SCHOOL GOVERNING BODY INCLUDES THE POWER TO DETERMINE THE CAPACITY OF A PUBLIC SCHOOL BUT DOES NOT INFLEXIBLY LIMIT THE DISCRETION OF THE HEAD OF DEPARTMENT TO ADMIT A LEARNER Member of the Executive Counci

Abstract

During the latter part of the year 2012 and early 2013, various articles or commentaries dealing with the admission of learners to public schools appeared in daily and weekend newspapers. Some of them commented on the manner in which school governing bodies of public schools appeared to be discriminating in the admission of prospective learners, while others commended school governing bodies on performing their admission function in accordance with the powers granted to them by legislation.
The articles that appeared during early 2013 mostly commented about the opening of public schools for the academic year 2013 in the five inland provinces, while others berated the manner in which some prospective learners were refused admission by certain public schools. Before then, on 10 January 2013, Mogomotsi Magome mentioned in the Pretoria News of the same date that the Minister of Basic Education had said that “she‟ll fight tooth and nail to reverse the court ruling on school capacity”. The articles that appeared thereafter concentrated on whether school governing bodies of public schools in South Africa or the State, through the Department of Basic Education and its provincial education departments, has the power or authority to determine the admission criteria or capacity of public schools for the purposes of the admission of learners. Further comments on this issue appeared during April 2013.
During the rest of April 2013, most of the comments made in the newspapers dealt directly with the question that was raised in Governing Body, Rivonia Primary School v MEC for Education, Gauteng Province ([2012] 1 All SA 576 (GSJ), hereinafter “Rivonia [2012]”), which was by then taken on appeal to the Supreme Court of Appeal. The question for determination in this case was whether the capacity of a public school is determined by the school governing body or the provincial education department which is under a statutory duty to find sufficient capacity to provide schooling to all children of school-going age.
The above comments indicate the public interest that followed the decision in the Rivonia case. The reason for the interest shown is not difficult to find for the Constitution provides that everyone has the right to a basic education and as such the refusal to admit a learner by a public school may appear to be an infringement of this right. Furthermore the South African Schools Act of 1996 provides that a public school must admit learners and serve their educational needs without unfairly discriminating in any manner. Some of the comments as shown above, regarded the refusal to admit the learner in this case as unfair discrimination.
The Constitutional Court also had the opportunity to determine the issues raised in this case in Member of the Executive Council for Education in Gauteng Province v Governing Body of Rivonia Primary School (case CCT 135/12 [2013] ZACC 34). The judgment of the Constitutional Court was delivered on 3 October 2013. The following day, 4 October 2013, the public interest shown by the media resurfaced. The Constitutional Court judgment shall, for the purpose of this discussion, be referred to as Rivonia (CC).
In order to fully understand the legal issues involved in this case, it is necessary to have regard to the manner in which the South Gauteng High Court, the Supreme Court of Appeal and the Constitutional Court approached the determination of these issues.