Constitutional Court

Powers of Provinces to Address Access to Education, and the Constitutionality of Gauteng’s Admission Regulations (2016)

Federation of Governing Bodies for South African Schools v Member of the Executive Council for Education, Gauteng and Another [2016] ZACC 14 (20 May 2016)

The matter, in which Equal Education Law Centre (EELC) represented Equal Education (EE) as amicus curiae (friend of the court), concerned the validity of certain amendments to the Regulations Relating to the Admission of Learners to Public Schools published in 2012 (Regulations). The central issues were whether the Regulations were inconsistent with the South African Schools Act (Schools Act) or with the applicable provincial law; or are invalid because they are irrational or not reasonable nor justifiable.

Writing for a unanimous Court, Moseneke DCJ found that there was no conflict between the Schools Act, the Regulations and applicable provincial law. Rather, the Regulations were held to be legislation authorised by provincial legislation and may be read in harmony with the Schools Act and other national legislation.

Turning to specific regulations, the Court considered regulation 3(7) which disallows a learner’s prospective school from requesting confidential information from her current school. The Court held that the regulation properly combats unfair discrimination.

Proceeding to the issue of feeder zones, the Court held that the default position created by regulation 4(1) which determines feeder zones on a geographical basis, is indeed an interim, transitional arrangement. The Court found traction in the amicus’ submission that since the apartheid residential and workplace lines remain firm, the impact of the default feeder zone position is to prolong and legalise racial exclusion. The Court compelled the MEC to formulate fresh rules for feeder zones as required by regulation 4(1) within a reasonable time, and not later than 12 months from the date of judgment.

The Court finally found that the duty to place unplaced learners, and determine enrolment capacity and declare a school full falls on the MEC and HOD, respectively. However, the Court noted that the admission policy of a school must conform to all applicable law including provincial law. This means that the requirements of the Norms and Standards for School Infrastructure must apply until the Norms and Standards for School Capacity are promulgated.

The Court accordingly found all of the impugned regulations rational, reasonable and justifiable, but for the regulations relating to feeder zones, the latter to which it attached a finite time period for determination.

Admission Policies, the Duty of Provincial Departments and the Powers of School Governing Bodies (2013)

MEC for Education in Gauteng Province and Other v Governing Body of Rivonia Primary School and Others (CCT 135/12) [2013] ZACC 34; 2013 (6) SA 582 (CC); 2013 (12) BCLR 1365 (CC) (3 October 2013)

In 2010, a Grade 1 learner was refused a place at the school for the 2011 academic year and was placed on the school’s waiting list. The mother of the learner lodged a complaint with the Gauteng Department of Education (Department) an appeal to the MEC.

The HOD took the view that the school could admit the learner into one of its Grade 1 classes, overturned the school’s refusal of the application and issued an instruction to the principal to admit the learner. The principal refused to admit the learner and the HOD intervened by physically placing the learner in one of the Grade 1 classes, seating her at an empty desk.

The school lodged a High Court application, seeking a declaration that it had the power to make the admission policy and admit learners in accordance with that policy. The High Court dismissed the application. On appeal to the Supreme Court of Appeal, the Court held that the Department did not have the power to override the school’s admission policy and thus, the HOD’s instruction to the principal to admit the learner, and the HOD’s placing the learner in the school, was unlawful.

On appeal to the Constitutional Court, the majority of the Court concluded that the HOD had the power to admit the learner, subject to certain procedural constraints. It held that the power of the school governing body to determine capacity as part of its admissions policy is subject to the Constitution and other provisions of the Schools Act, which indicates a structure in which the Department retains ultimate authority regarding admissions.

School admission policies could not be inflexibly applied and, the Court said, it would be open to the principal or HOD to depart from that policy if there were good reason to do so.

The majority held that the HOD had not exercised his power in a procedurally fair manner. The Court held that co-operation is the compulsory norm in disputes between school governing bodies and national or provincial government. This co-operation is rooted in the shared constitutional goal of ensuring that the best interests of learners are furthered and that the right to basic education is realised.

Discrimination and the Rights of Pregnant Learners (2013)

Head of Department, Department of Education, Free State Province v Welkom High School and Another; Head of Department, Department of Education, Free State Province v Harmony High School and Another (CCT 103/12) [2013] ZACC 25; 2013 (9) BCLR 989 (CC); 2014 (2) SA 228 (CC) (10 July 2013)

In 2008 and 2009 the governing bodies of Welkom High School and Harmony High School respectively adopted pregnancy policies that excluded pregnant learners from attending school during certain time-periods. The HOD instructed the principals of the schools to readmit two learners who had been excluded from the schools in terms of the pregnancy policies.

In the High Court, the schools sought to interdict the HOD from interfering with the implementation of their policies by readmitting the learners. The High Court granted the interdict, and the Supreme Court of Appeal confirmed the High Court’s order. The HOD then appealed to the Constitutional Court, which dismissed the appeal.

The Constitutional Court reasoned that, as a matter of legality, the HOD’s supervisory authority had to be exercised lawfully in accordance with the Schools Act. Since the HOD had overrode school policies without following the relevant procedures set out in the Schools Act, he acted unlawfully. The interdict was therefore correctly granted by the High Court.

However, the Constitutional Court also acknowledged that the schools’ pregnancy policies at face-value infringed upon the constitutional rights of pregnant learners, including the rights to human dignity, to freedom from unfair discrimination and to receive a basic education. The Court ordered the schools to review the policies in the light of the requirements of the Constitution, the Schools Act and further considerations set out in the judgment. The parties were ordered to meaningfully engage with each other in the process of reviewing their policies, according to the principles of cooperative governance enshrined in the Schools Act. In this cooperative process, an approach which places the learners’ best interests as the starting point must be adopted.

Legitimate Expectations and Public Subsidies to Private Schools (2013)

KwaZulu-Natal Joint Liaison Committee v MEC Department of Education, Kwazulu-Natal and Others (CCT 60/12) [2013] ZACC 10; 2013 (6) BCLR 615 (CC); 2013 (4) SA 262 (CC) (25 April 2013)

In 2008, the Department of Education, KwaZulu-Natal (Department) issued a notice to independent schools setting out the “approximate” funding levels for the 2009 financial year. In May 2009, after the first payment for the year had already fallen due, the Department issued a circular warning schools that they should expect a subsidy cut not exceeding 30% for that financial year. The subsidies eventually paid to independent schools for 2009 were, on average, 30% less than those set out in the 2008 notice.

An association of independent schools brought an application in the High Court, arguing that the 2008 notice gave rise to an enforceable undertaking to pay the entire year’s subsidy without any reduction. The High Court dismissed the application and the Supreme Court of Appeal refused leave to appeal. The applicant approached the Constitutional Court for relief.

The majority of the Court held that even though the 2008 notice did not give rise to a contract between the schools and the Department, it nonetheless constituted a publicly promulgated promise to pay. The majority accepted that subsidies promised by government may generally be reduced. However, the majority held that, for reasons based on reliance, accountability and rationality, it is a constitutionally sound principle of our 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 their payment has passed. The Court therefore ordered the Department to pay the applicant schools the approximate amounts specified in the 2008 notice which had fallen due for payment on 1 April 2009.

The Nature of the Right to Education, and Eviction of Public Schools on Private Land (2011)

Governing Body of the Juma Musjid Primary School & Others v Essay N.O. and Others (CCT 29/10) [2011] ZACC 13; 2011 (8) BCLR 761 (CC) (11 April 2011)

On 11 April 2011, the Constitutional Court delivered judgment in a case concerning the right to a basic education where a private property owner sought to evict a public school conducted on its property. The applicants, the school governing body (SGB) of the Juma Musjid Primary School (school) and the parents and guardians of the learners enrolled at the school, appealed against an order granted by the High Court granting the Juma Masjid Trust’s (Trust) application to evict the MEC for Education, KwaZulu-Natal (MEC) and, effectively, the learners and educators of the school, from the private premises owned by the Trust. The SGB unsuccessfully applied for leave to appeal to the Full Court of the High Court and Supreme Court of Appeal.

In the Constitutional Court, the SGB challenged the conduct of: the Trust in enforcing its rights under section 25 of the Constitution as a private owner of land; the High Court in its failure to exercise its constitutional obligation to develop the common law to protect the learners; and the High Court’s failure to craft an appropriate order. Finally, the SGB contended that, in making its decision, the High Court failed to take into account the paramountcy of the best interests of the children.

At the first hearing, the Constitutional Court provisionally set aside the eviction order made by the High Court holding that the order had an impact on the learners’ right to a basic education under section 29(1) of the Constitution and on the learners’ best interests under section 28 of the Constitution. Given the imminent end of the 2010 school-year, the provisional order directed the MEC to engage meaningfully with the Trustees and the SGB in an effort to resolve the dispute. If this failed, the Court ordered the MEC to take steps to secure alternative placements for the learners. The MEC was required to file a report setting out its efforts. The Trustees were granted leave to apply directly to the Court for an order that would be just and equitable, including an eviction order.

The parties were heard for a second time on the 25 November 2010 and the Court received the first report submitted by the MEC. It was clear that that the closure of the school had become inevitable. As a result, the Court ordered the MEC to submit a further report to indicate that the MEC complied with the obligation to provide alternative schooling.

A second report was then filed by the MEC setting out sufficient information regarding the schools where the learners would continue their schooling. The Court was satisfied that alternative arrangements for the placement of the children for the 2011 school-year had been made and that the learners’ right to a basic education would be protected. The Court then considered an eviction application by the Trust, and was satisfied that a case for eviction had been established and the learners’ rights had been given effect to. The final eviction order was granted on 11 December 2010.

School Language Policies and the Power of Provincial Departments to Intervene for Equitable Access (2009)

Head of Department: Mpumalanga Department of Education and Another v Hoërskool Ermelo and Another (CCT40/09) [2009] ZACC 32; 2010 (2) SA 415 (CC) ; 2010 (3) BCLR 177 (CC) (14 October 2009)

This case concerns the constitutional right to be taught in an official language of one’s choice and the power of the Head of Department of Education (HOD) to withdraw the function of a school governing body (SGB) to determine the school’s language policy.

In January 2007 there was a shortage of space in English medium schools in the Ermelo area to accommodate new grade 8 learners. There were approximately 113 English speaking learners who could not be accommodated. Hoërskool Ermelo, an Afrikaans medium school, was built to accommodate 2000 learners but had only enrolled 587. However, in the light of its language policy, the school was only prepared to accommodate the additional learners if they were prepared to receive tuition in Afrikaans. In terms of the Schools Act, a school’s language policy is determined by that school’s SGB. However, on 25 January 2007, the HOD summarily withdrew the function of the SGB to determine the school’s language policy and appointed an interim committee to perform the function. On the same day, the interim committee met and decided to change the school’s language policy to parallel medium meaning that the school would provide tuition in English and Afrikaans, accommodating the additional learners.

The school challenged the decisions of the HOD in the High Court which upheld the decisions of the HOD. The Supreme Court of Appeal reversed this decision. The HOD and the Minister for Education sought leave to appeal against a decision of the Supreme Court of Appeal.

The Constitutional Court unanimously held that the Schools Act does give the HOD the power to withdraw on reasonable grounds the function of the governing body to determine the school’s language policy. This power derives from section 29(2) of the Constitution read together with section 22 of the Schools Act.

However, in this case, the exercise of the HOD’s power was tainted by his failure to distinguish the power given to him under section 22 (the power to withdraw certain functions of the governing body) from the power given to him under section 25 (the power to appoint an interim governing body). That is, the exercise of the power was contaminated by his incorrect reliance on section 25. Consequently, the withdrawal of the function, the appointment of the committee and the subsequent alteration of the schools language policy were unlawful and were set aside.

However, the in light of the constitutional right to basic education balanced against constitutionally enshrined language rights, the Court made an order requiring the school to report on the reasonable steps taken in reviewing its language policy and on the outcome of the review process. The Court recognised the plight of disadvantaged black learners, who are are often further disadvantaged by application of language policy preventing them access to schools, and the Court stressed that school governing bodies are bound to consider the best interests not only of learners in attendance at that school but also of the broader community.

The Court also ordered the HOD to report to the Court on the steps taken to ensure that there were enough places for grade 8 English learners at the start of 2010.

Discrimination in Schools and the Right to Cultural Expression (2007)

MEC for Education: Kwazulu-Natal and Others v Pillay (CCT 51/06) [2007] ZACC 21; 2008 (1) SA 474 (CC); 2008 (2) BCLR 99 (CC) (5 October 2007)

In 2004, Sunali Pillay returned to Durban Girls’ High School with a small nose stud. The school decided that Sunali Pillay should not be allowed to wear the stud. Her mother, Ms Pillay took the school and the KwaZulu-Natal MEC for Education to the Equality Court alleging that they had unfairly discriminated against Sunali Pillay and had violated her religious and cultural rights.

The Equality Court found that the school had not unfairly discriminated against Sunali Pillay. The High Court overturned the decision, on appeal, holding that the school had discriminated against Sunali Pillay and that the discrimination was unfair. The High Court accordingly declared the school’s decision prohibiting the wearing of a nose stud by Hindu/Indian learners to be null and void. Both the school and the Department appealed directly to the Constitutional Court.

The Court held that the rule prohibiting the wearing of jewellery had the potential for indirect discrimination because it allowed certain groups of learners to express their religious and cultural identity freely, while denying that right to others. The Court reasoned that the school had interfered with Sunali Pillay’s religion and culture and that interference amounted to discrimination.

The Court observed that this case was not about school uniforms in general, but about a specific exemption to a uniform. There was no evidence that permitting this particular exemption would imperil uniformity or school discipline in general. The fact that granting an exemption to Sunali Pillay might encourage more learners to express their religion or culture was to be celebrated, not feared. Accordingly, the Court concluded that the school’s discrimination against Sunali Pillay was unfair.

An order declaring that the refusal by the school to grant her an exemption from the Code unfairly discriminated against her was granted. In addition, the Court ordered that the school, in consultation with learners, parents and staff, amend the Code to provide for a procedure to reasonably accommodate religious and cultural practices.

Administrative Fairness and the Province’s Duty to Redistribute Resources (2002)

Bel Porto School Governing Body and Others v Premier of the Western Cape Province and Another (CCT58/00) [2002] ZACC 2; 2002 (3) SA 265; 2002 (9) BCLR 891 (21 February 2002)

When the Western Cape Education Department took over responsibility for schools in the Western Cape, there were gross disparities between schools formerly under the House of Assembly (HOA) Education Department, which catered for white children, and other departments which catered for other races.

Special (Elsen) schools for disabled children employ general assistants to help the children in classrooms and hostels and on buses. The HOA subsidised its schools, letting them decide how many general assistants to employ and on what terms. General assistants in other departments were employed by the departments and not the schools. To introduce an equitable system the WCED worked on a rationalisation and redeployment scheme (Scheme) under which teachers and general assistants at overstaffed schools would be moved to understaffed schools.

With smaller subsidies under the new system, the governing bodies of HOA Elsen schools complained that they were unable to cover the salaries of their general assistants and requested the WCED to employ them. The WCED declined as it already had a surplus of general assistants, some of whom would have to be retrenched when the Scheme was implemented. The HOA Elsen schools sued the WCED in the Cape High Court, contending that the decision by the WCED to implement the Scheme without first employing the general assistants at their schools infringed their constitutional rights to equality and to just administrative action. They requested an order directing the WCED to employ their general assistants on their behalf. Their application was dismissed by the High Court and they appealed to the Constitutional Court.

The appeal was dismissed primarily on the basis that the HOA schools received adequate notice of what the WCED’s intended to do and were given adequate opportunity to make representations. These representations were considered but rejected and thus, there was no basis for holding that the decision of the WCED did not meet the requirements of the Constitution for just administrative action.

Power of Minister to Determine Independent School Admissions (2001)

Minister of Education v Harris (CCT13/01) [2001] ZACC 25; 2001 (4) SA 1297 (CC); 2001 (11) BCLR 1157 (CC) (5 October 2001)

In January 2000 the Minister of Education (Minister) published a notice stating that a learner may only be admitted to grade one at an independent school if he or she turns seven in the course of that calendar year.

Talya Harris had for three years been attending pre-primary school in preparation for entry to primary school at the start of 2001. However, since Talya would only turn six in early January 2001, the notice prevented her from entering grade one. Her parents approached the High Court challenging the validity of the notice on a variety of grounds, among others, that it unfairly discriminated against children on the grounds of age and was against the best interests of children such as Talya. The High Court found in favour of the Harris. The Minister appealed to the Constitutional Court.

In a unanimous judgment, the Constitutional Court held that the matter was best decided not on the broad constitutional questions raised, but on whether the Minister had the power under the National Education Policy Act to issue the notice he did. The Court held that that Act only gave the Minister powers to determine policy and not to impose binding law. The appeal was therefore dismissed.

The Unlawfulness of Corporal Punishment (2000)

Christian Education South Africa v Minister of Education (CCT4/00) [2000] ZACC 11; 2000 (4) SA 757; 2000 (10) BCLR 1051 (18 August 2000)

This case concerned the prohibition by the South African Schools Act, 1996, of corporal punishment in schools. Christian Education South Africa, representing 196 independent Christian schools, contended that this prohibition violates the right of parents of its pupils to freedom of religion and that it interferes with the right to establish independent schools, the right to participate in the cultural life of their choice, the right to enjoy their culture and to practise their religion.

The Minister of Education argued that corporal punishment violates the right of the child to human dignity, to equality, to be protected from maltreatment, neglect, abuse or degradation, to be free from violence, not to be tortured and the right to be free from cruel, inhuman or degrading treatment. The legislation enacted sought to respect, protect, promote and fulfil the rights in the bill of rights that would be violated by corporal punishment.

The Court found that parents of Christian children are not being forced to make an absolute choice between obeying a law of the land or following their conscience. Schools are not prevented from maintaining their specific Christian beliefs, but they cannot authorise or instruct teachers to inflict corporal punishment on children in the name of their religious convictions. The Court held that the Minister had established that the prohibition of corporal punishment was part and parcel of a national program to transform the education system and bring it into line with the letter and spirit of the Constitution. The creation of uniform norms and standards for all schools was crucial for educational development, as was a coherent and principled system of discipline. The state was also under a constitutional duty to take steps to help diminish the amount of public and private violence in society generally, and to protect all people, especially children, from maltreatment, abuse or degradation. Furthermore, in every matter concerning a child, the child’s best interests were of paramount importance. This principle was not excluded in cases where the religious rights of the parent were involved.

The Court accordingly upheld the ban on corporal punishment in schools as lawful.

Procedural Fairness in the Cancellation of Bursaries to Former Model C Schools (1999)

Premier, Province of Mpumalanga and Another v Executive Committee of the Association of Governing Bodies of State Aided Schools: Eastern Transvaal (CCT10/98) [1998] ZACC 20; 1999 (2) SA 91; 1999 (2) BCLR 151 (2 December 1998)

During August 1995, the MEC for Education in Mpumalanga decided to discontinue paying all bursaries to ‘Model C’ schools in the province of Mpumalanga with effect from July 1995. The Association of Governing Bodies of State-aided Schools: Eastern Transvaal (the Association), challenged this decision in the TPD which set aside the MEC’s decision.

In the appeal before the Constitutional Court, both parties agreed that the bursaries, which were paid to schools which mainly educated white pupils, were one of the unfair legacies of the past dispensation that needed to be eradicated. The only dispute between the parties concerned the manner in which the bursaries were terminated.

The Court found that the governing bodies of the schools had a legitimate expectation that the government bursaries would continue to be paid during the 1995 school year, subject to reasonable notice by the government of its intention to bring them to an end. Accordingly, in terms of their constitutional right to fair administrative action, this meant that the MEC had either to give reasonable notice prior to the termination of the bursaries or had to act in a procedurally fair manner if he wished to bring the bursaries to an end before December 1995. It is evident that no reasonable prior notice was given. Thus, the Court had to decide what the requirements of procedural fairness required in this case (a circumstances of the case enquiry).

The Court found that the bursaries were discontinued retrospectively, without reasonable notice and without affording the Association and its members an opportunity to be heard or to restructure their contractual obligations in the light of the diminished income. This constituted a breach of their constitutional right to procedural fairness. The MEC’s decision was therefore constitutionally invalid. The Court determined that as the bursaries were payable only until the end of 1995, and that time period had long since passed, this was not an appropriate case to refer back to the MEC in order for him to act in a manner which would cure the unconstitutional action. In the result the Constitutional Court simply dismissed the appeal. The practical effect of this is that the bursaries were to be paid until the end of 1995.

Supreme Court of Appeal

Textbooks and the Right to Basic Education (2015)

Minister of Basic Education v Basic Education for All (20793/2014) [2015] ZASCA 198 (2 December 2015)

The case concerned the Department’s failure to provide learners at public schools in Limpopo with textbooks following the roll-out of a new curriculum starting in 2012. By May 2012, the Department had not ensured that each learner had a textbook for each subject, and eventually the high court (in a separate case) ordered that this be rectified according to a timeline. The Department did not comply with that timeline, and also failed to ensure that each learner had a textbook for each subject in 2013 and 2014. Specifically, since the Department had complied with the High Court order in the separate case in every province except Limpopo, the Department’s conduct thus amounted to unfair discrimination against the affected learners.

Moreover, the Court upheld the High Court’s order that the Department had infringed the affected learners’ rights to a basic education, equality and dignity. However, it noted that parts of that order had been overtaken by time, and it was thus necessary to re-craft it to deal with the Department’s obligations in respect of future years, including the 2015 school year. The Court accordingly declared that it is the duty of the State, in terms of s 7(2) of the Constitution, to fulfil the right of every learner to basic education by providing him or her with every textbook prescribed for his or her grade before commencement of the teaching of the course for which the textbook is prescribed.

Closure of Public Schools and Requirements for Due Process (2014)

Minister of Education for the Western Cape v Beauvallon Secondary School (865/13) [2014] ZASCA 218; (2015) 2 SA 154 (SCA); [2015] 1 All SA 542 (SCA) (9 December 2014)

The provincial Minister for Education (the Minister), had taken a decision – in the implementation of national education policy – to close a number of schools in the province, acting under section 33 of the South African Schools Act 84 of 1996 (SASA). Initially, eighteen of the affected schools and their respective school governing bodies launched an application seeking an order reviewing and setting aside the Minister’s decision. The South African Democratic Teachers Union (SADTU), a trade union representing the interests of certain teachers, was later joined.

The applicants alleged that the decision was procedurally unfair, in that the Minister had not provided sufficient reasons for the impending closures, and the schools were thus not able to make meaningful representations thereon as required by the Act. An attack on the constitutionality of section 33 of the SASA accompanied these claims. In testing the sufficiency of the reasons supplied by the Minister to the schools for their intended closure, the Court noted that the prevailing test for fairness, while dependant on the particular circumstances of the matter before the court, is whether the affected party was “informed of the gist of the case which he has to answer”. As long as the gist of his reasons was conveyed, the Minister was thus not obliged to spell out in great detail why the particular schools were being considered for closure and did not have to explain the underpinning policy of the decision.

The Court held that, while terse, in most instances the reasons provided were sufficient to communicate the ‘gist of the case” to be answered. However, with regard to Beauvallon Secondary School, the final reasons provided by the Minister for its closure differed from those initially given to the school, on which basis it made its representations, and appeared to have come from the Department itself rather than having emerged during the consultation process. The Court held that, as the final reasons for closure differed materially from those initially provided, and thus the gist of the case to be met was not laid out, the procedure followed in regard to this particular school was fatally flawed for failure to comply with the provisions of the SASA.

In the result, save for the instance of Beauvallon, the court a quo’s decision to review and set aside the Minister’s decision to close the remaining schools could stand and the appeal succeeded.

High Court

Attaching property for unpaid school fees - KZN (2017)

St Charles College v Du Hecquet De Rauville and Others (14307/15) [2017] ZAKZPHC 12 (12 April 2017) 

KwaZulu-Natal High Court:

The case concerns the parents of two learners at St Charles College, an independent (private) school in Pietermaritzburg, who owe fees of a total of R627 110.09 to the school.

The fees were incurred for the 2014 and 2015 academic years, and the parents signed acknowledgement of debt for them. Both learners matriculated in 2015. The school therefore took the parents to court to recover the amount of initially R428 278.09 – for which the school obtained summary judgment for in 2015. In 2016 the school then obtained default judgment for a further R198 832 which was previously in dispute.

To satisfy the judgment, the school tried to attach the parents’ moveable assets but these only amounted to about R6 000. The school therefore argued that it had to attach the parents’ home as it had no other choice to recover the debt it was owed.

The Court found that both parents were employed full time. They also attempted to sell the property, so they could not have any sentimental value for the property and can afford alternative a commission. The court found that both parents voluntarily made an informed choice to place their children in an independent school, and could have chosen to place their children in public school. They could not argue that they were unfairly discriminated against as the decision to send their children to an independent school was based on economic and financial choices they enjoyed and which many other parents do not. Such an exercise of choice could not impair their dignity, which is the test for unfair discrimination.

The Operation of Low-Fee Private Schools on Incorrectly Zoned Land - (2017)

Lukas Pieter Fourie v Centuria 266 (Pty) Ltd and Others (97146/2016) (13 January 2017)

Gauteng High Court:

In this case the applicant asked the court to prohibit a low-fee private school from operating on a property in the East of Pretoria (the court calls this property “Holding 1”). The first respondent was the owner of the property and the second respondent, Eadvance (Pty) Ltd, was a company that operated the private school called ‘Spark School Silver Lakes’, and leased the last from the first respondent in order to do so.

The applicant, Lukas Fourie, owned two properties very near to Holding 1. In 2004 the previous owner of Hlding 1 had been granted the right to conduct the operation of a conference facility, a chapel, a reastaurant of 1300 square metres and a covered outside seating of 400 square metres, on the property.

In 2016 Mr Fourie learned through an advertisement board that Eadvance intended to open a school on Holding 1, and claimed that this was unlawful because of the restrictive zoning of the property.

The court agreed with Mr Fourie’s claim that the school was unlawfully established. However, the court noted that there are national problems surrounding access to education and that a news report on 11 January 2017 said that about 40 000 children were not yet accommodated in schools. The court also noted that the man access gate to Holding 1 was not in the street from which Mr Fourie enters his properties.

Because the school was serving low income families and providing education to previously disadvanataged learners who might be prejudiced by its closure, and because of the limited prejudice to Mr Fourie by its operation, the court refused to grant Mr Fourie’s application for an interdict against that operation.

Scholar Transport is a Component of the Right to Education - EC (2015)

Tripartite Steering Committe and Another v Minister of Basic Education and Others (1830/2015) [2015] ZAECGHC 67 (25 June 2015)

Eastern Cape High Court:

The applicants in this case sought orders directing the Eastern Cape Province education government to provide scholar transport to a number of learners. The applicants also seek orders directing the provincial government to complete the process of adopting a new scholar transport policy, to publish it and to report to the court on compliance with these duties. The applicants further sought orders directing the provincial government to include particular mechanisms and procedures in the policy.

The Court held that the right to basic education, in order to be meaningful, includes the right to learner transport. Accordingly, in instances where scholars’ access to schools is hindered by distance and an inability to afford the costs of transport, the State is obliged to provide transport to them in order to meet its constitutional obligations and to promote and fulfill the right to basic education.

Against this backdrop, the Court ordered the provincial government to the applicant learners who had successfully applied for scholar transport. The Court also reviewed and set aside the provincial department’s decision to refuse scholar transport to the second group of learner applicants. These applications were remitted to the department for new decisions to be taken.

On the issue of the national scholar transport policy, the provincial government was directed to report to the Court on the progress in the adoption of the new scholar transport policy. However, the Court held that since the development and formulation of policy lies within the exclusive domain of the executive branch of government, the Court refused to grant an order directing that the new policy contain mechanisms advanced by the applicants.

The Obligations to Pay Appointed Educators and Fill Educator Posts - EC (2015)

Linkside and Others v Minister of Basic Education and Others (3844/2013) [2015] ZAECGHC 36 (26 January 2015)

Eastern Cape High Court:

The case concerns the ongoing failure of the Eastern Cape Department of Basic Education to appoint educators in vacant posts at various public schools throughout the province, and the consequent violation of the right of children in those schools to basic education.

Since 2011, the provincial Department had timeously declared educator post establishments, but had repeatedly failed to appoint educators in vacant posts, or failed to pay the appointed teachers. As a result, schools were forced to appoint and pay educators in unfilled vacant posts. The salaries for these educators were not included in the schools’ budgets and payment by the schools of their salaries reduced the financial resources needed for other school activities. Non-fee-paying schools, which did not have the funds to fill the vacant posts, suffered a shortage of educators.

The provincial department acknowledged that they were required to fill all vacant posts and were liable in principle to reimburse schools which had paid educators occupying vacant posts. These obligations were encompassed in a previous court order by Alkema J. However, at the time of this application, the posts had not been filled, given the Department’s slow and incomplete attempts to move excess educators in various schools to vacant posts. The applicants wished to remedy this status quo. The provincial department also took issue with the part of Alkema J’s order which required retrospective reimbursements for the years 2011 to 2012 and the appointment of a claims administrator to handle the reimbursement claims. These disputes gave rise to the present application.

The Court held that both the retrospective reimbursements and appointment of the claims administrators were competent. Regarding the failure of the provincial Department to appoint educators in vacant substantive posts, the Court held that the resultant ongoing violation of the right to basic education constitutes exceptional circumstances in terms of which the Court could substitute its own plan of action for that of the department. The order provided that educators occupying vacant posts be deemed to be appointed as permanent educators insofar as the appointments will not exceed schools’ 2015 educator post establishment.

The Right to Attend Schools with Adequate Furniture - EC (2014)

Madzodzo and Others v Minister of Basic Education and Others (2144/2012) [2014] ZAECMHC 5; [2014] 2 All SA 339 (ECM); 2014 (3) SA 441 (ECM) (20 February 2014)

Eastern Cape High Court:

In October 2012, parents of learners attending schools in the Eastern Cape Province brought an application for an order declaring the respondents to be in breach of the learners’ rights to education, equality and dignity given their failure to provide essential school furniture, in the form of desks and chairs to public schools throughout the province.

In November 2012, Griffiths J granted an order by consent of the parties providing that the respondents must ensure that the applicant schools receive adequate, age and grade appropriate furniture by January 2013. The respondents were also to file a report indicating their compliance with the order by 21 January 2013 and an audit report assessing the furniture needs at all public schools in the province and a plan detailing when the required furniture would be provided by 28 February 2013. The order contained an undertaking made by the respondents that they would endeavour to ensure that the furniture needs of all schools listed in the audit would be met by June 2013.

In August 2013, the applicants launched further proceedings on the basis that the respondents failed to comply with the terms of Griffiths J’s order. Makaula J granted a consent order in terms of which the respondents would verify the furniture needs of schools in the province by 15 November 2013 and that a further audit report be completed by 17 December 2013. The issue of when the furniture needs recorded in the December 2013 audit report were to be delivered to schools was to be argued before the same Court on 30 January 2014.

In January 2014, it came to light that the December 2013 report had yet to be finalised, and would only be completed at the end of February 2014. The applicants accordingly sought an order that all the furniture in the audit be delivered to the identified schools within 90 days of the completion of the audit report. The respondents, however, contended for an open ended order allowing them to take into account budgetary and resource constraints. Such an order would entail a reasonable plan of action to provide furniture to learners within the shortest period of time.

The Court held that the shortage of furniture of schools in the Province is a serious impediment for children attempting to access the right to basic education in the Province. The dilatory attitude of the respondents, and the State’s failure to offer a date by when it would deliver furniture, caused the Court to hold that an open ended order was unreasonable and wholly inadequate, providing learners in the Province with no prospect of achieving access to basic resources required to access the right to basic education. Learners in the Province were entitled, according to the court, to immediate access to basic education and to be treated equally and with dignity.

The Court thus granted an order declaring that the respondents breached the constitutional rights of learners in public schools in the Province to basic education, by failing to provide adequate, age and grade appropriate furniture to the learners. The respondents were to provide the furniture to the schools identified in the audit within 90 days of the completion of the order. The time period for delivery of the furniture may be extended upon application by the respondents, subject to full disclosure as to the steps already taken to meet the deadline, reasons for non-compliance with the deadline and the projected time period within which the furniture needs would be met.

Unlawful Discrimination against a Rastafarian Learner - FS (2013)

Radebe and Others v Principal of Leseding Technical School and Others (1821/2013) [2013] ZAFSHC 111 (30 May 2013)

Free State High Court:

In January 2013, Lerato Radebe was removed from her classroom in Leseding Technical School and sent home because she was wearing dreadlocks, in contravention of the school’s code of conduct which provided that “hairstyles must be neat and short. No elaborate style (such as … dreadlocks …) are allowed”. Lerato, her parents and Equal Education (the applicants) contended that Lerato’s right to education had been violated by her being removed from classes and that the school’s instruction that Lerato cut her hair was a violation of her faith and unfairly discriminated against her.

The Court agreed with the applicant’s contentions and held that the school acted unlawfully and in a discriminatory manner in banishing Lerato from her classroom during school hours. Moreover, the Court regarded the school’s requirement that Lerato cut off her dreadlocks as unfair discrimination on the basis of religion. The school’s conduct further violated Lerato’s constitutional rights to equality, dignity, education and the freedoms of religion, belief, opinion, expression, association and culture.

The school was thus interdicted from preventing Lerato from participating fully as a grade 8 learner at the school and from harassing, disadvantaging, victimising or discriminating against her in any way. The Court ordered that the school allow Lerato back into school with immediate effect, and that arrangements be made to assist Lerato in catching up the months of schooling she had missed.

Educator Allocations - Compliance with Educator Post Provisioning Procedure - EC (2013)

South African Democratic Teachers Union (SADTU) and Others v MEC for the Department of Basic Education: Eastern Cape Province and Others (573/12) [2013] ZAECBHC 2; [2013] 2 All SA 474 (ECB) (18 February 2013)

Eastern Cape High Court:

The applicants in this case sought an order reviewing and setting aside the educator post establishment for 2013 declared by the MEC for Education, Eastern Cape and the 2013 post establishment for public schools declared by the provincial HOD. The applicants contended that the HOD failed to convey the post establishment to public schools before 30 September 2012, as required by law.

The Court embarked on a thorough interpretation of the relevant legislation (section 5 of the Employment of Educators Act, 1998; Norms and Standards for School Funding; and section 5A and 58C of the Schools Act) and found that it would be absurd to find that post establishments made after 30 September 2013 would be invalid. Such an approach could never ave been forseen or intended by the Legislature. The consequences of such an approach would have far reaching financial ramifications for the department and would in effect mean that the department would be compelled to implement the post establishment for the previous year regardless of budgetary constraints.

In this case, both the MEC and HOD had substantially complied with the provisions of section 58C. The MEC announced the post establishment for 2013 on 28 September 2012. On 16 October 2013 the HOD issued ‘pre-trial post establishments” for schools and requested their input for the final post allocation. The final post allocations were communicated to District Directors on 1 November and to schools the following day. Their non-compliance was in my view therefore not so egregious that it had made it impossible for schools to function optimally.

The Court thus dismissed the appeal.

The MEC’s Obligation to Provide for and Fill Placements of Educators and Support Staff in Schools - EC (2012)

Centre for Child Law and Others v Minister of Basic Education and Others (1749/2012) [2012] ZAECGHC 60; [2012] 4 All SA 35 (ECG); 2013 (3) SA 183 (ECG) (3 July 2012)

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Eastern Cape High Court:

Against the backdrop of a “crisis of immense and worrying proportions” in public schools in the Eastern Cape province, this case pertains to the longstanding failure of the provincial Department of Basic Education to attend to post provisioning. The result of the provincial Department’s failure is that some schools have more teachers than necessary, while others have too few teachers. Consequent prejudicial effects on teaching and learning ensued. As the provincial Department failed to take steps to transfer surplus teachers to where they were required, the budget spiralled out of control because teachers at under-resourced schools were appointed to fill vacant posts on a temporary basis.

The specific issue for decision in this case is the provincial department’s failure to provide effective support for administrative processes of schools in the province – that is, the provisioning of non-teaching staff at schools.

The Court held that without proper administration in schools, the right of learners to basic education is threated. The Court found that the Public Service Act empowers the MEC to determine the establishment for non-teaching staff; the Norms and Standards for School Funding postulate an adequate number of both teaching and non-teaching staff to be employed at each school and a correlation between both staff posts; and the South African School Act requires both teacher and non-teacher establishments to be known by governing bodies before their budgets can be approved and to allow them to determine how many additional posts are needed at their schools. The inescapable interpretation of this legislation consistent with the right to basic education, according to the Court, was that the MEC is empowered and indeed obliged to determine the establishment for both teaching staff and non-teaching staff at public schools in the province.

The Court thus ordered that the provincial department was obliged to declare post establishments for both teaching and non-teaching staff for 2013 for public schools in the province and that it is required to fill those posts.

The Rights of Learners with Intellectual Disabilities - WC (2010)

Western Cape Forum for intellectual Disability v Government of the Republic of South Africa and Another (2011 (5) SA 87 (WCC)) [2010] ZAWCHC 544; 18678/2007 (11 November 2010)

Western Cape High Court:

This case concerned the provision of education for children with severe and profound intellectual disabilities in the Western Cape.

The applicants argued that the state makes no direct provision for the education of children with severe or profound intellectual disabilities and does not provide schools for such children in the Western Cape. Any provision for the education of such children is very much less than is provided for other children, is inadequate to cater for the education needs of the children, and only made available where a non-governmental organisation provides such facilities. On these bases, the applicants argued that provincial department policies and practices infringe the rights of children in respect of their rights to education, equality, human dignity and to be protected from neglect and degradation.

The Court undertook extensive analyses to assess whether the abovementioned rights were indeed violated. The Court ultimately found that the provincial department failed to take reasonable measures to make provision for the educational needs of severely and profoundly intellectually disabled children in the Western Cape, in breach of the right to basic education, protection from neglect and degradation, equality and human dignity. The provincial department was directed to take reasonable measures (including interim steps) in order to give effect to these rights. The provincial department was also directed to deliver a report on the implementation of the Court order within 12 months.