Brief background


In 2010 Rivonia Primary School refused to admit a child to grade 1 (for 2011) because the school, according to the SGB, was full.  The Gauteng Department of Education (GDE) instructed the school to admit the pupil, contrary to the school’s admission policy and when the principal refused to do so, departmental officials physically placed the learner in one of the school’s grade 1 classrooms. The SGB went to the South Gauteng High Court  to seek a declaratory order, but lost their application, as the Court ruled  that the overall authority to determine school capacity rested with provincial education department. The GDE also disciplined the principal.  The SGB then turned to the Supreme Court of Appeal (SCA) in 2012. The SCA found  that the GDE’s instruction  to the school was unlawful. The judgment overturned the High Court decision.   The GDE subsequently took the matter to the Constitutional Court.


Who has the final say? What the Constitutional Court said ...


Based on Constitutional imperatives, an interpretation of the South African Schools Act (SASA) and the Gauteng provincial legislation, the SGB may determine the admission policy and the capacity of the school, but the department has the final say and may override the school’s policy – “the Department maintains ultimate control over the implementation of admission decisions”. However, what is equally important is that “a decision to overturn an admission decision of a principal, or depart from a school admission policy, must be exercised reasonably and in a procedurally fair manner” which, according to the ConCourt, the GDE did not do.


The need for cooperation


Although the ConCourt ruled in favour of the department, it was critical of the GDE and the school. The judgment says both parties could and should have done more to prevent the need for litigation –“cooperation is the required norm” NAPTOSA supports the “required norm”, however it is difficult to foster cooperation where departmental officials are aggressive and heavy handed and threaten school principals with disciplinary action should they disagree with them. Commenting on the behaviour of the department’s officials, the ConCourt observed that “It created antagonism and mistrust, causing the Rivonia Governing Body to recoil”


One journalist remarked that this is the first landmark ruling to deal with the balance between the right to education versus the quality of teaching and learning.