Tag: Constitutional Court

Concourt places Rivonia Primary’s admissions under state control

Rivonia Primary School
Rivonia Primary School

The education department has the power to override a school’s admission policy, the Constitutional Court found on Thursday.

It upheld, in part, an appeal against a judgment of the Supreme Court of Appeal (SCA), holding that the head of the education department in Gauteng had the power to admit a pupil in excess of Rivonia Primary School’s admission policy.

The matter came before the Constitutional Court after a Grade One pupil was refused a place at the Johannesburg school for the 2011 academic year, and placed on a waiting list.

The child’s mother lodged a complaint with authorities, and the head of department in Gauteng instructed that the child be admitted.

The school brought an application in the High Court in Johannesburg, seeking a declaration that it had the power to set admission policy, and admit pupils in accordance with that policy. The court dismissed the application.

The school then approached the SCA, which held that the department did not have the power to override the school’s admission policy. The matter was then escalated to the Constitutional Court.

On Thursday, the court’s majority judgment was that the head of department had the power to admit the pupil.

The Constitutional Court granted leave to appeal, and set aside and replaced the SCA’s order.

“It is declared that the head of department of education in the province of Gauteng was empowered to issue an instruction to the principal of Rivonia Primary School to admit the learner in excess of the limit in its admission policy.”

However, the court found that in exercising its power to instruct a principal of a public school to admit a pupil, the department had to act in a procedurally fair manner.

“It is declared that the head of department of education in the province of Gauteng did not act in a procedurally fair manner when he issued instructions to the principal of Rivonia Primary School to admit the learner and when he placed the learner in the school.”

In an explanatory statement issued after the judgment, the court said a school governing body’s power to determine capacity as part of its admission policy was subject to other provisions of the Schools Act, including that the department maintained “ultimate control over the implementation of admissions decisions”.

Further, provincial regulations afforded the head of department the power to overturn a principal’s rejection of a pupil’s application for admission. – Sapa

Rivonia Primary case in Constitutional Court to determine fate of ‘Model C’ schools

Rivonia Primary School

The court case between the Gauteng education department and Rivonia Primary School over admission policies is crucial for access to education, Section27 said on Wednesday.

“The Constitutional Court’s decision in the case is a crucial one for the future of access to equal education in South Africa,” spokeswoman Nikki Stein said.

The Constitutional Court is scheduled to hear the case on Thursday. It involves the admission policy of a former model C school, Rivonia Primary, in Johannesburg.

According to Section27, the school refused to admit a Grade One pupil in 2011, saying it had no capacity.

The department intervened and instructed the school governing body (SGB) to override its policy and admit the pupil.

The dispute between the department and the school is around which of them has the final say in determining a school’s capacity.

The case would determine who had the final say about how many children were admitted to a school, in what language they would be taught, and who would be excluded from a school on the basis of an SGB’s admission and language policies, said Stein.

Also awaiting the outcome of the case were residents of Fochville, on the West Rand.

Stein said Section27 was representing 54 parents against the SGB of Hoerskool Fochville, a public school that adopted an Afrikaans language policy which excluded English-speaking pupils.

“Hundreds of learners from Fochville and nearby Kokosi township travel 25km to attend English medium schools,” she said.

Fochville SGB’s refusal to become a dual medium school is said to discriminate against pupils on the grounds of their race.

The Fochville case would be heard in the High Court in Johannesburg.

Section27 and Fochville residents are expected to picket outside the Constitutional Court on Thursday. – Sapa

Powerful English NGO attacks Afrikaans school in court

Nikki Stein of Section 27

The court case between the Gauteng education department and Rivonia Primary School over admission policies is crucial for access to education, Section27 said on Wednesday.

“The Constitutional Court’s decision in the case is a crucial one for the future of access to equal education in South Africa,” spokeswoman Nikki Stein said.

The Constitutional Court is scheduled to hear the case on Thursday. It involves the admission policy of a former model C school, Rivonia Primary, in Johannesburg.

According to Section27, the school refused to admit a Grade One pupil in 2011, saying it had no capacity.

The department intervened and instructed the school governing body (SGB) to override its policy and admit the pupil.

The dispute between the department and the school is around which of them has the final say in determining a school’s capacity.

The case would determine who had the final say about how many children were admitted to a school, in what language they would be taught, and who would be excluded from a school on the basis of an SGB’s admission and language policies, said Stein.

Also awaiting the outcome of the case were residents of Fochville, on the West Rand.

Stein said Section27 was representing 54 parents against the SGB of Hoerskool Fochville, a public school that adopted an Afrikaans language policy which excluded English-speaking pupils.

“Hundreds of learners from Fochville and nearby Kokosi township travel 25km to attend English medium schools,” she said.

Fochville SGB’s refusal to become a dual medium school is said to discriminate against pupils on the grounds of their race.

The Fochville case would be heard in the High Court in Johannesburg.

Section27 and Fochville residents are expected to picket outside the Constitutional Court on Thursday. – Sapa

No extradition of murderers from South Africa unless assurances on death penalty

A Botswana national wanted for murder may not be extradited unless that country gives assurances he would not face the death penalty, the Constitutional Court ruled on Friday.

Justice Edwin Cameron said it would be a breach of the statutory values of the South African Constitution to hand him over to Botswana without this guarantee.

He dismissed the appeal by South Africa’s ministers of home affairs and justice, re-affirming a previous judgment which set a precedent in this regard.

The precedent-setting judgment related to Khalfan Mohamed, who was wanted by the United States of America in connection with the bombing of its embassy in Tanzania in 1998.

The Constitutional Court ruled previously that even if there was an extradition agreement between South Africa and the US, he could not be handed over without an agreement that he would not face the death penalty.

Friday’s ruling related to Botswana citizens Emmanuel Tsebe and Jerry Phale, who entered South Africa, allegedly after murdering family members in separate cases. Tsebe has since died.

Phale’s attorney Jacob van Garderen said it was important to affirm that there would not be an extradition to a country where people faced the death penalty, without such an agreement.

“The court again emphasised that the imposition of the death penalty is unconstitutional, in line with the judgment of Mohamed.”

Van Garderen said Friday’s judgment meant Phale no longer faced the immediate risk of being extradited.

“But nothing stops the (Botswana) government from making a new request.”

Bongumusa Sibiya, attorney for a respondent in the case, the Society for the Abolition of the Death Penalty, said the society was pleased with the ruling.

“It confirms the legal position in South Africa,” he said.

“It also means that the country continues to uphold people’s right to life, and that it won’t be taken lightly.”

The death penalty is not allowed in South Africa.

Sibiya said a solution to this “conundrum” was for South Africa to enact legislation enabling it to try people wanted for crimes elsewhere.

According to papers submitted to the court, the entry to and departure from South Africa of wanted individuals was the responsibility of the department of home affairs.

Getting their warrants of arrest and any subsequent prosecution for illegal entry were the responsibility of the departments of home affairs, safety and security, correctional services and justice.

Requests for extradition were directed at the department of international relations, and the decision on whether to extradite vested in the minister of justice.

Murder is an extraditable offence in terms of the relevant extradition treaty which exists between the republics of Botswana and South Africa.

Extradition may be refused if the offence is punishable by death. The treaty makes no provision for either a request for, or provision of the undertaking that was required in Mohamed’s case.

During the course of the case, South African authorities had to consider several other possible developments: that Phale may apply for asylum and therefore be immune to prosecution, and also that trying to deport him for being in the country might look like a “disguised extradition”.

The State had argued that the case had created a situation where fugitives could obtain residence in South Africa, immunity from prosecution, and relative freedom.

It had argued that the South African government had a duty to allow its citizens to be free of fear and its inhabitants to be secure.

At the same time, it did not have jurisdiction to try foreign nationals for offences they committed elsewhere so, as a matter of policy, would seek to return them to their country. – SAPA