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

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

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