LEARNER ENTRY INTO GAUTENG PUBLIC SCHOOLS II - THE CONSTITUTIONAL COURT JUDGMENT

Background
On the 20^th May 2016 the Constitutional Court delivered judgment in the case of The Federation of Governing Bodies for South African Schools & Others v The Member of the Executive Council for Education Gauteng & Others.

Essentially this matter involved FEDSAS (who is the national representative organisation for school governing bodies) concern over the validity of certain amendment provisions within the Regulations Relating to the Admissions of Learner’s to Public Schools.[1] The dispute was centred on whether the MEC or HOD had been given more power than that of the relevant governing school bodies. 

This matter began in July 2011 when the MEC published draft amendments to the Regulations and invited comments from the public. FEDSAS submitted that many of the proposed amendments should be withdrawn on the basis that they (1) were ultra vires in respect of the MEC’s powers and encroached upon the powers of the school governing bodies;  (2) violated the principle of legality; and (3) caused a conflict with both national[2] and provincial legislation.[3] The MEC considered the submissions, made some adjustments and promulgated the amendments on 9 May 2012. 

FEDSAS remained unhappy with the amendments and approached the High Court for relief. The High Court found in favour of FEDSAS. The MEC approached the Supreme Court of Appeal who upheld the appeal and reversed the decision of the High Court save for regulation 2(2A), which was set aside. The matter was then brought to the Constitutional Court by FEDSAS on the basis of their submissions that the many of the amendments are inconsistent with the Schools Act and provincial legislation or they are invalid as they are ‘irrational or not reasonable nor justifiable’.[4]

The Judgment
The Constitutional Court delivered a unanimous judgment. The Court first determined that education is a functional area of concurrent national and provincial legislative competence.  The Court found that there was no conflict between provincial and national legislation as the Regulations could be read in harmony with national legislation. 

The Court then considered each disputed regulation. The dispute involved the following regulations:

·       Regulation 3(7) – prohibits a school from gaining access to a transferring learner’s confidential report when he or she is applying for admission. The court found the provision had a legitimate purpose as it prevented schools from rejecting students who had learning or remedial difficulties or were particularly problematic for some other reason.[5]

·       Regulation 4(1) and (2) – the MEC may determine feeder zones for any school and until such time the default feeder zones will apply. The court found the default feeder zones are intended to be transitional and directed the MEC to set feeder zones within a reasonable time but not later than 12 months from the date of this order.[6]

·       Regulation 5(8) read with regulation 8 – the District Director may at the end of an admission period place an unplaced learner in any school, which has not been declared full and where there remain no unplaced learners on the waiting list. The objective entry level learner enrolment capacity shall be determined by the HOD. The court found that governing bodies determine admission policy of a school subject to the Schools Act and any applicable provincial legislation and such admission policy must conform to all applicable law. The MEC has the duty to place unplaced learners in a school and the HOD has the power to determine objective learner enrolment capacity and to declare a school full or not. These duties and powers are essential to the task of the MEC and HOD in placing unplaced learners in a school.[7]

·       Regulation 11(5) – with regards to transferring students the court found there are several built in factors within the provision that need to be considered when placing an unplaced transferring learner. The purpose is to ensure every learner is placed in a school.[8]

·       Regulation 16 - providing for objection and appeals, the court found that by requiring parents to first object to the HOD was not irrational as the HOD’s decision is subject to an appeal to the MEC, the regulation preserves this appeal, and none of the MEC’s powers are shed in favour of the HOD.[9]

Consequently the court agreed with the SCA that none of the regulations were irrational, unreasonable nor unjustifiable, and subsequently dismissed the appeal and directed feeder zones to be determined by the MEC not later than 12 months from the date of the judgment.

Equal Education, who was admitted as amicus, welcomed the judgment particularly with respect to the direction for change of feeder zones as it will provide equitable access to education that is no longer based on ‘apartheid geographical lines’.[10]

After the Judgment
The Gauteng Department of Education has established a task team to determine the feeder zones compromised of school governing bodies associations, trade unions and departmental representatives. The Department indicated the task team had until September 2016 to table their recommendations[11]. In August the Department indicated it anticipated the task team would finalise its report and submit to the MEC who will outline a public consultation process.[12] In mid-September the Department announced that it is in the process of reviewing the feeder zones and once these are finalised the Admissions Online Application will be aligned.[13] The new feeder zones will be applicable to the 2018 intake.