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Back to school – Whose rules apply?

Untitled-2Two recent Supreme Court of Appeal (SCA) decisions confirm that governance of a public school is the responsibility of its governing body. In both instances the Provincial Department of Education intervened and ordered the school principal to ignore policies set by its governing body. The Court Found this to be unlawful and invalid.

Case 1 – The pregnancy policy

In the first case, two schools had, in terms of their respective “pregnancy policies”, each suspended a learner from school.  When provincial government, in the person of the Head of Department  of Education (HoD) instructed the respective schools to re-admit the learners, the schools went to court.

In both instances the education department was interdicted “from directing the school principal to act in a manner contrary to the policy adopted by the school governing body”.  The Court held that even if such policies are unconstitutional or otherwise unlawful, they can only be set aside by a court on review – accordingly in this case “the conduct of the HoD, in instructing the principals not to implement the policies, was unlawful.”  The provincial government should rather have approached a court to set the policies aside.

Case 2 – The admissions policy

In the second case, an applicant learner was refused admission to a school because she was far down on the waiting list, and the school had reached its capacity. The relevant HoD instructed the school to nevertheless admit the learner, and purported to withdraw the principal’s admission function.

On appeal, the SCA held that it is the governing body of a school that must determine the school’s capacity and admission policies.  The authority of a governing body to govern a school is however not absolute, and provincial governments have an “oversight role” (albeit a limited one).  Moreover, held the Court, a governing body must “necessarily act reasonably and rationally” both in determining the school’s capacity and in applying its policies.  In addition, its admissions policies may not:

  • Be unfairly discriminatory
  • Require an admission test to be administered to a learner, and
  • Refuse admission to a learner because the parent has not paid or is unable to pay the school fees;

Two Important Footnotes:

  1. Amended regulations were introduced in Gauteng in March 2012 which provided that the HoD – not the governing body – shall determine the capacity of a school.  The Court made no ruling on the validity or otherwise of these new regulations as they were introduced after the case in question arose. However, according to media reports their lawfulness is being challenged in separate legal actions.
  2. Media reports suggest that the “admissions policy” case may be taken on appeal to the Constitutional Court. At least for the moment however, the power of governing bodies to “make the rules” in the circumstances of these two cases has been confirmed.  Governing bodies must act lawfully or face court challenges to their policies. In particular, any policies which might impact on learners’ constitutional rights to education must be formulated with great care.

Take advice in doubt!

© DotNews, 2005-2012. This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.

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