Two 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:
Two Important Footnotes:
Take advice in doubt!
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