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Johannesburg - The department of basic education must be empowered to decide the capacity of public schools, Equal Education (EE) and the Centre for Child Law (CCL) said on Thursday.
The two groups would apply to be amici curiae, friends of the court, in the department's Constitutional Court challenge against a Supreme Court of Appeal (SCA) decision in favour of Rivonia Primary School's governing body.
On November 30 last year, the SCA ruled that the governing body of a public school, and not the provincial education authority, had the authority to determine the number of children the school may admit.
The EE and CCL sought to support a challenge of this in favour of a finding that, where a school's governing body set its maximum capacity in its admissions policy, this could not be binding on provincial education officials, and should also not be rigidly applied.
“The government must exercise its power to place a child above the capacity set in a school’s admissions policy lawfully, reasonably and following a fair procedure,” the organisations said.
In 2010, the Gauteng education department forced the principal of the Rivonia Primary School to accept a Grade One pupil, even though the school was full.
The pupil was put on a waiting list, but was later enrolled by an order of the department.
The EE and CCL said the Rivonia school was privileged compared to the majority of public schools, with class numbers averaging 24 pupils as opposed to 50 or 60 in many other public schools.
“EE and CCL recognise that this is a sensitive issue and do not support policies that seek to destroy or diminish these more privileged public schools in the name of equality.
“However, they believe that the law must, and does, support ensuring greater and fairer access to well-resourced public schools, while the work goes on to bring the majority of public schools up to an acceptable level.”
The matter would be heard in the Constitutional Court on May 9.