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Free State - Schools must be able to decide when they have reached their capacity in pupil numbers, the Supreme Court of Appeal heard on Friday.
“In regard to admission policy, there must come a point (when schools say) 'We cannot take more',” submitted Gerrit Pretorius, counsel for the Rivonia primary school.
The court was hearing an appeal by the school's governing body against a declaratory order against it in the High Court in Johannesburg.
In 2010, the Gauteng education department forced the school principal to accept a Grade One pupil even though the school was full.
The pupil had been put on a waiting list, but was later enrolled by order of the department.
The principal was disciplined for not adhering to the department’s initial order to admit the child.
The school governing body (SGB) launched a court application to seek certain declaratory and interdictory relief, which they lost. It then appealed to the SCA.
Pretorius submitted that the capacity of a school was set in the school's admission policy, by the SGB.
“It is absolutely clear that capacity is set by the SGB.”
He said it had become a trend for the government to interfere with the rights of SGBs.
“It is a burning issue, not just in Gauteng but in other provinces.”
Pretorius submitted that the actions of the department had fundamentally undermined the partnership between the government and the SGB, by taking away the rights of parents at schools.
He said parents, through SGBs, looked after the interests of schools and with that, the quality of education at schools.
“The community is better suited to determine what is best for a school,” he said.
However Danny Berger, counsel for Gauteng’s education MEC, refuted the submission that SGBs had the final say in admission policies and in the setting of schools' capacity.
“That is not a final capacity. It is not the last word.”
He submitted that these powers could be overruled in some instances, because the MEC was charged with the responsibility to place every child in a school.
Berger said the government could even take advantage of supplementary funds paid by parents. This could be money raised to appoint more teachers to better the teacher/pupil ratio for quality education.
“Having raised money does not excuse them from the need in society,” he said.
The argument drew reaction from the Bench of five appeal court judges.
“What you say is a HOD (head of department) can place pupils on resources of parents and it's right?” asked Judge Robert Nugent.
Berger said it was. He submitted that if the government was unable to place children in certain schools, it could place them in others which it thought had the capacity.
“Where is the obligation of parents to carry government functions?” asked Nugent.
Berger said supplementary funds for schools were a function of SGBs.
He argued that the department did not even have to ask a school if it was ready and able to handle additional children.
Berger submitted that the department’s powers to place pupils could be challenged if extreme numbers were placed, but not in the case of one or two pupils.
The SCA reserved judgment. - Sapa