Gauteng MEC for Education Panyaza Lesufi at the Constitutional Court in Braamfontein where the case on Equal Education is heard. 050416 Picture: Boxer Ngwenya

Johannesburg - Should all children have equal access to all schools? And should their socio-economic status, level of disability and race be a factor in where they can attend schools?

These were the questions posed during lengthy proceedings at the Constitutional Court on Thursday, when the Federation of Governing Bodies of South African Schools (Fedsas) appealed against a Supreme Court of Appeal ruling made in favour of the Gauteng Department of Education.

Fedsas contested the powers of several of the department’s admissions regulations, specifically regarding feeder zones and confidentiality during the admissions process. Currently, feeder zones for schools are exclusively determined by geography, and a pupil can attend a school if he or she resides within 5km of the school.

The department has said the zoning policy is in place until MEC Panyaza Lesufi is able to determine the feeder zones formally.

On Thursday, representatives from the department and Equal Education argued that the current zoning policy potentially prevented poor pupils from accessing well-resourced schools.

The advocate for the department, Wim Trengove, argued that the MEC should determine feeder zones as he saw fit, but acknowledged the current policy’s potential to be discriminatory.

“The real cause of the problem is not feeder zones, but inequality of education. It has to be ultimately addressed by the improvement of equality of education throughout the system, but that is not our question today.”

Fedsas argued that if the current feeder zone policy continued, it would limit the federation’s role in the school admissions process, and that the power of the schools themselves should be protected.

“A school is given a specific role by national legislation to play in the placement of learners,” said Fedsas advocate Johan du Toit. “What the provincial law cannot do is write out of the equation the role of the schools.

"There’s an unintended consequence of the provincial law legitimately interposing in the policy of the school.”

The release of pupils’ and parents’ confidential information to parties involved in the admissions process was also up for debate, with Fedsas pointing to pupils with special educational needs as an example. Du Toit said schools should be aware of any special needs or record of disciplinary problems when determining admission. “There cannot be an equal distribution of learners according to special needs or disability. It is much more complex than that. It’s not a question of exclusion.”

Deputy Chief Justice Dikgang Moseneke asked why such confidential information would be necessary during admission, and suggested any problems could be dealt with after admission.

“Do you accept that there is a potential for abuse if confidential information is made available to those responsible for admissions… and that they may cherry-pick? Do you accept that there is potential for prejudice and discrimination?” he asked.

Du Toit said there would be a “series of checks and balances” in place to ensure the information would not be used in a discriminatory manner.

But, the department said, Fedsas’s argument excused discrimination against poor and disadvantaged pupils.

“That would be a licence to exclude all problem learners. Fedsas wants to base the admission decision on the confidential report and the blemishes attached to it. That’s exactly what the MEC intends to prohibit,” Trengove said.

Equal Education, which served as amicus curiae (friend of the court) for the department, likened the feeder zone policy to “apartheid geography”. It suggested the MEC abolish the policy’s use of geography altogether or consider factors including socio-economic status, disability and race as well as geography when determining feeder zones.

But Justice Moseneke said rather than eliminating the zones, the department had the responsibility to ensure all schools were “centres of excellence".

More than 50 Equal Education members and supporters gathered outside the court.

Judgment was reserved.