09/01/2013. Basic education minister Angie Motshekga receives school materials donated by Nedbank at the Nwa Mhinga Primary School in Atteridgeville yesterday. Picture: Thobile Mathonsi

Pretoria - Basic Education Minister Angie Motshekga has hinted that the government may move to change the law giving school governing bodies the powers to determine school admission policy, and therefore school capacity, if it fails to win an appeal to the Constitutional Court.

Motshekga said she was prepared to fight tooth and nail for a reversal of the Supreme Court of Appeal (SCA) finding that the determination of school capacity lay in the hands of governing bodies – even if it meant changing the law.

The SCA found last year that Rivonia Primary School in Joburg had been well within its rights to refuse admission to a Grade 1 pupil as it had reached its capacity of 120 children in that grade.

Motshekga said her department would join, as a friend of the court, the application by the Gauteng Department of Education for leave to appeal to the Constitutional Court against the SCA decision.

Charles Phahlane, spokesman for the Gauteng department, confirmed on Wednesday that the department had filed a notice of intention to appeal to the Constitutional Court against the SCA decision.

“We filed the papers before Christmas,” he said.

“Right now we are waiting for feedback from court to hear whether they will hear the case.”

Motshekga argued that the SCA ruling would have far-reaching consequences in the long run for pupils being admitted to schools around the country, and would impede the department in its role of securing places for all pupils.

Speaking at the Nwa-Mhinga Primary School in Atteridgeville, Motshekga said the government would change the law if this was what it would take to wrest competency for determining school capacity back for provincial education authorities.

“As the government we have an obligation to find space for kids. So if, as the governing body, you have the power which is going to exclude other children, it’s a problem. So the Rivonia case is also a problem.

“By law, the governing body has the power to determine (the number of) learners, so the governing body can decide that we are only going to have 500 kids and that’s it – that’s what the law allows them.

“And we are saying it cannot be. Because, on the other hand, as the state, we have an obligation to find spaces. But where are we going to place those other extra kids if we don’t have the power to instruct schools to place kids?”

Motshekga said there were many places where development was far outpacing the building of schools, particularly in Gauteng, and this created a problem for the department in finding places for pupils.

“For example, in Midrand, because of poor planning, there are not enough spaces for children,” she said.

“So if schools are going to say, ‘By the powers vested in us, we are only going to take 700 kids’, where am I going to place the other kids, because I have a public duty to place those kids? And that’s why we are appealing this ruling to say that it cannot be. It can’t work.

“If it means we have to change the law, we are going to change this law because it just can’t work. On principle, it can’t work.”

The Gauteng Department of Education confirmed on Wednesday that it would be opening five new schools this week, with nine others to be opened by June to alleviate overcrowding due to migration into the province.

“Each year, the (department) has had to contend with late admission applications. This has primarily been a result of huge migration and relocation into Gauteng,” said Phahlane.

“We appeal to parents seeking admission to public schools to approach the district admission operation centres for placement.

“We will only accommodate parents who have relocated, not those seeking a school of choice.”

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