Johannesburg - Even schools well funded by their pupils' parents still serve their community, the Constitutional Court heard on Thursday.
“(They) can't just avoid this responsibility, just because they are well off,” said Steven Budlender in a submission for Equal Education and the Centre for Child Law.
But at the same time, the State had to fulfil its obligation to accommodate all pupils.
“The government must bear the increasing costs for those students if those increasing costs cannot be borne by the school itself,” Budlender said.
His clients, who made submissions as friends of the court, accepted that “in the first instance” the school governing body (SGB) had the right to determine an admissions policy, but in terms of the law the Schools Act gave the education MEC decision-making powers regarding appeals.
The case originated when Rivonia Primary School in Johannesburg refused to admit a pupil in 2010 on the grounds that it was full.
The case is expected to determine who has the final say about how many children are admitted to a school and who is excluded on the basis of a SGB's admission policies.
Budlender said, unfortunately, the basic education minister had not formulated norms and standards regarding schools' capacity, as this would have helped resolve the issue.
In terms of the Constitution, every child had a right to basic education, but there should also be procedural fairness.
The MEC and head of the education department could only depart from the SGB admissions policy when there was good cause to do so.
If the department wanted a school to have an extra class of 30 pupils, then the department had to shoulder that responsibility in terms of the Constitution, and the department had to provide for extra teachers.
He said the parents' financial contribution to a school was relevant, but was not the determining factor.
Earlier, Gauteng education department counsel Matthew Chaskalson said the number of applications for grade one pupils in 2010, the year the dispute started, was much higher than any other intake in the preceding decade.
The department had already provided 1447 more ordinary class rooms, 300 toilets, and 75 new grade R classes for over 60 000 pupils in 2010.
It was a “formidable” achievement, but not enough for the number of new applications.
The department could not suddenly build more classrooms, so schools had to use existing facilities as effectively as possible, drawing on under-utilised schools or schools with a greater capacity.
In the case of Rivonia Primary School, it could have taken one more pupil, because it had the lowest pupil to class ratio in its area and other children on the waiting list had already been placed elsewhere.
He said many parents were attracted to schools in historically white areas, because during apartheid “Bantu” schools had received only 12 percent of the budget allocated to white schools.
Control of the benefits of apartheid discrimination could not be retained.
“Schools don't cease to be a public resource just because parents put money in,” said Chaskalson. “Schools belong to a community.”
Outside the court, Matakanye Matakanye, general secretary of the National Association of School Governing Bodies, told a group of protesters: “We will not stand by when the Constitution of our country is being trampled upon.”
Protesters carried posters demanding an end to what they regarded as racist admissions policies and policies that discriminated on language grounds.
The hearing continues. - Sapa