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Imagine you are a school governing body (SGB) member at your child’s public school. The school, filled with dedicated teachers, bright colours and excited young voices, is in an upper-middle-class neighbourhood.

The fees charged by this public school mean that most South Africans cannot afford to send their children to it. But the fees are a great boost to the school.

Your SGB believes in smaller class sizes and has decided to cap admission at 120 pupils per grade, and to use the school fees income to hire more teachers than are ordinarily provided by the government. The pupils are thriving.

Now imagine you are the education MEC. Your job, according to the South African Schools Act, is to ensure every child in the province has access to an adequate education. At times this task seems impossible.

While some schools in your province are flourishing, many meet in overcrowded, ramshackle buildings and produce appalling results.

Efforts to build schools are slow, but children grow quickly, and their right to receive a decent basic education is immediate.

Every year without quality education is a year they will never get back.

While addressing the bulk of the challenges will require upgrading dilapidated township schools and recruiting a new generation of teachers, you wish to accommodate a minority of poorer pupils at those well-resourced public schools with smaller classes.

The Rivonia Primary court case has put middle-class SGBs and the education MEC in Gauteng on opposite sides of a delicate but important battle.

MEC Barbara Creecy may potentially lose the ability to find spaces for poor pupils in better-resourced public schools, unless the decision of the Supreme Court of Appeal is overturned.

The appeal was set to be heard today in the Constitutional Court.

Rivonia Primary, which has one of the best teacher-pupil ratios in Gauteng, caps its intake at 120 pupils per grade.

In 2011 the school had declared itself full, but the Gauteng Education Department compelled the enrolment of the 121st Grade 1 pupil.

The SGB, adamant that the power to determine capacity rests with it, took the department to court.

The Concourt has admitted the Centre for Child Law and Equal Education as “friends of the court”.

Equal Education is not seeking justice for the specific child affected by this case – the pupil’s individual situation has been resolved, and the provincial department acted in an unacceptable and high-handed way. Equal Education is drawn to the case’s wider implications.

A decision in favour of the Rivonia SGB could mean that the state is left powerless to intervene on behalf of poorer pupils seeking a place to learn free from the chronic overcrowding in poor schools.

To strip the state of any oversight function in this area implies the further privatisation of our better-resourced public schools. In the more famous Rivonia Trial, Nelson Mandela explained that his actions were spurred on by the South Africa he found himself in, a “land of extremes and remarkable contrasts”.

These continue to plague the South African public education system.

Despite education being the most powerful tool for achieving redress, the troubling reality is that, nearly 20 years after apartheid, our unequal education system is reinforcing inequality.

Most top public schools have inherited better infrastructure and, through fees, are able to tap into private wealth to attract the best teachers and keep class sizes small. In some instances, such schools ring-fence their privilege, despite being historical beneficiaries of discriminatory educational allocations and still receiving the bulk of their resources from the state.

These schools are also beacons of hope, examples of quality public education, and they should not be vilified or suffocated by a one-sided policy, but they need to be supported to become part of the solution that opens the doors of learning and culture to all.

The Rivonia SGB has argued that in terms of the law, school capacity should be determined by the school governing body.

Although it is only natural for SGBs and parents to act in their children’s interests, the Concourt has already declared that SGBs should also look to the interests of the broader community, which means all children, including the majority of black children who remain unable to access quality education.

While the SGBs of public schools are well placed to make initial determinations on their school’s capacity, these schools are, in the end, public resources funded principally by public money.

Ultimately they perform a state duty and must operate under the constitution.

To look after the best interests of all pupils and the provincial education system as a whole, the education MEC needs the authority to intervene in SGB capacity decisions.

However, state intervention should be clearly regulated.

The authority to override decisions of SGBs must be done in a lawful, reasonable and procedurally fair manner.

This case could have been easily avoided if Basic Education Minister Angie Motshekga had issued norms and standards on school capacity, as is expected of her.

The minister’s failure to act in this regard led us to this crisis. But even without these norms, the Schools Act is fairly clear that SGBs are not completely free to determine school capacity.

If we wish to obtain the society for which the Rivonia triallists fought, then public resources can never be used to perpetuate vestiges of privilege outside any government oversight, especially if that oversight is used to ensure a quality education for all.

 

** Lisa Draga is an attorney at the Equal Education Law Centre, and Doron Isaacs is the deputy general secretary of Equal Education. Equal Education and the Centre for Child Law as amici curiae (friends of the court) are presenting arguments to the Constitutional Court in the Rivonia Primary School case. The case will determine who has the final say on setting capacity in public schools – school governing bodies or the education MEC.

The Star