The ongoing battle over admissions to public schools: FEDSAS v MEC, Gauteng

10 May 2016 – On Thursday, the Constitutional Court of South Africa heard argument in a case concerning one of the most devastating and enduring legacies of apartheid: unequal education. The stubborn survival of apartheid’s hierarchy of privileged education for affluent, historically white schools is a sobering reminder of how far away we are from fulfilling the constitutional right to basic education. Better-resourced schools remain in better areas and access to good schools is still largely determined along race and class lines.

But should all South African children have equal access to all schools? Are geographically-determined feeder zones an unconstitutional barrier to accessing quality education? These are some of the difficult issues that were raised during the hearing. They are not, however, the issues the Court ought to decide, said Adv Wim Trengove SC for the Gauteng Department of Education.

Should geography determine a school’s feeder zone? 

The Gauteng regulations on admissions to public schools provide that — until such time as the MEC determines feeder zones for particular schools — parents must enroll their children in schools within a 5km radius of their homes or place of work. FEDSAS, a federation of school governing bodies (SGBs), says this default interim measure undermines the powers of the schools to formulate their own admission policies: until the MEC has determined the feeder zone for a particular school in accordance with his powers under the national admissions policy, SGBs should be entitled to determine their own feeder zones. Adv Tembeka Ngcukaitobi, on behalf of the amicus curiae, Equal Education, agreed that the rule should be done away with — but for very different reasons: he argued that geographically controlled feeder zones perpetuate past patterns of racial disadvantage and must be scrapped.

Trengove SC’s response was pragmatic.  While determining feeder zones along these lines may at times discriminate unfairly, this will not always be the case; and, in any event, the geographical litmus test is the best that we have.  This is because the only alternative is offering SGBs no guidance at all, and giving them free rein to pick and choose whom to admit — an unbridled power which is highly susceptible to abuse. And, in any event — Trengove SC was adamant — this is not an issue that the Court ought to decide. All that is before the Court is the rationality of a temporary default measure, not whether geography is the most constitutionally effective device for deciding feeder zones. And while Equal Education continued its calls for more transformative ways of determining access to quality public schooling, Deputy Chief Justice Moseneke raised important questions about a system that bolsters a few centres of educational excellence at the expense of improving the overall quality of education in all schools. In the end, flooding historically good schools, rather than improving the rest, may have the undesired effect of further entrenching apartheid’s skewed system.

The tug of war: SGBs versus provincial governments

This case is also the next instalment in an ongoing power struggle between SGBs and provincial education departments over the management of public schools: Who has the final say over the language policy or capacity of a public school? What are the province’s obligations to SGBs when terminating bursaries?  Can a province instruct a school principal not to apply an unconstitutional policy, for example, on pregnancy?  These are the issues the Court has already tackled in its litany of famous ‘school cases’: Premier, Mpumalanga; Ermelo; KZN Joint Liaison; Welkom; and Rivonia. 

The Court’s response has been to emphasise the ‘partnership model’ of South Africa’s education system, in which government, school principals and SGBs work together to realise their collective mandate of improving the quality of education in all South African schools. And while SGBs do run schools, the Court has repeatedly affirmed that decisions impacting the right to basic education are never immune from scrutiny. After all, public schools are public assets, and SGBs are their custodians.

But the Court’s insistence on greater co-operation and even more consultation overlooks the more cynical reality: the players are much more distrustful and possessive about their power than the Court seems willing to recognise. SGBs do, after all, have a legitimate interest in advancing the best interests of their schools, and willy-nilly intervention by provincial governments can disempower a school community and discourage the kind of parental involvement that strengthens the quality of education. On the other hand, national and provincial governments must transform basic education; greater inclusivity and enhanced quality are not negotiable.  A clash of interests is therefore inevitable, and in the absence of a clear delineation of the respective roles of SGBs and provincial governments — which have thus far been increasingly blurred — it is unlikely that these actors will ever co-operate in the amicable way that the Court envisages. The effect?  Meaningful progress towards educational freedom will continue to yield to ever-more power battles in the courtroom.

Raisa Cachalia

About Raisa Cachalia

Raisa is a researcher at SAIFAC (South African Institute for Advanced Constitutional, Public, Human Rights and International Law), a centre of the University of Johannesburg. She has BA, LLB, and LLM degrees (cum laude) from the University of the Witwatersrand. Raisa previously worked as a candidate attorney at Bowman Gilfillan Inc. and was admitted as an Attorney of the High Court in 2013. She clerked at the Constitutional Court of South Africa in 2013-14 and has been on Caveat Legal's panel of legal consultants since 2014.