Ruling courts disaster

You would be forgiven if you thought Boissie Mbha was a centre back for Pirates or the fifth member of the kwaito group Big Nuz.

Until last week few people outside the legal fraternity would have heard of the judge who, in a single verdict, might just have completely recast the future of schools in South Africa.

In a classic tussle between a provincial department of education and a school governing body, the province demanded that the school enrol a pupil despite the governing body's insistence that it was full.

Nothing odd about that until you realise the school was a former white institution and the child was black. This being South Africa, all the ghosts of the past came back visiting with a vengeance.

I promise you if the school and child were black, or both were white, there would be nothing to write about.

Judge Mbha sided with the government in a series of pronouncements that make no sense to me. This was about the right to basic education, he reasoned.

I am not sure how a child attempting to transfer from the Lifestyle Montessori School to another school constitutes the denial of basic education. The judge then goes on a lengthy diatribe against the protection of white privilege. This too makes no sense when the school already enrols 388 black pupils of whom 52 (of 120) are in Grade 1; in other words, the school is closing in on 50% black enrolment and will, no doubt, become a dominant black school in time. How does this preserve racial privilege?

The judge then queries the link between admission policies and school capacity. But surely a central tenet of admission policy is to ensure classrooms have manageable numbers that teachers can cope with? That is a pedagogical matter to be decided by educators, not a legal matter to be decided by a judge.

To imply that government bureaucrats determine school capacity raises an even more fundamental question: the right of parents to decide on a simple school matter like how many children it can manage.

Here's the rub. The Department of Education has not accounted for the fact that more and more township schools are running on empty because of dereliction of duty by provincial government to provide high quality education to all our children, where they live. In response, poor parents understandably move their children, at great costs and risk (dangerous public transport), to suburban schools, most of which can no longer be described as white by enrolment.

What makes this judgment even more puzzling is that the parents at the second school themselves built nine additional classrooms and out of their own pockets paid for additional teachers simply to ensure that the education of children - including 388 black pupils - did not succumb to the serious dereliction of duty by the Department of Education to fix its broken schools where, as we know from research, most children cannot read or write or reason at the grade level.

So what does the judge do? He sides with the politicians and the bureaucrats to make sure no schools work rather than protect the few that do - mostly on private monies.

I have seen throughout our country how former white schools became all black by enrolment, with 50 or more children in a classroom because of incompetent management by the provincial government - not because there are black pupils inside of them.

There are very few former white public schools that remain predominantly white, and it is simply a matter of time before all our schools are majority black. In the meantime, we would have stripped parents of their already limited say over school policies and we would have reduced the entire school system to a massive mess of mediocrity.

I have seen this movie before in post-colonial Africa, with familiar actors in the moving rhetoric of a narrow African nationalism in which Judge Mbha so eagerly participates.

This is no longer about race; it is and will be increasingly about class. A recent study in the US shows that in countries with a similar history of racialised schooling and capitalist education, the achievement gap between the well-off and the poor becomes greater over time than the gap between black and white.

Expect the middle classes to move their children into private schooling if a higher court does not reverse this disastrous decision. Expect poor children to be stranded en masse in the indistinguishable schools we failed to fix. And guess where the politicians' children will be sitting.