Joburg school loses admission case

School governing bodies (SGBs) in Gauteng do not have the unqualified power to determine admission policy at state schools, the Johannesburg High Court has ruled.

It found that the provincial education department had the final say.

The Rivonia Primary School and its SGB took the Gauteng education department to court after it intervened when a child was refused entry to the predominantly-white school, which has the lowest class numbers in its area.

The school said it had reached its capacity.

Judge Boissie Henry Mbha ruled it was up to the department, not an SGB, to determine the maximum capacity of a public school.

The MEC for education should be the ultimate arbiter.

"In my view, providing a basic education across race and class requires government intervention in the preliminary power of SGBs to determine admission policies," the judge said.

"Leaving schools to determine their admission policy, including the power to determine their capacity... one unwittingly creates space privileged schools can use and manipulate that power to fortify rather than dismantle existing inequalities."

Rivonia Primary School had raised funds to build nine of its 30 classrooms and to employ extra teachers, the judge noted.

"While their desire to offer the best possible education for its learners is laudable, the Constitution does not permit the interest of a few learners to override the right of all other learners in the area to receive a basic education," he said.

The court, however, described the conduct of an official who had marched the child in question into an empty desk in a classroom at Rivonia Primary in February as "disturbing" and "unsatisfactory".

"No doubt this must have been traumatising for the learner to be at the centre stage while there was an ongoing dispute between the mother, the officials from the department and some school personnel," Mbha said.

"All this could have been avoided by leaving the learner at home while the problem played itself out."

The judge also spoke out against the identity of the child having been made public in media reports.

He criticised the way the department head withdrew the principal's powers regarding admissions when he, in any case, had the power to overrule individual decisions.

"She [the principal] was never afforded the opportunity to furnish reasons why her delegated powers of admission should not be withdrawn," said the judge.

The Gauteng department of education welcomed the ruling, saying migration into the province had caused the pupil population to grow by more than 37 percent in 16 years.

"This places huge strain on the available resources and the rate of building new schools cannot cope with the rate of in-migration," it said in a statement.

The department said the provincial government was working on speeding up school infrastructure delivery.

"When the Rivonia court action was launched in February 2011, the department felt that it needed to defend this case," it said.

"We understood that we had a constitutional duty to find space for children who presented themselves at our institutions or the department."