Rivonia trial puts pupils in crossfire

The battle over school admissions played out in the Constitutional Court yesterday - with the government and former Model C schools squaring off.

Though judgment was reserved yesterday, the Rivonia Primary School litigation should put an end to bitter spats between education departments and principals about when a school can no longer accept pupils.

The case ended up in court after a mother allegedly used her political connections to force Rivonia Primary to admit her daughter even though, according to the principal, the school was full.

The legal battle could have implications for the thousands of pupils who do not have a school to go to because of Gauteng's severe shortage of functioning schools.

In November 2010, when the child was refused entry to Rivonia Primary, there were 3000 pupils - most of them in Grade 1, in the Johannesburg East district - needing a place at a school. About 1000 of them lived near Rivonia.

The Gauteng department of education's lawyer, Matthew Chaskalson SC, yesterday told the Constitutional Court that the school had been asked to take "only one".

At the time, the school said it refused the pupil, not because she was already in a private school, but because it was full.

The school has a ratio of 24 pupils to each teacher, a low ratio attributable to the extra fees parents pay.

The case has captured the interest of school governing bodies countrywide, especially those that represent parents who pay a significant premium for their children's schooling and want a say in the size of classes.

Though legal arguments centred on whether school governing bodies or provincial authorities have the final say over who is admitted to or denied a place at a school, the case has highlighted the stark contrast between high-quality parent-subsidised schools and dysfunctional no-fee state schools.

It also shows up the Gauteng government's inability to deal with the influx of pupils to the province.

Rivonia Primary lawyer Gerrit Pretorius SC said the government's interference "risked breaking down a system that works, and works well, on a non-racial basis.

"The department wants to interfere in the functional section of the education system to address systemic problems such as shortages of schools that they are not addressing."

He slammed the department for not preparing for increased admissions by building extra schools.

Basic Education Minister Angie Motshekga has failed to write regulations on school admissions, the court was told.

Had she done so, the case would not be before the court, it was argued.

Chaskalson said that the department had behaved reasonably when it asked Rivonia Primary to accommodate one pupil when there was such a severe shortage of schools in Gauteng.

He said that in 2010 the provincial government built nine schools, created 23 mobile schools, and built more than 1400 classrooms to accommodate 60000 pupils.

Despite this "extraordinary" achievement, there were still not enough schools.

He said parents could not argue that they paid extra for the employment of more teachers and for more classrooms because they had inherited schools built in historically white areas that had been given the best schools in the apartheid era.

"Bantu education got 12% of the government budget under apartheid," said Chaskalson.

He said pupils should not be denied a right to education.

"The remedy is to force the government to build more schools by using the court and reporting back [on its progress] on an annual basis."

The opposing lawyers agreed that governing bodies could determine admissions policy but the government had the final say on denial of admission.

The Centre for Child Law and Equal Education, which had been admitted as friends of the court, argued that, if the government had to place every child in a school, then it would need the right to override governing bodies' admissions policies.

Acting for the two groups, Steven Budlender told the court that the case had "ramifications far beyond Gauteng".

Budlender suggested that the government place extra children in schools that had been funded by parents subject to "constraints" on its power.

These included "looking at where else in the area the child could go, what constraints nearby schools had, and the cost implication for the school when forced to accept extra pupils".

He said significant costs incurred when schools were forced to take extra pupils after they were full should be paid by the government.

The SA Teachers' Union's counsel, Raylene Keightley said the government could override the governing body only if the body's policy was unlawful or unconstitutional.