[lg policy] South Africa: Dept must take schools' policies into account - judge

Harold Schiffman hfsclpp at gmail.com
Thu May 28 14:40:09 UTC 2015

 Dept must take schools' policies into account - judge

 27 May 2015 at 05:54 by - - The High Court in Johannesburg on Tuesday
ordered that the Gauteng Department of Education must take into account
schools' admission and language policies when dealing with admission of
pupils for 2016.
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*Johannesburg - The High Court in Johannesburg on Tuesday ordered that the
Gauteng Department of Education must take into account schools' admission
and language policies when dealing with admission of pupils for 2016.*

"Schools are entitled to prepare waiting lists A and B [for pupils]... In
doing so, schools may take into account their admission and language
policies," Judge Gregory Wright said.

"The district director and head of department [of education] must, when
considering the lists, take into account, along with other relevant and
lawful considerations, the schools' admission and language policies."

The Federation of Governing Bodies of SA Schools' (Fedsas)  had applied for
urgent application to halt the department's centralised admissions process
and its plan to convert single-medium schools to parallel-medium schools.

Fedsas argues that these unlawfully interfere with the powers of schools'
governing bodies in determining the language of teaching and the schools'
admission policies.

Wright said his order would operate pending the final determination of
"part B" of the application, which dealt with the plan to convert schools,
which would be heard at a later stage.

"The question of costs is reserved for determination by the court hearing
part B."

Gauteng Education MEC Panyaza Lesufi recently announced plans to convert
124 single-medium schools into parallel-medium schools.

It later emerged from a leaked list of the schools that the plan primarily
involved Afrikaans single-medium schools.

After the order was handed down, Greta Engelbrecht, also for Fedsas, said
that this basically ensured that the department had to consider schools'

"They will also have to look at other considerations, such as the National
Language Policy and the Constitution," she said.

"The court will hear in future whether the decision to turn single medium
schools into parallel medium schools was lawful."

Gauteng education spokesperson Phumla Sekonyane said the department was
unhappy with the order.

"This means that language and admission policies [of schools] supersedes
the right to education," she said outside the court.

"We will be appealing."

The department told the court earlier that it had not yet implemented a
plan to convert single-medium school into parallel-medium schools.

"We argue that there is no absolutely no decision that constitutes
administrative action [on converting schools]," Muzi Sikhakhane SC for the
department and Lesufi said.

Sikhakhane addressed the matter of the list.

"Let's put aside that it was leaked. We have said this repeatedly... it was
a internal discussion document to discuss the problems in Gauteng," he said.

"We have been brought here on an urgent basis, on a fear that has no basis
whatsoever. There has been no decision [on converting schools] yet.

"The applicants are only concerned with those students who speak Afrikaans.
The department has to focus on everyone. The prescripts of the schools need
to be in line with the distribution of resources."

He said that in terms of admissions, Fedsas made the mistake of not seeing
the school, the department's district directors and the head of the
department (HOD) as "part of the same chain".

"The Schools' Act is clear that that the function of admission... is a
process of the HOD - anyone who does it, even up to the school principals,
does it because they are an extension of that statutory function,"
Sikhakhane said.

Wright asked Johan Du Toit SC, for Fedsas, that if the department's policy
was to "spread the resources from the privileged few in the past to
everyone equally now",  would that policy be in line with the Constitution.

"It is a laudable action... but the school's assets belong to the school.
One cannot come from outside and take assets from one school and give it to
another," Du Toit responded.

He gave the example of the department coming to school that had 10
computers, and giving five to a school that did not have anything.

Wright then asked: "You say it is laudable, does that mean you are saying
it is Constitutional? It can't be laudable and not Constitutional.

"If the applicant's schools' policies have the effect - intended or
otherwise - of retarding the rate at which resources are spread. Are they

"They are Constitutional," Du Toit responded.


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