[lg policy] Op-Ed: Overvaal dispute – only our children lose

Harold Schiffman haroldfs at gmail.com
Thu Feb 1 10:28:01 EST 2018

Op-Ed: Overvaal dispute – only our children lose

   - 01 Feb 2018 12:11 (South Africa)

[image: File Photo: Protesters blocked a main road leading up to Overvaal
school with debris and burning tyres. Photo: GroundUp]

The Overvaal case places the power struggles between provincial departments
of education and school governing bodies once again in the public domain.
This case also brings in our collective duty to ensure a transformed
society. By THABANG POOE.

In the week of 15 January 2017, we saw parents, political parties and
interested groups protest outside the gates of Hoerskool Overvaal in
Vereeneging. At various points, the protest turned violent, with some being
injured and others arrested. At the centre of the dispute was an
instruction from the Gauteng Department of Education (GDE) to Hoerskool
Overvaal, an Afrikaans medium school, to admit 55 learners, who would
require tuition in English, to the school. The school in turn petitioned
the North Gauteng High Court on an urgent basis seeking to have the
instruction set aside on the grounds that the GDE’s instruction was
procedurally flawed and unlawful. The school added that the instruction was
contrary to both the school’s language and admission policies.

The department in turn argued that the school did in fact have capacity and
it had a duty to place learners who had not yet been placed in schools. The
department also cited the need to transform the school by asking the school
to adopt a dual-medium language policy in response to broader community
interests. The department claimed that the effect of the current language
policy was to exclude black learners from the school.

In the papers it is noted that two of the neighbouring schools filed
affidavits included in the applicant’s papers, noting that they had space
to admit the 55 learners and that they were already operating as
English/dual-medium schools. Later, the judge noted that due to pressure
from the department, including threats of dismissal, these schools reversed
their claims and stated in a later affidavit that they were full to

On 15 January 2018, Judge Prinsloo issued a judgment finding in favour of
the school. In his judgment, Prinsloo found that the instruction issued by
the GDE offends the principle of legality. The judge found that both the
school’s language and admission policies were submitted and known by the
GDE – and no objection was raised against them, nor have they been found by
the department to be non-compliant with any laws in any way. Thus, the
department had no authority to override the school’s policies.

On the department’s conduct, the court concluded that the conduct amounted
to an attempt to defeat the ends of justice and as such their conduct ought
to be investigated by senior officials in the department.

It is not the first time that we, as a society, have had to grapple with
the difficulties around dealing with injustices that exist as a result of
our past. The education system continues to bear the biggest brunt. In
Ermelo, a case regarding whether or not a Head of Department of a
provincial department of education had the power to override the School
Governing Body’s power to determine the language policy of its school, the
Constitutional court noted that:

“Apartheid has left us with many scars. The worst of these must be the vast
discrepancy in access to public and private resources. … Unequal access to
opportunity prevailed in every domain. Access to private or public
education was no exception. While much remedial work has been done since
the advent of constitutional democracy, sadly, deep social disparities and
resultant social inequity are still with us.”

So, while section 29 of the Constitution guarantees everyone the right to a
basic education, this promise is still to be realised. The reality is that
schools are plagued with radically unequal distribution of resources,
related to a history of systematic discrimination. This makes access to a
quality education, as guaranteed by the Constitution, inaccessible for
large numbers of South Africans.

The question we need to deal with in cases like this is not whether, but
how, to address this problem of uneven access to education, particularly
because there are various stakeholders, a diversity of interests and
competing visions. Inevitably, there will be tension, but in finding
solutions it is important for us to ensure that the best interests of our
children are paramount. It seems that in this case everyone forgot this
vital reference point – people were more concerned with power and having a
final say than fostering partnerships to meet the educational needs of

While we agree with the judgment, we find that the judge did not go as far
as is necessary, particularly as has been done by the Constitutional Court
in similar cases. We have a long list of cases that have dealt with
disputes between schools/SGBs and Departments of Education. In the Ermelo
case, the court held that an HOD could only do this on “reasonable grounds
and in order to pursue a legitimate purpose”, and in accordance with
specified due process provisions, which were not followed in this instance.
Despite this finding, the court nevertheless directed the school to review
its language policy to accommodate English-speaking learners that could not
be accommodated elsewhere because other schools in the area were already

Another example is the Welkom judgment, where the Constitutional Court
addressed the legality of an instruction from the HOD of the Department of
Education in the Free State to two school principals to ignore the
pregnancy policies developed by their respective SGBs. The principals at
both schools had in terms of their SGB policies prohibited two learners
from returning to school in the year they had given birth.

The HOD in both cases instructed the principals to readmit the learners
immediately. The court held that SGBs have the power to develop the
pregnancy policies at their schools, even though the policies in these
instances undermined the rights of pregnant learners. The HOD therefore
couldn’t just override these policies but had to follow the processes set
out in the SA Schools Act. The court nevertheless ordered the two schools
implicated to review their respective pregnancy policies.

The Constitutional Court in both cases invalidated the conduct of the
provincial departments of education concerned but went further to address
the transformative aspect in each of the school. In both instances, the
court adopted a pragmatic approach. An approach that ought to have been
adopted in this case particularly because of the interests at play. Instead
the High Court in this instance selectively applied existing jurisprudence
by setting aside the unlawful conduct of the department but not following
through with a remedy that requires the school to examine its policies.

Schools such as Overvaal, which have traditionally catered for mainly white
and comparatively privileged learners, need to ensure that their policies
not only speak to their current student population, but also to the
interests of the broader community.

These cases must serve as a lesson to all stakeholders. They address key
issues, and if they had been applied in this dispute may not have resulted
in the events of last week.

The first is the need to recognise our historical context and the
corresponding duty to reform and redress past injustices.

The second is the need for the state to take into account the nature of the
right at play, including the need to ensure that the interests of children
are paramount – thus safeguarding that the nature of the obligations
imposed on role-players is well understood. Third is a healthy respect and
acknowledgment of the important role that SGBs play in schooling and the
need for that role to be promoted and protected. And where this is
contested, it must be challenged in a constitutionally compliant manner.

Last, stakeholders must engage each other in a meaningful way – this is not
only for Overvaal and district officials, this also applies to the other
schools in the district. The Rivonia judgment, a case involving a dispute
between Rivonia Primary, a former model C school, and the department, when
a learner was refused a place in Grade 1, imported the doctrine of
“meaningful engagement” from the constitutional court’s housing evictions
jurisprudence into its school governance jurisprudence. The court
emphasised that in terms of the “partnership model”, provincial education
departments and SGBs are legally obliged to negotiate with each other in
good faith and in the “best interests of the learners” before resorting to
litigation. Had this kind of engagement happened, we would not be in this

We would be remiss if we did not stress the importance of the Basic
Education Laws Amendment Bill (BELA) as it seeks, in part, to resolve this

Like many disputes of this nature, we are required to strike an appropriate
balance between the powers and duties of provincial education departments
and school governing bodies. Connected to this are the interests of parents
in the quality of their children’s education, and the state’s obligation to
ensure that all learners have access to basic schooling. We will continue
to fail our children if we constantly fail to adhere to carefully crafted
principles set out in our jurisprudence. In cases like this, only our
children lose


 Harold F. Schiffman

Professor Emeritus of
 Dravidian Linguistics and Culture
Dept. of South Asia Studies
University of Pennsylvania
Philadelphia, PA 19104-6305

Phone:  (215) 898-7475
Fax:  (215) 573-2138

Email:  haroldfs at gmail.com

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