The landmark case started with one child entering Grade 1. Rivonia Primary School, a public school located in an affluent area with a slight majority of white pupils, declined to admit the student into the Grade 1 class because she was number 20 on the waiting list. Parents had raised money for additional classrooms and the governing body employed more teachers, meaning the school has one of the lowest teacher-to-pupil ratios, averaging 24 children in a class, in Gauteng. To ensure the best quality education, the school governing body (SGB) set the school’s 2011 capacity at 770 pupils, 120 of whom would be in Grade 1.

The dispute started when the mother of the Grade 1 pupil appealed to government and Gauteng education head of department Boy Ngobeni told the principal of the school it had, in fact, not reached capacity. Ngobeni demanded the pupil be admitted. In court, the province, backed by Equal Education and the Centre for Child Law, argued the provincial government has the final say on school capacity and can override the decisions of the SGB. Guided by the Constitution and the Schools Act, they argued that all children have a right to be afforded a place in a school and the government must provide for equal education.

The Supreme Court of Appeal called the argument “misplaced”. “The parent of the child and the department were not faced with the problem that the child would not be able to attend a school or be denied the right to receive a basic education – she had already been admitted to another school,” read the judgment which found in favour of the school and its governing body. The court found that the school acted reasonably and rationally when setting its capacity and acted within the restraints of the law, which states that no pupil shall be unfairly discriminated against. “There is no suggestion that it set its capacity unreasonably or irrationally,” read the judgment.

The SGB said it stood by its decision not to enroll the pupil. It told the government to focus on improving education in other public schools by managing capacity issues rather than trying to burden well-run schools.

Speaking at a press conference on Wednesday, Section27’s Nikki Stein said the Rivonia case relates to whether the provincial education department has the power to override a decision of the SGB. It’s about the balance of power between SGBs, the minister, and provincial departments. The right balance helps pupils access their right to basic education. The wrong balance denies the right to equality, dignity and education.

The Constitutional Court decision “will have an impact on learners and communities throughout South Africa. It will determine who has the final say in how many learners attend a school, what language they will be taught in and who will be excluded from a school on the basis of an SGB’s admission and language policies,” stated a Section27 press release.

Cosatu’s Gauteng provincial secretary Dumisani Dakile was present to support the Constitutional Court challenge, as were leaders of the National Association of Parents in School Governance. Civil society organisations and Cosatu said they would demonstrate outside the court on Thursday.

Most of the press conference was dedicated not to the Rivonia Primary School matter, but another court challenge of an SGB decision. Section27 is representing 54 parents against the SGB of Hoërskool Fochville, near Carletonville. The Rivonia case may have a strong influence on whether the school is forced to admit English-speaking pupils and establish parallel language teaching. Currently, the Fochville high school teaches in Afrikaans and only teaches one English-medium class in Grade 9, despite its capacity for more pupils. The Gauteng department of education has instructed the school to establish parallel teaching in English and has offered it funds to do so. The school has refused and the matter is in the High Court.

Parents of the pupils in Fochville said the SGB’s decision to only teach in Afrikaans is a race issue. Willie Mosiane said the predominantly black pupils who speak English have to travel 25km by bus or taxi to go to school in Carletonville, meaning parents either have to pay for transport or children are at the mercy of the unreliable government-provided buses. “We feel very much underprivileged as parents that our children are denied access to Fochville high school,” said Mosiane.

“We want to see our children are afforded an equal chance like anyone… It is our constitutional right.”

Parents of black pupils who attend the school told Daily Maverick they feel their children are discriminated against and the school makes it hard for non-Afrikaans speakers to work with the principal and SGB. Black pupils have to exit through designated gates that were fitted with cameras when the first black pupils enrolled while white pupils are free to use any entry or exit, said one parent. Communication from the school is in Afrikaans and meetings are also conducted in Afrikaans. Of the 20 pupils the school awarded bursaries to only one was black, said another parent, adding that the SGB wasn’t happy that a black pupil received the grant.

Another a parent of one of the pupils at the school, said he grew up during Apartheid. “It’s difficult to see my daughter experiencing the same problems.”

Cosatu’s Dakile said the exclusion of pupils is a race issue but also a class issue. He sent a strong warning to any SGBs who plan to unfairly discriminate against pupils. “We say to those responsible for the exclusion, their time and space is limited… If they persist with their particular attitude we are going to crush them.”

“The outcome of the Rivonia case will determine whether the SGB of Hoërskool Fochville can continue to exclude English speaking learners from the school, and force them to travel long distances to attend school. It will also determine the fate of learners and teachers in many similar schools across South Africa,” said Section27 in its press statement.

Put simply – the civil society groups believe the balance of power needs to be returned to equilibrium so that school governing bodies cannot discriminate and deny children their right to education. The Constitutional Court will decide whether it agrees and the outcome will have a long-lasting impact. DM

Photo: Members of the Fochville community attended a press briefing on Wednesday to describe the importance of their court challenge against their local high school.