Gretchen Adams
The right to a basic education is enshrined in section 29(1)(a) of our Constitution and plays a pivotal role in helping to rectify apartheid-era injustices. By guaranteeing this right, the Constitution aims to promote equality, dignity, and freedom in South Africa, ensuring access to basic education for all as a fundamental tool for social transformation.
However, this promise remains unfulfilled. School governance, particularly through School Governing Bodies (SGBs), has become contentious as many SGB-created policies, especially in historically advantaged schools, do not align with the Constitution’s transformative goals. Policies on admissions, language, and learner pregnancy, which should foster inclusion, often reinforce exclusion and perpetuate inequalities.
SGBs are meant to be democratic bodies that allow parents and local communities to participate in school governance. In practice, many SGBs, particularly in historically advantaged schools, adopt exclusionary policies that marginalise learners from disadvantaged backgrounds.
For example, in the 2010 case involving the Head of the Mpumalanga Department of Education and Hoërskool Ermelo, the school’s Afrikaans-only language policy excluded Black learners needing English instruction, despite having excess capacity. When the Head of the Department (HOD) sought to accommodate these learners, the school initially refused. The HOD intervened, revoked the SGB’s powers, and appointed an interim committee to change the policy, leading to court proceedings.
Similarly, in the 2013 case involving the HOD for Education in the Free State and Welkom High School and Harmony High School, two pregnant learners were barred from returning due to their schools’ pregnancy policies, which also mandated grade repetition. The HOD intervened, deeming the SGBs' actions unconstitutional.
These cases, among others, highlight a troubling trend where the SGB-created school policies, instead of fostering inclusive education, exclude learners and undermine the realisation of their constitutional right to a basic education. This is a systemic issue rooted in the governance structure itself. For example, the Constitution and relevant laws, such as the South African Schools Act 84 of 1996, clearly outline the obligations of the State to ensure that learners have access to a basic education. Furthermore, section 41(1)(h) of the Constitution specifically requires co-operative governance between the different spheres of government.
However, the co-operative relationships often break down, leading to disputes over key issues such as admissions, language, and learner pregnancy. In this regard, the lack of co-operation between SGBs and Provincial Education Departments (PEDs) stands out. Rather than collaborating to address existing challenges, SGBs and PEDs often resort to legal battles instead of finding effective solutions outside of court. Learners are then caught in the middle of these power struggles between SGBs and PEDs, with litigation diverting attention from the real issue—serving the needs of learners.
Moreover, this approach is costly, time-consuming, and further entrenches inequality, particularly for learners from disadvantaged backgrounds. Accordingly, the reliance on litigation undermines the collaborative spirit envisioned by the Constitution and shifts the focus away from realising learners’ rights. Co-operative governance is vital to creating a functioning education system that serves all learners equitably. This means that SGBs and PEDs must work together, guided by clear rules that ensure their policies align with constitutional principles.
The Constitutional Court’s rulings in the Rivonia Primary School (2013) and Ermelo cases provide crucial insight into certain limitations of SGBs’ autonomy. In the former, the ConCourt ruled that school policies cannot exclude learners based on race, language, or socio-economic status, as these practices have an impact on the realisation of learners’ rights to a basic education. In the latter, the ConCourt emphasised that SGB-created school policies must promote, not hinder, the transformative goals of the Constitution and that the State must intervene when such policies violate learners’ rights.
These rulings underline the tension between the implementation of SGB-created school policies and the State’s duty to ensure equitable access to a basic education in public schools. To uphold the right to a basic education for all learners, SGBs and PEDs must work together to create a clearly defined, unified, transparent and accountable framework for dealing with disputes regarding the implementation of SGB-created policies on admission, language, and learner pregnancy. They should avoid resorting to litigation over such disputes.
Fostering collaboration between SGBs and PEDs is key to overcoming current challenges. By focusing on communication, mutual respect, and shared responsibility, SGBs and PEDs can develop a more inclusive and equitable basic education system. This approach will ensure that both parties work towards the same goals, preventing disputes and prioritising the best interests of all learners.
It should also be mentioned that one of the key provisions of the Basic Education Laws Amendment Act 32 of 2024 (BELA Act), is the enhancement of the HOD’s authority concerning school language and admission policies. While SGBs remain responsible for creating school policies, the BELA Act empowers the HOD to intervene when these policies hinder access to basic education. This development underscores the need for a collaborative approach between SGBs and PEDs to ensure school policies are inclusive, equitable, and aligned with constitutional mandates.
While SGBs play a critical role in the democratic governance of our public schools, the lack of collaboration between them and PEDs has contributed to exclusionary practices that undermine the realisation of the right to a basic education.
*Dr Adams is a programme coordinator for Law at Boston City Campus in Cape Town. This article is based, in part, on her recent doctorate in Public Law at Stellenbosch University.
Cape Argus