Ambivalent adjudication of admission and access to schools - striking a reasonable balance between equality, quality and legality

• Author: Marius Smit
• DOI: 10.10520/EJC162997
• Published date: 01 January 2014
• Date: 01 January 2014
• Pages: 37-64

B Com LLM Ph.D, Associat e Professor, North-West Univer sity.

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Department of Basic Education South African country report: Progress on the implementation of

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the Regional Education and Training Plan (2011) at 18-19; Statistics South Africa General

household survey 2006-2009 (2010) 15.

Statistics South Africa General household survey: 2006–2011 (2012) 16.

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Ambivalent adjudication of admission

and access to schools – striking a

reasonable balance between equality,

quality and legality

Marius Smit*

1 Introduction

South Africa comprises a dual but interdependent social order, shaped by

colonialism and apartheid that was largely determined along racial lines. This

social structure consists of a relatively advanced, globally interconnected political

economy dominated by the mainly white, fairly affluent minority, and a relatively

underdeveloped socio-economic stratum comprising mainly the black majority.

Since 1994 the transition from an apartheid state to an emerging democracy had

a profound effect on education in South Africa. Compulsory attendance

provisions, the deracialisation of schools, and the comprehensive governmental

policies to transform education all aim to address the inequities and inequalities

between races and communities. As a result there has been a dramatic increase

in access to schools and educational institutions since 1994. Primary education

in South Africa is characterised by very high rates (98,3%) of enrolment and

retention with gender parity, which is on par with education systems of the

developed world. Completion rates of primary education have improved from

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89,6% in 2002 to 93,8% in 2009.

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However, the near universal access to basic education has result ed in

overcrowding and ancillary problems in a number of public schools. The

increased availability of education is undoubtedly a very good development, but

the disturbing reality is that approximately 80% of South African public schools

38 (2014) 29 SAPL

Taylor ‘Focus on: Challenges across the education spectrum’ (2006) 15 JET Bulletin 1 at 2.

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Taylor ‘What’s wrong with South African schools?’ JET Education Services (2008) 1 at 1-2;

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Mosselson ‘Focus on: Whole school development. What works in school development?’ (2008) 19

JET Bulletin 4 at 5-6.

MEC Education, Gauteng Province v Governing Body of the Rivonia Primary School 2013 JDR

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2237 (CC); Matukane v Laerskool Potgietersrus 1997 JOL 102 (T).

Head of Department, Department of Education, Free State Province v Welkom High School; Head

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of Department, Department of Education, Free State Province v Harmony High School 2013 ZACC

25.

Middelburg Laerskool en die Skoolbeheerliggaam van Middelburg Laerskool v Hoof van

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Departement, Departement van Onderwys, Mpumalanga 2003 4 SA 160 (T); Western Cape Minister

of Education v Governing Body of Mikro Primary School 2005 3 SA 436 (SCA); Seodin Primary

School v Northern Cape Department of Education Case No 117/2004 (NC); Head of Department,

Mpumalanga Education Department v Ermelo High School 2010 2 SA 415 (CC).

Act 84 of 1996.

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Woolman and Fleisch ‘South Africa’s unintended experiment in school choice: How the National

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Education Policy Act, the South African Schools Act and the Employment of Educators Act create

enabling conditions for quasi-markets in schools’ (2006) 18 Education and the Law 31 at 32-33, 45-

54.

are essentially dysfunctional and do not provide effective quality education. One

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of the most pressing issues is the challenge of achieving equal quality education

for the majority of previously disadvantaged learners without unreasonably and

unfairly diminishing the quality of education that is provided in the few remaining

functional schools.

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Litigation between public schools and the state (Minister of Basic Education

and nine provincial government departments of basic education) have primarily

revolved around admission policies , pregnancy policies or the language policies

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of Afrikaans single-medium public schools. This discussion aims to consider the

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following three aspects: the right to education and the South African context of

a quasi-market for quality educat ion; case law on admission of learners to public

schools; and suggestions to strike a reasonable balance between access to

education and to the quality of that education.

2 The development of quasi-markets for schools

After the promulgation of the South African Schools Act in 1997 quasi-markets

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developed at schools as a result of factors such as open enrolment, parent

preference, per capita spending, devolved budgets, compulsory school fees for

the more affluent quintile 4 and 5 schools, school right-sizing and shared

responsibilities between the provincial executive, school managers and

governors. Woolman and Fleisch aptly explain how eliminating the race-based

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allocation of educational resources and the relaxation of feeder zone regulations

led to the establishment of deracialised schools and a quasi-market between such