Beyond Rivonia : transformative constitutionalism and the public education system

• Author: Lorette Arendse
• DOI: 10.10520/EJC162992
• Published date: 01 January 2014
• Date: 01 January 2014
• Pages: 159-174

LLB, LLM. Lecturer, Department of Jurisprudence, Faculty of Law, University of Pretoria.

*

Department of Basic Education ‘The National Policy for an Equitable Provision of an Enabling

1

School Physical Teaching and Learning Environment’ (2010) GG No 33283 11 June GN 515, para

1.5.

‘Model C’ is generally used to describe the former white schools as they existed under the previous

2

regime. See South African Human Rights Commission A report on racism, racial integration and

desegregation in South African public secondary schools (February 1999).

Annexure ‘LD9’ of first to third respondents’ answering affidavit in the matter between the

3

Governing Body of Rivonia Primary School and the MEC for Education: Gauteng in the South

Gauteng High Court.

Governing Body of Rivonia Primary School and Another v MEC for Education: Gauteng 2012 1 All

4

SA 576 (GSJ) (‘the High Court judgment’).

Beyond Rivonia: Transformative

constitutionalism and the public

education system

Lorette Arendse*

1 Introduction

The after effects of apartheid education are still felt acutely in our present

education system . According to statistics released by the Department of Basic

Education, one quarter of South African schools are overcrowded. This denotes

1

a critical shortage of classrooms countrywide, particularly in the former black

schools that continue to be overcrowded. Gauteng is not an exception to the

nationwide norm. Former black schools in the province have average learner-

educator ratios as high as 1:54 per class in comparison to former Model C

schools with learner-educator ratios as low as 1:19 per class.

23

Rivonia Primary School is one of the former Model C schools in Gauteng

which maintains low learner-educator ratios due to its ability to remunerate

additional teachers from the school’s affluent budget. In 2010, in an effort to

preserve the status quo, the school refused admission to a Grade 1 learner. This

decision was ultimately challenged in the South Gauteng High Court which

delivered a judgment that fundamentally altered the powers of school governing

bodies to determine the capacity of a school. “Capacity” in this instance refers

4

to the maximum number of learners a school can accommodate. The Court held

160 (2014) 29 SAPL

The High Court judgment (n 4) para 59.

5

MEC for Education in Gauteng Province v Governing Body of Rivonia Primary School 2013 BCLR

6

1365; 2013 6 SA 582 (CC) (‘the Constitutional Court judgment’).

South African Human Rights Commission Socio-economic rights report (2001) 88.

7

Veriava and Coomans ‘The right to education’ in Brand and Heyns (eds) Socio-economic rights

8

in South Africa (2005) 60.

that the power to determine the maximum capacity of a school vests in the

Department of Education and not the school governing body. The High Court

5

judgment was subsequently overturned by the Supreme Court of Appeal.

However, the Constitutional Court made a final pronouncement on the matter by

agreeing with the High Court that the Department may intervene in the admission

policy of a public school.

6

The Rivonia judgments exposed (again) the deep divisions within the public

education system. My interest here is not to analyse the legislation applicable to

the case or to engage in a detailed rights-based analysis. I am concerned with the

broader issues of race, inequality and the transformation of the public education

system as they were highlighted in the judgments of the High Court and the

Constitutional Court.

Part 2 of the article provides the relevant context by describing the current

public education system which is riddled with inequalities from the past. The third

part focuses on how transformation is understood, examines the judiciary’s role

in advancing transf ormation and explores the limitation s placed on transformative

constitutionalism. Part 4 looks at the High Court and Constitutional Court

judgments and determines whether the interpretive approach by these courts

accords with the principles of transformative constitutionalism. In the next part of

the article, I question whether the Rivonia judgments will have an impact on the

transformation of the public education system. Part 6 provides the conclusion.

2 The South African public education system

The South African public education system, deeply scarred by the legacy of the

past, is in dire need of transformation. It is trite that South Africa, in reality, still

harbours separate education systems in its public school domain: the one

consists of the former Model C schools, which are adequately resourced, and the

other of the former black schools, entrenched in abject poverty. The legacy of

7

apartheid education is manifested in a minimum level of resources, lack of

qualified teachers, high teacher-pupil ratios, lack of libraries and laboratories and

a shortage of classrooms at the latter schools. On the other hand, most of the

former Model C schools are equipped with modern computers, well-resourced

libraries and laboratories and well-qualified teachers. The root of this disparity

8

is found in the education policy of the previous regime. One of the key features