Cyril Ramaphosa’s promised ‘new dawn’ continues, with yet another damaging bill soon to be opened for public comment. This time it is both the powers of school-governing bodies (SGBs) and the jurisdiction of the courts that the president has in the crosshairs of the ANC’s national democratic revolution (NDR).
The Bill in issue is the Basic Education Laws Amendment Bill of 2022 (the Bill). This has been tabled in the National Assembly, which is expected to call for public comment on it before long. For present purposes, the Bill’s most important changes are to the South African Schools Act of 1996 (though it makes some relatively minor amendments to the Employment of Educators Act of 1998 as well).
Under the Bill, the admissions policies of public schools are still, in principle, to be determined by their SGBs. But the Bill also empowers provincial education department heads, ‘after’ consultation with SGBs – wording that allows these bureaucrats to disregard their views – to ‘admit a learner to a public school’.
Departmental heads will also be empowered to:
- approve a school’s admissions policy or recommend ‘necessary’ changes;
- require an admissions policy to put greater emphasis on ‘equality’ and ‘equity’, terms that are not defined;
- decide how many admissions the available ‘space’ and ‘resources’ of the school allow; and
- assess whether there are ‘other schools in the vicinity’ which prospective pupils could attend instead.
SGBs also remain entitled to determine the language policies of their schools, which the Bill says ‘must be limited to one or more’ of the country’s official languages, including sign language.
Again, however, an SGB language policy must be approved by the departmental head taking account of ‘equality’ and ‘equity’ as well as ‘the need for the effective use of the classroom space and resources of the school’.
In addition, SGB powers will be negated whenever a departmental head decides it is ‘practicable’ for a school to ‘adopt more than one language of instruction’ and ‘directs’ the school to do so.
Whether it is practicable for a school to become a dual medium one depends on all relevant factors, including ‘equality’, ‘equity’, the ‘effective’ use of classroom space and other resources, and ‘the language needs, in general, of the broader community in the education district where the school is situated’.
Before making such decisions, departmental heads must conduct public hearings and invite SGBs, parents, and school communities to make representations. They must also ‘give due consideration’ to all the representations they receive.
Once a departmental head has instructed a school to become a dual medium one, he or she must ensure the school receives the necessary resources, including both teachers and adequate ‘learning and teaching support material’.
Under the Bill, appeals lie primarily to the provincial MEC (Member of the Executive Council) for education, rather than the courts. The same applies if an SGB is dissatisfied with the departmental head’s:
- recommendations on necessary changes to the school’s admissions and/or language policies; and
- directive that the school must adopt more than one language of instruction.
In all these instances, the MEC must within 14 days ‘consider and decide the matter and inform the SGB of the outcome of the appeal’.
In Gauteng, the MEC to be empowered to decide appeals is Panyaza Lesufi, ANC deputy provincial chair and SACP member. Mr Lesufi has been busy undermining SGB autonomy for many years – most notably in the Overvaal high school case in 2018 – and will soon have the backing of the Bill for his dirigiste interventions.
Overturning the Overvaal high school judgment
These clauses in the Bill are clearly intended to overturn the Overvaal high school ruling handed down by Judge Bill Prinsloo in the Pretoria high court in January 2018.
In December 2017 Mr Lesufi’s department had ordered Overvaal – an Afrikaans-medium high school in Vereeniging catering for both black and white pupils – to admit 55 English-speaking pupils into its Grade 8 class, starting in January 2018.
The SGB objected that the school was already full, and that it could not afford to hire a handful of English-speaking teachers for the benefit of this small group. It also asked why two nearby English-medium schools, General Smuts and Phoenix, could not take the pupils instead.
The department responded that it had already put in place all necessary measures to accommodate the 55 pupils, including a single English teacher (who could hardly teach in all the high school subjects the pupils would need), along with furniture and study material. It also suggested that the school turn some of its laboratories into additional classrooms for the 55 new entrants.
In addition, the department bullied the two English-medium schools into declaring that they had no space for the 55 children. The principals of these two schools had previously signed sworn affidavits confirming they had more than enough room for the 55 pupils and would be glad to admit them. But they changed their testimony – claiming they had erred and did not have extra space at all – after departmental officials threatened them with dismissal and the loss of their pension rights.
Judge Prinsloo granted the SGB’s urgent application to have the decision set aside for breaching the constitutional principle of legality, as well as various provisions in the Promotion of Administrative Justice Act (PAJA) of 2000. He also issued a punitive costs order against the department.
The court strongly criticised the department’s conduct, saying it had made no attempt to verify Overvaal’s capacity ‘relative to other schools in the district’, as the law required. Instead, the department had tried to ‘force [the school] in an arbitrary fashion on very short notice to convert to a double medium institution when it was not practically possible to do so’.
Undue pressure had also been placed on the principals of the two English-medium schools to change their earlier sworn testimony. In addition, a senior official had disclosed an ‘obvious bias’ in describing Afrikaans as ‘a language whose legacy is sorrow and tears to the majority’.
In response to the judgment, Mr Lesufi said that school language policies were ‘malignant’ and ‘the very essence of racism’. He vowed that the ruling would prove ‘a short-lived victory for the school’ as he would appeal it all the way to the Constitutional Court. But the Constitutional Court gave him short shrift, refusing in July 2018 even to hear his appeal as it had no prospect of success.
The Bill is an obvious attempt to circumvent Judge Prinsloo’s ruling by increasing the government’s powers to decide on admissions and language policies, as well as the admission of particular pupils to specified schools. It also shows the ANC’s determination to prevent similar setbacks in the future by vesting the power to decide appeals in Mr Lesufi and his provincial counterparts.
However, constitutional rights of access to court cannot so easily be ousted. This is especially so when SGBs have the right to administrative justice and pupils are entitled to ‘receive education in the official languages of their choice’, where this is ‘reasonably practicable’.
The Bill is thus open to constitutional challenge on these and other grounds. Hence, the key task for those wanting to protect school autonomy from the NDR’s ever expanding interventions is to oppose the Bill strongly in submissions to Parliament and thereafter, if needs be, to challenge it in the courts.
A vital positive change already achieved
When an earlier version of the Bill was tabled in 2017, it also sought to vest ‘the sole responsibility’ for the selection and appointment of principals and their deputies in provincial education bureaucrats.
In seeking to justify this change, Mr Lesufi said: ‘More than 80% of the student population of former model C schools are black, whilst the teaching staff remain white. We cannot be held to ransom by non-progressive and self-centred beneficiaries of the past and haters of transformation.
‘It is quite clear that those who continue to benefit from remnants of segregation and colonialism to the exclusion of the majority of our people are hell-bent to put up a fierce fight to close out our people in accessing quality education.’
Yet by Mr Lesufi’s own admission, Model C schools were already 80% black, so it was hardly the case that black pupils were being excluded from them. In addition, insisting on demographic representivity among principals and senior staff was likely to increase the scope for cadre deployment at the expense of merit. It would also expand the already pernicious influence of the SACP-aligned South African Democratic Teachers’ Union (Sadtu).
An article in the Financial Mail warned further that the mooted policy shift was likely to alienate fee-paying parents and encourage experienced teachers wanting advancement to leave public schools for independent ones. It would thus reduce the quality of public education in the schools that had functioned best in the post-apartheid period.
A Socio-Economic Impact Assessment (SEIA) report compiled in 2020 brushed aside most criticisms of the 2017 measure, but not the objections lodged against these appointment provisions. This significant public rejection presumably explains why no equivalent clauses have been included in the 2022 Bill.
This important gain underscores the need for still stronger public resistance to the current Bill – and its damaging attempts to reduce school autonomy, constrain the courts, and expand the powers of the state, just as the NDR script requires.