The controversial language and admissions clauses of the BELA Act are about to be tested in court for the first time. This comes after the North-West Education Department waited until the December school holiday to place about 80 learners at the Swartruggens Combined School without any prior consultation as required by the amended Schools’ Act and without providing the school with any additional resources. The school only learned about this on 12 January this year – two days before the start of the school year.

          “The irony is that formal discussions about including the learners took place throughout last year. The school, the governing body, and the provincial education department were already looking for solutions to admit the learners,” says Dr Jaco Deacon, CEO of the school governing body association FEDSAS.

          FEDSAS is supporting the school governing body with an urgent court application in which the court is asked to order the provincial education department to adhere to its constitutional and statutory obligations before the school can start the process to admit additional learners.

          The language and admissions clauses of the BELA Act were criticised extensively over the past couple of years. However, these clauses clearly state that the SGB has the authority to determine a school’s language and admissions policy. “From the get-go, FEDSAS has made it clear that abuse of authority by education officials or interference by politicians will not be tolerated. In this instance, the North-West Education HOD’s actions exceeded the limits of legal administrative authority.”

          The school and SGB are in favour of accommodating additional learners but on condition that the necessary resources, including infrastructure and additional educator posts, be made available and that the prescribed consultation processes take place in accordance with the amended Schools’ Act. 

          “The school has already reached its authorised capacity. Further admissions have serious safety and operational implications for current as well as additional learners. At the moment the school cannot legally or responsibly accommodate more learners without sufficient resources,” says Dr Juané van der Merwe-Mocke, Deputy CEO of FEDSAS and Head of Legal Services.

          Van der Merwe-Mocke says it is difficult to describe the provincial education department’s actions as anything other than underhanded. “Here we have a school willing to make provision for additional learners. For months they participated in discussions with the provincial education department to ensure that sufficient resources are available to accommodate more learners, only to find out that the North-West Education Department waited until the December school holidays to go behind their back and place nearly 80 additional learners without informing the school.” 

          As part of the formal discussions the SGB required clear written and enforceable commitments from the department in order to consult with the school community. To date, the department has not made any formal commitments for the provision of additional staff, infrastructure, teaching and learning material or financial support. 

          According to Van der Merwe-Mocke, a couple of mobile classrooms were delivered to the school on 20 January this year. Two additional educators also joined the school without a proper appointment process being followed. However, she says the school needs at least six additional educators to adhere to minimum teaching requirements.

          “The mobile classrooms are yet to be installed properly and there is no electricity supply, which means the classrooms are not operational or safe to use. The school’s existing infrastructure is already under significant pressure. Independent infrastructure and safety reports have pointed out several infrastructure and sanitation challenges.”

          Van der Merwe-Mocke says to accommodate additional learners at this stage would place the SGB in an untenable position regarding its legal obligation towards the best interests of learners. 

          “It is important to note that the court application is not aimed at infringing on learners’ right to education. The aim is to ensure that admission takes place in a responsible, legal, and sustainable manner, with proper planning, sufficient staff, functional infrastructure, and meaningful consultation and cooperation between the department, the SGB and the school community. No school may be forced to accommodate learners when it is objectively unsafe and impractical.”

          The case also has wider implications. Deacon says the court application includes a request for a punitive costs order against the department but also against the provincial head of education due to their contempt of the stipulations of the Schools’ Act and their abuse of authority.

          “It is unacceptable that schools should carry the cost when officials abuse their authority. There is also no reason why tax money should be used to finance incompetence or the promotion of own agendas.”

          Deacon says when provincial education departments are allowed to unilaterally ignore capacity decisions and overburden schools without sufficient resources, it sets a dangerous precedent that undermines the statutory role of SGBs. “It holds serious consequences for learner safety, quality education and the principle of cooperative government as stipulated in the Constitution as well as the Schools’ Act.”