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Abstract
Critics of school governing bodies (SGBs) – both on the left and on the right – tend to rely upon arguments that ignore significant portions of the act that created SGBs – the South African Schools Act (SASA) – the exact nature of the changes to SGBs wrought by amendments to the act and the manner in which the courts, in interpreting the act, have both reinforced the autonomy of SGBs at the same time as they have set limits on those powers. The authors’ reading takes seriously all of the provisions of SASA, its amendments and various court constructions of SASA's provisions. This close reading of the South African Constitution, SASA, SASA's amendments and the case law reveals the lineaments of a fourth level of democratic government. Even with their uneven success as a fourth tier of democratic government, SGBs reflect, in many respects, the most important interactions that citizens have with the state. The authors contend that SGBs provide a vehicle for popular political participation that is quite real, and that participation is made no less real by the strictures imposed upon them by South Africa's constitutional and regulatory order. Despite concerns about their lack of capacity, SGBs enjoy popular acceptance and participation across class and language divides. The legal status of SGBs does not merely enhance various forms of local democracy, SGBs also maintain and create effective social networks that generate new stores of social capital. The ability to provide new forms of democratic participation and to create new stores of social capital suggests that SGBs have the makings of a great, new and rather unique ‘South African’ political institution.
Notes
1. We have argued that this contention is only partially true with respect to single medium public schools and entirely false with respect to independent schools (see Woolman Citation2007; Fleisch and Woolman Citation2007).
2. See Roithmayr (Citation2003) and Veriava (Citation2007). Karlsson (Citation2002) argues that while the use of democratic institutions in school governance has much to recommend it, several studies, although largely anecdotal, suggest that these institutions have merely re-enacted traditional South African relations of race, class and gender. For a different perspectives see Fleisch and Woolman (Citation2004) and Woolman and Bishop (Citation2007).
3. Of course, we and the aforementioned authors are hardly the only other interlocutors in this complex debate. Dietliens and Enslin (Citation2002) contend that participatory governance by SGBs block significant change in public schools, especially in those communities with limited resources, and that we would be better served by direction and intervention by our representatives at the national level of government. Piper (Citation2002), responding directly to Dietlin and Enslien, suggests that they may have ‘reached their conclusions too hastily’ – and that they have thrown out ‘the participatory baby with the school governing body bathwater.’ Other debates worth tracking include the exchange between Jansen (Citation1998) and Maree and Lowenherz (1998). See also Tikly (Citation2003), Chaka and Dieltiens (Citation2007), Dieltens, Chaka and Mbokazi (Citation2007) and Jansen (Citation2006).
4. The tradition of local control dates back to the earliest schools on the subcontinent and has continued in various forms ever since (Malherbe Citation1934).
5. For another recent version of this argument see Chipkin and Ngqulunga (Citation2008).
6. See, for example, Putnam (Citation1993, Citation2000); Coleman (Citation1990); Bourdieu (Citation1986). Putnam (Citation2000), 19) defined social capital as follows:Whereas physical capital refers to physical objects and human capital to the properties of individuals, social capital refers to social networks and the norms of reciprocity and trustworthiness that arise from them. In that sense, social capital is closely related to what some have called ‘civic virtue’. The difference is that social capital calls attention to the fact that civic virtue is most powerful when embedded in a sense network of social relations. A society of many virtuous but isolated individuals is not necessarily rich in social capital.
7. United Democratic Movement v President of the Republic of South Africa & Others (African Christian Democratic Party & Others Intervening; Institute for Democracy in South Africa & Another as Amici Curiae) (No 2), 2003 (1) SA 495 (CC), 2002 (11) BCLR 1179 (CC).
8. This principle stated in its clearest form holds: ‘Government in South Africa must be so arranged that the people, through the medium of political parties and regular elections, in which all adult citizens are entitled to participate, exert sufficient control over their elected representatives to ensure that: (a) representatives are held to account for their actions, (b) government listens and responds to the needs of the people, in appropriate cases directly, (c) collective decisions are taken by majority vote after due consideration of the views of minority parties, and (d) the reasons for all collective decisions are publicly explained. (2) The rights necessary to maintain such a form of government must be enshrined in a supreme-law Bill of Rights, enforced by an independent judiciary, whose task it shall be to ensure that, whenever the will of the majority, expressed in the form of law of general application, runs counter to a right in the Bill of Rights, the resolution of that tension promotes the values of human dignity, equality and freedom’ (Roux Citation2006, 10–68).
9. Rights 7(1). This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in the country and affirms the democratic values of human dignity, equality and freedom.
10. Limitation of rights 36(1). The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.
11. Interpretation of Bill of Rights 39(1). When interpreting the Bill of Rights a court, tribunal or forum – a. must promote the values that underlie an open and democratic society based on human dignity, equality and freedom.
12. Roux (Citation2006). Author's italics removed.
13. That is, whereas the phrase ‘open and democratic society based upon human dignity, equality and freedom’ suggests a miasma of ‘big’ ideas that, if read jointly and severally, could exhaust the entire universe of modern political theory, delinking the two phrases forces the reader of FC subsec. 36(1) and 39(1) to stop and attend – for a moment – to the meaning, as well as the desiderata, of an ‘open and democratic society’.
14. See Woolman (Citation2007, 34–68); Woolman (2008).
15. Minister of Home Affairs v Fourie (Fourie), 2006 (1) SA 524 (CC), 2006 (3) BCLR 355 (CC), para. 95.
16. Matatiele Municipality & Others v President of the RSA & Others, 2006 (5) SA 47 (CC), 2006 (5) BCLR 622 (CC).
17. Matatiele Municipality & Others v President of the RSA & Others, 2006 (5) SA 47 (CC), 2006 (5) BCLR 622 (CC), para. 68. Ngcobo J found that Matatiele Municipality & Others v President of the RSA & Others satisfied the factual predicate required by test: the proposed amendment would have moved an entire, identifiable community from one province to another province. Moreover, the consequences of the proposed amendment were more than symbolic. The move of the municipality from KwaZulu-Natal to the Eastern Cape would have significant effects on the provision – to the constituents of Matatiele – of welfare payments, health services and education. (No one would argue that KwaZulu-Natal benefited from a more professional civil service.) Given the test to be applied, and the salient facts, the Court concluded that KwaZulu-Natal, in not holding any public hearings or inviting any written submissions, had acted unreasonably. As a result, that part of the Twelfth Amendment that altered the boundary of KwaZulu-Natal was declared unconstitutional.
18. Doctors for Life International v Speaker of the National Assembly & Others, 2006 (6) SA 416 (CC), 2006 (12) BCLR 1399 (CC).
19. These two decisions have shaken up political practices in all nine provincial legislatures. None of the legislatures know how much participation is ‘reasonable’ for any given decision. But they do know that they are obliged to consider public participation when reaching decisions that will have some demonstrable effect on a discrete and identifiable portion of the community. Panel Discussion on Matatiele Municipality & Others v President of the RSA & Others and Doctors for Life International v Speaker of the National Assembly & Others, South African Human Rights Commission and the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (11 October 2006).
20. Bittereinders were those Boers who refused to concede defeat after the Second Boer War (1899–1901) and wished to continue the war against the British by any means possible.
21. 1997 (4) SA 982 (C).
22. Governing Body Foundation Newsletter 2/2008, February, p. 3. Changes to various legislation and regulation. http://www.gbf.org.za/documents/default.asp?id=Newsletters.
23. See Harber and Trafford (Citation1999).
24. M.J. Nongubo has found evidence of continued autocratic tendencies among educators regarding learner involvement in school governance. Nongubo's (Citation2005) findings are consistent with Karlsson's (2002) findings from an earlier period. Karlsson's analysis of studies from the late 1990s suggested that secondary schools preferred to leave learners out of decision-making processes. However, as learners became aware of the new legislation – and their increased powers – they were gradually brought into school governance, even if their involvement tended to focus on sports policies, fundraising and discipline. See also Carr (Citation2005).
25. See Zimmerman (Citation2003) and Anderson (Citation2005).
26. Education Laws Amendment Act 100 of 1997.
27. Education Laws Amendment Act 48 of 1999.
28. Education Laws Amendment Act 53 of 2000.
29. Education Laws Amendment Act 57 of 2001.
30. Education Laws Amendment Act 50 of 2002.
31. Education Laws Amendment Act 50 of 2002, 800J–804D.
32. Education Laws Amendment Act 50 of 2002, 804E–805B.
33. Education Laws Amendment Act 50 of 2002, 805C–E.
34. Education Laws Amendment Act 50 of 2002, 805E–806D.
35. The Minister took the matter on appeal to the Constitutional Court. The Court dismissed the matter on the grounds that the Minister lacked the power under the NEPA to issue such a notice. It did not, as a result, have to consider the issue of age discrimination. Minister of Education v Harris, 2001 (4) SA 1297 (CC), 2001 (11) BCLR 1157 (CC). The South African Schools Act makes identical provision for public schools. This section has not yet been challenged. It appears from Minister of Education v Harris that a different set of concerns may apply to public schools. For example, a child's continued failure in a public school places a strain on the public purse – the costs of the failure of a child in an independent school is borne primarily by individual parents.
36. Christian Education South Africa v Minister of Education, 2000 (4) SA 757 (CC).
37. Education Laws Amendment Act 1 of 2004.
38. Education Laws Amendment Act 24 of 2005.
39. For an overview of the 2007 amendments see Veriava (2007).
40. Education Laws Amendment Act 31 of 2007.
41. Newsletter of the School Governance Foundation (Citation2007).
42. Ministerial Review Committee (Citation2003).
43. Observatory Girls Primary School v Head of Department of Education, Gauteng, 2003 (4) SA 246 (W).
44. See Government Notice R 222, Government Gazette 19767 (18 February 1999). The regulations were enacted in terms of sec. 4 of the Employment of Educators Act 76 of 1998.
45. It created an ‘Interview committee [with a] … mandate to make final recommendation to GDE’. The four member interview committee proceeded to conduct interviews on 17 May 2002. Each member of the committee scored each applicant and then combined their scores. The top three candidates had scores of 249 points, 243 points and 219 points.
46. Observatory Girls Primary School v Head of Department of Education, Gauteng, 255.
47. 2002 (4) SA 877 (T).
48. See Promotion of Administrative Justice Act 3 of 2000; Currie and Klaaren (Citation2001).
49. The court in Schoonbee v MEC for Education, Mpumalanga stated that SASA comprehensively captures the legal nature of the relationship of all stakeholders to the assets of the school:the Schools Act, which came into operation on 1 January 1996, contemplates an education system in which all the stakeholders, and there are four major stakeholders – the State, the parents, educators and learners – enter into a partnership in order to advance specified objectives around schooling and education. It was intended, it appears, to be a migration from a system where schools are entirely dependent on the largesse of the State to a system where a greater responsibility and accountability is assumed, not just by the learners and teachers, but also by parents. (See Schoonbee v MEC for Education, Mpumalanga, 2002 (4) SA 877(T), 883)
50. Grove Primary School v Minister of Education & Others, 1997 (4) SA 982 (C). See, for example, Jansen (1998); Maree and Lowenherz (1998).
51. Grove Primary School v Minister of Education & Others, 996.
52. Grove Primary School v Minister of Education & Others, 1000.
53. Grove Primary School v Minister of Education & Others, 1001.
54. Western Cape Minister of Education & Others v The Governing Body of Mikro Primary School, 2006 (1) SA 1 (SCA), 2005 (10) BCLR 973 (SCA).
55. Western Cape Minister of Education & Others v The Governing Body of Mikro Primary School, para. 30.
56. Western Cape Minister of Education & Others v The Governing Body of Mikro Primary School.
57. Laerskool Middelburg en 'n ander v Departementshoof, Mpumalanga Departement van Onderwys, en andere 2003 (4) SA 160 (T). Having notified the state that it had failed to take cognizance of the commitment in FC sec. 29 to linguistic diversity, the court in Laerskool Middelburg en 'n ander v Departementshoof, Mpumalanga Departement van Onderwys, en andere conceded that any entitlement to a single medium school was subordinate to the right of every South African to a basic education, the right to be educated in a language of choice and the palpable need of all South Africans to share education facilities with other linguistic and cultural communities. The court was unwilling to allow the needs of 40 English speaking – and largely black – learners to be prejudiced by the state's failure to play by the rules and by the school's intransigence on the issue of parallel medium education. The guarantee in FC sec. 28(2) that ‘the best interests of the child’ are always of ‘paramount importance’ was held by the court to trump the language and cultural rights of the school's Afrikaans learners. So, while the state's actions had, in fact, been mala fide, it was still able to secure a victory for educational equity by getting the proper parties – namely the children – before the court.
58. Matukane & Others v Laerskool Potgietersrus, 1996 (2) SA 223 (T).
59. It should be noted that Matukane & Others v Laerskool Potgietersrus was heard before SASA came into effect. The result, however, would have been the same.
60. Laerskool Middelburg en 'n ander v Departementshoof, Mpumalanga Departement van Onderwys, en andere, 2003 (4) SA 160 (T).
61. Seodin Primary School v MEC Education, Northern Cape, 2006 (4) BCLR 542 (NC), [2006] 1 All SA 154 (NC). The High Court held that the SGBs of three Afrikaans medium public schools could not use language preference alone to exclude black, English speaking learners from admittance where the provision of English language instruction was ‘reasonably practicable’. In addition, in all three cases heard in Seodin Primary School v MEC Education, Northern Cape the single medium Afrikaans schools were undersubscribed. Finally, the High Court found that public pronouncements by the MEC for Education on the need for greater integration in the public schools system could not be interpreted as an ultra vires act aimed at the elimination of single medium – read Afrikaans – public schools. Where public schools are concerned, the court made it clear that the Final Constitution will not tolerate racist and discriminatory admissions policies masquerading as policies that claim to be about the need to maintain the language and the culture of a given community.
62. High School Ermelo & Another v Head of Department Mpumalanga Department of Education & Other, 2007 ZAGPHC 232 (17 October 2007). In the previous matter, Hoërskool Ermelo I Justice Prinsloo of the Pretoria High Court suspended a decision by the Mpumalanga Department of Education to dissolve the school's governing body and to replace it with a departmentally appointed committee. The dissolution would have enabled the Mpumalanga Department of Education to alter the school's language policy and would have allowed 113 English speaking pupils to receive instruction in English. Juustice Bill Prinsloo's interim order froze Mpumalanga education MEC Siphosezwe Masango's instruction that Ermelo High School enrol 113 children that the provincial government claimed could not be placed in the other schools in the area. Justice Prinsloo ruled that his interim order should stand until a full hearing on the matter was held. The Department of Education decided not to wait for the full hearing. In their papers the Department of Education and the parents of the learners claimed that right to education in the language of choice was impaired by the school's language policy and its refusal to admit children who were not prepared to be taught in Afrikaans. In addition, the Mpumalanga Department of Education claimed that its position was underwritten by the under-subscription at Ermelo and the oversubscription at adjacent high schools. These facts were not disputed by the parties. Ermelo was built for 1200 students and carried a mere 589 in some 30 classrooms at the time of litigation. On appeal Transvaal Judge President Ngoepe, and Judges Seriti and Ranchod set aside the High Court ruling in Hoërskool Ermelo I. The court in Hoërskool Ermelo II found that the single medium Afrikaans only public school must admit English speaking pupils. Of particular moment for the court was the under-subscription of Hoërskool Ermelo. Given that Hoërskool Ermelo was operating at only half capacity, the Full Bench found that it was ‘reasonably practicable’ – as contemplated by FC sec. 29(2) – for the high school to accommodate the 113 Grade 8 learners. The mere fact that all classrooms were being employed and that the existing curriculum turned on the current availability of classrooms did not constitute sufficient grounds for excluding English learners and maintaining Hoërskool Ermelo as a single medium Afrikaans public school. Equity, practicability and historical redress – the three express grounds for assessment of existing language policy in terms of FC sec. 29(2) – justified the transformation of Hoërskool Ermelo from a single medium public school into a parallel medium public school.
63. Seodin Primary School v MEC Education, Northern Cape, para. 56.
64. 2002 (4) SA 738 (C).
65. 2002 (4) SA 738 (C), para. 17.
66. 2002 (4) SA 738 (C), para. 18–20.
67. [2007] ZACC 21.
68. Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000.
69. [2007] ZACC 21, para. 44.
70. [2007] ZACC 21, para. 114.