The school governance amendments in the Bela Bill are constitutional

The school governance amendments in the Bill, specifically, changes to the language and admissions policy-making functions of school governing bodies (SGBs) have been highly contested. The amendments imbue transformative and rights-based criteria into these policy-making functions.  However, ever since the Bela Bill was first introduced, there has been a significant pushback to the school governance amendments.  This has persisted through the various public participation processes.  There have been ongoing threats of litigation challenging the constitutionality of the Bill and there has been a highly resourced campaign with some novel tactics such as billboards on the national freeways that read: “Red Afrikaanse Skole”, translated meaning Save Afrikaans Schools.

Despite this, the school governance amendments have survived, albeit in watered-down form. These amendments are constitutional and aligned with the progressive school governance jurisprudence of the Constitutional Court.

The history of school governance

Apartheid education was characterised by a centralised and authoritarian system of school governance. The transition to a constitutional democracy brought with it a three-tier decentralised and devolved model of school governance.

In the Constitutional Court, school language case of Ermelo, the Court described the model in the following terms:

“The national government is represented by the Minister for Education whose primary role it is to set uniform norms and standards for public schools. The provincial government acts through the MEC for Education who bears the obligation to establish and provide public schools and together with the Head of the Provincial Department of Education, exercises executive control over public schools through principals. Parents of the learners and members of the community in which the school is located are represented in the school governing body which exercises defined autonomy over some of the domestic affairs of the school.”

At the time of the transition, both the previous ruling National Party and the liberation movements were committed to education decentralisation albeit for very different reasons.  The National Party favoured a model for education decentralisation that provided complete autonomy to SGBs in policymaking.  This was justified on the basis of parental choice but was really a proxy to justify racial and cultural separateness. For the liberation movements, decentralisation was rooted in resistance politics and the democratisation of decision-making.

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Significant school governance litigation has occurred since then relating to SGB policymaking. Language disputes in former white schools have had racial overtones as they have excluded African learners in single-medium Afrikaans-language schools. In admission disputes, where schools have capped learner enrolment and limited access to largely feeder communities in historically white areas, this has had the impact of restricting access for learners who are not white to these schools. School fee policies have tended to exclude poor — mainly African — learners at wealthy schools by not fairly implementing exemption policies. The religious policies of homogenous Christian schools have been unwelcoming spaces for non-Christian learners. Codes of conduct that prohibit pregnant learners from school have discriminated against pregnant girl learners.

Within this context, provincial education departments have sought to curb the powers of the SGBs as gatekeepers.  Unfortunately, this has often occurred unlawfully with these departments bypassing procedures outlined in the Schools Act. SGBs therefore initiated litigation against provincial departments framed as lawfulness disputes, without delving into the rights implications for the learners impacted by the SGB policies.

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The Constitutional Court has had to carefully navigate these cases by simultaneously acknowledging the unlawfulness of provincial departments’ actions whilst utilising its wide remedial discretion to still attempt to vindicate the rights of learners seeking access to these schools.  The court has in these cases also developed a firm set of principles that should guide SGB policy making.

The principles of the school governance jurisprudence

In case of Ermelo, the then Deputy Chief Justice, Moseneke held that the powers of SGBs at individual schools cannot be exercised in isolation from the broader systemic issues in education but must be understood within the context of the broader constitutional scheme and the imperative to redress the legacy of apartheid education. He stated that while an SGB is enjoined to promote the best interests of the school and all learners at it, it:

“[M]ust, in addition, recognise that it is entrusted with a public resource which must be managed not only in the interests of those who happen to be learners and parents at the time, but also in the interests of the broader community in which the school is located and in the light of the values of our Constitution.”

The judgment is said to have established a duty on SGBs to be cognisant of broader systemic concerns in education when formulating policy.  This principle has also been the leitmotif that has underpinned the Court’s reasoning in subsequent school governance cases.

The Court in these cases also affirmed the principles of cooperative governance in schools, and SGBs as “beacons of grassroots democracy”.  It further asserted that there is a duty on provincial departments and SGBs to “meaningfully engage” with each other and in “the best interests of learners” before resorting to litigation.

Codification of the school governance jurisprudence

The school governance amendments may be said to be a timely and proactive attempt by the Department of Education to codify the principles of the school governance jurisprudence.

The version of the Bela Bill that was introduced in the National Assembly in 2021 required that SGBs submit their admission and language policies to the Provincial Head of the Department of Education (HOD) for approval. The HOD had to be satisfied that the policies considered the needs of the broader community in the specific education district in which the school is located.  This consideration is directly derived from the duty to be cognisant of the broader systemic concerns in education.  The HOD was also required to ensure that SGB policies are reflective of other transformative goals, including the best interests of the child, equality as provided for in section 9 of the Constitution, whether there are other schools in the community that are accessible to learners, the efficient and effective use of State resources, and the space available at the school.

The amendments further codified the judgment in the Rivonia Constitutional Court case in respect of admissions that, after consultation with the SGB, the HOD has the final authority to admit a learner.

Those who opposed the National Assembly draft of the Bela Bill asserted that the oversight role given to HODs constituted a usurpation of grassroots democracy and an undermining of the principles of cooperative governance.  They also suggested that the amendment undermined language and cultural rights. The Afriforum submission, for example, referred to the amendments as “a calculated attack on the Afrikaans language”.

The latest iteration of the school governance amendments which sits on the President’s desk reflects some significant changes from the previous version. It removes the oversight role of the HOD at the first instance, but instead requires that SGB policy-making processes be guided by the transformative and rights-based criteria arising from the school governance jurisprudence. Where an SGB determines a language policy but fails to consider the broader language needs of the community, the HOD can direct an SGB to adopt more than one language of instruction.  This must occur in accordance with very stringent criteria. For example, the Bill obliges an HOD to hold public hearings and afford parents, SGBs and members of the school community with opportunities to make representations before making the decision.

This does not violate the principles of cooperative governance and grassroots democracy. In fact, these principles are potentially enhanced within the tripartite relationship. This is because the National Department of Education has fulfilled its function through the development of normative, rights-based criteria to guide SGB policymaking. The provincial department of education oversees the implementation of these criteria and only where this does not happen can the provincial department intervene in accordance with very strict criteria and processes. To do anything less would be to undermine the imperative to redress apartheid education. DM

Faranaaz Veriava is a Senior Lecturer in the Faculty of Law at the University of Pretoria and a strategic advisor at Section27.