Member of the Executive Council for Education, Gauteng v Federation of Governing Bodies for South African Schools

The Gauteng MEC for Education promulgated amended regulations on the admission of learners to public schools (GN 1160 of 2012). The Federation of Governing Bodies for South African Schools (Fedsas) challenged the regulations in the Gauteng Local Division of the High Court, contending that they were ultra vires provincial powers, conflicted with national legislation (particularly s 5(5) of the South African Schools Act 84 of 1996), infringed the autonomy of school governing bodies, and were procedurally unfair under PAJA and the Constitution. The High Court struck down several regulations. The MEC and the Head of Department appealed to the Supreme Court of Appeal, also seeking condonation for the late prosecution of the appeal.

The appeal was upheld with costs (including the costs of two counsel). The High Court’s order was set aside and substituted with an order dismissing Fedsas’s application, save that Regulation 2(2A) of the 2012 regulations was declared invalid and of no force and effect. The appellants were ordered to pay the costs of the condonation application.

The case clarifies the balance of power between school governing bodies and provincial education authorities in learner admissions. It reaffirms that governing body powers under the Schools Act are not absolute and must be exercised within a framework of cooperative governance, subject to provincial regulation. The judgment strengthens the authority of provincial departments to regulate admissions in the public interest, while insisting on reasonableness, procedural fairness, and good-faith engagement.