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

The Federation of Governing Bodies for South African Schools (FEDSAS), representing school governing bodies, challenged the validity of amendments made in 2012 to the Gauteng Regulations Relating to the Admission of Learners to Public Schools. The amendments were promulgated by the MEC for Education, Gauteng, under section 11(1) of the Gauteng School Education Act. FEDSAS contended that several regulations unlawfully encroached on the statutory powers of school governing bodies under section 5(5) of the South African Schools Act, conflicted with national legislation, were ultra vires the MEC’s powers, and were irrational, unreasonable, or procedurally unfair. The High Court largely upheld the challenge and struck down several regulations. On appeal, the Supreme Court of Appeal reversed most of the High Court’s findings and upheld the validity of the regulations, save for regulation 2(2A). FEDSAS then sought leave to appeal to the Constitutional Court against the SCA’s decision.

Leave to appeal was granted except in respect of the costs order. The appeal was dismissed. The MEC for Education, Gauteng, was directed to determine feeder zones for public schools in Gauteng in accordance with regulation 4(1) within a reasonable time, not later than 12 months from the date of judgment.

The case is significant for clarifying the constitutional relationship between national and provincial education legislation and the respective roles of school governing bodies and provincial education authorities. It reaffirms that admission policies of public schools are subject to provincial regulation and that provincial governments may lawfully regulate learner admissions to promote equity and access to basic education. The judgment strengthens the principle of cooperative governance in education and confirms that apparent conflicts in concurrent competence areas do not automatically invalidate provincial law.