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

In 2011, the MEC for Education, Gauteng published draft amendments to the Regulations Relating to the Admission of Learners to Public Schools. FEDSAS, a national representative organisation for school governing bodies, submitted comments objecting to 29 provisions. The MEC promulgated the amended Regulations on 9 May 2012. FEDSAS then challenged the validity of selected regulations in the High Court on grounds that they conflicted with the Schools Act, were ultra vires the MEC's powers, and were not reasonable or justifiable. The High Court upheld the challenge and struck down several regulations including regulations 3(7), 4, 5 read with 8, 11 and 16. The MEC and HOD appealed to the Supreme Court of Appeal, which reversed the High Court decision except for regulation 2(2A). FEDSAS then sought leave to appeal to the Constitutional Court, narrowing its challenge to regulations 3(7), 4(1) and (2), 5 read with 8, 11(5) and 16.

• Whether the impugned Regulations conflict with the Schools Act
• Whether the Regulations are ultra vires the MEC's powers under section 11(1) of the Gauteng School Education Act
• Whether the Regulations are rational, reasonable and justifiable
• Whether regulation 3(7) prevents unfair discrimination or unlawfully limits schools' rights
• Whether regulation 4 requiring the MEC to determine feeder zones is valid and enforceable
• Whether regulations 5 and 8 empowering the HOD to place unplaced learners and declare schools full conflict with governing body powers
• Whether regulation 11(5) on transfer of learners is vague and inoperable
• Whether regulation 16 on objections improperly delegates the MEC's appellate powers

1. Leave to appeal is granted save in respect of the abandoned costs order of the Supreme Court of Appeal. 2. The appeal against the order of the Supreme Court of Appeal is dismissed, subject to paragraph 3. 3. The MEC for Education, Gauteng is directed to determine the feeder zones for public schools in Gauteng province in the manner required by regulation 4(1) of the Regulations Relating to the Admission of Learners to Public Schools within a reasonable time but not later than 12 months from the date of this judgment.

The binding legal principles established are: (1) Provincial legislation on education (a Schedule 4 concurrent competence) does not automatically fail for conflict with national legislation - sections 146, 149 and 150 of the Constitution provide a specific conflict resolution scheme that does not result in automatic invalidity. (2) Section 5(5) of the Schools Act expressly subjects the power of school governing bodies to determine admission policy to 'this Act and any applicable provincial law', thereby authorizing provincial regulation of school admissions. (3) Regulations preventing access to confidential learner information before admission (regulation 3(7)) are rational, reasonable and justifiable as they prevent unfair discrimination against learners with learning difficulties or behavioural issues. (4) The word 'may' in regulation 4(1) authorizing the MEC to determine feeder zones must be read as 'must' because regulation 4(2) makes clear that default feeder zones apply only 'until such time as the MEC has determined a feeder zone', and default zones deny stakeholders meaningful participation. (5) Regulations empowering the HOD to place unplaced learners at schools (regulation 5) and to determine enrollment capacity and declare schools full (regulation 8) are rational, reasonable and justifiable to fulfill the constitutional and statutory obligation to ensure placement of all learners, and do not conflict with section 5(5) of the Schools Act. (6) School governing bodies and the MEC/HOD are organs of state with obligations under section 41(1)(h) of the Constitution to cooperate in mutual trust and good faith.

Moseneke DCJ made extensive obiter observations on the importance of education, quoting from Aristotle, Kant, Marx, Gandhi, Helen Keller, Nelson Mandela, Kofi Annan, Malala Yousafzai, the Bible, Buddha and the Quran. The judgment emphasized that education is 'primordial and integral to the human condition' and that 'all forms of human oppression and exclusion are premised, in varying degrees, on a denial of access to education and training'. The Court observed that public schools 'are not rarefied spaces only for the bright, well-mannered and financially well-heeled learners' but 'are public assets which must advance not only the parochial interest of its immediate learners but may, by law, also be required to help achieve universal and non-discriminatory access to education'. The Court recognized that school governing bodies are 'a vital lifeblood to proper and fulsome learning and teaching' and cautioned against 'undue dominance of school governing bodies by the provincial Executive'. The Court also noted sympathy for the amicus curiae's substantive attack on default feeder zones as perpetuating apartheid spatial geography, but held that an amicus cannot introduce a new cause of action (unfair discrimination) not raised by the parties, and that in any event the order directing determination of new feeder zones addressed the concern.

This case is a landmark decision on the constitutional framework governing public school admissions in South Africa and the relationship between school governing bodies and provincial education authorities. It clarifies that: (1) education is a concurrent national and provincial competence, and provincial legislation does not automatically fail if it conflicts with national legislation - the Constitution's conflict resolution scheme applies; (2) section 5(5) of the Schools Act expressly subjects governing body powers to 'applicable provincial law', allowing for provincial regulation of admissions; (3) public schools are public assets that must advance not only parochial interests but universal and non-discriminatory access to education; (4) cooperative governance between school governing bodies and provincial education authorities is constitutionally required; and (5) measures to prevent unfair discrimination in admissions (such as restricting access to confidential learner information) and to ensure placement of all learners (through feeder zones and placement powers) are rational, reasonable and justified. The case reinforces the constitutional right to basic education in section 29(1)(a) and the state's obligation to ensure universal access, while balancing this with the legitimate role of school governing bodies in school governance.