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

The MEC for Education, Gauteng published proposed amendments to regulations relating to admission of learners to public schools in Gauteng in General Notice 1929 of 2011. Comments were invited from interested parties. Fedsas consulted with its membership and submitted comments. The final regulations were published in General Notice 1160 of 2012. Fedsas challenged the amended regulations in the Gauteng High Court, alleging they conflicted with the South African Schools Act 84 of 1996, the National Education Policy Act 27 of 1996, the Admission Policy for Ordinary Public Schools, the Gauteng Education Policy Act 12 of 1998, and the Gauteng School Education Act 6 of 1995. Fedsas argued the regulations were ultra vires the enabling legislation, unconstitutionally promulgated in violation of PAJA and section 33 of the Constitution, and violated legality and rationality principles. The high court struck down the regulations finding they conflicted with national legislation, were ultra vires, encroached on governing bodies' autonomy, were procedurally unfair, and were unreasonable and unjustifiable.

• Whether the regulations relating to admission of learners to public schools conflicted with national and provincial legislation, particularly section 5(5) of the Schools Act which empowers governing bodies to determine admission policies
• Whether the regulations were ultra vires the enabling provincial legislation (section 11(1) of the GSEA)
• Whether the regulations unconstitutionally encroached on the autonomy of school governing bodies
• Whether the regulations were procedurally fair and adopted in compliance with PAJA and section 33 of the Constitution
• Whether the regulations were rational, reasonable and justifiable
• The proper interpretation of the relationship between powers of provincial education departments and school governing bodies in the context of cooperative governance
• Whether the MEC had authority to determine feeder zones for schools
• Whether the MEC/HOD had authority to determine school capacity and place learners
• Whether regulation 16 created an impermissible additional layer of appeal

1. The late prosecution of the appeal is condoned. 2. The appellants are ordered to pay the respondent's costs of the application for condonation. 3. The appeal is upheld with costs, including costs of two counsel. 4. The order of the high court is set aside and substituted with: (a) Save to the very limited extent set out below, the application is dismissed with costs of two counsel. (b) Regulation 2(2A) of the regulations published under General Notice 1160 of 2012 is declared invalid and of no force and effect.

The binding legal principles established are: (1) The power of school governing bodies to determine admission policies under section 5(5) of the Schools Act is subject to the Constitution, the Schools Act itself, and any applicable provincial law, including provincial regulations made under enabling legislation. (2) The power conferred on the MEC by section 11(1) of the GSEA to make regulations regarding admission of learners to public schools necessarily includes authority to regulate related matters such as feeder zones and school capacity determination. (3) Provincial education departments may intervene in school governing body policy-making or depart from governing body policies, but only where empowered to do so by the Schools Act or other relevant legislation, and only where they act reasonably and procedurally fairly. (4) Given the partnership model in the Schools Act and the cooperative governance scheme in the Constitution, education functionaries and school governing bodies are under a duty to engage with each other in good faith, with engagement directed toward furthering learners' interests. (5) Public schools are public assets that must be managed not only in the interests of current learners and parents but in the interests of the broader community and in light of constitutional values. (6) Delegated legislation must be clear, comprehensible, accessible and predictable in application.

The Court made several important non-binding observations: (1) The enduring disparities in the education system as a legacy of apartheid are a matter of common knowledge and have been repeatedly acknowledged by courts - white public schools inherited lavish treatment while black schools remain scantily resourced. (2) The difficulties the MEC sought to address extend beyond racial and income disparities to include even distribution of learners of various intellectual ability and behavioral dispositions among public schools. (3) Section 29 of the Constitution (right to education) leaves no room for restricted access to basic education for burdensome or less talented learners. (4) There has been a regrettable enduring power struggle over authority to provide access to schools between provincial education departments and Fedsas and its affiliates. (5) Courts have emphasized that those involved in education governance must resolve disputes with utmost responsibility given that children's education is at stake. (6) School governing bodies are state organs that discharge duties as part of the state machinery engaged in providing access to basic education. (7) The concern for safety of learners is understandable but no public school enjoys more protection from burdensome learners than others, and the constitutional right to education extends equally to all children including those perceived as burdensome. (8) The substantive equality envisioned by constitutional democracy has not been fully realized, with traditional democracy models having inherent challenges including favoring the rich and talented.

This case is significant in South African education law as it clarifies the relationship between provincial education departments and school governing bodies under the cooperative governance model established by the Schools Act. The judgment confirms that while governing bodies have important policy-making powers regarding admissions and language policies, these powers are not absolute and must be exercised subject to the Constitution, the Schools Act, and applicable provincial law. The case reinforces that provincial education departments have authority to regulate admissions, determine feeder zones, and determine school capacity, provided they act reasonably, procedurally fairly, and in good faith. The judgment emphasizes that public schools are public assets that must serve the broader public interest, not just current learners and parents, and must facilitate access to basic education for all children including those perceived as burdensome. It recognizes the ongoing need for education reform to address apartheid-era disparities in school resourcing. The case underscores the constitutional principle of cooperative governance requiring education departments and governing bodies to engage in good faith to further learners' interests.