PROACTIVE JURISPRUDENCE – A TRIUMPH FOR CO-OPERATIVE GOVERNMENT AND AN EXERCISE IN PARTNERSHIP BETWEEN EDUCATIONAL ROLE PLAYERS MEC for Education v Governing Body of the Rivonia Primary School 2013 (12) BCLR 1365 (CC)

Abstract

This significant judgment of the Constitutional Court concerned “a little black girl whose dream was to obtain education at the school closest to her home”. After a protracted and acrimonious four-year admission saga and indeed a poignant and human drama, relating to the admission of a learner, which involved judgments in both the High Court and Supreme Court of Appeal (SCA), on 3 October 2013, the Constitutional Court (CC) decided in favour of the Member of the Executive Council (MEC) in the Province of Gauteng, instructing the principal of the Rivonia Primary School to admit a learner in excess of the limit in the school’s admission policy. Although this case deals, inter alia, with the Minister who has the ultimate authority to decide the capacity of public schools, it also just as importantly, addresses the vexed issue of how a conflict between the School Governing Body (SGB) and Gauteng Provincial Education Department should have been addressed and ultimately resolved, and in so doing creating a beneficial precedent. It was necessary to determine who has the final say: the SGB, the officials in the Provincial Education Department, or indeed a combination of the two. The judgment of South Africa’s highest Court must be understood in the light of the right to basic education encapsulated in section 29 of the Constitution. As Mhlantla AJ, explains this involves a solemn “promise”, the realisation of which in a society where there are vast economic inequalities and a maldistribution of scarce resources is severely fraught with problems. This state of affairs cannot be denied and must be faced up to such as the Constitutional Court commented in Head of Department, Mpumalanga Department of Education v Hoërskool Ermelo (2010 (2) SA 415 (CC)). As a result of such inequality and disadvantage, inordinate tensions and expectations have been generated in relation to education. What is required in adjudication of such issues is the wisdom of Solomon. In this regard, Mhlantla AJ, comments, the “Constitution provides us with a reference point – the best interest of our children”. This is clearly enunciated in section 28(2) of the Constitution, which states that “[a] child’s best interests are of paramount importance in every matter concerning the child”. As will be explained below, it is submitted that this judgment is a singular victory for the letter and spirit of co-operative government and community partnership, which is so fundamental to the success of our system of democratic governance.