Zeenat Sujee, the LRC attorney who worked on the matter said: "The LRC is elated with the outcome of the matter. Learners across the country will have redress in receiving access to education.

"The apartheid regime has resulted in severe racial disparities within our schools, and therefore this judgment goes some way to addressing these disparities resulting in learners being able to realise their rights to education."

The LRC was acting on behalf of Equal Education, the first amicus curiae.

Judge Boissie Henry Mbha of the South Gauteng High Court said the power to determine the maximum capacity of a public school in Gauteng Province vests in the Gauteng Department of Education (GDE) and not in the governing body.

On 24 February 2011, Rivonia Primary School and its SGB took the GDE to court after it intervened when a child was declined admission to the school which had purportedly reached its capacity for Grade 1 for the year 2011.

Judge Mbha said the GDE has the power to intervene with the SGB's power to determine the admission policy of a public school and the MEC for Education is the ultimate arbiter whether or not a learner should be admitted to a public school.

He lamented the huge legacy of inequalities 'spawned by apartheid.'

"While many facets of present- day South African society remain unequal, the inequality is particularly stark and tragic in the realm of basic education. Our society still has a gargantuan challenge to undo the 'painful legacy of our apartheid history' that effectively deprived black schools of resources, while lavishing resources on white schools.

"Regrettably, this ill-advised policy resulted in a plethora of socio-economic problems plaguing our society, including the rampant crime," Judge Mbha said

Adopting the argument advanced by the LRC on behalf of Equal Education, Mbha J held that, according to section 3(3) of The South African Schools Act, 84 of 1996, the MEC for Education is under an obligation to ensure that there are enough school places so that every child who lives in his or her province can attend school. If the MEC cannot comply with his or her obligation, section 3(4) provides that he or she must take steps to remedy such lack of capacity as soon as possible and must report, on an annual basis, to the Minister on the progress achieved in doing so.

Judge Mbha noted that from the provisions of sections 5a and 58C, the Act envisaged national government limiting the ambit of power conferred on a SGB to adopt an admission policy.

"In my view, it would provide significant guidance to school governing bodies and provincial governments on the issues raised in this matter if the National Minister of Basic Education were to act in terms of section 5A read together with section 58C, and promulgate norms and standards on capacity," he said.

The full judgment is available here:

ENDS.

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