The judgment delivered by Justice Mhlantla, comes after the school refused to admit a Grade One pupil in 2010 for a 2011 academic year and cited that it had reached its stated capacity of 120 Grade One pupils provided for in its admission policy. The pupil was instead placed on the school’s waiting list.
However, the matter was escalated to the department by the pupil’s parent. This resulted in the department instructing the school to admit the pupil contrary to its admission policy as determined by the governing body.
After the pupil was forcefully admitted in February 2011, the school filed an urgent application in the South Gauteng High Court for declaratory and interdictory relief aimed at the department’s decision to override its admission policy.
The school hinged its argument on the power afforded to governing bodies in section 5(5) of the Schools Act. The section states that: “Subject to this Act and any applicable provincial law, the admission policy of a public school is determined by the governing body of such school”.
The High Court found that the overall authority rested with provincial education departments. However, the Supreme Court of Appeal overturned this judgment and ruled that the department’s instruction to the school was unlawful, and that a school’s governing body had the authority to determine the school’s capacity.
In delivering judgment Justice Mhlantla pointed out that the Constitution provided a reference point in the matter andthat was “the best interests ofour children”.
“The trouble begins when we lose sight of that reference point,” he said.