The court found the department had failed to plan adequately for late placements and the situation had been getting worse for over a decade.
The Western Cape High Court has ordered the Western Cape Education department to develop a proper management plan within six months to deal with late school admissions. Illustration: Lisa Nelson / GroundUp
- The Western Cape High Court has ordered the provincial education department to develop a proper management plan within six months to deal with late school admissions.
- The court found “glaring shortcomings” and said the department’s failure to plan for late placements had violated the Constitution.
- Equal Education brought the application after some learners in the Metro East Education District were excluded from schools for two terms.
- The department had acknowledged the issue as far back as 2014, yet it had been getting worse over time, the court said.
The Western Cape High Court has ordered the Western Cape Education Department (WCED) to develop within six months a proper management plan to deal with the crisis of late admissions in its schools.
Judges Babalwa Mantame and Mokgoatji Dolamo also declared the department’s failure to plan for late placements violated the Constitution.
Acting judge Fareed Moosa, who made up the full bench, supported these orders but dissented on one finding that declared a clause in the admission policy to unfairly discriminate against late applicants on the basis of race, poverty level, place of birth and social origin. The department has six months to fix the clause.
The application was brought by Equal Education and five learners affected by a lack of planning, which had left some learners excluded from schools for two terms, or in some instances, the entire academic year.
The application began as one of urgency in May last year - Part A - following which Judge Lister Nuku ordered the WCED to place all learners in schools.
In Part B, Equal Education tackled what it said were systematic issues and constitutional violations of learners’ rights, with a particular focus on the Metro East Education District (MEED), which includes areas such as Khayelitsha, Kraaifontein, Kuils River and Strand.
The education authorities opposed the application, denying that there was a systemic problem. They said the admissions policy dealt adequately with late and extremely late applications and the procedure to be followed.
However, they submitted that extremely late applications were unpredictable and often required the department to deploy additional resources to schools, such as mobile classes. These challenges led to unavoidable delays.
They also blamed parents and caregivers for failing to adhere to the procedures.
Situation growing worse
Equal Education submitted that at the beginning of each academic year, the WCED was inundated with pleas from desperate parents and caregivers who were unable to get their children into schools in the province.
In the MEED, many of these learners came from the Eastern Cape and had moved provinces due to deaths or employment opportunities for their parents.
“The scale of the problem has become worse over time as migration to the province continues to grow,” said Judge Mantame, who penned the recent judgment.
Equal Education submitted that the problem had been acknowledged by then education MEC Donald Grant back in 2014.
More than 10 years later, the situation had become worse.
In 2021, in a presentation to Parliament’s standing committee on education, the WCED had reported that it could only place about 650 learners in MEED schools by May that year. The presentation revealed learners were largely absent from school for close to two academic terms.
Equal Education said it had dealt with 23 learners who remained unplaced and out of school for the entire academic year.
The problem then spilled over to the 2022 academic year.
The department said it had adopted a responsive approach to the litigation and issued a standard operating procedure (SOP) circular, in respect of late, extremely late applications, and transfer requisitions.
But Equal Education said this had only been done to “appease” them and it was only a guiding document, not binding on the parties.
Judge Mantame said, “The WCED seems not to treat these complaints with the utmost care and importance they deserve. It simply points its fingers at the caregivers who fail to follow the procedure.”
The judge said the department had failed dismally to accept that there might be urgent or emergency reasons resulting in the late applications for school placements.
“The measures that have been taken appear to be superficial and aimed at dismissing the applicant’s complaints as self created.”
Judge Mantame said the SOP did not “come close” to addressing the underlying causes or the lack of adequate or quick interventions and solutions.
“Understanding the causes of migration, tracking the trends, identifying the hotspots, anticipating the numbers will greatly assist the department in their development of an accurate mechanism.
“Even if the WCED admission policy mirrors that of the national policy, the undeniable fact is that the Western Cape challenges differ considerably with those of national government or other provinces. The WCED has to be innovative in dealing with its problem. In fact, partnering with the applicants (EE), rather than being at odds with each other, would prove beneficial.”
The judge said that by the “abrupt creation” of the SOP, the WCED was admitting that its existing admission policy was unconstitutional.
Further, she said, the SOP had “glaring shortcomings”. It made no provision or inadequate provision for learners with disabilities and over-age learners. It did not permit online applications and it did not clarify any procedural rights for late applicant learners.
She said that while the department said it was reviewing its policy, this had been going on since 2021 and was seemingly unending.
“This court does not, at all, downplay the effort put in by the respondents in addressing the problem. But these campaigns have not proven to be effective as the department faces a crisis each year.”
The court declared the failure to plan for this crisis to be a violation of the Constitution and ordered the WCED to develop a plan within six months.
This article was originally published on GroundUp.
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