The following op-ed is written by Petra Marais, Amy-Leigh Payne and Tsukudu Moroeng from the Legal Resources Centre.

Introduction

Section 29(1) of the Constitution of the Republic of South Africa, 1996 (the Constitution) confirms that everyone has the right to basic education, but how is access to education governed? In South Africa, the Department of Basic Education (DBE) has a national Admission Policy for Ordinary Schools which states that a school’s governing body (SGB) must determine its admission policy. Therefore, each school in South Africa should have its very own admission policy determined by the SGB. The foundation of admission policies is non-discrimination – this is confirmed in the Admission Policy for Ordinary Schools and aligned with section 9 of the Constitution. However, when SGB’s take decisions relating to a learner’s admission without making the admission policy available to them it can create barriers to learners accessing basic education. This article firstly considers whether admission policies can be, and have been, used by individual schools and Provincial Education Departments (PED) in South Africa to exclude learners in accessing equal, quality education. Thereafter this article provides an overview of the Legal Resources Centre’s submission on the amendment to the Admission Policy for Ordinary Schools, and lastly the essential role the Member of the Executive Council plays in ensuring timely admission to schools in each province.

How are Admission Policies regulated and monitored?

An admission policy can be the invisible barrier between a child and education. Therefore, admission policies should be publicly available, highly regulated, lawful, and should not deny access to education on arbitrary grounds. The DBE’s Admission Policy for Ordinary Schools, published in 1998, is the primary source of national guidance for schools and PEDs. It provides that admission policies of individual public schools must be consistent with the national policy and recognises the constitutional and statutory obligations placed on schools and the DBE such as, that a school’s admission policy must be consistent with the Constitution and the South African Schools Act 84 of 1996 (SASA). For instance, both the policy and section 5 of SASA places an express obligation on public schools to admit learners and serve their educational requirements without unfairly discriminating against the prospective learner in any way. A school can therefore not decide to exclude a learner based on, for example, their race or religious and cultural beliefs as this will contravene the Constitution.

The Head of Department of each PED is responsible for the placement of learners in schools. The Head of Department is further responsible for the administration of admission of learners, and the SGB of a school must make a copy of its admission policy available to the Head of the Department. In February 2021, the DBE published the new Draft Admission Policy for Ordinary Public Schools (the Amended Policy) and invited public comment. The Legal Resources Centre (LRC) took this opportunity to advocate for more inclusivity and less barriers to education for everyone in South Africa – our submission is discussed in more detail below. The lack of monitoring and access to admission policies, and the impact on children, can best be illustrated by the case study discussed below.

A Barrier to Accessing Education?

Case study: Shea O’Connor Combined School

School admission policies should be readily available on schools’ websites or on request to a school. Although we are entitled to access these admission policies, access remains a challenge. These policies are often used to discriminate against learners and deny them access to schooling, without parents, lawyers or learners seeing the admission policies. Recently, the LRC became involved in a matter where a principal denied a grade 10 learner access to Shea O’Connor Combined School near Pietermaritzburg because she had tattoos. The principal’s reason for refusing her admission was that the school’s admission policy prohibited the admission of learners with tattoos into their school. However, the principal did not provide the parent of the learner with the admission policy they relied on to take the decision. The LRC anticipated that the school did not have a formal admission policy and accordingly the school excluded learners from admission to the school on an ad hoc basis. The LRC was instructed that some learners were refused admission on the basis that they had gold teeth, and others were excluded on the basis that they had tattoos. It appeared that the refusal to admit these learners was not made in terms of provisions contained in a formal admissions policy. Even if such formal admission policy existed, a clause to give effect to these exclusions would be unconstitutional. The LRC argued that the constitutional rights of the learner to dignity, bodily integrity, equality and basic education were violated as a direct result of the school’s practices which arose from a lack of a formal admission policy – or a failure to make the policy available to the parent.

Before launching legal proceedings, the LRC submitted letters of demand requesting the principal of Shea O’Connor to provide a copy of the school’s admission policy. However, both the principal and SGB were unable to provide the LRC with a copy of its admission policy. This was cause for concern because it was this very policy that was being used to justify the principal’s refusal to admit the learner into the school – which not only allowed the school to deny the learner’s constitutional right to basic education, but allowed the school to unfairly discriminate against the learner. The LRC launched legal proceedings to compel the school to admit the learner and to provide the parent with a copy of the admission policy. The school agreed to admit the learner and the matter was settled out of court. After the learner was admitted, the school eventually provided the parent with the admissions policy. Incidentally, the school’s own admission policy allowed learners with tattoos to be admitted into the school, provided that the tattoos were covered (not visible).

The Shea O’Connor case highlights the importance of widely accessible admission policies. Without a formal admission policy that can be scrutinised by the learner’s parent, or the public, schools can engage in discriminatory practices against learners who seek admission without any formal consequences. In this case, the refusal to make the admission policy available to the parent, amounted to a clear barrier to the learner’s access to schooling.

Promotion of Access to Information Act requests

To ascertain whether schools are promoting principles of non-discrimination or perhaps creating additional barriers, the LRC wanted to analyse a randomised selection of school admission policies. To obtain the admission policies, the LRC submitted nine applications, one to each PED in South Africa, in terms of the Promotion of Access to Information Act 2 of 2000 (PAIA). The rationale behind the PAIA applications to the PED is that the Head of Department should have access to the individual admission policies in terms of the DBE’s national Admission Policies for Ordinary Schools, as discussed above. PAIA sets clear timelines for compliance with requests for information, and by the deadline for compliance only one department, the Western Cape Education Department, complied with the request and submitted the necessary documents. The LRC is now in the process of appealing the deemed refusals by the remaining eight provinces.

This exercise further illustrates the difficulty in accessing admission policies even with a formal request for the information. Compliance with PAIA requests is not optional and organs of state, such as the PEDs, are obliged to provide access to the requested information unless it can state lawful reasons why access is impossible. Due to the lack of access, the LRC cannot confirm whether, in general, admission policies are promoting access to education, creating a barrier to education, or if they even exist.

LRC’s Submission on the Amended Admission Policy for Ordinary Public Schools

In March 2021, the LRC submitted comments on the DBE’s Admission Policy for Ordinary Public Schools. The submission’s point of departure is that admission policies should ensure access to education for everyone and that no child should be left behind in accessing education.

Firstly, the submission commented on the administration of admissions and the provision that all schools should submit their admission policies to the Head of the Department for approval. The approval aspect is different from the current Admission Policy for Ordinary Schools which only requires a school to make the admission policy available to the Head of the Department. From the lack of response to our PAIA requests we derive that, currently, the Head of the Department does in fact not have access to these policies.

The second aspect the LRC focused on is the admission of learners without birth certificates, passports or permits in line with the Centre for Child Law and Others v Minister of Basic Education and Others 2020 (3) SA 141 (“Phakamisa-judgment”). In our submission we recommended that the requirement of a birth certificate for non-citizens should be replaced to allow for an asylum visa, refugee visa or study visa to be submitted in place of a birth certificate. Recently the Minister of Basic Education reported that during the 2020 school year, 660 331 learners were recorded on the education system without identity numbers. The true figure is higher as the statistics from the Eastern Cape were still outstanding by the date of reporting. To protect undocumented learners, we further recommended that the Amended Policy be re-drafted to include mandatory clauses for schools to admit undocumented learners. In accordance with the Phakamisa-judgment, the admission of undocumented learners is mandatory, however the Amended Policy currently only advises schools. At no stage should a school have any doubts whether it has an obligation to accept undocumented learners.

To ensure non-discrimination on all grounds, the LRC further recommended that the grounds of pregnancy, gender identity, sex characteristics and documentation status all be included in the list of protected grounds. Regarding learner preference, the Amended Policy states that preference for admission must be given in the following order: (1) learners whose parent live in the feeder zone of the school, (2) learners who have a sibling in the school, (3) learners whose parent’s work address is in the feeder area or (4) other learners on a first come, first serve basis. Many parents from low-income areas work in areas with better-resourced schools. Giving equal preference to learners whose parents work in the feeder zone can promote geographical and spatial transformation, as well as equal access to quality education. Accordingly, the LRC recommended that learners whose parent’s work is in the feeder zone be equal in preference to learners whose parent lives in the feeder zone.

Passing the admissions buck?

A growing concern each year is the number of learners not being placed in schools timeously for the school year. For example, during April 2021 the Western Cape Education Department released a statement indicating that 13 800 learners were unplaced at the start of the 2021 school year. By the end of term one, 2799 learners were still unplaced, and the LRC called upon the WCED to urgently assist these learners to ensure access to education. Across South Africa school admission is clumsy and murky and clearer legal obligations are required. Equal Education (EE) and Equal Education Law Centre (EELC) fittingly highlight this issue in their submission on the Amended Policy. In terms of section 3(3) of the SASA, the Member of the Executive Council (MEC) must ensure that there is enough space for every learner who resides in the province. EE and EELC submit that this obligation should be reiterated in the Amended Policy and further that it should compel the MEC to release, within 30-days after each school year commences, a report which outlines the number of unplaced learners, the reasons the learner were not placed and the plan to place these learners promptly. The status quo obliges the MEC to ensure there is enough space in the province. Currently, however, the DBE has not stipulated a deadline for when learners across South Africa must be accommodated in schools each year. EE and EELC recommended that the Minister of Basic Education, being the custodian of basic education, should formulate such a timeframe and this should be included in the Amended Policy.

The legal obligations and timeframes for compliance on each MEC should not be left open for interpretation. Currently the DBE, even as custodian, is leaving the compliance with section 3(3) to the MEC, and as seen in the Western Cape example, the MEC is shifting blame to National Treasury and migration from the Eastern Cape to the Western Cape for the lack of spaces in the Western Cape. All the while learners are missing school and falling behind their peers.

Conclusion

School admission policies, despite ostensibly being designed to regulate the admission of learners into ordinary public schools in an equitable and non-discriminatory manner could act as barriers to education without transparency and access.  The LRC submits that strengthening the role of the MEC and the oversight of the DBE regarding admissions, and also greater transparency and access to admission policies can prevent invisible barriers to education. The draft Amended Policy presents a golden opportunity for the DBE to reconsider the role of admission policies to schools and transform them from being a mere administrative guideline to a tool underpinned by a rights-based approach where access to education for everyone is reaffirmed.

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