Decision to Appeal School Closure Judgment
21 August 2013
After engaging with the national Minister of Education, representatives of the Western Cape Government and our legal team, it has been decided to apply for leave to appeal the High Court judgment on school closures.
The decision in this regard is motivated primarily by how the decision of the High Court will, and is, affecting our capacity to ensure that children are educated in the best available schools, and devote our resources rationally to that end. The 17 schools affected will continue to operate as per normal.
Our application for leave to appeal contains more than 20 separate grounds for appeal.
The majority judgment has serious consequences for any future decision by an education department to close a school – both within the Western Cape and in the other provinces. This is often necessary to achieve the best possible education outcomes for children. The judgment does not provide concrete recommendations on how to proceed with school closures, making it virtually impossible to apply the Act in such a way which allows for consistent decision making.
For instance, the majority judgment appears to require that a school closure decision be preceded by a “public consultation process” and ignores the fact that the Act requires “representations”, and not “consultation”. This has implications for the public hearings as WCED officials are not decision-makers. It therefore would seem to require that the “consultation” be conducted by the minister personally. This is impossible in provinces such as Kwa-Zulu Natal, where it is reported that over 1 000 schools may close this year.
The judgment indicates that the “the reasons” given by the WCED for closure, “were largely inadequate”. However, because the majority judgment does not indicate in the case of which school(s) this applies, it is therefore impossible to establish what would constitute sufficient initial reasons to ensure “meaningful representation”, making it difficult for any provincial education department to cite “reasons” in future school closures.
The majority judgment is also unclear in terms of the timeframe within which the process is to be completed, indicating that it appears that the process is too short. The judgment does not, however, provide us with a timeframe that would be required to satisfy this requirement.
Given these constraints, and on the basis of the comprehensive minority judgment that concluded that the WCED had met the requirements for school closures in all cases but one, we have been advised that we have no option but to appeal.
This step is the only way we will be able to clarify the confusion as to exactly what is required to close a school. At the moment, the contents of the policy have been questioned and we are left unsure on how to proceed. Therefore, it is likely to result in further litigation in the future from both inside and outside this province.
Given the national implications, I have consulted with the National Minister for Education, Angie Motshekga, who supports our decision to appeal.
This judgment will ultimately affect every school that has been closed under similar circumstances – with or without representations – and any future schools that have been earmarked for closure.
All school closures, including the over 1 300 schools that are due to be closed in the Eastern Cape and KZN, for example, are now vulnerable to review.
I understand that school closures are an emotive issue, and that many of our schools have historical and cultural significance for their respective communities.
School closures are, however, a common occurrence yearly throughout the country and internationally. They are part of any provincial department’s education strategy when re-evaluating and assessing the size, shape and needs of their education system. In South Africa, it is also a necessary step to address the legacy of apartheid.
And that’s why we are building new schools, expanding and replacing existing schools and even closing schools if there is a better alternative available for a child.
Our primary objective is to improve the education opportunities of our learners by providing them with quality education to enable them to live lives that they value.