I RECENTLY wrote an article for the November edition of Focus, the quarterly journal of the Helen Suzman Foundation. I paraphrase the essence of that article in light of last week’s Supreme Court of Appeal judgment in the Rivonia Primary School case on the powers of school governing bodies.

"When the Gauteng department of education forced Rivonia Primary to take an extra child, it effectively overrode the authority of the school governing body to determine admissions policy. A school that raises private resources to enable quality education for manageable numbers of learners from diverse racial and class backgrounds found itself being subjected to legal action and its principal under threat of dismissal over one (middle-class black) child. The issues of diversity and inclusion are not at stake here — this can and should be achieved through other means; what is at stake is the erosion of the authority of a school to decide over admissions. The central authority knows best."

(From Prof Jonathan Jansen’s presidential address to the South African Institute of Race Relations on September 27 2012, titled Seven Dangerous Shifts in the Public Education Crisis.)

One of the shifts is the belief by the government that central control is better than local authority in education, and Prof Jansen referred to the high court case of Rivonia Primary School.

Importantly, the child who was refused admission had influential parents who applied late to the school for admission, went to the Gauteng department of education and got support from officials there.

The department ran roughshod over the school governing body’s admissions policy and the requisite waiting lists, and unjustifiably "parachuted" the child into the school.

Prof Jansen’s reference to the Rivonia case raises an example of the struggle by the national Department of Basic Education, and the provincial department in particular, to respond to suburban government schools. There is resentment of such schools’ success and yet a heavy reliance on that success; a desire to bring these schools down to the lowest common denominator, and yet recognition that they hold the best hope of success of state-provided education.

There is a historic antipathy towards what are still derisively referred to as "former Model C" schools — "bastions" of white, public education, in "leafy" suburbs.

Another resentment lies in the law obliging public schools to be governed by a school governing body, which comprises representatives of parents, teachers, non-teaching staff and students. The parents must outnumber the combined number of the other categories by one. This is because schools are entitled, by law, to raise income through school fees. The money of the parents and the governance of the school must be administered, therefore, by parent representatives. It is the parent representatives who must be the compulsory office bearers such as chair, treasurer and secretary. This is a sober fiduciary, legal and moral duty.

As a result of this authority and obligation to govern, including the right to charge school fees, there is an inevitable tension between most successful school governing bodies and the Gauteng department of education. The governing bodies must develop admission policies, which, until recently, could not be interfered with by the department. An admissions policy cannot be contrary to the law but it is for the courts, not for the department, to make that decision.

At the same time, the department (not the individual schools) has a constitutional obligation to provide basic education to all. In Gauteng, this task is becoming increasingly impossible. The influx of children into the province from other provinces increases by double-digit percentages every year. Economic pressures on parents and dysfunctional schooling in other provinces are the reasons.

The department still experiences gaps in terms of insufficient infrastructure and space backlogs, especially where student enrolment exceeds design capacity. Disadvantaged schools lack libraries and laboratories, sporting facilities, sufficient fencing and adequate cleaning and maintenance. Uncompleted schools were acquired from other provinces arising from demarcation processes.

However, there are schools with an intake of well below 40% in Soweto because they are bad schools and parents will do anything to get their children to functional schools in the suburbs. Often this requires expensive, dangerous and tiring commuting.

Too few township schools on students’ doorsteps have been revamped or properly and professionally staffed by the department. Little or nothing appears to happen, or nothing is capable of happening, to improve public schooling in townships.

Therefore the department tries to force as many children as possible into functional suburban schools. This is where the department’s need confront the rights and obligations of the school governing bodies.

The once-strict entrance criterion of residential zoning has become less strict. Many suburban parents have put their children into private schools for fear of the (often misplaced) lack of quality of government education. Also, parents now have a choice of government schools.

This also means that schools are now competing with private and other government schools for students. Consequently, a school’s reputation is hard won but easily lost. What this does mean, however, is that the children of domestic workers who work and/or live in a suburb have easy access to very good schools. These black children have an extraordinarily good chance for a secure and successful future.

The "B list" comprises those children who have applied for admission but who do not meet the feeder requirements. Schools are not obliged to admit these children unless there are not enough children from feeder areas. The provincial department insists that they be admitted in the order they applied. The financial issues and academic standards, which are interrelated, make this unfeasible.

In law, any parent who cannot afford to pay school fees may be exempted on a sliding scale. There is only one obligation: both biological parents must complete an exemption application form and supply all the supporting documentation requested to prove their inability to pay.

A school may not refuse admission or readmission to a child merely because the parents "cannot or have not paid school fees". The department simply does not understand the outrage of the moral equivalence afforded to parents who cannot afford to pay school fees to those who simply do not pay school fees. This has to be factored in the budget passed each year by the parents at the annual general meeting.

As a consequence, most school governing bodies budget for a bad debt rate of about 25%-30% . Seventy-five percent of the parents have to pay for 100% of the children. A school is obliged by law to take in a sibling of a child whose parents have already failed to pay school fees.

This means that no school can afford to have an unbudgeted, infinite number of children who do not pay school fees. Achieving the right budgetary balance is difficult. Schools should have a balance of bright, struggling and middling kids. They all benefit from each other. Remember that school fees are paid from after-tax money!

Contrary to the derogatory claim that these are "white" schools, most "suburban schools have 50% or more African students. These schools provide the societal backbone of the country’s education. Yet the department seeks to undermine them in bizarre and purposeless ways.

The Rivonia case went on appeal to the Supreme Court of Appeal and judgment was published on November 30 2012. It was a unanimous judgment of five judges written by Judge Azhar Cachalia.

The court struck down the high court judgment that favoured the provincial department of education. The court held:

"To conclude, governing bodies are enjoined to determine school policies, including their capacity, while provincial departments are responsible for the professional management of schools and administration of admission. These functions must not be conflated. The determination of capacity must comply with national norms and standards set by the minister and must be determined on reasonable and rational grounds. Just as a governing body may determine the school’s capacity, so too does it have a discretion to exceed that capacity if the circumstances require, and that discretion must also be exercised on rational and reasonable grounds. But it is not open to the HoD summarily to override that authority as occurred in this case."

The victory for parents politically and educationally is enormous.

Chantell Illbury and Clem Sunter, on their website Mindofafox.com, set out in Managing the Strategic Conversation: Scenarios, Strategy and Tactics under the section on "The latest South African scenarios: three flags" the following:

"We have 28,000 schools in South Africa of which 5,000 are reasonable to excellent and 23,000 are dysfunctional to shocking. If the model of the 5,000 is used to raise the performance of the 23,000, that would be excellent. If the 5,000 are dumbed down, that would be the worst flag of all in terms of our long-term competitiveness."