ANY decision to close schools should be left to elected public representatives and not to the courts, the Western Cape High Court heard on Tuesday.
The court is hearing a review application on whether Western Cape education MEC Donald Grant was correct in wanting to close 17 schools in the province.
Last year, judges Siraj Desai and Elizabeth Baartman granted the schools, their governing bodies and the South African Democratic Teachers’ Union (Sadtu) an urgent interdict halting the closures. The majority judgment highlighted that Mr Grant had not "meaningfully" consulted before reaching the decision to close the schools.
Presenting his arguments in front of a full bench, Eduard Fagan, for Mr Grant, said the decision to close the schools was a "classic executive" decision that should be left to elected representatives.
"It is not the kind of decision that the courts should be making," he said.
"The applicants concede that the closure decisions are complex, polycentric decisions that are made on an assessment of all the factors," Mr Fagan added.
"Our courts have consistently held that they are not well suited to judge such decisions, which are properly suited to specialist bodies and the executive. The courts have thus emphasised the importance of a judicial willingness to treat the decisions of other branches of government with the appropriate respect."
He said a court "should be careful not to attribute to itself superior wisdom in relation to matters entrusted to other branches of government".
Mr Fagan added that the applicants were in effect trying to engage the court in a debate over a range of policy issues — including, for example, the merits of multigrade teaching, the desirability of small or large schools, and the distribution of the limited resources of the Western Cape education department.
"They ask this court to second-guess the implementation of national and provincial policy by the (MEC), advised by officials who are experts in the field, and they attempt to convince the court that the decisions of the (MEC) in respect of each applicant school was wrong."
Mr Fagan earlier also argued that the Schools Act did not oblige his client to consult affected communities before closing down a school.
Norman Arendse, representing the 17 schools, on Monday argued that schools had merely been given a one-line reason for closure before public hearings were held last year. Further, the decision to close the schools was arbitrary, inherently unfair and therefore unlawful, he held.
Judge Lee Bozalek said on Tuesday that the court wanted to make sure that the statutes that were laid down were properly followed before the decision to close the schools was made.
The judge also said the concerned communities were not given an opportunity to grapple with the issue of school closures, and he questioned why Mr Grant sought costs only from Sadtu in the event that the applicants’ case was dismissed.
"It seems disproportionate that Sadtu has to (carry) the costs," the judge said.
Mr Fagan had indicated earlier that Mr Grant did not seek costs against the other applicants, but only against Sadtu.
"The application is ... being driven by considerations other than the merits of the decision to close each of the applicant schools. This has entailed considerable expense to the provincial education department. It is money better spent on education. It is submitted that there can be no good reason why Sadtu should not pay those costs," Mr Fagan said.
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