ANALYSIS: Panyaza Lesufi ignored the Constitution in Overvaal drama

Gauteng education MEC Panyaza Lesufi ignored the Constitution when he turned the Hoërskool Overvaal wrangle into a racial drama with inflammatory statements like, "There is no racist that can hide behind a broomstick."

As battles rage along racial lines outside the school in Vereeniging‚ it is worth noting what Constitutional Court judgments have said about the fight between parents and provincial education departments over school admissions.

The same point is always made: parents and government need to work together.

The phrase‚ work in a spirit of "co-operative governance"‚ is used again and again by the Constitutional Court in its judgments on school admission policies.

The other point often made is that government departments‚ even when correct‚ have to be "procedurally fair" and "lawful" when overriding school governing bodies.

The Rivonia Constitutional Court judgment summarises three similar cases. Lesufi should therefore have known he had no chance of telling a school to take in 55 learners speaking a different language at the last minute in December‚ without fair procedure.

But he went ahead anyway.

In short‚ what Lesufi has done is pure politicking‚ turning an issue of insufficient places at quality schools into a spectacle.

The needs of the 55 pupils who did not get places, as well as those being taught at the Afrikaans school, have not been not taken into account. Neither group of pupils can be feeling great‚ while conflict spills onto the streets outside the school.

And the Constitution has something to say about that. Section 28(2) makes it clear that the best interests of children "are of paramount importance in every matter concerning the child".

One cannot argue that the interests of children trying to learn‚ while protesters threaten to burn down the school‚ have been taken into account at Hoërskool Overvaal.

The saga lends itself to two important questions:

Were the needs of the 55 pupils — who were going to be forced into the school without sufficient time to hire English teachers to teach history‚ maths‚ geography and science‚ art and accounting — taken into account?

How welcome would pupils feel being forced into a school that did not want them?

The answer to the second is "not very"‚ if we learn from the Hoërskool Fochville case in which 37 English pupils were pushed into an Afrikaans school. 

There are a handful of Constitutional Court cases revolving around disputes between governing bodies and the department. A "trilogy of judgments" described by the court‚ known as "Ermelo"‚ "Welkom" and "Rivonia" say a number of things.

The court‚ specifically in the Welkom case in which pregnant pupils were excluded from schools‚ held that even if the department was constitutionally correct in opposing school policy‚ it had to follow lawful procedures when overriding governing bodies. The Free State head of education was found to have acted unlawfully.

In Rivonia‚ which was about a child on a waiting list being squeezed into a full school‚ the court used the statement from the Welkom judgment to emphasise that the Schools Act expects parents and government to work together.

"We consider that there is a constitutional obligation on the partners in education to engage in good faith with each other on matters of education before turning to courts. In the present case they should have done so and that may well have prevented this long journey through the courts."

For those readers who think that Lesufi had engaged in good faith‚ consider that High Court Judge Bill Prinsloo found the principals at two neighbouring English schools had possibly been bullied by the department into denying that they had space to take the 55 pupils. Prinsloo also found that asking Overvaal in December to start two English classes was asking the impossible at such short notice.

The Overvaal parents and Lesufi would do well to read the beginning of the Rivonia court ruling.

"Apartheid has left us with many scars. The worst of these must be the vast discrepancy in access to public and private resources. The cardinal fault line of our past oppression ran along race‚ class and gender. It authorised a hierarchy of privilege and disadvantage. Unequal access to opportunity prevailed in every domain. Access to private or public education was no exception.

"The question we face as a society is not whether‚ but how‚ to address this problem of uneven access to education."

It went on to say: "It is how we manage those competing interests and the spectrum of views that is pivotal to developing a way forward. The Constitution provides us with a reference point — the best interests of our children. The trouble begins when we lose sight of that reference point‚ when we become more absorbed in staking out the power to have the final say‚ rather than in fostering partnerships to meet the educational needs of children."

As tension simmers outside Hoërskool Overvaal‚ it is hard to conclude that Lesufi has taken the best interests of the children into account, or fostered a partnership in good faith with parents.