INL SA
Professor Brian O Connell vice counsellor of the University of Western Cape with Judge Edwin Cameron at the launch of the Higher Education HIV/AIDS Programme’s Higher Education Know Your Status Campaign. Picture: Etienne Creux
Durban – An association of 119 low- and mid-fee KwaZulu-Natal independent schools has won a Constitutional Court battle to compel the provincial Education Department to cough up millions in subsidies, outstanding since 2009.
The schools argued that they were dependent on the state funding, and that shortfalls hampered their ability to run properly, and could lead to their closure.
In the ruling, Justice Edwin Cameron noted that the country’s independent schools constituted a saving on the public purse.
If all independent school pupils transferred to the public education system, the cost of public education in certain provinces could spike by as much as 5 percent, he said.
The judgment comes as the SA Human Rights Commission continues to probe the government’s failure to pay subsidies due to not-for-profit low- and mid-fee independent schools in five provinces including KZN.
The National Alliance of Independent School Associations has charged that the “life chances” of about 130 000 pupils in 630 independent schools were affected by payments which were either late, incorrect, arbitrarily slashed, or did not materialise at all.
Thursday’s Concourt judgment was specifically related to whether the KZN Education Department was legally bound to honour a notice it had issued to independent schools in 2008.
The notice from the department detailed the “approximate” funding due to the schools for the 2009/10 financial year.
However, seven months later, the department had failed to make the first payment, and the schools were told that, because of budget constraints, their subsidies would be cut by 30 percent.
Further reduced payments were made to the schools in July 2009.
The KwaZulu-Natal Joint Liaison Committee – representing the 119 schools – launched an application in the Pietermaritzburg High Court in 2010 against the KZN Education Department, to force it to comply with the notice and pay the full subsidies.
The high court dismissed the case and the committee approached the Concourt for relief.
While the department contended that the sums stipulated in its 2008 notice were merely guidelines, the committee argued it had, in the past, provided precisely the amounts detailed therein, that they had relied on the funds promised in the 2008 notice, and that they had been prejudiced because of the cut.
Justice Cameron, with five judges concurring, found that the 2008 notice was not a “mere record” of payments to be afforded the schools as a “favour”.
He added that the department could not fail to pay the April 2009 payment and then send another notice indicating that the subsidy amounts would be reduced.
“The notice was a public promise to pay. It was issued in fulfilment of the department’s duty under the constitution to help the schools do their job. Accountability and rationality demand that the government prepare its budgets to meet payment deadlines. It cannot reach back and diminish rights in order to manage its own shortfalls,” the judgment said.
However, Justice Cameron found that he could not consider the committee’s claim for the whole school year (R23 million) as the case had not been brought in the “proper legal form” and he therefore ordered that the department pay the 119 schools the approximate amounts due until April 2009 (R6m).
The executive director of the Independent Schools’ Association of Southern Africa, Jane Hofmeyr, welcomed the Constitutional Court’s decision – particularly because the judgment led her to believe that a good case could now be made to recover all underpayments for the past three years, and enforce it in future.
She said that the schools had to charge less than R28 000 a year in fees to qualify for the subsidies – less than some government schools did.
SA Human Rights Commission spokesman Isaac Mangena said it was being thorough in its investigation of “alleged” underpayments, but understood the importance of concluding the process as swiftly as possible, given that the affected pupils were almost all from disadvantaged backgrounds.
KZN Education Department spokesman Muzi Mahlambi said the top management would meet on Monday to study the judgment, and only then would he be able to comment.
The Mercury
