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26 March, 2013
Minister Grant approaches the Constitutional Court on School Closures.
Statement by Minister Donald Grant, Minister of Education, Western Cape
In December 2012, the Western Cape High Court handed down an interim interdict which essentially indefinitely delayed the implementation of decisions I had made in October 2012 to close 17 schools. The review by the court as to the actual merits of those decisions to close the 17 schools is now due to be heard in May this year in the Cape High Court.
The WCED has met all the requirements of the interim interdict despite its clear impact on our budget and planning processes, and the adverse effects it has had on our affected educator staff, learner transport, leases with private landowners, and infrastructure and resource planning.
The most severe impact, however, has been on the learners themselves, who to my mind have been denied the better education opportunities inherent in attending safer, better-resourced and/or bigger schools.
Since the interim order, we had to wait for three months to see what motivated the majority decision of the court to grant the interdict in the terms of the order that was handed down in December, notwithstanding the dissent by the third Judge in question . These reasons were only provided a week ago, on 20 March 2013 and I, together with my legal team have hence now had an opportunity to consider the motivation behind the majority and the minority judgments that have been handed down in the interim interdict application.
After much consideration I have decided to take this judgment on appeal and have now approached the Constitutional Court to seek leave to appeal directly against the majority order which was handed down by Justices Desai and Baartman on 21 December 2012 in the Western Cape High Court.
I do this because having considered the pleadings, transcript of the hearing and the judgment itself I am of the view that the case presented by the counsel representing us in the hearing of that matter was not given its due accord by the majority of the court prior to it reaching its decision in this matter and that the decision itself is not in the interests of all the learners in this province, nor indeed the country.
My decision in this regard is motivated primarily by how the decision of the High Court will, and is, affecting education in the province on a long-term basis.
The longevity of the interim interdict has been made almost indefinite due to the wording chosen by the court when the order was handed down. In terms of this order, even if we win the review application, due to be heard in May, and show that the "reasonable prospects of success" (upon which the interdict order was premised), do not in fact exist; the interdict, will still remain in place if the applicants choose to appeal that review order.
This means that we may be looking at a 3 to 5 year process after May still, during which time the schools concerned cannot be closed and need to be maintained and staffed no matter what the attendance numbers are in years to come. This will vitally affect our planning and preparation for the 2014, 2015 and on-going school years, including the budgets for the maintenance of old schools, the opening of new schools and the closing of schools.
The Respondents have also shown that they are in no particular hurry to bring their review proceedings to a head. In terms of the Court's order of 1 February 2013, the Respondents were given until 1 March 2013 (i.e. a full 2 months after the December hearing ) to file any supplementary founding papers they wished to make. This provision of the order has yet to be met by them. Clearly any delay in the determination of the review now assists them in that the interdict effectively casts in stone on any closure of the schools in question, no matter how legitimate and lawful that decision may ultimately be found to be by the court when it determines the review application itself.
I have submitted an affidavit to the Constitutional Court which addresses all these concerns as well as a number of other factors affected by this order including; the power of provinces to close schools, and the process to be followed In terms of the power to close public schools, i.e. the South African Schools Act - which explicitly grants a power to the "Member of the Executive Council of a province who is responsible for education in that province" to close a school.
Whilst I am generally loath to waste valuable time and resources on litigation, for the reasons enunciated above, and as set out in my affidavit to the Constitutional Court, I am of the view that the order handed down by the majority of the High Court, and the reasons therefor as elaborated upon in the written reasons which have now been provided, should be scrutinized and considered by another higher court so as to enable it to consider whether it reaches the same conclusion.
For enquiries, contact Bronagh Casey: 072 724 1422 or email@example.com.
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