The Western Cape Department of Education has failed a Western Cape High Court test ordering it to place all pupils who have applied for placements in schools.
This was revealed by Equal Education, the non-profit organisation advocating for equal and quality education, which took the Metro East education district to court in late April over the non-placement of pupils mainly from disadvantaged areas of Khayelitsha, Kraaifontein and surrounding areas.
On May 17, the Western Cape High Court ordered the provincial education department to place in schools within 10 days all pupils in the Metro East education district who had applied for enrolment.
Yolisa Piliso, an attorney at Equal Education Law Centre (EELC), a law clinic that assists communities that would otherwise not have access to legal advice and assistance, said the department had failed to comply with the court order.
He said the order had a far-reaching impact on the fight for access to basic education.
The order, which is binding in Western Cape because it is an order of the province’s high court, has a persuasive nature for other provinces that can use it in their application for
similar cases.
Piliso added the high court had also significantly defined the term “placement”, saying it had ordered the provincial department to ensure that pupils were formally enrolled, had -received placement letters and that they might physically attend an appropriate school or education facility.
Piliso said EELC had written letters to the education department to ensure the placements were done urgently and that they had requested a meeting with the department.
“We have an option to go back to court on contempt regarding their failure to comply, but we are exhausting the options that are available to ensure they do.”
Western Cape education spokesperson Bronagh Hammond said the department has complied with the court order.
Judge Lister Nuku, who cited his reasons for the order electronically on July 24, said between January 15 and 31, the EELC was approached by about 42 parents and guardians requesting assistance with placement applications or follow-ups on applications.
“As of 31 January 2024, 11 learners remained unplaced, and this number reduced to seven as of 26 February 2024. The EELC continued to receive requests for assistance from parents. Thus, as of 28 March 2024, 19 learners were confirmed as unplaced and 12 could not be confirmed to be attending school as their parents had become unreachable,” he wrote.
The matter came before the court on April 29. Nuku heard it on May 14 after allowing the department to file answering papers. He made the order on May 17.
He ordered the head of department in Western Cape, the director of the Metro East district and the education MEC, who are cited as first to third respondents, to place all unplaced pupils within 10 days from the aforesaid date. “The first to third respondents were also ordered to pay costs of the application, including the costs of two counsels,” he wrote.
Equal Education had also sought that the department develop remedial catch-up plans for the pupils and investigate and report the reasons the pupils were unplaced.
The judge did not grant this relief, saying the department already had a policy for catch-up plans and the reasons why the pupils were not placed were clear from the submissions made in court.
Piliso said the department referred to millions of pupils who were placed, when the matter was about individual pupils who were not placed and their right to education.
“Even Judge Nuku said in court that we are dealing with individual rights here, not group rights. The moment there’s even one learner whose rights are being violated, it requires to be addressed. We need to make that point to the department as well. We cannot accept that there’s a specific group of learners who are continuously being left out at the beginning of every academic year,” he said.
