Provinces have final say on admissions – ruling

A provincial government has the final say on the number of pupils that can be admitted to a school, the Constitutional Court ruled yesterday, according to a BDlive report. ‘While the school governing body determines admission policy, individual decisions on admission are taken only provisionally at school level by the principal acting under the authority of the head of department,’ the court said in what the report says is seen as landmark judgment.

‘Where the need arises, section 5(9) provides a safety valve, which allows the MEC to consider admission refusals and overturn an admission decision taken at school level,’ the court ruled. The report notes the matter came to the Constitutional Court after Rivonia Primary School refused to admit a child to grade 1 when the parents applied in 2010 because the school was full. The Gauteng government instructed the school to admit the pupil, contrary to the school’s admission policy. The SCA found last year that the Gauteng government’s instruction to the school was unlawful, and that a school’s governing body had the authority to determine the school’s capacity. The judgment overturned a High Court decision, which held that the overall authority to determine school capacity rested with provincial education departments. The matter subsequently went to the Constitutional Court.

Acting Constitutional Court Judge Nonkosi Mhlantla wrote the majority judgment. She said: ‘The power of the governing body must also be understood within the broader constitutional scheme to make education progressively available and accessible to everyone.’

A report in The Times notes the court found against the Education Department head, saying he had not acted in a procedurally fair way by physically forcing the child into the class. Both parties were criticised for not working together in a spirit of ‘co-operative governance’. ‘Trouble starts when we become more absorbed in staking out the power to have the final say rather than in fostering partnerships to meet the education needs of children,’ the judge said. The chairman of Rivonia Primary’s governing body, Rickson Mboweni, said he was ‘disappointed’ by the ruling but pleased that all further actions of the department, when intervening in an admission dispute, had to be ‘procedurally fair’.

MEC for Education in Gauteng Province and Others v Governing Body of the Rivonia Primary School & Others for a full report.

Minister defends Legal Practice Bill Published in: Legalbrief Today

Category: Policy
Issue No: 3283

Justice and Constitutional Development Deputy Minister Andries Nel has refuted allegations that provisions in the Legal Practice Bill that seek to empower the Minister to appoint three members of the proposed Legal Practice Council out of a total of 21 are a deliberate move by government to control it, reports Legalbrief Policy Watch.

Reiterating government’s commitment to strengthening the independence, dignity, accessibility and effectiveness of the courts as part of the process of transforming the legal profession as a whole, Nel told the annual meeting of the Black Lawyers Association that ‘the untransformed state of the legal profession’ not only constitutes a ‘stumbling block’ to greater access to legal services and justice: it also impedes the further transformation of the judiciary.

While it will be the role of the Minister’s appointees to assist the council in its efforts to address this, they will not be in a position to drive the process. According to the Deputy Minister, ‘elites … who have done well under the current rules’ consider government attempts at transformation as ‘akin to … tyranny’, projecting themselves as victims. SA ‘s Constitution does not give an elite the right to carry out decisions ‘in an opaque way for their own benefit’, or to ‘permanently engage in … vices’ that prevent others from ‘ascending the ladders of the legal profession’, Nel said.
Full Legalbrief Policy Watch report

Ground-breaking court win for ‘separated’ children

The North Gauteng High Court has ordered that eight ‘separated’ minors be allowed to register for and attend public school. The issue arose after public schools were threatened with fines for allowing these children into school, according to the Refugee and Migrant Rights Programme.

‘Separated’ children have been refused entry into SA public schools over a lack of documentation and status because the Department of Home Affairs does not recognise them as dependents of their caregivers. ‘Separated’ children are defined as those separated from both parents, or from their previous legal caregiver.

After the Minister of Education and the Gauteng MEC for Education decided not to oppose the application, the court ordered that the Department of Education allow these minors to register for and attend public school. Lawyers for Human Rights attorney Neo Chokoe said: ‘This case is ground-breaking in that is has opened doors for many separated children who are unable to study because they are undocumented. The judgment is significant in that … applicants will be allowed to register in schools without permits.’

Education organisations said the effect of the judgment would be to place a greater burden on an already stretched public education system. Nomusa Cembi, of the SA Democratic Teachers Union, is quoted in Beeld as saying the Department of Education would now have to provide schools with teachers that can speak the languages of those learners.‘The learners will obviously attend schools that don’t charge school fees and the department would have to increase their subsidies.’

Fedsas deputy head Jaco Deacon said it was unfair for schools to deal with problems that would now arise, including catching up on work missed. SA Teachers Union head Chris Klopper said all schools had limited water, sanitation and safety resources, as well as teaching capacity. Schools’ obligations cannot continue to increase.

Source: Legalbrief

News updates

Human Rights Watch World Report: Human Rights Watch has released its 2013 World Report. It raises a number of concerns, including torture, lengthy pre-trial detention and the abuse of civilians by military officials, in respect of a number of African countries. The report is available at,0,251

International Juvenile Justice Observatory (IJJO): The IJJO has released its January 2013 Newletter. It contains an editorial piece on the International Detention Coalition’s research based on children’s experiences in immigration detention, covering a range of countries, including Somalia and Ethiopia. The newsletter is available at

Access to justice for women: The International Development Law Organisation has released a manual entitled “Accessing Justice: models, strategies and best practices on women’s empowerment.” The manual contains a number of examples and case studies from women in African countries. The manual is available at

Third National Schools Moot Court Competition

The Universities of Pretoria, Venda, the Western Cape, CLASI at the University of Cape Town and the Departments of Justice and Constitutional Development and Basic Education, the SA Human Rights Commission and the Foundation for Human Rights will be presenting the third annual National Schools Moot Court Competition for senior learners (grade 11 and 12 in 2013) in all secondary schools in SA this year, says a report on the Legalbrief Today site.

The competition is aimed at creating greater awareness of the SA Constitution and the values that it embodies. The best nine submissions in each of the nine provinces will be identified and the selected learners will be invited to participate in person in the provincial oral rounds, in the nine provinces, in May and June 2013. The best four teams from each province will then participate in the national oral rounds in Pretoria in August 2013.

The two winning teams with the highest scores will compete against each other to determine an overall winning team in the final round in August 2013. For more details on the competition, please see Alternatively contact the organiser, Cherryl Botterill, at for more information.

Source: LegalBrief 16 January 2013


Inquiry into ‘Marikana Massacre’ opens in South Africa

A retired judge toured the spot where South African police killed 34 striking miners in August as he opened a judicial inquiry into the incident. Street Law Director Prof Steve Naidoo is part of the forensic investigation.

The hearing is being heard in the platinum belt city of Rustenburg, 120km northwest of Johannesburg, the town closest to the Lonmin-owned Marikana mine.

Ian Farlam has four months to uncover the events surrounding the 16 August “Marikana massacre”.

The incident sparked intense criticism not only of the police but also of mining bosses, unions, the ruling African National Congress and President Jacob Zuma.

The names of the 34 dead, most of them from the poor Eastern Cape province, were read out at the start of the inquiry before lawyers for the police, victims’ families and 270 miners arrested after the shootings locked horns over procedure.

The commission and its findings could be politically damaging to Mr Zuma and the ANC, especially if security forces are found to have been as trigger-happy and ruthless as their apartheid predecessors.

However, the inquiry’s four-month timetable means its final findings will come after an internal ANC leadership election in mid-December.

Mr Zuma is expected to be re-elected head of the ANC in the vote – teeing him up to win a second five-year term as South African president in 2014 – although he may face a serious challenge from Deputy President Kgalema Motlanthe.

As well as probing the 16 August shootings, the Marikana commission has a broader remit to look into labour relations, pay and accommodation in South Africa’s mines – issues seen as behind the wildcat strike that preceded the killings.


NCR disputes lawyers’ interpretation of in duplum rule

The National Credit Regulator (NCR) has differed with lawyers’ interpretation of a key piece of legislation which forms the lifeblood of SA’s debt collection industry, says a Moneyweb report. The conflict centres on the interpretation of the in duplum rule as contained within the National Credit Act (NCA) – and as sparked by a Moneyweb investigation which revealed an apparent abuse of unsecured borrowers by collection attorneys.

The NCR’s Lesiba Mashapa said the statutory in duplum caps the fees lawyers may charge in connection with the collection of loans. Under the NCA’s extended version of in duplum collection, costs – together with interest and other fees that accrue when the consumer is in default – should not exceed the unpaid balance of the capital amount of the loan. However, the report notes, Mashapa’s interpretation of the law differs fundamentally from the interpretation which is put into practice by the majority of collection attorneys.

Lawyers maintain that in duplum does not include lawyers’ fees, effectively allowing them to charge defaulters amounts well in excess of the principal amount of the loan. This interpretation has allowed for situations where SA workers had been charged apparently exploitative amounts – upwards of 10 times the principal – for the recovery of outstanding debt. By Mashapa’s interpretation, this practice – believed to be widespread – is illegal.

– Extract from Legal Brief, 27/09/2012