Doctoral Degree (Constitutional Law and Philosophy of Law)

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Guidelines to achieve social justice through cooperatively governed education
(University of the Free State, 2023) van der Merwe, Juané; Reyneke, Mariëtte
One of the main objectives of our constitutional state is to establish a society based on social justice as contemplated in the 𝘊𝘰𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯 𝘰𝘧 𝘵𝘩𝘦 𝘙𝘦𝘱𝘶𝘣𝘭𝘪𝘤 𝘰𝘧 𝘚𝘰𝘶𝘵𝘩 𝘈𝘧𝘳𝘪𝘤𝘢 1996.¹ Indeed, social justice is also one of the central visions and ideals of the South African education system.² However, the public basic education system fails to provide equal access to the opportunities and rights required to achieve social justice. While schools may be accessible, learner attendance does not necessarily equate to quality education.³ Historical geographic patterns of (dis)advantage continue to affect institutions’ capacity to provide quality education and achieve equality of opportunity and outcomes. The historical influence of race on equitable opportunities and outcomes is compounded by geography and social class.⁴ In his discussion of the education markets, Ball states that in an ideal world, every parent would have the freedom to pick any school where they want their children to be educated.⁵ In the South African reality, however, this is not the case. In fact, parents from rural areas often have access to only one or two poorly resourced schools with poorly trained teachers, leaving them with not much choice for their children’s education.⁶ These children might never enjoy the equal and quality education they should be receiving.⁷ In essence, therefore, for some, socioeconomic realities limit the constitutionally entrenched right to education.⁸ The implementation of the constitutional rights framework that enshrines equal access to quality basic education has been hindered by a number of deficiencies and failures. These include a a shortage of proficient educators and staff,⁹ an undervaluing of the pedagogical importance of the language of instruction,¹º inadequate infrastructure (classrooms and physical space),¹¹ financial constraints and school quintiles,¹² and insufficient early childhood education.¹³ While the Department of Basic Education continues to add to its complex framework of education policies, the risk is that these may function more as a vehicle for politics than being a bona fide attempt to achieve true social justice in education and work together to achieve this goal.¹⁴ Detailed policies are often issued and strong political stances taken on specific social matters, but are not accompanied by the required will or funding to address the concern in practice. One example is the Department’s promotion of Grade R education to be made compulsory, though without allocating sufficient funds to incorporate it into the formal schooling system. In this way, policies are merely symbolic and social justice remains a pipe dream.¹⁵ The failure to provide adequate school infrastructure and facilities¹⁶ also contributes to disparities in access to quality education. This causes regular disputes between the governing bodies of well-functioning schools and provincial education departments over schools’ capacity to admit additional learners.¹⁷ Additionally, numerous disputes have resulted from provincial departments’ failure to fill educator positions or their abuse of power and overreach.¹⁸ Where the different spheres of government¹⁹ and organs of state²º do not cooperate and see eye to eye on the theory and practical realisation of social justice in education, the right to education of an equal standard, and by implication, to social justice is jeopardised. The Intergovernmental Relations Framework Act (IRFA)²¹ includes a number of mechanisms and procedures to regulate the relationship and settle intergovernmental disputes between the national Department of Basic Education and provincial education departments.²² However, IRFA and the education laws are silent on alternative processes to be followed if school governing bodies and education departments, particularly in the provincial context, are locked in dispute, thus preventing the achievement of social justice. This raises the question of how the relationship between school governing bodies and education departments could be guided and governed to ensure that it is peaceful and productive. The main aim of this dissertation, therefore, is to establish what the relationship between the national Department of Basic Education, provincial education departments and school governing bodies ought to be to comply with the imperative captured in chapter 3 of the 𝘊𝘰𝘯𝘴𝘵𝘪𝘵𝘶𝘵𝘪𝘰𝘯 and realise social justice in education. Secondly, the dissertation seeks to develop guidelines to assist education departments and school governing bodies to achieve the principles of cooperative governance and settle any potential disputes between them. The ultimate goal is for relationships to remain intact as a prerequisite for safeguarding and promoting a democratic education system that is based on social justice. The partnership model for public school governance envisaged by the 𝘚𝘰𝘶𝘵𝘩 𝘈𝘧𝘳𝘪𝘤𝘢𝘯 𝘚𝘤𝘩𝘰𝘰𝘭𝘴 𝘈𝘤𝘵²³ is underpinned by the principle of cooperative governance²⁴ set out in the Constitution.²⁵ This compels the partners to cooperate in good faith. In 𝘔𝘌𝘊 𝘧𝘰𝘳 𝘌𝘥𝘶𝘤𝘢𝘵𝘪𝘰𝘯, 𝘎𝘢𝘶𝘵𝘦𝘯𝘨 𝘗𝘳𝘰𝘷𝘪𝘯𝘤𝘦 𝘷 𝘎𝘰𝘷𝘦𝘳𝘯𝘪𝘯𝘨 𝘉𝘰𝘥𝘺, 𝘙𝘪𝘷𝘰𝘯𝘪𝘢 𝘗𝘳𝘪𝘮𝘢𝘳𝘺 𝘚𝘤𝘩𝘰𝘰𝘭,²⁶ the Constitutional Court held that cooperation between school governing bodies and national or provincial government was “rooted in the shared goal of ensuring that the best interests of learners are furthered and the right to basic education is realised”. Moreover, the court in 𝘏𝘦𝘢𝘥 𝘰𝘧 𝘋𝘦𝘱𝘢𝘳𝘵𝘮𝘦𝘯𝘵, 𝘋𝘦𝘱𝘢𝘳𝘵𝘮𝘦𝘯𝘵 𝘰𝘧 𝘌𝘥𝘶𝘤𝘢𝘵𝘪𝘰𝘯, 𝘍𝘳𝘦𝘦 𝘚𝘵𝘢𝘵𝘦 𝘗𝘳𝘰𝘷𝘪𝘯𝘤𝘦 𝘷 𝘞𝘦𝘭𝘬𝘰𝘮 𝘏𝘪𝘨𝘩 𝘚𝘤𝘩𝘰𝘰𝘭²⁷ stated that the provisions in the Schools Act were: … carefully crafted to strike a balance between the duties of these various partners [governing bodies, principals, heads of department, Members of Executive Council and the education minister] in ensuring an effective education system. … [T]he interactions between the partners – the checks, balances and accountability mechanisms – are closely regulated by the Act. The Constitutional Court²⁸ went on to state: The importance of cooperative governance cannot be underestimated. It is a fundamentally important norm of our democratic dispensation, one that underlies the constitutional framework generally and that has been concretised in the Schools Act as an organising principle for the provision of access to education. Given the nature of the partnership that the 𝘚𝘤𝘩𝘰𝘰𝘭𝘴 𝘈𝘤𝘵 has created, public school governing bodies and the state should be in a close cooperative relationship, recognising the partners’ distinct yet interrelated functions. This relationship should be characterised by consultation and cooperation in mutual trust and good faith. The goals of providing quality education to all learners and developing their talents and capabilities depend on it. In practice, however, this kind of cooperation in the education sector is yet to be established. Among the challenges that currently prevent the realisation of the constitutional imperative of cooperative governance are overreach and abuse of administrative power,²⁹ tension relating to power and authority,³º failure to consult and meaningfully engage,³¹ ineffective intergovernmental structures and dispute resolution,³² and unethical leadership.³³

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