When School Policy Meets the Constitution: Inside South Africa’s Fight Over Who Gets a Desk

A new legal study has reignited one of the most consequential debates in South African public life: who ultimately decides whether a child gets a place in a public school — the local community that runs the school, or the Constitution that guarantees every child an education? Writing in SN Social Sciences, education law researcher Mulaudzi Lebohang Victoria of the University of the Free State maps the deep structural friction between Section 5(5) of the South African Schools Act of 1996, which empowers School Governing Bodies to set admission policies, and Section 29(1(a)) of the Constitution, which guarantees every person the right to a basic education. Her conclusion is stark: where the two collide, the Constitution must win.

The tension is rooted in the deliberately decentralised design of post-apartheid schooling. South Africa’s public education system operates on a dual-management model that splits authority between the State, acting through provincial education departments, and School Governing Bodies composed largely of parents and community members. The idea was democratic participation: decisions about a school’s character, language of instruction, and intake should rest as close as possible to the people affected. But that same autonomy has repeatedly been exercised in ways that restrict access, producing mistrust between principals and governing bodies and, more troublingly, excluding learners from schools altogether.

Victoria’s study, a qualitative doctrinal analysis of statutes, Constitutional Court jurisprudence and scholarly literature, is framed by two theoretical lenses. The first is transformative constitutionalism, the influential idea articulated by legal scholar Karl Klare that the South African Constitution is not merely a legal document but a long-term project of dismantling apartheid’s structural injustices and building a substantively equal society. The second is administrative justice, which demands that all exercises of public power be lawful, rational and procedurally fair. Together, these frameworks supply both a normative test — what school governance ought to achieve — and a procedural test — how governance power ought to be exercised.

The study’s first analytical theme characterises Section 5(5) as a statutory shield. The provision states that, subject to the Act and applicable provincial law, the admission policy of a public school is determined by its governing body, while Section 6(2) grants parallel authority over language policy. Grounded in the principle of subsidiarity, these powers position governing bodies as fiduciaries of their local communities, entrusted with managing class sizes, infrastructure and pedagogical character. Yet Victoria argues that this authority is delegated administrative power, not institutional sovereignty. Governing bodies are administrative actors bound by constitutional norms, and their policies must not infringe learners’ rights or undermine systemic objectives of access and equity.

In practice, however, the study finds that many governing bodies have interpreted Section 5(5) as conferring near-absolute discretion. The most visible flashpoints are capacity determinations and language policies. Schools frequently assert the authority to set maximum enrolment thresholds based on classroom space or teacher-pupil ratios, excluding additional learners even when no viable alternatives exist. Language policies, particularly single-medium instruction at historically privileged schools, have been defended as essential to cultural identity and educational quality. Victoria’s analysis is careful here: such considerations are not inherently illegitimate, but formally neutral policies can produce exclusionary outcomes when applied within unequal social contexts, functioning as barriers along socio-economic and racial lines.

Against this shield, the study sets what it calls the constitutional sword. Section 29(1(a)) guarantees a basic education that is immediately realisable — unlike many socio-economic rights, it is not subject to progressive realisation and imposes a direct, unqualified obligation on the State. Read with Section 28(2), which declares that a child’s best interests are of paramount importance in every matter concerning the child, the right demands that all governance decisions be evaluated by their actual impact on learner access, inclusion and educational quality. This shifts the legal paradigm from formal equality, under which all learners are equally free to apply, to substantive equality, which interrogates whether learners in practice enjoy equitable access given systemic disparities in resources, geography and historical privilege.

The friction becomes most concrete in the so-called full school argument. Governing bodies frame capacity as a pedagogical and managerial threshold beyond which educational quality suffers; the State must read capacity in light of its positive constitutional obligation to place every learner, particularly amid classroom shortages and unplaced children. The study also documents disputes in which provincial Heads of Department have overridden governing body decisions without prior consultation, raising their own administrative-law concerns about procedural fairness and rationality. Language policy intensifies the collision: the issue, Victoria stresses, is not the legitimacy of language as a pedagogical tool but its deployment in ways that reinforce structural inequality.

Two Constitutional Court judgments anchor the doctrinal resolution. In MEC for Education, Gauteng v Rivonia Primary School, the Court held that a governing body’s admission policy is constitutionally conditioned, not absolute, and that the State may intervene where its implementation unjustifiably limits access — but the Head of Department’s power is itself constrained by legality, rationality and procedural fairness, and requires meaningful consultation rather than unilateral decree. In Head of Department, Mpumalanga Department of Education v Hoërskool Ermelo, the Court upheld state intervention against an Afrikaans-only policy maintained despite clear demand for English-medium instruction, rejecting language policy as a smoke-screen for exclusion. Subsequent jurisprudence, including FEDSAS v MEC for Education, Gauteng, reinforces that governing body authority is derivative, conditional and constitutionally bounded.

From these threads Victoria weaves her central conceptual contribution: a reconceptualisation of school governance as cooperative governance rather than institutional hierarchy. Governing bodies retain their statutory role as primary policy-makers, their proximity enabling contextually informed decisions, while the State bears the ultimate obligation to ensure no learner is denied access — an obligation that authorises intervention but demands structured, substantive consultation and reciprocal support, including resources, educators and infrastructure where schools are required to admit more learners. Capacity, in this model, cannot be a rigid self-determined threshold, and the study proposes that national or provincial guidelines standardise how capacity is determined and applied so it cannot serve as a mechanism of exclusion.

The study’s ultimate verdict is learner-centred: every governance decision, whether taken by a school community or a provincial department, must be measured against its impact on a child’s access to and experience of education. Victoria acknowledges that the enduring challenge lies not in clarifying the legal position, which is now well established, but in ensuring its consistent and equitable implementation across diverse schooling environments — and she calls for empirical research on consultation processes, admission practices and comparative governance across provinces. In a nation where education remains both a site of historical exclusion and the primary engine of social mobility, the finding lands with force: policy may shape the school, but paramountcy belongs to the child.

Subject of Research: The constitutional limits of school governing bodies' admission and language policy powers in South Africa

Article Title: Policy vs. paramountcy: mapping the friction between Section 5(5) of SASA and Section 29 of the South African constitution

Article References: Victoria, M. L. (2026). Policy vs. paramountcy: mapping the friction between Section 5(5) of SASA and Section 29 of the South African constitution. SN Social Sciences, 6(10), Article 448. https://doi.org/10.1007/s43545-026-01732-x

Image Credits: AI Generated

DOI: 10.1007/s43545-026-01732-x

Keywords: South African Schools Act, right to basic education, transformative constitutionalism, administrative justice, cooperative governance, substantive equality, school governing bodies, language policy, admission policy, Constitutional Court, best interests of the child, education law