Abstract:
The Basic Education Laws Amendment Bill (BELA Bill) is one
of the most significant reforms to the South African basic education legal
framework since 1994. While the amendments impact on a wide range
of issues, this article focuses specifically on the BELA Bill’s amendments
to the policy-making functions of the localised structures in education
governance, known as school governing bodies (SGBs), in particular,
changes to the unchecked autonomy the SGBs in making language and
admission policies for schools. The article notes that the model of education
decentralisation that was adopted in post-1994 democratic South
African has been highly contested. This manifested during the country’s
1994 negotiated transition, continued in the school governance litigation
and in the BELA Bill public participation processes. The article argues
that the jurisprudence emanating from school governance litigation
acknowledges the history of racism and apartheid spatial injustice that
has had the effect of limiting access to well-resourced schools for black
people in South Africa. The South African Constitutional Court, therefore,
placed a duty on SGBs when formulating policies to be cognisant of the
broader systemic concerns in education impacting on the access rights of learners. The jurisprudence has now been codified into law in the
school governance reforms in the BELA Bill. The article illustrates how the
formulation of school governance principles, and their ultimate inclusion
in the BELA Bill, exists as a case study in transformative constitutionalism
beyond the courts. This is due to a range of contributing factors, such as
the interventions of progressive amici in these cases; a degree of judicial
activism displayed by the Constitutional Court in the school governance
litigation; the proactive codification by the state of the jurisprudential
principles; and the progressive support for the inclusion of the school
governance amendments in the BELA Bill during the public participation
processes.
