Court orders WCED to find schools for all unplaced learners

Equal Education has described the Western Cape High Court order for the provincial education department to find schools for all unplaced learners as a hard-won victory for the parents and learners.

On Friday, the Western Cape High Court ordered that the Western Cape Department of Education (WCED) place all learners, who on their own or through their parent or guardian made an application to a school in the Metro East Education District (MEED), or approached the MEED or a school for placement for the 2024 school year.

The court ordered this must be done within ten days. The WCED has also been ordered to pay the costs of the application. The crucial ruling was sought by the Equal Education Law Centre (EELC) which filed an urgent court application last month, against the WCED and the Department of Basic Education (DBE). Earlier this year, Elitsha reported that many learners were still struggling to enrol in school, with scores of parents in queues still searching for a placement for their children after the academic year had started.

In a statement released on Monday, EE celebrated the court ruling. “All unplaced learners in the MEED will finally be admitted to school as a result of this court order! This order symbolises a hard-won victory by Equal Education, and the five parents/caregivers (co-applicants) and their children who were represented by the Equal Education Law Centre, as well as a number of similarly placed learners. This is a victory within a system which has sadly left many learners waiting for school places, without any clear plan or timelines,” their statement reads.

One of the desperate and concerned parents, Nondumiso Ketelo from Makhaza, said the department in the Western Cape does not care. “I am happy that the court has ruled in our favour as parents. This has been heavily affecting me. I am delighted that my son has a chance to go to school finally. I have spent a lot of money, doing the up and down trying to find a school for my son. I wanted him to switch schools, because I could not afford the transport fare, because I lost employment. I applied for him in January as a late applicant for Grade 9, and have been getting the same response to wait up until now.

“I even wept tears in front of the officials, but they told me to wait, and it’s May now. At some point, they even mocked me and said, my son is too old for Grade 9. The June exams are here and I don’t know what my child is going to write. These are our kids and we want them to get an education; I want to know that even if I die my child is left with something. He is 17 and is still hungry to learn, and I support that,” said Ketelo. Her son, Simamkele Ketelo, added, “I am hurt that I am sitting in the township while my peers are at school. People have a lot of negative things to say about me. I want to learn, and create a future for myself.”

According to EE, the WCED has been avoiding its obligation to meaningfully place learners by counting them as “placed” once they receive an automatic notification of placement through its online system: “This, despite the fact that many learners, parents and caregivers whom EE and the EELC engaged with did either not receive the alleged notification or were turned away by schools, and as a result, had been waiting for months at home to be enrolled in a school. Significantly, the High Court has now given a definition for the term ‘placement’ and has ordered the WCED to ensure that learners are formally enrolled, have received placement letters, and that they may physically attend an appropriate school,” their statement explains.

The application by EE was in two parts: in part A of the application, they sought an order for catch-up and remedial plans for learners who were placed late in schools in an attempt to ensure they meet the academic requirements for 2024. They also wanted the head of department to produce an investigative report for having failed to timeously place learners in schools. “Unfortunately, these orders have been refused as the WCED indicated that assessments would be done by schools ‘in the ordinary course’ and that they would meet their legislative obligations – an undertaking which the court accepted and which we will actively be monitoring! We hope that the WCED will honour its own policies, by ensuring that learners are provided with adequate support for the learning losses,” says the EE in their statement.

Part B of their application will proceed on a semi-urgent basis. “It focuses on the WCED’s policy failure to address late applications and the extent to which it unfairly discriminates against late applicants based on race, poverty level, place of birth, and social origin. It also seeks an order declaring the WCED’s failure to timeously place late applicant learners in schools unconstitutional, and as a result, the WCED’s admissions policy and some of the WCED’s circulars on admissions should be set aside because they permit late applicants to remain unplaced for an indefinite period, with no clarity on the way forward,” the statement says. EE will monitor the implementation of the court order and ensure that affected learners are meaningfully placed and able to access education.

Access to basic education is a human right

Judge Leister Gcinikhaya Nuku said it was the state’s obligation to ensure the right to basic education is realised and to promote that right. “The right to education cannot be left at the discretion of the HOD. This is a re-occuring problem. People migrate for various reasons all the time; these are situations that require flexibility from WCED. To me, it seems like WCED has been busy managing litigation, instead of dealing with the problem. The primary role of WCED is to rollout basic education. The WCED has been being moved by litigation to get things done,” Nuku argued.

Nuku lashed the WCED’s lawyer for blaming everyone for the learner placement problem except the department. “Don’t blame parents for a problem that is caused by your system. The compulsory school-going age does not define basic education; what’s to happen to these learners?” Nuku challenged.

Lawyer for the EELC, Lerato Zikalala, said that learner placement is a crisis that has been happening for over a decade. “They know where it’s been happening at Metro East, and they know who is affected – it’s learners from Khayelitsha and surroundings mostly. The department is refusing to acknowledge the problem. We’re fighting, not just to ensure learner placement, but to ensure in 2025 we don’t have to go to court again,” said Zikalala.

MEC for Education in the Western Cape, David Maynier said that the matter could have been resolved without involving courts. “We maintain that this matter could have been resolved through engagement with the Western Cape Education Department,” he said. Most of the learners named in Equal Education’s initial application were placed, or were in the process of being placed, at the time of their application, according to the department.