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The powers of school-governing bodies and its possible correlation to the pending religion in schools case

During 2015, an entity known as “OGOD” commenced with a court application against six South African public schools. The application prays (no pun intended) that the South Gauteng High Court, in Johannesburg, make a ruling to limit the freedom of religion in public school schools in South Africa. The argument is that collective religious observances/practices in schools breach non-religious pupils’ constitutional right to be free from religion. The application also argues that religious observances in schools indirectly coerce non-religious pupils to partake in such observances, which breaches various constitutional rights.

The schools, assisted by amicus curiae as well as a main role player in the form of FEDSAS (Federation of Governing Bodies for South African Schools), opposed the application and argue that a school governing body (“beheerliggaam” in Afrikaans) may by virtue of its powers in terms of the Schools Act and Employment Educators Act determine the ethos and governance of a school. The ethos and governance is based on the needs of the community, which is in the majority of communities to have religious observances in public schools.

The argument is further that a person’s right to exercise their religion is a positive constitutional right, whereas the right to be free from religion is not a negative constitutional right. The constitution does not expect institutions subsidised by state funds to be neutral in terms of religion. In the USA the notion to be free from religion is a constitutional right and is referred to as the “establishment clause”. This clause does not exist in the South African constitution.

The religion in schools matter is still ongoing and has not yet been ruled on by any court in South Africa. The matter is expected to become a constitutional matter as the legal question revolves around constitutional rights and issues. 

In the constitutional case of FEDSAS v MEC Education & Others [2016] ZACC 14, in which a ruling has been made, FEDSAS also raised the point that in terms of national legislation school governing bodies have certain powers.

In the said matter, FEDSAS argued that national legislation, namely the Schools Act, confers powers onto a school governing body. Such powers include to be able to decide which pupils are allowed to attend the school, from which areas pupils may or may not attend its school and the exact application procedure of future pupils.

The MEC for Education, assisted by two other respondents, opposed FEDSAS’ application as it argued that the MEC has the power to enact provincial legislation that could override a school governing body’s policies with respect to which pupils be allowed to attend the school, from which areas pupils may or may not attend its school and the exact application procedure of future pupils.

The Constitutional Court found that the MEC for Education had the powers to enact provincial regulations regarding the aforesaid issues and that such regulations were not contrary to the Schools Act and did not unfairly limit the powers of a school governing body.

There are striking similarities between the 2016 FEDSAS constitutional matter and the pending religion in schools matter. Both centrally revolve around the powers of a school governing body and the parameters and extent of such powers. If the current ruling may in any way act as an indication of what may be expected in the religion in schools case, the Constitutional Court may find that in fact school governing bodies do not have the powers to entertain religious observances as part of a school’s ethos. There are, of course, some obvious differences between the legal questions raised in the two matters. The 2016 FEDSAS matter was a question of legal interpretation whereas the religion in schools case is aimed at addressing issues of national policy. In this sense, the 2016 FEDSAS may not be any indication with respect to the outcome of the religion in schools case.