Are we becoming a lawless country?

02 June 2014 Robert W Vivian, University of the Witwatersrand

In the June 2013 edition of FAnews, I looked at the two Rivonia Primary School court cases, the High Court and Supreme Court of Appeal. The matter progressed to the Constitutional Court. This article discusses that decision. The purpose of looking at the two cases was to contrast the approach adopted by the two courts.

As pointed out in the previous article, there is generally a clear move away from the rule of law by government institutions, such as regulators and courts, to a much more nebulous system. The rule of law makes decisions based on pre-existing rules which conform to certain objective standards and arrives at decisions following the due process of law. The alternative system is different.

Defining the new rule of law

I have, at various times, described the new system as the rule-by-men, rule-by-judge, rule-by-jolly-good-ideas or rule-by-touchy-feelies. John Adam’s statement as to what is the rule of law is always a good place to start. “By the rule of law,” he said, “is meant the rule of laws and not of men.” The decision is not the product of the discretion of the judge, but the outcome of the application of the law. The more discretion the judge exercises, the further from the rule of law the system moves.

Having a constitution introduced a wide measure of discretion, and as such departs from the rule of law. All of this is of course vitally important to the insurance industry, as in recent years we have seen decisions not based on law or contract, but by being increasingly made on concepts of fairness, equity or mere arbitrary decisions.

The purpose of looking at the two Rivonia cases was to contrast the outcomes arrived at when cases are approached from the two different systems. The High Court approached the matter from the nebulous judicial discretion direction, while the Supreme Court of Appeal approached it from the rule of law, and predictably the courts arrived at two different conclusions.

Looking in the rear view mirror

To look at the Constitutional court case it is useful to recap the salient facts of the Rivonia Primary School case. The system is governed by the South African Schools Act 84 of 1996.

In terms of this Act, the admissions policy is the responsibility of the school governing body. The governing body works in conjunction with the provincial education department. In March 2010, the Rivonia School sent its admissions policy to the provincial department which indicated that the school capacity is 120 pupils per grade one class. This information, filed annually, if acted upon, would enable the provincial department to manage and plan for the educational needs well into the future.

Mrs Cele applied to, and wanted her child to be admitted to the Rivonia Primary School starting in the 2011 year. On the 5th November 2010 she was notified that her application was unsuccessful, and her application was in 14th place on the waiting list. Not satisfied, Mrs Cele lodged an appeal with the provincial Department of Education, which was, like the March admissions policy, her appeal was not acted upon.

Moving from one school to another

Mrs Cele then enrolled her child at another private school. However, Mrs Cele changed her mind and withdrew her child from the private school and on the 7th February 2011, four weeks into the new term, arrived at Rivonia Primary and insisted her child be admitted. She was refused admission, but advised that an urgent meeting of the governing body would be called to consider the matter.

The next day, the department advised the school that it had taken over the responsibility for admissions and had admitted the child and arrived with security personal and physically placed the pupil behind a desk at the school. Arriving at a school and installing a child by force is a matter of grave concern and it is no surprise that the Supreme Court of Appeal ruled that doing so was unlawful.

In any event, at this point the case in fact became moot. The school decided to admit the child but took the case to court to get clarity.

The constitutional court started its analysis blaming apartheid, and resorting to the constitutional provision granting everyone the right to basic education. With all respect to the court, it is difficult to see what this provision has to do with the case. The child was enrolled at a private school and was getting a basic education in all probability far better that the vast majority of pupils in South Africa will ever get. The court continued to point out that educational disparities exist in the country. Again it is difficult to see what this has to do with this case. Moving one child from one privileged school to another, conceivably better, will do nothing about the disparity.

Ignoring the elephant in the room

The case was argued on a basis which seems to me to be largely irrelevant, to the question of who has the right to determine the capacity of the school, ignoring the real issue. This is what is commonly referred to as the problem of the elephant in the room.

The argument went; If the school has the right to admit, the child could not be admitted but if the department as the right to admit then the child could be admitted. This misses the entire point about the rule of law, on two important aspects.

Firstly, the question is not who can decide arbitrarily if a school is full, but how to determine if the school is full when the legal rules governing the matter are applied. If the application of these pre-determined rules indicates the school is full, and if this is unacceptable, then it is the rules which need to be changed. To abandon the rules and replace the rules with an arbitrary decision by a government official is to abandon the rule of law. The important point in time to determine if a space constraint problem exists is not when the pupils arrive, but in March when the information is provided to the department about the school capacity.

The second and even more important issue is even if it is arbitrarily decided an additional pupil can be admitted, this does not mean, that arbitrarily Mrs Cele’s child should be admitted. To admit her child is yet a further arbitrary decision. Her child was 14th on the waiting list. All the other parents made alternative arrangements for their children as Mrs Cele did. Mrs Cele’s child should not have been arbitrarily moved to the top of the list. The other parents should first have been given the opportunity to admit their children.

Ignoring the rule of law

In the end, the constitutional court decided firstly the provincial department was empowered to order the admission of the pupil. No indication was given that the capacity of the school first had to be objectively determined in terms of the rules. The court handed to the province the authority to act arbitrarily.

As matters now stand, this decision could be totally arbitrary, that is officials acting outside of the rule of law. As indicated above, the rule of law requires at least two things to work; firstly, laws and secondly due process.

The second decision was the province and governing body should co-operate to arrive at a solution. This is due process but without law. The third decision was the recognition that the department did not act in a procedurally fair manner by installing the child in the manner it did. The court attached no consequences to very disturbing manner in which the department had acted. The installation of the pupil by force was thus tacitly condoned.

As indicated above, the purpose of looking at these cases arises out of my concern for what appears to me to be a clear movement away from the rule of law to an arbitrary, discretionary, system. The Rivonia cases in my view further illustrates this development.

This in essence is the problem facing the insurance industry; government officials increasingly acting outside of the rule of law.

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