Both judgments serve as a sobering and necessary reminder to policymakers as the court, in unequivocal terms, declared that government policies that are ambiguous, reactionary and fragmented do not meet constitutional muster and must be cured with urgency if the ideals of our Constitution are to be upheld.

A case of young learners unplaced

The matter was brought before the court by six applicants, the first of which was Equal Education (EE) and the rest individuals affected by the respondents’ policies and actions. The respondents were the WCED, the Director: Metro East Education District MEC: Western Cape (Director) and the Education Department.

The applicants sought numerous declarators. First, that the respondents’ failure to plan for late school placement applications in, but not limited to, the Metro East Education District (MEED) for the 2024 academic year constitutes a violation of sections 9, 10, 28, 29(1)(a) and 33(1) of the Constitution. Second, that the WCED’s Policy for the Management of Admission and Registration of Learners at Ordinary Public Schools (Admission Policy), as well as, to the extent necessary, its Circular 0037 of 2022 and/or Circular 0037 of 2023 (Circulars), constitute a violation of sections 10, 28(2), 29(1)(a) and 33(1) of the Constitution, and should be set aside, to the extent that they permit late applicants to remain unplaced for an indefinite period of each academic year by providing no clarity on the process that late applicants must follow to secure their placement, the timeline within which late applicants will be placed in a school, or the relevant WCED official who is responsible for ensuring the placement of late applicants.

Third, that the WCED’s Admission Policy, as well as, to the extent necessary, its Circulars, unfairly discriminate against late applicants on the basis of race, poverty level, place of birth and social origin, and thereby constitute a violation of sections 9(1) and 9(3) of the Constitution and should be set aside. Finally, mandatory and declaratory relief that the WCED amend its Admission Policy so that it contains a clear and detailed plan for dealing with late applicants across all grades (including what the WCED classifies as “late applications”, “extremely late applications” and late “transfer requests”) to mitigate the yearly occurrence of unplaced late applicants missing out on school at the beginning of each academic year, and to share the plan with the applicants and the court within 60 days of the date of the order. The relief was vigorously opposed.

The respondents acknowledged that every individual possesses an inherent right to basic education that is immediately realisable and is not contingent upon available resources – this cardinal principle was common cause among the parties and was emphasised by the court. However, in their opposition the respondents asserted that the WCED had not failed to plan for late applications and pointed out that such right cannot be considered in isolation. In fact, they stated that the applicants’ complaints were based on the perceived deficiencies of an inadequate admission process, which results in late applicant learners not being placed in a public school within a reasonable time frame, which they argued constitutes a violation of constitutional rights. The respondents argued that the criticisms alleged by the applicants cannot be sustained and that their contentions were premised upon an unwarranted and disingenuous construction of the Admission Policy and Circulars.

The factual matrix

The applicants contended that at the beginning of each academic year, EE is inundated with pleas for assistance from desperate parents, caregivers and learners who are unable to secure placement in schools in the Western Cape, particularly in the MEED, which includes areas such as Khayelitsha, Kuils River and Strand. The affected learners originate from families within the Western Cape, Eastern Cape or other provinces who have settled within the catchment area of the MEED. Although the WCED contends that “late” or “extremely late” applications are unprecedented, the claim is not borne out by the historical context of this problem. If anything, the scale of the problem has become worse over time as migration to the Western Cape continues to grow. It was against this backdrop that the applicants sought the relief outlined above.

Grappling with this systemic issue is not a new task for the courts, nor for EE, as 2022 saw EE launch an urgent application against the WCED for placement of late learner applicants. Since 2022, the court has issued various orders compelling the WCED to comply with its constitutional and statutory obligations to place learners who submitted their applications outside of the ordinary admission cycle and extremely late. Yet again in 2025, the court had to call the WCED to order.

In doing so, the court first made clear the ambit and demands on the state respondents that arise from the section 29 Constitutional right to basic education. It first acknowledged that the right is essential for: the full development of the human personality and the individual’s sense of dignity; the realisation of substantive equality and equal opportunity; and the enjoyment of democratic participation and meaningful citizenship. It then went on to capture the key features of the right to basic education, which it summarised as being that: the right is immediately realisable; the right is directly enforceable in respect of each right bearer; in implementing this right the state must take reasonable and effective positive measures to ensure fulfilment; and the needs of the most vulnerable must be provided for.

The court interrogated not only the respondents’ duties and policies, but also their actions taken in an attempt to fulfil their duties and spent some time interrogating the standard operating procedure issued by the department in response to the litigation. Of note is the court’s comment that the WCED did not afford itself an opportunity to investigate the underlying cause of the systemic problems it is tasked to resolve before responding with the standard operating procedure. Fundamental to this problem is the fact that Black people have been socialised (since the apartheid era) to see January as the month during which employment opportunities in big cities or urban areas arise and companies employ skilled and semi-skilled people in their establishments. This phenomenon results in Black people migrating to urban areas in search of improved job prospects at the start of the year. When a family takes such a decision, it follows that children of school going age will migrate with their parents. There are indeed numerous reasons for unplanned migration such as death, gender-based violence and so on. It is these socio-economic issues with which the respondents must be deeply concerned when addressing these systemic failures and problems, and in meeting their constitutional obligations. The court commented that the WCED must be innovative in dealing with its problems and, in fact, partnering with the applicants rather than being at odds with them would prove beneficial to all parties.

The majority judgment

The majority concluded by finding that the applicants had demonstrated that their constitutional rights were offended and found specifically that the WCED’s conduct and its policies violate the test of unfair discrimination as set out by the Constitutional Court. It found also that the WCED’s conduct and policies do not fulfil the constitutional imperative to ensure that in all matters involving children, the rights of the child must be of paramount importance.

The majority held that the respondents’ failure to plan for late placement applications in, but not limited to, the MEED for the 2024 academic year constitutes a violation of sections 9, 10, 28, 29(1)(a) and 33(1) of the Constitution; that clause 13 of the Admission Policy constitutes a violation of sections 10, 28(2), 29(1)(a) and 33(1) of the Constitution, to the extent that it excludes and fails to address certain categories of applicants; and that certain sections of the Admission Policy discriminate against late applicants on the basis of race, poverty level, place of birth and social origin, and thereby constitute a violation of sections 9(1) and 9(3) of the Constitution and should be set aside. The respondents were accordingly ordered to amend the Admission Policy.

The dissenting judgment

Moosa AJ parted ways with the majority judgment in relation to its handling of clause 13 of the Admission Policy, noting that clause 13 provides a procedure that is aimed at ensuring that aspirant learners enjoy the benefits of the right to a basic education even in circumstances where their application for a placement is received out of time. Moosa AJ’s view was that a proper case had not been made out for the relief granted by the majority, and, in any event, that the time and lateness of an application for a school placement does not qualify as differentiation tantamount to discrimination for purposes of section 9(3) of the Constitution.

Moosa AJ agreed that the evidence in the pleadings reveals that late applicants who are not placed timeously by the WCED in a basic education school are disproportionately Black and poor learners who originate from rural South Africa. However, Moosa AJ found that this is not by the design of the Admission Policy; nor is this the result of a defect in clause 13 of the Admission Policy, and accordingly disagreed with the majority’s order as to clause 13’s constitutional violation. The dissenting judgment sets out an interesting assessment of socio-economic and historical realities.

Conclusion

In February 2014, then Provincial Minister of Education, Donald Grant, released an official media statement unpacking the crisis of unplaced learners, particularly in the MEED, citing some 1,500 learners in need of late placement. More than 10 years later, the respondents astonishingly persisted in their denial of a systemic problem, insisting that their existing systems work, and deeming this systemic existential problem unimportant to prioritise and resolve, said the court.

The respondents’ actions are among the most profound and damaging state failures in recent times: the right to basic education underpins the ideals of our constitutional democracy, and when it is offended and diluted it has damaging consequences that last for generations. The court afforded the respondents six months from the date of the order in which to, in consultation with stakeholders and the general public, amend its Admission Policy so that it passes constitutional muster. Our practice will watch closely as these matters unfold in the hope that these systemic failures have now been addressed meaningfully and in a sustainable manner.