- Equal Education and the Equal Education Law Centre welcome the Western Cape High Court judgment striking down the WCED late admissions policy.
- The court found the policy discriminatory and unconstitutional for failing to plan for late, extremely late, and transfer applicants.
- The WCED has six months to revise the policy and implement a management plan ensuring timely school placements.
Equal Education (EE) and the Equal Education Law Centre (EELC) have welcomed the Western Cape High Court judgment that struck down the Western Cape Education Department (WCED)’s policy on late learner admissions.
The court declared the policy unconstitutional and discriminatory for excluding learners from poor, working-class, and marginalised communities. The ruling, delivered on Friday, 28 November 2025, in Equal Education and Others v Western Cape Education Department, struck down Clause 13 of the Learner Admission Policy. It ordered the department to amend the policy and develop a management plan within six months.
The judgment affects thousands of learners from Khayelitsha, Kraaifontein, Kuilsriver, Strand, and neighbouring areas who were previously left unplaced due to systemic failures. The applicants were Equal Education, together with parents Kunga Mphertshulwa, Ncumisa Stofile, Nomboniso Quvile, Nomzamo Julia Maci, and Xoliswa Felicia Makupula, represented by Advocate Tembeka Ngcukaitobi SC.
The respondents were the Head of Department of the WCED, the Director of the Metro East Education District, and the MEC for Education in the Western Cape, represented by Advocate E de Villiers‑Jansen SC, with A Christians. The Minister of Basic Education was cited but did not participate.
Reaction from Equal Education and the EELC
In a joint statement, the organisations described the ruling as a turning point for learners who have long been excluded from school. “This judgment confirms that children from Khayelitsha, Kraaifontein, Kuilsriver, Strand and neighbouring areas have an equal right to basic education,” the statement said.
The organisations said the case challenged years of exclusion and neglect by the provincial government. “Over the years, learners from poor, working-class backgrounds have faced persistent systemic barriers to accessing education in the Western Cape due to the government’s exclusionary, non-poor approach. Finally, the High Court has decisively ruled against this unjust system.”
They described the admissions regime as one that systematically locked working-class children out of classrooms. “For over a decade, the WCED has approached late and extremely late learner applications in a way that excludes learners from poor and working-class communities. The court has now confirmed that the policy is not simply inefficient but discriminatory, unconstitutional, and structurally biased against black and marginalised communities,” the statement read.
The organisations emphasised that the crisis was not accidental but entrenched and systemic. “After years of advocacy and litigation, the court has held that the WCED has systemically failed to plan for late and transfer applications, resulting in thousands of learners being left without school places year after year.”
Court confirms systemic failure
The High Court judgment, written by Judge N Mantame with Judge D Dolamo concurring and Judge A Moosa joining to resolve a deadlock, found that Clause 13 “excluded categories of learners and left them unmanaged, violating constitutional rights.” The judgment noted, “Most markedly, black students in the Metro East Education District were left unplaced.”
The judges emphasised that the right to basic education is immediate and not subject to progressive realisation. Judge Mantame wrote, “Unlike other socio-economic rights, the right to basic education has no internal limitation requiring that it be progressively realised within available resources. It is immediately realisable.”
The judgment rejected the WCED’s argument that parents were responsible for late applications. It stated, “The WCED misconceives the extent of its responsibilities when it comes to giving effect to the right to basic education. The department cannot sit back and wait for learners to present themselves.”
One of the strongest passages highlighted by EE and the EELC was the court’s observation: “This is a systemic existential problem which the WCED does not deem important to prioritise and resolve. Instead, it attempts to deal with it only when the problem presents itself on a case-by-case basis.”
The court also found that the group of late applicants is disproportionately black, poor, and mostly from rural areas. “The differentiation leads to unfair discrimination,” the judgment said. It noted that exclusion from school is harmful and violates children’s dignity, equality, and right to just administrative action.
Orders and remedial measures
Clause 13 of the WCED Learner Admission Policy was declared unconstitutional both for excluding categories of learners and for unfair discrimination. The court suspended the invalidity for six months to allow the department to amend the policy after consultation with stakeholders and the public.
The WCED was ordered to produce a management plan for late, extremely late, and transfer applicants within six months. The plan must include clear steps for lodging applications, timelines for placement, designated officials responsible, and remedial support for learners left unplaced. Circulars 0037 of 2022 and 2023 were found to have lapsed, so relief in respect of them was refused. The respondents were also ordered to pay the applicants’ costs for two counsel.
Legal recognition of lived experiences
EE and the EELC said the judgment recognises the experiences of families who were unfairly blamed for circumstances beyond their control, including caregiver death, domestic violence, abuse, forced relocation, and poverty-driven instability.
“This judgment is not just a legal victory. It restores dignity to children who were treated as an afterthought. Their rights are now undeniably recognised,” the organisations said.
They welcomed the court’s call for collaboration with EE and the EELC to ensure a functional, rights-aligned admissions system. The organisations said they will monitor compliance, participate in public consultations, and continue advocating for an admissions process that centres equality, dignity, and children’s best interests.
“This decision is a profound recognition of the lived experience of thousands of learners who have been excluded through no fault of their own. It affirms that the right to basic education is immediate and cannot be delayed by administrative convenience. No child may be excluded because of migration, poverty, or late application,” the organisations concluded.
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