Policy vs. paramountcy: mapping the friction between Section 5(5) of SASA and Section 29 of the South African constitution

Abstract

Abstract This article examines the friction between Section 5(5) of the South African Schools Act 84 of 1996 and Section 29(1(a)) and 28(2) of the Constitution of the Republic of South Africa, 1996. While School Governing Bodies are statutorily empowered to determine admission and language policies, these powers are often exercised in ways that restrict access to education. Drawing on a qualitative doctrinal approach, the study analyses statutory provisions, Constitutional Court jurisprudence, and relevant literature guided by the theoretical framework of transformative constitutionalism and administrative justice, demonstrating that School Governing Bodies’ authority constitutes delegated administrative power that must align with constitutional imperatives of access, substantive equality, and the best interests of the child. The article contributes conceptually by reconceptualising this relationship as one of cooperative governance, positioning school governance as a relational and learner-centred process. It argues that where conflict arises, the constitutional imperative of access to basic education must prevail.

The authors' abstract, as published at the source. SN Social Sciences, 2026 · DOI ↗