Head of Department, Mpumalanga Department of Education and Another v Hoerskool Ermelo and Another (CCT40/09) [2009] ZACC 32, 2010(2) SA 415 (CC), 2010 (3) BCLR 177 (CC)

CONSTITUTIONAL COURT OF SOUTH AFRICA

Case CCT 40/09

In the matter between:

HEAD OF DEPARTMENT:

MPUMALANGA DEPARTMENT OF EDUCATION                First Applicant

MINISTER FOR EDUCATION                                                     Second Applicant

And

HOERSKOOL ERMELO                                                               First Respondent

SCHOOL GOVERNING BODY OF

HOERSKOOL ERMELO                                                               Second Respondent

FEDERATION OF GOVERNING BODIES

FOR SOUTH AFRICAN SCHOOLS (FEDSA)                            Amicus Curiae

JUDGEMENT DELIVERED 14 OCTOBER 2009

1. Introduction

This case concerns the right to receive education in the official language of one’s choice in a public educational institution. The issue emerges from a dispute between the Head of Department of Education of the province of Mpumalanga (HoD or first applicant) and a public high school in his area of jurisdiction known as Hoerskool Ermelo (the school) and its governing body, cited as the first and second respondents respectively. The dispute arises from the school’s language policy, which stipulates Afrikaans as the only medium of instruction. The dispute requires us to answer the questions whether the HoD may lawfully revoke the function of the governing body of a public school to determine its language policy and confer the function on an interim committee appointed by him. And, if so, whether the interim committee so appointed, in turn, lawfully determined a new language policy for the school.

This case is important considering the fact that it arises in the context of continuing deep inequality in our educational system and a painful legacy of our apartheid history.

The questions are presented in an application for leave to appeal to this Court. The HoD and the Minister for Education seek leave to appeal against the decision of the Supreme Court of Appeal. The decision upheld an appeal by the school governing body and set aside an order of the full bench of the North Gauteng High Court, Pretoria which had ruled in favour of the HoD and the Minister that the interim committee had lawfully altered the language policy of the school.

2. Facts of the Case

Hoerskool Ermelo has over 9 decade’s establishment and by all accounts it has an excellent and enviable academic record. We are told by the way that for five years prior to the launch of these proceedings the school had 100% matric pass rate and in 2006 had 178 matric distinctions. It has always been that exclusively Afrikaans medium school. On behalf of the HoD and the Minister it was contented that the language policy of the school determined by more than 93 years ago and remained fixed exclusively Afrikaans up to 2007 when it was changed by an interim committee appointed by the HoD however the evidence paints a somewhat different picture. On the 25 January 2005 the school’s governing body adopted an admission policy. The full text on policy, the full text of the policy is part of the papers, whilst it is so that there is no stand-alone document containing a language policy therefore it is clear that the admission policy deals with and commits the school to Afrikaans as its only medium of instruction.

In the Departments papers, the HoD explains that within the Ermelo circuit the school was the only high school not filled to capacity. Statistically there should been approximately 15 classrooms available to accommodate new grade 8 learners even if they did not meet the requirements of being the Afrikaans- speaking or did not agree to be taught in Afrikaans. It was the Department’s emphatic view that the school had excess classroom capacity and that it was not appropriate for it to refuse to admit grade 8 learners who obviously needed to be admitted to a high school. The HoD formed the view that the school’s governing body acted unreasonable in refusing, despite repeated requests, and given its access classroom space to alter its language policy in order to facilitate the admission of the stranded grade 8 pupils from the Ermelo neighbourhood. However on paper there is a dispute whether the HoD informed the governing body of his decision to withdraw the function of determining the language policy before or only after the interim committee has been established. The HoD revoked the power of the governing body to set the language policy and conferred the power on an interim body, which instantly altered the policy to parallel medium in order to permit the admission of the stranded learners.

On 29 January 2007 the school governing body as a matter of urgency launched an application to the High Court to set aside the decision of the HoD to withdraw the function of determining the language policy from the governing body. As matters turned out, the draft of the new language policy was finalised and adopted by the committee on the 29 January 2007. The amended language policy recorded that the languages of teaching at the school would be English and Afrikaans which interim committee described as a ‘Parallel Medium’ of instruction. It is a common cause however that this decision was taken without consulting with the school governing body, the teachers, learners already admitted to the school and their parents. The members of the interim committee , being outsiders to the school did not have benefit of the views and concerns of all stakeholders, nor did gather any information of the school language policy other than that provided by the HoD in this mandate.

3. Legal Issues

It is necessary to dispose of some preliminary issues. These are first whether the dispute to be resolved raises constitutional issues, and if it does, second, whether it is in the interests of justice to grant and leave to appeal. Past these hurdles and before resolving each crucial issues, I will set out the constitutional and legislative matrix which governs the dispute.

The following issues therefore arise for determination:

3.1 Did the HoD have the power under section 22 to revoke the language policy of the governing body adopted in terms of section 6(2) of the School Act?

3.2 If so, did the HoD withdraw the function on reasonable grounds and in procedurally fair manner?

3.3 Did the HoD have the power to appoint an interim committee to decide a school language policy under section 25 of the School Act?

3.4 If so, was an interim committee constituted in a procedurally fair and lawful manner?

3.5 What order, if any, would be just and equitable?

4. Argument presented

On the 29 January 2007, the respondents applied to the High Court for an urgent interim order setting aside decision of the HoD and restraining the interim committee from altering the school’s medium instruction in the High Court. However several interlocutory court processes were precede the final hearing of the substantive application by the full bench on the 2 September 2007, in the substantive application, the respondents sought an order that the final decision of the HoD to withdraw, on an urgent basis, the school governing body’s function to determine the language policy in accordance with the HoDs instructions be reviewed and set aside. In the alternative, the respondents sought an order to review and set aside the language policy determined by the interim committee. The full bench of the High Court dismissed the substantive application and refused leave to appeal to the Supreme Court of Appeal to it. The reasoning of the high Court was clearly inspired by the interpretation of section 22 and 25 of the Schools Act that the Supreme Court of Appeal adopted in Minister of Education, Western Cape, and Others v Governing Body, Mikro Primary School and Another.

On the Supreme Court of Appeal the appeal reversed the decision of the High Court. It is characterized the dispute as solely about the rule of law and not the language policy. It is made the following order:

• The appeal is upheld
• The order of the court is a quo is a set aside and replaced by the following:
• The first respondent decision to withdraw the function of the governing body of the language policy of the school is set aside.
• The first respondent decision to appoint interim committee to perform the functions of the governing body to determine the language policy of the school is set aside.
• The decision of the interim committee to amend the language policy of the school from Afrikaans medium to parallel medium is set aside.

5. Court’s Reasoning and Analysis

5.1 Interpretation of law

The court mentioned the paramount constitutional issue” The right to receive education in the official language of one’s choice in a public educational institution, where it is reasonably practical is located in section 29(2) of the Constitution. In order to give effect to this right, the same provision imposes a duty on the state to consider all reasonable educational alternatives, including single medium institutions, taking into account what is equitable, practicable and addresses the results of the past racially discriminatory laws and practices. The Schools Act is legislation that seeks to give effect to this constitutional safeguard. It is thus self-evident that this case requires us to interpret and enforce constitutional provisions and also calls on us to construe legislation that gives content to constitutional guarantees.

It admits of no debate that current case raises important constitutional issues allied to the right to receive education and the obligations of the state to ensure that the right is given effect to public schools. The very interpretation of section 6(2) and of section 22 of the Schools Act in light of the Constitution raises constitutional matters of considerable importance. There can be no doubt that it is in the interests of justice to hear and determine the issues presented in the case. A proper understanding of language rights as an incident of the right to basic education is self-evidently a matter of considerable private and public interest.

5.2 Application precedents

The Court rejected the argument that School Governing Body have unrestricted autonomy over language policy. The Court agreed that the Head of Department had the authority under section 22 of the South African Schools Act to withdraw the School Governing Body’s function if there were reasonable grounds.

5.3 Evaluation Arguments

However, the Court found that the Head of Department failed to follow the correct statutory procedure when appointing an interim committee to replace the School Governing Body because the incorrect legal process was followed, the appointment of the committee was unlawful, despite the legitimate objective of increasing access to education.

5.4 Legal Reasoning

A central aspect of the Court’s reasoning was that government officials must always act within the law. The Court reaffirmed the principle of legality by holding that even where government pursues an important constitutional objective, it must comply with the procedures prescribed by legislation. Constitutional goals cannot justify unlawful administrative action.

5.5 Balancing of interests

Confrontation by learners, supported by their parents, whose vital interests in receiving education, although they are not cited as parties to the dispute, is directly on the line. We are dealing also with live disputes between the school and its governing body, the executive government and the broader school community, all of whom harbour a deep interest in the language of instruction. I would, without hesitation, grant leave to appeal The Court emphasised that School Governing Body are statutory bodies performing public functions and must act in the interests of all learners, not only the school’s existing community. Their decisions must promote the constitutional values of accountability, fairness, and inclusiveness.

6. Judgement and Ratio Decidendi

In the event, the following order is made:

• The application for leave appeal is granted
• The appeal against the decision of the Supreme Court of Appeal fails
• Paragraph 2(a) (e) and paragraph 3 of the order of the Supreme Court of Appeal are confirmed.
• The School Governing Body of Hoerskool Ermelo must-
• Review and determine a language policy in terms of section 6(2) of the Schools Act and the Constitution;
• By not later than Monday 16 November 2009 lodge with this Court an affidavit setting out the process that was followed to review its language policy and a copy of the language policy.
• The Head of Department: Mpumalanga Department of Education must by not later than Monday 16 November 2009 lodge a report with this Court setting out likely to demand for grade 8 English places at the start of the year in 2010 and setting out the steps that the Department has taken to satisfy this likely demand for an English or parallel medium high in the circuit of Ermelo.
• The first and second applicants are directed to pay the costs of this application for leave to appeal including the costs of two counsel.

7. Critical Analysis

In my own view based on the judgement validating the ‘Ratio Decidendi’ application of the court, I have found them fair considering the fact all parties involved are in the judgement of the court. The decision is not discriminatory considering the fact that the children’s basic rights are of paramount significant in South Africa however I find no cause why the school and its governing body should be deprived a cost order favourable to them in circumstances where they have successfully resisted the appeal. Its significant promotes constitutional values of equality and dignity and access to education.

The courts recognises the rights under section 29(2) of the Constitution cannot be used to unfairly exclude learners from accessing the public schools serve broader public interest rather than the interests of the particular language or cultural group. Somehow the judgement limits the autonomy of the School Governing Body and may weaken its ability to preserve minority language education. The strength of this judgement is the prevention of the language policies from becoming mechanism of indirect racial exclusion particularly where schools have available capacity while learners are denied admission elsewhere. 

8. Conclusion

This matter has raised important constitutional issues. The school governing body have been partially successful in relation to lawfulness, however it must be said that this is a case which calls for a concerted attempt to resolve the underlying dispute that flows directly from the exclusive language policy the governing body seek to preserve. There has finally been the setting out of the steps that the Department has taken to satisfy this likely demand for English or parallel medium high school in the circuit of Ermelo. The Hoerskool Ermelo judgement carefully balances language rights, equality, and educational access with the rule of law. It protects the learner’s constitutional rights while ensuring that both School Governing Bodies and education authorities exercise their powers within the framework of the Constitution and South African School Act.

Reference(S):

Dr Isabel Moodley

Ms Riana Miene

In collaboration with

Prof Elmene Bray

Education Law

Case Law

Head of Department, Mpumalanga Department of Education and Another v Hoerskool Ermelo and Another (CCT40/09) [2009] ZACC 32, 2010 (2) SA 415 (CC), 2010 (3) BCLR 177 (CC)

Case Summary by Prudence Radebe- Mfene

University of South Africa