Hoërskool Ermelo and Another v Head of Department of Education: Mpumalanga and Others (219/2008) [2009] ZASCA 22; 2009 (3) SA 422 (SCA) ; [2009] 3 All SA 386 (SCA) (27 March 2009)

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Hoërskool Ermelo and Another v Head of Department of Education: Mpumalanga and Others (219/2008) [2009] ZASCA 22; 2009 (3) SA 422 (SCA) ; [2009] 3 All SA 386 (SCA) (27 March 2009)

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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case No: 219/2008
HOËRSKOOL ERMELO First Appellant
(1
st
Applicant a quo)
SCHOOL GOVERNING BODY OF
HOËRSKOOL ERMELO Second Appellant
(2
nd
Applicant a quo)
and
THE HEAD OF DEPARTMENT OF
EDUCATION: MPUMALANGA First
Respondent
(1
st
Respondent a quo)
J KHUDAIJA Second Respondent
(2
nd
Respondent a quo)
D MUNERA Third Respondent
(3
rd
Respondent a quo)
E AYOOB Fourth Respondent
(4
th
Respondent a quo)
C VAN GREUNEN Fifth Respondent
((5
th
Respondent a quo)
Q NQELE Sixth Respondent
(6
th
Respondent a quo)
J KRUGER Seventh Respondent
(7
th
Respondent a quo)
THE MINISTER OF EDUCATION Eighth
Respondent
(8
th
Respondent a quo)
N M MASILELA Ninth Respondent
(9
th
Respondent a quo)
Neutral citation:
Hoërskool
Ermelo v The Head of Department of Education: Mpumalanga (219/08)
[2009] ZASCA 22
(27 MARCH 2009)
Coram:
Harms
DP, Brand, Cloete, Ponnan, Snyders JJA
Heard:
12
MARCH 2009
Delivered:
27
MARCH 2009
Summary:
Schools
– language policy – ss 22 and 25 of Schools Act 84 of 1996 –
language policy remains the exclusive function of the
governing body
of an existing school
________________________________________________________________
ORDER
______________________________________________________________
On ap
peal
from: High Court, Pretoria (Ngoepe JP, Seriti J and Ranchod AJ
sitting as court of first instance).
The appeal is
upheld.
The order of the court a quo is set
aside and replaced by the following:
‘
a The first
respondent’s decision to withdraw the function of the governing
body of Hoërskool Ermelo to determine the language
policy of the
school is set aside.
b
The
first respondent’s decision to appoint an interim committee to
perform the function of the governing body to determine the
language
policy of Hoërskool Ermelo is set aside.
c
The
decision of the interim committee to amend the language policy of
Hoërskool Ermelo from Afrikaans medium to parallel medium
is set
aside.
d
Learners
that have enrolled at Hoërskool Ermelo since 25 January 2007 in
terms of a parallel medium language policy shall be
entitled to
continue to be taught and write examinations in English until the
completion of their school careers.
e The costs of the
application are to be paid by the first and eight
h
respondents jointly and severally, the one paying, the other to be
absolved.’
3. T
he
costs of the appeal are to be paid by the first and eighth
respondents jointly and severally, the one paying, the other to be

absolved.
______________________________________________________________
JUDGMENT
______________________________________________________________
SNYDERS JA (
HARMS
P, BRAND, CLOETE and PONNAN JJA concurring)
[1]
The
first appellant is the Hoërskool Ermelo (the school), a public
school as defined in the South African Schools Act 84 of
1996 (the
Act), and the second appellant is its governing body. The first
respondent is the Head of Department of Education in
Mpumalanga (head
of department) and the eighth respondent is the Minister of Education
of Mpumalanga. They are the only respondents
opposing the appeal. The
second to sixth respondents are members of an interim committee
appointed by the head of department to
determine the language policy
of the school. The seventh respondent is the principal of the school.
The ninth respondent is a parent
of one of the learners who sought
tuition in English and was joined for purposes of one of the interim
applications that do not
feature in this appeal.
[2]
The
appellants applied in the court a quo (Ngoepe JP, Seriti J and
Ranchod AJ sitting as a court of first instance) for an order

reviewing and setting aside three decisions:
1
the decision of the head of department to withdraw the function of
the governing body to determine the language policy of the school;

the appointment by the head of department of an interim committee to
change the language policy of the school; and the decision
of the
interim committee to change the language policy of the school from an
Afrikaans medium school to a parallel medium school.
The court a quo
dismissed the application for leave to appeal. The appellants
subsequently obtained leave from this court.
[3]
This
case is not, as at first blush appears, about language policy at
schools, a highly emotive issue in the South African context,
but
rather about the principle of legality and the proper exercise of
administrative power.
[4]
The
strife between the department of education, the school and its
governing body about its language policy started as far back
as 2001.
Events during the course of that year culminated in the head of
department suspending the principal and disbanding the
governing body
of the school on 12 December 2001, the afternoon after school broke
up for the December holidays. Following the
suspension the head of
department appointed an acting principal and promptly instructed him
both to change the language policy
of the school and to admit
learners to the school to be taught in English.
[5]
Litigation
between, amongst others, the principal and the governing body of the
school on the one hand and the head of department
on the other hand,
achieved the reinstatement of the principal and the governing body
early in January 2002 in terms of a judgment
by Moseneke J in
Schoonbee
v MEC for Education, Mpumalanga.
2
One
hundred and thirty-two charges were compiled by the department
against the principal, but were never pursued.
[6]
At
the beginning of 2006 the department approached the school to enrol
27 grade 8 learners who had to be taught in English. A compromise

was reached: the learners were enrolled at a neighbouring English
medium school but accommodated on the premises of the school.
At the
beginning of 2007 those learners were all accommodated in English
medium schools in the area.
[7]
During
2006 it was evident that there was a need for English tuition in the
Ermelo circuit beyond the available capacity. The department
was
aware of this at the time as the head of department wrote to the
school on 1 March 2007 that:
‘
You
will recall that in 2006 my department had a crisis of the learners
for the Grade 8 level who could not be accommodated in all
the
schools
within the Ermelo 1 Circuit’.
It came as no
surprise when, on 15 Augus
t
2006, the manager of the Ermelo circuit of the department wrote to
the principals of all schools in the circuit as follows:
‘
You
will recall that in 2006, a Grade 8 English Medium Class of
approximately 46 learners could not get accommodation at Ligbron

Academy of Technology and Ermelo Combined School since these are the
only institutions in the Circuit where English
FIRST
Language is utilized as medium of instruction in Grade 8 – 12. This
still remains a crisis.
Against this background,
the Circuit would therefore request each and every principal to give
advice as to what other avenues could
be explored to resolve
accommodation crisis in 2007 in our circuit schools, specifically for
First English Medium Grade 8 learners.’
[8]
Suggestions
were made in response to the invitation to utilise the old ‘Kommando’
building, the ‘convent’ and the ‘Spoornet
building’. Those
suggestions all entailed the establishment of a new school in
separate premises to provide a long term solution
for the growing
number of learners requiring tuition in English. None of these
suggestions found favour with the department, as
(according to the
answering affidavit deposed to by the head of department) the
buildings ‘do not fall under the jurisdiction
of the department and
would have to be rented or acquired from their present owners. They
would also require substantial renovations
in order to make them
suitable as classroom facilities for learners’.
[9]
The
matter apparently received no further attention from the department
until Monday 8 January 2007, two days before the official
opening of
schools in the Ermelo circuit for the new academic year. On that day
the principal and the chairperson of the school
governing body were
summoned to a meeting with the head of department to be held the
following day. The head of department did
not attend the meeting but
sent officials who handed a letter to the principal in terms of which
he was instructed ‘to admit
learners [to be taught in English] at
Hoërskool Ermelo for the 2007 academic year with effect from
10/01/2007’, contrary
to the language policy of the school.
[10]
On
10 January 2007 a group of learners that required tuition in English,
their parents and officials from the department arrived
at the school
for the purpose of enrolling the learners. The principal, on the
express written instruction of the chairman of the
governing body,
adhered to the language policy of the school, with the result that
the pupils were not enrolled and school commenced
without them.
[11]
On
Thursday 25 January 2007 the head of department addressed a letter in
terms of s 25 of the Act to the second to sixth respondents
(to whom
I shall refer collectively as ‘the interim committee’) informing
them of the issue between the department and the
school and
appointing them ‘with immediate effect to determine the language
policy of Hoërskool Ermelo’. In the last paragraph
of the
letter the members of the interim committee were ‘requested to
ensure that the Language policy determined by yourself
will enable
the learners to be admitted at Hoërskool Ermelo as a matter of
urgency’. The interim committee was also called
upon, albeit not in
the letter, to attend a meeting at 12:00 on the same day. At the
meeting an official of the department (who
deposed to an affidavit in
these proceedings confirming this) told the members of the interim
committee that they were appointed
to revise the language policy of
the Ermelo High School, in order to make it possible for the 113
learners who cannot be accommodated
elsewhere to attend the said
school. At 14:30 that very day, after the conclusion of the meeting
of the interim committee,
3
a letter from the head of department to the school governing body,
purporting to have been written in terms of s 22 of the Act,
was
delivered to the school. It said that the head of department had
‘decided to withdraw [the governing body’s] function of

determining the language policy of the “Hoërskool” Ermelo
with immediate effect’.
[12]
At
the meeting of the interim committee it was decided that the language
policy of the school be changed. The formulation of the
new language
policy took place after the meeting and ultimately read, ‘[t]he
language of teaching and learning at the school
will be English and
Afrikaans (Parallel Medium)’. It was common cause that this
decision was taken without consultation with
relevant parties or the
gathering of relevant information other than information supplied by
representatives of the department
at the meeting.
[13]
The
appellants rushed to court to obtain interim relief pending a review
of the respondents’ decisions and actions, but were ultimately

unsuccessful in all applications. In the result the language policy
of the school has remained as amended by the interim committee.

Twenty learners were admitted in 2007 in terms of the amended
language policy and are being taught in English. The appellant has

undertaken that regardless of the outcome of this appeal, all
learners admitted in terms of the amended language policy will
receive
tuition in English until the end of their school careers.
[14]
These
facts show that the department of education has, since 2001, regarded
changing the language policy of the school as the solution
to its
obligation to provide tuition in English to learners. In his
answering affidavit the head of department emphasises the fact
that
the school has fewer learners per available classroom than any other
school in the Ermelo circuit. Whilst that fact may have
presented an
attractive option for the department it had to remind itself, before
action was taken, that the right to receive tuition
in English in a
public educational institution provided by the State,
4
if reasonably practicable, is a right against the State and not a
right against each and every public school.
5
Furthermore, whatever action the head of department took that
involved the school had to comply with the principle of legality
as
determined in the Act and the Promotion of Administrative Justice Act
3 of 2000 (PAJA).
[15]
With
regard to the particular action taken by the head of department it is
useful to first look at certain key provisions of the
Act to get an
appreciation of the composition of the governing body and its powers.
The Act vests in the governing body the governance
of the school. The
governing body ‘may perform only such functions and obligations and
exercise only such rights as [are] prescribed
by the Act’.
6
Section 6 of the Act grants authority to the governing body of a
public school to ‘determine the language policy of the school

subject to the Constitution,
7
this Act and any applicable provincial law’ on a non-racial basis
within the norms and standards for language policy as determined
by
the Minister of Education.
8
The governing body comprises elected parents of learners, educators,
members of staff who are not educators, learners, the principal
in
his or her official capacity and co-opted members, without voting
rights, provided that the number of parent members ‘must
comprise
one more than the combined total of other members of a governing body
who have voting rights’.
9
This composition of the governing body provides for broad
participation in the decision-making process with particular emphasis

on the contribution by parents of learners.
[16]
Aside from authorising the governing body to determine the language
policy, s 20 confers on it certain core functions that include

adopting a constitution and a code of conduct for learners;
developing a mission statement; determining times of the school day;

administering and controlling the property of the school, and
recommending the appointment of educators and non-educator staff
to
the head of department.
[17]
In
addition to these functions a governing body may apply in terms of s
21 to the head of department to be allocated further functions.
This
application may be refused only if the governing body concerned does
not have the capacity to perform such functions effectively.
10
Functions capable of allocation are those set out in s 21(1):
‘
Subject to this Act, a
governing body may apply to the Head of Department in writing to be
allocated any of the following functions:
To maintain and improve
the school’s property, and buildings and grounds occupied by the
school, including school hostels, if
applicable;
to determine the
extra-mural curriculum of the school and the choice of subject
options in terms of provincial curriculum policy;
to purchase textbooks,
educational materials or equipment for the school;
to pay for services to
the school;
(dA) to provide an adult
basic education and training class or centre subject to any
applicable
law; or
other functions
consistent with this Act and any applicable provincial law.’
[18]
These
functions are either non-essential to the functioning of the school,
(s 21(1)(dA)) or, if not allocated, are performed by
the department.
It is because the department is usually responsible for these
functions that they can only be allocated to the
governing body if
the latter has the capacity to perform them effectively. This is the
only sensible distinction between the functions
contained in s 21 and
those elsewhere in the Act. If there was no distinction, there is no
reason why the legislature would have
made separate provision for
them in s 21 instead of simply including them in s 20.
[19
]
Section 22(1) authorises the head of department to withdraw a
function of a governing body, on reasonable grounds. In s 22(2)
the
procedure to be followed in the event of a withdrawal of a function
is set out. It involves the furnishing of reasons, calling
for
representations and due consideration thereof. Section 22(3) provides
for the urgent withdrawal of a function and prescribes
a similar
procedure to s 22(2) except that it takes place after the urgent
withdrawal. Subsection (4) allows the head of department
to reverse
or suspend the urgent withdrawal of a function ‘for sufficient
reasons’.
11
[20]
The
court a quo found the head of department’s decision in terms of s
22(3) to have been validly taken. This decision was based
on the
factual issue whether urgency prevailed that allowed action in terms
of s 22(3). The applicability of s 22(3) to the facts
was not
considered. The appellants contend that s 22 is not applicable to the
facts, as the function of determining the language
policy of the
school is not allocated by the head of department in terms of s 21
and cannot be withdrawn by him in terms of s 22.
[21]
Language
is a sensitive issue. Great care is taken in the Act to establish a
governing body that is representative of the community
served by a
school and to allocate to it the function of determining the language
policy. The Act authorises only the governing
body to determine the
language policy of an existing school and nobody else. As nobody else
is empowered to exercise that function,
it is inconceivable that s 22
was intended to give the head of department the power to withdraw
that function, albeit on reasonable
grounds, and appoint somebody
else to perform it, without saying so explicitly.
[22
] The
structure of the Act sheds further light. As s 22 follows immediately
after s 21 and a distinction exists between the functions
allocated
in s 21 and elsewhere in the Act, it logically follows that s 22 is
designed to deal with the withdrawal of functions
allocated in terms
of s 21. The logical default position if functions allocated in terms
of s 21 are withdrawn is that they revert
to the department of
education. This would explain why s 22, unlike s 25, does not provide
for the appointment of others to perform
the functions that are
withdrawn.
[23]
The
respondents relied on the decision of this court in
Minister
of Education, Western Cape v Governing Body, Mikro Primary School
12
that
the head of department could make use of s 22 to withdraw the
function of determining the language policy. In that case a similar

situation to the present had arisen and the court a quo found that
the head of department had acted unlawfully when he imposed
a
directive that amended the Afrikaans language policy of the Mikro
Primary School and in that way purported to force that school
to
enrol learners who required tuition in a different language. It was
argued on appeal that a finding that the directive was unlawful
would
leave the head of department without a remedy if a governing body
unreasonably refused to change its language policy. The
court
rejected this argument and expressed the opinion in an
obiter
dictum
that the head of department would inter alia have been entitled to
make use of the provisions of ss 22 and 25 of the Act.
[24]
The
considerations expressed above concerning the purpose of s 22 and the
distinction between the functions of a governing body
contained in ss
20 and 21 were not considered in
Mikro
.
[25]
The
error in the interpretation of s 22 in
Mikro
becomes even more apparent when s 25 is considered. The head of
department purportedly appointed the interim committee in terms
of s
25(1) to perform the function of the governing body and change the
language policy of the school. Section 25 reads:
‘
(1) If the Head of
Department determines on reasonable grounds that a governing body has
ceased to perform functions allocated to
it in terms of this Act or
has failed to perform one or more of such functions, he or she must
appoint sufficient persons to perform
all such functions or one or
more of such functions, as the case may be, for a period not
exceeding three months.
(2) The Head of
Department may extend the period referred to in subsection (1), by
further periods not exceeding three months each,
but the total period
may not exceed one year.
(3) If a governing body
has ceased to perform its functions, the Head of Department must
ensure that a governing body is elected
in terms of this Act within a
year after the appointment of persons contemplated in subsection (1).
(4) If a governing body
fails to perform any of its functions, the persons contemplated in
subsection (1) must build the necessary
capacity within the period of
their appointment to ensure that the governing body performs its
functions.’
[26]
The
clear language of s 25(1) requires that before the head of department
could make use of the authority granted in the section,
he would have
had to have determined, on reasonable grounds, that the governing
body had ceased to perform its functions. In this
case the facts do
not support a reasonable conclusion that the governing body ceased to
determine the language policy of the school.
The head of department
was dissatisfied with the result of the governing body’s
determination but relied on the interpretation
of s 25 in
Mikro
to submit that the governing body ceased to perform that function
when he withdrew it in terms of s 22. In
Mikro,
s 25 was found applicable in similar circumstances on the basis of
the interpretation that ‘[i]f a function is withdrawn, the

governing body ceases to perform that function, and s 25 becomes
applicable’.
13
[2
7] The
effect of the interpretation in
Mikro
is in my respectful view unacceptable because it enables the head of
department to create the state of affairs that would entitle
him or
her to act in terms of s 25(1) whereas the language of s 25(1)
requires that state of affairs to have arisen as a prerequisite,

reasonably established, before the head of department has the power
to act in terms of s 25(1). The interpretation in
Mikro
enables a functionary to abuse power and makes possible indirectly
that which cannot be attained directly.
[28]
The
governing body of the school did indeed perform the function of
determining the language policy of the school. This is not the
kind
of function that is performed on a daily or weekly or even yearly
basis, but one that persists in its effect, once performed,
until
changed or amended by the governing body. The governing body
historically decided the language policy and the school continued
to
implement it by admitting learners consistent with that policy.
[29]
The
rest of s 25 also illustrates why the interpretation in
Mikro
does not stand scrutiny. Sufficient persons are to be appointed by
the head of department in terms of ss (1) to perform the function
or
functions that the governing body has ceased to perform and to do so
for a period not exceeding 3 months. The period of 3 months
can be
extended by the head of department for further periods of 3 months,
but not for a total period of more than 1 year.
14
Those appointed are obliged to ‘build the necessary capacity within
the period of their appointment to ensure that the governing
body
performs its functions’.
15
The head of department is also obliged to ‘ensure that a governing
body is elected in terms of [the] Act within a year after
the
appointment of persons contemplated in subsection (1)’.
16
This shows that the aim of s 25 is to ensure that when a governing
body ceases to perform its functions, in the worst case scenario,
a
fully functional governing body should be in place to continue
performing its functions within a maximum period of one year.
These
provisions are clearly inconsistent with an interpretation that a
head of department could simply take away the functions
of a fully
operational governing body and then proceed to comply with the rest
of s 25. In addition, if ss 22 and 25 are utilised
together, as in
this instance, the requirements of s 25 strip the consultation and
reconsideration envisaged in ss 22(3), (4) and
(5) of any meaning.
Counsel for the head of department and the Minister was constrained
to submit that once reinstated, the governing
body could change the
language policy back to what it was. The untenable situation that
would result underlines the fallacy of
attempting to apply the two
sections together.
[30
] For
the abovementioned reasons I am of the view that the
obiter
dictum
in
Mikro
on the interpretation of ss 22 and 25 is clearly wrong. The court a
quo followed
Mikro
and its decision is to be set aside for the same reasons.
[31
] The
woes of the respondents do not end with the interpretation of the
relevant sections of the Act. The steps that were purportedly
taken
in terms of the Act failed, in several respects, to comply with the
Promotion of Administrative Justice Act.
17
The head of department made the appointment of an interim committee
in terms of
s 25
to determine the language policy of the school
before he had withdrawn that power from the governing body; the
consequence of this
premature purported appointment was that the
language policy was changed by the interim committee before the power
of the governing
body to do so was withdrawn; far from allowing the
interim committee to reach their own decision the head of department,
in the
letter of appointment addressed to them, instructed them to
‘ensure that the Language policy determined by [them] will enable

the learners to be admitted at Hoërskool Ermelo as a matter of
urgency’ and this was reinforced by a member of the department
who
attended the meeting; it does not appear that the interim committee
was afforded the opportunity to consider all relevant and
available
information before taking an ‘urgent’, prescribed decision. In
the light of the conclusion that
ss 22
and
25
did not empower the
head of department to act as he did, it is not necessary to discuss
the detail of the contraventions of PAJA.
It suffices to say that
these contraventions were sufficient in themselves to have obliged
the court a quo to grant the relief
sought by the appellants.
[32
] As
in
Mikro
the concern was expressed on behalf of the respondents that this
conclusion leaves them without a remedy in similar circumstances.
It
does not. PAJA prescribes the standard for all administrative action.
The respondents are entitled to review the language policy
determined
by a governing body of a school if they make out a case in terms of
PAJA.
[33]
I
therefore conclude that the head of department’s withdrawal of the
governing body’s function to determine the language policy
of the
school was unlawful; that the head of department’s appointment of
the interim committee was unlawful; and that the decision
taken by
the unlawfully appointed interim committee was invalid.
[34] In the result
the following order is made:
1.
The
appeal is upheld.
2.
The
order of the court a quo is set aside and replaced by the following:
‘
a The first respondent’s decision
to withdraw the function of the governing body of Hoërskool
Ermelo to determine the language
policy of the school is set aside.
b The first respondent’s decision to
appoint an interim committee to perform the function of the governing
body to determine the
language policy of Hoërskool Ermelo is set
aside.
c The decision of the interim
committee to amend the language policy of Hoërskool Ermelo from
Afrikaans medium to parallel
medium is set aside.
d Learners that have enrolled at
Hoërskool Ermelo since 25 January 2007 in terms of a parallel
medium language policy shall
be entitled to continue to be taught and
write examinations in English until the completion of their school
careers.
e The costs of the application are to
be paid by the first and eighth respondents jointly and severally,
the one paying, the other
to be absolved.’
3.
The
costs of the appeal are to be paid by the first and eighth
respondents jointly and severally, the one paying, the other to be

absolved.
_________________________
S Snyders
Judge of Appeal
BRAND JA
[35] I have had the
advantage of reading the judgment of my colleague Snyders JA. I agree
with both her reasoning and conclusions.
But I am sure it will not go
unnoticed that I also agreed with the
obiter
dictum
in
Mikro,
which
Snyders JA overrules in para 30 above. With the wisdom of hindsight I
agree that, for the reasons given by her, the interpretation
we gave
to sections 22 and 25 of the Act in
Mikro
cannot be sustained. Perhaps this is a good illustration why
obiter
dicta
should
be resorted to sparingly for the very reason that they are not tested
against the outcome of a real life dispute.
[36] Without the
benefit of a real life dispute, the rather cynical abuse to which the
Mikro
interpretation
gave rise in this case could hardly have been anticipated. What the
head of the department did in this case was exactly
what
Mikro
eventually
decided he has no right to do, namely to change the language policy
of a school. The fact that he did so through the
medium of an interim
committee which he used as a ventriloquist's dummy can hardly make
any difference. To add insult to injury,
he purported to employ the
urgent procedure in s 22(3), which meant that the language
policy of the school had already been
changed before the school
governing body had had the opportunity to make the representations
contemplated by the section as to
why their function should not be
withdrawn. In fact, as we know, it happened even before the governing
body was informed of the
decision to withdraw their function. Because
of this cynical abuse, I was compelled to reconsider the
interpretation of sections
22 and 25 which has led me to the
conclusion that the
Mikro
interpretation
was wrong.
______________________
F D J BRAND
JUDGE OF APPEAL
APPEARANCES:
For appellant:
J
I Du Toit SC
Instructed
by:
Johan van der Wath Ingelyf, Pretoria
Schoeman Maree Ingelyf, Bloemfontein
For respondent: B R Tokota SC
D T Skosana
Instructed by:
The State Attorney, Bloemfontein
1
The
urgent interim application that was granted and later set aside is
not relevant to the appeal.
2
2002 (4) SA 877
(T).
3
According to the
minutes of the meeting it terminated at 13:45.
4
Section 29(2) of
the Constitution of the Republic of South Africa, 1996.
5
Minister of
Education, Western Cape v Governing Body, Mikro Primary School
2006 (1) SA 1
(SCA) para 31.
6
S 16(1).
7
The full text of s
6 reads: ‘(1) Subject to the Constitution and this Act, the
Minister may, by notice in the
Government
Gazette
,
after consultation with the Council of Education Ministers,
determine norms and standards for language policy in public schools.
(2)
The governing body of a public school may determine the language
policy of the school subject to the Constitution, this Act
and any
applicable provincial law.
(3)
No form of racial discrimination may be practised in implementing
policy determined under this section.
(4)
A recognised Sign Language has the status of an official language
for purposes of learning at a public school.’
8
Such norms and
standards were published in Government Gazette 18546 on 19 December
1997, but do not play a role in this case.
9
Section 23: (1)
Subject to this Act, the membership of the governing body of an
ordinary public school comprises – (a) elected
members; (b) the
principal, in his or her official capacity; (c) co-opted members.
(2)
Elected members of the governing body shall comprise a member or
members of each of the following categories: (a) Parents
of learners
at the school; (b) educators at the school: (c) members of staff at
the school who are not educators; and (d) learners
in the eighth
grade or higher at the school.
(3)
A parent who is employed at the school may not represent parents on
the governing body in terms of subsection (2)(a).
(4)
The representative council of learners referred to in section 11(1)
must elect the learner or learners referred to in subsection
(2)(d).
(5)
The governing body of an ordinary public school which provides
education to learners with special needs must, where practically

possible, co-opt a person or person with expertise regarding the
special education needs of such learners.
(6)
A governing body may co-opt a member or members of the community to
assist it in discharging its functions.
(7)
The governing body of a public school contemplated in section 14 may
co-opt the owner of the property occupied by the school
or the
nominated representative of such owner.
(8)
Subject to subsection (10), co-opted members do not have voting
rights on the governing body.
(9)
The number of parent members must comprise one more than the
combined total of other members of a governing body who have
voting
rights.
(10)
If the number of parents at any stage is not more than the combined
total of other members with voting rights, the governing
body must
temporarily co-opt parents with voting rights.
(11)
If a parent is co-opted with voting rights as contemplated in
subsection (10), the co-option ceases when the vacancy has
been
filled through a by-election which must be held according to a
procedure determined in terms of section 28(d) within 90
days after
the vacancy has occurred.
(12)
If a person elected as a member of a governing body as contemplated
in subsection (2) ceases to fall within the category
referred to in
that subsection in respect of which he or she was elected as a
member, he or she ceases to be a member of the
governing body.’
10
See
s 21(2).
11
Section 22 reads
as follows: ‘(1) The Head of Department may, on reasonable
grounds, withdraw a function of a governing body.
(2)
The Head of Department may not take action under subsection (1)
unless he or she has –
(a)
informed the governing body of his or her intention so to act and
the reasons therefor;
(b)
granted the governing body a reasonable opportunity to make
representations to him or her relating to such intention; and
(c)
given due consideration to any such representations received.
(3)
In cases of urgency, the Head of Department may act in terms of
subsection (1) without prior communication to such governing
body,
if the Head of Department thereafter –
(a)
furnishes the governing body with reasons for his or her actions;
(b)
gives the governing body a reasonable opportunity to make
representations relating to such actions; and
(c)
duly considers any such representations received.
(4)
The Head of Department may for sufficient reasons reverse or suspend
his or her action in terms of subsection (3).
(5)
Any person aggrieved by a decision of the Head of Department in
terms of this section may appeal against the decision to the
Member
of the Executive Council.’
12
See note 5 above.
13
Para 41.
14
Subsection (2).
15
Section 25(4).
16
Section 25(3).
17
Section
6(2).