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[1996] ZACC 4
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Gauteng Provincial Legislature In re: Gauteng School Education Bill of 1995 (CCT39/95) [1996] ZACC 4; 1996 (4) BCLR 537; 1996 (3) SA 165 (4 April 1996)

IN THE CONSTITUTIONAL COURT OF SOUTH
AFRICA
CASE NO CCT 39/95
In the matter of:
THE
GAUTENG PROVINCIAL LEGISLATURE
In re: DISPUTE CONCERNING THE CONSTITUTIONALITY OF CERTAIN PROVISIONS OF THE
SCHOOL EDUCATION BILL OF 1995
Heard on: 29 February
1996
Delivered on: 4 April 1996
JUDGMENT
[1]
MAHOMED DP
: Various members of the Gauteng provincial legislature,
constituting at least one third of the total membership of that body, acting
pursuant to the provisions of section 98(9) of the Constitution of the Republic
of South Africa Act, 200 of 1993 (“the Constitution”),
petitioned
the Speaker, requiring him to request this Court to exercise its jurisdiction in
terms of section 98(2)(d) of the Constitution
to resolve a dispute which had
arisen in respect of the constitutionality of certain provisions of the School
Education Bill (“the
bill”) of the Gauteng Province. That request
was duly communicated by the Speaker of the Gauteng provincial legislature to
this Court.
[2] Subsequently the bill was passed and duly enacted as the School Education
Act of 1995 but the disputed sections were not put
into operation. It was not
contended by any of the parties appearing before us that the jurisdiction
conferred upon us by section
98(2)(d) of the Constitution was in any way ousted
because the bill which was previously before the provincial legislature had
since
ceased to be a bill and had been enacted as a statute. For the purposes
of this judgment I shall continue to refer to the School
Education Act as
“the bill”.
[3]
The objects and content of the bill
The long title of the bill describes its objects. It is “[t]o provide for
the provision and control of education in schools,
and matters connected
therewith”. Chapter 3 of the bill deals with “schooling”.
Section 11(2) provides that admission
requirements for public schools
“shall not unfairly discriminate on grounds of race, ethnic or social
origin, colour, gender,
sex, disability, sexual orientation, religion,
conscience, belief, culture or language”. (“Model C schools”
are
included within the definition of public schools in section 1.) Section 19
provides as follows:
“Language and discrimination
19. (1) Language
competence testing shall not be used as an admission requirement to a public
school.
(2) Learners at public schools shall be encouraged to make use of the range
of official languages.
(3) No learner at a public school or a private school which receives a
subsidy in terms of section 69 shall be punished for expressing
himself or
herself in a language which is not a language of learning of the school
concerned.”
The constitutionality of section 19(1) is disputed by the petitioners and the
South African Foundation for Education and Training
(“the
Foundation”) which was admitted as an
amicus curiae
in these
proceedings. The executive director of the Foundation states
that-
“The mission of the Foundation is to support a Christian value system and
prescribe to the principle of mother tongue education.
The Foundation also
aspires to promote education in the South African community as a whole with
special reference to the Afrikaans
medium
education.”
[4] Section 21 and section 22 of the bill read as
follows:
“Religious policy of public
schools
21. (1) The religious policy of a public
school shall be made by the governing body of the school concerned after
consultation with
the department, and subject to the approval of the Member of
the Executive Council.
(2) The religious policy of a public school shall be developed within the
framework of the following principles:
(a) The education process should aim at the development of a national,
democratic culture of respect for our country’s diverse
cultural and
religious traditions.
(b) Freedom of conscience and of religion shall be respected at all public
schools.
(3) If, at any time, the Member of the Executive Council has reason to
believe that the religious policy of a public school does not
comply with the
principles set out in subsection (2) or the requirements of the Constitution,
the Member of the Executive Council
may, after consultation with the governing
body of the school concerned, direct that the religious policy of the school
shall be
reformulated in accordance with subsections (1) and (2).
(4) The provisions of section 18(4) to (8) shall apply
mutatis
mutandis
to a directive issued by the Member of the Executive Council under
subsection (3) and in such application any reference to language
policy shall be
construed as a reference to religious policy.
Freedom of conscience
22. (1) No person employed at
any public school shall attempt to indoctrinate learners into any particular
belief or religion.
(2) No person employed at any public school or private school shall in the
course of his or her employment denigrate any religion.
(3) (a) (i) Every learner at a public school, or at a private school which
receives a subsidy in terms of section 69, shall have the
right not to attend
religious education classes and religious practices at that school.
(ii) In this regard the department shall respect the rights and duties of
parents to provide direction to their children in the exercise
of their rights
as learners, in a manner consistent with the evolving capacity of the children
concerned.
(b) The right conferred by paragraph (a) on a learner at a private school
which receives a subsidy in terms of section 69, may be
limited where such
limitation is necessary to preserve the religious character of the private
school concerned.
(c) Except as is provided for in paragraph (b) no person employed at a public
school, or at a private school which receives a subsidy
in terms of section 69,
shall in any way discourage a learner from choosing not to attend religious
education classes or religious
practices at that school.
(4) No person employed at a public school shall be obliged or in any way
unduly influenced to participate in any of the religious
education classes or
religious practices at that school.”
The constitutionality of section 21(2), section 21(3) and section 22(3) is also
impugned.
[5] The complaint made against the impugned sections of the bill is that their
effect is to invade the right of persons to attend
schools where language
competence testing is permitted as an admission requirement or where the
religious policy of the school is
developed within a framework which does not
fall within the principles set out in section 21(2) of the bill or where the
school is
not subject to the directions contemplated in section 21(3) or where
the attendance of scholars at religious education classes is
compulsory. The
answer proffered on behalf of the provincial government is that the bill makes
no invasion on any of these rights
at all. Section 19(1) which prohibits
language competence testing as an admission requirement to a public school,
section 21(2)
which provides for the religious policy to be developed in a
school and section 21(3) which provides for directions in this regard
in certain
circumstances do not have any application at all at private schools and section
22(3) which creates a right not to attend
religious education classes is
confined to public schools and only such private schools which receive a subsidy
in terms of section
69 of the bill. All the rights which the petitioners and
the Foundation seek to assert can therefore be freely exercised at other
schools. Both the Foundation and the petitioners seek to counter that answer by
the submission that section 32(c) of the Constitution
creates a positive
obligation on the state to accord to every person the right to require the state
to establish, where practicable,
educational institutions based on a common
culture, language or religion as long as there is no discrimination on the
grounds of
race. It is contended that on this interpretation of section 32(c),
the government is not entitled to prohibit language competence
testing as an
admission requirement or direct what religious policy should be developed or who
should or should not attend religious
classes at schools so established.
Counsel for the petitioners and the Foundation were correct in conceding that
this submission
on the proper interpretation of section 32(c) was
“central” to the attack made on the impugned sections. It
substantially
dominated counsel’s argument. It therefore becomes crucial
to determine whether section 32(c) of the Constitution indeed creates
a positive
obligation on the state to accord to every person the right to have established,
where practicable, schools based on a
common culture, language or religion
subject only to the qualification that it is practicable and that there is no
discrimination
on the grounds of race.
[6]
Section 32(c) of the Constitution
Section 32 reads as follows:
“Education
32.
Every person shall have the
right-
(a) to basic education and to
equal access to educational institutions;
(b) to instruction in the language of his or her choice where this is
reasonably practicable; and
(c) to establish, where practicable, educational institutions based on a
common culture, language or religion, provided that
there shall be no
discrimination on the ground of race.”
[7] The submission that every person can demand from the state the right to have
established schools based on a common culture, language
or religion is not
supported by the language of section 32(c). The section does not say that every
person has the right to have
established by the state educational institutions
based on such a common culture, language or religion. What it provides is that
every person shall have the right to establish such educational institutions.
Linguistically and grammatically it provides a defensive
right to a person who
seeks to establish such educational institutions and it protects that right from
invasion by the state, without
conferring on the state an obligation to
establish such educational institutions.
[8] Considered in context, there is no logical force in the construction
favoured by the petitioners. If a person has the right
to basic education at
public expense in terms of sub-paragraph (a) and if he or she has the right is
to be instructed in the language
of his or her choice in terms of sub-paragraph
(b), why would there be any need to repeat in sub-paragraph (c) the right to
education
at public expense through a common language? The object of
sub-section (c) is to make clear that while every person has a right
to basic
education through instruction in the language of his or her choice, those
persons who want more than that and wish to have
educational institutions based
on a special culture, language or religion which is common, have the freedom to
set up such institutions
based on that commonality, unless it is not
practicable. Thus interpreted, section 32(c) is neither superfluous nor
tautologous.
It preserves an important freedom. The constitutional
entrenchment of that freedom is particularly important because of our special
history initiated during the fifties, in terms of the system of Bantu education.
From that period the state actively discouraged
and effectively prohibited
private educational institutions from establishing or continuing private schools
and insisted that such
schools had to be established and administered subject to
the control of the state.
[1]
The
execution of those policies constituted an invasion on the right of individuals
in association with one another to establish
and continue, at their own
expense, their own educational institutions based on their own values. Such
invasions would now be constitutionally
impermissible in terms of section 32(c).
[9] The interpretation of section 32(c) as a defensive right, based on its
grammatical and linguistic structure, seems to me also
to be supported by its
context within section 32 itself. Section 32(a) creates a positive right that
basic education be provided
for every person and not merely a negative right
that such a person should not be obstructed in pursuing his or her basic
education.
Section 32(b), recognising the diversity of languages in our
country, again creates a positive right for every person to instruction
in the
language of his or her choice, where this is reasonably practicable, not merely
a negative right to prevent any obstruction
if such person seeks instruction in
the language of his or her choice. Section 32(c), by contrast, guarantees a
freedom - a freedom
to establish educational institutions based on a common
culture, language or religion. It is that freedom which is protected by
section
32(c). A person can invoke the protection of the court where that freedom is
threatened, but the language of section 32(c)
does not support a claim that such
educational institutions, based on a commonality of culture, language or
religion, must be established
by the state, or a claim that any person is
entitled to demand such establishment, notwithstanding the fact that his or her
right
to basic education and to instruction in the language of his or her choice
is, where practicable, otherwise being satisfied by the
state.
[10] Mr NGD Maritz SC, who appeared on behalf of the petitioners, and Mr Raath,
who appeared on behalf of the Foundation, both contended
that if section 32(c)
was only intended to protect the right of persons to establish their own
educational institutions, it would
not be necessary to qualify such a right by
making it subject to the requirement that it should be practicable. It was
suggested
that that qualification was more consistent with a positive obligation
on the part of the state to establish educational institutions
based on a
commonality of language, culture or religion and that the requirement of
practicability was inserted so as to relieve
the state from the obligation to
establish such educational institutions in circumstances where this was not
practicable because
of the smallness of the numbers of persons wishing to attend
such institutions or some similar practical or logistical difficulties.
[11] I am unable to agree with that submission. It is certainly true that if
every person had the right to require the state to
establish educational
institutions based on a common culture, language or religion, it would be
sensible to provide that that duty
need only be discharged by the state where it
was practicable. But, it is equally true that if the right protected by section
32(c)
is the right of private persons to establish such institutions, such a
right should only be asserted if it were indeed practicable.
Were it otherwise,
the state might, pursuant to its duty to ensure basic education for every
person, be obliged to monitor and
supervise such institutions and to ensure
some element of quality control, even in circumstances where this was not
reasonably practicable.
The state has a positive interest in ensuring that the
right is being asserted in circumstances where it is practicable. Otherwise
this might engage the resources of the state quite unjustifiably in dealing with
hopelessly impractical ventures eventually aborted
or abandoned. Prospective
students invited to such institutions might in those circumstances also be
prejudiced. The state has
a positive interest in ensuring that the execution of
the right which is being asserted is practicable in the circumstances. The
right
of private persons to establish educational institutions, protected by section
32(c), should therefore be subject to the qualification
that it is practicable.
If it is not, the persons exercising such a right cannot assert the protection
of the Constitution against
the state. The requirement of practicability is
therefore sensible on both interpretations of section 32(c). It is of neutral
value
in the proper interpretation of the sub-section. It does not support the
interpretation contended for by Mr Maritz and Mr Raath
any more than it supports
the interpretation contended for by Mr Trengove, on behalf of the Gauteng
government.
[12] It was also contended that section 32(c) could not have been intended to
protect merely the freedom of every person to establish
educational institutions
based on a common culture, language or religion because the right of every
person to use the language and
to participate in the cultural life of his or her
choice was in any event protected by section 31 of the Constitution and
similarly
the right to freedom of religion was guaranteed by section 14. I am
not persuaded, however, that a positive obligation on the state
to establish
educational institutions based on a common culture, language or religion can
necessarily be inferred from the fact that
the right of every person to use the
language and to participate in the cultural life of his or her choice is
expressly protected
in section 31 or from the fact that freedom of religion is
protected by section 14. Sections 14 and 31 are general sections which
do not
specifically deal with education. Section 32 is a specific section setting out
specifically what rights a person has to
education, what right he or she has to
education in the language of his or her choice and what right there exists for
every person
to establish educational institutions based on a common culture,
language or religion. None of these rights are expressly dealt
with in sections
14 and 31. It is perfectly understandable that the lawmaker would wish to
articulate such educational rights in
the section dealing specifically with
education.
[13] In the written argument which was lodged on behalf of the petitioners, some
reliance was placed on Canadian
authority.
[2]
We were reminded of
section 35(1) of the Constitution which provides that in the interpretation of
Chapter 3 of the Constitution,
a court of law may,
inter alia
, have
regard to comparable foreign case law and we were referred to various
dicta
in a number of Canadian cases to the effect that the Canadian
Charter of Rights and Freedoms imposed obligations on the Government
to provide
specific opportunities for the use of English and French in
schools.
[3]
[14] The relevant provision of the Canadian Charter is section 23 which provides
that:
“23.
(1) Citizens of Canada
(a) whose first
language learned and still understood is that of the English or French
linguistic minority population of the province
in which they reside, or
(b) who have received their primary school instruction in Canada in English
or French and reside in a province where the language
in which they received
that instruction is the language of the English or French linguistic minority
population of the province,
have the right to have their children receive
primary and secondary school instruction in that language in that province.
(2) Citizens of Canada of whom any child has received or is receiving primary or
secondary school instruction in English or French
in Canada, have the right to
have all their children receive primary and secondary school instruction in the
same language.
(3) The right of citizens of Canada under subsections (1) and (2) to have their
children receive primary and secondary school instruction
in the language of the
English or French linguistic minority population of a
province
(a) applies wherever in the
province the number of children of citizens who have such a right is sufficient
to warrant the provision
to them out of public funds of minority language
instruction; and
(b) includes, where the number of those children so warrants, the right to
have them receive that instruction in minority language
educational facilities
provided out of public funds.”
“The special provisions of section 23 of the Charter makes it a unique set
of constitutional provisions quite peculiar to
Canada.”
[4]
[15] The language and structure of section 23 of the Canadian Charter are wholly
distinguishable from section 32(c) of our Constitution.
Section 23 of the
Canadian Charter is clearly concerned with the obligation of the Government to
provide education in the official
languages of Canada to linguistic majorities
and minorities. It is analogous to section 32(b) of our Constitution, but very
different
from section 32(c). The interpretation accorded to it by the Canadian
courts can therefore be of scant assistance in the proper
interpretation of
section 32(c) of our Constitution.
[16] After oral argument had been concluded and judgment had been reserved in
this matter, a written application was made on behalf
of the Foundation to
advance three further contentions. The first contention was that the bill
“offered no language protection
for minorities” and that all that
was being offered was some kind of protection by way of executive policy and
discretion in
terms of section 18(2)(c) of the bill which provides
that-
“[s]chool language policy should be designed to facilitate the maximum
participation of learners in the learning
process.”
Counsel for the Foundation appears to have misunderstood the argument advanced
on behalf of the Gauteng government. It was never
contended that learners
wishing to be instructed in the language of their choice at public schools
funded by the state should have
to depend on some kind of executive policy or
discretion for the protection of that right. It is a clear constitutional right
of
every person to be instructed in the language of his or her choice in terms
of section 32(b). This is guaranteed by the clear language
of section 32(b).
The only qualification is that it must be “reasonably practicable.”
If it is, it can be demanded
from the state. The parents of the children who
demand it do not have to rely on any executive policy or discretion. They are
entitled
to rely on the plain and imperative terms of the Constitution
itself.
[17] The second complaint contained in the additional submission on behalf of
the Foundation was that the bill does not provide for
any “possible
transformation from a model C school to a private school”. Assuming that
this is correct, I am unable
to appreciate how this could impact upon the
constitutionality of any of the impugned provisions of the bill at all. Those
who controlled
model C schools would continue to enjoy the right for every
person to be instructed in such schools in the language of their choice.
If
they did not wish their children to attend model C schools but to attend private
schools, they would again constitutionally be
entitled to establish such private
schools and even to negotiate with the province in acquiring any of the
facilities or assets of
any model C school which they wished to leave. But
whether they did or did not do so, what is left quite intact are two clear
constitutional
rights: the right to instruction at a public school in the
language of their choice and the right to establish schools of their own
based
on a common culture, language or religion. The only qualifications are that the
exercise of such rights must be practicable
in each case and that the right to
establish educational institutions based on a common culture, language or
religion cannot be exercised
in a manner that discriminates against pupils on
the grounds of race.
[18] The third and final argument advanced in the new submissions on behalf of
the Foundation was that the impugned provisions constitute
“a negation of
the protected minority rights themselves” in terms of section 33 of the
Constitution. I do not appreciate
this argument. Section 33 simply deals with
the circumstances under which rights protected by chapter 3 of the Constitution
may
be limited by laws of general application. If, however, the impugned
sections of the bill do not invade or limit any of the relevant
sections of
chapter 3, the question as to whether there would have been any justification in
terms of section 33 would not arise
at all.
[19] What remains therefore the real case for the petitioners and the Foundation
is their interpretation of section 32(c). Having
regard to the language of
section 32(c), its objects and its context, both in relation to section 32
itself and to the Constitution
generally as well as its specific historical
context, I am satisfied that section 32(c) is not reasonably capable of bearing
the
interpretation sought to be placed on it by Mr Maritz and by Mr Raath.
Section 32(c) does, of course, protect a very important freedom.
The state is
constitutionally obliged to respect that freedom, but is not so obliged to
establish educational institutions based
on a commonality of culture, language
or religion. This conclusion effectively disposes of the main thrust of the
attacks made on
the impugned provisions of the bill.
[20] Mr Maritz contended, however, that there was a “peripheral”
ground for attacking section 22(3)(b) of the bill which
was not dependant on his
interpretation of section 32(c). The complaint was that section 22(3)(b)
conferred a right on a private
school to insist that a learner at that school
attends religious classes and religious practice at that school. It was argued
that
this was also a right which should accrue at a public school. Even if this
argument is a good argument, it cannot assist the case
sought to be made on
behalf of the petitioners and the Foundation. The case sought to be made on
their behalf was that this right
should also be available at public schools to
avoid discrimination. No constitutional ground was suggested which could
entitle us
to extend to public schools the right accorded by section 22(3)(b) to
private schools. The alternative would be to invalidate section
22(3)(b)
because it does not extend to public schools. This is, however, not what Mr
Raath or Mr Maritz urged us to do because
that would not in any way provide a
right for a public school to insist that a learner attends religious classes and
religious practices
at the school. In any event, the submission that public
schools must be allowed to insist that a learner be compelled to attend
religious
classes and religious practices at the school might also conflict with
section 14(2) of the Constitution, which expressly provides
that such attendance
must be free and voluntary. Faced with all these difficulties, Mr Maritz did
not press the objection to section
22(3)(b) and correctly contended that the
heart of his case rested on his interpretation of section
32(c).
[21] Although the certificate from the Speaker, lodged in terms of rule 13(3) of
the Rules of Court, did not rely on section 247
of the Constitution as a ground
of attack on the impugned sections, considerable reliance on that section was
placed by Mr Raath,
on behalf of the Foundation. Section 247 reads as
follows:
“247. Special provisions regarding existing educational
institutions
(1) The national government and the provincial governments as provided for in
this Constitution shall not alter the rights, powers
and functions of the
governing bodies, management councils or similar authorites of departmental,
community-managed or state-aided
primary or secondary schools under laws
existing immediately before the commencement of this Constitution unless an
agreement resulting
from
bona fide
negotiation has been reached with such
bodies and reasonable notice of any proposed alteration has been given.
(2) The national government shall not alter the rights, powers and functions of
the controlling bodies of universties and technikons
under laws existing
immediately before the commencement of this Constitution, unless agreement
resulting from
bona fide
negotiation has been reached with such bodies,
and reasonable notice of any proposed alteration has been given.
(3) Should agreement not be reached in terms of subsection (1) or (2), the
national government and the provincial governments shall,
subject to the other
provisions of this Constituton, not be precluded from altering the rights,
powers and functions of the governing
bodies, management councils or similar
authorities of departmental, community-managed or state-aided primary or
secondary schools,
as well as the controlling bodies of universities and
technikons, provided that interested persons and bodies shall be entitled to
challenge the validity of any such alteration in terms of this Constitution.
(4) In order to ensure an acceptable quality of education, the responsible
government shall provide funds to departmental, community-managed
or state-aided
primary or secondary schools on an equitable
basis.”
[22] It was contended by Mr Raath that section 19(1) of the bill was
unconstitutional because it had the effect of altering the rights,
powers and
functions of the governing bodies of certain schools which had existed before
the commencement of the Constitution and
there had been no agreement resulting
from any
bona fide
negotiations conducted with any such bodies pursuant
to the requirements of section 247(1). It was contended, in particular, that
before the commencement of the Constitution, the governing bodies of model C
schools had the power to determine that there was to
be language competence
testing as an admission requirement to a public school and that section 19(1)
had the effect of altering that
right.
[23] My first difficulty with this argument is that it is not supported by the
relevant legislation which preceded the Constitution.
The Education Affairs Act
of the House of Assembly No 70 of 1988 (“the principal Act”), which
was the relevant law existing
immediately before the commencement of the
Constitution, provided, in section 49, that the admission of persons to public
schools
and state-aided schools should be subject to prescribed conditions.
Section 50 dealt with age requirements; section 52 dealt with
the power of
school boards in relation to the admission of children; section 53 determined
compulsory school attendance; section
54 determined exemption from such
compulsory school attendance; and section 55 determined how the mother-tongue
of a child admitted
to school should be determined. Section 57 provided that
the mother-tongue of the child would be its medium of instruction up to
certain
levels. All the basic criteria for admission pertaining to age, readiness for
school, language, medium of instruction and
geographical feeder areas were all
matters regulated by the state in terms of the statute. The input of parent
bodies on this issue
was largely peripheral. Language proficiency testing, as
an admission requirement, was certainly competent, but was clearly in the
hands
of the state in terms of this statute. This was not a function of any parent
body or of any governing body in which parents
were represented. It was the
principal who determined the mother-tongue of the child admitted to school for
the first time in terms
of section 55(1). If the principal could not, it was
the person designated by the Head of Education who caused such a determination
to be made in terms of section 55(4) and an appeal against any such
determination was to the Head of Education and the Minister,
in terms of section
56. Such determination fixed the child’s medium of instruction up to the
ninth level in terms of section
57(1)(b). Section 58 empowered the Minister to
designate the medium of instruction at public schools. Parents on
“governing”
bodies had no powers or functions in this regard and
none were provided in the regulations which were published in 1990 in Government
Notice R703 of 30 March 1990. Admission policy in regard to public schools
remained, clearly, a governmental function.
[24] The principal Act was amended on numerous occasions thereafter. The first
amendment was effected by Act 88 of 1991, which
made provision for
“state-aided schools”, (which are also known as model C schools).
Governing bodies for such schools
were created and their powers, functions and
duties were defined in certain regulations published under the principal Act in
Government
Notice R2932 of 6 December 1991. Nothing in these regulations
empowered the governing bodies concerned either to determine or alter
any
criteria for the admission of pupils to their schools, in terms of the principal
Act.
[25] Prior to the commencement of the Constitution the principal Act was again
amended by Act 39 of
1992, Act 36
of
1993, Act 139
of 1993 and Act 162 of 1993.
The amendments that are relevant to the present discussion provided for the
conversion of existing
public schools into model C schools by ministerial edict,
gave to model C schools a juristic persona in terms of section 30(1), empowered
such schools to acquire the ownership of school assets in terms of section 31(A)
and put these schools generally under the “management,
control and
executive power” of their governing bodies in terms of section 31(1). In
terms of section 31(2) (read with section
19(1)) the Minister could make
regulations with respect to “the constitution, powers, duties and
functions” of such bodies.
Neither the principal Act nor any of the
amendments conferred any power on the Minister to make any such regulations in
conflict
with the principal Act. More pertinently, none of the amendments
effected any change to the regime described in paragraph 23
above.
[26] The last of the legislative steps to be considered is the promulgation on
14 February 1992 of the “
Amendment of Regulations Relating
to Governing
Bodies of State-aided Schools...” in terms of Government Notice R441. This
instrument amended
regulation 6
of the previous regulations pertaining to
state-aided schools, published under Government Notice R2932 of 6 December 1991,
by inserting,
after the existing
regulation 6(4)
, new
regulations 6(5)
and
6
(6),
which read as follows:
“(5) A governing body may, after consultation with the parent community
and subject to the provisions of the Regulations Relating
to the Conditions of
Admission of Pupils to Public Schools (Excluding Industrial and Reform Schools)
and State-aided Schools, promulgated
by Government Notice No. R703 of 30 March
1990, determine criteria for the admission of pupils to a state-aided
school.
(6) A governing body may levy school fees and enforce payment
thereof.”
[27] Read in isolation, this regulation may very well have created the
impression that what was being conferred on governing bodies
was some
“autonomous” right to determine criteria for the admission of pupils
to model C schools and this impression
may well have informed the submission by
Mr Raath that this autonomous authority was being altered in terms of the
impugned provisions
of the bill without the
bona fide
negotiations
contemplated by section 247(1) of the Constitution. That impression is,
however, quite incorrect because the regulations
made by the Minister could not,
and did not purport to, change sections 49 to 58 of the principal Act in terms
of which the basic
criteria for a child’s admission to a particular school
and various other related matters pertaining to policy were predetermined
and
fell outside the jurisdiction of any parent organisation or governing body.
Such bodies simply had no power to fix a lower age
for the admission of pupils
to schools than the age already fixed by section 50(c) of the principal Act,
they had no power to admit
to a school a learner older than the limit which was
set out in section 50(e) and with respect to feeder areas, they could not be
given any authority which vested with school boards under section 52. More
crucially, the Minister was not entitled to vest a governing
body of a school
with any authority to determine the medium of instruction of a learner or
prospective learner of a school, because
that power had, in terms of sections 55
to 58 of the principal Act, been vested in others and at all times remained so
vested.
[28] During some stage in his argument Mr Raath also contended that because a
principal of a model C school was an
ex officio
member of the governing
body, the governing body could, in effect, have exercised the autonomy now said
to be invaded by section
19(1) of the bill. I have difficulty with that
submission. The principal is not the governing body and even if the two were to
be equated, the governing body cannot exercise any powers in conflict with the
principal Act.
[29] In the result, I am not persuaded that the governing body of a model C
school had in fact any relevant right, power or function
which section 19(1) of
the bill could be said to be altering and the attack on section 19(1) on this
ground must therefore fail.
[30] In any event, I have another difficulty with Mr Raath’s argument
based on section 247(1) of the Constitution. It is necessary
to have regard to
sections 97(3) and (5) of the bill which read as
follows:
“97. (3) Notwithstanding any other provision of
this Act, but subject to subsection (4) and (5), a body referred to in
subsection
(1) or a governing body which succeeds it in terms of subsection (2)
shall continue to exercise whatever rights, powers and functions
the body
referred to in subsection (1) exercised on 27 April 1994.
(4) ...
(5) The rights, powers and functions contemplated in subsection (3) may be
altered by law after negotiations contemplated in section
102 over such
alterations have taken place.”
The effect of sections 97(3) and (5) is therefore to entitle the governing body
of a school to continue to exercise whatever rights,
powers and functions it
exercised on 27 April 1994. These powers could only be altered after
negotiations contemplated in section
102 over such alterations had taken place.
Section 102(1) of the bill provides that:
“102. (1) For the
purposes of facilitating negotiations between the department and governing
bodies as contemplated in section
247(1) of the Constitution, the Member of the
Executive Council may by notice in the
Provincial Gazette
establish a
centralised negotiating forum at which negotiations over the alteration of the
rights, powers and functions of such bodies
shall take place.”
What section 247 protects is the right of governing bodies of schools and other
similar bodies to continue to exercise the rights,
powers and functions which
they had before the commencement of the Constitution. Such rights cannot be
altered unless an agreement
has been reached resulting from
bona fide
negotiations. Sections 97(3) and (5) of the bill continue that protection.
Section 102 merely creates the opportunities and the
infrastructure for the
conduct of the
bona fide
negotiations which must precede any such
alteration in the rights, powers and functions exercised before the commencement
of the
Constitution. The bill is therefore not inconsistent with any right
protected by section 247 of the Constitution.
[31] Confronted with this difficulty, Mr Raath contended that the provincial
government had effectively precluded any
bona fide
negotiations by
deciding in advance to enact the impugned provisions of the bill into an Act,
although these provisions have not
yet been put into operation by the
Premier.
[32] There can, in my view, be no doubt that the
bona fide
negotiations
which are contemplated by section 247, are negotiations which must be conducted
with the object of reaching an agreement
and if the provincial government in
fact has no such intention and is determined to put the impugned provisions of
the Act into operation
regardless of the quality and nature of the negotiations
and the outcome thereof, it is vulnerable to the attack that it has no intention
whatever of conducting
bona fide
negotiations for the purposes of
reaching such an
agreement.
[5]
[33] My difficulty is to infer from the existing evidence before us any
justifiable conclusion that the provincial government has
indeed precluded the
possibility of
bona fide
negotiations with the relevant bodies with the
object of reaching an agreement such as that contemplated in section 247(1). It
is
perfectly true that the impugned sections have been enacted, but they have
deliberately not been put into operation and may, in fact,
never become
operative. It might be true to say that the provincial government favours the
policies upon which the disputed provisions
are premised, but I am unable, on
the evidence before us, to conclude that such policies are inflexible and will
be implemented at
every model C school, regardless of the circumstances and
regardless of what emerges during the course of any negotiations in the
centralized negotiating forum, now contemplated in terms of section 102(1) of
the bill. There is nothing which obliges the provincial
government from
favouring a general policy as long as it is not so inflexible as to preclude a
departure from that policy, if this
is justified by the
circumstances.
[6]
[34] It therefore follows that the evidence does not support the objection to
the bill based on the requirements of section 247(1)
of the
Constitution.
[35] These conclusions make it unnecessary to consider whether or not Mr
Trengove is correct in his submission that section 247(1)
only operates as a
restriction on the power of the executive and the consequential submission that
because the impugned provisions
of the bill are acts of the legislature and not
that of the executive, section 247(1) cannot be invoked to assist the case
sought
to be made by Mr Raath. Even assuming the incorrectness of that
submission, the attack on the impugned sections must fail for the
reasons which
I have analysed.
[36]
Costs
It was submitted by Mr Trengove that the costs of the proceedings before us
should be paid by the petitioners if they are unsuccessful
in their attack on
the impugned provisions. We were referred, in this regard, to the well-known
rule in the Supreme Court that ordinarily,
and subject to the discretion of the
Supreme Court, costs should follow the result and the losing party should be
directed to pay
the costs of the successful
party.
[7]
There are obviously
attractive grounds of policy which support such an approach in ordinary
litigation between litigants in the
Supreme Court and in the Magistrates’
Courts. It does not follow, however, that it should also be the general rule in
the
Constitutional Court and more particularly the rule in cases brought to the
Constitutional Court in terms of section 98(9) of the
Constitution at the
request of the Speaker. A litigant seeking to test the constitutionality of a
statute usually seeks to ventilate
an important issue of constitutional
principle. Such persons should not be discouraged from doing so by the risk of
having to pay
the costs of their adversaries, if the Court takes a view which is
different from the view taken by the petitioner. This, of course,
does not mean
that such litigants can be completely protected from that risk. The Court, in
its discretion, might direct that they
pay the costs of their adversaries if,
for example, the grounds of attack on the impugned statute are frivolous or
vexatious or they
have acted from improper motives or there are other
circumstances which make it in the interest of justice to direct that such costs
should be paid by the losing party. I am satisfied that no such factors exist
in the present case. In the result I would, in the
circumstances of the present
case, make no order of costs notwithstanding the fact that the record was
unjustifiably burdened by
a large number of unnecessary documents lodged on
behalf of the petitioners.
[37]
Order
It is declared that sections 19(1), 21(2), 21(3)and 22(3) of the School
Education Bill of 1995 are not inconsistent with the Constitution
on any of the
grounds advanced on behalf of the petitioners and the South African Foundation
for Education and Training.
I MAHOMED
DEPUTY
PRESIDENT
Chaskalson P, Ackermann J, Didcott J, Kentridge J,
Langa J, Madala J, Mokgoro J and O’Regan J concur in the judgment of
Mahomed
DP.
[38]
KRIEGLER R
: Ek is dit volmondig eens met Mahomed AP se kliniese
ontleding, en gevolglike verwerping, van die betoΝ namens die
petisionarisse
en die
amicus curiae
onderskeidelik. In die breΝ
beaam ek ook die meer histories-volkeregtelike gedagtetrant en slotsom van Sachs
R. Elkeen van
die gemelde uitsprake is op sy eie ‘n volslae
loΝnstraffing van die aanvalle op die gewraakte wetsbepalings. Gesamentlik
is hul verdoemend.
[39] Nietemin is daar enkele aspekte wat ek spesifiek wil toelig. Taal - en by
name die behoud van Afrikaans - ontlok diepgewortelde
emosie. Daarom is dit
lewensnoodsaaklik dat daar nugter en oorwoΝ gelet word op die implikasies
van hierdie saak. Subartikel
32(c) van die Grondwet dra weliswaar nie die
breΝ betekenis wat die petisionarisse en die
amicus
daaraan wou heg
nie. Dit is en bly egter ‘n skans teen verswelging van enige minderheid
se gemeenskaplike kultuur, taal of
godsdiens. Solank ‘n minderheid
daadwerklik wagstaan oor sy gemeenskaplike erfgoed, solank is dit sy
onvervreembare reg om
eie onderwysinstellings ter behoud van kultuur, taal of
godsdiens tot stand te bring.
[40] Daar is egter twee belangrike voorbehoude. Ten eerste is die slotwoorde
van die betrokke subartikel ondubbelsinnig; daar mag
geen diskriminasie op grond
van ras wees nie. Die Grondwet bied dus geen beskerming vir rassevooroordeel op
die onderwysterrein
nie. ‘n Gemeenskaplike kultuur, taal of godsdiens
met rassisme as ‘n wesenselement het geen konstitusionele aanspraak
op die
vestiging van afsonderlike onderwysinstellings nie. Die Grondwet beskerm
verskeidenheid nie rassediskriminasie nie.
[41] Ten tweede moet daar duidelik ingesien word waaroor die debat in hierdie
saak werklik gaan. Subartikels (a) en (b) van artikel
32 van die Grondwet
boekstaaf en bevestig die reg van iedereen op basiese onderwys, gelyke toegang
tot onderwysinstellings en, waar
redelikerwys uitvoerbaar, onderrig in die taal
van die leerling se keuse. Daartoe is die owerheid grondwetlik verplig. Die
maatstaf
van redelike uitvoerbaarheid is wel rekbaar - soos dit noodwendig moet
wees om ruimte te laat vir ‘n groot verskeidenheid omstandighede.
Dit is
egter objektief beoordeelbaar, wat beteken dat owerheids-willekeur deur die howe
aan bande gelΛ kan word. Betekenisvolle
getalle taalsprekers het gevolglik
‘n afdwingbare reg teenoor die owerheid op onderrig in hul gemeenskaplike
taal solank dit
maar redelikerwys uitvoerbaar is.
[42] Daarop brei subartikel 32(c) dan uit. Soos my kollega Mohomed AP aandui -
en ek wil onderstreep - hou die Grondwet daarmee
die deur oop vir diegene vir
wie die staat se onderwysinstellings ontoereikend geag word wat betref
gemeenskaplike kultuur, taal
of godsdiens. Dit staan hul vry om eendragtig die
erwe van hul vaders vir hul kinders te behou. Daar is egter ‘n prys,
naamlik
dat so ‘n bevolkingsgroep daarvoor die hand in eie sak moet steek.
In ‘n sin gaan die huidige geskil dus nie om volksgoed
nie maar om
geld.
[43] Die betoog rondom artikel 247(1) van die Grondwet is dan ook nie daarvan
los te maak nie. Ontdoen van al die voorhangsels,
gaan dit grondliggend om die
vraag of ryklik bedeelde Model C-skole hul eksklusiewe identiteit sal kan behou.
Die regsantwoord daarop
het Mahomed AP ondubbelsinnig verstrek. Die
beheerliggame van Model C-skole het voor die inwerkingtrede van die Grondwet
geen wetlike
bevoegdheid gehad om voorgenome skooltoetreders deur middel van
‘n taaltoets te sif nie. Bygevolg doen artikel 19(1) van die
wetsontwerp
niks af aan enige grondwetlik beskermde bevoegdheid nie. Dit beteken egter
geensins dat onderhandelings oor toelatingskriteria
vir Model C-skole regtens
verbied word nie. Of samesprekings in wedersyds goeie trou aangewese is, is
‘n maatskaplik-politieke
beleidsvraag waaroor ek my nie uitlaat nie. Wat
die reg betref, is daar geen onduidelikheid nie. Daarom stem ek saam met die
uitspraak
en bevel soos deur Mahomed AP verwoord.
JC
KRIEGLER
[44]
SACHS
J
: A straightforward reading of the text of section
32 of the Constitution runs directly counter to the arguments advanced by
counsel
for the Petitioners and the amicus curiae. We were urged, however, to
approach the section in a broad and generous
manner
[8]
which took account both of
cultural realities in this country and of internationally recognised principles
relating to the protection
of
minorities.
[9]
In view of the
importance of the broader questions argued by the Petitioners in relation to
minority rights, I propose to follow
their argument through to see if applying
internationally accepted principles of minority rights protection, would indeed
suggest
a different result, even if straining against the text. Preliminary
though my explorations have to
be,
[10]
I am left in no doubt as to
the answer to the above question. Thus, my answer, and the reasons therefor,
follow.
I. THE BROAD SOUTH AFRICAN CONTEXT OF THE
ENQUIRY
[45] Before touching on the evolution of international law principles in
relation to minority rights, I feel it would be appropriate
to locate the
problem before us in a broad South African historical/constitutional context.
For the purpose of this analysis I will
begin by making four assumptions in
favour of the Petitioners.
[46] The first assumption is that the “never again” principle, which
I feel should be one of our guides to interpretation,
applies not only to bitter
experiences of former state enforced segregation, but also to those of past
compulsory assimilation. This
was a major theme at the National Convention held
to draft the document which became the Constitution of the Union of South Africa
in 1910.
[11]
[47] The second assumption is that the Afrikaans language, like all languages,
is not simply a means of communication and instruction,
but a central element of
community cohesion and identification for a distinct community in South
Africa.
[12]
We are accordingly
dealing not merely with practical issues of pedagogy, but with intangible
factors, that as was said in
Brown v Board of Education of
Topeka
[13]
, form an important
part of the educational endeavour. In addition, what goes on in schools can
have direct implications for the
cultural personality and development of groups
spreading far beyond the boundary fences of the schools
themselves.
[14]
[48] The third assumption is that there exists amongst a considerable number of
people in this country a genuinely-held, subjective
fear that democratic
transformation will lead to the down-grading, suppression and ultimate
destruction of the Afrikaans language
and the marginalisation and ultimate
disintegration of the Afrikaans-speaking community as a vital group in South
African society.
[49] The fourth assumption is that the Afrikaans language is one of the cultural
treasures of South African national life, widely
spoken and deeply implanted,
the vehicle of outstanding literature, the bearer of a rich scientific and legal
vocabulary and possibly
the most creole or “rainbow” of all South
African tongues. Its protection and development is therefore the concern
not
only of its speakers but of the whole South African
nation.
[15]
In approaching the
question of the future of the Afrikaans language, then, the issue should not be
regarded as simply one of satisfying
the self-centred wishes, legitimate or
otherwise, of a particular group, but as a question of promoting the rich
development of an
integral part of the variegated South African national
character contemplated by the Constitution. Stripped of its association with
race and political dominance, cultural diversity becomes an enriching force
which merits constitutional protection, thereby enabling
the specific
contribution of each to become part of the patrimony of the
whole.
[16]
[50] At the same time, these assumptions have to be located in the context of
three important considerations highlighted by the Constitution.
[51] In the first place, similar claims for constitutional regard can be made by
ten or more other language
communities,
[17]
claims which could
be weaker in some detailed respects than those made on behalf of Afrikaans, and
very much stronger in others.
It was evident from the intensity with which the
matter was presented by some of the Petitioners that it represents an issue of
deep meaning to them. One may accept that even abstract questions of law have to
be considered in the concrete context of history,
and we can not ignore the
fact, urged upon us by counsel, that, although the words of the Constitutional
text are generalised, they
are also suffused with specific and (frequently
contradictory) life experiences. Yet, even if the poignancy of history flows
through
the veins of the Constitution, we must always be guided by the words and
spirit of the constitutional text itself, supporting, not
this group or that,
but the values articulated by the Constitution. In interpreting clause 19 of the
Gauteng Education Bill in the
light of section 32 of the Constitution, the
rights of certain members of the Afrikaans-speaking community, therefore, cannot
be
considered in isolation from equally valid claims of members of other
language groups. The very concept of multi-culturalism has
to be looked at in a
multi-cultural
way.
[18]
[52] The second consideration is that immense inequality continues to exist in
relation to access to education in our country. At
present, the imperatives of
equalising access to education are strong, and even although these should not go
to the extent of overriding
constitutionally protected rights in relation to
language and culture, they do represent an important element in the equation.
The
theme of reducing the discrepancies in the life chances of all South
Africans runs right through the Constitution, from the forceful
opening words of
the preamble to the reminder of the past contained in the powerful postscript.
The very first fundamental right
to be specified, preceding even the rights to
life and dignity, is the right to
equality.
[19]
We are further
enjoined to interpret the whole of Chapter 3, including section 32, in a way
which promotes the values of an open
and democratic society based on freedom and
equality.
[20]
The theme of
diversity has markedly less constitutional pungency. There are express language
rights
[21]
, a general right to use
the language or participate in the cultural life of a person’s
choice,
[22]
the provision on
educational rights under discussion and, looking to the future, Principle XI,
which declares that the diversity
of language and culture shall be acknowledged
and protected, and conditions for their promotion shall be encouraged. Thus,
the
dominant theme of the Constitution is the achievement of equality, while
considerable importance is also given to cultural diversity
and language rights,
so that the basic problem is to secure equality in a balanced way which shows
maximum regard for diversity.
[23]
In my view, the Constitution should be seen as providing a bridge to accomplish
in a principled yet emphatic manner, the difficult
passage from State protection
of minority privileges, to State acknowledgement and support of minority rights.
The objective should
not be to set the principle of equality against that of
cultural diversity, but rather to harmonise the two in the interests of both.
Democracy in a pluralist society should accordingly not mean the end of cultural
diversity, but rather its guarantee, accomplished
on the secure bases of justice
and equity.
[53] The third important contextual consideration is that the Constitution
requires us ever to be vigilant in protecting the rights
of the child. Section
30(3) of the Constitution states:
30. Children
...
(3) For the purpose of this section a child shall mean a person under the age
of 18 years and in all matters concerning such child
his or her best interest
shall be paramount.
The Constitution therefore requires us to take into consideration not only the
interests of the parents, which may be unduly rooted
in the past, but to give
paramount place to the interests of the child, which may require looking more to
the future. Each child
is unique, and each child is entitled to a good
education, independently of what might in any particular case be the motives or
passions
of his or her parents or of the parents of other
children.
[24]
Article 26(2) of the
Universal Declaration of Human Rights of 1948 lists four objectives for
education:
(1) the full development of the human personality;
(2) strengthening of respect for human rights and fundamental freedoms;
(3) the promotion of understanding, tolerance and friendship among all nations,
racial or religious groups;
(4) the furtherance of the activities of the UN for the maintenance of
peace.
To these, Article 13(1) of the International Covenant on Civil and Political
Rights (ICCPR) of 1966 adds three more:
(5) the development of the sense of human dignity;
(6) enabling all persons to participate effectively in a free society;
(7) the promotion of understanding, tolerance and friendship among ethnic
groups.
[54] It is against this background that I propose to look at universally
accepted principles of international law to see what bearing,
if any, they could
have on the interpretation of section 32, more particularly of section
32(c).
II. THE INTERNATIONAL LAW CONTEXT
[55] A review of literature by leading authors in the field suggests that over
the years there has been a firm movement from the
concept of tolerance of
religious and other minorities, to that of protection of national groups, to
that of guaranteeing rights
of individuals. The question that remains is whether
there is a current trend towards supplementing individual rights, expressed
mainly by the principles of non-discrimination and equality, with additional
group rights claimable against the State in the form
of obligatory State support
for fostering cultural, linguistic and religious diversity.
League of Nations
[56] The development under the League of Nations after World War I of a system
of treaties in Eastern Europe, enforced by the Permanent
Court of International
Justice, is often regarded as the effective beginning of the international
protection of human rights.
[25]
Through the treaty system a breach was made into rigid state sovereignty, in
terms of which international law had been concerned
strictly with relations
between states, and not with relations between states and entities or
individuals within their
borders.
[26]
The emphasis at that
stage was on protecting the group rights of minorities, rather than on
guaranteeing the rights of individuals
as such. In general, the treaties and
minority provisions in peace treaties were intended to achieve two aims: (a) to
grant legal
equality to individuals belonging to minorities, on a par with other
nationals of the State; and (b) to make possible the preservation
of the
group’s characteristics, traditions and modalities.
[57] This double purpose was clearly stated by the Permanent Court of
International Justice in its Advisory Opinion on the subject
of (Greek) Minority
Schools in Albania, handed down on 6 April 1935. The issue was a decision of the
Albanian Government to close
all private schools. The Court declared that the
Government’s decision would affect the material equality of the
minorities.
It said:
The idea underlying the treaties for the
protection of minorities is to secure for certain elements incorporated in a
State, the population
of which differs from them in race, language or religion,
the possibility of living peacefully alongside that population and co-operating
amicably with it, while at the same time preserving the characteristics which
distinguish them from the majority, and satisfying
the ensuing special
needs.
In order to attain this object, two things were regarded as particularly
necessary, and have formed the subject of provisions in these
treaties.
The first is to ensure that nationals belonging to racial, religious or
linguistic minorities shall be placed in every respect on
a footing of perfect
equality with the other nationals of the State.
The second is to ensure for the minority elements suitable means for the
preservation of their racial peculiarities, their traditions
and their national
characteristics.
These two requirements are indeed closely interlocked, for there would be no
true equality between a majority and a minority if the
latter were deprived of
its own institutions, and were consequently compelled to renounce that which
constitutes the very essence
of its being a
minority.
[27]
[58] The intractability of the subject and the inevitable overlap of law and
politics led one author to observe that as far as redress
of grievances was
concerned, the League was quite effective on the small issues and everyday
frictions, but failed to solve the wider
problems of peaceful living and
amicable co-operation - ultimately, what could not be achieved by persuasion and
mediation could
not be achieved at
all.
[28]
A harsher cautionary
observation by someone who lived through the period was that the problem of
minorities in Europe was solved
not by the protection of the League, but largely
by spontaneous or enforced repatriation, by mass expulsions, and by mass
murder.
[29]
United Nations
[59] The main trend after World War II was to eliminate the concept of
minorities rather than to protect them. The United Nations
Charter and the
Universal Declaration of Human Rights both focused on human rights for
individuals and not on group protections for
minorities.
[30]
The new approach
was that, whenever someone’s rights were violated or restricted because of
a group characteristic - race,
religion, ethnic or national origin, or culture -
the matter could be taken care of by protecting the right of the individual, on
a purely individual basis, mainly by the principle of
non-discrimination.
[31]
[60] Twenty years were to pass before clear acknowledgement of minority rights
was to re-emerge in the form of Article 27 of the
ICCPR. This Article, which was
heavily relied upon by the Petitioners in this case as supporting the generous
interpretation which
they sought for section 32(c), reads as
follows:
In those States in which ethnic, religious or linguistic minorities exist,
persons belonging to such minorities shall not be denied
the right, in community
with the other members of their group, to enjoy their own culture, to profess
and practise their own religion,
or to use their own language.
It should be noted that the rights are timidly expressed in two respects:
firstly, they are recognised in relation to individual
“persons belonging
to minorities”,
[32]
and not to
minorities as such, and, secondly, they are expressed in negative terms, that is
that the rights “shall not be
denied”.
[33]
Nevertheless,
despite its “nervousness in handling minorities’ issues”,
historically Article 27 represented the
first international norm dealing
specifically with rights for ethnic, religious and linguistic groups that were
capable of, and intended
for, universal application.
[61] With a view to furthering the principles contained in Article 27, Dr.
Francesco Capotorti was appointed Special Rapporteur of
the United Nations
Sub-Commission on the Prevention of Discrimination and Protection of Minorities.
The definition given by Dr. Capotorti
on what constitutes a minority is still
the most widely quoted one
today.
[34]
In the context of the
application of Article 27 he gave the following formulation:
(a) group which is numerically inferior to the rest of the population of a State
and in a non-dominant position, whose members possess
ethnic, religious or
linguistic characteristics which differ from those of the rest of the population
and who, if only implicitly,
maintain a sense of solidarity, directed towards
preserving their culture, traditions, religion or
language.
[35]
[62] It is clear from the debates that the text of Article 27 was not intended
to imply that members of minorities had the right
to demand that the state
should adopt positive measures.
[36]
Thus, Article 27 does not contain any explicit reference to positive measures to
which the minority might be entitled. Proposals
for including in Article 27 a
list of concrete rights such as state supported schools for minorities or
language rights, in fact
failed.
[37]
Supporters of minority rights, such as Capotorti, Thornberry and Lerner,
contend, however, that in spite of its wording, a certain
‘programmatic’ element involving duties on the State must
necessarily be read into the Article.
[63] Capotorti, although acknowledging that Article 27 accorded rights only to
individuals, urges the adoption of a liberal interpretation
of the Article in
general. He contends that it would be superfluous if it only granted liberties
that could be adduced from other
provisions in the Covenants. In his view, mere
tolerance on the part of the State, without special rights, would not be
sufficient
to secure real
equality.
[38]
Thornberry suggests
that although Article 27 is contained in the ICCPR, which generally is cast in
such a way as to prohibit the
State from acting in a certain manner against
individuals, it is in reality similar to the typical rights set out in the
Covenant
on Cultural, Economic and Social Rights. Rights of this kind, he
argues, ring hollow without active and sustained state intervention
directed
towards their achievement. Thus, as in the case of rights to education and
health, the special rights of members of minority
communities would be deprived
of substantive content without a level of active support equivalent to that
provided to the majority
of the population. He suggests that Article 27 contains
a programmatic element particularly important in relation to enabling
marginalised
and disadvantaged groups to achieve real or substantive equality.
Depending on the particular circumstances, needs and desires of
minorities, such
a programme could include intervention to support schools, libraries and
museums, the means by which the culture
of one generation is transmitted to
another. Thornberry suggests that Article 27 should be seen as constituting at
most a framework
provision that needed to be supplemented by a clearer statement
of the rights and duties of
minorities.
[39]
[64] The initiative spearheaded by Capotorti, and supported by the other writers
quoted, was aimed at reasserting the importance
of group rights. It emerged,
however, that the great majority of states were far more interested in
assimilating their minorities
than in protecting
them.
[40]
Humphrey points out that
most government appointees on the Sub-Commission were opposed to the protection
of minorities and that even
in the working group there was objection to any
mention of the promotion of the ethnic, cultural, linguistic and religious
identity
of
minorities.
[41]
Current trends
[65] The authors cited are all supporters of recognition of minority rights,
eager to interpret Article 27 in as affirmative a manner
as possible. Even at
its strongest, however, they see it as a framework measure which has implicit in
it an incipient or embryonic
obligation on the State to pay regard to the needs
of cultural, linguistic and religious minorities. Thus, even on their most
benevolent
interpretation, it falls far short of imposing a firm duty on the
state to promote the separate development of minorities (as opposed
to the duty
of preventing discrimination against them, where there is a high level of
responsibility). It comes nowhere near supporting
a State duty to establish
separate schools, as argued for by the Petitioners in this case. On the
contrary, legislative history at
the United Nations suggests that such an
obligation was expressly considered and expressly rejected.
[66] There appears to have relatively little momentum at the United Nations in
the years following Capotorti’s report to revive
the initiative that he
embarked upon. Nevertheless, there has in recent years been some discernible
movement for recognition of the
rights not just of individuals but of distinct
groups in society, such as migrant workers and indigenous
peoples.
[42]
The impulse for this
trend appears to have been recognition of the plight of discrete disadvantaged
communities, rather than a generalised
support for State-backed cultural
diversity as such. At the same time, there has been increasing recognition of
the general importance
of pluralism and diversity, and acknowledgement of what
has been called “the right to be
different”,
[43]
which by its
very nature is a right claimed by those who do not wish to be assimilated into
the dominant culture or forced to live
their lives according to the dominant
norms.
[67] As part of this revival, the United Nations Human Rights Committee recently
issued a General Comment on Article
27.
[44]
According to the
Committee, the article is intended to ensure the survival and continued
development of the cultural, religious
and social identity of minorities.
Therefore the right granted by the article must be distinguished from other
personal rights conferred
on one and all under the Covenant. The Committee has
emphasized that the right is a right of individuals (held by persons
“belonging
to such minorities”), and should not be confused with the
collective right of peoples to self-determination. But, although
an individual
right, its exercise depends on the collective ability of the minority group to
maintain its culture, language or religion.
The right of a member is not
exercised alone. Rather, the enjoyment of culture, practice of religion, and use
of language presupposes
a community of individuals with similar rights.
Accordingly, the Committee argues, the article may require positive measures by
states
to protect the identity of a minority and the rights of its members to
enjoy and develop their culture in a community with other
members of their
group. Provided that these measures are aimed at correcting conditions that
prevent or impair the enjoyment of the
rights of members of minorities, they
will constitute a legitimate ground for differentiation and will comply with the
non-discrimination
requirements of the
Covenant.
[45]
[68] The situations are varied, but the common theme that runs through most of
the international documents on the subject is the
duty of the State to take
remedial action in relation to groups that have been subjected to different
forms of disadvantage. Thus,
Capotorti’s definition refers to groups which
are not only quantitavely in the minority, but also in a non-dominant position.
There are indications in his report that he was specifically concerned not to
accord any legitimation to the minorities which at
that time were in power in
Southern Africa.
[46]
To cater for
the situation where a majority group was in one way or another underprivileged
and in a non-dominant position, the terms
“sociological minority”
and “functional minority” were accordingly coined. Following on from
the state duty
to overcome the effects of past disadvantage, came recognition of
the fact that affirmative action in favour of disadvantaged groups
would not be
regarded as unlawful discrimination, and, on the contrary, could actually be
required.
III. BASIC PRINCIPLES OF MINORITY PROTECTION
LAW
[69] A rough survey of the current situation in international law suggests that
six interrelated principles enter the picture, with
varying degrees of relevance
and intensity, when the broad concept of protection of minorities comes into
play. They are i) the right
to existence, ii) non-discrimination, iii) equal
rights, iv) the right to develop autonomously within civil society, v)
affirmative
action, and vi) positive support from the state. The significance
of each and the way they are dealt with in our Constitution, with
special
reference to language rights, will be treated below.
[70] i)
The right to existence
. The United Nations Convention on the
Prevention and Punishment of the Crime of Genocide of 1948 clearly acknowledges
the right of
all national groups to physical existence. It is not so clear,
however, whether a right to independent cultural existence is also
recognised,
that is, whether or not there is a prohibition on what has been called cultural
genocide.
[47]
There is nothing in
the present case, however, to suggest that the challenged statutory provisions
form part of a programme calculated
to physically eliminate members of the
Afrikaans speaking community or to wipe out their culture. In South African
conditions today,
the group that would appear to have the greatest claim to
invoke any such right would be the San/Khoisan population, whose habitats
have
been taken away from them or else so ecologically despoiled that their survival
as a distinct cultural group can be said to
be in
peril.
[48]
It would, however, be
unwise to express any opinion on the subject, save to say that the present case
stems from the situation of
a community defending relative affluence and
privilege, rather than one combatting marginalisation and the imminence of group
annihilation.
[71] ii)
Non-discrimination.
This is the most enduring and powerful
principle to have emerged in relation to protection of minorities.
Sieghart
[49]
refers to it as perhaps
the strongest principle of all to be found in international human rights law.
It is central to the Universal
Declaration of Human
Rights,
[50]
the
ICCPR,
[51]
the European Convention
for the Protection of Human Rights and Fundamental Freedoms of
1950,
[52]
and many other
conventions. It precludes the State from discriminating on grounds regarded as
unfair or unjustifiable, and race,
language, religion and culture are
invariably contained in definitions of outlawed discrimination. It is to be
noted that various
international conventions not only oblige states not to
discriminate, but impose obligations on them to take steps to end
discrimination.
[53]
In the case of
South Africa, section 8(2) of the Constitution expressly itemises language,
culture and religion as constituting
prima facie
examples of
unjustifiable grounds of unfair discrimination. Thus, if persons were denied
access to school because they spoke Afrikaans,
or belonged to a cultural group
which identified itself as Afrikaner, they could claim a violation of their
constitutional rights.
Similarly, any person who was denied access to State
facilities because they did not speak Afrikaans or did not belong to the
self-constituted
Afrikaner community, could allege that their fundamental rights
were being infringed.
[72] iii)
Equal rights
. This is the other side of the non-discrimination
coin. It could have more affirmative connotations than non-discrimination,
however,
in that it could deal not merely with protection against exclusion, but
with entitlement to equal benefits and equal regard. This
becomes particularly
important if the objective is to achieve real rather than formal equality. Thus,
it is the equality principle
rather than the non-discrimination one which
becomes the foundation for special legal and other measures to assist groups
suffering
from
de facto
rather than
de jure
disadvantage. In
principle there is, of course, no fundamental distinction between the concept of
non-discrimination and that of
equal rights, and both are embodied in section 8
of our Constitution. As far as members of the Afrikaans-speaking community are
concerned,
they could complain if the State treated them less advantageously
than other groups; their claim to retain a privileged situation,
however, would
not have the same, or any, force.
[73] It is important to note that the principle of language equality is strongly
underlined in our Constitution. Section 3(1) expressly
identifies Afrikaans as
one of eleven languages entitled to enjoy equal status. Section 3(9) goes on to
state the following:
(9) Legislation, as well as official policy and practice, in relation to the
use of languages at any level of government shall be
subject to and based on the
provisions of this section and the following
principles:
(a) The creation of conditions for the development and for the
promotion of the equal use and enjoyment of all official South African
languages;
(b) the extension of those rights relating to language and the status of
languages which at the commencement of this Constitution
are restricted to
certain regions;
(c) the prevention of the use of any language for the purposes of
exploitation, domination or division;
(d) the promotion of multilingualism and the provision of translation
facilities;
(e) the fostering of respect for languages spoken in the republic other than
the official languages, and the encouragement of their
use in appropriate
circumstances; and
(f) the non-diminution of rights relating to language and the status of
languages existing at the commencement of this Constitution.
Section 32 carries the matter a step further in relation to education by
providing that:
32. Every person shall have the right -
....
(b) to instruction in the language of his or her choice where this is
reasonably practicable; ... .
Section 32(b) articulates an affirmative right that can be exercised against the
State, which, subject to the criterion of reasonable
practicability, would be
under a duty to make appropriate resources available for instruction in the
chosen language. It would seem
that failure to provide such facilities would not
necessarily amount to unfair discrimination in terms of section 8(2), but would
involve a violation of section 32(b). It is not necessary to decide that matter,
and I leave it open in this judgment.
[74] The implications of the above clauses for members of the Afrikaans language
community are significant. As far as section 3(9)
is concerned, legislation and
official policy and practice at any level of government require,
inter
alia
, the promotion of the equal use and enjoyment of Afrikaans, the
prevention of the use of, say, English for the purposes of domination,
and the
non-diminution of rights relating to Afrikaans and its status. Whether or not
these principles apply directly only to intra-governmental
behaviour, or whether
they govern all externally directed government policy and practice, need not be
decided in the present case.
On any reading, however, they provide a valuable
general guide to the objectives in relation to the language question which were
regarded as constitutionally significant by the framers of the Constitution. In
whatever way these principles are applied, it is
clear that they need to be
balanced against each other. Thus, the non-diminution principle is an important
one, but so are creating
the conditions for the development of all official
languages, the extension of rights in relation to languages previously
restricted,
the prevention of the use of any language for the purposes of
division, and the promotion of multi-lingualism. Reading these principles
together with section 32(b) in the manner most favourable to the Petitioners,
would mean that the practicability of language instruction
in existing Afrikaans
medium schools could, applying the non-diminution principle, be assumed to
exist. At the same time, there is
nothing in these principles to guarantee the
exclusivity of Afrikaans in any school. On the contrary, the promotion of
multi-lingualism,
even leaving out the factor of equal access to schools, would
encourage the establishment of dual- or multiple-medium schools. Whether
or not
the Afrikaans language would survive better in isolation rather than, as it
were, rubbing shoulders with other languages,
would not be a matter of
constitutionality but one of policy, on which this Court would not wish to
pronounce. Similarly, it would
not be for us to say whether denying
Afrikaans-speaking children the right to study and play with children of other
backgrounds would
or would not be to their mutual educational and social
detriment or advantage.
[75] iv)
The right to autonomous development in civil society
. The
Constitution acknowledges considerable space in civil society in which people
may freely advance their interests as members
of linguistic, cultural and
religious communities. Section 17 provides that every person shall have the
right to freedom of association.
Read with freedom of speech, expression and
artistic creativity protected by section 15(1) of the Constitution, this
guarantees the
development of language free from interference by the State.
Section 31 goes on to state expressly that “every person shall
have the
right to use the language and participate in the cultural life of his or her
choice”. Section 32(c) is even more specific
in relation to education. It
declares that:
Every person shall have the right:
...
c) to establish, where practicable, educational institutions based on a common
culture, language or religion, provided that there
shall be no discrimination on
the ground of race.
The judgment of Mahomed DP deals extensively with this clause in terms of its
obvious meaning, and its place in the logic of section
32 as a whole. I agree
fully with his analysis, which in my view is consistent both with the language
used and the overall spirit
of the Constitution. I would merely add one further
reason, influenced by my explorations of international human rights law, but
derived directly from the text of the Constitution, as to why I consider that it
makes best sense to regard this paragraph as concretising
rights to a certain
measure of cultural/linguistic autonomy in the private sphere, rather than as
imposing an express duty on the
State to establish single-medium community based
schools. This additional argument flows from the connection between section
32(c)
and section 8(2).
[76] Section 8(2) provides that no person may be discriminated against on
grounds,
inter alia
, of religion, culture or language. The provision in
section 8 (4) to the effect that
prima facie
proof of discrimination on
the grounds specified in section 8(2) shall be presumed to be sufficient proof
of unfair discrimination
until the contrary is proved, would make all schools
based upon a common culture, language or religion liable to attack on the
grounds
of practising unfair discrimination, particularly if they closed their
doors to persons who did not share that common culture, language
or religion.
Legislation could then be passed prohibiting such discrimination, and such
schools would then have no constitutional
umbrella to protect them at all.
Section 32(c) appears, therefore, to be an explicit, if limited, acknowledgement
of the need in
certain circumstances to allow for a departure from the general
principles of section 8(2) read with section 8(4). The anti-discrimination
principle is so powerful, both in international law and in the warp and woof of
our Constitution, that any intention to deviate from
it would have to be
articulated in the clearest possible language.
[77] What appears to be provided for in section 32(c) is not a duty on the state
to support discrimination, but a right of people,
acting apart from, but in
practicable association with the State, to further their own distinctive
interests. If the intention were
not only to
permit
discrimination on the
grounds of culture, language or religion in state schools, in such cases where
it was justified, but to
require
it in all cases on demand, then one
would have expected that such an exemption from the general non-discrimination
principle would
have been expressed in the clearest possible language.
Furthermore, should such a radical departure from the provisions of the equality
clause have been contemplated, then it would have been far more logical to have
expressed it as a qualification of section 8, than
to have left it to be read in
as an implied incident of section 32(c).
[78] My view is strengthened by the fact that section 32(c), construed in the
manner proposed by Mahomed DP, corresponds precisely
to concepts accepted in
many international instruments (although by no means universally). It
acknowledges that constitutionally
guaranteed space should be made available for
private individuals to set up and maintain [establish] their own schools if they
feel
that their special cultural, language or religious needs are not being
sufficiently catered for in the state system. Two cases heard
under the
European Convention which concern parental rights in relation to education,
suggest a disinclination on the part of the
court to compel states to establish
or maintain schools based on a particular language or religion, though they did
emphasize the
importance of pluralism of education and parental choice. The
first protocol to the European Convention provides in part: “No
person
shall be denied the right to education”. In the
Belgian Linguistic
case
[54]
the Court said that the
Convention does not guarantee children the right to be educated in the language
of their parents by the public
authorities or with their aid. “The
negative formulation indicates... that the Contracting Parties do not recognize
such a
right to education as would require them to establish at their own
expense, or to subsidise, education of any particular type or
at any particular
level.” Similarly, in a case involving Danish parents who objected to
compulsory sex-education in the public
schools, it was held that the State met
its obligation to “respect the right of parents to ensure... education in
conformity
with their own religious and philosophical convictions” because
the parents were free to send their children to a private
school.
[55]
[79] The deviation from the normal non-discrimination principles is therefore a
highly qualified one. Firstly, it is limited to the
spheres of culture, language
or religion; secondly, the running of the school must be practicable insofar as
it implicates the State
in guaranteeing education of appropriate standard;
thirdly, there shall be no discrimination on the grounds of race, and fourthly,
the community concerned must itself be responsible for the setting-up and
running of such a school. All these qualifications conform
to criteria widely
accepted in international instruments. This is not to say that the State is
forbidden by our Constitution from
setting up or maintaining communally- or
religiously-based schools. There is a great difference, however, between what
the State
is permitted to do and what it is required to do. In my view, there is
nothing in section 32 which obliges it to set up such schools.
Indeed, any
departure from the general principles of non-discrimination by the State itself
in relation to State schools, would have
to be justified by the State as being
fair.
[56]
There might, for example,
be good educational or administrative reasons for having a girls-only school in
a certain area, or for
having a unilingual school in another. These would be
questions of state policy and practice, subject to judicial review in the
ordinary
courts undertaken with due regard to fundamental rights guaranteed in
the Constitution. They would not be matters of constitutional
rights inhering in
and enforceable by cultural, language or religious
communities.
[57]
In such
circumstances, it would be the existence of exclusivity that would have to be
justified, not, as the Petitioners claim in
this case, the exclusion of
exclusivity.
[80] I would add two more and to my mind, equally compelling reasons, both of
which international law principles have alerted me
to, for preferring not to
adopt the “generously amplified” interpretation of section 32(c)
urged upon us by the petitioners.
The first is the historical background of
enforced school segregation, which was always justified on grounds of cultural
incompatibility,
and the spirit of which runs directly counter to the explicit
values of our
constitution.
[58]
[81] The second point is that from a cultural or language point of view, there
is no clear majority population in South
Africa
[59]
against which minorities
need to be protected. Linguistically and culturally speaking, there are only
minorities in our country.
The problem is to balance out their various
interests, rather than to protect any one group against another. From a purely
practical
point of view, the financial and administrative implications of
granting to each language or cultural group a claim, as of right,
on the State
to establish schools, exclusive to themselves, not to speak of the extreme
educational fragmentation involved, seem
to be insuperable. Eleven languages are
officially recognised. In addition about a dozen further languages are specified
in section
3(10)(c) as being languages whose development must be promoted by the
Pan South African Language Board (and this is not presented
as an exhaustive
list).
[60]
Added to this, it is a
matter of public record that our country is blessed with a multiplicity of
religious communities, with independent
churches alone probably running into the
hundreds if not thousands. Could it possibly be that the framers of the
Constitution intended
that each language group and each religious community in
every one of their multiple spatial conglomerations, should have a claim
on the
State in terms of section 32(c) to establish on their behalf exclusive schools?
Writing before the Constitution was adopted,
Professor Van der Westhuizen makes
the following pertinent remark:
“Public schools exclusively or specifically for cultural, religious, or
linguistic groups would not seem to be acceptable either.
Not only would such a
state of affairs serve to perpetuate apartheid in disguise with state funding
and official blessing, but as
a practical matter, it would be extremely
difficult to allocate funds and other supporting facilities on an equal
basis.”
[61]
[82] v)
Affirmative action
. Article 1(4) of the Convention on the
Elimination of all Forms of Racial Discrimination of 1965 declares
that:
Special measures taken for the sole purpose of securing adequate advancement of
certain racial or ethnic groups or individuals requiring
such protection as may
be necessary in order to ensure to such groups or individuals equal enjoyment or
exercise of human rights
and fundamental freedoms shall not be deemed racial
discrimination, provided, however, that such measures do not, as a consequence,
lead to the maintenance of separate rights for different racial groups and that
they shall not be continued after the objectives
for which they were taken have
been
achieved.
[62]
Article 2, dealing with obligations of States, reads:
States parties shall, when the circumstances so warrant, take in the social,
economic, cultural and other fields, special and concrete
measures to ensure the
adequate development and protection of certain racial groups or individuals
belonging to them for the purposes
of guaranteeing them the full and equal
enjoyment of human rights and fundamental freedoms. These measures shall in no
case entail
as a consequence the maintenance of unequal or separate rights for
different racial groups after the objectives for which they were
taken have been
achieved.
[83] Although the Convention is aimed at the elimination of the effects of
racial discrimination, the principles contained in these
two paragraphs could be
applied to any minorities trying to overcome the effects of past and continuing
discrimination.
[63]
Applied to
members of the Afrikaans language community, these principles would favour those
groups seeking admission to Afrikaans
medium schools, rather than the present
incumbents in their defensive
postures.
[64]
Any claim of Afrikaans
community groups to have the State subsidize what, objectively speaking, are
privileges in terms of exclusive
access to affluent schools, would therefore be
weak. Their argument that the State should anticipate and obviate possible
future
disadvantage may well be somewhat stronger, but I do not see how the
threat of loss of dominance could legally
per se
be regarded as
threatened disadvantage.
vi)
Positive support from the State
. The sixth, and most controversial
possible legal consequence of identifying and distinguishing a cultural,
linguistic or religious
minority group, could be that such a minority might be
able to make a claim for special resources from the State for the purposes
of
maintaining its identity. There can be no doubt that the recognition of
diversity and pluralism, and the weakening of state hegemony,
has come in recent
years to receive growing support from legal scholars, non-governmental
organisations and a number of political
philosophers.
[65]
The literature to
which I have referred, however, suggests that there is little hard international
human rights law to back a generalised
claim on State resources for the
promotion of cultural, linguistic and religious diversity, and none at all to
support a legal entitlement
to separate state-funded schools. As has been
pointed out above, when the question of legal protections for cultural, language
and
religious minorities was debated at the United Nations, the majority of
countries argued for a state duty to facilitate assimilation
by means of
outlawing discrimination, rather than for a state responsibility to encourage
diversity. Even those countries which have
given greater acknowledgement to
minority rights, have tended to leave the creation of communally or religiously
based schools to
the private sphere, particularly if such schools are exclusive
in character.
[84] Thus, Sieghart
[66]
points out
that a person cannot draw from Protocol 1(2) of the European Convention on Human
Rights, the right to obtain from the
public authorities the creation of a
particular kind of educational establishment. As far as the International
Convention on Civil
and Political Rights is concerned,
Lerner
[67]
laments the fact that
Article 27 does not contain any explicit reference to positive measures to which
the minority might be entitled,
and goes on to say that proposals for including
in Article 27 “(a) list of concrete rights, such as state supported
schools
of the minority or language rights“ failed. Professor Charles
Dlamini
[68]
in our country,
comments that it is generally accepted that Article 27 of the Covenant requires
only that the State parties to the
Convention should allow minorities to set up
private schools at their own expense and to provide for instruction in their own
language.
He regards it as unfortunate that in terms of Article 27, the State is
not obliged to assist minorities, either financially or materially,
to establish
minority public schools. The UNESCO Convention against Discrimination in
Education of 1960
[69]
similarly does
not impose any obligation on the State to establish separate minority schools.
On the contrary, it outlaws discrimination
based,
inter alia
on language,
religion and national origin, and singles out as discriminatory acts, the
establishing or maintaining of separate education
systems or institutions for
persons or groups of persons. It then goes on, however, to qualify this
prohibition in two important
respects. Article 2, in addition to allowing
single-sex educational institutions, states that the following do not constitute
discrimination:
(a) the establishment or maintenance, for religious or linguistic reasons, of
separate educational systems or institutions offering
an education which is in
keeping with the wishes of the pupil’s parents or legal guardians, on an
optional basis and if the
education provided conforms to certain
standards;
(b) the establishment or maintenance of private educational institutions, if
their object is not to exclude any group but to provide
educational facilities
in addition
to those provided by the public authorities, under certain
conditions.
The clauses identify permissible departures from the normal rule, not positive
obligations on the State.
[85] Article 5 goes on to balance out the need for education to promote
understanding, tolerance and friendship among all nations,
racial or religious
groups, with the guaranteed respect for the liberty of
parents:
(a) Firstly to choose for their children institutions other than those
maintained by the public authorities but conforming to such
minimum educational
standards as may be laid down or approved by the competent authorities,
and
(b) secondly, to ensure the religious and moral education of the children in
conformity with their own convictions, while no person
or group of persons
should be compelled to receive religious instruction inconsistent with his or
her own convictions”
Article 5 expressly recognises the right of members of national minorities to
carry on their own educational activities provided
that this right is not
exercised:
in a manner which prevents the members of these minorities from understanding
the culture and language of the community as a whole
and from participating in
its activities, or which prejudices national
sovereignty.
[86] It is quite clear that the manner in which these provisions have been
applied varies considerably from country to country, depending
on local
conditions and preoccupation. In Canada, for example, section 23 of the Canadian
Charter of Rights and Freedoms establishes
an express right to minority language
education out of public funds, providing Francophone and Anglophone minorities
with special
treatment as compared to other cultural and linguistic
minorities.
[70]
In Belgium and
Switzerland, on the other hand, the concept of “areas of linguistic
security” applies in terms of which
each collectivity can protect its
“linguistic homogeneity” from “linguistic competition”
from other groups
within a defined
territory.
[71]
India provides yet
another variant. There, Article 30 of the Constitution guarantees religious and
linguistic minorities the right
to establish and administer educational
institutions of their own choice. The State is precluded, in granting aid to
educational
institutions, from discriminating against any educational
institution on the ground that it is under the management of a
minority.
[72]
These are three
countries that have made special provision for minority schools. If
Capotorti’s Report is any guide, they
certainly cannot be regarded as
establishing a universal practice. It would seem that each country has the
right, in terms of international
law, to develop its own rules in this respect,
based on its own history and needs.
[87] It should be added that the central theme that runs through the development
of international human rights law in relation to
protection of minorities, is
that of preventing discrimination against disadvantaged and marginalised groups,
guaranteeing them full
and factual equality and providing for remedial action to
deal with past discrimination. Capotorti devotes several paragraphs in
his
report to this theme. The weight of international law, in his view, should be in
favour of the dominated and not the dominating
minorities. There is nothing to
indicate in the present case that the Petition based itself on arguments that
the clause in dispute
imposed discrimination, denied equality, or repudiated
remedial action for a marginalised or deprived language minority. On the
contrary,
the contention was that existing rights to language exclusivity in
relatively affluent schools should be maintained. It was common
cause that these
schools were well endowed because of past State support, while the majority of
schoolchildren in the province were,
as result of past State discrimination,
forced to attend schools that were grossly deprived in comparison. Thus the
thrust of international
human rights law principles would be far more in favour
of supporting the so-called “sociological” or
“functional”
minority, than of upholding the claims of what might be
termed the “sociological” or “functional”
majority.
[73]
In other words, the
values underlying international law concerned with protection of minorities,
would tend to favour the contentions
of the Provincial Government rather than
those of the Petitioners.
[88] The latest international instrument on the subject available to me supports
the view that there has been some revival of the
importance attached to the
protection of national minorities as a general group, that goes beyond simply
guaranteeing individual
members of such minorities protection against
discrimination. It is the framework Convention for the Protection of National
Minorities
adopted towards the end of 1994 by the Committee of Ministers of the
Council of Europe.
[74]
A booklet
produced by the Council of Europe Press reports that the framework Convention
was the first ever legally binding multilateral
instrument devoted to the
protection of national minorities in general. The main operative part of the
framework Convention contains
provisions laying down principles covering a wide
range of areas, and I reproduce the booklet’s summary in full, inasmuch as
it appears to represent the latest, and, I would say, most advanced,
international law thinking on the matter:
-
non-discrimination;
- promotion of effective equality;
- promotion of the conditions regarding the preservation and development of
the culture and reservation of religion,
language and
traditions;
- freedom of assembly, association, expression, thought, conscience and
religion;
- access to and use of media;
- linguistic freedom;
Χ use of the minority language in private and in public as well as its use
before administrative authorities;
Χ use of one’s own name;
Χ display of information of a private nature;
Χ topographical names in the minority
language;
- education:
Χ
learning of and instruction in the minority language;
Χ
freedom to set up educational institutions;
[my
emphasis]
- transfrontier contacts;
- international and transfrontier cooperation;
- participation in economic, cultural and social life;
- participation in public life;
- prohibition of forced
assimilation.
[75]
[89] The Council of Europe document indicates that special emphasis was put on
provisions of a programme-type, defining certain objectives
which the States
undertake to pursue through legislation and appropriate governmental policies at
a national level. It will be noted
that this framework Convention, sensitive as
it is to the rights of minorities, does not impose positive obligations on
states to
establish or maintain minority schools. Instead, it confirms the right
to learn and be instructed in a minority language, and the
freedom to set up
educational institutions. These principles are remarkably close to the
provisions of sections 32(b) and (c) of
our Constitution, adopted a year
earlier. It suggests that the interpretation given to the Constitution by
Mahomed DP conforms to
the principles contained in the most recent and developed
international instrument dealing with minority
protection.
CONCLUSION
[90] In summary: a reading of our Constitution would be entirely consistent with
the principles of international human rights law
if it:
- prevented the State from embarking on programmes intended or calculated to
destroy the physical existence or to eliminate the
cultural existence, of
particular groups;
- required the State to uphold the principles of non-discrimination and equal
rights in respect of members of minority groups;
- permitted and possibly required the State to take special remedial or
preferential action to assist disadvantaged groups to
achieve real
equality;
- permitted but did not require the State to establish communal schools, or to
support such schools already established;
- permitted members of minority groups to establish their own schools.
[91] None of these principles carry the Petitioners’ case any further. The
papers before us show a need to transform education
in South Africa in the light
of constitutional precepts which pay due regard to international law. Exactly
how the correct balance
should be struck between the importance of overcoming
systemic inequality inherited from the past, on the one hand, and preventing
legally enforced or
de facto
assimilation of groups wishing to preserve
and develop a distinctive identity, on the other, would, in my view, be
primarily a matter
for democratic resolution in the legislatures of our country,
and not in the first instance be one of adjudication by the courts.
Provided
that such deliberations result in legislation not transgressing the
Constitution, this Court should decline to interpose
its own opinion in relation
to exactly how best this balance should be achieved.
[92] In the present case, I would accordingly say that section 32(c) of the
Constitution should be interpreted in the way that Mahomed
DP has done, and that
International law on the subject reinforces the conclusions to which he comes.
I also agree that section 247
of the Constitution does not avail the
petitioners, and accordingly concur in the order he
proposes.
A L SACHS
Case
No : CCT 39/95
Counsel for the Petitioners : N G D Maritz SC
D N
Unterhalter
Instructed by : Dyason
Attorneys
Counsel for the Gauteng Government : W Trengove
SC
M Chaskalson
Instructed by : The State Attorney,
Johannesburg
Counsel for Amicus Curiae : R J Raath
J S
Stone
Instructed by : Ross & Jacobsz
Attorneys
Counsel for the Speaker of the
Gauteng
Government : R L Selvan SC
Instructed by : The State Attorney,
Johannesburg
[1]
See section 9 of the Bantu
Education Act No. 47 of 1953.
[2]
Reaume and Greene,
Education
and Linguistic Security
(1989) 34 McGill Law Journal 777
at 779-81;
Reference Re Education Act Ontario and Minority Language Rights
[1984] 10
DLR (4th) 491 (Ont. C.A.) at 529;
Mahe et al. v The Queen in Right of
Alberta et al.
[1990] 68 DLR (4th) 69 (S.C.C);
Attorney-General of Quebec
v La Chaussure Browns Inc. et al.
[1989] 54 DLR (4th) 577 (S.C.C.)
at 606-7;
Bastarache
, Education Rights of Provincial Official Language
Minorities
in Canadian Charter of Rights and Freedoms (2nd ed, edited by
Beaudoin & Ratushny) at 687-705
.
[3]
Mahes
case,
supra
n.2, at 82-83 and
La Chaussure Browns Incs
case,
supra
n.2, at 604.
[4]
Attorney-General of Quebec v
Quebec Association of Protestant School Boards et al.
[1984] 10 DLR 321
(S.C.C.) at 331.
[5]
East Rand Gold & Uranium
Co Ltd v National Union of Mineworkers
(1989) 10 ILJ 683 (LAC) (T);
National Union of Mineworkers v East Rand Gold and Uranium Co Ltd
[1991] ZASCA 168
;
1992 (1)
SA 700
(A);
National Union of Mineworkers v Gold Fields of SA Ltd &
Others
(1989) 10 ILJ 86 (IC);
Food & Allied Workers Union &
Others v Kellogg SA (Pty) Ltd
(1993) 14 ILJ 406 (IC);
Food & Allied
Workers Union v Spekenham Supreme
(2) (1988) 9 ILJ 628 (IC);
SA
Electrical Workers Association v Goedehoop Colliery (Amcoal)
(1991) 12 ILJ
856 (IC). Although these are labour law cases in the context of what is an
unfair labour law practice, the reasoning
is not inapplicable to the specific
wording of section 247 which also contemplates an agreement following on
bona
fide
negotiations.
[6]
Britten & Others v Pope
1916 AD 150
;
Richardson and Others v Administrator, Transvaal
1957
(1) SA 521
(T) at 530 A-C.
[7]
Fripp v Gibbon &
Company
1913 AD 354
at 357-8;
Merber v Merber
1948 (1) SA 446
(A) at
452.
[8]
One should bear in mind, of
course, that a liberal interpretation when one is dealing with the rights of the
individual as against
the state is one thing - a generous interpretation when
the issue requires the state to mediate between multiple groups, each asserting
legitimate claims, is another.
[9]
Prof. John Dugard suggests that
section 35(1) of the Constitution requires us, when interpreting the Bill of
Rights, to have regard,
not only to treaties ratified by South Africa, and to
customary rules that have been accepted by South African courts, but also to
international law contained in general treaties, custom, general
principles of law, the writings of jurists, and the decisions
of international
and municipal courts. He cites section 116(2), which requires the Human
Rights Commission to take account
of other relevant norms of
international law as supporting his contention.
Public International
Law
in Chaskalson
et al
(ed)
Constitutional law of South
Africa
(1996), 13-11. I would add that promoting the values of an open and
democratic society based on freedom and equality (section 35(2))
would also
require us to pay special attention to the sources he mentions, not excluding
his own distinguished work in the area.
[10]
Without hearing further
argument on the subject, and without doing more profound research, I would be
reluctant to offer definitive
opinions on the interpretation of what is an
elusive, complex and constantly mutating subject.
[11]
De Kiewiet CW
A History of
South Africa. Social and Economic
,Clarendon Press, Oxford, (1941) 147
summarizes the Boer experience after defeat of the Boer Republics as follows:
Milners
schools and English teachers were countered in the
ex-Republics by some 200 independent schools, under local committees of parents.
Against the superior teachers, the better equipment, and the financial strength
of the government schools, the Dutch Christian
National
Education schools could not prevail. Their importance was nevertheless
great. They served notice that the Boers
would not abandon any of their
attachment to their language and tradition. Wilson and Thompson (ed)
The Oxford History of South Africa II 1870-1966
, Clarendon Press, Oxford,
(1971) 361-2 states: J.B.M. Hertzog feared that the Afrikaner people
would indeed be denationalized,
as Milner had intended ... Hertzogs
diagnosis of the intentions of the English-speaking delegates was correct. Men
like Jameson
and Fitzpatrick associated Dutch - and especially Afrikaans - with
cultural backwardness, and hoped and assumed that in the course
of time English
would oust it from South Africa ... the question came up for discussion during
the first week of the Convention.
Hertzog and Steyn made impassioned and moving
speeches for the fullest recognition of Dutch. To their surprise, the
English-speaking
delegates responded in a conciliatory manner, and after
informal discussions Hertzogs resolution was unanimously adopted
in an
abbreviated form, but still containing the key phrase that besides being
declared official languages, English and Dutch
... shall be treated on a
footing of equality, and possess and enjoy freedom, rights and
privileges... .
[12]
There are, of course, many
different communities for which Afrikaans is the mother tongue, and many
different perspectives within
each of these. My judgement focuses on the
particular perspective argued before us.
[13]
347 US 483
(1954).
[14]
See Woehrling J
Minority
and Equality Rights
1985 McGill
Law
Journal 51
at 58. See
also
Minority Schools in Albania Case
1935 PCIJ (ser A/B) No 64 at
20.
[15]
On the subject of the
intrinsic value of diversity, Otto Klineburg was quoted in the UN
Study on
the Rights of Persons belonging to Ethnic, Religious and Linguistic
Minorities
UN Doc. E/CN.4/Sub.2/384/Rev.1 (1979) reprinted as UN
Pub.E.78.XIV.1 (1979)
(hereinafter referred to as the Capotorti Report)
as saying: An undertaking to abolish discrimination against an
individual
if he becomes similar to the majority is obviously unsatisfactory in
the case of those who do not seek to become completely like
the majority ...One
of the motives operating here is the growing belief in the value of diversity,
the enrichment of community life
through the maintenance of cultural variations,
the fruitfulness of continuing contrast between different ways of life.,
para 318, 55.
[16]
Van der Westhuizen J
A
Post-Apartheid Educational System: Constitutional provisions
1985
Columbia
Human
Rights
Law
Review 111
at 64.
[17]
Section 3(1) of Act 200 of
1993 (the constitution) provides: Afrikaans, English,
isiNdebele, Sesotho sa Leboa,
Sesotho, siSwati, Xitsonga, Setswana, Tshivenda,
isiXhosa and isiZulu shall be the official South African languages at national
level,
and conditions shall be created for their development and for the
promotion of their equal use and
enjoyment.
[18]
Prof.
Carel Boshoff and Carel Boshoff IV bring this necessary perspective out well
when they say that we must not close our eyes
to: [T]he existential
reality, intensity and meaning of this intercultural encounter, to the
confrontation with those other
worlds outside ones own, worlds in which
human lives exist with no less legitimacy and no less right to be. We should not
be looking for some technical restructuring of society, for some mechanical
repair of its working parts. We should rather try to
find ways in which this
encounter could proceed to an active communication, mutually recognising the
others autonomy and
dignity; entering into communion, aiming at a
reciprocal revelation and understanding of each other. in
The
sociopolitical conditions for democratic nation-building: an Afrikaner point of
view
Rhoodie and Liebenberg (ed)
Democratic Nation-building in South
Africa, HSRC Publishers, Pretoria, (1994) 164. Cf Prof. Johann Degenaar, in
the same volume at 25 and 29 who proposes that the myth
of building a nation be
replaced by the idea of creating a democratic culture which enables South
Africans to live creatively with
the inevitable tensions of diversity.
[19]
Section 8. Yash Ghai refers
to the dilemma of post-colonial societies in Africa as follows: Some
groups must be stripped of
privileges they have enjoyed hitherto; often these
groups are minority groups, and so the process of producing a
just society can all too easily be seen as a case of racial or tribal
persecution. On the other hand, not to pursue this process
can build up
bitterness and frustrations, which pose a grave threat to racial
harmony. Quoted in the Capotorti Report
supra
note 15 para 311 at
54. He stresses the importance of creating a just society as the foundation for
solving ethnic and racial questions.
[20]
Section 35(1).
[21]
Section 3.
[22]
Section 31.
[23]
See Dhlamini C
Culture,
Education, and Religion
in
Rights and Constitutionalism. The New South
African Legal Order
Van Wyk
et al
(ed) Juta (1994), 589-590 for a
historical overview of the educational inequalities that existed prior to the
Constitution. He makes
the following remark at 589: A balance must be
struck between the statutory requirement of compulsory schooling and the liberty
of the individual parent to educate his or her children as he or she sees fit.
Balancing this issue involves balancing fairness and
efficiency which should be
done with a certain amount of pragmatism.
[24]
Section 30(3) read with
section 32(a).
[25]
According to Lerner N
From
Protection of Minorities to Group Rights
(1988) Israel Yearbook on Human
Rights 111 at 106, international human rights law actually began, rather
timidly, as an attempt to
protect discriminated groups, particularly religious
communities, through initial emphasis on tolerance rather than rights. He refers
to the writings of early Spanish international lawyers in favour of the American
indigenous populations and the measures taken in
Europe to protect minority
religions during the European wars of religion.
[26]
Id. at 108.
[27]
Id. at 110.
[28]
Thornberry P
Is there a
Phoenix in the Ashes? - International Law and Minority Rights
(1980) Texas
International Law Journal 421
at 425.
[29]
Robinson J
International
Protection of Minorities, A Global View
1 Israel Yearbook on Human Rights
(1971) 61 at 80.
[30]
The only protection for
minorities was through the non-discrimination principle. See Capotorti
supra
note 15.
[31]
Supra
note 25 at
112.
[32]
The South African Law
Commission, after an intensive investigation, rejected the notion of
group rights and came to
the conclusion that (T)he needs
of individuals who are members of different linguistic, cultural and religious
groups would
be adequately protected by individual rights in a bill of
rights.
Interim Report on
Group and Human Rights
(1991)
679-80. See also Currie I
Minority Rights: Language, Education and
Culture
in Chaskalson et al
supra
note 9 at 35-2 to 35-3.
[33]
See Thornberry P
supra
note 28 at 433 and 447.
[34]
It has been praised for
neatly combining the objective criterion (possession of distinct
characteristics) with the subjective criterion
(the wish to preserve these
characteristics) that constitute a minority in fact.
Supra
note 28 at
423.
[35]
This is the text of
Capotortis definition in
Minorities
in 8
Encyclopaedia of
Public International Law
385 R. Bernardt ed. (1985). In his UN Report his
definition stated that members of the minority should be nationals of the State
concerned. See also the advisory opinion of the PCIJ on the Greco-Bulgarian
Convention on Emigration, where it refers to minorities,
or
communities as a group of persons living in a given
country or locality, having a race, religion, language
and traditions of their
own and united by this identity of race, religion, language and traditions in a
sentiment of solidarity with
a view to preserving their traditions, maintaining
their form of worship, insuring the instruction and upbringing of their children
in accordance with the spirit and traditions of their race and rendering mutual
assistance to each other. PCIJ, Ser. B, No
17, at 19. Quoted and
discussed by Lerner N in
Group Rights and Discrimination in International
Law
Martinus Nijhoff, Dordrecht, (1991) 9. He argues for replacing the
phrase minority protection with the phrase group
rights.
[36]
Supra
note 28 at
449.
[37]
Lerner
supra
note 35
at 16.
[38]
Capotorti Report
supra
note 15.
[39]
Supra
note 28 at
449-450.
[40]
See Humphrey J
No distant
millennium The International Law of Human Rights
UNESCO Paris (1989) 56 and
Capotorti Report
supra
note 15 para 311 at
53.
[41]
S
upra
note 29 at
91 Robinson says: This brings us to the future of international
protection of minorities. In the present circumstances,
with the Communist world
disinterested, the Latin American continent openly hostile to the very idea,
Black Africa immunized [because
of fear of fragmentation within colonially
imposed boundaries], and Europe, as represented by its Council, going its own
way, the
problem has shrunk to a not very significant one for the international
community.
[42]
For example the ILO
Convention No 143 concerning Migrations in Abusive Conditions and the Promotion
of Equality of Opportunity and
Treatment of Migrant Workers of 1975 and the ILO
Convention concerning Indigenous and Tribal Populations or Peoples of 1957 as
revised
in 1989.
[43]
Thornberry suggests that
this trend is associated with the decline of USA hegemony in the UN system.
Supra
note 28 at 455. It also corresponds to the increasing
acknowledgement of hyphenated persons in the USA itself -
African-Americans, Spanish-Americans, Chinese-Americans.
[44]
General Comment Adopted by
the Human Rights Committee under Article 40, Paragraph 4, of the ICCPR, No
23(50) (art 27) UN Doc CCPR/C/21/Rev
1/add 5 (26 April 1994).
[45]
The summary above is taken
from Currie I in
Minority
Rights
supra
note32 at 35-7.
[46]
Referring to what he termed
hateful regimes of oppression and racial discrimination in disregard of the
elementary principles of respect
for the dignity of human beings, as in Southern
Africa at the time, Capotorti
supra
note 15 writes that it is
obvious that the dominant minority groups do not need protective measures, while
the oppressed majorities
have rights which far exceed the very limited content
of Article 27 of the Covenant. See para 55 at 12.
[47]
Supra
note 25 at
141-146.
[48]
Currie I suggests in Minority
Rights
supra
note32 at 35-8 that ...if as a result of state
action or inaction, that community loses its identity, if it is absorbed
without
trace into the majority population, the individual right of participation in a
cultural or linguistic community will be harmed.
The right therefore may require
positive measures by the state to preserve the separate identity of distinct
cultural and linguistic
communities.
[49]
Sieghart P
The
International Law of Human Rights,
Clarendon Press, Oxford (1983). He
observes the following at 17: [T]he concept of
non-discrimination is so
central to international human rights
law that all but one of the major instruments prescribe it in an Article of
general application....
[50]
Article 7 provides:
All are equal before the law and are entitled without any discrimination
to equal protection of the law.
All are entitled to equal protection against any
discrimination in violation of this Declaration and against any incitement to
such
discrimination. See also Article 2 in this regard.
[51]
Articles 2 (1), 3 and 26
respectively. The latter states: All persons are equal before the law
and are entitled without any
discrimination to the equal protection of the
law. In this respect, the law shall prohibit any discrimination and
guarantee
to all persons equal and effective protection against discrimination
on any ground such as race, colour, sex, language, religion,
political or other
opinion, national or social origin, property, birth or other status.
[52]
Articles 14 and 16.
[53]
For example the International
Convention on the Elimination of all forms of Racial Discrimination of 1950 and
the Convention on the
Elimination of Discrimination Against Women of 1953.
[54]
1 European Human Rights
Reporter 253.
[55]
Kjeldsen,
Busk Madsen and Pedersen v Denmark
, Series A, No.23, 7 December 1976. See
also Sohn LB
The Rights of Minorities
in
The International Bill of
Rights
Henkin (ed) Colorado UP 1981, 271.
[56]
See section 8(2) and (4).
[57]
For the purposes of
discussion, I accept that although language and religious rights are expressed
purely as individual rights, they
can only meaningfully be enjoyed in community
with others.
[58]
Furthermore, if
the framers were mindful of international law, they would have borne in mind the
existence of the Convention on the
Suppression and Punishment of the Crime of
Apartheid of 1973, which took a drastic stand against the policies which led to
the untold
suffering and strife referred to in the Postscript to the
Constitution.
[59]
It might
be, that in language terms, there is a massive push by parents of many different
cultural backgrounds to have their children
educated in English and, from this
point of view, English could be considered a majority language. This, however,
would be a question
of language choice as guaranteed by section 32(b).
Communities have a right to assimilate if they so wish, to the extent that they
desire. What is objected to is enforced assimilation. For a discussion on Swiss
practice see Robinson J
supra
note 29.
[60]
Section 3(9) of the
Constitution lists the principles upon which official policy and practice in
relation to the use of languages
shall be based and which include in section
3(9)(e) ...the fostering of respect for languages spoken in the Republic
other
than the official languages, and encouragement of their use in appropriate
circumstances.
[61]
Supra
note 16 at
130.
[62]
For a summary of the text of
the Convention see Lerner
supra
note 25 at 165. See also preferential
treatment for indigenous peoples called for in the ILO Convention Concerning
Indigenous and
Tribal Peoples of 1989, which calls for special measures implying
preferential treatment provided they are not contrary to the freely
expressed
wishes of the groups concerned and do not prejudice the enjoyment of equal
rights in any way.
[63]
They could also obviously be
pertinent to easing the way for women, who are not a minority, but are
disadvantaged, to overcome the
obstacles placed in their way by patriarchal and
sexist laws and practices.
[64]
For the right to remedial
equality see
supra
note 14 at 65.
[65]
Prof Degenaar
supra
note 18 whose reflections on the subject have been influential, refers
approvingly to what he calls post-modern rethinking of the
nature of the
nation-state.
[66]
S
upra
note 49 at 77,
commenting on the Belgian Linguistic case . The First Protocol to the Convention
for the Protection of Human Rights
and Fundamental Freedoms signed at Rome in
1950 states in Article 2 : No person shall be denied the right to
education. In
the exercise of any functions which it assumes in relation to
education and to teaching, the State shall respect the right of parents
to
ensure such education and teaching in conformity with their own religious and
philosophical convictions.
[67]
Supra
note 25 at
16.
[68]
Supra
note 23 at
105.
[69]
Article 1.1(c).
[70]
See discussion by Woehrling
supra
note 14 at 70-74.
[71]
Id. at 66.
[72]
Seervai HM
Constitutional
Law of India
Tripathi (1983) chap XIII and
The Ahmedabad St. Xaviers
College Society v State of Gujarat
S.C.R. [1975] 173.
[73]
See Capotortis strong
remarks on the situation in Southern Africa of the Capotorti Report
supra
note 15 at 12.
[74]
As at 1 March 1995
twenty-two States had signed. For entry into force it required ratification by
twelve member States.
[75]
Human Rights. A continuing
challenge for the Council of Europe
1995 Council of Europe Press 47.