THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
CASE NO : 140/05
In the matter between:
THE WESTERN CAPE MINISTER OF EDUCATION First Appellant
THE HEAD: EDUCATION, WESTERN CAPE
EDUCATION DEPARTMENT Second Appellant
PARENTS OF CERTAIN LEARNERS CURRENTLY
RECEIVING INSTRUCTION AT MIKRO PRIMARY
SCHOOL Third Appellants
and
THE GOVERNING BODY OF MIKRO PRIMARY
SCHOOL First Respondent
MIKRO PRIMARY SCHOOL Second Respondent
________________________________________________________________________
Before: STREICHER, CAMERON, BRAND, LEWIS & MLAMBO JJA
Heard: 23 MAY 2005
Delivered: 27 JUNE 2005
Summary: Section 29(2) of the Constitution – the right to receive education in an official
language at a public educational institu tion if practicable – not a right to
receive such education at each and every public educational institution – s 6(2)
of South African Schools Act 1996 – de termination of language policy of
established ordinary public school the function of governing body –
department of education has no power to determine such language policy –
s 16(3) of the Act – head of provincia l education departme nt must exercise
authority in regard to th e professional management of a public school through
the principal - s 41 of the Constitution – governing body of a public school
does not operate within a sphere of government when determining the
language policy of a public school.
________________________________________________________________________
J U D G M E N T
________________________________________________________________________
STREICHER JA
2
STREICHER JA:
[1] Mikro Primary School (‘the second re spondent’) is an Afrikaans medium
public school in Kuilsriver whose gove rning body (‘the firs t respondent’)
refused to accede to a request by the We stern Cape Education Department (‘the
department’) to change the language policy of the school so as to convert it into
a parallel medium school. A subsequent directive by the Head: Education,
Western Cape Education Department (‘the second appellant’) to the principal of
the second respondent to admit certain learners, and to have them taught in
English; the dismissal of an appeal ag ainst the directive to the Western Cape
Minister of Education (‘the first appe llant’); and the resultant admission of 21
learners for instruction in English gave rise to an urgent application by the
respondents to the Cape High Court (‘the court a quo’) for an order setting aside
the directive and the decision on appeal, as well as for ancillary relief. The
application succeeded and the court a quo:
a) Set aside the directive of the second appellant;
b) Set aside the decision by the first appellant upholding the directive by the
second appellant;
c) Interdicted the first and second appellants from compelling the second
respondent or its principal to admit l earners otherwise than in compliance
with the second respondent’s language policy;
3
d) Interdicted the first and second appellants from instru cting or permitting
officials of the department to unlawfu lly interfere with the government or
the professional management of the second respondent;
e) Ordered that the 21 learners who had been admitted to the second
respondent be placed by the appella nts at another suitable school or
schools.
The judgment is reported as Governing Body of Mikro Primary School v
Western Cape Minister of Education [2005] 2 All SA 37 (C). With the leave of
the court a quo the first and second appellants now appeal to this court against
the whole of the judgment.
[2] The parents of the 21 learners refe rred to were joined as third respondents
in the court a quo . Although they had not appealed against the court a quo ’s
judgment, they made common cause with the appellants rather than with the
respondents in this court. However, sin ce the other parties had no objection to
their counsel addressing us and attacking the court a quo’s order, we allowed her
to do so. The parents so represented will therefore be referred to as the third
appellants.
[3] Section 29(2) of the Cons titution provides as follows:
‘Everyone has the right to receive education in the official language or languages of their
choice in public educational institutions where that education is reasonably practicable. In
order to ensure the effective access to, and im plementation of, this right, the state must
consider all reasonable educational alternatives , including single medium institutions, taking
into account –
4
(a) equity;
(b) practicability; and
(c) the need to redress the results of past racially discriminatory laws and practices.’
[4] The South African Schools Act 84 of 1996 (‘the Act’) was passed shortly
after the adoption of the Constitution. According to the long title it was passed
in order ‘[t]o provide for a uniform system for the organisation, governance and
funding of schools; to amend and repeal cer tain laws relating to schools; and to
provide for matters connected therewith’. In the preamble to the Act it is stated,
inter alia, that the Act is passed because ‘t his country requires a new national
system for schools which will redress past injustices in educational provision, . .
. , advance the democratic transformation of society, combat racism and sexism
and all other forms of unfair discrimina tion and intolerance, . . . , protect and
advance our diverse culture s and languages, uphold the rights of all learners,
parents and educators, and promote thei r acceptance of resp onsibility for the
organisation, governance and funding of schools in partnership with the State’.
[5] In terms of s 12 of the Act the Member of the Executive Council of the
province which is responsible for education in that province must provide public
schools for the education of learners out of funds appropriated for this purpose
by the provincial legislature. Every public school so provided is a juristic
person, with legal capacity to perform its functions in terms of the Act (s 15).
The governance of every such public school is vested, subject to the Act, in its
governing body which may perform only su ch functions and obligations and
exercise only such rights as are prescribed by the Act (s 16(1)). The professional
5
management of such a public school, on the other hand, must be undertaken,
subject to the provisions of the Act, by the principal of the school under the
authority of the head of the education depa rtment concerned. It is therefore clear
that, subject to the limitations containe d in the Act, the governance of a public
school, as opposed to the professional ma nagement of such a school, is the
responsibility of the governing body of the school.
[6] The statutorily prescr ibed composition of the governing body of ordinary
public schools reflects the aim of the Ac t, namely to advance the democratic
transformation of society. It includes, subject to the provisions of the Act,
elected members, the principal in his or her official capacity and co-opted
members. Elected member s comprise a member or members of each of the
following categories: parents of learners at the school, educators at the school,
members of staff at the school who are not educators and learners in the eighth
grade or higher at the school (s 23(1)). The number of parent members must
comprise one more than th e combined total of other members of the governing
body who have voting rights. Certain co-opted members do not have voting
rights (s 23(8) and (12)).
[7] Section 20(1) of the Act provides that the governing body must perform a
number of functions. It must, inter alia , adopt a constitution (subsec (b)),
develop the mission statement of the school (subsec (c)), adopt a code of
conduct for learners at the school (subsec (d)) and ‘discharge all other functions
imposed upon the governing body by or under the Act’ (subsec l). One of the
6
other functions imposed on the governing body is to be found in s 5(5) which
provides:
‘Subject to this Act and any applicable provincial law, the admission policy of a
public school is determined by the governing body of such school.’
Another one of the functions imposed on th e governing body is to be found in
s 6(2) which provides:
‘The governing body of a public school may determine the language policy of the
school subject to the Constitution, this Act and any applicable provincial law.’
[8] In terms of s 6(1) of the Act the Mi nister of Education may, subject to the
Constitution and the Act, by notice in the Government Gazette, after
consultation with the Council of Educa tion Ministers, determine norms and
standards for language polic y in public schools. Such norms and standards were
determined and published by the Mini ster of Education (‘the Norms and
Standards’).1 Sections V.D and E thereof read as follows:
'D. THE RIGHTS AND DUTIES OF THE PROVINCIAL EDUCATION
DEPARTMENTS
1. The provincial education department must k eep a register of requests by learners for
teaching in a language medium which cannot be accommodated by schools.
2. In the case of a new school, the governing body of the sch ool in consultation with the
relevant provincial authority determines the language policy of the new school in
accordance with the regulations promulgated in terms of section 6(1) of the South
African Schools Act, 1996.
1 See Government Notice 1701 in Government Gazette 18546 of 19 December 1997.
7
3. It is reasonably practicable to provide education in a pa rticular language of learning
and teaching if at least 40 in Grades 1 to 6 or 35 in grades 7 to 12 learners in a
particular grade request it in a particular school.
4. The provincial department must explore ways and means of sharing scarce human
resources. It must also explore ways and means of providing alternative language
maintenance programmes in schools and or sc hool districts which cannot be provided
with and or offer additional languages of teaching in the home language(s) of learners.
E. FURTHER STEPS
1 Any interested learner, or governing body that is dissatisfied with any decision by the
head of the provincial depa rtment of education, may a ppeal to the MEC within a
period of 60 days.
2 Any interested learner, or governing body that is dissatisfied with any decision by the
MEC, may approach the Pan South African Language Board to give advice on the
constitutionality and/or lega lity of the decision taken, or may dispute the MEC’s
decision by referring the matter to the Arbitration Foundation of South Africa.
3 A dispute to the Arbitration Foundation of South Africa must be finally resolved in
accordance with the Rules of the Arbitra tion Foundation of Southern Africa by an
arbitrator or arbitrators appointed by the Foundation.'
[9] As required by s 5(5) and s 6(2) of the Act the first respondent adopted a
language and an admission po licy. Paragraph 4 of its admission policy, which
incorporates its language policy, provides:
‘Alle onderrig in hierdie skool (behalwe in die leerareas Engels en Xhosa) geskied
deur medium Afrikaans.’
[10] Since at least 2002 the department has been trying to persuade the first
respondent to admit English learners for inst ruction in English, that is to change
8
its language policy and to convert the se cond respondent into a parallel medium
school. The first respondent steadfastly refused to do so. During the latter part of
2004 parents of approximately 100 English learners applied for admission of
their children to De Kuilen Primary School (‘De Kuilen’). (De Kuilen is a public
school within walking distance of the second respondent. Historically De Kuilen
was also an Afrikaans medium school but some seven years ago it started
admitting English learners. As a result it is now a parallel medium school in that
it offers instruction in Afrikaans as we ll as English in separate classes.) De
Kuilen volunteered to accommodate the learne rs in grades 2 to 7 but contended
that it was full and that it could not accommodate 40 grade 1 learners. As a
result the department, on 30 November 2004, held a meeting with the first
respondent and the governing body of De Kuilen. The department could once
again not persuade the first respondent to admit learners for instruction in
English. After the meeting, on 2 December 2004, the second appellant instructed
the principal of the second respondent as follows:
‘7 You are consequently instructed, under my authority to admit and accommodate the
learners listed in the docume nt attached to this letter at Mikro Pr imary School. I will
provide the relevant number of educators to ensure that e ffective learning and teaching
takes place.
8 Furthermore, you are requested to make the necessary arrangements to accommodate
the learners and to inform the parents of the admission of these learners via their present
schools before schools close on 8 December 2004.
9 I must advise you that failure to impleme nt this directive may constitute grounds for
disciplinary action. You are also advised to discuss with the EMDC Director your
9
additional needs regarding school furnitu re learner support materials and staff
requirements that may arise from the admission of these learners. This will allow the
Department to timeously procure and deliver your requirements.’
The list referred to contained 40 names.
[11] The first respondent appealed to the first appellant against the second
appellant’s directive. The appeal was lodged on 17 December 2004. The second
appellant had previously advised the firs t respondent that once the appeal had
been lodged with the first appellant it would automatically suspend his directive.
On 18 January 2005 the first appellant met with the first respondent and the
governing body of De Kuilen in what he ca lled ‘a last-ditch attempt to request
the (first respondent) to admit the 40 Eng lish learners at Mikro’. Again the first
respondent made it clear that it was not prepared to do so. Thereafter, on 19
January 2005, the first sc hool day after the December/January school holidays,
the first appellant notified the first re spondent of its decision to dismiss the
appeal.
[12] The first respondent’s attorneys ha d, in a letter dated 20 December 2004,
written to the second appellant:
‘We assume that, should the MEC dismiss th e appeal, the decision will likewise be
suspended pending arbitration and/or our approach to the Pan South African Language Board,
in terms of the Norms and Standards document. (We hereby give notice th at, in the event the
MEC decides the appeal against our client, we will indeed refer the matter to arbitration
and/or to the Board).
In view of the automatic suspension of the Head of Department’s decision, it naturally
follows that the 40 learners, will not, pending the finalization of the appe al and, if necessary,
10
the referral thereafter of the matter to arbitr ation and/or to the Board, be accommodated at
Mikro Primary School. We trust that you ha ve therefore begun exploring alternative
accommodation for the learners concerned for the 2005 school year.’
[13] The second appellant re sponded on 21 December 2004:
‘[O]nce I am in receipt of (the MEC’s) decision, I will consider my options and inform you of
my intended course of action, accordingly.
Moreover, it is my obligation to ensure that all learners in this Province are accommodated
appropriately, and I will manage this process timeously.’
[14] The first respondent’s atto rneys replied on 23 December 2004:
‘We note the contents of your letter but can really see no reason why you should not
confirm that your decision would be further suspended pending the arbitration and/or
approach to the Pan South African Language Bo ard. Be that however as it may we assume
that you will give us adequate notice of your inte nded course of action so as to enable us to
adequately protect our client’s rights.’
[15] Early on the morning of 19 Janua ry 2005 Mr Caroline, the Director:
Education Management and Developmen t Centre (EMDC) Metropole East,
Western Cape Education Department, his deputy Mr Saunders, three other
officials of the department, 19 of the 40 learners referred to, their parents and
two other learners who wished to be inst ructed in English, together with their
parents, arrived at the second respon dent. Caroline informed Mr Wolf, the
chairman of the first respondent, that he was there to assist the principal with the
admission of the English learners and to ensure that they were admitted. Wolf
contended that Caroline’s instructions we re unlawful but Caroline said that he
would implement his instructions until in structed to the contrary. A request by
11
Wolf that the learners and their parents be taken to the staffroom and that the
matter be discussed first wa s declined. Caroline’s attitude was that the children
had been admitted to the second respo ndent. He and Saunders informed the
principal that they would be taking the l earners and parents to assembly so that
they could be welcomed at the school. Th e children as well as their parents were
thereupon taken to the hall where the assembly took place.
[16] During the course of the morn ing on 19 January 2005, the first
respondent’s attorney advised the legal adviser of the second appellant that in
the event of the department persisting w ith the registration of the new learners
the first respondent would as a matter of urgency appr oach the high court. The
second appellant’s law adviser, after having taken inst ructions from the second
respondent, indicated that the department would continue with the registration of
the learners. The respondents thereupon lodged the urgent application for the
relief eventually granted by the court a quo. The application was opposed by the
first and second appellants a nd, after having been joined as parties, also by the
third appellants. On 18 February 2005 the court a quo granted the following
order:2
‘1. The decision of the second respondent, set ou t in his letter to the principal of the second
applicant dated the 2 December, 2004, to direct the latter to admit certain pupils to the
second applicant, and to have them taught in the medium of English, is set aside.
2. The decision of the second respondent of th e 19 January, 2005 to put the said directive
into effect is also set aside.
2 At 59b-60b.
12
3. The decision of the first respondent, made on or about the 19 January, 2005, to uphold
the aforesaid decision of the second respondent and to dismiss the first applicant's
appeal against it, is set aside.
4. The first and second respondents are prohib ited and restrained from compelling or
attempting to compel the second applicant or its principal to admit pupils for instruction
in the medium of English ot herwise than in compliance with the second applicant's
language policy, and with the applicable pr ovisions of the South African Schools Act,
No. 84 of 1996, of the Norms and Standards dete rmined in terms of section 6(1) of that
Act, and of any other legislation which may be applicable.
5. It is declared that the conduct of certain officials of the Western Cape Education
Department on the 19 January , 2005 at the second applican t's premises constituted
unlawful interference by them in the govern ment and professional management of the
second applicant, in contravention of sections 16(1) and 16(2) of the said Act.
6. The first and second respondents are prohibi ted and restrained fr om instructing or
permitting officials of the said department to interfere unlawfully in the government or
the professional management of the second applicant.
7. The first and second respondents are ordere d to place the 21 minor children presently
attending the second applicant, whose pare nts are the third respondents, at another
suitable school or schools on a permanen t basis as soon as may be reasonably
practicable.
8. Until the said children shall have been so permanently placed at another suitable school
or schools, they may continue to attend the second applicant and to receive instruction
there in the medium of English; provided th at this situation shal l not continue after
2005.
9. In the event of the first a nd second respondents being unabl e to place the said children
permanently at another suitabl e school or school s by the 18 March, 2005 the second
13
respondent shall report in writing to the first applicant not later than the 22 March, 2005
as to what steps have been taken to bri ng about such placing; th ereafter, the second
respondent shall report in writing to the first applicant on or before the last day of each
succeeding month as to what progress has been made in this connection; leave is
granted to the applicants and to the third re spondents, or any one or more of them, to
approach this Court on the same papers, amplified as may be necessary, for further
relief in this regard.
10. The first and second respondents are ordered to bear the costs of these proceedings on
the scale as between attorney and client, in cluding the costs of the third respondents,
such costs to include, in the case of th e applicants, the cost s occasioned by the
employment of two counsel.’
[17] The first and second appellants, relying on s V.E.2 of the Norms and
Standards, contended that the proceedings were premature. They argued that the
respondents were obliged, in terms of s 41(1)(h)(vi) of the Constitution as well
as s 7(2)(a) of the Promotion of Admi nistrative Justice Ac t 3 of 2000 (‘PAJA’)
to exhaust the options provided in the Norms and Standards before they could
approach a court.
[18] Section 41(1)(h)(vi) and (3 ) of the Constitution provides:
‘41(1) All spheres of government and all organs of state within each sphere must –
. . .
(h) co-operate with one another in mutual trust and good faith by –
. . .
(vi) avoiding legal proceedings against one another.
. . .
14
(3) An organ of state involved in an in tergovernmental dispute must make every
reasonable effort to settle the dispute by means of mechanisms and procedures
provided for that purpose, and must exhaust all other remedi es before it approaches a
court to resolve the dispute.’
An organ of state is defined in s 239 of the Constitution as follows:
‘“organ of state” means –
(a) any department of state or administration in the national, provincial or local sphere
of government; or
(b) any other functionary or institution –
(i) exercising a power or performing a functi on in terms of the Constitution or a
provincial constitution; or
(ii) exercising a public power or performing a public function in terms of any
legislation,
but does not include a court or a judicial officer.’
[19] The court a quo dismissed the appellant’s reliance on these provisions of
the Constitution.3 Relying on the authority of Directory Advertising Cost Cutters
v Minister for Posts, Telecommunications and Broadcasting 1996 (3) SA
800 (T) it held that the first respondent was not an organ of state in that the first
respondent was intended by the legislatur e to be independent of state or
government control in the performance of its functions. 4 Relying, furthermore,
on the judgment in Independent Electoral Commission v Langeberg
3 At 43d-46d.
4 At 44e-45g.
15
Municipality 2001(3) SA 925 (CC) the court a quo held that the first respondent
did not perform its functions within a sphere of government.5
[20] In the Directory Advertising case Van Dijkhorst J had to interpret the
phrase ‘organ of state’ in the context of the interim constitution which defined
‘organ of state’ as follows: ‘“organ of state” includes any statutory body or
functionary’6. He referred to dictionary meanings of the word ‘staatsorgaan’, the
Afrikaans equivalent of ‘organ of state’, and came to the conclusion that the test
to determine whether a statutory body was an organ of state was whether the
body was controlled by the State.
7 The court a quo erred in adopting the
reasoning of Van Dijkhorst J and ascribing the same meaning to ‘organ of state’
in the Constitution as in the Interim Cons titution. Organ of state is differently
and comprehensively defined in the C onstitution, and whether a statutory body
is an organ of state within the meani ng of the Constitution naturally depends on
whether that statutory body is a body as de fined in the Constitution. In terms of
the definition in the Constitution any in stitution exercising a public power or
performing a public function in terms of a ny legislation is an organ of state. The
second respondent, a public school, together with its governing body, the first
respondent, is clearly an institution perf orming a public function in terms of the
Act. It follows that it is an organ of state as contemplated in the Constitution.
[21] In the Independent Electoral Commission case the Constitutional Court
held that the Independent Electoral Commission, although not subject to
5 At 45g-46d.
6 Section 233(1) of the Constitution of the Republic of South Africa Act 200 of 1993.
7 At 809G-810D.
16
national executive control, was an organ of state: 8 but that the fact that it was a
State structure and that it had to perfo rm its functions in accordance with
national legislation did not mean that it fell within the na tional sphere of
government.9 Because it was not subject to national executive control it stood
outside government and was not an organ of state within the national sphere of
government.10 A dispute with the Commission did not qualify as an
intergovernmental dispute: an intergovernmental dispute was ‘a dispute between
parties that [were] part of government in the sense of being either a sphere of
government or an organ of State within a sphere of government’.11
[22] The first respondent is, in so far as the determination of a language and
admission policy is concerned, not subject to executive control at the national,
provincial or local level and can therefor e, like the Electoral Commission, in so
far as the performance of those functions is concerned, not be said to form part
of any sphere of government. For the sa me reason its dispute with the first and
second appellants in respect of the language and admission policy determined by
it, is not an intergovernmental disput e as contemplated in s 41(3) of the
Constitution. The argument based on s 41 of the Constitution was therefore
correctly rejected by the court a quo.
[23] Subsections 7(2)(a) a nd (c) of PAJA provide:
8 At 936D (para 22).
9 At 940C (para 30).
10 At 940D (para 31).
11 At 936C-D (para 21).
17
‘(a) Subject to paragraph (c) no court or tribunal shall review an administrative action in
terms of this Act unless any internal reme dy provided for in any other law has first
been exhausted.’
‘(c) A court or tribunal may, in exceptional ci rcumstances and on application by the person
concerned, exempt such person from the ob ligation to exhaust any internal remedy if
the court or tribunal deems it in the interest of justice.’
[24] The court a quo held that the matter was unq uestionably one of urgency.
At stake were the interests of 21 small children whose educational future was in
question. It considered it self-evident that the question as to which primary
school they would attend should be resolv ed with as little delay as possible. A
reference of the dispute to the Pan S outh African Language Board (‘Pansab’) or
to arbitration would result in further delay. Furthermore, in the light of the fact
that the case had generated considerable public interest, and that questions of
language policy in public sc hools and the rights and powers of their governing
bodies were of great moment to many pe ople, it would be regrettable if the
matter was to be decided behind closed doors by a statutory board or by an
arbitrator. The cumulative effect of th ese factors was considered by the court a
quo to constitute exceptional circumstances ‘justifying the exemption of the
(first and second respondents) from any obligation whic h they might otherwise
have been under to exhaust their internal remedies’ in the interests of justice.
12
[25] The court a quo had a discretion to exem pt the first and second
respondents from the provisions of s 7(2)(a) of PAJA. The power of this court to
12 At 47a-i.
18
interfere on appeal with the exercise of such a discretion ‘is limited to cases in
which it is found that the trial Court ha s exercised its discretion capriciously or
upon a wrong principle, or has not brought its unbiased judgment to bear on the
question, or has not acted for substantial reasons’. (See Shepstone & Wylie v
Geyser NO 1998 (3) SA 1036 (SC A) at 1044J-1045A). In my view the court a
quo did not misdirect itself in any way and there are no grounds upon which this
court can interfere with its deci sion. The statement by the court a quo that it
would be regrettable if the issues in th is case were to be decided behind closed
doors by a statutory board or by an arbitrator was probably not intended to mean
that the matter would necessarily be decided behind closed doors but merely that
that would be a possibility were the matter referred to Pansab or to an arbitrator.
[26] The court a quo could have added that the first respondent had indicated
that if the second appellant was prepar ed to agree to a suspension of the
directive of 2 December 2004 it intended to approach Pansab or to refer the
dispute to arbitration. The second appella nt, acting on an instruction by the first
appellant, nevertheless im plemented the decision without affording the
respondents any opportunity to challenge th e validity of the dismissal of its
appeal to the first appellant. The first and second appellants thereby forced the
respondents to launch the urgent application to the court a quo. This fact in itself
constituted exceptional circumstances jus tifying the exemption of the first and
second respondents as aforesaid.
19
[27] The finding that this court cannot interfere with the court a quo ’s
dismissal of the contention that the proceedings were premature makes it
unnecessary to deal with another matter that was debated before us, namely the
question whether a referral of the matter to Pansab or to arbitration constituted
‘internal remedies’ as contemplated in PAJA.
[28] The court a quo held that the second appellant ’s directive of 2 December
2004 and the implementation thereof on 19 January 2005 were unlawful in that
they rode roughshod over the sec ond respondent’s la nguage policy by
converting the second respondent from a single medium into a parallel medium
school while it had no right to do so. 13 If the second appellant needed a remedy,
the court a quo held, his remedy was to call in aid the provisions of s 22 and to
withdraw from the first respondent it s function of determining the second
respondent’s language policy.14
[29] The first and second appe llants submitted that the court a quo erred in this
regard. They argued that in terms of s 29(2) of the Constitution everyone had the
right to receive education in the official language or languages of their choice in
public institutions where that education was reasonably practicable; that it was
reasonably practicable to provide education in English to the 40 learners referred
to in the directive of 2 December 2004 at the second respondent; that those 40
learners therefore had a constitutional right to receive education in English at the
second respondent; that the first responde nt’s right to determine the language
13 At 48a-b and 52a-b.
14 At 52a-b.
20
policy of the second respondent was, in terms of s 6(2), subject to the
Constitution, the Act and a ny provincial law; and that the second respondent’s
language policy determined by the first re spondent was therefore subordinate to
the constitutional right of the learners in question.
[30] In effect, the first and second a ppellants contended that s 29(2) of the
Constitution should be interpreted to mean that everyone had the right to receive
education in the official language of hi s or her choice at each and every public
educational institution where this was re asonably practicable. If this were the
correct interpretation of s 29(2), it wo uld mean that a group of Afrikaans
learners would be entitled to claim to be taught in Afrikaans at an English
medium school immediately adjacent to a an Afrikaans medium school which
has vacant capacity provided they can prove that it would be reasonably
practicable to provide education in Afrikaans at that school. So interpreted, since
the right in question extends to ‘everyone ’, this would entail that boys have a
constitutional right to be educated at a school for girls if reasonably practicable.
[31] In my view s 29(2) is not suscep tible to the interpretation for which the
appellants contended. The right of everyone to receive education in the official
language or languages of their choice in public educational institutions where
that education is reasonably practi cable is a right against the State. 15 The
Constitution recognizes that there may be various reasonable educational
alternatives available to the State to give effect to this right and has left it to the
15 Section 7(2) of the Constitution provides that the ‘Sta te must respect, protect, promote and fulfil the rights in
the Bill of Rights’. See Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC) para
20.
21
State to decide how best to do so. In or der to ensure the effective access to, and
implementation of, this right, the State must in terms of the provision consider
all reasonable educational alternatives , including single medium institutions.
Section 29(2) therefore empowers th e State to ensure the effective
implementation of the right by providing single medium educational institutions.
This is a clear indication that in terms of s 29(2) everyone has a right to be
educated in an official language of hi s or her choice at a public educational
institution to be provided by the State if reasonably practicable, but not the right
to be so instructed at each and every public educational institution subject only
to it being reasonably practicable to do so . It follows that the 40 learners in
question had a constitutional right to receive educati on in English in a public
educational institution provided by the St ate if reasonably practicable but, even
if it was reasonably practicable to pr ovide such education at the second
respondent, they did not have a constitu tional right to receive education in
English at the second respondent.
[32] In so far as schools are concerned, the State obviously considered how to
ensure effective implementation of the right provided by s 29(2), and the Act
reflects its conclusion. There is no suggestion that any of the provisions of the
Act are unconstitutional. On the contrary , counsel for the first and the second
appellants made it clear that it wa s not contended that the Act was
unconstitutional. In terms of the Act the first a ppellant must provide public
schools out of funds appropria ted for this purpose by the provincial legislature.
22
Except in the case of new schools, 16 the governance of the school and the
admission and language pol icy of the school are to be determined by the
governing body of the school subject to the provisions of the Act and any
applicable provincial law. Neither the Ac t, nor the Norms and Standards, confer
any power on the first or the second appe llants to determine the language or the
admission policy of a public school save in the case of a new public school.17
[33] In Laerskool Middelburg v Departementshoof, Mpumalanga Departement
van Onderwys 2003 (4) SA 160 (T) at 170I-171A and 171J-172A Bertelsmann J
held that the Norms and Standards provi ded a mechanism for the alteration of
the language policy of a public school. I do not agree. Section 6(1) of the Act
authorizes the Minister of Education to determine norms and standards for
language policy in public sc hools. It does not authorize the Minister of
Education him- or herself to determin e the language policy of a particular
school, nor does it authorize him or her to authorize any other person or body to
do so. As stated above, it is in terms of s 6(2) the function of the governing body
of a public school to determine the langua ge policy of the school subject to the
Constitution, the Act and any applicable provincial law. The admission and
language policy determined by the first respondent is not contrary to any
provision of the Constitution, the Ac t, the Western Cape Provincial School
Education Act or the Norms and Standards.
16 Section 16(7) of the Act provides that in the case of a new public school provided in terms of s 12 the
governance of that school vests in the HOD until a governing body has been constituted..
17 Section 16(7) of the Act and s V.D2 of the Norms and Standards.
23
[34] In any event the Norms and Sta ndards do not purport to authorize the
alteration of a public school’s language policy by anyone. According to the
heading of s V.D of the Norms and Sta ndards the section deals with the rights
and duties of the provincial education de partments. Section V.D3, in which it is
stated that it ‘is reasonably practicable to provide education in a particular
language of learning and teaching if at least 40 in grades 1 to 6 or 35 in grades 7
to 12 learners in a particular grade reque st it in a particular school’, would seem
to be no more than a guideline formulated by the Minister of Education as to
when the State would consider the consti tutional right to receive education in a
particular official language at a public educational institution to have been
established. Neither the Act nor the Norms and Standards purport to provide that
in the event of it being practicable to pr ovide education in a particular language
at a particular school, children who wish to be educated in that language are
automatically eligible for admission to that school for instruction in that
language.
[35] Counsel for the first and se cond appellants submitted that it was
unthinkable that the second appellant, who is obliged to provide public schools,
could not admit learners to the se cond respondent if it was reasonably
practicable to educate them at the second respondent in the language of their
choice. It would indeed be unfortunate if the second appellant has no remedy in
the event of an unreasonable refusal by a governing body to change its language
24
policy. However, that is not the case. The first and second appellants have
remedies in such an event.
[36] First, a refusal by the first responde nt to change the language policy of the
second respondent is an administrative action which is subject to review (s 1 and
6 of PAJA). Should the decision be unr easonable in the sense that no reasonable
person would in the circumstances have refused to change the language policy it
may be reviewed and set aside (s 6(2)(h) of PAJA).
[37] Second, the HOD may, subject to certain procedural requirements, on
reasonable grounds withdraw a function of a governing body (s 22 of the Act 18).
If the HOD determines on reasonable gr ounds that a governing body has ceased
to perform functions allocated to it in te rms of the Act, or has failed to perform
one or more of such functions, he or she must appoint sufficient persons to
perform all such functions or one or more of such functions, as the case may be,
for a period not exceeding three months (s 25(1)). The period may be extended
for further periods of three months or le ss but the total period may not exceed
18 The section reads as follows:
‘22 Withdrawal of functions from governing bodies
(1) The Head of Department may, on reasonable grounds, withdraw a function of a governing body.
(2) The Head of Department may not take action under subsection (1) unless he or she has-
(a) informed the governing body of his or her intention so to act and the reasons therefor;
(b) granted the governing body a reasonable opportunity to make representations to him or her
relating to such intention; and
(c) given due consideration to a ny such representations received.
(3) In cases of urgency, the Head of Department may act in terms of subsection (1) without prior
communication to such governing body, if the Head of Department thereafter-
(a) furnishes the governing body with reasons for his or her actions;
(b) gives the governing body a reasonable opportunity to make representations relating to such
actions; and
(c) duly considers any such representations received.
(4) The Head of Department may for sufficient reasons reverse or suspend his or her action in terms of
subsection (3).
(5) Any person aggrieved by a decision of the Head of Department in terms of this section may appeal
against the decision to the Member of the Executive Council.’
25
one year (s 25(2)). If the governing bo dy ceases to perform its functions the
HOD must ensure that a governing body is elected in terms of the Act within a
year of the appointment of persons to perform functions of the governing body
(s 25(3)).
[38] Section 20 provides that the gove rning bodies of public schools must
perform all the functions listed in th e section including all other functions
imposed upon the governing body by or under the Act. Section 21 makes
provision for the allocation by the HOD to a governing body of certain
additional functions upon application by such governing body. The first and
second appellants submitted that, properl y construed, s 22 allowed the HOD to
withdraw the additional functions of a go verning body allocated to it in terms of
s 21 of the Act, but not the functions allo cated to it in terms of s 20. However,
no basis for construing ‘function’ as rest ricted to functions allocated to the
governing body in terms of s 21 is to be found in the Act. It is highly unlikely
that after having referred to functions of governing bodies in s 20 and in s 21 the
legislature would in s 22 have intended the word ‘fu nction’ to refer only to
functions allocated in terms of s 21. It is equally unlikely that s 22 was intended
to exclude the withdrawal, in appropriate circumstances, of functions such as
those mentioned in s 20(1)(g), namely the administration and control of the
school’s property, and the buildings a nd grounds occupied by a school. In my
view the word ‘function’ in s 22(1) refers to any of the functions allocated to a
26
governing body in terms of the Act. It follows that any such function may in
terms of s 22 be withdrawn.
[39] An alternative submission advan ced on behalf of the first and second
appellants was that the de termination of a language and an admission policy
constituted the exercising of a power and not the performance of a function. I do
not agree. There can of course be no dou bt that governing bodies are entrusted
with the power to determine a language and admission policy but that does not
detract from the fact that it is their function to determine these policies.
[40] The first and second appellants argue d that even if s 22 were to be
interpreted as aforesaid, it could not be used to change a school’s language
policy. That was the case, the first an d second appellants submitted, because the
withdrawal of the function would have no effect as no provision was made in the
Act for the first or second appellants to determine a language policy if the
function to do so was withdrawn from the governing body. They submitted,
furthermore, that s 25 only applied in circumstances where the governing body
ceased to perform functions or failed to perform functions and not where a
function was withdrawn. It is quite corr ect that no provision is made in the Act
for the first and second appellants to de termine the language policy of a school
other than a new school. The second leg of the argument is, however, not
correct. If a function is withdrawn th e governing body ceases to perform that
function and s 25 becomes applicable.
27
[41] Yet a further argument as to why s 22 did not provide a remedy was that
the language policy of the second responde nt was entrenched in the constitution
adopted by the first respondent, which provi ded that the medium of instruction
at the second respondent was Afrikaan s, and that an amendment of the
constitution had to be approved by at l east six members of the first respondent.
The simple answer to this submission is that the constitution adopted by the first
respondent is its own constitution adopted in terms of s 18 of the Act which
provides that a governing body must func tion in terms of a constitution. The
persons appointed in terms of s 25 to perform a functio n withdrawn from a
governing body do not fu nction in terms of that co nstitution and are not bound
by its provisions.
[42] The court a quo therefore correctly held th at if the second appellant
needed a remedy it could call in aid the provisions of s 22 and, if in terms of that
section entitled to do so, could withdraw from the first respondent its function of
determining the second respondent’s language policy.
[43] The first and second appellants did not avail themselves of any of these
remedies but simply instructed and assisted the principal of the second
respondent to admit learners to the second respondent for instruction in English.
They were not entitled to do so. Although the department admits learners to a
public school (s 5(7)), the admission poli cy of the school is determined by the
governing body of the school. By admitting learners or instructing the principal
to admit learners contrary to the admi ssion policy of the sch ool the department
28
was substituting its own admission policy fo r that of the school. In so doing it
was acting unlawfully as it did not have the power to determine an admission
policy for the school. Even if the langua ge and admission policy determined by
the first respondent was invalid, the de partment or the first and second
appellants did not, in terms of the Act, have the power to determine a language
or admission policy for the second respondent . It follows that the directive of 2
December 2004 was unlawful.
[44] The court a quo proceeded to review and set aside the decision of the first
appellant to dismiss the appeal to him as well as the decision of the second
respondent to implement the directive of 2 December 2004. It held that the
decision of the first appellant had to be set aside in terms of s 6(2)(d) of PAJA
on the ground that he committe d an error of law in thinking that the second
respondent was entitled to issue hi s directive of 2 December 2004. 19 It was not
and could not be contended by the fi rst and second appellants that these
decisions could stand if the directive of 2 December 2004 were unlawful.
[45] Apart from setting aside the decision of the second respondent to put the
directive of 2 December 2004 into effect the court a quo held that the insistence
by the department’s officials that the learners and their parents attend the school
assembly against the wishes of its principal and the first respondent amounted to
unlawful interference by them in the gov ernment and professional management
19 At 52i.
29
of the second respondent. In this regard the court a quo relied on sections 16(1)
and 16(3) of the Act.20
[46] The first and second appellants relying on s 13 of the Western Cape
School Education Act contended that the professional management of a public
school is vested in the HOD. They acknowle dged that in terms of s 13(4) of that
Act the HOD had to delegate such powers to the principal of a public school that
were required for the effective professi onal management of such public school
but argued that in terms of s 61(3) of the Western Cape School Education Act a
delegation of such powers did not prevent the HOD from exercising such
powers. However, the Western Cape School Education Act is subordinate to the
Act which provides that the profession al management of a school must be
undertaken by the principal under the author ity of the Head of the Department
(s 16(3)). It is thus clear that the HO D must exercise his or her authority
through the principal of the school. He or she cannot do so through officials of
the department. The reason for this provi sion is rather obvious. The professional
management of a school requires a professional educator. The court a quo
therefore correctly granted the declarat ory order and interdict contained in
paragraphs 5 and 6 of its order.
[47] Counsel for the third appellants subm itted that it would not be in the best
interests of the 21 English learners to be transferred to another school during
their primary schooling. Relying on the provisions of s 28(2) of the Constitution,
20 At 54f-55d.
30
which provides that a child’s best interests are of paramount importance in every
matter concerning the child, she submitted that the court a quo’s order should be
replaced by an order that the learners be placed at the second respondent on a
permanent basis. In the a lternative she submitted that we should admit further
evidence so as to enable this court to determine whether the learners could be
accommodated at De Kuilen and that, in the event of our finding that they could,
we should order that they be placed at De Kuilen.
[48] The submission that it is in the be st interests of the 21 learners concerned
that they stay at the second respondent is based on the say so of some of the
parents of the learners, which in turn is based on the fact that the learners have
settled in well at the second respondent a nd that they are happy there. However,
in my view, no case has been made out th at it would be in the best interests of
the learners to stay at the second res pondent and for the following reasons there
is no reason to believe that their interests would be better served by an order that
they should remain at the second respondent:
a) The fact that they are at present happ y does not guarantee that they will in
future years be happy as a very small minority in a school that is otherwise
an Afrikaans medium school.
b) There is no reason to believe that they would be le ss happy at another
school. In this regard it should be bor ne in mind that the second respondent
was not their parents’ first choice.
31
c) It is unknown whether or not it woul d be possible to cater adequately for
their educational needs at the second respondent if they remain such a small
group.
d) The legislature clearly considered it in the best interests of learners that
they be educated in schools whic h are governed and professionally
managed in a manner that accords with the provisions of the Act. Given
the background to the dispute, to impose the learners in question on the first
respondent would be anomalous and would run counter to this goal.
e) The judge a quo carefully considered their interests in formulating his order
and its terms were designed to ensure that their placement at another school
would cause minimal disruption in their lives.21
f) The respondents indicated during argument that they have no objection to
the addition at the end of paragraph 7 of the order by the court a quo of the
following sentence: ‘The placement of the children at another suitable
school is to be done taking into account the best interests of the children.’
[49] In the light of the aforegoing th e question as to what the position would
have been had it been held to be in the be st interests of the 21 learners to stay at
the second respondent need not be consid ered. In the event, should it transpire
that it is not in the best interests of th e learners in question to be moved, the
appellants are free to approach a court fo r appropriate relief. At that stage it
21 At 56g-57d.
32
would be necessary to consider to wh at relief, if any, having regard to
competing rights and interests, the appellants are entitled.
[50] The third appellants’ altern ative argument that the possible
accommodation of the learners at De Kuile n be investigated can be disposed of
easily. Neither De Kuilen nor its governing body is a party to these proceedings.
No order can therefore be made that the learners be placed at De Kuilen.
[51] Counsel for the first and sec ond appellants submitted that the court a quo
should not have ordered the second appellant to report to the first respondent
what progress had been made with the placing of the children at another school.
However, it is necessary that the firs t respondent should kno w what progress is
being made in order to plan the future utilization of the school buildings and also
to avoid its being faced, once again, at the end of the school year with a fait
accompli as was the case on 19 January 2005. In the circumstances the court a
quo cannot be faulted for having made the order.
[52] During the third day of the hearing in the court a quo, after counsel for the
respondents’ address and during the first and second appellants’ address the first
and second appellants applied for leave to file further affidavits. The first and
second appellants submitted that the court a quo erred by refusing to admit the
affidavits. The affidavits dealt with alle gations made in the founding affidavits
regarding the meeting on 18 January 2005, and with disputes raised in the
replying affidavits in respect of allega tions made in the answering affidavits
relating to the condition and use of prefab ricated structures at De Kuilen, the
33
question whether the English classes at De Kuilen were filled to capacity and the
capacity of the second respondent to accommodate more learners. The court a
quo dismissed the application because of its unexplained late ness ; the urgency
of the matter; and the fact that delay wa s highly undesirable as the interests of a
number of children were at stake.
[53] The court a quo thought that delay would be caused by the admission of
the further affidavits by the first and second appellants, in that the respondents
would have had to be given an opportunity to deal with the matters raised in the
further affidavits by way of further affidavits in reply. Subsequent events proved
the court a quo to have been correct. As a result of the first and second
appellants contending in their heads of argument that the court a quo erred in
dismissing their application, the first and second respondents filed a conditional
application for the admission of furthe r affidavits. Counsel for the first and
second appellants in turn indicated durin g argument before us that, should the
conditional application be successful, they would want to file yet a further set of
affidavits.
[54] The court a quo had a discretion to allow or disallow the further set of
affidavits. It did not misdirect itself in any way in dismissing the application and
there is no basis on which this court can interfere with its ruling. In any event,
counsel for the first and s econd appellants conceded that in the light of the
34
Plascon-Evans rule22 all these additional affidavits could make no difference to
the outcome of the case.
[55] All that remains to be dealt with is the order by the court a quo that the
costs of the proceedings in the court a quo are to be paid by the first and second
appellants on the scale as between attorney and client.
[56] In his answering affidavit the fi rst appellant said in regard to pre-
fabricated classrooms at De Kuilen, wh ich the first respondent contended could
be used to accommodate the 40 English learners, that he had been advised by
Caroline that these classrooms had been erected prior to 1971 and that they were
in a dilapidated state and posed a serious safety hazard. Thes e allegations were
denied in the replying affidavits filed by the first and second respondents, one of
which was deposed to by a Mr Liebenberg . He states that he is a qualified
mechanical and electrical engineer, that he inspected the four prefabricated
structures and a garage located on the grounds of De Kuilen and found that three
of them appeared to be in good condition while the fourth one was being
renovated. He also found that children were present in three of the four
structures under the supervision of adult females.
[57] As is apparent from the further affidavits which the first and second
appellants sought to file, they did not di spute that three of the prefabricated
structures were in a good condition and that a fourth was being renovated but
wanted to explain how the incorrect allegation came to be made. In the
22 See Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634E-635C.
35
circumstances the court a quo was entitled to accept the correctness of the
allegations in the replying affidavit wh ich it did in holding that the first and
second respondents should have verified the information. 23 Had they done so,
the court a quo held, they would have realiz ed that these prefabricated
classrooms were available and would reduce De Kuilen’s pupil classroom
ratio.24 It held, furthermore, that on the false premise that the learners could not
be accommodated at De Kuilen the department threatened that the alternative to
leaving them at the second respondent would be to accommodate them
temporarily at a school for severely mentally handicapped learners. For being
prepared to use this threat after having imposed their will on the unwilling
school, and having achieved a fait accompli by engineering the children’s
attendance at the second respondent, the court a quo thought that the first and
second appellants had to bear a hea vy burden of public opprobrium which
should be reflected in an appropriate costs order.25
[58] Once again the court a quo exercised a discretion and once again it did
not commit a misdirection. There are no grounds upon which this court can
interfere with its decision.
23 at 58f-g.
24 At 58h.
25 At 58i-59b.
36
[59] For these reasons the appeal is dism issed with costs, including the costs of
two counsel save for the addition at the end of paragraph 7 of the court a quo’s
order of the following: ‘The placement of the children at another suitable school
is to be done taking into account the best interests of the children.’
_________________
P E STREICHER
JUDGE OF APPEAL
CAMERON JA)
BRAND JA)
LEWIS JA) CONCUR
MLAMO JA)