Head of Department : Mpumalanga Department of Education and Another v Hoërskool Ermelo and Another (CCT40/09) [2009] ZACC 32; 2010 (2) SA 415 (CC) ; 2010 (3) BCLR 177 (CC) (14 October 2009)

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[2009] ZACC 32
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Head of Department : Mpumalanga Department of Education and Another v Hoërskool Ermelo and Another (CCT40/09) [2009] ZACC 32; 2010 (2) SA 415 (CC) ; 2010 (3) BCLR 177 (CC) (14 October 2009)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT
40/09
[2009]
ZACC 32
In the matter between:
HEAD OF
DEPARTMENT:
MPUMALANGA
DEPARTMENT OF EDUCATION First Applicant
MINISTER
FOR EDUCATION Second Applicant
and
HOËRSKOOL
ERMELO First Respondent
SCHOOL
GOVERNING BODY OF
HOËRSKOOL
ERMELO Second Respondent
FEDERATION
OF GOVERNING BODIES FOR
SOUTH
AFRICAN SCHOOLS (FEDSAS) Amicus Curiae
Heard on : 20 August
2009
Decided on : 14
October 2009
JUDGMENT
MOSENEKE DCJ:
Introduction
This case
concerns the right to receive education in the official language of
one’s choice in a public educational institution.
The issue
emerges from a dispute between the Head of Department of Education
of the province of Mpumalanga (HoD or first applicant)
and a public
high school in his area of jurisdiction known as Hoërskool Ermelo
(the school) and its governing body, cited as
the first and second
respondents respectively. The dispute arises from the school’s
language policy, which stipulates Afrikaans
as the only medium of
instruction. The dispute requires us to answer the question
whether the HoD may lawfully revoke the function
of the governing
body of a public school to determine its language policy and confer
the function on an interim committee appointed
by him. And, if so,
whether the interim committee so appointed, in turn, lawfully
determined a new language policy for the school.
The case
arises in the context of continuing deep inequality in our
educational system, a painful legacy of our apartheid history.
The
school system in Ermelo illustrates the disparities sharply. The
learners per class ratios in Ermelo reveal startling disparities
which point to a vast difference of resources and of the quality of
education. It is trite that education is the engine of any
society. And therefore, an unequal access to education entrenches
historical inequity as it perpetuates socio-economic disadvantage.
The questions
are presented in an application for leave to appeal to this Court.
The HoD and the Minister for Education (Minister
or second
applicant) seek leave to appeal against a decision of the Supreme
Court of Appeal.
1
The decision upheld an appeal by the school and its governing body
and set aside an order of the full bench of the North Gauteng
High
Court, Pretoria (High Court) which had ruled in favour of the HoD
and the Minister that the interim committee had lawfully
altered
the language policy of the school.
2
The Federation
of Governing Bodies for South African Schools (FEDSAS) has been
admitted as amicus curiae. FEDSAS is a non-profit-making
legal
entity and a national representative organisation for school
governing bodies. It describes its purpose as being to inform,
mobilise, organise and develop school governing bodies to achieve
and “uphold the highest recognised international educational
standards.” It has over 1 000 member schools throughout South
Africa comprising a mix of primary and secondary public schools
offering either a single medium of education in Afrikaans or
English or a parallel medium of Afrikaans and English.
The school is
a member of FEDSAS. It is fair to characterise the submissions
made by FEDSAS to this Court as being substantially
similar to and
supportive of the submissions of the school and the governing body
on the process issues that arise. Like the
school, FEDSAS supports
the decision of the Supreme Court of Appeal which is the target of
the present application for leave
to appeal.
Background
Hoërskool
Ermelo is now 93 years old. By all accounts it has an excellent
and enviable academic record. We are told, by way
of example, that
for five years prior to the launch of these proceedings, the school
had a 100% matric pass rate and in 2006
had 178 matric
distinctions. It has always been an exclusively Afrikaans medium
school. On behalf of the HoD and the Minister
it was contended
that the language policy of the school was determined 93 years ago
and remained fixed as exclusively Afrikaans
up to 2007 when it was
changed by an interim committee appointed by the HoD. However, the
evidence paints a somewhat different
picture. On 25 January 2005
the school’s governing body adopted an admission policy. The
full text of the policy is part
of the papers. Whilst it is so
that there is no stand-alone document containing a language policy,
it is clear that the admission
policy deals with and commits the
school to Afrikaans as its only medium of instruction.
In 2007, the
school had 44 educators and 32 classrooms and an enrolment of 685
learners. Thirty-one of the educators were appointed
and paid by
the Department of Education (Department) and the rest (23%) were
appointed and paid by the school as it is entitled
to do under the
applicable statute.
The Department
is quick to point out that, comparatively, the school has excess
capacity because the national ratio is 35 learners
per classroom.
On this basis 32 classrooms can accommodate 1 120 learners.
At the present enrolment level at the school,
the Department
concludes, there must be at least 15 classrooms available for use
by other learners.
Over the
years, the enrolment at the school has been dwindling, even though
the population of the town of Ermelo is growing.
The school is
built to accommodate 1 200 learners. In the year 2000, it had
an enrolment of 990 learners. By 2007, only
685 learners had
enrolled. Of these, 589 were high school learners in grades 8 to
12. The remaining 96 were primary school
learners in grades 1 to
7. The enrolment of learners in grades 1 to 7 was a private
arrangement as the school was not a combined
high school and
according to the Department there was no official arrangement with
it to admit primary school learners. The
governing body explains
that primary school pupils are enrolled for subjects offered only
at the high school and nowhere else
in Ermelo. The enrolment also
included 34 black learners who have agreed to receive tuition in
Afrikaans. From this, the school
is quick to argue that its
admission policy is non-racial because it does not discriminate on
the ground of race.
Besides the
explanation relating to admitting primary school learners in a high
school, the school has advanced two other accounts
of the excess
classroom capacity. First, they say that the school has more
educators than classrooms. All the classrooms are
occupied because
every classroom has been allocated to at least one educator and
therefore there are no spare classrooms. Second,
the school
concedes that many of its classes are smaller than the national
average of 35 learners per class but explains that
it is so because
its curriculum includes a wider choice of subjects than the
national average. This means, according to the
school, the school
can accommodate more learners for instruction in Afrikaans as more
learners can be accommodated in existing
classes. However, it
cannot accommodate a parallel stream of learners in English because
it already uses all its classrooms.
If the school were to
accommodate an English stream it would have to cut down on the
wider curriculum it now offers in Afrikaans
and, in so doing,
enlarge existing classes in order to free classrooms for use by the
English stream learners.
The picture
would be incomplete if I were to omit the position that obtained in
other schools in the immediate school circuit
of Ermelo. In early
2007, the shortage of classrooms at the other schools in Ermelo and
in the immediate area was a matter of
grave concern to the
Department, parents and learners. The other schools were filled to
capacity. At Ligbron School, 20 classrooms
were being used to
accommodate 917 learners (giving an average classroom occupation of
approximately 45 learners). At Ermelo
Combined School, 463
learners were being accommodated in 14 classrooms (giving an
average classroom occupation of about 33 learners).
At Lindile
School, 1 799 learners were being accommodated in 29
classrooms (giving an approximate average classroom occupation
of
62 learners), and at Cebisa School, there were 19 classrooms to
accommodate 926 learners (giving an average classroom occupation
of
around 48 learners). At Ithafa School, 1 677 learners were
using 36 classrooms (giving an average classroom occupation
of
approximately 46 learners), and at Reggie Masuku School, there were
21 classrooms available to accommodate 804 learners (giving
an
approximate average classroom occupation of 38 learners).
At the
beginning of 2006, the Department approached the school requesting
that it admit 27 grade 8 learners who could not be accommodated
at
any of the English medium schools in Ermelo because they were
already full to capacity. The school refused to admit the learners
and suggested to the Department that the learners be accommodated
in two vacant buildings to be found in Ermelo. The Department
did
not accept the suggestion. In its assessment, neither of the
buildings was suitable for setting up a school. It explains
that
the buildings will have to be acquired or rented and would require
extensive renovations in order to make them suitable
as classrooms.
The Department adds that it could not justify the acquisition of
the premises whilst there were classrooms available
in existing
public schools.
Ultimately,
the learners were enrolled at a neighbouring English medium school,
but the school accommodated them in a converted
laundry on its
premises. The laundry was partitioned for use as classrooms. The
Department provided and paid three educators
who gave instruction
in English. The laundry space provided to the learners was not to
the liking of the Department. It later
lodged a complaint with the
South African Human Rights Commission that the school treated these
learners as second-class citizens.
The school then and now still
denies the accusations that it ill-treated and unfairly
discriminated against the learners. For
present purposes, the less
said about this sorrowful spat over makeshift classrooms in a
disused laundry the better.
On 15 August
2006, the circuit manager of the Department, Mr Hlatshwayo, sent a
letter to all school principals in Ermelo. In
it he reminded them
of the classroom space shortage experienced at the beginning of
2006 and invited suggestions on how grade
8 learners who chose to
be taught in English in Ermelo could be housed in 2007. In his
reply to the invitation, the principal
of the school suggested that
the Department establish a new English medium school at the
Convent, a building which stood vacant
and was seemingly available.
The Department did not respond to the school’s suggestion. It
is however clear from the papers
of the Department before this
Court that it considered the Convent to be unsuitable for
establishing a school because it was
in a dilapidated state and
because its location may expose learners to danger because of its
closeness to a public road.
On 26 October
2006 the HoD wrote to the school governing body reiterating his
concern about the learners taught in English who
were accommodated
in the laundry at the school. He wrote that the school could
accommodate these learners in proper classrooms
because the
school’s learner-to-classroom ratio was only 23:1. He requested
the school, citing section 20(1)(k) of the South
African Schools
Act
3
(Schools Act) to relocate the learners from the laundry to
classrooms. On 8 November 2006, the chairperson of the school
governing
body wrote back to the HoD and refused to accede to the
request. He took the stance that the request had no binding force
of
law and that the learners were at the school on a temporary
arrangement inasmuch as the Department had earlier informed the
school
that the learners had already been placed in other schools
for 2007.
The academic
year of 2007 commenced on Wednesday 10 January. The HoD invited
the school principal and the chairperson of the
governing body to a
meeting on Tuesday 9 January 2007 to discuss the admission of
learners. However, the HoD did not turn up
for the meeting. In
his stead, departmental officials were present who handed over a
letter from the acting Regional Director
addressed to the
principal. The letter recorded that there were 113 learners, who
choose to be taught in English who were expected
to enrol for grade
8. It was, however, not possible to accommodate them in English
medium schools in Ermelo because they were
all full to capacity.
The letter stated that if the school did not admit these learners,
they would “receive no education
at all in the year 2007” and
that the principal was “instructed” to admit the learners to
the school from the following
day and that if he did not do so
“disciplinary action” would be taken against him “without
further notice”.
On the very
same afternoon of 9 January 2007, the chairperson of the school
governing body wrote back to the acting Regional Director
and to
the principal of the school. He instructed the principal to admit
learners only in accordance with the school’s admission
policy
and that all grade 8 learners are welcome provided that they submit
to the school’s Afrikaans language policy. He conveyed
to the
acting Regional Director the same message that all learners were
welcome to be admitted to the school but only if they
submitted to
tuition in Afrikaans.
The following
day, Wednesday 10 January 2007, 71 learners and their parents
arrived at the school for enrolment. They were accompanied
by
officials from the Department. The principal interviewed 8 or so
of the learners and their parents and in turn explained
to them
that each of the learners was eligible for admission only if he or
she agreed to be taught in Afrikaans. After some
altercation
between the principal and the officials, the learners and their
parents left the school. None of the learners was
admitted to the
school.
The evidence
records no further interaction between the HoD or the Department
and the school until 25 January 2007.
In the
Department’s papers, the HoD explains that within the Ermelo
circuit, the school was the only high school not filled
to
capacity. Statistically, there should have been approximately 15
classrooms available to accommodate new grade 8 learners
even if
they did not meet the requirement of being Afrikaans-speaking or
did not agree to be taught in Afrikaans. It was the
Department’s
emphatic view that the school had excess classroom capacity and
that it was not appropriate for it to refuse to
admit grade 8
learners who obviously needed to be admitted to a high school. The
HoD formed the view that the school’s governing
body acted
unreasonably in refusing, despite repeated requests, and given its
excess classroom space, to alter its language policy
in order to
facilitate the admission of the stranded grade 8 pupils from the
Ermelo neighbourhood.
On Thursday 25
January 2007, departmental officials delivered two letters to the
school. The one was a letter from the HoD to
the governing body of
the school and the other was a copy of the letter of appointment of
members of an interim committee. The
letter informed the school
governing body that the HoD had decided to withdraw their function
in determining the school’s language
policy with immediate effect
in view of the current crisis and the urgent matter that there are
about 113 learners who were stranded
at home. The HoD purported to
act in terms of sections 22(1) and (3)
4
and 25(1)
5
of the Schools Act. The letter further recorded that because the
learners had to be accommodated immediately, the HoD had decided
to
appoint an interim committee for three months to perform the
function in order to ensure that the stranded English learners
were
admitted to the school. The letter continued that the purpose
could be achieved only by the adoption of a new language
policy,
which would include English as a medium of instruction.
On the papers,
there is a dispute whether the HoD informed the governing body of
his decision to withdraw the function of determining
the language
policy before or only after the interim committee had been
established. Given the conclusion I reach later, it
is not
necessary to resolve this. What is beyond dispute is that the HoD
sought to do two things. He revoked the power of the
governing
body to set the language policy and conferred the power on an
interim body, which instantly altered the policy to parallel
medium
in order to permit the admission of the stranded learners.
The committee
was appointed by the HoD from names recommended by officials of the
Department. The appointees were drawn from
principals of schools
in Ermelo. The HoD convened a meeting of the interim committee
around midday on 25 January 2007. Each
committee member was given
a letter of appointment. The letter recorded that the school’s
Afrikaans language policy had effectively
prevented the 113
learners from being admitted to the school and that for that reason
the school’s governing body had been
stripped of its power to
determine its language policy. The letter explained that the HoD
had decided to appoint the interim
committee in terms of section 25
of the Schools Act, with immediate effect, to determine the
language policy of the school.
The letter requested the committee
to ensure that the language policy determined by the interim
committee would enable the learners
to be admitted to the school as
a matter of urgency.
The very
following day, on 26 January 2007, the officials of the Department
accompanied by the parents and their children arrived
at the school
seeking to have their children enrolled. The parents and the
officials alike appeared to the principal to be under
the
impression that the school’s language policy had changed and that
the learners who wanted to be taught in English were
accordingly
eligible for admission. Clearly, the news had travelled faster
than the outcome of the deliberations of the interim
committee. On
this occasion again, the principal told them that he was not aware
of any new language policy and that he could
not, in the face of
the school’s exclusive language policy, admit the learners who
sought to be taught in English.
As will
appear, on 29 January 2007 the school governing body as a matter of
urgency launched an application to the High Court
to set aside the
decision of the HoD to withdraw the function of determining the
language policy from the governing body. As
matters turned out,
the draft of the new language policy was finalised and adopted by
the committee only on 29 January 2007.
The amended
language policy recorded that the languages of teaching at the
school would be English and Afrikaans which the interim
committee
described as a “Parallel Medium” of instruction. In that way,
it enabled the learners who chose to be taught in
English to be
admitted to the school. On the strength of the new language policy
a small number of grade 8 learners were admitted
to the school.
It is common
cause, however, that this decision was taken without consulting
with the school governing body, the teaching staff,
learners
already admitted to the school or their parents. The members of
the interim committee, being outsiders to the school,
did not have
the benefit of the views and concerns of all stakeholders, nor did
they gather any information on the school’s
language policy other
than that provided by the HoD in his letter of mandate.
In the High
Court
On 29 January
2007, the respondents applied to the High Court for an urgent
interim order setting aside the decision of the HoD
and restraining
the interim committee from altering the school’s medium of
instruction. However, several interlocutory court
processes were
to precede the final hearing of the substantive application by the
full bench on 2 September 2007.
6
In the substantive application, the respondents sought an order
that the decision of the HoD to withdraw, on an urgent basis,
the
school governing body’s function to determine the language policy
and at the same time appointing an interim committee
to determine
the policy in accordance with the HoD’s instructions be reviewed
and set aside. In the alternative, the respondents
sought an order
to review and set aside the language policy determined by the
interim committee.
The full bench
of the High Court dismissed the substantive application and refused
leave to appeal to the Supreme Court of Appeal.
That Court,
however, later granted the applicants leave to appeal to it.
The reasoning
of the High Court was clearly inspired by the interpretation of
sections 22 and 25 of the Schools Act that the Supreme
Court of
Appeal adopted in
Minister of Education, Western Cape, and
Others v Governing Body, Mikro Primary School, and Another
.
7
In that case, a unanimous Supreme Court of Appeal found that, in
terms of section 22(1)
8
of the Schools Act, the HoD is entitled to revoke, and, in
appropriate circumstances, on an urgent basis, any function of a

school governing body, including the function to determine a
school’s language policy. The Supreme Court of Appeal further
held in
Mikro School
that once a function of the governing
body has been withdrawn, the provisions of section 25 of the
Schools Act apply. This means
that the governing body ceases to
perform the function for the purposes of section 25, such that the
HoD is entitled to “appoint
sufficient persons to perform all
such functions for a period not exceeding three months”.
9
Relying
squarely on this reasoning, the High Court concluded that, on the
facts of this case, the governing body had unreasonably
refused to
review its language policy, and in so doing prevented the admission
of some 113 grade 8 learners who chose to be taught
in English.
Accordingly, the HoD was entitled to revoke the power to determine
the language policy under section 22, and to
confer the power on an
interim committee in terms of section 25.
The High Court
found that whilst the admission crisis in 2006 and 2007 in Ermelo
may have been caused, at least in part, by the
HoD and the
Department, the admission of learners to receive education at the
beginning of 2007 was an urgent matter. It reasoned
that, in any
event, the learners who were entitled to receive education had
nothing to do with the failure of the Department
to provide
classroom accommodation for them in time. The High Court concluded
that the appointment of the interim committee
was authorised by
section 25 of the Schools Act and that the new language policy was
set lawfully and was accordingly binding
on the school and its
governing body.
Supreme
Court of Appeal
On appeal, the
Supreme Court of Appeal reversed the decision of the High Court.
It characterised the dispute as solely about
the rule of law, and
not language policy. It made the following order:
“
1. The appeal is upheld.
2. The order of the court a quo
is set aside and replaced by the following:
‘
a. The first respondent’s
decision to withdraw the function of the governing body of Hoërskool
Ermelo to determine the language
policy of the school is set aside.
b. The first respondent’s
decision to appoint an interim committee to perform the function of
the governing body to determine
the language policy of Hoërskool
Ermelo is set aside.
c. The decision of the interim
committee to amend the language policy of Hoërskool Ermelo from
Afrikaans medium to parallel medium
is set aside.
d. Learners that have enrolled
at Hoërskool Ermelo since 25 January 2007 in terms of parallel
medium language policy shall be entitled
to continue to be taught
and write examinations in English until the completion of their
school careers.
e. The costs of the application
are to be paid by the first and eighth respondents jointly and
severally, the one paying, the other
to be absolved.’
3. The costs of the appeal are
to be paid by the first and eighth respondents jointly and
severally, the one paying, the other to
be absolved.”
In this case,
the Supreme Court of Appeal found that the power to withdraw
functions under section 22(1) and (3) of the Schools
Act may be
exercised only in relation to the functions allocated to a
governing body in terms of section 21. Under that provision,
the
functions an HoD may allocate to a governing body, on its request,
are limited to the following: maintaining and improving
school
property, buildings and grounds;
10
determining the extra-mural curriculum of the school and choice of
subject options;
11
purchasing text books and other educational materials or
equipment;
12
paying for services to the school;
13
providing an adult basic education and training class or centre;
14
and other functions consistent with the Schools Act and any
applicable provincial law.
15
The functions specified in section 21, the Court found, did not
include the determination of language policy. That power is
given
to a governing body by section 6(2) of the Schools Act.
16
The Court
concluded that the HoD had no power whatsoever to revoke the
competence of the school to determine language policy,
and that
this power vests exclusively in the governing body. The Court
17
accordingly overruled the interpretation given to section 22 of the
Schools Act in
Mikro School
, and found that the HoD had
acted unlawfully. The Court further found that, even if the HoD
had the power contended for under
section 22, the exercise of the
power was vitiated by procedural unfairness arising from the manner
in which the committee had
been appointed and the procedure it had
followed in setting the revised language policy.
The practical
effect of the judgment of the Supreme Court of Appeal is that the
parallel medium policy determined by the interim
committee has been
set aside, and that the single medium policy that preceded it has
been restored. It however preserved the
position of learners who
have been admitted to the school under the parallel medium policy
until they complete grade 12.
Issues
It is
necessary to dispose of some preliminary issues. These are, first,
whether the dispute to be resolved raises a constitutional
issue,
and if it does, second, whether it is in the interests of justice
to grant leave to appeal. Past these hurdles, and before
resolving
each of the crucial issues, I will set out the constitutional and
legislative matrix which governs the dispute.
I first pause
to draw attention to the sharp difference between the parties on
how to characterise the issues to be decided.
The school and the
governing body urged us to look at this case as being only about
the principle of legality and the proper
exercise of administrative
power and not about the language policy of the school. The HoD and
the Minister assumed a different
stance. They contended that the
core of the dispute is the appropriateness of the school’s
language policy which in effect
has a disparate impact of excluding
learners who choose to be taught in English. On the facts of this
case, these are exclusively
black learners.
I agree that
issues of legality and administrative justice do arise pointedly
and call for resolution. It is, however, also true
that the
exclusive language policy arises just as sharply. In fact the
substantive and underlying dispute between the parties
is not
merely procedural. It is also about the appropriateness of the
governing body’s inflexible stance on an exclusive medium
of
instruction. The HoD and the Minister argued that it is
unreasonable for the school to preserve its Afrikaans-only language
policy in the face of dwindling learner enrolment and increasing
demand for high school instruction in English. On the other
hand,
the school complained that its language policy was altered in a
manner that was procedurally unfair.
In my view, it
would be both unrealistic and unjust to look at only one of these
two scrambled issues. Both are live disputes
and both demand our
resolution within the framework of values created by section 29(2)
of the Constitution. Confronted with
comparable issues, O’Regan
J, in
Premier, Mpumalanga, and Another v Executive Committee,
Association of State-Aided Schools, Eastern Transvaal
,
18
had the following to say:
“
This
case highlights the interaction between two constitutional
imperatives, both indispensable in this period of transition.
The first is the need to eradicate patterns of racial
discrimination and to address the consequences of past
discrimination
which persist in our society, and the second is the
obligation of procedural fairness imposed upon the government.
Both
principles are based on fairness, the first on fairness of
goals, or substantive and remedial fairness, and the second on
fairness
in action, or procedural fairness.  A characteristic
of our transition has been the common understanding that both need

to be honoured.”
19
The following
issues therefore arise for determination:
Did the HoD have the power under section 22 to revoke the language
policy the governing body adopted in terms of section 6(2)
of the
Schools Act?
If so, did the HoD withdraw the function on reasonable grounds and
in a procedurally fair manner?
Did the HoD have the power to appoint an interim committee to
decide a school language policy under section 25 of the Schools
Act?
If so, was the interim committee constituted in a procedurally fair
and lawful manner?
Did the interim committee carry out its mandate in a lawful and
procedurally fair manner?
What order, if any, would be just and equitable?
Constitutional
issue
The right to
receive education in the official language of one’s choice in a
public educational institution where it is reasonably
practical is
located in section 29(2) of the Constitution.
20
In order to give effect to this right, the same provision imposes
a duty on the state to consider all reasonable educational
alternatives, including single medium institutions, taking into
account what is equitable, practicable and addresses the results
of
past racially discriminatory laws and practices. The Schools Act
is legislation that seeks to give effect to this constitutional
safeguard. It is thus self-evident that this case requires us to
interpret and enforce constitutional provisions and also calls
on
us to construe legislation that gives content to constitutional
guarantees.
21
It admits of
no debate that the current case raises important constitutional
issues allied to the right to receive education and
the obligations
of the state to ensure that the right is given effect to in public
schools. The very interpretation of section
6(2) and of section 22
of the Schools Act in the light of the Constitution raises
constitutional matters of considerable importance.
Is
it in the interests of justice to grant leave?
There can be
no doubt that it is in the interests of justice to hear and
determine the issues presented in the case. A proper
understanding
of language rights as an incident of the right to a basic education
is self-evidently a matter of considerable
private and public
interest. Moreover, here we are confronted by live learners,
supported by their parents, whose vital interest
in receiving
education, although they are not cited as parties to the dispute,
is directly on the line. Also, here we are dealing
with a live
dispute between the school and its governing body, the executive
government and the broader school community, all
of whom harbour a
deep interest in the language of instruction. I would, without
hesitation, grant leave to appeal.
Constitutional
and statutory matrix
Apartheid has
left us with many scars. The worst of these must be the vast
discrepancy in access to public and private resources.
The
cardinal fault line of our past oppression ran along race, class
and gender. It authorised a hierarchy of privilege and
disadvantage. Unequal access to opportunity prevailed in every
domain. Access to private or public education was no exception.

While much remedial work has been done since the advent of
constitutional democracy, sadly deep social disparities and
resultant
social inequity are still with us.
It is so that
white public schools were hugely better resourced than black
schools. They were lavishly treated by the apartheid
government.
It is also true that they served and were shored up by relatively
affluent white communities. On the other hand,
formerly black
public schools have been and by and large remain scantily
resourced. They were deliberately funded stingily by
the apartheid
government. Also, they served in the main and were supported by
relatively deprived black communities. That is
why perhaps the
most abiding and debilitating legacy of our past is an unequal
distribution of skills and competencies acquired
through education.
In an
unconcealed design, the Constitution ardently demands that this
social unevenness be addressed by a radical transformation
of
society as a whole and of public education in particular. This the
Constitution does in a cluster of warranties. I cite
only a
handful. Section 1(a) entrenches respect for human dignity,
achievement of equality and freedom.
22
Section 6(1) read with section 6(2)
23
warrants and widens the span of our official languages from a
partisan pair to include nine indigenous languages which for long
have jostled for space and equal worth. Sections 9(1) and (2)
entitle everyone to formal and substantive equality.
24
Section 9(3) precludes and inhibits unfair discrimination on the
grounds of, amongst others, race and language or social origin.
25
Section 31(1) promises a collective right to enjoy and use one’s
language and culture.
26
And even more importantly, section 29(1) entrenches the right to
basic education and a right to further education which, through
reasonable measures, the state must make progressively accessible
and available to everyone.
27
Before I
examine section 29(2) of the Constitution, it may be appropriate to
echo and embrace the tribute Sachs J paid to minority
language
rights in general and to Afrikaans in particular in
E
x
Parte Gauteng Provincial Legislature: In Re Dispute Concerning the
Constitutionality of Certain Provisions of the Gauteng School
Education Bill of 1995
:
28
“
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. 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.
“
At the
same time, these assumptions have to be located in the context of
three important considerations highlighted by the Constitution.”
29
(Footnotes omitted.)
Of course,
vital parts of the “patrimony of the whole” are indigenous
languages which, but for the provisions of section 6
of the
Constitution, languished in obscurity and underdevelopment with the
result that at high school level, none of these languages
have
acquired their legitimate roles as effective media of instruction
and vehicles for expressing cultural identity.
And that
perhaps is the collateral irony of this case. Learners whose
mother tongue is not English but rather one of our indigenous
languages, together with their parents, have made a choice to be
taught in a language other than their mother tongue. This occurs
even though it is now well settled that, especially in the early
years of formal teaching, mother tongue instruction is the foremost
and the most effective medium of imparting education. Ample
literature indicates that in Africa the former colonial languages
have become the dominant medium of teaching.
30
Professor Kwessi Kwaa Prah describes this as the “language of
instruction conundrum in Africa”.
31
However, I need say no more about this irony because the matter
does not arise for adjudication.
For purposes
of this case, the crucial provision is section 29(2) of the
Constitution. It provides:
“
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 implementation of, this right,
the state must consider all
reasonable educational alternatives, including single medium
institutions, taking into account—
(a) equity;
(b) practicability; and
(c) the need to redress the
results of past racially discriminatory laws and practices.”
The provision
is made up of two distinct but mutually reinforcing parts. The
first part places an obvious premium on receiving
education in a
public school in a language of choice. That right, however, is
internally modified because the choice is available
only when it is
“reasonably practicable”. When it is reasonably practicable to
receive tuition in a language of one’s
choice will depend on all
the relevant circumstances of each particular case. They would
include the availability of and accessibility
to public schools,
their enrolment levels, the medium of instruction of the school its
governing body has adopted, the language
choices learners and their
parents make and the curriculum options offered. In short, the
reasonableness standard built into
section 29(2)(a) imposes a
context-sensitive understanding of each claim for education in a
language of choice. An important
consideration will always be
whether the state has taken reasonable and positive measures to
make the right to basic education
increasingly available and
accessible to everyone in a language of choice. It must follow
that when a learner already enjoys
the benefit of being taught in
an official language of choice the state bears the negative duty
not to take away or diminish
the right without appropriate
justification.
32
The second
part of section 29(2) of the Constitution points to the manner in
which the state must ensure effective access to and
implementation
of the right to be taught in the language of one’s choice. It is
an injunction on the state to consider all
reasonable educational
alternatives which are not limited to, but include, single medium
institutions. In resorting to an option,
such as a single or
parallel or dual medium of instruction, the state must take into
account what is fair, feasible and satisfies
the need to remedy the
results of past racially discriminatory laws and practices.
33
In contrast to
other provisions in the Bill of Rights,
34
here the Constitution does not set the means by which these
language protections must be realised. It is however clear that
it
confers on parliament and provincial legislatures concurrent law
making competence to regulate education at all levels excluding
tertiary education.
35
The sequel is the Schools Act. It was adopted in 1996 and took
effect on 1 January 1997.
The Schools Act
The avowed
purpose of the Schools Act is to give effect to the constitutional
right to education. Its preamble records that the
achievement of
democracy has consigned to history the past system of education
which was based on racial inequality and segregation
and that the
country requires a new national system for schools which will
redress past injustices in the provision of education
and will
provide education of a progressively high quality for all learners.
The new education system must lay a foundation
for the development
of all people’s talents and capabilities and advance the
democratic transformation of society and combat
racism, sexism,
unfair discrimination and the eradication of poverty. The preamble
also expresses the intent to advance diverse
cultures and languages
and to uphold the rights of learners, parents and educators. It
also makes plain that the statute aims
at making parents and
educators accept the responsibility for the organisation,
governance and funding of schools in partnership
with the state.
36
An overarching
design of the Act is that public schools are run by three crucial
partners. The national government is represented
by the Minister
for Education whose primary role is to set uniform norms and
standards for public schools.
37
The provincial government acts through the MEC for Education who
bears the obligation to establish and provide public schools
38
and, together with the Head of the Provincial Department of
Education, exercises executive control over public schools through
principals.
39
Parents of the learners and members of the community in which the
school is located are represented in the school governing
body
40
which exercises defined autonomy over some of the domestic affairs
of the school.
41
The power to
determine a school’s language policy vests in the governing body.
Section 6(2) of the Schools Act provides that
the governing body
of a public school “may determine” the language policy of the
school.
42
The legislation devolves the decision on the language of
instruction onto the representatives of parents and the community

in the governing body. It accords well with the design of the
legislation that, in partnership with the state, parents and

educators assume responsibility for the governance of schooling
institutions. A governing body is democratically composed and
is
intended to function in a democratic manner.
43
Its primary function is to look after the interest of the school
and its learners.
44
It is meant to be a beacon of grassroots democracy in the local
affairs of the school. Ordinarily, the representatives of parents
of learners and of the local community are better qualified to
determine the medium best suited to impart education and all the
formative, utilitarian and cultural goodness that come with it.
This does not,
however, mean that the function to decide on a medium of
instruction of a public school is absolute or is the exclusive
preserve of the governing body. Nor does it mean that the only
relevant consideration in setting a medium of tuition is the
exclusive needs or interests of the school and its current learners
or their parents.
The power of
the governing body to determine language policy is made, in so many
words, “subject to the Constitution, [the Schools]
Act and any
applicable provincial law”.
45
This qualifier is obviously superfluous in relation to the
Constitution because all law is subservient to our basic law.
46
All that may be said is that the qualifier emphasises that the
power to fashion a policy on the medium of instruction must be
accorded contours that fit into the broader ethos of the
Constitution and cognate legislation. In addition, it seems plain

that the power must be understood and exercised subject to the
limitation or qualification the Schools Act itself imposes. In
a
rather unusual provision, the authority to fix a language policy is
conferred by national legislation, but may be further qualified
by
“any applicable provincial law”.
47
There are
additional legislative modifiers. Firstly, the Minister may, again
subject to the Constitution, by notice, determine
norms and
standards for language policy in public schools.
48
The Minister has in fact published the required norms and
standards.
49
They are by definition general – they cannot relate to any
particular school’s language policy. Second, no form of racial
discrimination may be practised in implementing a language policy.
50
Third, since 31 December 2007 (after the present dispute arose), a
school’s language policy must comply with the norms and
standards
for the provision of school facilities described by the Minister.
51
It is
therefore clear that the determination of language policy in a
public school is a power that in the first instance must
be
exercised by the governing body. The power must be exercised
subject to the limitations that the Constitution and the Schools
Act or any provincial law laid down. Even more importantly it must
be understood within the broader constitutional scheme to
make
education progressively available and accessible to everyone,
taking into consideration what is fair, practicable and enhances
historical redress.
The Supreme
Court of Appeal took the stance that the power to determine
language policy vests exclusively with the governing body
and that
the HoD has no power under section 22(1) and (3) of the Schools Act
to relieve the governing body of this function under
any
circumstances.
52
The Court concluded that a language policy properly adopted by a
governing body may be impugned only by way of judicial review.
53
It is to the correctness of this construction that I now turn.
Did
the HoD have the power in terms of section 22 to withdraw the
language policy determined by the school governing body in terms
of
section 6(2) of the Schools Act?
The provisions
of section 22(1) are terse but clear. They are “[t]he HoD may,
on reasonable grounds, withdraw a function of
a governing body”.
Section 22(2) sets out the procedural fairness requirements for the
withdrawal of a function.
54
On the other hand, section 22(3) regulates procedural fairness
requirements when the withdrawal of the function is “in cases
of
urgency”. It provides that:
“
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
.”
55
Section 22(1)
simply refers to “a function of a governing body”. It does not
qualify the function in any manner whatsoever.
The HoD may
withdraw a function only “on reasonable grounds”. Again, the
statute does not set any limitation beyond the
requirement of
reasonableness in withdrawing a function. I have explained earlier
that, in
Mikro School
, the Supreme Court of Appeal held that
the word “function” in section 22(1) embraces any function
allocated to a governing
body in terms of any provision of the
Schools Act.
56
This means that any function of a governing body given to it by
the statute may, in terms of section 22(1), be withdrawn from
it.
On this reasoning it follows that the HoD on reasonable grounds has
the power to withdraw the language policy function conferred
on the
governing body by section 6.
57
However,
confronted by the same issue in the present case, the Supreme Court
of Appeal held that for the purposes of disposing
of the dispute
before the Court in
Mikro School
, it was not necessary to
construe section 22(1) and that the interpretation there placed on
section 22(1) was accordingly
obiter dictum
58
and in any event wrong.
The Supreme
Court of Appeal interpreted section 21 as closely related to and
informing the meaning of section 22. It held that
the power under
section 22(1) to withdraw a function relates only to functions
allocated to a governing body by the HoD under
section 21.
59
That section, it will be remembered, provides for allocation of
functions by the HoD to a governing body at its request. The
Supreme Court of Appeal reasoned that the HoD may lawfully revoke
only functions he has in this way allocated to a school, and
that
it would be untenable to construe section 22(1) as permitting an
HoD to revoke a function which parliament through section
6(2)
expressly reposed in a school governing body.
60
By restricting
the power of the HoD to revoke a function of a governing body to
allocated functions as listed in section 21, the
Supreme Court of
Appeal in effect found that the power to formulate a language
policy located in section 6(2) is beyond the reach
of the HoD. It
took the view that once a governing body has decided on a language
policy it may not be withdrawn at all by the
HoD through the
exercise of the power to withdraw conferred by section 22(1) or,
for that matter, by anybody else except by a
court on review.
I see matters
differently. The authority of the HoD to revoke a function
conferred by section 22(1) is broad in the sense that
it relates to
any function of a governing body conferred by the Schools Act or by
any other provincial law. Nothing in the text
or indeed in the
purpose or overall scheme of the Schools Act justifies limiting the
power of the HoD to withdraw a function
that the Schools Act
permits to be performed by a governing body. The power to
intervene and revoke a function is authorised
by the statute itself
provided it is done on reasonable grounds and in order to pursue a
legitimate purpose.
This
conclusion follows from both a broad reading of the Schools Act’s
design and a close reading of its provisions. The word
“function”
appears in section 15, which provides that “[e]very public school
is a juristic person, with legal capacity
to perform its functions
in terms of this Act.” It also appears in section 16(1), which
provides that subject to the Act “the
governance of every public
school is vested in its governing body and it may perform only such
functions and obligations and
exercise only such rights as
prescribed by the Act.”
61
These provisions suggest that the statute itself does not permit a
fragmented approach to a governing body’s “functions”,
but
that a coherent approach should be adopted to understanding the
meaning of the word wherever it appears.
In contrast to
this, the approach the Supreme Court of Appeal took to construing
“function” in section 22 isolates that word
where it occurs
there, and accords it a special meaning, sundered from its meaning
in section 20 and elsewhere in the statute.
This necessarily
entails that “functions” in section 22 bears a materially
different and more limited meaning from “functions”
in sections
16, 20 and 25. There is in my view no warrant for such a narrow
and particularistic approach. On the contrary,
precepts of
statutory interpretation suggest that the word “function”
should have the same meaning wherever it occurs in
the statute,
since there is “a reasonable supposition, if not a presumption”
that the “the same words in the same statute
bear the same
meaning” throughout the statute.
62
On this
reasoning, the power to withdraw a function of a governing body in
my view extends to all functions of a governing body
envisaged in
sections 20 and 21. While it is correct that the power to
formulate a language policy under section 6(2) is not
located
within the functions expressly enumerated in sections 20 or 21,
there is no reason not to regard that power as a function
regulated
uniformly by the statute in sections 16, 20, 21 and 25. It
follows that there is no reason why the power to determine
language
policy should fall outside the reach of the power to revoke a
governing body’s “function” conferred on the HoD
by section
22. The conclusion must follow that the approach to the meaning of
“function” in
Mikro School
was correct. An HoD may on
reasonable grounds withdraw a school’s language policy.
I should add
that one of the reasons the Supreme Court of Appeal advanced for
disavowing the approach in
Mikro School
to whether the
language policy function could be withdrawn under section 22 (and
whether section 25 then applied – a point to
which I later
return) was the possibility that the HoD could abuse it.
63
In general, this does not seem to me to be the correct approach.
The possibility that a statutory power may be abused – which
is
an ever-attendant risk – cannot determine the construction of the
ambit of the power, especially since the law affords adequate
remedies for official abuse of power. Moreover, in this instance,
the statute requires the exercise of the power to be reasonable.

The remedy is thus to correct the abuse, and not to attenuate the
power through strained construction.
Indeed, my
conclusion does not entail that the HoD enjoys untrammelled power
to rescind a function properly conferred on a governing
body
whether by him or by the Schools Act or any other law. The power
to revoke will have to be exercised on reasonable grounds.
In
addition the HoD must, in revoking the function, observe
meticulously the standard of procedural fairness required by
section
22(2) and, in cases of urgency, by section 22(3).
What would
constitute reasonable grounds will have to be determined on a case
by case basis. This will require full and due regard
to all the
circumstances that actuated the HoD to by-pass the governing body
in relation to the specific power withdrawn. In
this regard, a
reviewing court will have to consider carefully the nature of the
function, the purpose for which it is revoked
in the light of the
best interests of actual and potential learners, the views of the
governing body and the nature of the power
sought to be withdrawn
as well as the likely impact of the withdrawal on the well-being of
the school, its learners, parents
and educators. And all these
factors would have to be weighed within the broad contextual
framework of the Constitution.
In the case of
language policy, which affects the functioning of all aspects of a
school, the procedural safeguards, and due time
for their
implementation, will be the more essential. It goes without saying
that excellent institutional functioning requires
proper
opportunity for planning and implementation.
This
conclusion is premised on the nuanced character of the
constitutional imperative found in section 29(2) which whilst
recognising
the right to receive education in an official language
or a language of one’s choice, imposes a duty on the state to
ensure
effective access to the right to be taught in the language
of one’s choice.
64
This duty is coupled with the obligation on the state to ensure
that there are enough school places for every child who lives
in a
province
65
and the duty to ensure that a public school must admit learners
without unfairly discriminating in any way.
66
These and
other positive duties found in section 29 of the Constitution and
in the Schools Act are inconsistent with an understanding
of
section 6(2) of the Schools Act which locates the right to
determine language policy exclusively in the hands of the school
governing body. Such an insular construction would in certain
instances frustrate the right to be taught in the language of
one’s
choice and therefore thwart the obvious transformative designs of
section 29(2) of the Constitution.
Put otherwise,
the statute devolves power and decision-making on the school’s
medium of instruction to a school governing body.
It would however
be wrong to construe the devolution of power as absolute and
impervious to executive intervention when the
governing body
exercises that power unreasonably and at odds with the
constitutional warranties to receive basic education and
to be
taught in a language of choice.
67
The Constitution itself enjoins the state to ensure effective
access to the right to receive education in a medium of instruction
of choice. The measures the state is required to take must
evaluate what is reasonably achievable and must keep in mind the
obvious need for historical redress.
68
School
governing bodies are a vital part of the democratic governance
envisioned by the Schools Act. The effective power to run
schools
is indeed placed in the hands of the parents and guardians of
learners through the school governing body.
69
For that reason, the starting point of our understanding of the
role of the governing body and of the state in relation to language
rights in public education is section 29 of the Constitution.
Section 6(2) must be construed in line with this constitutional
warranty.
It is correct,
as counsel for the school emphasised, that section 20(1) compels a
governing body to promote the best interests
of the school and of
all learners at the school.
70
Counsel also emphasised, rightly, that the statute places the
governing body in a fiduciary relation to the school.
71
However, a school cannot be seen as a static and insular entity.
Good leaders recognise that institutions must adapt and develop.

Their fiduciary duty, then, is to the institution as a dynamic part
of an evolving society. The governing body of a public
school must
in addition recognise that it is entrusted with a public resource
which must be managed not only in the interests
of those who happen
to be learners and parents at the time but also in the interests of
the broader community in which the school
is located and in the
light of the values of our Constitution.
What is more,
the governing body’s extensive powers and duties do not mean that
the HoD is precluded from intervening, on reasonable
grounds, to
ensure that the admission or language policy of a school pays
adequate heed to section 29(2) of the Constitution.
The
requirements of the Constitution remain peremptory. In this
regard, the state must consider all reasonable alternatives
and
must take into account what is fair, practicable and what
ameliorates historical racial injustice.
If
the HoD had the power to withdraw a function, did he do so on
reasonable grounds and in a procedurally fair manner?
There are two
parts to the remaining inquiry. The first is whether the HoD acted
reasonably, as required by section 22, and the
second is whether
his conduct in revoking the governing body’s language function
was procedurally fair. It may well be that
in order for the
exercise of the power to withdraw a language function to be
reasonable, it must be exercised in a manner that
affords the
school governing body an opportunity to reconsider its position.
The facts tend to show that in 2006 and 2007, numerous
requests
were directed to the school to admit learners who chose to be
taught in English. The view of the HoD was that the school
acted
unreasonably and used the language policy to keep out learners who
preferred to be taught in English, despite the fact
that the school
had excess classroom capacity. In the circumstances it may well be
that the power to withdraw the language policy
function arose. A
key consideration in this regard was the need to provide the
stranded learners with a school to attend.
But it is not
necessary to reach a firm conclusion in this regard. This is
because the HoD’s intervention was premised on the
statement in
Mikro School
, that his withdrawal of the language policy
power entitled him to invoke section 25. I therefore turn to
consider whether the
exercise of the section 22 power may have been
contaminated by an incorrect application of the provisions of
section 25.
Did
the HoD have the power to appoint a committee to decide a school
language policy under section 25 of the Schools Act?
I think not.
Section 25(1) provides:
“
If the Head of Department
determines on reasonable grounds that a governing body has ceased to
perform functions allocated to it
in terms of this Act or has failed
to perform one or more of such functions, he or she must appoint
sufficient persons to perform
all such functions or one or more of
such functions, as the case may be, for a period not exceeding three
months.”
Section 25
regulates failure by a governing body to perform its functions.
The jurisdictional requirements are that the governing
body must
have ceased or failed to perform one or more of its allocated
functions. Only in that event is the HoD authorised
to appoint
other people to perform the functions, and for a period not
exceeding 3 months.
The power to
withdraw a function under section 22(1) on reasonable grounds has
no necessary connection with the power contemplated
in section 25.
I cannot endorse the contrary conclusion reached in
Mikro
School
. Section 25 operates to allow the appointed persons to
take the place of an ineffective or dysfunctional governing body
whilst
arrangements are made for the election of another governing
body. Therefore, the HoD incorrectly acted under section 25(1) in
appointing the interim committee in circumstances where he had no
such power. Section 25 is directed at the temporary shoring
up of
a malfunctioning governing body which must be replaced by a newly
constituted governing body within a year.
What is more,
there are no grounds to indicate that the governing body had ceased
to perform any function or failed to adopt a
language policy.
72
On the contrary, the school prided itself on its robust and fully
functioning governing body which had adopted an admission
and
language policy that it followed with considerable rigour and
steadfastness. That the HoD did not like its language policy
cannot be equated with the governing body having ceased to function
or having failed to adopt one.
The HoD,
following legal advice, took the view that once he had withdrawn a
function under section 22(1) he was, without more,
entitled to
appoint people to perform the function in terms of section 25(1).
This conclusion was not correct. In this respect,
I agree with the
finding of the Supreme Court of Appeal in this matter
73
(rejecting the approach in
Mikro School
) that once a
function is properly withdrawn in terms of section 22(1); it vests
in the HoD. He is entitled and duty bound to
exercise it in
furtherance of a specified goal permitted by the Schools Act.
Here, the HoD conflated the powers given to him
under sections
22(1) and 25(1) of the Schools Act. That is not permissible.
The two
provisions regulate two unrelated situations and may not be
selectively or collectively applied to achieve a purpose not
authorised by the statute. Section 22 regulates the withdrawal of
a function, but only on reasonable grounds. Its purpose is
to
leave the governing body intact but to transfer the exercise of a
specific function to the HoD for a remedial purpose. This
means
that the HoD must exercise the withdrawn function, but only for as
long as, and in a manner that is necessary to achieve
the remedial
purpose. That explains why section 22(3) provides that the HoD
may, for sufficient reason, reverse or suspend the
withdrawal. In
my view, it is a power which may be exercised only to ensure that
the peremptory requirements of the Constitution
and the applicable
legislation are complied with.
To the extent
that the HoD incorrectly invoked the provisions of section 25, his
recourse to section 22 was also contaminated.
He therefore acted
unlawfully and in breach of the constitutional principle of
legality. Consequently, all conduct premised
on the provisions of
section 25 are of no legal force or effect. This means that the
interim committee that the HoD had appointed
was not lawfully
constituted.
This Court
adopted a similar attitude in
Minister of Education v Harris
,
74
where it was confronted by the question whether a notice issued by
the Minister for Education on the age requirements for the
admission of learners was valid. The Court found that, in issuing
the notice, the Minister had exceeded the power conferred
on him by
the statute and accordingly infringed the constitutional principle
of legality. In that case too, the Minister had
made it plain that
he had deliberately chosen the provision of the statute concerned.
That provision, however, did not give
him the power he purported to
exercise.
Did
the committee carry out its mandate lawfully and in a procedurally
fair manner?
It matters not
whether the interim committee carried out its mandate in a
procedurally fair manner. It was appointed in circumstances
where
the HoD had no power to do so. Its appointment is a nullity in as
much as its deliberations and decisions carry no legal
consequences.
I must add,
for the sake of completeness only, that even if the HoD had the
power to set up the committee under section 25, his
conduct would
not have satisfied the procedural fairness requirements. He did
not hear out the governing body before concluding
that it had
ceased or failed to determine a language policy and that an interim
committee should be appointed to exercise the
function. The
governing body had no part in identifying the members of the
committee nor did they get the opportunity to make
any submissions
to it before it made the decision to alter the language policy. It
follows that their determination of a new
language policy is
afflicted not only by the lack of power of the HoD to appoint it,
but also by the procedural lapses I have
alluded to.
What
is the fate of the appeal and other appropriate relief?
The appeal
must fail, albeit it for reasons different from those advanced by
the Supreme Court of Appeal. The principal conclusion
I reach is
that where reasonable grounds exist the HoD has the power under
section 22(1) to withdraw the school governing body’s
function of
determining the language policy under section 6(2). I part ways
with the Supreme Court of Appeal at the point where
it holds that
the function conferred by section 6(2) to determine language policy
is that of the school governing body alone,
that the HoD has no
power whatsoever to revoke that function and that his only remedy
is a judicial review of the impugned language
policy. The other
principal finding I make is that even given the power to withdraw
the language policy under section 22(1),
the HoD unlawfully
conflated the requirements of section 22(1) and of section 25 by
withdrawing the function and at the same
time establishing an
interim committee under section 25. This
misapprehension
of his powers strikes at the heart of the lawfulness of the
conduct of the interim committee and infects with unlawfulness also
his recourse to section 22(1). Simply put, the HoD had no power to
constitute the interim committee. In turn, the interim committee
did not have the requisite power to fashion the new language policy
for the school.
It follows
that the language policy the interim committee devised is void and
has no legal consequences.
The appeal
accordingly falls to be dismissed. The agreed order entitling
learners enrolled at the school since 25 January 2007
in terms of a
parallel medium language policy to continue to be taught and to
write examinations in English until the completion
of their school
careers must be affirmed. The facts of the case however call for
the making of further orders that are just
and equitable.
The power to
make such an order derives from section 172(1)(b) of the
Constitution. First, section 172(1)(a) requires a court,
when
deciding a constitutional matter within its power, to declare any
law or conduct that is inconsistent with the Constitution
invalid
to the extent of its inconsistency.
75
Section 172(1)(b) of the Constitution provides that when this
Court decides a constitutional matter within its power it “may
make any order that is just and equitable”. The litmus test will
be whether considerations of justice and equity in a particular
case dictate that the order be made. In other words the order must
be fair and just within the context of a particular dispute.
76
It is clear
that section 172(1)(b) confers wide remedial powers on a competent
court adjudicating a constitutional matter. The
remedial power
envisaged in section 172(1)(b) is not only available when a court
makes an order of constitutional invalidity
of a law or conduct
under section 172(1)(a). A just and equitable order may be made
even in instances where the outcome of a
constitutional dispute
does not hinge on constitutional invalidity of legislation or
conduct.
77
This ample and flexible remedial jurisdiction in constitutional
disputes permits a court to forge an order that would place
substance above mere form by identifying the actual underlying
dispute between the parties and by requiring the parties to take
steps directed at resolving the dispute in a manner consistent with
constitutional requirements. In several cases, this Court
has
found it fair to fashion orders to facilitate a substantive
resolution of the underlying dispute between the parties.

Sometimes orders of this class have taken the form of structural
interdicts or supervisory orders.
78
This approach is valuable and advances constitutional justice
particularly by ensuring that the parties themselves become part
of
the solution.
In the present
matter, it is just and equitable to all concerned that the school
governing body be directed to reconsider the
school language policy
in the light of the considerations set out in this judgment. These
considerations are underpinned by
an understanding of the power to
determine language policy in terms of section 6(2) of the Schools
Act as informed by the peremptory
provisions of section 29(2) of
the Constitution.
There are at
least two reasons why the governing body of the school must revisit
its language policy. First, the school argued
that it is entitled
to determine a language policy having regard only to the interests
of its learners and of the school in disregard
of the interest of
the community in which the school is located and the needs of other
learners. That approach, as I have said
before, is not consistent
with the relevant provisions of the Constitution and the Schools
Act. A school is obliged to exercise
its power to select a
language policy in a manner that takes on board the provisions of
section 29(2) of the Constitution, section
6(2) of the Schools Act
and the norms and standards prescribed by the Minister.
Second, whilst
it is so that the adoption of the language policy by the interim
committee was unlawful, the underlying challenge
in Ermelo relating
to the scarcity of classroom places for learners who want to be
taught in English remains and is likely to
resurface in January
2010. At the very least, in reassessing its language policy, the
school governing body must have regard
to its dwindling enrolment
numbers. It must act, recognising that there is a great demand for
the admission of grade 8 learners
who prefer English as a medium of
instruction.
A further
relevant consideration is that the Department bears a
constitutional and statutory duty to provide basic education in
an
official language of choice to everyone, where it is reasonably
practical and just. It is accordingly duty bound to take
lawful
steps to achieve this constitutional obligation.
For these
reasons, I will make an order that requires the school governing
body and the school to report to this Court within
a specified
period of time on the reasonable steps it has taken in reviewing
its language policy and on the outcome of the review
process.
I have earlier
expressed dismay at the fact that the Department has not taken
adequate steps to ensure that there are enough school
places so
that every child in the Ermelo circuit can attend school as
required by sections 3(1) and (2) of the Schools Act.
79
Procuring enough school places implies proactive and timely steps
by the Department. The steps should be taken well ahead of
the
beginning of an academic year. On all accounts, it is highly
probable that there will be an increased demand for grade 8
school
places at the beginning of the year 2010. And in any event, I have
already alluded to the unacceptably high level of
crowding in high
schools in Ermelo other than at Hoërskool Ermelo. Additional
places at Hoërskool Ermelo will afford only
partial alleviation.
It is just and
equitable to make an order requiring the HoD to file within a fixed
period of time a report to this Court setting
out the likely demand
for grade 8 English places at the beginning of 2010 and setting out
the steps that the Department has taken
to satisfy this likely
demand for an English or parallel medium high school in the circuit
of Ermelo. The report must also provide
information and statistics
on the levels of enrolment in other high schools in the area in the
light of the learner-to-class
ratio norms set by the Minister for
Education.
Costs
This matter
has raised important constitutional issues. The school and its
governing body have been partially successful in relation
to
lawfulness. However, it must also be said that this is a case
which calls for a concerted attempt to resolve the underlying
dispute that flows directly from the exclusive language policy the
governing body seeks to preserve. Even so, I find no cause
why the
school and its governing body should be deprived of a cost order
favourable to them in circumstances where they have
successfully
resisted the appeal. I am minded to direct that the first and
second applicants pay the costs of the first and
second respondents
in this Court, which costs must include costs of two counsel.
O
rder
In the event,
the following order is made:
The
application for leave to appeal is granted.
The appeal
against the decision of the Supreme Court of Appeal fails.
Paragraphs
2(a)-(e) and paragraph 3 of the order of the Supreme Court of
Appeal are confirmed.
The School
Governing Body of Hoërskool Ermelo must—
review and
determine a language policy in terms of section 6(2) of the
Schools Act and the Constitution;
by not
later than Monday 16 November 2009 lodge with this Court an
affidavit setting out the process that was followed
to review
its language policy and a copy of the language policy.
The Head of
Department: Mpumalanga Department of Education must by not later
than Monday 16 November 2009 lodge a report
with this Court
setting out the likely demand for grade 8 English places at the
start of the school year in 2010 and setting
out the steps that
the Department has taken to satisfy this likely demand for an
English or parallel medium high school
in the circuit of Ermelo.
The first
and second applicants are directed to pay the costs of this
application for leave to appeal including the costs
of two
counsel.
Langa CJ, Cameron
J, Mokgoro J, Ngcobo J, Nkabinde J, O’Regan J, Sachs J, Skweyiya
J and Van der Westhuizen J concur in the
judgment of Moseneke DCJ.
For the First and Second Applicants:
For the First and
Second Respondents:
For the Amicus Curiae:
Advocate BR Tokota SC,
Advocate DT Skosana and Advocate ZZ Matebese instructed by the State
Attorney, Johannesburg.
Advocate W Trengove SC
and Advocate N Fourie instructed by Johan van der Wath Attorneys.
Advocate J du Toit SC
instructed by Michael Randell Attorneys.
1
Hoërskool
Ermelo and Another v Head, Department of Education, Mpumalanga, and
Others
2009 (3) SA 422
(SCA)
.
2
High School Ermelo v Head of Department of Education, Mpumalanga
and Others
Case No 3062/07, 17 October 2007, unreported.
3
84 of 1996.
4
See the full text below at [63].
5
See the full text below at [84].
6
Initially, the urgent application brought by the school and its
governing body came before Legodi J on 29 January 2007. Then,
the
respondents sought, by way of urgency, an interim order that the
appointment of the interim committee by the first applicant
in terms
of section 25 of the Schools Act to determine a new language policy
for the school is unlawful and that it should be set
aside. In the
alternative, the school and the governing body sought an order that
the operation of the language policy determined
by the interim
committee be suspended pending the outcome of the review to be
brought by the applicants. The High Court struck
the matter off the
roll for the reason that the respondents had not complied with the
time periods prescribed by the General Law
Amendment Act 62 of 1955.
The respondents re-served and
re-enrolled the application for hearing on 2 February 2007 before
Prinsloo J, who granted the interim
order. Subsequently, the
Minister for Education and Mrs Ncane Elizabeth Masilela joined the
proceedings as eighth and ninth respondents
and thereafter applied
for the rescission of the interim order granted by Prinsloo J on the
ground that when the order was granted,
the school had admitted
eight learners to its grade 8 class to be taught in English. The
admission was done as a result of the
new language policy which had
been determined by the interim committee. In short, the application
for rescission was based on
a misjoinder because none of the newly
admitted learners or their parents had been joined to the
proceedings that came before Prinsloo
J.
The application for rescission of
judgment was heard by a full bench of the High Court (per Ngoepe JP,
Seriti J and Ranchod AJ).
The full bench rescinded the order
granted by Prinsloo J and after a further exchange of depositions
the substantive application
was set down for hearing on 4 September
2007.
7
2006 (1) SA 1
(SCA);
2005 (10) BCLR 973
(SCA) at para 38.
8
See the full text of section 22(1) below at [63] and
Mikro School
n 7 above at paras 37-40.
9
See the full text of section 25 below at [84].
10
Section 21(1)(a).
11
Section 21(1)(b).
12
Section 21(1)(c).
13
Section 21(1)(d).
14
Section 21(1)(dA).
15
Section 21(1)(e).
16
Hoërskool Ermelo
above n 1 at para 33.
17
Hoërskool Ermelo
above n 1 at para 30.
18
[1998] ZACC 20
;
1999 (2) SA 91
(CC);
1999 (2) BCLR 151
(CC).
19
Id at para 1.
20
See the full text below at [51].
21
Section 167(7) of the Constitution provides:
“
A
constitutional matter includes any issue involving the
interpretation, protection or enforcement of the Constitution.”
In
National
Education Health
and Allied Workers Union v University of Cape Town and Others
[2002]
ZACC 27
;
2003 (3) SA 1
(CC);
2003 (2) BCLR 154
(CC) at paras 14-5,
Ngcobo J, writing for a unanimous court, held that where the court
has to decide on the proper interpretation
and application of
legislation that is enacted to give effect to a constitutional
right, a constitutional issue will be raised.
See further
Alexkor
Ltd and Another v the Richtersveld Community and Others
[2003] ZACC 18
;
2004 (5) SA 460
(CC);
2003 (12) BCLR 1301
(CC) at
para 23 and
Department of
Land Affairs and Others v Goedgelegen Tropical Fruits (Pty) Ltd
[2007] ZACC 12
;
2007 (6) SA 199
(CC);
2007 (10) BCLR 1027
(CC) at
paras 30-1.
22
Section 1 of the Constitution states:
“
The
Republic of South Africa is one, sovereign, democratic state founded
on the following values:
(a) Human dignity, the achievement
of equality and the advancement of human rights and freedoms.”
23
Section 6 of the Constitution states:
“
(1) The official languages of the Republic are
Sepedi, Sesotho, Setswana, siSwati, Tshivenda, Xitsonga, Afrikaans,
English, isiNdebele,
isiXhosa and isiZulu.
(2)
Recognising
the historically diminished use and status of the indigenous
languages of our people, the state must take practical
and positive
measures to elevate the status and advance the use of these
languages.”
24
Section 9 of the Constitution states:
“
(1) Everyone is equal before the
law and has the right to equal protection and benefit of the law.
(2) Equality includes the full and
equal enjoyment of all rights and freedoms. To promote the
achievement of equality, legislative
and other measures designed to
protect or advance persons, or categories of persons, disadvantaged
by unfair discrimination may
be taken.”
25
Section 9(3) of the Constitution provides:
“
The
state may not unfairly discriminate directly or indirectly against
anyone on one or more grounds, including race, gender, sex,
pregnancy, marital status, ethnic or social origin, colour, sexual
orientation, age, disability, religion, conscience, belief,
culture,
language and birth.”
26
Section 31(1) of the Constitution states:
“
Persons
belonging to a cultural, religious or linguistic community may not
be denied the right, with other members of the community—
(a) to enjoy their culture, practise their religion and
use their language; and
(b) to form, join and maintain cultural, religious and
linguistic associations and other organs of civil society.”
27
Section 29(1) of the Constitution provides as
follows:
“
Everyone
has the right
—
(a) to a basic education, including
adult basic education; and
(b)
to
further education, which the state, through reasonable measures,
must make progressively available and accessible.”
28
[1996] ZACC 4
;
1996 (3) SA 165
(CC);
1996 (4) BCLR 537
(CC).
29
Id at paras 49-50. Sachs J noted that the first consideration is
that ten or more other language communities may have similar
claims
for constitutional regard, some of which may be weaker than the
claim made on behalf of Afrikaans and others may be stronger.
The
second consideration relates to equal access to education and the
need to ensure that the inequalities in access to education
that
existed in the past are put to an end. The third consideration is
the constitutional mandate to protect the rights of the
child.
30
See for example Nyar, “Regaining our Tongues: The Challenges of
Writing in Indigenous Languages” available at
http://www.ukzn.ac.za/CCS/default.asp?11,22,5,1274
,
accessed on 25 August 2009; Fabunmi and Segun Salawu, “Is Yorùbá
an endangered language?” (2005) 14(3)
Nordic Journal of African
Studies
391; Alexander “Language, Class and power in
post-apartheid South Africa” Harold Wolpe Memorial Lecture 27
October 2005, available
at
http://www.wolpetrust.org.za/dialogue2005/CT102005alexander_transcript.pdf
,
accessed on 25 August 2009; and Roy-Campbell “The State of African
Languages and the Global Language Politics: Empowering African
Languages in the Era of Globalisation” 36
th
Annual
Conference on African Linguistics, 2006, available at
http://www.lingref.com/cpp/acal/36/paper1401.pdf
,
accessed on 25 August 2009.
31
Kwaa Prah “The Language of Instruction Conundrum in Africa”
Centre for Advanced Studies of South African Society, Cape Town,
available at
http//:
www.casas.co.za/Papers.aspx
?NID=15
,
accessed on 25 August 2009.
32
Jaftha v Schoeman and
Others; Van Rooyen v Stoltz and Others
[2004]
ZACC 25
;
2005 (2) SA 140
(CC);
2005 (1) BCLR 78
(CC) at paras 31-4;
Mazibuko and Others v City of
Johannesburg and Others
[2009] ZACC 28
;
Case No CCT 39/09, 8 October 2009, as yet unreported,
at para 47.
33
Woolman and Bishop “Education”
in Woolman
et
al
Constitutional
Law of South Africa
2
nd
ed. Original Service: 07-06 (Juta & Co, Cape Town 2007) at
Chapter 57
.
34
See sections 23(5) and (6), 9(4), 24(b), and 25(5) of the
Constitution.
Section 23(5) states:
“
Every
trade union, employers’ organisation and employer has the right to
engage in collective bargaining. National legislation
may be
enacted to regulate collective bargaining. To the extent that the
legislation may limit a right in this Chapter, the limitation
must
comply with section 36(1).”
Section 23(6) on the other hand
provides:
“
National
legislation may recognise union security arrangements contained in
collective agreements. To the extent that the legislation
may limit
a right in this Chapter, the limitation must comply with section
36(1).”
Section 9(4) provides:
“
No
person may unfairly discriminate directly or indirectly against
anyone on one or more grounds in terms of subsection (3). National
legislation must be enacted to prevent or prohibit unfair
discrimination.”
Section 24(b) provides:
“
Everyone
has the right—
.
. .
to have the
environment protected, for the benefit of the present and future
generations, through reasonable legislative and other
measures
that—
prevent pollution
and ecological degradation;
(ii) promote conservation; and
(iii) secure ecologically sustainable development and
use of natural resources while promoting justifiable economic and
social development.”
Section 25(5) provides:
“
The
state must take reasonable legislative and other measures, within
its available resources, to foster conditions which enable
citizens
to gain access to land on an equitable basis.”
35
See Part A of Schedule 4 which provides that “education at all
levels, excluding tertiary education” is a functional area of
concurrent legislative competence between the national and
provincial government.
36
The preamble to the Schools Act provides as follows:
“
WHEREAS
the achievement of democracy in South Africa has consigned to
history the past system of education which was based on racial
inequality and segregation; and
WHEREAS
this country requires a new national system for schools which will
redress past injustices in educational provision, provide
an
education of progressively high quality for all learners and in so
doing lay a strong foundation for the development of all
our
people
’s talents and capabilities,
advance the democratic transformation of society, combat racism and
sexism and all other forms of
unfair discrimination and intolerance,
contribute to the eradication of poverty and the economic well-being
of society, protect
and advance our diverse cultures and languages,
uphold the rights of all learners, parents and educators, and
promote their acceptance
of responsibility for the organisation,
governance and funding of schools in partnership with the State; and
WHEREAS
it is necessary to set uniform norms and standards for the education
of learners at schools and the organisation, governance
and funding
of schools throughout the Republic of South Africa”.
37
Sections 5(4)(c), 5A(1) and (2), 6(1), 6A(1), 8(3), 14(6),
16A(1)(b)(i), 20(11), 35 and 39(4), (7), (8) and (10). Sections
5A(1)
and 16A(1)(b)(i) were introduced by the Educational Laws
Amendment Act 31 of 2007 with effect from 31 December 2007 which
predates
the events that gave rise to the present dispute.
38
Section 12(1) read with sections 3(3) and (4).
39
Sections 16(3), 16A, 19(2) and 24(1)(j).
40
Section 23(1) and (2).
41
Sections 5(5), 6(2), 7, 8(1), 16(1) and 20(1). For an instructive
discussion of the legal framework for admission policies and
language policies at public schools see Woolman & Fleisch
The
Constitution in the Classroom Law and Education in South Africa 1994
to 2008
(Pretoria University Press, Pretoria 2009) at Chapter 3.
42
Section 6(2) 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.”
43
Sections 18 and 18A.
44
Sections 16(2) and 20(1)(a).
45
Section 6(2) above n 42.
46
Section 2 of the Constitution provides:
“
This
Constitution is the supreme law of the Republic; law or conduct
inconsistent with it is invalid, and the obligations imposed
by it
must be fulfilled.”
47
Section 6(2) above n 42.
48
Section 6(1) of the Schools Act states:
“
Subject
to the Constitution and this Act, the Minister may, by notice in the
Government Gazette, after consultation with the Council
of Education
Ministers, determine norms and standards for language policy in
public schools.”
49
The Norms and Standards for Language Policy in Public Schools
(Government Gazette 18546, GN 383, 9 May 1997) published in terms
of
section 3(4)(m)
of the
National Education Policy Act 27 of 1996
and
section 6(1)
of the
South African Schools Act, 1996
. The aim of
these norms are stated as follows:
“
(a) Recognising that diversity is a valuable asset,
which the state is required to respect, the aim of these norms and
standards
is the promotion, fulfilment and development of the
state’s overarching language goals in school education in
compliance with
the Constitution, namely:
(1) the protection, promotion, fulfilment and extension
of the individual’s language rights and the means of communication
in
education;
(2) the facilitation of national and international
communication through promotion of bi- or multilingualism through
cost-efficient
and effective mechanisms; and
(3) to redress the neglect of the historically
disadvantaged languages in school education.”
Moreover, the Norms and Standards
provide that the Rights and Duties of the School are as follows:
“
(1) Subject to any law dealing with language in
education and the Constitutional rights of learners, in determining
the language
policy of the school, the governing body must stipulate
how the school will promote multilingualism through using more than
one
language of learning and teaching, and/or by offering additional
languages as fully-fledged subjects, and/or applying special
immersion
or language maintenance programmes, or through other means
approved by the head of the provincial education department. (This

does not apply to learners who are seriously challenged with regard
to language development, intellectual development, as determined
by
the provincial department of education.)
(2) Where there are less than 43 requests in Grade 1 to
6, or less than 35 requests in Grade 7 to 12 for instruction in a
language
in a given grade not already offered by a school in a
particular school district, the head of the provincial department of
education
will determine how the needs of those learners will be
met, taking into account—
(a) the duty of the state and the right of the learners
in terms of the Constitution, including;
(b) the need to achieve equity;
(c) the need to redress the results of past racially
discriminatory laws and practices;
(d) practicability; and
(e) the advice of the governing bodies and principals
of the public schools concerned.” (Footnote omitted.)
50
Section 6(3) of the Schools Act provides:
“
No
form of racial discrimination may be practiced in implementing
policy determined under this section.”
51
See section 5A (3) and (4) and also section 58C, (introduced by the
Educational Laws Amendment Act 31 of 2007 with effect from
31
December 2007). This provision obviously predates the events that
gave rise to the present dispute.
52
Hoërskool Ermelo
(SCA) above n 1 at paras 22-30.
53
Id
at para 32.
54
Section 22(2) provides:
“
The Head of Department may not
take action under subsection (1) unless he or she has—
(a)
informed
the governing body of his or her intention so to act and the reasons
therefor;
(b)
granted
the governing body a reasonable opportunity to make representations
to him or her relating to such intention; and
(c)
given
due consideration to any such representations received.”
55
See section 22(3).
56
Mikro School
above n 7 at para 38.
57
For the full text of section 6(2) see above n 42.
58
Hoërskool Ermelo
above n 1 at para 23. See
True
Motives 84 (Pty) Ltd v Mahdi and Another
2009 (4) SA 153
(SCA);
2009 (7) BCLR 712
(SCA)
at para 101, where Cameron JA in a separate concurring judgment, but
for different reasons stated that “[a]
nything
in a judgment that is subsidiary is considered to be ‘said along
the wayside’, or ‘stated as part of the journey’
(
obiter
dictum
), and is
not binding on subsequent courts.”
59
Hoërskool Ermelo
above n 1 at para 22.
60
Id at paras 22-30.
61
The word “function” appears as a noun in sections 11(2),
14(2)(a), 15, 16(1), 19(1)(a) and (b), 19(2), 20, 21, 22, 25,
58B(5)(b)
and (c) and 58B(6) (section 58B having been introduced by
section 11
of the
Education Laws Amendment Act 31 of 2007
with
effect from 31 December 2007).
62
See
Minister of Interior v Machadodorp Investments
(Pty)
Ltd and Another
1957 (2) 395 (A) at 404D-E, endorsed in
More
v Minister of Co-operation and Development and Another
1986 (1)
102 (A) at 115C-D.
63
Hoërskool Ermelo
above n 1 at para 27. Indeed this was the
pivotal reason Brand JA cited in his concurring judgment at para 36.
64
For the full text of
section 29(2)
see [51] above.
65
See section 3(3) of the Schools Act which provides:
“
Every
member of the Executive Council must ensure that there are enough
school places so that every child who lives in his or her
province
can attend school as required by subsections (1) and (2).”
66
See section 5(1) of the Schools Act which provides:
“
A
public school must admit learners and serve their educational
requirements without unfairly discriminating in any way.”
67
In
AAA Investments (Pty) Ltd v Micro Finance
Regulatory Council and Another
[2006]
ZACC
9
;
2007 (1) SA 343
(CC);
2006
(11) BCLR 1255
(CC)
at para 29, Yacoob J,
writing for the majority held that “[t]
he
exercise of public power is always subject to constitutional control
and to the rule of law or, to put it more specifically,
the legality
requirement of our Constitution.” See further
Pharmaceutical
Manufacturers Association of South Africa and Another: In Re Ex
Parte President of the Republic of South Africa and
Others
[2000]
ZACC 1
;
2000 (2) SA 674
(CC);
2000 (3) BCLR 241
(CC) at para 20;
President of the Republic of
South Africa and Others v South African Rugby Football Union and
Others
[1999] ZACC 11
;
2000
(1) SA 1
(CC);
1999 (10) BCLR 1059
(CC) at para 132.
68
See section 29(2) of the Constitution. For the full text see [51]
above.
69
Section 23(2) read with section 20 of the Schools Act.
70
Section 20(1) of the Schools Act provides:
“
Subject
to this Act, the governing body of a public school must—
promote the best
interests of the school and strive to ensure its development
through the provision of quality education for all
learners at the
school.”
71
Section 16(2) provides: “A governing body stands in a position of
trust towards the school.”
72
Section 25(1) of the Schools Act authorises the HoD to withdraw a
function of a governing body only if he or she “determines
on
reasonable grounds
that a governing body has ceased to perform
functions allocated to it.” (My emphasis.)
73
Hoërskool Ermelo
above n 1 at para 22.
74
[2001] ZACC 25
;
2001 (4) SA 1297
(CC);
2001 (11) BCLR 1157
(CC).
75
Section 172(1)(a) provides:
“
When
deciding a constitutional matter within its power, a court—
(a) must declare that any law or conduct that is
inconsistent with the Constitution is invalid to the extent of its
inconsistency”.
76
See in this regard
Hoffmann v South African Airways
[2000]
ZACC 17
;
2001 (1) SA 1
(CC);
2000 (11) BCLR 1211
(CC) at para 42.
77
Compare
Thint (Pty) Ltd v National Director of Public
Prosecutions and Others; Zuma and Another v National Director of
Public Prosecutions
and Others
[2008] ZACC 14
;
2008 (2) SACR 421
(CC);
2008 (12) BCLR 1197
(CC). In
Sibiya and Others v Director
of Public Prosecutions, Johannesburg
High Court, and Others
[2005] ZACC 16
;
2005 (5) SA 315
(CC);
2006 (2) BCLR 293
(CC), this
Court made a supervisory order despite a finding that the impugned
legislation relating to the substitution of death
sentences was not
unconstitutional.
78
See, for example,
Residents
of Joe Slovo Community, Western Cape v Thubelisha Homes and Others
[2009] ZACC 16
, Case No CCT 22/08, 10 June 2009, as yet unreported;
Director of Public
Prosecutions, Transvaal v Minister for Justice and Constitutional
Development and Others
[2009] ZACC 8
;
2009 (4) SA 222
(CC);
2009 (7) BCLR 637
(CC);
Nyathi
v MEC for Department of Health, Gauteng and Another
[2008] ZACC 8
;
2008 (5) SA 94
(CC);
2008 (9) BCLR 865
(CC);
Port
Elizabeth Municipality v Various Occupiers
[2004]
ZACC 7
;
2005 (1) SA 217
(CC);
2004 (12) BCLR 1268
(CC).
79
Section 3 provides:
“
(1) Subject to this Act and any applicable
provincial law, every parent must cause every learner for whom he or
she is responsible
to attend a school from the first school day of
the year in which such learner reaches the age of seven years until
the last school
day of the year in which such learner reaches the
age of fifteen years or the ninth grade, whichever occurs first.
(2) The Minister must, by notice in the Government
Gazette, determine the ages of compulsory attendance at school for
learners with
special education needs”.