South Africa: High School Ermelo v. Dept. of Education

[Harold Schiffman]

High School Ermelo & another v The Head of Department Mpumalanga Department
of Education & 8 others unreported judgment Transvaal Provincial Division,
case no 3062/07, 17 October 2007 March 27 <http://www.cfcr.org.za/?p=67>

Filed under Conscases <http://www.cfcr.org.za/?cat=5> by cfcradmin | 0
comments <http://www.cfcr.org.za/?p=67#comments>

This matter is a standard rule 53 review application in which applicants
seek to have reviewed and set aside various decisions by the respondents
which resulted in the school's language policy being altered from a single
medium one to a parallel medium one. This main application was preceded by a
number of actions including 2 urgent interdict applications, an urgent
rescission application, an unsuccessful appeal, an unsuccessful petition to
the Supreme Court of Appeal and finally an unsuccessful application for
condonation. At the heart of the application was the resultant enrolment of
19 grade 8 learners to be taught in English at a former Afrikaans medium
school. As such the matter deals with the potentially conflicting
constitutional rights of the right to basic education and the right, where
reasonably practicable, to receive education in the official language of
one's choice and the right of school governing bodies to determine a
school's language policy, as provided for in s 6(2) of the South African
School's Act 84 of 1996. The applicants rested their case on 5 main grounds,
namely, the alleged invalidity of the withdrawal of the School Governing
Bodies' (SGBs) power to determine language policy; the subsequent alleged
invalid appointment of an interim committee to perform that function; the
alleged invalidity of the language policy determined by that committee; the
alleged lack of space at the school and the alleged availability of
alternative premises. On the facts, the court found that an urgent situation
did indeed exist, and that even if such emergency had been created by the
Department itself, it had not been created by either the parents or the
innocent children.

The first respondent was thus entitled to withdraw the SGBs' power to
determine language policy.  On the validity of the appointment of the
interim committee, the court held that it was valid. This was so as there
was no legal requirement for that committee to be populated with the same
categories of people required to populate an SGB; the SGB had ceased to
perform the removed function; it would not have made sense for the interim
committee to have consulted with the SGB; and, the adjective "sufficient‿ as
used in relation to such persons as had to be appointed to perform any
removed function should be understood to mean people who, in the eyes of the
person appointing, were deemed suitably qualified. As to the validity of the
policy determined by the interim committee, the court found that the
applicant had not shown that the committee had not exercised its independent
discretion. In addition, any reasonable body of persons would have come to
the same decision. In considering the availability of space, the Court found
that an analysis of the available statistics of classroom-learner ratios
indicated that first applicant had by far the lowest ratio and that an
extended curriculum was the reason why all the classrooms were occupied. The
Court found that applicants had accordingly failed to demonstrate how all
classrooms were utilized to the point that there was no space. Based on its
own numbers which had drastically dropped since the school was built and on
the fact that it admitted pupils from outside its feeder area, the court
further found that lack of space was not the real reason. It was merely a
smokescreen to camouflage the real reason which was that the admission would
ultimately result in the school becoming an English speaking institution.
Relying on Governing Body, Mikro Primary School and another v Minister of
Education, Western Cape and others 2005(3) SA 504 (CPD) applicants argued
that current students would be prejudiced by the presence of learners to be
taught in English. However the Court found that in the absence of details of
identified, substantiated prejudices, it could not agree with the Mikro
finding. Besides, the court favoured the more open minded approach followed
in the earlier case of Laerskool Middelburg v Departementshoof, Mpumalanga
2003 (4) SA160 TPD. In any case, even if there was prejudice, the
encroachment would constitute a reasonable and justifiable limitation in so
far as the right limited was the enjoyment of an extended curriculum which
had to be balanced against the right to basic education of the learners who
would otherwise not gain admission to the school. Concerning alternative
accommodation, the court found that reports which were not contradicted
showed that there was no space at other schools. In an obiter dictum, the
court questioned whether, given limited resources, costs should be incurred
converting accommodation, whilst classrooms were available at a state
school. The application was accordingly dismissed with costs.

-- http://www.cfcr.org.za/?p=67
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