South Africa: SCA upholds Ermelo High School appeal
Harold Schiffman
hfsclpp at gmail.com
Fri Mar 27 18:30:06 UTC 2009
SCA upholds Ermelo High School appeal
SNYDERS JA
27 March 2009
Education department's insistence that Afrikaans school go dual medium
is set aside
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA
JUDGMENT
Case No: 219/2008
HOËRSKOOL ERMELO - First Appellant (1st Applicant a quo)
SCHOOL GOVERNING BODY OF HOËRSKOOL ERMELO Second Appellant (2nd
Applicant a quo)
and
THE HEAD OF DEPARTMENT OF EDUCATION: MPUMALANGA - First Respondent
(1st Respondent a quo)
J KHUDAIJA - Second Respondent (2nd Respondent a quo)
D MUNERA - Third Respondent (3rd Respondent a quo)
E AYOOB - Fourth Respondent (4th Respondent a quo)
C VAN GREUNEN - Fifth Respondent (5th Respondent a quo)
Q NQELE - Sixth Respondent (6th Respondent a quo)
J KRUGER - Seventh Respondent (7th Respondent a quo)
THE MINISTER OF EDUCATION - Eighth Respondent (8th Respondent a quo)
N M MASILELA - Ninth Respondent (9th Respondent a quo)
Neutral citation: Hoërskool Ermelo v The Head of Department of
Education: Mpumalanga (219/08) [2009] ZASCA 22 (27 MARCH 2009)
Coram: Harms DP, Brand, Cloete, Ponnan, Snyders JJA
Heard: 12 MARCH 2009
Delivered: 27 MARCH 2009
Summary: Schools - language policy - ss 22 and 25 of Schools Act 84 of
1996 - language policy remains the exclusive function of the governing
body of an existing school
________________________________________________________________
ORDER
______________________________________________________________
On appeal from: High Court, Pretoria (Ngoepe JP, Seriti J and Ranchod
AJ sitting as court of first instance).
1. The appeal is upheld.
2. The order of the court a quo is set aside and replaced by the following:
‘a The first respondent's decision to withdraw the function of the
governing body of Hoërskool Ermelo to determine the language policy of
the school is set aside.
b The first respondent's decision to appoint an interim committee to
perform the function of the governing body to determine the language
policy of Hoërskool Ermelo is set aside.
c The decision of the interim committee to amend the language policy
of Hoërskool Ermelo from Afrikaans medium to parallel medium is set
aside.
d Learners that have enrolled at Hoërskool Ermelo since 25 January
2007 in terms of a parallel medium language policy shall be entitled
to continue to be taught and write examinations in English until the
completion of their school careers.
e The costs of the application are to be paid by the first and eighth
respondents jointly and severally, the one paying, the other to be
absolved.'
3. The costs of the appeal are to be paid by the first and eighth
respondents jointly and severally, the one paying, the other to be
absolved.
______________________________________________________________
JUDGMENT
______________________________________________________________
SNYDERS JA (HARMS P, BRAND, CLOETE and PONNAN JJA concurring)
[1] The first appellant is the Hoërskool Ermelo (the school), a public
school as defined in the South African Schools Act 84 of 1996 (the
Act), and the second appellant is its governing body. The first
respondent is the Head of Department of Education in Mpumalanga (head
of department) and the eighth respondent is the Minister of Education
of Mpumalanga. They are the only respondents opposing the appeal. The
second to sixth respondents are members of an interim committee
appointed by the head of department to determine the language policy
of the school. The seventh respondent is the principal of the school.
The ninth respondent is a parent of one of the learners who sought
tuition in English and was joined for purposes of one of the interim
applications that do not feature in this appeal.
[2] The appellants applied in the court a quo (Ngoepe JP, Seriti J and
Ranchod AJ sitting as a court of first instance) for an order
reviewing and setting aside three decisions:[1] the decision of the
head of department to withdraw the function of the governing body to
determine the language policy of the school; the appointment by the
head of department of an interim committee to change the language
policy of the school; and the decision of the interim committee to
change the language policy of the school from an Afrikaans medium
school to a parallel medium school. The court a quo dismissed the
application for leave to appeal. The appellants subsequently obtained
leave from this court.
[3] This case is not, as at first blush appears, about language policy
at schools, a highly emotive issue in the South African context, but
rather about the principle of legality and the proper exercise of
administrative power.
[4] The strife between the department of education, the school and its
governing body about its language policy started as far back as 2001.
Events during the course of that year culminated in the head of
department suspending the principal and disbanding the governing body
of the school on 12 December 2001, the afternoon after school broke up
for the December holidays. Following the suspension the head of
department appointed an acting principal and promptly instructed him
both to change the language policy of the school and to admit learners
to the school to be taught in English.
[5] Litigation between, amongst others, the principal and the
governing body of the school on the one hand and the head of
department on the other hand, achieved the reinstatement of the
principal and the governing body early in January 2002 in terms of a
judgment by Moseneke J in Schoonbee v MEC for Education,
Mpumalanga.[2] One hundred and thirty-two charges were compiled by the
department against the principal, but were never pursued.
[6] At the beginning of 2006 the department approached the school to
enrol 27 grade 8 learners who had to be taught in English. A
compromise was reached: the learners were enrolled at a neighbouring
English medium school but accommodated on the premises of the school.
At the beginning of 2007 those learners were all accommodated in
English medium schools in the area.
[7] During 2006 it was evident that there was a need for English
tuition in the Ermelo circuit beyond the available capacity. The
department was aware of this at the time as the head of department
wrote to the school on 1 March 2007 that:
‘You will recall that in 2006 my department had a crisis of the
learners for the Grade 8 level who could not be accommodated in all
the schools within the Ermelo 1 Circuit'.
It came as no surprise when, on 15 August 2006, the manager of the
Ermelo circuit of the department wrote to the principals of all
schools in the circuit as follows:
‘You will recall that in 2006, a Grade 8 English Medium Class of
approximately 46 learners could not get accommodation at Ligbron
Academy of Technology and Ermelo Combined School since these are the
only institutions in the Circuit where English FIRST Language is
utilized as medium of instruction in Grade 8 - 12. This still remains
a crisis.
Against this background, the Circuit would therefore request each and
every principal to give advice as to what other avenues could be
explored to resolve accommodation crisis in 2007 in our circuit
schools, specifically for First English Medium Grade 8 learners.'
[8] Suggestions were made in response to the invitation to utilise the
old ‘Kommando' building, the ‘convent' and the ‘Spoornet building'.
Those suggestions all entailed the establishment of a new school in
separate premises to provide a long term solution for the growing
number of learners requiring tuition in English. None of these
suggestions found favour with the department, as (according to the
answering affidavit deposed to by the head of department) the
buildings ‘do not fall under the jurisdiction of the department and
would have to be rented or acquired from their present owners. They
would also require substantial renovations in order to make them
suitable as classroom facilities for learners'.
[9] The matter apparently received no further attention from the
department until Monday 8 January 2007, two days before the official
opening of schools in the Ermelo circuit for the new academic year. On
that day the principal and the chairperson of the school governing
body were summoned to a meeting with the head of department to be held
the following day. The head of department did not attend the meeting
but sent officials who handed a letter to the principal in terms of
which he was instructed ‘to admit learners [to be taught in English]
at Hoërskool Ermelo for the 2007 academic year with effect from
10/01/2007', contrary to the language policy of the school.
[10] On 10 January 2007 a group of learners that required tuition in
English, their parents and officials from the department arrived at
the school for the purpose of enrolling the learners. The principal,
on the express written instruction of the chairman of the governing
body, adhered to the language policy of the school, with the result
that the pupils were not enrolled and school commenced without them.
[11] On Thursday 25 January 2007 the head of department addressed a
letter in terms of s 25 of the Act to the second to sixth respondents
(to whom I shall refer collectively as ‘the interim committee')
informing them of the issue between the department and the school and
appointing them ‘with immediate effect to determine the language
policy of Hoërskool Ermelo'. In the last paragraph of the letter the
members of the interim committee were ‘requested to ensure that the
Language policy determined by yourself will enable the learners to be
admitted at Hoërskool Ermelo as a matter of urgency'. The interim
committee was also called upon, albeit not in the letter, to attend a
meeting at 12:00 on the same day. At the meeting an official of the
department (who deposed to an affidavit in these proceedings
confirming this) told the members of the interim committee that they
were appointed to revise the language policy of the Ermelo High
School, in order to make it possible for the 113 learners who cannot
be accommodated elsewhere to attend the said school. At 14:30 that
very day, after the conclusion of the meeting of the interim
committee,[3] a letter from the head of department to the school
governing body, purporting to have been written in terms of s 22 of
the Act, was delivered to the school. It said that the head of
department had ‘decided to withdraw [the governing body's] function of
determining the language policy of the "Hoërskool" Ermelo with
immediate effect'.
[12] At the meeting of the interim committee it was decided that the
language policy of the school be changed. The formulation of the new
language policy took place after the meeting and ultimately read,
‘[t]he language of teaching and learning at the school will be English
and Afrikaans (Parallel Medium)'. It was common cause that this
decision was taken without consultation with relevant parties or the
gathering of relevant information other than information supplied by
representatives of the department at the meeting.
[13] The appellants rushed to court to obtain interim relief pending a
review of the respondents' decisions and actions, but were ultimately
unsuccessful in all applications. In the result the language policy of
the school has remained as amended by the interim committee. Twenty
learners were admitted in 2007 in terms of the amended language policy
and are being taught in English. The appellant has undertaken that
regardless of the outcome of this appeal, all learners admitted in
terms of the amended language policy will receive tuition in English
until the end of their school careers.
[14] These facts show that the department of education has, since
2001, regarded changing the language policy of the school as the
solution to its obligation to provide tuition in English to learners.
In his answering affidavit the head of department emphasises the fact
that the school has fewer learners per available classroom than any
other school in the Ermelo circuit. Whilst that fact may have
presented an attractive option for the department it had to remind
itself, before action was taken, that the right to receive tuition in
English in a public educational institution provided by the State,[4]
if reasonably practicable, is a right against the State and not a
right against each and every public school.[5] Furthermore, whatever
action the head of department took that involved the school had to
comply with the principle of legality as determined in the Act and the
Promotion of Administrative Justice Act 3 of 2000 (PAJA).
[15] With regard to the particular action taken by the head of
department it is useful to first look at certain key provisions of the
Act to get an appreciation of the composition of the governing body
and its powers. The Act vests in the governing body the governance of
the school. The governing body ‘may perform only such functions and
obligations and exercise only such rights as [are] prescribed by the
Act'.[6] Section 6 of the Act grants authority to the governing body
of a public school to ‘determine the language policy of the school
subject to the Constitution,[7] this Act and any applicable provincial
law' on a non-racial basis within the norms and standards for language
policy as determined by the Minister of Education.[8] The governing
body comprises elected parents of learners, educators, members of
staff who are not educators, learners, the principal in his or her
official capacity and co-opted members, without voting rights,
provided that the number of parent members ‘must comprise one more
than the combined total of other members of a governing body who have
voting rights'.[9] This composition of the governing body provides for
broad participation in the decision-making process with particular
emphasis on the contribution by parents of learners.
[16] Aside from authorising the governing body to determine the
language policy, s 20 confers on it certain core functions that
include adopting a constitution and a code of conduct for learners;
developing a mission statement; determining times of the school day;
administering and controlling the property of the school, and
recommending the appointment of educators and non-educator staff to
the head of department.
[17] In addition to these functions a governing body may apply in
terms of s 21 to the head of department to be allocated further
functions. This application may be refused only if the governing body
concerned does not have the capacity to perform such functions
effectively.[10] Functions capable of allocation are those set out in
s 21(1):
‘Subject to this Act, a governing body may apply to the Head of
Department in writing to be allocated any of the following functions:
(a) To maintain and improve the school's property, and buildings and
grounds occupied by the school, including school hostels, if
applicable;
(b) to determine the extra-mural curriculum of the school and the
choice of subject options in terms of provincial curriculum policy;
(c) to purchase textbooks, educational materials or equipment for the school;
(d) to pay for services to the school;
(dA) to provide an adult basic education and training class or centre
subject to any applicable law; or
(e) other functions consistent with this Act and any applicable provincial law.'
[18] These functions are either non-essential to the functioning of
the school, (s 21(1)(dA)) or, if not allocated, are performed by the
department. It is because the department is usually responsible for
these functions that they can only be allocated to the governing body
if the latter has the capacity to perform them effectively. This is
the only sensible distinction between the functions contained in s 21
and those elsewhere in the Act. If there was no distinction, there is
no reason why the legislature would have made separate provision for
them in s 21 instead of simply including them in s 20.
[19] Section 22(1) authorises the head of department to withdraw a
function of a governing body, on reasonable grounds. In s 22(2) the
procedure to be followed in the event of a withdrawal of a function is
set out. It involves the furnishing of reasons, calling for
representations and due consideration thereof. Section 22(3) provides
for the urgent withdrawal of a function and prescribes a similar
procedure to s 22(2) except that it takes place after the urgent
withdrawal. Subsection (4) allows the head of department to reverse or
suspend the urgent withdrawal of a function ‘for sufficient
reasons'.[11]
[20] The court a quo found the head of department's decision in terms
of s 22(3) to have been validly taken. This decision was based on the
factual issue whether urgency prevailed that allowed action in terms
of s 22(3). The applicability of s 22(3) to the facts was not
considered. The appellants contend that s 22 is not applicable to the
facts, as the function of determining the language policy of the
school is not allocated by the head of department in terms of s 21 and
cannot be withdrawn by him in terms of s 22.
[21] Language is a sensitive issue. Great care is taken in the Act to
establish a governing body that is representative of the community
served by a school and to allocate to it the function of determining
the language policy. The Act authorises only the governing body to
determine the language policy of an existing school and nobody else.
As nobody else is empowered to exercise that function, it is
inconceivable that s 22 was intended to give the head of department
the power to withdraw that function, albeit on reasonable grounds, and
appoint somebody else to perform it, without saying so explicitly.
[22] The structure of the Act sheds further light. As s 22 follows
immediately after s 21 and a distinction exists between the functions
allocated in s 21 and elsewhere in the Act, it logically follows that
s 22 is designed to deal with the withdrawal of functions allocated in
terms of s 21. The logical default position if functions allocated in
terms of s 21 are withdrawn is that they revert to the department of
education. This would explain why s 22, unlike s 25, does not provide
for the appointment of others to perform the functions that are
withdrawn.
[23] The respondents relied on the decision of this court in Minister
of Education, Western Cape v Governing Body, Mikro Primary School[12]
that the head of department could make use of s 22 to withdraw the
function of determining the language policy. In that case a similar
situation to the present had arisen and the court a quo found that the
head of department had acted unlawfully when he imposed a directive
that amended the Afrikaans language policy of the Mikro Primary School
and in that way purported to force that school to enrol learners who
required tuition in a different language. It was argued on appeal that
a finding that the directive was unlawful would leave the head of
department without a remedy if a governing body unreasonably refused
to change its language policy. The court rejected this argument and
expressed the opinion in an obiter dictum that the head of department
would inter alia have been entitled to make use of the provisions of
ss 22 and 25 of the Act.
[24] The considerations expressed above concerning the purpose of s 22
and the distinction between the functions of a governing body
contained in ss 20 and 21 were not considered in Mikro.
[25] The error in the interpretation of s 22 in Mikro becomes even
more apparent when s 25 is considered. The head of department
purportedly appointed the interim committee in terms of s 25(1) to
perform the function of the governing body and change the language
policy of the school. Section 25 reads:
‘(1) If the Head of Department determines on reasonable grounds that a
governing body has ceased to perform functions allocated to it in
terms of this Act or has failed to perform one or more of such
functions, he or she must appoint sufficient persons to perform all
such functions or one or more of such functions, as the case may be,
for a period not exceeding three months.
(2) The Head of Department may extend the period referred to in
subsection (1), by further periods not exceeding three months each,
but the total period may not exceed one year.
(3) If a governing body has ceased to perform its functions, the Head
of Department must ensure that a governing body is elected in terms of
this Act within a year after the appointment of persons contemplated
in subsection (1).
(4) If a governing body fails to perform any of its functions, the
persons contemplated in subsection (1) must build the necessary
capacity within the period of their appointment to ensure that the
governing body performs its functions.'
[26] The clear language of s 25(1) requires that before the head of
department could make use of the authority granted in the section, he
would have had to have determined, on reasonable grounds, that the
governing body had ceased to perform its functions. In this case the
facts do not support a reasonable conclusion that the governing body
ceased to determine the language policy of the school. The head of
department was dissatisfied with the result of the governing body's
determination but relied on the interpretation of s 25 in Mikro to
submit that the governing body ceased to perform that function when he
withdrew it in terms of s 22. In Mikro, s 25 was found applicable in
similar circumstances on the basis of the interpretation that ‘[i]f a
function is withdrawn, the governing body ceases to perform that
function, and s 25 becomes applicable'.[13]
[27] The effect of the interpretation in Mikro is in my respectful
view unacceptable because it enables the head of department to create
the state of affairs that would entitle him or her to act in terms of
s 25(1) whereas the language of s 25(1) requires that state of affairs
to have arisen as a prerequisite, reasonably established, before the
head of department has the power to act in terms of s 25(1). The
interpretation in Mikro enables a functionary to abuse power and makes
possible indirectly that which cannot be attained directly.
[28] The governing body of the school did indeed perform the function
of determining the language policy of the school. This is not the kind
of function that is performed on a daily or weekly or even yearly
basis, but one that persists in its effect, once performed, until
changed or amended by the governing body. The governing body
historically decided the language policy and the school continued to
implement it by admitting learners consistent with that policy.
[29] The rest of s 25 also illustrates why the interpretation in Mikro
does not stand scrutiny. Sufficient persons are to be appointed by the
head of department in terms of ss (1) to perform the function or
functions that the governing body has ceased to perform and to do so
for a period not exceeding 3 months. The period of 3 months can be
extended by the head of department for further periods of 3 months,
but not for a total period of more than 1 year.[14] Those appointed
are obliged to ‘build the necessary capacity within the period of
their appointment to ensure that the governing body performs its
functions'.[15] The head of department is also obliged to ‘ensure that
a governing body is elected in terms of [the] Act within a year after
the appointment of persons contemplated in subsection (1)'.[16] This
shows that the aim of s 25 is to ensure that when a governing body
ceases to perform its functions, in the worst case scenario, a fully
functional governing body should be in place to continue performing
its functions within a maximum period of one year. These provisions
are clearly inconsistent with an interpretation that a head of
department could simply take away the functions of a fully operational
governing body and then proceed to comply with the rest of s 25. In
addition, if ss 22 and 25 are utilised together, as in this instance,
the requirements of s 25 strip the consultation and reconsideration
envisaged in ss 22(3), (4) and (5) of any meaning. Counsel for the
head of department and the Minister was constrained to submit that
once reinstated, the governing body could change the language policy
back to what it was. The untenable situation that would result
underlines the fallacy of attempting to apply the two sections
together.
[30] For the abovementioned reasons I am of the view that the obiter
dictum in Mikro on the interpretation of ss 22 and 25 is clearly
wrong. The court a quo followed Mikro and its decision is to be set
aside for the same reasons.
[31] The woes of the respondents do not end with the interpretation of
the relevant sections of the Act. The steps that were purportedly
taken in terms of the Act failed, in several respects, to comply with
the Promotion of Administrative Justice Act.[17] The head of
department made the appointment of an interim committee in terms of s
25 to determine the language policy of the school before he had
withdrawn that power from the governing body; the consequence of this
premature purported appointment was that the language policy was
changed by the interim committee before the power of the governing
body to do so was withdrawn; far from allowing the interim committee
to reach their own decision the head of department, in the letter of
appointment addressed to them, instructed them to ‘ensure that the
Language policy determined by [them] will enable the learners to be
admitted at Hoërskool Ermelo as a matter of urgency' and this was
reinforced by a member of the department who attended the meeting; it
does not appear that the interim committee was afforded the
opportunity to consider all relevant and available information before
taking an ‘urgent', prescribed decision. In the light of the
conclusion that ss 22 and 25 did not empower the head of department to
act as he did, it is not necessary to discuss the detail of the
contraventions of PAJA. It suffices to say that these contraventions
were sufficient in themselves to have obliged the court a quo to grant
the relief sought by the appellants.
[32] As in Mikro the concern was expressed on behalf of the
respondents that this conclusion leaves them without a remedy in
similar circumstances. It does not. PAJA prescribes the standard for
all administrative action. The respondents are entitled to review the
language policy determined by a governing body of a school if they
make out a case in terms of PAJA.
[33] I therefore conclude that the head of department's withdrawal of
the governing body's function to determine the language policy of the
school was unlawful; that the head of department's appointment of the
interim committee was unlawful; and that the decision taken by the
unlawfully appointed interim committee was invalid.
[34] In the result the following order is made:
1. The appeal is upheld.
2. The order of the court a quo is set aside and replaced by the following:
‘a The first respondent's decision to withdraw the function of the
governing body of Hoërskool Ermelo to determine the language policy of
the school is set aside.
b The first respondent's decision to appoint an interim committee to
perform the function of the governing body to determine the language
policy of Hoërskool Ermelo is set aside.
c The decision of the interim committee to amend the language policy
of Hoërskool Ermelo from Afrikaans medium to parallel medium is set
aside.
d Learners that have enrolled at Hoërskool Ermelo since 25 January
2007 in terms of a parallel medium language policy shall be entitled
to continue to be taught and write examinations in English until the
completion of their school careers.
e The costs of the application are to be paid by the first and eighth
respondents jointly and severally, the one paying, the other to be
absolved.'
3. The costs of the appeal are to be paid by the first and eighth
respondents jointly and severally, the one paying, the other to be
absolved.
_________________________
S Snyders
Judge of Appeal
BRAND JA
[35] I have had the advantage of reading the judgment of my colleague
Snyders JA. I agree with both her reasoning and conclusions. But I am
sure it will not go unnoticed that I also agreed with the obiter
dictum in Mikro, which Snyders JA overrules in para 30 above. With the
wisdom of hindsight I agree that, for the reasons given by her, the
interpretation we gave to sections 22 and 25 of the Act in Mikro
cannot be sustained. Perhaps this is a good illustration why obiter
dicta should be resorted to sparingly for the very reason that they
are not tested against the outcome of a real life dispute.
[36] Without the benefit of a real life dispute, the rather cynical
abuse to which the Mikro interpretation gave rise in this case could
hardly have been anticipated. What the head of the department did in
this case was exactly what Mikro eventually decided he has no right to
do, namely to change the language policy of a school. The fact that he
did so through the medium of an interim committee which he used as a
ventriloquist's dummy can hardly make any difference. To add insult to
injury, he purported to employ the urgent procedure in s 22(3), which
meant that the language policy of the school had already been changed
before the school governing body had had the opportunity to make the
representations contemplated by the section as to why their function
should not be withdrawn. In fact, as we know, it happened even before
the governing body was informed of the decision to withdraw their
function. Because of this cynical abuse, I was compelled to reconsider
the interpretation of sections 22 and 25 which has led me to the
conclusion that the Mikro interpretation was wrong.
______________________
F D J BRAND
JUDGE OF APPEAL
--------------------------------------------------------------------------------
[1] The urgent interim application that was granted and later set
aside is not relevant to the appeal.
[2] 2002 (4) SA 877 (T).
[3] According to the minutes of the meeting it terminated at 13:45.
[4] Section 29(2) of the Constitution of the Republic of South Africa, 1996.
[5] Minister of Education, Western Cape v Governing Body, Mikro
Primary School 2006 (1) SA 1 (SCA) para 31.
[6] S 16(1).
[7] The full text of s 6 reads: ‘(1) Subject to the Constitution and
this Act, the Minister may, by notice in the Government Gazette, after
consultation with the Council of Education Ministers, determine norms
and standards for language policy in public schools.
(2) The governing body of a public school may determine the language
policy of the school subject to the Constitution, this Act and any
applicable provincial law.
(3) No form of racial discrimination may be practised in implementing
policy determined under this section.
(4) A recognised Sign Language has the status of an official language
for purposes of learning at a public school.'
[8] Such norms and standards were published in Government Gazette
18546 on 19 December 1997, but do not play a role in this case.
[9] Section 23: (1) Subject to this Act, the membership of the
governing body of an ordinary public school comprises - (a) elected
members; (b) the principal, in his or her official capacity; (c)
co-opted members.
(2) Elected members of the governing body shall comprise a member or
members of each of the following categories: (a) Parents of learners
at the school; (b) educators at the school: (c) members of staff at
the school who are not educators; and (d) learners in the eighth grade
or higher at the school.
(3) A parent who is employed at the school may not represent parents
on the governing body in terms of subsection (2)(a).
(4) The representative council of learners referred to in section
11(1) must elect the learner or learners referred to in subsection
(2)(d).
(5) The governing body of an ordinary public school which provides
education to learners with special needs must, where practically
possible, co-opt a person or person with expertise regarding the
special education needs of such learners.
(6) A governing body may co-opt a member or members of the community
to assist it in discharging its functions.
(7) The governing body of a public school contemplated in section 14
may co-opt the owner of the property occupied by the school or the
nominated representative of such owner.
(8) Subject to subsection (10), co-opted members do not have voting
rights on the governing body.
(9) The number of parent members must comprise one more than the
combined total of other members of a governing body who have voting
rights.
(10) If the number of parents at any stage is not more than the
combined total of other members with voting rights, the governing body
must temporarily co-opt parents with voting rights.
(11) If a parent is co-opted with voting rights as contemplated in
subsection (10), the co-option ceases when the vacancy has been filled
through a by-election which must be held according to a procedure
determined in terms of section 28(d) within 90 days after the vacancy
has occurred.
(12) If a person elected as a member of a governing body as
contemplated in subsection (2) ceases to fall within the category
referred to in that subsection in respect of which he or she was
elected as a member, he or she ceases to be a member of the governing
body.'
[10] See s 21(2).
[11] Section 22 reads as follows: ‘(1) The Head of Department may, on
reasonable grounds, withdraw a function of a governing body.
(2) The Head of Department may not take action under subsection (1)
unless he or she has -
(a) informed the governing body of his or her intention so to act and
the reasons therefor;
(b) granted the governing body a reasonable opportunity to make
representations to him or her relating to such intention; and
(c) given due consideration to any such representations received.
(3) In cases of urgency, the Head of Department may act in terms of
subsection (1) without prior communication to such governing body, if
the Head of Department thereafter -
(a) furnishes the governing body with reasons for his or her actions;
(b) gives the governing body a reasonable opportunity to make
representations relating to such actions; and
(c) duly considers any such representations received.
(4) The Head of Department may for sufficient reasons reverse or
suspend his or her action in terms of subsection (3).
(5) Any person aggrieved by a decision of the Head of Department in
terms of this section may appeal against the decision to the Member of
the Executive Council.'
[12] See note 5 above.
[13] Para 41.
[14] Subsection (2).
[15] Section 25(4).
[16] Section 25(3).
[17] Section 6(2).
http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71656?oid=123168&sn=Detail
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