[lg policy] South Africa: Head of Department: Mpumalanga Department of Education and Another v Hoerskool Ermelo & Others (Concourt)

Sun Nov 22 19:45:38 UTC 2009

Head of Department: Mpumalanga Department of Education and Another v
Hoerskool Ermelo & Others (Concourt)

CONSTITUTIONAL COURT

Published 14 Oct 2009 Article by: Creamer Media Reporter

 On Wednesday 14 October 2009, the Constitutional Court delivered
judgment in a case concerning the constitutional right to be taught in
an official language of one's choice and the power of the Head of
Department of Education (HoD) to withdraw the function of a school
governing body to determine the school's language policy.

The HoD and the national Minister for Education sought leave to appeal
against a decision of the Supreme Court of Appeal. That Court held
that the Schools Act did not empower the HoD to withdraw the function
from the governing body and that the withdrawal was unlawful. It
further held that the decisions of the HoD to appoint an interim
committee, and of the committee to amend the school's language policy
from Afrikaans medium only to include English, were unlawful and set
them aside. The Supreme Court of Appeal ordered that the learners who
had been enrolled at the school since 25 January 2007 in terms of the
parallel medium policy should continue to be taught and write
examinations in English at the school until completing their school
careers.

In January 2007 there was a shortage of space in English medium
schools in the Ermelo area to accommodate the grade 8 intake. There
were approximately 113 English learners who could not be accommodated
because schools were full to capacity. Hoërskool Ermelo (the school)
is an Afrikaans medium school and, in the light of its language
policy, the school could accommodate the additional learners only if
they were prepared to receive tuition in Afrikaans. In terms of the
Schools Act, a school's language policy is determined by that school's
governing body.

The school was originally built to accommodate 2000 learners. However
over the years its enrollment had dropped and by 2007 it had only 587
high school learners. The HoD and his Department took the view that
the class to learner ratio at the school was well below the national
norm and that it had excess capacity to admit more learners. In
January 2006, the Department approached the school with a request that
it accommodate English medium learners. The school refused, but agreed
to an arrangement that the learners be admitted to a nearby school and
that they may use a disused laundry on the school premises.

During August 2006 the Department enquired from school principals in
the area how it could best accommodates new grade 8 English medium
learners. The school suggested that the two vacant buildings in Ermelo
be adapted to accommodate them. The Department did not go along with
this suggestion. On 26 October 2006, the Department wrote to the
school governing body requesting that the children accommodated in the
laundry be accommodated in actual classrooms. On 8 November 2006 the
school governing body declined the request. On 9 January 2007, the
Department convened a meeting with the chairperson of the governing
body. At the meeting, the chairperson was given a letter requiring
that the school should admit grade 8 English medium learners at the
school. On 10 January 2007, the first day of the school year, a group
of about 71 English medium learners, accompanied by their parents
arrived at the school for enrolment in grade 8. The school declined to
admit them as they did not want to be taught in Afrikaans.

On 25 January 2007, the HoD summarily withdrew the function of the
governing body to determine the school's language policy and appointed
an interim committee to perform the function. On the same day, the
interim committee met and decided to change the school's language
policy to parallel medium. This meant that the school would provide
tuition in English and Afrikaans, thus allowing the additional
learners to be accommodated. The school challenged the decisions of
the HoD in the North Gauteng High Court, Pretoria. A full bench of the
High Court upheld the decisions of the HoD on the grounds that, in
terms of the Schools Act, he had the authority to withdraw the power
of the school governing body to determine language policy and to
appoint an interim committee to perform the function and that he was
confronted by an urgent need to find schooling places for grade 8
learners who wanted to be taught in English.

The Supreme Court of Appeal reversed this decision.

In this Court, the HoD argued that the decisions taken in January 2007
were lawful; that all negotiations with the school to find a solution
to the problem had been unsuccessful and that he acted reasonably in
withdrawing the function to determine language policy in order to
alleviate an urgent situation and to give effect to the constitutional
right to basic education. On the other hand, the school submitted that
this case is about procedural fairness and legality and not about its
language policy. It argued that the Supreme Court of Appeal had
correctly set aside the HoD's decisions because he did not have the
power to withdraw the language function from the school's governing
body and that in any event his decisions did not comply with the
constitutional requirements of just administrative action. The school
argued further that the HoD was aware of the problem in 2006 and that
the urgent need to admit grade 8 learners in 2007 was created by his
failure to address the problem of school overcrowding when it arose.

Moseneke DCJ, writing for a unanimous court, held that the Schools Act
does give the HoD the power to withdraw on reasonable grounds the
function of the governing body to determine the school's language
policy. This power derives from section 29(2) of the Constitution read
together with section 22 of the Schools Act. Once the HoD has properly
withdrawn the function, it vests in him or her and the function may be
exercised for a specified remedial purpose. However, the Court found
it unnecessary to determine whether the HoD in this case acted
reasonably or not, because the exercise of his power to withdraw the
function to determine language was tainted by his simultaneous
decision to appoint in terms 25 of the Schools Act an interim
committee to determine the schools language policy. The Court held
that the HoD failed to distinguish the power given to him under
section 22 from the power given to him under section 25. Hence his
exercise of the power was contaminated by his incorrect reliance on
section 25. In short, in appointing the committee to determine the
school language policy, the HoD acted without the necessary legal
power to do so. Consequently, the withdrawal of the function, the
appointment of the committee and the subsequent alteration of the
schools language policy were unlawful and were set aside.

Moseneke DCJ noted that there is a great need to ensure that the
constitutional rights to education and to be taught in an official
language of one's choice are properly protected.
He emphasised that education is the engine for a better life for all
and that the most stubborn and disempowering legacy of our apartheid
past is the inequality which was spawned by unequal resources afforded
to white and black public schools. He also expressed dismay at the
failure of the provincial Department of Education, Mpumalanga to
ensure that there are enough public schools in the Ermelo area to
ensure that every grade 8 learner attends school as required by the
Schools Act.

The Court emphasised that procuring enough school places implies
pro-active 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, there is an 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.

The Court concluded that it was 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. In relation to the
school's exclusively Afrikaans language policy, Moseneke DCJ observed
that there are at least two reasons why the governing body of the
school should 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 without considering
the interests of the community in which the school is located and the
needs of other learners. That approach, the Court held, is not
consistent with 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, and of section 6(2) of the Schools Act and of the norms
and standards prescribed by the Minister.

Second, whilst the adoption of the language policy by the interim
committee was unlawful, the underlying challenge relating to the
scarcity of classroom places for learners who want to be taught in
English in Ermelo 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 the English 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, the Court has made 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. The Court's order directs the school by not later than Monday
16 November 2009 to 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 Court also ordered the HoD to report back to
the Court on the steps that are being taken to ensure that there are
enough places for grade 8 English learners at the start of 2010.
Accordingly, on behalf of the Court, Moseneke DCJ granted the
application for leave to appeal and dismissed the appeal, and
reaffirmed the decision of the Supreme Court of Appeal but for
different reasons.

http://www.polity.org.za/article/head-of-department-mpumalanga-department-of-education-and-another-v-hoerskool-ermelo-others-concourt-2009-10-14

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