Ex parte Gauteng Provincial Legislature: In re Dispute Concerning the Constitutionality of Certain Provisions of the Gauteng School Education Bill of 1995

• Jurisdiction: South Africa
• Judge: Chaskalson P, Mahomed DP, Ackermann J, Didcott J, Kentridge AJ, Kriegler J, Langa J, Madala J, Mokgoro J, O'Regan J and Sachs J
• Judgment Date: 04 April 1996
• Citation: 1996 (3) SA 165 (CC)
• Docket Number: CCT 39/95
• Hearing Date: 29 February 1996
• Counsel: N G D Maritz SC (with him D N Unterhalter) for the petitioners. W H Trengove SC (with him M Chaskalson) for the Gauteng Government. R J Raath (with him J S Stone) for the amicus curiae (the South African Foundation for Education and Training). R L Selvan SC for the Speaker of the Gauteng Legislature.
• Court: Constitutional Court

Mahomed DP:

[1] Various members of the Gauteng provincial legislature, constituting at least one-third of the total B membership of that body, acting pursuant to the provisions of s 98(9) of the Constitution of the Republic of South Africa Act 200 of 1993 ('the C Constitution'), petitioned the Speaker, requiring him to request this Court to exercise its jurisdiction in terms of s 98(2)(d) of the Constitution to resolve a dispute which had arisen in respect of the constitutionality of certain provisions of the School Education Bill ('the Bill') of the Gauteng Province. That request was duly communicated by the D Speaker of the Gauteng provincial legislature to this Court.

[2] Subsequently the Bill was passed and duly enacted as the School Education Act 6 of 1995 (Gauteng) but the disputed sections were not put into operation. It was not E contended by any of the parties appearing before us that the jurisdiction conferred upon us by s 98(2)(d) of the Constitution was in any way ousted because the Bill which was previously before the provincial legislature had since ceased to be a Bill and had been enacted as a statute. For the purposes of this judgment I shall continue to refer to the School Education Act as 'the Bill'.

F The objects and content of the Bill

[3] The long title of the Bill describes its objects. It is '(t)o provide for the provision and control of education in schools, and matters connected therewith'. Chapter 3 of the Bill deals with 'schooling'. Section 11(2) provides that admission requirements for public schools 'shall not unfairly discriminate on grounds of race, ethnic or social origin, G colour, gender, sex, disability, sexual orientation, religion, conscience, belief, culture or language'. ('Model C schools' are included within the definition of public schools in s 1.) Section 19 provides as follows:

'19. Language and discrimination

(1) Language competence testing shall not be used as an admission requirement to a public school.

(2) Learners at public schools shall be encouraged to make use of the range of H official languages.

(3) No learner at a public school or a private school which receives a subsidy in terms of section 69 shall be punished for expressing himself or herself in a language which is not a language of learning of the school concerned.' I

The constitutionality of s 19(1) is disputed by the petitioners and the South African Foundation for Education and Training ('the Foundation') which was admitted as an amicus curiae in these proceedings. The executive director of the Foundation states that:

'The mission of the Foundation is to support a Christian value system and prescribe to the principle of mother tongue education. The Foundation also J

Mahomed DP

A aspires to promote education in the South African community as a whole with special reference to the Afrikaans medium education.'

[4] Sections 21 and 22 of the Bill read as follows

'21. Religious policy of public schools

(1) The religious policy of a public school shall be made by the governing body of the school concerned after consultation with the department, and subject to B the approval of the Member of the Executive Council.

(2) The religious policy of a public school shall be developed within the framework of the following principles:

(a)

The education process should aim at the development of a national, democratic culture of respect for our country's diverse cultural and C religious traditions.

(b)

Freedom of conscience and of religion shall be respected at all public schools.

(3) If, at any time, the Member of the Executive Council has reason to believe that the religious policy of a public school does not comply with the principles set out in ss (2) or the requirements of the Constitution, the Member of the Executive Council may, after consultation with the governing body of the school concerned, direct that the religious policy of the school shall be D reformulated in accordance with ss (1) and (2).

(4) The provisions of s 18(4)-(8) shall apply mutatis mutandis to a directive issued by the Member of the Executive Council under ss (3) and in such application any reference to language policy shall be construed as a reference to religious policy. E

22. Freedom of conscience

(1) No person employed at any public school shall attempt to indoctrinate learners into any particular belief or religion.

(2) No person employed at any public school or private school shall in the course of his or her employment denigrate any religion. F

(3)(a)(i) Every learner at a public school, or at a private school which receives a subsidy in terms of s 69, shall have the right not to attend religious education classes and religious practices at that school.

(ii) In this regard the department shall respect the rights and duties of parents to provide direction to their children in the exercise of their rights as learners, G in a manner consistent with the evolving capacity of the children concerned.

(b) The right conferred by para (a) on a learner at a private school which receives a subsidy in terms of s 69, may be limited where such limitation is necessary to preserve the religious character of the private school concerned.

(c) Except as is provided for in para (b) no person employed at a public school, or at a private school which receives a subsidy in terms of s 69, shall in any way discourage a learner from choosing not to attend religious education classes or religious practices at that school. H

(4) No person employed at a public school shall be obliged or in any way be unduly influenced to participate in any of the religious education classes or religious practices at that school.'

The constitutionality of s 21(2), s 21(3) and s 22(3) is also impugned.

I [5] The complaint made against the impugned sections of the Bill is that their effect is to invade the right of persons to attend schools where language competence testing is permitted as an admission requirement or where the religious policy of the school is developed within a framework which does not fall within the principles set out in s 21(2) of the Bill or where the school is not subject to the directions contemplated J

Mahomed DP

A in s 21(3) or where the attendance of scholars at religious education classes is compulsory. The answer proffered on behalf of the provincial government is that the Bill makes no invasion on any of these rights at all. Section 19(1) which prohibits language competence testing as an admission requirement to a public school, s 21(2) which provides for the religious policy to be developed in a school and s 21(3) which B provides for directions in this regard in certain circumstances do not have any application at all at private schools and s 22(3) which creates a right not to attend religious education classes is confined to public schools and only such private schools which receive a subsidy in terms of s 69 of the Bill. All the rights which the petitioners and the Foundation seek to assert can therefore be freely exercised at other schools. C Both the Foundation and the petitioners seek to counter that answer by the submission that s 32(c) of the Constitution creates a positive obligation on the State to accord to every person the right to require the State to establish, where practicable, educational institutions based on a common culture, language or religion as long as D there is no discrimination on the grounds of race. It is contended that on this interpretation of s 32(c), the government is not entitled to prohibit language competence testing as an admission requirement or direct what religious policy should be developed or who should or should not attend religious classes at schools so E established. Counsel for the petitioners and the Foundation were correct in conceding that this submission on the proper interpretation of s 32(c) was 'central' to the attack made on the impugned sections. It substantially dominated counsel's argument. It therefore becomes crucial to determine whether s 32(c) of the Constitution indeed creates a positive obligation on the State to accord to every person the right to have F established, where practicable, schools based on a common culture, language or religion subject only to the qualification that it is practicable and that there is no discrimination on the grounds of race.

Section 32(c) of the Constitution

[6] G Section 32 reads as follows:

'Education

32. Every person shall have the right -

(a)

to basic education and to equal access to educational institutions;

(b)

to instruction in the language of his or her choice where this is reasonably practicable; and

(c)

H to establish, where practicable, educational institutions based on a common culture, language or religion, provided that there shall be no discrimination on the ground of race.'

[7] The submission that every person can demand from the State the right to have established schools based on a common culture, language or religion is not supported I by the language of s 32(c). The section does not say that every person has the right to have established by the State educational institutions based on such a common culture, language or religion. What it provides is that every person shall have the right to establish such J

Mohamed DP

A educational institutions. Linguistically and grammatically it provides a defensive right to a person who seeks to establish such educational institutions and it protects that right from invasion by the State, without conferring on the State an obligation to establish such educational institutions.

[8] Considered in context, there is no logical force in the construction favoured by the petitioners. If a person has the right to basic education at public expense in terms of B subpara (a) and if he or she has the...