Head of Department, Mpumalanga Department of Education and Another v Hoërskool Ermelo and Another

• Jurisdiction: South Africa
• Judge: Langa CJ, Moseneke DCJ, Cameron J, Mokgoro J, Ngcobo J, Nkabinde J, O'Regan J, Sachs J, Skweyiya J and Van Der Westhuizen J
• Judgment Date: 14 October 2009
• Docket Number: CCT 40/09
• Hearing Date: 20 August 2009
• Counsel: BR Tokota SC (with DT Skosana and ZZ Matebese) for the applicants. W Trengove SC (with N Fourie) for the respondents. J du Toit SC for the amicus curiae.
• Court: Constitutional Court

Moseneke DCJ:

Introduction I

[1] 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 J school) and its governing body, cited as the first and second respondents,

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respectively. The dispute arises from the school's language policy, which A 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 B appointed, in turn, lawfully determined a new language policy for the school.

[2] The case arises in the context of continuing deep inequality in our educational system, a painful legacy of our apartheid history. The school C system in Ermelo illustrates the disparities sharply. The learners-per-class ratios in Ermelo reveal startling disparities which point to a vast difference in 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 since it perpetuates socio-economic disadvantage. D

[3] 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 E 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]

[4] The Federation of Governing Bodies for South African Schools F (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 G 1000 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.

[5] The school is a member of FEDSAS. It is fair to characterise the H 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. I

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Background A

[6] 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 B 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 C 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.

D [7] 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.

E [8] 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 1120 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.

F [9] 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 1200 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 G learners in grades 1 to 7 was a private arrangement since 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 H 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.

[10] Besides the explanation relating to admitting primary school learners I 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, J but explains that it is so because its curriculum includes a wider choice

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of subjects than the national average. This means, according to the A school, the school can accommodate more learners for instruction in Afrikaans since 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 B classes in order to free classrooms for use by the English-stream learners.

[11] 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 C 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 D of about 33 learners). At Lindile School, 1799 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, 1677 learners E 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).

[12] At the beginning of 2006 the Department approached the school F 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 G 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. H

[13] 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 I 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. J

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A [14] On 15 August 2006 the circuit manager of the Department, Mr Hlatshwayo, sent a letter to all school principals in Ermelo...