Minister of Education, Western Cape, and Others v Governing Body, Mikro Primary School, and Another

• Jurisdiction: South Africa
• Judge: Streicher JA, Cameron JA, Brand JA, Lewis JA and Mlambo JA
• Judgment Date: 27 June 2005
• Citation: 2006 (1) SA 1 (SCA)
• Docket Number: 140/2005
• Hearing Date: 23 May 2005
• Counsel: N M Arendse SC (with E A de Villiers-Jansen and H J de Waal) for the first and second appellants. J C Heunis SC (with R Nyman and M F Osborne) for the respondents.
• Court: Supreme Court of Appeal

Streicher JA:

[1] Mikro Primary School (the second respondent) is an Afrikaans-medium public school in Kuils River whose governing body (the first respondent) refused to accede to a request by the Western I Cape Education Department (the department) to change the language policy of the school so as to convert it into a parallel-medium school. A subsequent directive by the Head of Education, Western Cape Education Department (the second appellant) to the principal of the second respondent to admit certain learners, and to have them taught in J

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English; the dismissal of an appeal against the directive to the Western Cape Minister of Education (the first appellant); and the A resultant admission of 21 learners for instruction in English, gave rise to an urgent application by the respondents to the Cape High Court (the Court a quo) for an order setting aside the directive and the decision on appeal, as well as for ancillary relief. The application succeeded and the Court a quo: B

(a)

set aside the directive of the second appellant;

(b)

set aside the decision by the first appellant upholding the directive by the second appellant;

(c)

interdicted the first and second appellants from compelling the second respondent or its principal to admit learners otherwise than in compliance with the second respondent's language C policy;

(d)

interdicted the first and second appellants from instructing or permitting officials of the department to interfere unlawfully with the government or the professional management of the second respondent; and

(e)

ordered that the 21 learners who had been admitted to the second respondent be placed by the appellants at another D suitable school or schools.

The judgment is reported as Governing Body, Mikro Primary School, and Another v Minister of Education, Western Cape, and Others 2005 (3) SA 504 (C) ([2005] 2 All SA 37; 2005 (10) BCLR 973). With the leave of the Court a quo, the first and E second appellants now appeal to this Court against the whole of the judgment.

[2] The parents of the 21 learners referred to were joined as third respondents in the Court a quo. Although they had not appealed against the Court a quo's judgment, they made common cause with the appellants rather than with the respondents F in this Court. However, since the other parties had no objection to their counsel addressing us and attacking the Court a quo's order, we allowed her to do so. The parents so represented will therefore be referred to as the third appellants.

[3] Section 29(2) of the Constitution of the Republic of South Africa, 1996, provides as follows: G

'Everyone has the right to receive education in the official language or languages of their choice in public educational institutions where that education is reasonably practicable. In order to ensure the effective access to, and implementation of, this right, the State must consider all reasonable educational alternatives, H including single medium institutions, taking into account -

(a)

equity;

(b)

practicability; and

(c)

the need to redress the results of past racially discriminatory laws and practices.'

[4] The South African Schools Act 84 of 1996 (the Act) was passed I shortly after the adoption of the Constitution. According to the long title, it was passed in order

'(t)o provide for a uniform system for the organisation, governance and funding of schools; to amend and repeal certain laws relating to schools; and to provide for matters connected therewith'. J

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In the preamble to the Act, it is stated, inter alia, that the Act is passed because A

'this country requires a new national system for schools which will redress past injustices in educational provision . . ., advance the democratic transformation of society, combat racism and sexism and all other forms of unfair discrimination and intolerance . . ., protect and advance our diverse cultures and languages, uphold the rights of all learners, parents and educators, and promote their B acceptance of responsibility for the organisation, governance and funding of schools in partnership with the State . . .'.

[5] In terms of s 12 of the Act, the Member of the Executive Council of the province which is responsible for education in that province must provide public schools for the education of learners out of funds appropriated for this purpose by the provincial legislature. C Every public school so provided is a juristic person, with legal capacity to perform its functions in terms of the Act (s 15). The governance of every such public school is vested, subject to the Act, in its governing body, which may perform only such functions and obligations and exercise only such rights as are prescribed by the Act (s 16(1)). The professional management of such a public school, on the D other hand, must be undertaken, subject to the provisions of the Act, by the principal of the school under the authority of the head of the education department concerned. It is therefore clear that, subject to the limitations contained in the Act, the governance of a public school, as opposed to the professional management of such a school, is E the responsibility of the governing body of the school.

[6] The statutorily prescribed composition of the governing body of ordinary public schools reflects the aim of the Act; namely, to advance the democratic transformation of society. It includes, subject to the provisions of the Act, elected members, the principal in his or F her official capacity, and co-opted members. Elected members comprise a member or members of each of the following categories: parents of learners at the school, educators at the school, members of staff at the school who are not educators, and learners in the eighth grade or higher at the school (s 23(1)). The number of parent members must comprise one more than the combined total of other members of the G governing body who have voting rights. Certain co-opted members do not have voting rights (s 23(8) and (12)).

[7] Section 20(1) of the Act provides that the governing body must perform a number of functions. It must, inter alia, adopt a constitution (ss (b)), develop the mission H statement of the school (ss (c)), adopt a code of conduct for learners at the school (ss (d)), and 'discharge all other functions imposed upon the governing body by or under this Act' (ss (l)). One of the other functions imposed on the governing body is to be found in s 5(5), which provides: I

'Subject to this Act and any applicable provincial law, the admission policy of a public school is determined by the governing body of such school.'

Another of the functions imposed on the governing body is to be found in s 6(2), which provides:

'The governing body of a public school may determine the language policy of J

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the school subject to the Constitution, this Act and any applicable provincial law.' A

[8] In terms of s 6(1) of the Act, the Minister of Education may, subject to the Constitution and the Act, by notice in the Government Gazette, after consultation with the Council of Education Ministers, determine norms and standards for language policy in public schools. Such norms and standards were determined and B published by the Minister of Education (the Norms and Standards). [1] Sections D and E thereof read as follows

'D.

The rights and duties of the provincial education departments

1.

The provincial education department must keep a register of requests by learners for teaching in a language medium which cannot be C accommodated by schools.

2.

In the case of a new school, the governing body of the school in consultation with the relevant provincial authority determines the language policy of the new school in accordance with the regulations promulgated in terms of s 6(1) of the South African Schools Act, 1996. D

3.

It is reasonably practicable to provide education in a particular language of learning and teaching if at least 40 in Grades 1 to 6 or 35 in Grades 7 to 12 learners in a particular grade request it in a particular school.

4.

The provincial department must explore ways and means of sharing scarce human resources. It must also explore ways and means of E providing alternative language maintenance programmes in schools and or school districts which cannot be provided with and/or offer additional languages of teaching in the home language(s) of learners.

E.

Further steps

1.

Any interested learner, or governing body that is dissatisfied with any decision by the head of the provincial department of education, may appeal to the MEC within a period of 60 days. F

2.

Any interested learner, or governing body that is dissatisfied with any decision by the MEC, may approach the Pan South African Language Board to give advice on the constitutionality and/or legality of the decision taken, or may dispute the MECs decision by referring the matter to the Arbitration Foundation of South Africa. G

3.

A dispute to the Arbitration Foundation of South Africa must be finally resolved in accordance with the Rules of the Arbitration Foundation of Southern Africa by an arbitrator or arbitrators appointed by the Foundation.'

[9] As required by s 5(5) and s 6(2) of the Act, the first respondent adopted a language and an admission policy. Paragraph 4 of its admission policy, which incorporates its language policy, H provides:

'Alle onderrig in hierdie skool (behalwe in die leerareas Engels en Xhosa) geskied deur medium Afrikaans.'

[10] Since at least 2002, the department has been trying to persuade the first respondent to admit English learners forinstruction in English; that is, to change its language policy and I to...