THE RIGHT TO EDUCATION, SCHOOL GOVERNING BODIES AND OFFICIAL LANGUAGES: WHAT IS IN THE BEST INTERESTS OF OUR CHILDREN?

Two matters currently serving before our Courts will be pivotal for South African education, school governing bodies (SGB's) as well as public single-medium schools. Both matters rest upon the question of who has the final say in determining language and admissions policy in South Africa's public schools: schools and their SGB's or provincial departments of education? 

The first case is that of Rivonia Primary School, an English-medium former model-C school in Johannesburg. The current situation is that last year the Supreme Court of Appeal overturned an earlier High Court judgment by ruling that the SGB was within its rights to refuse admission to a Grade 1 pupil on the grounds that the school was full to capacity.

The judgment is of core importance to former model-C schools, since their ability to continue to provide excellent non-racial education may depend directly on their power to determine whether their schools are full. On the other hand, the MEC for education in Gauteng contends that such decisions should not rest with SGB's because provincial education authorities must ensure that all children enjoy their right to education. The MEC has been given leave to appeal against the SCA judgment in the Constitutional Court.

The second case is that of Fochville high school, an Afrikaans-medium high school in Gauteng, where the school was ordered to accept 37 black, English-speaking pupils by the department. After being forced to accept the pupils, the school applied for an urgent interdict against the department, arguing that its SGB had lawfully determined both its language policy - Afrikaans - and the school's capacity, and on those grounds could not accept the pupils. The department is arguing that the school is trying to preserve "racial privilege" despite the fact that the school would have been happy to accept the 37 pupils had they accepted that their tuition would be in Afrikaans.

The legal point of departure is section 29(2) of the Constitution, which states that everyone has the right to receive education in the official language of their choice in public educational institutions, where that education is reasonably practicable. Section 29(2) also makes provision - expressly - for single-medium education institutions, but taking into account equity, practicability and the need to redress the past.

Section 29(2) of the Constitution must be read in conjunction with section 5(5) of the South African Schools Act 84 of 1996 (SASA) which states that the admissions policy of a public school is determined by the governing body of that school (subject to the SASA and any applicable provincial law).

The SASA is also unambiguous about language policy in schools: sections 6(2) and 6(3) state that the governing body of a public school may determine the language policy of the school subject to the Constitution, the SASA and any applicable provincial law - but that no form of racial discrimination may be practised in implementing a language policy determined under section 6(2). 

This considered, it is clear that SGB's have the final say in determining admission of students at a particular school, as well as the language of instruction at such a school provided that, in so doing, they are not practising any form or racial discrimination. In terms of the SASA, SGB's are fully within their legislative mandate to regulate language and admissions policy at their respective schools autonomously, although this must occur within the ambit of the Constitution, as well as relevant legislation.

It is not the first time that such matters have had to be weighed in our Courts. In the case of Seodin Primary School v MEC Education, Northern Cape, the High Court ruled that the SGB's of three Afrikaans-medium public schools could not use language preference alone to exclude black, English learners from admittance where the provision of English language instruction was "reasonably practicable." Of note in the Seodin-matter, was that all three schools were undersubscribed. In the matter of Hoërskool Ermelo & ‘n Ander v Departement van Onderwys & Andere the school was ordered to accommodate 113 English speaking Grade 8 learners as this was "reasonably practicable" because the school was operating at half capacity.

In the case of The Western Cape Minister of Education & Others v The Governing Body of Mikro Primary School the Supreme Court of Appeal ruled that SGB's of public schools have the power to determine language policy and that this power is subject only to the Constitution, the SASA and any applicable provincial legislation. This decision is important as it affirms on the one hand the right of learners to instruction in their preferred language of choice but simultaneously on the other hand, that some schools are entitled to offer single-medium instruction. 

Numerous questions arise from the above, which the Courts will have to consider when the Rivonia andFochville-matters come to bear:

·         Is it reasonably practicable for an Afrikaans-medium public school, operating within its legal and constitutional mandate and at full capacity, to be forced by an education department to accept a small number of pupils who demand English instruction, where alternative English or parallel-medium schools in the surrounding area exist that can accommodate the learners and this on the basis that it (the department) is merely doing its duty to give effect to the children's right to education? 

• Why are only Afrikaans-medium schools being targeted? Why have no English-medium schools been required to accommodate small numbers of Afrikaans learners?
• Why are only Afrikaans-medium schools increasingly being forced to change their language policies to become parallel-medium schools?
• Why do education departments - instead of fulfilling their constitutional mandate regarding education by building more and quality schools with proper infrastructure and staffing such with properly qualified teachers to accommodate learners with different language needs - increasingly target Afrikaans-medium schools, and when the schools resist language and policy changes, they are blamed of trying to preserve "racial privilege", where that is clearly not the case?

The debate affects numerous rights in the Constitution including:

• Section 1 which establishes South Africa as a state based on the values of equality, non-racism, human dignity and the advancement of freedom and human rights;
• section 6(1) & 6(4) pertaining to the official languages and their use;
• section 9(4) & 9(5) regarding equality;
• section 28(2) and the best interests of children;
• section 29(2) regarding the right to receive education in the language of one's choice as well as single medium education institutions; and
• section 30 relating to language and culture in South Africa.

Given the framework of constitutional values and rights within which our multicultural society is supposed to operate, the Rivonia and Fochville-matters could have far-reaching implications for the future of mother-tongue education; language and cultural rights; and the excellent education that has thus far been provided by former model-C schools like Rivonia. 

Adv Jacques du Preez, FW de Klerk Foundation

Click here to sign up to receive our free daily headline email newsletter