Published by the FW de Klerk Foundation & Centre of Constitutional Rights
29 March 2007
THE tussle over the language policy at Ermelo High School is one of the most significant legal wrangles since 1994. It is likely to impact on three key areas of society: the powers of SGBs; the future of single-medium Afrikaans schools; and most seriously, the impartiality of the judiciary.
This is the reaction of Adv Paul Hoffman, Director of the Centre for Constitutional Rights (CFCR) of the FW de Klerk Foundation to the ongoing tussle regarding the right of the Ermelo High School to allow English speaking learners into an Afrikaans medium school.
The Ermelo High School (EHS) case is not about the 19 English speaking learners who have been corralled into the Afrikaans medium EHS and who have unfortunately become political footballs in a power struggle over school language policy. If the Supreme Court of Appeal reaffirms the School Governing Body’s (SGB) right to determine language policy it can unfortunately be expected that the education authorities will rush through remedial legislation to limit the powers that all SGBs still enjoy. The whole affair is likely to find its way to the Constitutional Court.
According to Hoffman SGBs are autonomous entities with the power to control their schools within the parameters of the applicable laws and the Constitution. The creation of so-called SGB teacher posts means that parents can enhance the quality of education as they see fit through their democratically elected SGBs. It is the SGBs’ autonomy that makes this possible. Without this there would probably have been a mass migration of affluent parents to private schools.
“Another important principle at stake in the Ermelo case is the Bill of Rights provision that guarantees the right of everybody to use the language and participate in the cultural life of their choice. Allied to this, is the right, where reasonably practicable, to receive education in single medium public schools. Should government decide to overrule the powers of the SGB to determine the language policy of schools, it will seriously threaten this constitutional provision,” Hoffman said.
Hoffman said the Constitutional principle which creates an independent and impartial judiciary is even more important and in the Ermelo case this is also under threat. Earlier litigation, notably the well known Mikro Primary School case, unequivocally affirmed the SGBs’ right to determine language policy.
In the Ermelo High School case the Judge President of the Transvaal involved himself directly in the case after an interim interdict was granted to the SGB not to allow the enrolment of more English speaking learners due to the fact that the school could not accommodate any more learners and due to the decision of the Department of Education to put the school’s language policy under review. The National Minister of Education, who up to that point avoided such disputes, also took an active interest in the case and applied, together with a parent of one of the pupils, to have the interim interdict set aside.
“Instead of the matter reverting to the Judge Bill Prinsloo who granted the interdict or to the duty judge, a hastily convened Full Bench led by the JP himself, took over the case, granted leave to intervene and set aside the interim interdict. In a virtually unprecedented departure from established practice the Full Bench refused to give any substantial reasons for so doing – except to assert that the 113 learners should have had the opportunity of appearing before Judge Bill Prinsloo before he made his ruling (even though they were not yet enrolled at the school at the time of the EHS’s application to the Court and that only 19 learners in fact were involved). This point was never argued before Judge Prinsloo, flies in the face of established authority on joinder issues and overlooks the High Court’s status as upper guardian of all minors within its jurisdiction,” Hoffman said.
The SGB’s application for leave to appeal against the Full Bench decision was turned down despite the fact that the matter had already been disposed of by another judge and blatantly ignored the binding authority of the Mikro judgment.
Hoffman said that in so doing, the Full Bench departed from established practice that leave to appeal is routinely granted in any case where another court could reasonably come to another decision. This was clearly so with EHS’s application. The SGB has subsequently filed a petition with the Supreme Court of Appeal and the education authorities have been granted 30 days to submit their response.
One hopes that the educational authorities will reconsider their determination to emasculate SGBs and single-medium schools which are making such a valuable contribution to quality public education. Even more importantly, executive-mindedness on the Bench has no place in the new constitutional order in South Africa; comparable conduct by the majority of the Cape Full Bench in the Pharmaceutical Manufacturers’ case was trenchantly criticised on appeal.