Commonwealth and International Law Document

WESTERN CAPE MINISTER OF EDUCATION & ORS v THE GOVERNING BODY OF MIKRO PRIMARY SCHOOL & ANOR

Under the South African Schools Act (‘the Act’) the  Western Cape Minister of Education (‘the Minister’)  was under a duty to provide public schools out of public funds appropriated for this purpose by the provincial legislature. Except in the case of new schools, the governance of the school and the admission and language policy were to be determined by the governing body of the school pursuant to s 6(2)[1] of the Act and subject to any applicable provincial law. A public primary school which taught lessons in the Afrikaans language refused to accede to a request by the Western Cape Education Department (‘the Department’) to change the language policy at the school. The Head of the Department (‘the Head’) issued a directive pursuant to s 6(2) of the Act compelling the school principal to admit 40 learners and have them taught in English. The school’s governing body’s appeal against this decision having been dismissed by the Western Cape Minister of Education (‘the Minister’), 21 learners were admitted for instruction in English. The school made a successful application to the High Court to set aside the directive and Minister’s decision, to prevent the Head and Minister from instructing or permitting Departmental officials from unlawfully interfering with the government or professional management of the school and to order the 21 learners to be placed in another suitable school or schools. The Minister and Head, joined by the parents of the 21 learners, appealed on the grounds inter alia that under s 29(2)[2] of the Constitution everyone had the right to receive education in the official language or languages of their choice in public institutions where that education was reasonably practicable and that in this case it applied to the 40 learners referred to in the directive. Furthermore the appellants argued that the school’s right to determine its language policy was, pursuant to s 6(2) of the Act subject to the Constitution and the rights contained therein. The parents argued in addition that it would be contrary to their children’s best interests as guaranteed by s 28(2)[3] of the Constitution to be transferred to another school during their primary schooling.

In dismissing the appeal, but adding to the original court order that ‘the placement of the children at another suitable school is to be done taking into account the best interests of the children’, it was held that:

1. To interpret s 29(2) to mean that everyone has the right to receive education in the official language of his or her choice at each and every public institution where this is reasonably practicable would result in a group of Afrikaans learners being entitled to be taught in Afrikaans at an English school immediately adjacent to an Afrikaans one which has vacant capacity provided they can prove it would be reasonably practicable to do so. It could also mean that boys have a constitutional right to be educated at a school for girls if reasonably practicable.

2. However, the right under s 29(2) cannot be interpreted in such a way. It is a right against the state and, as such, the Constitution recognizes that there may be various reasonable educational alternatives available to the State to give effect to this right and has left it to the latter to decide how best to do so. Therefore, in order to ensure effective implementation the State, in considering all reasonable educational alternatives, is empowered to provide appropriate institutions. This clearly indicates that that whilst everyone has a right to be educated in an official language of choice etc this does not amount to the right to be so instructed at each and every public institution subject only to it being reasonably practicable to do so.

3. In this case the State obviously considered how to ensure effective implementation and the Act reflects this conclusion. There is no suggestion that any of the Act’s provisions are unconstitutional.

4. Whilst s 6(1) of the Act authorises the Minister to determine norms and standards for language policy in public schools, it does not authorise the Minister himself to determine the language policy of a particular school, nor does it authorize him to authorize any other person or body to do so. Rather it is the function of the governing body of the school in line with s 6(2) to determine the policy.

5. It would be unfortunate if the Head had no remedy in the event of an unreasonable refusal by a governing body to change its language policy. However, this is not the case. Firstly, any such refusal would be an administrative action subject to review under ss 1 and 6 of the promotion of the Administration of Justice Act (‘the PAJA’) and can be set aside if unreasonable pursuant to s 6(2)(h) of the PAJA. Secondly, the Head may, subject to certain procedural requirements, on reasonable grounds withdraw a function of a governing body under s 22 of the Act.

6. The submission that it is in the best interests of the 21 learners concerned that they remain at the schools is based on the assertions made by some of the parents, which in turn is based on the fact that the learners have settled in well and are happy there. However, no case has been made out that it would be in their best interests for them to stay. The fact that they are at present content does not guarantee that they will remain so in future years, especially as they will be a very small minority in a school that is otherwise Afrikaans. Indeed, it is unknown whether or not it would be possible to cater adequately for their educational needs at the school if they remain such a small group Similarly, there is no reason to believe that they would be less happy at another school. In this respect it should be borne in mind that the school was not their parents’ first choice. Given the background to the dispute, to impose the learners in question on the school would be anomalous and run counter to the goal of the legislature that it is in the best interests of the learners that they be educated in schools which are governed and professionally managed in a manner that accords with the Act. Finally, the judge in formulating his order and its terms, in line with the children’s best interests, aimed to ensure that their placement would cause minimal disruption to their lives.

End Notes

[1] Section 6(2) provides: ‘The governing body of a public school may determine the language policy of the school subject to the Constitution, this Act and any applicable provincial law.’
[2] Section 29(2) provides: ‘Everyone has the right to receive education in the official languages of their choice in public educational institutions where that education is reasonable practicable. In order to ensure the effective access to, and implementation of, this right, the state must consider all reasonable educational alternatives, 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.’
[3] Section 28(2) provides: ‘A child's best interests are of paramount importance in every matter concerning the child.’