The Mpumalanga education department acted unlawfully when it forced the Afrikaans Hoërskool Ermelo to become a parallel medium school, the Constitutional Court ruled on Wednesday.
However, the Constitutional Court ordered the school to review its language policy within the context of the basic human rights enshrined in the Constitution.
”The appeal [by the education department] must fail … the language policy the [department’s] interim committee devised is void and has no legal consequences,” ruled Deputy Chief Justice Dikgang Moseneke in a unanimous judgement.
The former chairperson of Hoërskool Ermelo’s school governing body, Johan Ernst, welcomed the ruling, which also ordered the government to foot the legal bills.
”I think it is a fair ruling … We are open to talk to all parties. We’ve always been open to talk but they tried to force their wishes upon us,” Ernst said.
”This ruling is a victory for all school governing bodies because it places all parties on an equal level.”
Currently, the school is teaching in both English and Afrikaans.
”Times are changing and we do not consider this ruling to be negative,” added Ernst.
The school governing body must report back to the Constitutional Court on the review of its language policy by November 16 2009.
At the same time, the Mpumalanga education department was ordered to report back to the Constitutional Court by November 16 2009 on how it was planning to solve the problem of overpopulation in schools.
Moseneke expressed ”dismay” at the ”fact that the department has not taken adequate steps to ensure that there are enough school places that every child in the Ermelo circuit can attend school”.
Both the school and the department needed to keep in mind that new problems could arise next year with the enrolment of Grade 8 learners, said Moseneke.
”While it is so that the adoption of the language policy by the interim committee was unlawful, the underlying challenge in Ermelo relating to the scarcity of classroom places for learners who want to be taught in English remains and is likely to resurface in January 2010.
”At the very least, in reassessing its language policy, the school governing body must have regard to its dwindling enrolment numbers.
”It must act, recognising that there is a great demand for the admission of grade 8 learners who prefer English as a medium of instruction,” said Moseneke.
Many historically white public schools were still tasting the benefits enjoyed under apartheid, he said.
”Apartheid has left us with many scars … It is so that white public schools were hugely better resourced than black schools.
”On the other hand, formerly black public schools have been and by and large remain scantily resourced,” said Moseneke.
The purpose of the Schools Act — which deals with the powers of school governing bodies — was to ”give effect to the constitutional right to education”.
”The power to determine a school’s language policy vests in the governing body … The power must be exercised subject to the limitations [of] the Constitution and the Schools Act.
”Even more importantly, it must be understood within the broader constitutional scheme to make education progressively available and accessible to everyone, taking into consideration what is fair, practicable and enhances historical redresses,” said Moseneke.
However, the education department’s decision to change the school’s language policy was ”incorrect”.
”That the HoD [head of department] did not like its language policy cannot be equated with the governing body having ceased to function or having failed to adopt one.”
In January 2007, Hoërskool Ermelo, an Afrikaans medium school, said it could only accommodate a group of English-speaking children if they were prepared to receive tuition in Afrikaans.
In terms of the South African Schools Act 84 of 1996, a school’s language policy is determined by that school’s governing body.
The English medium schools in Ermelo could not take the group because they did not have space for more pupils.
Not all of them could be accommodated at Hoërskool Ermelo because they did not want to be taught in Afrikaans.
About two weeks later, the head of the education department urgently withdrew the function of the governing body to determine the school’s language policy and appointed an interim committee to perform the function. The committee decided to change the school’s language policy to a parallel medium.
The school challenged the HOD’s decision in the high court and lost. It then took the matter to the Supreme Court of Appeal and won.
The education department then appealed to the Constitutional Court.
Civil rights group AfriForum welcomed the Constitutional Court ruling.
”The authorities were even prepared to exceed their powers in order to drive an ideologically-motivated vendetta against Afrikaans schools,” said AfriForum chief executive Kallie Kriel.
Education authorities created an ”artificial demand for English education in order to promote an anti-Afrikaans agenda”, added Kriel. — Sapa