EDL3703 Assignment 02 First Semester 2025 Memo
Question 2
The right to receive education in an official language or in a
language of choice (section 29(2) of the Constitution) is becoming an
ever increasing debate in South Africa. With reference to three
relevant cases, discuss how the courts have interpreted this section
of the Constitution thus far. (25 marks)
Section 29(2) of the Constitution provides as follows:
(2) 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, 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.
The relevant cases here are:
(i) The Western Cape Minister of Education v The Governing
Body of Mikro Primary School 2005 (10) BCLR 973 (SCA).
Facts
Mikro Primary School was an Afrikaans-medium public school whose
governing body refused to accede to a request by the Western Cape
Education Department to change the language policy of the school so as
to convert it into a parallel-medium school. A subsequent directive by the
MEC for Education, Western Cape Education Department, to the principal
of the school to admit certain learners and to have them taught in English,
the dismissal of an appeal against the directive to the Western Cape
Minister of Education, and the resultant admission of 21 pupils for
instruction in English, had given rise to an urgent application by the
respondents to the Cape Provincial Division (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 held that
the MEC had acted unlawfully by overriding the language and admission
policy of Mikro Primary School and its governing body when it directed the
latter to admit the pupils and to instruct them in English, as had the
Minister of Education in dismissing the school's appeal against said
directive, and the Western Cape Department of Education in enforcing
that directive. The Minister of Education and the Western Cape
Department of Education in appealed against the whole of the judgment.
Judgment
The court held, that the right of everyone to receive education in the
official language or languages of their choice in public educational
institutions where that education was reasonably practicable, as provided
in s 29(2) of the Constitution, was a right against the State. In order to
ensure the effective access to and implementation of this right, the State
was required, in terms of the provision, to consider all reasonable
educational alternatives, including single-medium institutions. This was a
clear indication that, in terms of s 29(2), everyone had a right to be
educated in an official language of his or her choice at a public
educational institution to be provided by the State if reasonably
practicable, but not the right to be so instructed at each and every public
educational institution subject only to its being reasonably practicable to
do so. Neither the Act nor the Norms and Standards regarding Language
Policy, published in terms of s 6(1) of the Act, purported to provide that, in
the event of it being practicable to provide education in a particular
language at a particular school, children who wished to be educated in
that language were automatically eligible for admission to that school in
that language. It followed that, in the present matter, the pupils in
question had a constitutional right to receive education in English at a
public educational institution provided by the State if reasonably
practicable but, even if it was reasonably practicable to provide such
education at the second respondent, they did not have a constitutional
right to receive such education there in English.
The appeal was dismissed, save for the addition of a provision that the
placing of the children at another suitable school was to be done taking
into account their best interests.
(ii) Seodin Primary School v MEC of Education of Northern Cape
2006 (1) All SA 154 (NC)
Facts
The governing bodies of Seodin Primary School, Kalahari High School and
Northern Cape Agricultural High School, sought the setting aside of the
MEC’s decision to convert a number of Afrikaans-medium schools to
double-medium Afrikaans-and-English schools in the Kuruman district.
Judgment
Relying heavily on the judgment in the Mikro Primary School case, the court held
that in accordance with the Norms and Standards section that deals with the
rights and duties of the provincial department of education, read with section
29(2) of the Constitution, the postulate is that it has to be reasonably practicable
to provide education in a particular language of learning and teaching if 40
learners in Grades 1 to 6 or 35 learners in Grades 7 to 12 in a particular grade
request to be taught in a specified official language in a particular school.
To paraphrase the words of the Supreme Court of Appeal in the Mikro Primary
case (supra) in correlation with the case under discussion, it follows that (on the
version of the applicants) the 109 learners (Seodin), the 60 (Kalahari) and the 73
(NC Agricultural High) or many more, on the respondents’ version, had a
constitutional right to receive education in English in a public educational
institution provided by the State if reasonably practicable. Although these
learners did not initially have a constitutional right to receive their Education in
English at Seodin Primary School or Kalahari High School or Northern Cape
Agricultural High School, as the case may be, it has become immaterial as they
now have a legitimate expectation to remain at these schools. See Mikro Primary
School (supra) paragraphs 30 to 31 thereof.
In accordance with the ratio in the aforesaid Mikro Primary School case (supra at
paragraph 33) the MEC or the functionaries of the Department cannot determine
the language policy of a school. In other words the applicant-schools (Seodin,
Kalahari and NC Agricultural High School) are still without a language policy
notwithstanding the fact that the affected children are currently receiving tuition
in English in a dual-medium (English-Afrikaans) setting or environment.
In the court’s view the affected children acquired a vested right to be at the
various schools whereat they were learners and could not be removed there
from without an order of the Court. It would be a sad day in the South African
historical annals that hundreds of children remained illiterate or dropped out of
school because they were excluded from under-utilized schools purportedly to
protect and preserve the status of certain schools as single-medium Afrikaans
schools. The court dismissed the application.
(iii) Head of Department, Mpumalanga Department of Education
and Another v Hoërskool Ermelo and Another 2010 (2) SA
415 (CC)
Facts
The Hoërskool Ermelo (the school), an Afrikaans-medium public school,
refused several requests by the Department of Education of Mpumalanga
to admit scholars who sought to be taught in English. In response, the
Head of the Department (the HoD), acting under ss 22(1) and (3) and
25(1) of the Schools Act (the Act), purported to revoke the power of the
school's governing body to set the school's language policy, and
appointed a committee to attend to this function. The committee
purportedly altered the language policy to parallel English and Afrikaans
media. The governing body and the school then applied urgently to the
High Court for inter alia the setting-aside of the withdrawal of the function,
and of the appointment of the committee. The High Court, apparently
following Minister of Education, Western Cape, and Others v Governing
Body, Mikro Primary School, and Another 2006 (1) SA 1 (SCA), dismissed
the application. Mikro had held that, under s 22(1) of the Act, an HoD is
entitled to revoke any function of a school governing body, and that once
a function had been withdrawn, s 25 applied. The school and governing
body thereon sought and were granted leave to appeal to the Supreme
Court of Appeal, which found for them. The court found that the power to
withdraw functions under ss 22(1) and (3) could only be exercised in
relation to the functions allocated to a governing body under s 21. Those
functions did not include the determination of the language policy, a
power given to a governing body by s 6(2). The HoD and the Minister for
Education then sought leave to appeal to the Constitutional Court.
Judgment
In the case of language policy, which affects the functioning of all aspects
of a school, the procedural safeguards, and due time for their
implementation, will be the more essential. It goes without saying that
excellent institutional functioning requires proper opportunity for planning
and implementation. The court held, that this conclusion is premised on
the nuanced character of the constitutional imperative found in s 29(2),
which whilst recognising the right to receive education in an official
language or a language of one's choice, imposes a duty on the State to
ensure effective access to the right to be taught in the language of one's
choice. This and other positive duties found in section 29 of the
Constitution and in the Act were inconsistent with an understanding of s
6(2) of the Act which located the right to determine language policy
exclusively in the hands of the school governing body. Such an insular
construction would in certain instances frustrate the right to be taught in
the language of one's choice and therefore thwart the transformative
designs of s 29(2) of the Constitution. Put otherwise, the statute devolves
power and decision-making on the school's medium of instruction to a
school governing body. It would, however, be wrong to construe the
devolution of power as absolute and impervious to executive intervention
when the governing body exercises that power unreasonably and at odds
with the constitutional warranties to receive basic education and to be
taught in a language of choice. 67 The Constitution itself enjoins the State
to ensure effective access to the right to receive education in a medium of
instruction of choice. The measures the State is required to take must
evaluate what is reasonably achievable and must keep in mind the
obvious need for historical redress (Paragraphs [75] - [78]).
OR
Some students might also discuss Matukane v Laerskool Potgietersrus
1996 (3) SA 223 (T). This case is actually not relevant as it does not
deal with section 29(2) of the Constitution. The case is only relevant
because it deals with the language of instruction at a school. Students
should not be awarded more than 3 marks if they discuss this case.
Facts
The Constitution of the Republic of South Africa Act 200 of 1993 in s 8(2)
prohibits unfair discrimination. The Constitution does not outlaw
discrimination as such. This is echoed in s 8(2) of the Northern Province
School Education Act 9 of 1995 (NP) and also recognised in s 62 of that
Act dealing with discrimination at private schools. However, s 32(c) of the
Constitution is couched in more absolute terms. The word 'unfair' should
probably be read into s 32(c).
The first, second and third applicants, who were black persons, had at the
beginning of 1996 applied to have their children enrolled at the primary
school (a state-aided public school as defined in the Northern Province
School Education Act 9 of 1995), but their applications had been refused.
The second and third applicants had made similar unsuccessful attempts
at the beginning of 1995. The reason given for the refusal to admit the
applicants' children was that the school was full. The school was an
Afrikaans and English parallel-medium school, although the greater
majority of pupils were Afrikaans-speaking. Contending that the
applicants' children had been refused admission on racial grounds in
violation of s 8(2) of the Northern Province School Education Act and ss
8(2), 10, 24(a) and 32(a) of the Constitution of the Republic of South Africa
Act 200 of 1993, the applicants (the Member of the Executive Council of
the Northern Province for Education, Arts, Culture and Sport being the
fourth applicant) applied for an order declaring that the respondent might
not, on grounds related to race, ethnic or social origin, culture, colour or
language, refuse to admit any child; interdicting the respondent from
refusing to admit any child on such grounds; and directing the respondent
to admit the black children of the parents listed in an annexure to the
notice of motion. The Court analysed the averments in the applicants' and
the respondent's affidavits and found that the facts prima facie proved
discrimination.
Judgment
The court held that the school could only escape the consequences of that
finding if it established that discrimination did not exist or that such
discrimination as did exist was not unfair (s 8(4) of the Constitution): it did
not matter which of the forms of discrimination mentioned in s 8(2) of the
Constitution was proved - should it be found that the applicants had failed
to prove discrimination on purely racial grounds, the established facts
undoubtedly proved discrimination on the grounds of ethnic or social
origin, culture and language.
The school contended, firstly, relying on ss 17, 31 and 32(c) of the
Constitution read in the light of international law in regard to minority
groups in a country, that discrimination on the grounds of ethnic or social
origin, culture or language was not per se unfair. It was contended that
the Afrikaner people constituted a minority and, by virtue of the United
Nations Charter on Human and Peoples' Rights, had an inalienable right to
self-determination, which included the right freely to determine their
political status and to pursue their economic, social and cultural
development. The respondent contended further that, in terms of other
international documents and studies placed before the Court, it was
entitled to protect and maintain the school's character and ethos as an
Afrikaans medium school providing education of a Christian national
character. It was contended, secondly, relying on s 31(1) of the
Educational Affairs Act (House of Assembly) 70 of 1988 and the
regulations promulgated there-under that the admission of children to the
school was a matter in the control of the governing body and that the
school's criteria for admission could only be amended in consultation with
the school's parent community.
The court argued, that, assuming that in terms of international law the
Government had a duty to protect the rights of a minority people and that
such rights included the right to a national school for such a minority as
the respondent thought it was, the contention overlooked the
unambiguous provisions of s 32(c) of the Constitution: there was nothing
in the literature referred to by the respondent which supported the
respondent's contention.
The court also noted that the school seemed to have ignored the fact that
it was not an exclusive Afrikaans school but a parallel-medium school that
already accommodated two different cultures and languages: no answer
was offered to the question why the Afrikaans section should have
stronger or better rights than the English section - if it was based solely on
numbers, the argument was illogical and unacceptable.
The court also argued that the kind of power to which the respondent's
governing body laid claim could not be found in any of the statutory
provisions relied upon: the governing body could never exercise powers in
conflict with the Constitution.
The court held, further, that, apart from clause 5 of the school’s admission
requirements that a proposed pupil should be white (which the school had
conceded was contrary to ss 8 and 32 of the Constitution and therefore
invalid), there was nothing in the other requirements for admission which
absolutely disqualified black children from being admitted.
Held, further, that the school had failed to establish that there was no
unfair discrimination against black children: even if their applications for
admission had been rejected because they had elected to receive their
schooling through the medium of English, it would still constitute unfair
discrimination.
