Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
14 October 2009

“Afrikaners is (not) plesierig”?

Hoërskool Ermelo has on average about 22 learners in a classroom. At the nearby Lindile School, 62 learners are on average crammed into one classroom. Until now the school’s medium of instruction was Afrikaans and the school was so determined to keep things this way that it challenged the lawfulness of a decision by the Head of the Mpumalanga Education Department to withdraw the powers of the school’s governing body to determine its own language policy.

In Head of Department: Mpumalanga Department of Education and Another v Hoërskool Ermelo and Others the Constitutional Court today confirmed that the Head of Department had acted unlawfully. But this was a Pyrrhic victory for the school as it was ordered to reconsider its language policy and the school will almost certainly have to change its language policy. This will allow black learners who do not wish to be taught in Afrikaans to attend the school.

This judgment is important because it clarifies the powers of school governing bodies to determine a school’s language policy as well as the powers of the Head of the Education Department to intervene in a school’s affairs – including the determination of a language policy.

Section 6(2) of the Schools Act  provides that the governing body of a public school “may determine” the language policy of that school. However, Deputy Chief Justice Moseneke, in a unanimous judgment, made it clear that this does not mean that the “function to decide on a medium of instruction of a public school is absolute or is the exclusive preserve of the governing body. Nor does it mean that the only relevant consideration in setting a medium of tuition is the exclusive needs or interests of the school and its current learners or their parents”. As Moseneke J points out:

[A] school cannot be seen as a static and insular entity. Good leaders recognise that institutions must adapt and develop. Their fiduciary duty, then, is to the institution as a dynamic part of an evolving society. The governing body of a public school must in addition recognise that it is entrusted with a public resource which must be managed not only in the interests of those who happen to be learners and parents at the time but also in the interests of the broader community in which the school is located and in the light of the values of our Constitution.

In this case the governing body’s language policy excluded learners (all black) who wanted to be taught in English. Although section 29(2) of the Constitution states that “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” and, further, “that the state must consider all reasonable educational alternatives, including single medium institutions”, when realising this right, there is no absolute right in the Constitution to be taught in a single medium Afrikaans school.

Considerations of equity, practicability and the need to redress the results of past racially discriminatory laws and practices must all be taken into account when considering whether the maintenance of single medium Afrikaans schools are reasonably practicable. In Ermelo, suggested the Court, it is clearly not reasonably practicable to maintain a single medium Afrikaans high school and the insistence by Hoërskool Ermelo (whose student numbers have been dropping) to continue with an Afrikaans only policy was therefore probably not reasonable.

The Court also made it clear that the Schools Act allows the Head of Department to withdraw the powers of a governing body to determine a school’s language policy “on reasonable grounds”. What would constitute reasonable grounds will have to be determined on a case by case basis but a reviewing court will have to consider carefully the nature of the function, the purpose for which it is revoked in the light of the best interests of actual and potential learners, the views of the governing body and the nature of the power sought to be withdrawn as well as the likely impact of the withdrawal on the well-being of the school, its learners, parents and educators.

It is important to note that all these factors would have to be weighed within the broad contextual framework of the Constitution to provide access to education for all and the need to redress the results of past racial discrimination. School governing bodies are therefore not allowed to use a language policy in an indirect manner to prevent large numbers of black learners to enroll at a school. Where there are vast discrepancies between the class sizes in different schools in a single town, a school governing body would not be justified in sticking to a policy of teaching exclusively in Afrikaans.

The judgment will probably not be welcomed by Afrikaans language activists, but it seems to me to strike a good balance between the needs for equity and redress on the one hand, and the right of school governing bodies to determine language policy on the other. The crux of the matter is that a governing body is not allowed only to consider the interests of the existing learners and parents: it must also consider the needs of the broader community. The judgment therefore reflects a need for us all to embrace social solidarity and not to act in a selfish manner to exclude others in order to further a narrow kind of language nationalism.

The case is also strikingly innovative and pro-active in the way it addresses the problem of overcrowding in schools and the tardiness of officials in dealing with this issue. Justice Moseneke lambasted the Department for not taking adequate steps to ensure that there are enough places so that every child in Ermelo can attend school as required by the Schools Act and as guaranteed by the Constitution.

The Court therefore ordered the Head of Department to submit a report to the Court by 16 November 2009 setting out the likely demand for grade 8 English places at the beginning of 2010 and setting out the steps that the Department has taken to satisfy this likely demand for an English or parallel medium high school in the circuit of Ermelo. The report must also provide information and statistics on the levels of enrolment in other high schools in the area in the light of the learner-to-class ratio norms set by the Minister for Education.

The order clearly attempts to force the Department to do its job properly and this is to be welcomed. It remains to be seen how the court will deal with this report, but it represents quite a leap for our Constitutional Court and demonstrates that as far as education is concerned, it is prepared to stick its neck out to try and get the politicians to do their jobs.

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