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IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

DATE: 17 OCTOBER 2008

CASE NO: 3062/2007

REPORTABLE

In the matter between:

HIGH SCHOOL ERMELO 1^ST APPLICANT

GOVERNING BODY OF

HIGH SCHOOL ERMELO 2^ND APPLICANT

And

THE HEAD OF DEPARTMENT

MPUMALANGA DEPARTMENT OF

EDUCATION 1^ST RESPONDENT

JINA KHUDAIJA 2^ND RESPONDENT

DANKA MUNERA 3^RD RESPONDENT

ESSAY AYOOB 4^TH RESPONDENT

COENIE VAN GREUNEN 5^TH RESPONDENT

QUEEN NQELE 6^TH RESPONDENT

JACOBUS KRUGER 7^TH RESPONDENT

THE MINISTER OF EDUCATION 8^TH RESPONDENT

NCANE ELIZABETH MASILELA 9^TH RESPONDENT

JUDGMENT

NGOEPE JP, SERITI J & RANCHOD AJ

[1] This is a review application in which the applicants seek an order reviewing and setting aside certain decisions taken to allow the enrolment of learners in grade 8 to be taught in English at the Ermelo High School, a state school. The school is the first applicant, situated in the Mpumalanga Province.

[2] The second applicant is the governing body of the first applicant as contemplated in section 16(1) of the South African Schools Act 84 of 1996 (the Act). In terms of section 6(2) of the Act, second applicant is supposed to determine the language policy of the first applicant and also determines the admission policy of the school.

[3] The first respondent is the Head of Department, Department of Education, Mpumalanga Province. First respondent apparently also carries the title Superintendent General of the Department of Education for that province.

[4] The second, third, fourth, fifth and sixth respondent are members of an interim committee established by the first respondent in terms of section 25 of the Act.

[5] The seventh respondent is the principal of the first applicant, and is employed by the Mpumalanga Province, Department of Education.

[6] The eighth respondent is the Minister of Education.

[7] The ninth respondent is the parent of one of the learners who wanted to be admitted to the first applicant.

[8] The last two respondents were admitted later in the proceedings.

[9] The notice of motion prayed the review and setting aside of:

(a) The decision of the first respondent to revoke on an urgent basis the powers of the second applicant to determine the language policy of the first applicant

(b) The appointment of an interim committee by the first respondent to determine the language policy of the first applicant

(c) The decision of the interim committee that the language policy of the first applicant is altered from Afrikaans medium to a parallel medium (Afrikaans and English) school.

[10] Ermelo High School, we are told, has been an Afrikaans medium school for over 90 years. As the name indicates, the school is situated in Ermelo. It is common cause that it is a state school. It is also common cause that the school is from grade 8 to grade 12; it is therefore not a combined school in that it is not meant, at least officially, to cater for lower grades. The school is situated within what is referred to as the Ermelo Circuit 1. The court was made to understand, during argument, that lower schools in a particular circuit are natural feeders to certain higher schools of their area. Ermelo High would likewise have certain schools in its area which would feed into it. This aspect is very important with regard to admission policy; in particular it goes a long way towards determining whether pupils would, all things being equal, be entitled to be admitted into a particular higher school in their area as they move to higher grades.

[11] Ermelo High School is not the only grades 8 – 12 school in its area; there are for example a few other high schools located in so-called black townships.

[12] State schools in Mpumalanga opened around 10 January 2007 for the academic year. A dispute arose between the second applicant and the first respondent. The latter wanted the school to admit a group of students into grade 8; these students had graduated from schools which were natural feeders to the school. The applicants were prepared to admit at least some of these students, provided that they would be taught through the medium of Afrikaans. That was the language policy of the school as determined by the second applicant. The first respondent did not accept this, and argued that the school had to admit also learners to be taught in English as they could not be accommodated anywhere else since other schools were full.

[13] When no agreement could be reached between the applicants and the first respondent, the latter, in a letter dated 15 January 2007, revoked the function of the second applicant with regard to the language policy of the school. The revocation is governed by statute, to which reference will later be made in detail. After revoking the function of the second applicant, first respondent appointed, again in terms of the relevant legislation, a group of people to exercise that function. The parties refer to this group of appointees as an “interim committee”. It must be noted that this is not an interim governing body; in fact the existing governing body was not dissolved. However, once a particular function is validly revoked, the governing body is no longer competent to exercise that particular function. It would be the interim committee which would exercise that function. The lifespan of such a committee is only 3 months as its function is circumscribed.

[14] After the interim committee was appointed, it convened and considered the language policy of the school. Unlike the governing body, the committee decided that students be admitted into grade 8 at the school, and be taught in English. The decision was taken on 29 January 2007. Apparently this decision became public knowledge, as a number of students, accompanied by their parents and under the supervision of the committee, called at the school for admission. We were told that at one stage, there was a list of 113 students seeking admission, wanting to be taught in English.

[15] The applicants launched an urgent application for an interim interdict the effect of which would be to prevent the enrolment of the learners wanting to be taught in English, pending the outcome of a Rule 53 application (the main application) to inter alia set aside the first respondent’s decision to revoke the language function of the second applicant, and also to set aside the appointment of the interim committee and its new language policy. It is the application now before us. The grounds for the review, raised during argument before us, would be dealt with in due course.

[16] The urgent application first served before LEGODI J, on 29 January 2007. He struck the matter from the roll for non-compliance with the time periods prescribed by the State Liability Act, 20 of 1957. The applicants re-served the papers and, on the second occasion, found themselves before a different judge, namely, PRINSLOO J. He granted the interim order, the effect of which was, as alluded to above, to prevent the admission of any learner wanting to be taught in English. While the applicants were before PRINSLOO J, learners were busy being interviewed by the principal for purpose of admission on the strength of the new policy. Armed with the order of PRINSLOO J, the applicants returned to Mpumalanga and sought to enforce it. By then, about 8 learners had already been admitted in grade 8 to be taught in English, their admission having been on the basis of the new policy as determined by the interim committee. The applicants have stated before us and in their papers that irrespective of the outcome of this case, these learners would be allowed to stay on at the school. It is not clear whether they would be allowed to stay on until they complete grade 12. The applicants’ undertaking is clearly meant to circumvent the difficulty in not having joined the learners or their guardians. In Seodin Primary School and others v MEC of Education of the Northern Cape and others, unreported case 1177/2004 (NCD), the court (Full Bench) held the view that a curator ad litem should have been appointed for the barred learners, possibly also for future children as well. The applicants’ undertaking can only be of cold comfort to the 19 learners. The truth is that these learners would, once the applicants get the order they want, be at the school purely at the mercy of the applicants. The new language policy is a branch on which these learners are sitting; you chop it off, they fall. Anyway, the issue of the learners’ non-joinder, properly belongs to the question of the rescission of the order of PRINSLOO J, where a separate judgment has been given; we do not deal with it here any further.

[17] After the order of PRINSLOO J became known and enforced, the eighth and ninth respondents came into the picture. They brought an urgent application for the rescission of the order, leave to join in the proceedings and thereanent, to contest the applicants’ application for an interim order. The application was heard by this court, a Full Bench. The court found in favour of the two respondents: it rescinded the order of PRINSLOO J, allowed the eighth and ninth respondents to join in the proceedings and, after hearing applicants’ application for an interim order, declined same.

[18] The applicants decided to appeal the above rulings of the court. Their so-called notice of application for leave to appeal was found to be fatally defective in that it did not even begin to set out the grounds of appeal. The court also mentioned, obiter, that the orders were not appealable. The applicants then petitioned the Supreme Court of Appeal, but were unsuccessful on the ground that they had yet to apply for leave to appeal to this court (High Court). By the time they returned to this court, they were hopelessly out of time and condonation was refused for lack of prospects of success. This court has already handed down its judgment in this regard. At the time that judgment was handed down, the application now before us, that is the main Rule 53 review application, was to be heard in only two weeks’ time. It was for this reason that in our judgment refusing condonation, we did not deem it appropriate to give full reasons unless asked to do so. That still remains our view. As far as we were concerned, the time was overdue to shift focus from the skirmishes around interim orders onto the real application, which skirmishes had been going on since January to middle 2007, causing the main review application to be stalled!

[19] As already mentioned, after a long delay and in fact after exhortation by the Judge President (the parties later thanked him for his facilitation of the hearing of the main application), the main application was heard on 4 September 2007 by this court, the same Bench which had been hearing skirmishes around the interim interdicts.

[20] The applicants’ case rested on five main grounds. Firstly, they challenged the validity of the withdrawal of second applicant’s function regarding the language policy of the first applicant, which function was withdrawn by the first respondent. Secondly it was contended that the subsequent appointment of an interim committee by the first respondent to assume the function withdrawn from the second applicant, was itself also invalid. Thirdly, it was argued that the new language policy determined by the interim committee, in terms of which a group of new grade 8 learners could be admitted and taught in English at the school, was invalid. Fourthly, it was submitted that, in any event, there was no room at the school to accommodate any learners wanting to be taught in English. Fifthly, it was argued that the first respondent could secure premises elsewhere. Arguments about the rescission of the orders of PRINSLOO J, and the regularity of the admission of the last two respondents were not raised again. We will now deal seriatim with the main points raised by the applicants, as also with others.

The withdrawal of the second applicant’s function regarding the language policy

[21] On 15 August 2006 the Circuit Manager of the Department of Education, Mpumalanga, wrote a letter to all the principals in the area requesting suggestions as to how to resolve the shortage of accommodation for grades 8-12 learners who wished to receive tuition in English.

[22] Some of the suggestions received were that certain buildings such as the “Ou Kommando Gebou”, the “Convent” and “Sportnet Building” could be used as alternative accommodation for learners who wished to receive their tuition in English.

[23] According to the first respondent the abovementioned buildings belong to private individuals or institutions from whom the Department of Education had to either rent or buy. Furthermore, the said buildings would require substantial renovations in order to convert them into suitable classroom facilities.

[24] First respondent further alleges that such expenditure cannot be justified in the light of the fact that there are empty classrooms at the first applicant.

[25] First respondent alleges that shortly before the reopening of the schools in January 2007 it came to his attention that there were 113 learners who wished to receive tuition in English, but could not be accommodated at other schools.

[26] First respondent called a meeting on 9 January 2007 to discuss the question of the accommodation of learners for the current academic year. The principal and the chairperson of the school governing body of first applicant were also invited to the meeting.

[27] According to the first respondent, the purpose of the meeting was to discuss the crisis regarding the 113 learners and to request the applicants to admit the said learners. At the said meeting the applicants’ representatives suggested that Afrikaans speaking learners from other schools should be relocated to the school in order to make space for learners wishing to receive tuition in English. The suggestion was not acceptable to the Department of Education. In a letter dated 9 January 2007, first respondent informed the principal that there were 113 learners requiring admission into grade 8 at the school and who were to be taught in English; that the school had room for them, and that the principal should not refuse them. He was instructed to admit the learners. Given the then existing language policy, the instructions could not be valid.

[28] On 10 January 2007 a group of parents of the learners and some departmental officials, apparently encouraged by the letter to the principal, went to the first applicant to attempt to secure admission for their children. The principal, despite the letter and on the instructions of the second applicant, informed them that the learners could be admitted only if they were prepared to receive tuition in Afrikaans. This was not acceptable, and the parents of the learners and the officials left. Together with the departments’ officials, they went to the Circuit Office of the Department of Education.

[29] According to the first respondent, from 10 January 2007 to 25 January 2007, the Department explored all possible avenues to accommodate the stranded learners. The Department asked for and received figures of learners registered at various schools and, after studying the figures, came to the conclusion that except for the first applicant the other schools did not have the capacity to accommodate the stranded learners.

[30] On 25 January 2007, first respondent addressed a letter marked “Urgent” to the school governing body of Ermelo High School.

The said letter reads as follows:

“RE: WITHDRAWAL OF FUNCTION:

DETERMINATION OF LANGUAGE POLICY IN TERMS OF SECTION 22 OF THE SOUTH ARICAN SCHOOL’S ACT 84 OF 1996

As you are aware the Department is and has been experiencing difficulties in accommodating learners within the Ermelo circuit, the history of which is not necessary to be repeated in this letter. You are also aware that the department has, on several occasions attempted to resolve this problem with you in a amicable way. In view of the current crisis and the urgency of the matter, taking into account, inter alia, that there are about 113 learners who are stranded at home, I have decided to withdraw your function of determining the language policy of the “Hoërskool” Ermelo with immediate effect. I will in due course furnish you with my reasons as to why I have so decided and will afford you a reasonable opportunity to make representations in this regard to which I will give due and proper consideration and advise you of my final decision thereafter.

I may advise you that in view thereof that these learners have to be accommodated immediately I have decided to appoint sufficient persons to perform this function for a period of 3 months.”

[31] In a letter dated 1 March 2007 addressed to the school governing body, the first respondent provided reasons for his decision of 25 January 2007 and afforded the school governing body an opportunity to make written representations to him.

[32] In a letter dated 23 March 2007 addressed to the first respondent, the attorneys for the school governing body furnished the first respondent with written representations against the withdrawal.

[33] The first respondent, in a letter dated 22 June 2007 addressed to the attorneys for the school governing body, rejected the written representations made on behalf of the latter and refused to reverse the decision taken on 25 January 2007.

[34] In terms of the prescribed procedure, an appeal was lodged with the relevant member of the Executive Council on 12 July 2007. On 14 August 2007 the Member of Executive Council for Education advised the school governing body that after careful consideration of all relevant documents, he was not persuaded that the head of department erred in his decision and he accordingly dismissed the appeal.

[35] It is common cause that the first respondent, in withdrawing the function referred to above, could only have done so when confronted with a situation of urgency, as provided for in section 22 of the Act. The section reads:

“(1) The Head of Department may, on reasonable grounds, withdraw a function of a governing body. …

3. In cases of urgency, the Head of Department may act in terms of subsection (1) without prior communication to such governing body, if the Head of Department thereafter –

   1. furnishes the governing body with reasons for his or her actions;

   2. gives the governing body a reasonable opportunity to make representations; and

   3. duly considers any such representations received.”

Under urgent circumstances, a withdrawal can therefore be made without prior consultation with the governing body and reasons may be given only later. This is precisely how the withdrawal was effected in casu. The first respondent says it was reacting to an urgent situation, while the applicants contend that there was no such urgency, and therefore that the withdrawal was invalid. They argue that given the history set out above, first respondent had been aware of the problem since the previous year (2006); therefore such emergency as was there was created by the Department itself.

[36] That there was a crisis cannot be disputed; this is also apparent from second applicant’s version. While it is true that one may not rely on an urgency created by oneself, it would be inappropriate to apply that principle in the present case: it was neither the parents nor the innocent children who created the crisis. This was precisely the same dilemma that was faced by BERTELSMANN J, in Laerskool Middelburg v Departementshoof, Mpumalanga 2003 (4) SA 160 (TPD).

[37] The applicants seem to be taking too simplistic a view of the situation. It is one thing to foresee, as the first respondent did, that there will be an increase of standard 8 entrants the following year; but it is a different thing altogether to know exactly how many learners one will be confronted with and how many would want to be taught in a particular language, in casu English. Even an underestimation with say 25 students could still result in a problem. In any event, the respondent contends that between 10 January 2007 and 25 January 2007 the Department looked at other schools as alternatives; it did not simply do nothing during the days leading to the withdrawal of the function. Does it not matter at all that other schools in the area are overcrowded, as the statistics below show? It would be a manifestation of this attitude to say that as a result of misplanning by the Department, if any, the problem faced by the innocent learners does not constitute a crisis. There was an urgent situation and it was reasonable and necessary to take steps to accommodate the stranded learners. The applicants’ argument to the contrary cannot therefore stand. In terms of section 22(3) of the Act, it was not necessary for the first respondent to first consult with the second applicant once there was some urgency. Requested reasons were given later, representations made and received and, finally, the appeal made and considered.

The validity of the appointment of a group of people to take over the withdrawn function

[38] On the same day that the authority of the second applicant was withdrawn, the first respondent wrote a letter to the five people he was appointing in terms of section 25 of the Act, to take over the function to determine the language policy of the first applicant. In the papers, the parties refer to this team of people as an “interim committee”, a language not used in the Act. First respondent’s letter set out the history of the dispute between the Department and the two applicants, and also mentioned that there were 113 learners who were at home, without a school.

The last paragraph of the letter reads:

“You are therefore requested to convene a meeting as a matter of urgency to determine the language and admission policy of Hoërskool Ermelo. You are also requested to ensure that the Language policy determined by yourself will enable the learners to be admitted at Hoërskool Ermelo as a matter of urgency. The Principal of the school would then be advised on the language policy so determined by yourselves and instruct the school principal of the determination and subsequent admission of the learners.”

On 25 January 2007 the interim committee met. It was six people; one of them a Mr C van Greunen, about whom more later.

The minutes of their meeting noted, inter alia:

“After a great deal of discussion a decision was taken to draw up a new language policy by all present.”

[39] The new language policy emanating from the interim committee was signed on 29 January 2007. In terms of the said policy the language of teaching and learning at Hoërskool Ermelo would be Afrikaans, but some students would be taught in English at the entry grade. It was as a result of this decision that grade 8 learners again approached the school to be registered and taught in English.

[40] On 30 January 2007 Van Greunen, then a member of the interim committee, wrote a letter to the first respondent that he was resigning as a member. He also complained, inter alia, that the interim committee ought not to have taken the decision it took prior to consulting with the school governing body, the learners at the school and their parents, and without inspecting the facilities at the school in order to determine whether or not the school had spare seven classrooms or not. These procedural requirements are not contained in the Act. Nor did the committee have to carry out an inspection in loco. Nothing suggests that the number of classrooms and students was ever in dispute.

[41] Applicants’ counsel further submitted that the composition of the interim committee was not in accordance with the law as categories of people referred to in section 23 (1) (a), (b) and (c) of the Act, were not represented in the interim committee. This argument confuses requirements for the appointment of a governing body, with those for an interim committee whose lifespan is only 3 months and which has a narrow function.

Section 25, without any reference to section 23, provides that the Head of Department after determining that a governing body has ceased to perform a function, must appoint “sufficient” persons to perform such a function. The adjective “sufficient” is not defined. It should be understood to mean suitably qualified people who, in the opinion of the person who appoints, can do the work. No allegations have been made that any of the appointed people were not so qualified.

[42] The authority to appoint persons to take over a function of a governing body derives from section 25(1) of the Act, which reads as follows:

“If the Head of Department determines on reasonable grounds that a governing body has ceased to perform functions allocated to it in terms of this Act or has failed to perform one or more of such functions, he or she must appoint sufficient persons to perform all such functions or one or more of such functions, as the case may be, for a period not exceeding three months.”

[43] Applicants’ counsel submitted that the first respondent has failed to demonstrate that the second applicant had ceased to perform its functions when he appointed the interim committee. The submission cannot be upheld. In Minister of Education W Cape v Governing Body, Mikro School 2006 (1) SA 1 (SCA) at p 22, para 40, STREICHER JA whilst dealing with sections 22 and 25 of the Act supra said:

“If a function is withdrawn, the governing body ceased to perform that function, and section 25 becomes applicable.”

[44] Applicants’ counsel further submitted that the interim committee should have consulted the second applicant prior to changing the language policy of Ermelo High School. This argument does not make sense. That very function had been withdrawn from the authority of the second applicant and given to the interim committee to exercise. The latter could not have been obliged to consult the former.

In any case, the facts of this case indicate that there had been fruitless negotiations between the first respondent and the applicants about the language policy of the first applicant. A consultation between the interim committee and the applicants and other possible role players would not have produced different results; this is clear from the determination with which the governing body is fighting this matter. A call for consultation between the two bodies would have been a farce. After all, the one body had just lost power to the other. In any case, it is not prescribed by the Act, obviously for the above reason.

[45] It was further submitted on behalf of the applicants that the interim committee, when determining the language policy of the first applicant, failed to exercise its independent discretion based on all relevant facts, but merely acted as puppets in the hands of the first respondent. In this respect, the applicants rely on the last paragraph of the letter reproduced above. As pointed out by the respondents’ counsel, the letter gives a history of the dispute between the first respondent and the applicants. It had to identify the problem to the interim committee. It was inevitable that in doing so, it had to refer to the issue of the language policy and the difficulties it was creating in relation to the stranded learners; it had to indicate that there was a real problem at hand.

It cannot, with justification, be argued that the interim committee did not exercise its independent discretion. Mere allegations of this nature are not sufficient; an applicant must substantiate the allegations as opposed to merely making all sorts of inferences; otherwise unpopular administrative decisions would be set aside daily. The minutes of the committee’s meeting state clearly that the decision resulted from a “great deal of discussion.” It has been contended that the meeting lasted merely an hour. But it is not necessarily how much time is spent, but how best one uses the available time.

[46] In any case, the decision of the interim committee can only be vitiated if it were shown that absent the alleged influence, the results might have been different; compare SA Veterinary Council v Veterinary Defence Association 2003 4 SA 546 (SCA) 556H-I, para 40 and Cooper v First National Bank of SA Ltd 2001 3 SA 705 (SCA) 734H-I, para 50. Any reasonable body of persons, confronted with the situation of the stranded learners, would have come to the same decision.

[47] The applicants’ counsel also submitted that when determining a language policy of a school, the governing body must do so subject to the Constitution, the Act and any applicable legislation, which procedure the interim committee was also obliged to follow, but failed to do so. In this respect, applicant’s counsel referred the court to section 15(1) of Act 8 (Mpumalanga) of 1995 which reads as follows:

“The language of education at a public school shall be determined by the District Council of the school concerned in consultation with the Department, the Governing Body of the School concerned and subject to the approval of the Member of the Executive Council.”

On the other hand section 6(2) of the South African Schools Act supra provides that 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.

[48] The abovementioned section 15(1) of the Mpumalanga School Education Act appears therefore to be in conflict with section 6(1) of the Schools Act. The latter stipulates that the governing body may determine the language policy of a school while the former states that the language of the school shall be determined by the District Council.

None of the counsel could tell the court what the District Council referred to in section 15(1) was, or whether it existed at all. It was for that reason that the parties based their submissions around section 6(1). Section 15(1) would in particular be inimical to the language authority of the second applicant and therefore its case. None of the parties relied on it. It is therefore not necessary to resolve the apparent conflict.

That the school has no space for learners wanting to be taught in English

[49] The applicants allege that the first applicant does not have spare capacity as all the classrooms are utilised. The first respondent contends that as the school was built to accommodate 1200 learners, given the fact that it presently has only 589 learners, the school has spare capacity which can be utilised to accommodate learners who wish to receive tuition in English. In 2000 the number of learners dropped to 990 before dropping even further to 589 presently. It is to be noted that although the first applicant is not a combined school, it is accommodating learners from other schools below Grade 8; also, it has boarding facilities and accommodates learners from outside the area of Ermelo; that is, outside of its natural feeder area. These facts are common cause and are relevant.

[50] The number of learners and classrooms at various schools in the area, are given as follows by the Department:

• Ligbron Academy of Technology: twenty (20) classrooms with nine hundred and seventeen (917) learners;

• Ermelo Combined School: fourteen (14) classrooms and four hundred and sixty three (463) learners;

• Lindile School: twenty-nine (29) classrooms and one thousand seven hundred and ninety nine (1799) learners;

• Cebisa School: nineteen (19) classrooms and nine hundred and twenty six (926) learners;

• Ithafa School: thirty-six (36) classrooms and one thousand six hundred and seventy seven (1677) learners;

• Reggie Masuku School: twenty-one (21) classrooms and eight hundred and four (804) learners; and

• Ermelo High School (the first applicant): thirty-two (32) classrooms, excluding laboratories and other facilities: it has five hundred and eighty nine (589) learners.

The above information is not contested.

[51] A simple calculation will show that Ermelo High School, already on the face of it, is most privileged and has the lowest learner-classroom ratio. A look at Lindile School reveals nothing but shame: it has 29 classrooms for 1799 learners, as compared to first applicant with 32 classrooms for only 589 learners; Lindile, with only 3 classrooms fewer, accommodates nearly 3 times as many learners as Ermelo High does, or wants to do! Cebisa School, with just over half the number of classrooms Ermelo High has, accommodates nearly twice the number of learners Ermelo High has. One can go on with the comparisons; they will show that the school has more classrooms in relation to its number of learners by far. The comfort zone allowed to first applicant is astounding. The applicants have approached the court on the basis, inter alia, that they have no spare capacity; they must make out such a case.

[52] Confronted by the above telling statistics, the applicants contend that all classrooms are taken because, apart from offering main stream subjects or the basic curriculum, the school also offers an extended curriculum. The extended curriculum comprises so-called choice or optional subjects; that is, non-compulsory subjects such as tourism, hotel management, drama, music etc. Although the applicants say that the offering of the extended curriculum has been approved by the Department, it is in fact not so; at best for the applicants, it would be correct to say that the Department has not objected. First respondent contends that the current national curriculum stream provides for 29 subjects. The said subjects are divided into eight streams from which each school is allowed to choose not more than three streams. The first applicant admits that it offers subjects from six streams yet denies that this is above the limit of the number of streams stipulated in the state policy.

[53] First respondent further contends that the state guarantees all South African learners access to four mainstreams of subjects and that any curriculum expansion beyond the four main streams are private arrangements by the school concerned; that is, it is not official. It is common cause that first applicant offers a variety of 25 subjects to its learners whilst other schools in the area offer subjects far less in number; for example, Ligbron offers 16 subjects.

[54] It was incumbent on the applicants, as part of making out their case, to set out precisely in which way and how, given so many classrooms in relation to the number of students they have in comparison to their own history as well as to other schools in the area, all the classrooms are utilized to the point that there is no space. This has not been done. What we have is a bold statement that, because of the extended curriculum, there is no space. What is also telling is that they are this year able to accommodate a few students in grade 8 who are taught in English.

[55] While the school pleads lack of space, it has emerged that it also offers tuition to lower grades; for example, grade 6 and 7 learners from other schools, even though the school is not a combined one; it starts only from grade 8. Apparently, these lessons are offered after hours. We are not told why for example, instead of offering extra lessons to lower grade learners from other schools, a system cannot be worked out, such as a platoon system, to accommodate the rejected learners. Apparently outside learners are acceptable because they are taught in Afrikaans. Secondly the school admits learners from outside its feeder area. Lack of space cannot be the real issue

[56] It is clear that once it was mentioned that some learners wanted to be taught in English, the applicants, notwithstanding the crisis, did not bother to see how the learners could be accommodated, despite the Department’s commitment to help, such as with teachers and books. The applicants’ strategy, throughout the negotiations with the education authorities, was to find ways and means of diverting any person who wanted to be taught in English away from the school. The question of lack of space is a mere smokescreen to keep out any learner, including those within the district, who wants to be taught in English. The submission for the applicants that the admission of grade 8 students would result in the school being turned into an English speaking institution, is perhaps the real reason, as the school has been a single medium one for years. But this is not a point to be raised indirectly, or in a disguised manner. Had the applicants boldly raised the real issue, it could have been properly canvassed in the papers and confronted pertinently; but it has not been so raised.

Alleged prejudice to current students

[57] Equally vague, without substantiating how, was an argument that the presence of learners to be taught in English would be prejudicial to the interests of the Afrikaans speaking learners. No effort whatsoever was made to show how; nor were we told the nature of such prejudice. It is not clear how, firstly, a court could be expected to guess the nature of the prejudice and, secondly, presume it.

[58] In their heads of argument, counsel for the applicants referred to the judgment of Thring J in Governing Body, Mikro Primary School, and another v Minister of Education, Western Cape, and others 2005(3) SA 504 (CPD) at page 516 C-D.

“It is contended by the first and second respondents that the applicants will suffer no prejudice because pupils at the school who have chosen to be taught in Afrikaans may continue to receive their tuition in that language. I disagree. Where the governing body of a school has elected to have a single language as its medium of instruction, the introduction of a second language of tuition must inevitably have a profound influence on the modus vivendi, the customs, traditions and almost every aspect of the atmosphere which pervades the school. It is not difficult to think of examples to illustrate this.”

The problem is that the applicants did not base their case on this. It was not for us to “think” of possible impacts. Had the applicants done so, the respondents could have possibly had the opportunity to answer to that; for example, as to what steps could be taken to minimize or even avoid any negative impacts or prejudice, if any.

[59] We are not inclined to share the views of THRING J; at least not without full and proper factual basis before us. We prefer the open minded approach in the judgment of BERTELSMANN J, in the Laerskool Middelburg case, supra, page 173 C-F:

“Terwyl dit duidelik is dat onafhanklike onderwysinstellings deur kulturele gemeenskappe opgerig kan word met die oog op enkeltaal onderwys, is die aanspraak op enkelmedium onderwys in ‘n openbare skool noodwendig gekoppel aan die doenbaarheid daarvan. Dit mag regtens gesproke ‘n oop vraag wees of die beoefening van eie taal en kultuur beter bevorder word wanneer daar in die skool voorsiening vir die uitsluiting van ander kultuurgemeenskappe gemaak word al dan nie. Ek het die aangeleentheid indringend met die advokate in betoog bespreek. Die aanspraak op ‘n enkelmedium instelling kan waarskynlik die beste as ‘n aanspraak op emosionele, kulturele, religeiuse en maatskaplik-sielkundige geborgenheid in eie kringe gedefiniëer word. Mits ‘n parallelmedium skool behoorlik bedryf word, kan dit kwalik betoog word dat die omskakeling van ‘n enkelmedium openbare instelling na ‘n parallelmedium skool per se wesenlik afdoen aan die aanspraak van elke kultuurgemeenskap op onderrig in sy eie amptelike taal of die taal van sy voorkeur. Die reg op ‘n enkelmedium openbare onderwysinstelling is duidelik ondergeskik aan die reg wat elke Suid-Afrikaner het op onderwys in ‘n sodanige instelling en moet wyk wanneer daar ‘n duidelik bewese behoefte bestaan om onderwysfasiliteite met ander kultuurgemeenskappe te deel.”

[60] As we have already said, an alleged prejudice must not only be identified, but must also be substantiated to give the opposing party the opportunity to respond thereto.

This has not happened. A point of departure cannot be that there is any state school or public place which is a so-called ‘no go area’ for any of the official languages. That would make nonsense of section 6 of the Constitution of South Africa, which declares 11 languages to be official languages of the country. The section applies to every inch of the ground in this country. Sure, there will be deviations; but the point of departure is clear.

[61] There is, in any case, a need to balance conflicting interests. A language policy must be subservient to the imperatives of the Constitution. Section 29 of the Constitution of the Republic of South Africa, 1996, provides as follows:

“(1) Everyone has the right –

(a) to a basic education, including adult basic education; and

(b) to further education, which the state through reasonable measures must make progressively available and accessible.

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

3. the need to redress the results of past racially discriminatory laws and practice.”

[62] Counsel for the applicants submitted that the admission of English speaking learners would prejudice the rights of the Afrikaans speaking learners. Section 33 provides that the rights contained in the Bill of Rights may be limited to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. From the above provisions it is clear that, firstly, a learner has a right to basic education; secondly, that no right is unlimited. In case of competing rights, it becomes necessary to balance them. In the present case, the rights of the current learners of Ermelo High School to enjoy an extended curriculum which is offered at their school must be balanced against the right to basic education of the learners who would otherwise not gain admission to any school. Assuming for a moment that there is such an encroachment of the rights of the current students, that, in our view, would constitute a reasonable and justified limitation insofar as it limits the enjoyment of an extended curriculum which offers far more than the basic government curriculum. But, as already mentioned, the real difficulty for the applicants is that they have not placed before the courts the facts showing precisely in which way the current students would be prejudiced. They are also vague on the nature of the prejudice to be suffered.

That there is alternative accommodation available elsewhere

[63] The applicants argue that there is alternative accommodation elsewhere, or which can be arranged by the Department. It is common cause that some of the 2006 grade 8 learners wanting to be taught in English registered with Ligbron Academy of Technology, one of the schools in the area. The learners could not be registered with the first applicants as they were to be taught in English. But they were accommodated by the second applicant not in one of its classrooms but, notably, in premises described as a laundry. It is alleged that these learners were not allowed by the first applicant to use its facilities, such as the canteen and had to use separate entrances. The applicants deny these allegations. According to the report of the Human Rights Commission dated 5 September 2006 the facilities made available by the second applicant to the learners concerned were in an appalling condition. The report further noted that the treatment meted out to the said learners by Ermelo Hoërskool officials was unacceptable. The Department of Education approached other role players, namely principals in the area in order to resolve the difficulty of placing new Grade 8 learners who required tuition in English. Certain suggestions were made and the Department, after assessing alternative venues, came to the conclusion that such alternative venues were not suitable for conversion into school(s). Some of the reasons advanced were the high costs and lack of financial resources (we have already dealt with this). Yet, according to the first respondent, there are classrooms at the first applicant available to be used. Reports from other schools showed that there was no space at those schools. The same problem confronted the Department at the beginning of 2007: other schools were full. There is no evidence to contradict these reports. It is, in any event, questionable whether, given the limited resources a country has, costs should be incurred while there are classrooms available at a state school.

[64] In any event we agree with the construction put on sec 29(2) of the Constitution by OLIVIER J, in Hoërskool Victoria-Wes en Andere v Die Departementshoof, Departement van Onderwys, Noord-Kaapse Provinsiale Regering, Case No:- 357/2004 (NCD, unreported) at p.17 para 42:

“Optrede soos hierdie (introducing dual medium of instruction) van die respondent sou nie na my mening die integriteit van die applikante of van hulle samestellende komponente op enige wyse onregmatiglik aangetas het nie. Mnr Colditz voer in hierdie verband aan dat die respondent se besluit ten aansien van dubbelmedium-onderrig ‘n aantasting van die Afrikaans-sprekende leerders van die eerste applikant se regte ingevolge artikel 29(2) van die Grondwet van die Republiek van Suid-Afrika is. Hierdie argument is vir my onverstaanbaar. Artikel 29(2) waarborg die reg op onderwys ‘in die amptelike taal of tale van eie keuse …….’. Dit sluit hoegenaamd nie na my oordeel die situasie uit waar dubbelmediumonderrig toegepas word nie. Al wat in so ‘n geval sal gebeur, is dat die Afrikaans-sprekende leerders in ‘n bepaalde periode hulle lesse in Afrikaans sal ontvang, wat immers die amptelike taal van hulle keuse is, en dat hulle in dieselfde periode dieselfde les dan weer in Engels sal aanhoor. Ek kan glad nie sien hoe so ‘n sisteem die Afrikaanssprekende leerders sal ontsê van engie regte ingevolge artikel 29(2) van die Grondwet nie.” (Own underlining)

The sole purpose of underlining the above sentence is to convey that, unlike as it suggests, we are of the view that it would be preferable to hold separate classes. This is as the respondents in casu contemplate and as it is indeed now the case with the grade 8 nineteen learners currently taught in English at the school. We are of the view that parallel medium instruction is perfectly consistent with sec 29(2) of the Constitution; it is clearly accommodated therein.

[65] Counsel for the applicants sought to rely on the following extract from the Mikro case, supra (p 19 para 31 A–C):

“……. everyone has 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 it being reasonably practicable to do so. It follows that the 40 learners in question had a constitutional right to receive education in English in 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 education in English at the second respondent.”

What the learned judge says must be considered within the context of the facts of that particular case. Surely what he must have meant was that, in the absence of a validly determined language policy, the students could not make such a demand; but once the school concerned has been determined to be a dual medium instruction institution, and it is reasonably practicable to offer classes in the other language, the students would be so entitled.

[66] It is clear that the attitude of the applicants is to consign learners wanting to be taught in English to any conditions anywhere, as long as they do not set foot at their school. This is a callous attitude towards the educational interests of learners from other sections of the communities. It is reminiscent of the pre-democratic era, when the educational rights of white learners were better catered for than those of learners of a different colour. Under the present constitution, all learners have equal rights to state facilities irrespective of language or colour. Clever jurisprudential argument, even in the name of the Constitution, will not detract from this.

[67] The applicants have failed to make out a case; the onus was on them to do so. The application must therefore fail.

The following order is made

(a) The application is dismissed with costs, including costs consequent upon the employment of two counsel.

B M NGOEPE

JUDGE PRESIDENT OF THE

HIGH COURT

W L SERITI

JUDGE OF THE HIGH COURT

N RANCHOD

ACTING JUDGE OF THE

HIGH COURT

3062/2007

Heard on: 4 September 2007

For the Applicants: Adv C R van Onselen SC

Instructed by: Messrs Dyason Inc, Pretoria

For the Respondents: Adv Tokota SC and T Skosana

Instructed by: The State Attorneys, Pretoria

Date of Judgment: 17 October 2007

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