Schools: In any language, government was wrong

2015-05-31 15:00
Paul Coliditz

Paul Coliditz (Denzil Maregele )

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Really, what does one do when witnessing a clear contravention of the law that will certainly affect the future of thousands of children and parents?

Simply sit back and see how it unfolds? Take to the streets and make a lot of noise? Or does one take the civilised route of the rule of law and approach the courts to seek relief?

The Federation of Governing Bodies of SA Schools (Fedsas) opted for the latter.

The law prescribes that school governing bodies – and only school governing bodies – may determine the admission and language policies of public schools in South Africa.

And schools must admit pupils in accordance with those policies without unfairly discriminating against anyone.

The law does not confer upon officials, irrespective of their rank or status, the authority to ignore those policies, unilaterally override them or replace them with policies of their own.

Yet in Gauteng, school principals were recently instructed to admit pupils without reference to binding policies determined by their school governing bodies – and, by implication, if they refused to do so officials would usurp that function.

Again, if those policies were not to the liking of politicians or officials in a constitutional dispensation under the rule of law, the civilised route was to approach the courts to have them set aside. 

The authorities are, after all, in the privileged position that they do not have to do it at their own expense.

They simply use taxpayers’ money to do it.

Contrary to the many media reports and views of commentators, the recent legal battle between Fedsas and the Gauteng education department, which was partly resolved by the South Gauteng High Court on Tuesday, did not concern language at all.

It was not even the issue of the advantages of mother tongue education, an issue that has long been settled internationally – except in formerly colonised countries where the previously colonised appear to have happily accepted that their fate lies in adopting the colonisers’ languages if they want to make any progress in life.

Very ironic indeed.

Instead, it was explicitly stated and argued in the courtroom and through papers submitted by Fedsas that this legal battle did not concern the pros and cons of educating or being educated in one’s mother tongue or any other language.

It concerned the legality and lawfulness of administrative decisions and actions by officials operating on behalf of education authorities.

If the federation had failed to act as it did it would have meant that we condoned government taking the law into its own hands. That is not the South Africa we want to live in.

The principle of legality is a fundamental principle of our constitutional order and the rule of law. What the principle of legality boils down to is that those in authority may not exercise any power or perform any function not conferred upon them by law. This obviously applies equally to school governing bodies at public schools.

The very simple and crisp issue that had to be decided by the court was whether there was any administrative action or decision on the part of the Gauteng authorities that amounted to ignoring admission or language policies of schools or any decision by those functionaries that would result in replacing the schools’ policies for their own.

Clearly there were, and are.

As South Africans we would – and should – much rather debate the future of all our children, their best interests and their right to quality education in whatever language, than the state and its functionaries’ abuse of power.

Education must take place in classrooms, not courtrooms.

Colditz is the CEO of the Federation of School Governing Bodies of SA Schools
Read more on:    gauteng  |  fedsas  |  school

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