Afrikaans policy: Judgment held

2009-08-20 22:19

Johannesburg - Judgment in the Ermelo Hoërskool language policy case was reserved in the Constitutional Court on Thursday.

The adjournment brought an end to a seven-hour contention between lawyers representing the Mpumalanga department of education and Hoërskool Ermelo lawyers over the language policy at the school.

The department of education was applying for leave to appeal against a ruling by the Supreme Court of Appeal that Hoërskool Ermelo could return to its single-medium Afrikaans status.

During its sitting in Bloemfontein in March, the SCA had also ruled that the school governing body - not the department of education - had power to determine the language policy of the school.

'Acted unconstitutionally'

Arguing on behalf of the department on Thursday morning, Senior Counsel Bantubonke Tokota said Hoërskool Ermelo had acted unconstitutionally by excluding non-Afrikaans speakers at the school in 2007.

"We submit that the refusal by the governing body of the school to change the language policy... and the persistence to retain Afrikaans medium of instruction as an exclusive language policy at the school, has a direct impact on the grounds of section 9 of the Constitution which prohibits discrimination on the grounds of language," said Tokota.

He argued that the school's language policy, which spans 93 years, had to be revisited as it had failed to be inclusive nor "put the rights of children" first.

"Afrikaans language policy at the school at all costs by the governing body demonstrates that the governing body intends to preserve the school exclusively for Afrikaners.

"This effectively amounts to discrimination directly or indirectly on the grounds of language and accordingly this raises a Constitutional issue," he said.

'No right to disregard'

He also argued that the Mpumalanga department of education had the authority to withdraw the function of the governing body in deciding on the language policy at the school, an issue that the SCA set aside in its March ruling.

In counter argument, Senior Counsel Wim Trengove said the Mpumalanga department of education had no right to disregard the school's language policy by introducing a dual medium at the school.

He was arguing on behalf of the school and its governing body.

"The power to determine a school's language policy rests exclusively in the governing body... The governing body was otherwise obliged to determine the school's language policy in the best interests of the school and the education of its pupils. That was what it did," he said.

Trengove said the language policy was not used to discriminate against non-Afrikaans speakers, as Tokota had said earlier.

"The language policy served the best interest of the school and its pupils... (It)was accordingly not a manifestation of racism but the prescribed outcome of the rules of SASA (SA School's Act) itself imposed on the governing body," Trengove said.

Overcrowding

He said all pupils who had gone to the school at the time were accepted, provided they were prepared to be taught in Afrikaans.

Trengove also argued that the dispute over the admission of non-Afrikaans speaking pupils at the school could have been averted had the department addressed the issue of overcrowding in the English medium schools, which led to those learners approaching Hoërskool Ermelo for admission.

But Justice Kate O'Regan told him that such an argument was unconstitutional.

"What bothers me here is your client's attitude... 'it's not our problem, we have a 100% pass rate and we are doing very well'... such an attitude is not what our Constitution contemplates," O'Regan said.

Arguing in support of Trengove was Senior Counsel Johan du Toit on behalf of the Federation of Governing Bodies for SA Schools (FEDSAS).

Legislature

Du Toit said governing bodies were constitutionally mandated to formulate language policies for schools they serve.

"Section 6(2) of the SA School's Act empowers school governing bodies of a public school to determine a school's language policy. It should be allowed to do so without unlawful hindrance or obstruction.

"Having been specifically mandated by legislature for that purpose, no other body should be permitted to fulfil that function, least of all a body of unelected outsiders as the interim committee (at Ermelo Hoërskool) was," Du Toit said.

But Deputy Chief Justice Dikgang Moseneke questioned the admissibility of a right if it undermined other's rights to be accommodated in a particular school.

"When you have a right that overrides another... it usually is a red robot. Being entitled to establish a single medium... such is a right but it overrides another right to accommodate and recognise other languages," said Moseneke.

Chief Justice Pius Langa reserved judgment for a later date.

- SAPA