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The Constitution on trial: Hoërskool Overvaal

2018-01-19 14:34

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Phephelaphi Dube

Beyond being the blueprint for South Africa’s collective hopes for an improved society, marking a decisive break from the past, the Constitution is also a peace treaty. 

It is a peace treaty between what Lollini, writing in Constitutionalism and Transitional Justice in South Africa describes as "long standing adversaries that set down rules for living together in the same territory" . 

The Constitution is therefore a feature of compromise and ultimately reflects the hopes, dreams and aspirations of the different parties that negotiated the CODESA settlement. 

Compromise is thus a recurring theme in the Constitution. For example, the property clause – section 25 – protects existing property rights while seeking to ensure that all South Africans have access to natural resources, including land, on an equitable basis. Another example of this compromise feature is the Preamble’s enjoinder to “recognise injustices of the past… and believe that South Africa belongs to all who live in it”.

It is also true that the question of how best to include and protect ethnic, religious and linguistic minorities in a constitutional democracy, much like the property clause, was the subject of intense and protracted negotiation in the talks before the enactment of the interim Constitution.

The same intensity of debate continued with the Constitutional Assembly drafting process, where consensus on official languages as well as state-funded education in minority languages was only achieved at the last minute.

Given South Africa’s particularly long history of ethnic and linguistic division, this week’s events in Vereeniging, at Hoërskool Overvaal are perhaps unsurprising. Perhaps the violence which erupted outside the school was a long time coming. 

The Gauteng provincial department of education attempted to have 55 pupils, to be taught in English, placed in an Afrikaans medium of instruction high school. The high school resisted, and approached the Pretoria High Court to challenge the department’s conduct. 

The court, in a judgment focused on technicalities, as opposed to merit, set aside the department’s decision to admit 55 learners to the school, saying that the school has no capacity to receive the pupils, let alone to do so on such short notice and to effectively convert to a dual medium school. 

The judge further added that on the balance of the evidence, neighbouring English high schools had the capacity to take the pupils. In addition, the decision was unlawful and the District Director and “quite possibly” Gauteng Education MEC had acted in conflict with the constitutional principal of legality in placing the additional students in the high school. 

In addition, the judge singled out the intimidating behaviour of a senior official of the Gauteng education department, causing the principals of the two neighbouring schools to withdraw their original affidavits that they had ample space for the 55 learners. 

The decision was met with violent protests by both parents of the learners, as well as certain political parties, whose members turned up at the school gates in large numbers to protest the school as well as the decision of the Pretoria High Court. Interest groups also gathered at the school’s gates, ostensibly to show support for its decision as confirmed by the court.

What happens therefore, when language and cultural rights collide with the right to education? The Constitution pre-empts this question, with the right to education clause providing for the right to state-sponsored education in an official language of choice where reasonably practicable. 

The qualifier is that the state should consider ‘all reasonable educational alternatives’ in seeking to implement the right. These include ‘single-medium’ institutions, where equitable, practicable and in accordance with the need to redress past discrimination. But does this provision empower Hoërskool Overvaal to turn away English learners on the basis that the school does not have the facilities for English language instruction? 

Hoërskool Overvaal is not the first public school to be faced with this question. What is apparent however, is that Afrikaans public schools are the subjects of great scrutiny largely due to the perceived proximity of the language to apartheid policies, in so far as Afrikaans was used to exclude others. 

The Constitution, in recognising mother tongue education means that learners and their parents select their preferred medium of instruction. It also means that this choice must be practical and capable of being implemented without difficulty. The department of basic education’s (DBE) policy on Norms and Standards regarding Language Policy in Public Schools defines "reasonably practicable" as the allowance for learners’ chosen language (mother tongue education) if no fewer than 40 learners in grades 1 to 6 or 35 learners in grades 7 to 12 request a preferred language at a particular school. 

Where the number of learners is less than this, it is incumbent upon the DBE to present alternatives, guided by considerations such as the impetus to achieve fairness and to resolve racially discriminatory practices. 

This was the background informing Hoërskool Overvaal’s decision. It is also exacerbated by the fact that the Gauteng education department has not kept up with building schools for the fast growing population of learners in Gauteng. Thirty thousand learners were not placed at the beginning of the school year.

The department’s offer to give the school two extra educators for 55 learners was also impractical. Two educators cannot teach 55 learners across all subjects. 

The interpretation of section 29(2) is by no means a settled affair. For example, Malherbe writing in the European Journal for Education Law and Policy, argues that section 29(2) indeed provides for single medium institutions and maintains that any views and opinions which claim that single medium institutions impede and hinder the redress of past discrimination are unproven and unfounded, since the highest standard of education can be made available to all South Africans through the use of the mother tongue. 

Woolman and Fleisch in The Constitution in the Classroom: Law and Education in South Africa 1994 - 2008 however contend that at best, section 29(2) places an obligation on the state to justify any refusal to recognise and support single medium public schools.

The Constitution provides remedies through which rights can be both vindicated and protected in spite of the apparent tension arising in the enforcement of certain rights. However, it is also important to have a leadership, whether in political, or in civic society spaces to constantly make the choice to promote constitutional values over ideology on any given issue. 

It is vital that constitutional values of reasonable accommodation and dignity underpin the resolution of any dispute, regardless of the source of the conflict. More than that, the State should play a greater role in promoting a culture of tolerance for difference and diversity. Failing this – a sure unravelling of the constitutional order.

- Phephelaphi Dube is director of the Centre for Constitutional Rights.

Disclaimer: News24 encourages freedom of speech and the expression of diverse views. The views of columnists published on News24 are therefore their own and do not necessarily represent the views of News24.

Read more on:    overvaal high school  |  afrikaans  |  overvaal  |  education
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