Constitutional Court decision concerning the State obligation to ensure access to education in the official language of one’s choice (section 29(2) of the Consitution); Remedial action against past discrimination; Affirmative State obligation; Negative State obligation; Statutory delegation of powers; Right to education in a language of one’s choice; Constitutional rights and remedies; Right to due process
This case concerns a 2009 appeal before the Constitutional Court of South Africa, brought by the Head of the Mpumalanga Department of Education (HoD). The (HoD) sought to overturn a lower court ruling that upheld the language instruction policy of the governing body of the public high school, Hoërskool Ermelo(HE), to establish Afrikaans as the only language of instruction. The restriction to Afrikaans instruction also effectively maintained a very low learners per class ratio relative to other high schools in the region, exacerbating inequalities dating to the Apartheid era. The HoD argued that the governing body’s policy violated English-speaking students’ right to an education in the official language of their choice and asked the Court to affirm its appointment of an interim committee that set a new policy requiring the HE High School to provide instruction in both Afrikaans and English.
Deciding for the governing body, the Court wrote that the establishment of an interim committee exceeded HoD’s authority under section 25 of the Schools Act. Nevertheless, the Court recognized students’ constitutional right to receive basic and further education and an education in an official language of their choice where reasonably practicable (section 29(2) of the Constitution). When ruling on such constitutional matters, the Court noted that it may make any orders that are just and equitable pursuant to section 172(1) of the Constitution. As such, the Court ordered the governing body to reconsider its language policy in light of constitutional mandates, as well as its obligation not only to its current pupils but also to the broader community. The Court also noted the Department of Education’s constitutional duty to provide access to education to all students in the language of their choice where reasonably practicable.
Both the Department of Education and the school were required to report back to the Court within a month after judgment was handed down on the steps that they had taken to give effect to the court order. The school reported back within the required time, indicating in essence that it had changed its language policy to make it possible for children preferring English to enroll and receive appropriate instruction. It also indicated that a number of such children had already enrolled.
This was the first Constitutional Court decision to provide structural relief for a violation of a socio-economic-cultural right, as well as the first to examine the intersection between the setting of language instruction policy and its impact on the right to access education. The case highlights the tensions implicated when democratic principles of local self-governance and cultural preservation are balanced against broader transformational goals regarding past injustices related to the Apartheid system and the right to education.
Updated on April 2013
