Tydskrif vir Geesteswetenskappe
Print version ISSN 0041-4751
MALAN, Koos. The constitution, education authorities and the road ahead for single medium Afrikaans schools. Tydskr. geesteswet. [online]. 2010, vol.50, n.2, pp. 261-284. ISSN 0041-4751.
In this article the legal-political position of single medium public schools, more particularly Afrikaans schools in the Republic of South Africa, is discussed. The discussion is conducted with reference to applicable provisions of the Constitution of the Republic of South Africa, 1996, statutory provisions that regulate the governance of public schools and relevant judgments of the High Court, Supreme Court of Appeal (SCA) and the Constitutional Court. Section 29(2) of the Constitution states that: 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 (c) the need to redress the results of past racially discriminatory laws and practices On its part section 6(2) of the South African Schools Act, 84 of 1996 assigns the power to determine the policy regarding the language/s of instruction in public schools to the governing body of each school. It makes provision for the governing body of a public school to determine the language policy of the school subject to the Constitution, applicable provision of the Schools Act itself and any applicable provincial law. English is the dominant language of instruction in South Africa's public schools, including schools attended by black learners whose mother tongue is not English but one of the African languages. A handful of schools are Afrikaans single medium, whilst a number of schools also provide tuition in English as well as Afrikaans on a dual or (mostly) parallel medium basis. On several occasions provincial education authorities and individual governing bodies of Afrikaans schools have clashed about the decisions of the governing bodies to pursue a single medium Afrikaans policy as opposed to the insistence of the provincial authorities on parallel or dual medium instruction in Afrikaans and English. This gave rise to repeated litigation between governing bodies of Afrikaans schools and provincial education authorities. Most important in the present context are the judgments of the High Court in Laerskool Middelburg v Departementshoof Mpumalanga Departement van Onderwys (Middelburg Primary School v Head of the Department, Mpumalanga Department), of the SCA in Minister of Education, Western Cape v Governing Body, Mikro Primary School and of both the SCA and the Constitutional Court in the case involving Ermelo Hoërskool. (Ermelo High School). The article begins by describing the constitutional and statutory framework for determining the language policy of public schools. Thereafter follows a discussion of the afore-mentioned judgments involving disputes between provincial education authorities and governing bodies. The article does not involve a detailed legal critique of each judgment. Rather, the focus is on three other dimensions emanating from the judgments: Firstly, the judgments reveal an appalling animosity on the part of some provincial authorities towards Afrikaans single medium schools. These schools have on various occasions been compelled by provincial authorities to enrol non-Afrikaans speaking learners and to provide tuition to them in English. This was occasionally in clear defiance of the law applicable to the question and with blatant disrespect for the governing bodies of these schools as well as for the learners involved. The root cause of the animosity appears to be the fact that the learners of single medium Afrikaans schools are often mostly white, which seem to be experienced as offending the political agenda of transformation driven by some of the provincial education authorities. However, these authorities do not show the same animosity towards the very large number of schools with an exclusive black enrolment. Secondly, in some occasions governing bodies that resisted unlawful conduct of provincial education authorities were successful in their litigation. The remedies granted in their favour nevertheless proved inadequate. At the time of the judgments (in favour of the governing bodies) the learners that provincial authorities had imposed upon the Afrikaans schools had already established themselves in these schools. Consequently, it would be inappropriate to disrupt the education of these learners by ordering them to be enrolled elsewhere. The unlawful imposition of the learners on the Afrikaans schools therefore created a fait accompli that could not be turned around by an appropriate court order. The remedies granted in favour of the single medium schools therefore proved to be inadequate in spite of the (theoretical) victories of the favourable judgments. Thirdly, the judgments show that the trust that has been invested in the ability of the law and the courts to protect the position of single medium schools have been proven to be over-excessive. Of particular importance is the fact that it is very difficult for these schools to remain single medium in the face of a diminished demand for Afrikaans education in the feeding area of such schools. All three dimensions emanating from these judgments underline the fact that litigation is often not the appropriate course to pursue and that single medium schools should be pursuing alternative strategies to protect their interests and the interests of the cultural and linguistic communities they serve. Two alternatives should be considered. Firstly, single medium schools should preferably reach a political settlement with the relevant provincial and national education authorities. Secondly, single medium schools should co-operate in order to stabilise their own position even though this might lead to some of these schools forfeiting their single medium status in order for others to safeguard their position. Both these alternatives require schools to co-operate amongst themselves instead of each one individually - and often unsuccessfully - trying to defend their single medium position. The article concludes with a succinct exposition of three theories of the state - Jacobinian, Classical-liberal and pluralist - that could form the theoretical background for dealing with language policy in educational institutions.
Keywords : education; governing bodies; Constitution; single medium schools; Possession is 90% of the law; inadequate legal remedies; excessive trust in the law and the courts; transformation; language rights.