The Centre’s concerns are threefold. Firstly, the school system’s partnership model is threatened in that the SGB’s power to determine a language policy is indeterminately given to the HoD by proposing the HoD may also “direct” the adoption of an additional language of instruction. Secondly, the factors on which the HoD must approve these two policies are not defined and no guidance is provided in the Bill on how it will be interpreted and applied by the HoD. Lastly, the HoD’s power to “direct” a public school to adopt an additional instruction language ignores the provisions of section 29(2) of the Constitution, which guarantees the right to receive education in the language of one’s choice at a public educational institution provided it is “reasonably practicable”. To ensure access to this right, the State is obliged to consider all “reasonable educational alternatives” with reference to equality, practicability and historical redress.

The partnership model in the Schools Act provides for three tiers. The Minister of Basic Education must determine uniform norms and standards for all public schools. The MEC for Education in the province must establish public schools together with the HoD, and lastly the SGB is responsible for a public school’s governance. The governance role of SGBs to run schools has been described as a “fiduciary obligation”. Furthermore, the Constitution’s co-operative governance scheme and the Schools Act oblige all three branches to engage in good faith.

The amendments undermine the partnership model in that there is no required prior consultation between the HoD and SGBs before reviewing these two policies. This despite the reality that SGBs have detailed knowledge of resource and capacity constraints and the impact thereof on a school’s education outcomes. The proposal that the HoD may also “direct” a public school to adopt an additional language of instruction if “practicable” fails to indicate whether the specific SGB is stripped from this function indeterminately. The Constitutional Court judgment of Head of Department: Mpumalanga Department of Education and Another v Hoërskool Ermelo and Another (Ermelo) specifically stated that the SGB’s function may only be transferred to the HoD in this instance if the SGB is exercising its power at odds with the Constitution, and only as long as it is necessary to ensure compliance with the Constitution.  The Bill is also silent on the slow rate of compliance by the MEC and HoD with the Minimum Norms and Standards for basic school infrastructure. This omission is incomprehensible if one considers that only 16 of the 59 targeted new schools were built this year.

Secondly, on the undefined factors the HoD must consider when reviewing these two policies, two interrelated concerns arise. Firstly, these undefined factors, which include reference to the “the best interest of the child” and “broad interest of the community” directly derive from jurisprudence without any guidance on its interpretation. The appropriateness of the “best interest of the child” principle to these two policies is also problematic. The “best interest of the child” requires that an adjudicator who reviews the impact of a decision on a child must examine the individual real-life circumstances of that child. In the Bill, the principle is not applied to an admission dispute regarding a learner or group of learners. Instead it is applied in a collective-hypothetical sense by the HoD on review of these two policies.

Furthermore, very little legislative guidance is currently provided to SGBs on the determination of these two policies. These undefined factors, which only the HoD must consider on review, are neither referred to the Minister’s National Admission Policy for Ordinary Public Schools nor the Norms and Standards for Language Policy in public schools adopted in terms of the National Education Policy Act of 1996 and the Schools Act. No proposal is made to amend these accordingly to provide guidance to SGBs. This point is even further aggravated in that the Minister is yet to publish the Minimum Norms and Standards regarding capacity determination.

Lastly, the amendment pertaining to language policy determination makes no reference to section 29(2) of the Constitution. It is the State’s constitutional obligation to give effect to this right and not an individual school. The proposal that the HoD may “direct” an additional language of instruction when “practicable” and listing undefined factors such as “best interest of the child” and “language needs of the broader community” to determine if it is “practicable” does not equate to the HoD considering “all reasonable educational alternatives”, including a single-medium option with reference to equity, practicability and historical redress.

As it stands, the Bill will not pass constitutional muster and it undermines the roles of SGBs in the three-tier partnership. Alignment of the Schools Act with recent Constitutional Court findings can be done without the HoD overriding these functions. Legislative measures regarding these two policies should be amended to provide clear guidance to SGBs on factors to consider and the Norms and Standards for capacity determination should urgently be drafted. Furthermore, the “best interest of the child” should rather be applied by the HoD when dealing with an admission dispute. Temporary intervention by the HoD when admission is denied due to a school’s language policy could be fleshed out but the HoD must give effect to section 29(2) of the Constitution.

By Ms Christine Botha: Legal Officer, Centre for Constitutional Rights