The Ermelo High School judgement is certainly one the most important in the history of the Constitutional Court. This well-argued and pedagogically sound judgment investigated several critical questions about the roles and functions of the education department and governing bodies in terms of determining language policy and consequently sets new parameters in terms of access, redress and accountability.

In the case of Ermelo High School the governing body refused to adhere to an instruction by the Head of Department (HOD) of the Mpumalanga Education Department to alter its language policy to provide instruction in Afrikaans as well as English. The school was at the time of this intervention an Afrikaans-only medium school and learners regardless of their ethnic backgrounds were admitted provided that they accept tuition through the medium of Afrikaans only.

The school’s governing body was therefore stripped of its powers by the HOD and replaced by an interim governing body who then altered the school’s language policy to admit a few learners who wanted to be taught in English, but who could not find accommodation at any of the other schools in the area where English is supposed to be the medium of instruction.

The previous governing body declared a dispute and approached the courts for legal remedy, because according to them the right to formulate language policy is confirmed by the South African Schools Act. The Constitutional Court than had to interpret the juristic boundaries of this right and in addition had to decide whether the HOD could revoke this power if it is found that such a policy restricted access to education and whether it as a result of this, undermines the ethos of the Constitution.

With regard to the right of the HOD revoking the power of the governing body, the court ruling is clear that such drastic intervention is justifiable only if the governing body becomes totally dysfunctional and consequently fails in the execution of its powers or functions as described in the South African Schools Act.  The HOD may not revoke the powers of a functioning school governing body just because he or she does not agree with the language policy of the school.  In the case of Ermelo High, the governing body was functioning effectively.  This means that the HOD had exceeded its powers in revoking the powers of the governing body.

The court therefore found that his actions and also the decisions of the temporary governing body appointed by him were invalid. It does not have the right to force schools at short notice to accept learners if there is no sufficient accommodation available and it may not force schools to amend their admittance and language policy without following due process.

Furthermore, the order contained in the judgement makes it clear that it remains the education department’s responsibility to do a thorough accommodation needs assessment and continuously conduct in-depth studies regarding migration patterns, possible overcrowding, shift in language preference and the availability of resources and educators who are capable of teaching effectively in the preferred language.

This is vital to prevent chaos at the beginning of the school year and to ensure that learners and parents make informed choices about the language of instruction and not because it is the popular choice. The future of our learners is at stake here and issues relating to accommodation must be managed professionally.

The same applies to the determination of language policy and the choice of language of instruction as well. Schools cannot randomly decide what the language of instruction should be without duly considering how it would affect the interest of learners. Factors such as the language competency of the learners, the educators, the parents and the broader community, the availability of reading material and language support mechanisms, the availability of educators who are competent in the language of instruction, the effectiveness of literacy advancement strategies and the constitutional right to receive mother tongue education if practically possible, must be taken into account. And where this right exists, it must be endorsed and not be destroyed.

In view of the aforementioned the court re-affirmed the right of a school governing body to formulate its own language policy by stating the following: ‘Ordinarily, the representatives of parents of learners and of the local community are better qualified to determine the medium best suited to impart education and all the formative, utilitarian and cultural goodness that come from it”. This right cannot be tampered with and according to the judgement a lot more must be done by education departments to ensure that primary and high schools also make provision for education in especially the other official African languages.

The Court ruled, however, that this right must not serve the education interests of a specific school only, but rather that of the entire community and that factors promoting or hindering it must be taken into consideration when formulating a school’s language policy.  In the ruling this is described as follows: “The governing body…is entrusted with a public resource which must be managed not only in the interests of those who happen to be learners and parents at the time but also in the interests of the broader community in which the school is located and in the light of the values of our Constitution”. It therefore recommended that the Ermelo High School revises its language policy in light of the decrease in student numbers in the past years, the dire shortage of classrooms in the vicinity and the school’s lack of space to accommodate parallel medium education, i.e. education through the medium of Afrikaans and English.

This assumption that schools serve the broader school community has far reaching implications for education in South Africa, because every school has a particular constitutional duty and that is to uphold and promote the values embodied in the Constitution.

It also implies that schools need to consider the economic, social, cultural, political and spiritual wellbeing of the entire community in ensuring that all its strategic and operational plans are focused on unlocking the potential of all learners in the interest of the wellbeing of the entire community. Due consideration must be given to the role of mother tongue in this regard and the role of especially parents in determining language policy. According to the judgement they know what is best for their children.

However the education department must help them to make an informed choice and provide them with the necessary support to implement education and examinations in the mother tongue and in a language other than the mother tongue if there is a need for it and where it is practically possible.

This cannot be the responsibilities of former Model C schools alone, that is why the Ermelo judgement can be interpreted as a juristic affirmation that the responsibility to provide quality education and access in this regard is a shared responsibility and that of every other school in our country – also those which are dysfunctional!

Such schools, in the execution of their curricular and extra-curricular functions must remain conscious of their broader responsibility, because dysfunctional educational institutions impact negatively on the entire community. The rampant crime, waves of illiterate and unskilled workers, high levels of poverty and reliance on government grants are evident of an educational system which is failing us. In this respect the Ermelo judgement is indeed a victory for all parents, learners and interest groups who are fed up with the state of education in South Africa and certainly not a victory for the National Education Department as it claims on its website. And what a presumptous claim it is!

Because not only does the Ermelo ruling opens the door for civil society to take legal action against such schools who fail to adhere to time on task, teachers who are mostly absent, ineffective curriculum delivery and bad management, but class action can also be lodged by interest groups representing the educational interest of parents and learners who are affected by poor education, against the education department because it is not capable of calling such schools to order and even against teacher unions who through the actions of certain sections of their membership, undermine the provisioning of quality education.

Class action suits have led to social reform in various countries. It has helped to remedy inequities in education, health, and helped to ensure due process. Hence, such legal action is very real and to my mind the only way to prevent it, is for the education department and unions to agree to declare education an essential service. Because in searching for the right answers the Ermelo-judgement handed us a double-edged sword.

– Christo van der Rheede is the CEO: Stigting vir Bemagtiging deur Afrikaans