Legitimacy of language policies in South African public schools : a case law perspective

Abstract

On 15 February 2007, the previous Minister of Education, Mrs Naledi Pandor reacted to a Democratic Alliance press release by stating that she strongly supported the use of Afrikaans and other native languages as media of instruction in schools. In the same speech she said that Section 29(2) of the Constitution does not see single-medium schools as a right, but as an educational alternative that, together with other alternatives, including double and parallel medium, should be explored in giving effect to the right to education in a language of choice, taking into account fairness, feasibility and the need to restore the injustices of the past (Pandor, 2007). If we look at four recent court cases, we are getting a totally different picture. In all four cases, the Department of Education tried to change single medium schools to double or parallel medium schools. These cases are: <ul> <li> Hoërskool Ermelo v Department van Onderwys;</li> <li> Seodin Primary School and Others v MEC of Education;</li> <li> Western Cape Minister of Education v Governing Body of Mikro Primary School;</li> <li> Laerskool Middelburg en 'n Ander v Departementshoof;</li> </ul> What happened to getting educated in a language of choice, and what about the right of the direct community, through the Governing Body’s decision on that language? Does a school policy, adopted by a School Governing Body, have legality? In line with these questions we may ask; do judges properly decide on rulings in these matters? The purpose of my study is to investigate how schools may establish a well written language policy that will be in line with legal requirements, ensuring that a school can exercise its language policy and medium of teaching in the school. With the ministry propagating one thing, but doing something else, certain duties, delegated to the Governing Body, but very easily taken away, and judges not always being consistent, feeling is that matters should be investigated. The Education Management, Law and Policy Studies provides us with a framework, in order to investigate the legitimacy of language policies in South Africa. This framework articulates that law forms the building blocks for educational management. This research takes its departing point in legal positivism, which holds that everything should be done as closely as prescribed by the law. Section 29(2) of the Constitution reads: “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: <ul> <li> equity;</li> <li> practicability; and</li> <li> the need to redress the results of past racially discriminatory laws and practices.”</li> </ul> In this study an in depth investigation is conducted into the four recent court cases, where the situations of those schools were more or less similar. Two of the schools were allowed to continue as single medium Afrikaans schools, but the others were forced to change their language policy to either dual or parallel medium Afrikaans-English schools. The main aim of this study is to provide a better understanding as to why the judgements in the above mentioned court cases differ and to investigate the measures schools can take to prevent confrontation with similar situations. Copyright