The Head of Department: Mpumalanga Department of Education and others v Hoërskool Ermelo

The Department of Education has scored two very important victories in this matter, although the judgment has gone against it. The first is that there is now certainty with regard to the Head of Education's power to withdraw the language policy of a school in terms of section 22 of the South African Schools Act. The Supreme Court of Appeal had made a ruling where it was held that the Head of Education does not have such power in terms of section 22, and that only a court of law can review a School Governing Body function to determine the language policy of a school. Subsequently, the Constitutional Court has overturned the Supreme Court of Appeal's judgment in this regard, by ruling that the HOD does indeed have the power in terms of section 22 to withdraw the School Governing Body's power to determine a school's language policy.

Secondly, the Constitutional Court significantly has recognised that the power of a school governing body to determine the language policy of a public school cannot be done in isolation of the community in which that school is located. In this regard, the Court observed that the governing body of a public school is entrusted with a public resource which must be managed not only in the interest of those who happen to be learners and parents at the time, but also in the interest of the broader community in which the school is located and informed by the principles and values of our Constitution.

The Department accepts the Constitutional Court 's ruling that the HoD's powers in terms of section 22 and 25 cannot be conflated, which it has judged to be what happened in this instance with the appointment of an interim committee to determine the school's language policy.

The Department supports the orders made by the Court in respect of the reports that need to be filed by 16 November 2009 by the school governing body and the school on the steps they have taken in reviewing the school's language policy and the outcome of the review process, well as the HOD on the steps that are being taken to ensure that there are enough places for Grade 8 English learners at the start of 2010. The Department will play a facilitative role in ensuring that the required reports are presented to the Court by such date.

Statement issued by the Department of Basic Education, October 15 2009

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