'Collateral irony' and 'insular construction'– justifying single-meduim schools, equal access and quality education

Abstract

In Ermelo the Constitutional Court determined that the HoD has the power to withdraw any function of a school governing body (SGB), including the function to determine the school’s language policy, subject to the requirements of reasonableness and legitimacy of purpose. The Court held that an ‘insular construction’ of the SGB’s obligation to determine an appropriate language policy for the school community would thwart the transformative design of the Constitution. The SGB must also consider the interests of the broader community and potential learners. This Court’s decision seems to have sounded the death knell for undersubscribed Afrikaans-only schools. However, the Court chose to address only the structural issues of equality and fairness in the South African education context, but failed dismally to adjudicate the substantive issues of reasonableness of state action and quality education in the language of one’s choice. As a result, the Court’s reasoning and decision provides insufficient guidance to assist schools or the state to determine appropriate language policies for schools within the constitutional and concrete contextual factors. Single-medium schools are entitled to contest the reasonableness of state action by virtue of factors such as the value of mother-tongue education, the negative impact of language policy change on the quality of education, the countrywide pattern of unfair discrimination against Afrikaans schools, and importantly, the clear international policy that liberal democracies provide public mother tongue education for minorities