Head of Department: Mpumalanga Department of Education and Another v Hoërskool Ermelo and Another

Hoërskool Ermelo is a 93-year-old public high school in Mpumalanga with an exclusively Afrikaans medium of instruction, historically maintained through its admission policy. In 2007, the school had 685 learners in 32 classrooms (average 21 learners per class) while other schools in Ermelo were severely overcrowded (some averaging 62 learners per class). The school's enrollment had been declining from 990 in 2000 to 685 in 2007, while Ermelo's population was growing. In early 2007, 113 grade 8 learners who preferred English medium instruction could not be accommodated in other English medium schools which were full to capacity. The Department repeatedly requested the school to admit these learners, but the school governing body refused, maintaining its Afrikaans-only policy. On 25 January 2007, the Head of Department (HoD) withdrew the governing body's function to determine language policy under section 22 of the Schools Act, citing urgency, and appointed an interim committee under section 25 to determine a new language policy. The interim committee changed the policy to parallel medium (Afrikaans and English) on 29 January 2007. The school governing body challenged this action in court.

• Whether the HoD had power under section 22 of the Schools Act to withdraw the governing body's function to determine language policy granted under section 6(2)
• Whether the HoD exercised the withdrawal power on reasonable grounds and in a procedurally fair manner
• Whether the HoD had power under section 25 to appoint an interim committee to determine language policy
• Whether the interim committee was lawfully constituted and acted in a procedurally fair manner
• The proper interpretation of sections 6(2), 22, and 25 of the Schools Act in light of section 29(2) of the Constitution
• The scope and limitations of school governing bodies' powers to determine language policy in public schools
• The relationship between language rights, the right to basic education, equity, and redress of past discrimination

Leave to appeal granted. Appeal dismissed. The Supreme Court of Appeal's order setting aside the HoD's withdrawal of the language policy function and the interim committee's parallel medium policy was confirmed. Learners enrolled since 25 January 2007 under the parallel medium policy entitled to continue being taught in English until completion of school careers. School governing body ordered to review and determine language policy in terms of section 6(2) and the Constitution and file an affidavit by 16 November 2009 setting out the review process and new policy. HoD ordered to file a report by 16 November 2009 on likely demand for grade 8 English places in 2010 and steps taken to satisfy demand. First and second applicants (HoD and Minister) ordered to pay costs of the application including costs of two counsel.

The power of a school governing body to determine language policy under section 6(2) of the Schools Act, while vesting primarily in the governing body, is subject to the Constitution and the Schools Act and is not absolute or exclusive. The Head of Department has power under section 22(1) to withdraw a governing body's function to determine language policy on reasonable grounds, including where the language policy is exercised unreasonably or inconsistently with constitutional requirements. The word "function" in section 22 bears the same meaning as elsewhere in the Act and encompasses all functions conferred on governing bodies, not merely those allocated under section 21. However, section 22 (withdrawal of functions) and section 25 (appointment of persons when governing body ceases to function) serve distinct purposes and cannot be conflated. Section 25 applies only when a governing body has ceased or failed to perform functions and requires temporary replacement; it does not apply when a function is withdrawn under section 22. When a function is properly withdrawn under section 22, it vests in the HoD to exercise personally for remedial purposes consistent with the Act, not to delegate to an interim committee under section 25. The power to determine language policy must be exercised subject to section 29(2) of the Constitution, which requires consideration of equity, practicability, and redress of past discrimination in ensuring effective access to education in the language of choice. School governing bodies must manage public schools as public resources in the interests not only of current learners but also the broader community, consistent with constitutional values including transformation and equality.

The Court made several non-binding observations: (1) Afrikaans is "one of the cultural treasures of South African national life" and its protection is a concern of the whole nation, not just its speakers, echoing Ex Parte Gauteng Provincial Legislature. (2) There is an irony that learners whose mother tongue is an indigenous language choose English medium instruction, when mother tongue instruction is most effective, particularly in early years - reflecting the "language of instruction conundrum in Africa" where colonial languages dominate despite indigenous languages' educational benefits. However, this issue did not require adjudication. (3) The Court expressed dismay at education disparities in Ermelo, noting unequal access to education perpetuates socio-economic disadvantage as a legacy of apartheid, with formerly white schools lavishly resourced while black schools remain scanty. (4) Whether the HoD acted on reasonable grounds in withdrawing the function need not be firmly determined, since the primary defect was the unlawful conflation of sections 22 and 25. (5) The possibility that statutory powers may be abused cannot determine the construction of the ambit of powers, since law affords adequate remedies for abuse. (6) What constitutes "reasonable grounds" for withdrawal under section 22 must be determined case-by-case with full regard to all circumstances, nature of the function, purpose of withdrawal, best interests of actual and potential learners, views of governing body, and likely impact on school wellbeing, all weighed within the constitutional framework. (7) In withdrawing language policy functions specifically, procedural safeguards and adequate time for implementation are essential given language policy affects all aspects of school functioning.

This landmark judgment clarifies the balance of power between school governing bodies and provincial education departments regarding language policy in public schools. It establishes important principles: (1) Language policy determination by governing bodies under section 6(2) is not absolute or exclusive - it must be exercised within constitutional bounds, particularly section 29(2)'s guarantee of education in language of choice where reasonably practicable. (2) The HoD has supervisory power under section 22 to withdraw language policy functions on reasonable grounds, rejecting the notion that only judicial review can check governing bodies' language policies. (3) However, sections 22 and 25 serve distinct purposes and cannot be conflated - section 22 allows withdrawal of specific functions which then vest in the HoD, while section 25 addresses dysfunctional governing bodies requiring temporary replacement. (4) School governing bodies have fiduciary duties not only to current learners but to the broader community and must manage public schools as public resources consistent with constitutional values. (5) Language policies must be determined considering constitutional imperatives of equity, practicability, and redress of past racial discrimination, not solely the preferences of current school communities. (6) The judgment demonstrates the Court's willingness to use structural remedies and supervisory orders under section 172(1)(b) to address underlying substantive disputes rather than merely formal legal issues. The case addresses the intersection of language rights, education rights, transformation imperatives, and administrative law in post-apartheid South Africa, balancing minority language protection with equitable access to quality education.