In re: Dispute Concerning the Constitutionality of Certain Provisions of the School Education Bill of 1995 (Gauteng Provincial Legislature)

At least one third of the members of the Gauteng Provincial Legislature petitioned the Speaker, under section 98(9) of the interim Constitution, to refer a constitutional dispute to the Constitutional Court. The dispute concerned the constitutionality of sections 19(1), 21(2), 21(3) and 22(3) of the Gauteng School Education Bill of 1995, later enacted as the School Education Act of 1995 (with the impugned provisions not yet brought into operation). Section 19(1) prohibited language competence testing as an admission requirement to public schools. Sections 21 and 22 regulated religious policy and freedom of conscience in public schools and certain subsidised private schools. The petitioners, supported by the South African Foundation for Education and Training as amicus curiae, argued that these provisions infringed constitutional rights relating to language, culture and religion, relying centrally on section 32(c) of the interim Constitution.

The Constitutional Court held that sections 19(1), 21(2), 21(3) and 22(3) of the Gauteng School Education Bill of 1995 were constitutional. The constitutional challenge was dismissed.

This was one of the earliest Constitutional Court judgments interpreting the right to education under the interim Constitution. It clarified the distinction between positive socio-economic rights and negative or defensive freedoms, particularly in relation to education based on language, culture or religion. The case confirmed that section 32(c) protects private initiative in education rather than obliging the state to create separate public institutions for cultural, linguistic or religious groups.