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

Hoërskool Ermelo, a public Afrikaans-medium high school, and its school governing body had an established language policy determined under the South African Schools Act 84 of 1996. Due to a shortage of capacity for English-medium learners in the Ermelo circuit, the Mpumalanga Department of Education sought to have the school admit English-medium learners. In January 2007, shortly before the school year commenced, the Head of Department instructed the principal to admit English learners contrary to the school’s language policy. When the governing body refused, the Head of Department purported to withdraw the governing body’s function to determine the language policy under s 22 of the Schools Act, appointed an interim committee under s 25, and the committee amended the language policy from Afrikaans-medium to parallel-medium (Afrikaans and English), without consultation. The school and governing body applied to review and set aside these decisions. The High Court dismissed their application, and they appealed to the Supreme Court of Appeal.

The appeal was upheld. The decisions of the Head of Department to withdraw the governing body’s function to determine language policy, to appoint an interim committee, and the interim committee’s decision to change the language policy to parallel medium were all set aside. Learners already admitted under the parallel-medium policy were allowed to continue receiving English tuition until completion of their school careers. The first and eighth respondents were ordered to pay the costs in both the High Court and the appeal.

This case is a leading authority on the autonomy of school governing bodies and the limits of provincial education authorities’ powers under the South African Schools Act. It clarified that language policy at an existing public school is an exclusive statutory function of the governing body and reinforced the principle of legality in administrative action. The judgment also critically reconsidered and limited earlier obiter remarks in Mikro Primary School regarding ss 22 and 25.