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

Members of the Gauteng provincial legislature (at least one-third of the membership) petitioned the Speaker under section 98(9) of the Constitution of the Republic of South Africa Act 200 of 1993 to request the Constitutional Court to resolve a dispute concerning the constitutionality of certain provisions of the School Education Bill of 1995 (later enacted as the School Education Act 1995, but not yet operational). The South African Foundation for Education and Training (the Foundation) was admitted as amicus curiae. The challenged provisions included: section 19(1), which prohibited language competence testing as an admission requirement to public schools; section 21(2), which set out principles for developing religious policy at public schools; section 21(3), which empowered the Member of the Executive Council to direct reformulation of school religious policy; and section 22(3), which gave learners the right not to attend religious education classes and religious practices. The petitioners and amicus argued that these provisions violated section 32(c) of the Constitution by denying the right to have schools established based on common culture, language, or religion. The petitioners also invoked section 247, arguing that the Bill altered rights of governing bodies (particularly Model C schools) without bona fide negotiations.

• Whether section 32(c) of the Constitution imposes a positive obligation on the state to establish educational institutions based on common culture, language, or religion
• Whether section 19(1) of the Bill (prohibiting language competence testing) is unconstitutional
• Whether sections 21(2), 21(3), and 22(3) of the Bill relating to religious policy and practices are unconstitutional
• The proper interpretation of section 32(c) of the Constitution – does it create a defensive right or a positive entitlement?
• Whether section 247 of the Constitution required bona fide negotiations before altering the rights, powers, and functions of school governing bodies
• Whether governing bodies of Model C schools had pre-constitutional rights to determine language admission criteria that were being unconstitutionally altered

It is declared that sections 19(1), 21(2), 21(3), and 22(3) of the School Education Bill of 1995 are not inconsistent with the Constitution on any of the grounds advanced by the petitioners and the South African Foundation for Education and Training. No order as to costs.

Section 32(c) of the Constitution creates a defensive right to establish educational institutions based on common culture, language, or religion; it does not impose a positive obligation on the state to establish such institutions. The linguistic structure ('to establish' not 'to have established'), context within section 32 (which already guarantees basic education and language instruction), and historical background (protection against state prohibition of private schools) support this interpretation. Section 32(a) and (b) provide positive rights to education; section 32(c) provides a freedom. School governing bodies of Model C schools had no statutory power under pre-constitutional law to determine language admission criteria; such powers were vested in state authorities. Therefore, section 19(1) of the Bill does not alter any constitutionally protected rights under section 247. The Bill's provisions (sections 97 and 102) preserve section 247 protections by requiring negotiations before altering pre-constitutional rights.

Mahomed DP observed that in constitutional litigation, the Court should not routinely order costs against unsuccessful litigants who raise important constitutional issues in good faith, unless the grounds are frivolous, vexatious, or there are improper motives. Kriegler J emphasized that section 32(c) protects diversity but not racism; common culture, language, or religion with racism as an essential element has no constitutional protection. He stressed that meaningful numbers of language speakers have an enforceable right to instruction in their common language at state expense (section 32(b)), while section 32(c) requires communities to fund their own exclusive institutions. Sachs J provided extensive obiter on international minority rights law, observing that: (1) the 'never again' principle applies to both forced segregation and compulsory assimilation; (2) language is not merely communication but central to community identity; (3) international law has evolved from tolerance to protection to individual rights, with limited recognition of group rights; (4) Article 27 ICCPR is expressed negatively and timidly; (5) international law emphasizes non-discrimination and equality rather than state obligations to establish minority schools; (6) each country develops its own approach based on history and needs; (7) international law protects dominated, not dominating, minorities; (8) the Framework Convention for the Protection of National Minorities (1994) confirms freedom to establish educational institutions but does not impose state obligations to establish them. Sachs J also observed that South Africa has no clear linguistic majority, only multiple minorities, making the balancing exercise particularly complex. He noted that section 32(c) must be read with section 8(2) (non-discrimination) and represents a limited, explicit departure from general anti-discrimination principles in the private sphere. He emphasized that the Constitution protects children's rights as paramount (section 30(3)) and that educational objectives include full development of personality, respect for human rights, promotion of tolerance, and enabling effective participation in society.

This is a foundational case on the interpretation of educational and language rights in South Africa's constitutional democracy. It establishes that section 32(c) protects the freedom to establish private educational institutions based on common culture, language, or religion, but does not impose a positive obligation on the state to establish or maintain such institutions. The judgment balances minority cultural and linguistic rights with the imperatives of equality, non-discrimination, and transformation. It clarifies that while section 32(b) guarantees instruction in the language of one's choice (where reasonably practicable) at state expense, section 32(c) protects private initiative for those wanting more than the state provides. The case is significant for its incorporation of international human rights law on minority protection, particularly the principle that protection of minorities means preventing discrimination against disadvantaged groups rather than preserving privilege. It addresses the sensitive issue of former Model C schools and confirms that language admission requirements fall within state, not school governing body, authority. The judgment demonstrates the Court's approach to balancing diversity with equality in the post-apartheid constitutional order. It is also notable for its discussion of costs in constitutional matters, establishing that litigants should not be deterred from raising important constitutional issues by fear of adverse costs orders.