Hoërskool Ermelo and School Governing Body of Hoërskool Ermelo v The Head of Department of Education: Mpumalanga

Hoërskool Ermelo was an Afrikaans-medium public school. Since 2001, there had been conflict between the school and the Mpumalanga Department of Education regarding language policy. At the beginning of 2007, there was a shortage of English-medium capacity in the Ermelo circuit. On 8 January 2007, the principal was summoned to a meeting and instructed to admit learners requiring English tuition contrary to the school's Afrikaans-only language policy. The principal refused. On 25 January 2007, the Head of Department: (1) purportedly withdrew the governing body's function to determine language policy (in terms of section 22 of the Schools Act); and (2) appointed an interim committee (in terms of section 25) to determine the language policy. The interim committee changed the school's language policy from Afrikaans medium to parallel medium (Afrikaans and English) that same day, after a meeting lasting approximately 2.5 hours. The school governing body applied to review and set aside these decisions. The High Court dismissed the application, and the appellants appealed to the Supreme Court of Appeal.

• Whether sections 22 and 25 of the South African Schools Act 84 of 1996 empowered the Head of Department to withdraw the governing body's function to determine the language policy of an existing school
• Whether the Head of Department's decisions to withdraw the function and appoint an interim committee were lawful and procedurally fair
• Whether the interim committee's decision to change the language policy was valid
• The correct interpretation of sections 22 and 25 of the Schools Act in relation to the withdrawal of governing body functions

1. The appeal was upheld. 2. The order of the court a quo was set aside and replaced with: (a) The Head of Department's decision to withdraw the governing body's function to determine language policy was set aside; (b) The decision to appoint an interim committee was set aside; (c) The interim committee's decision to amend the language policy from Afrikaans medium to parallel medium was set aside; (d) Learners enrolled since 25 January 2007 under the parallel medium policy were entitled to continue being taught and write examinations in English until completion of their school careers; (e) Costs in the court a quo to be paid by the first and eighth respondents jointly and severally. 3. Costs of the appeal to be paid by the first and eighth respondents jointly and severally.

The binding legal principles established are: (1) Section 22 of the South African Schools Act 84 of 1996 applies only to functions allocated to governing bodies under section 21, not to core functions like determining language policy conferred by section 6. (2) The function to determine language policy is vested exclusively in the governing body of an existing school and cannot be withdrawn by the Head of Department. (3) Section 25 requires that a governing body must have actually ceased to perform its functions as a prerequisite before the Head of Department can appoint others to perform those functions; the Head of Department cannot create this state of affairs by first purporting to withdraw functions under section 22. (4) A governing body that has determined a language policy that remains in effect has not "ceased to perform" that function merely because the result is unsatisfactory to the education department. (5) Sections 22 and 25 cannot be used together to enable a Head of Department to change a school's language policy by withdrawing the function from the governing body and appointing an interim committee. (6) All administrative action, including decisions under the Schools Act, must comply with the procedural and substantive requirements of PAJA.

The court made several important obiter observations: (1) The right to receive tuition in English in a public educational institution is a right against the State, not against each particular public school (para 14). (2) Education departments dissatisfied with a governing body's language policy determination may review that policy under PAJA if they can make out a case (para 32). (3) Brand JA's separate concurrence (paras 35-36) reflects on the dangers of obiter dicta, noting the Mikro obiter could not anticipate the "cynical abuse" to which its interpretation would give rise in real circumstances, and illustrating why obiter dicta should be used sparingly since they are not tested against real disputes. (4) The court noted that the head of department's use of the urgent procedure in section 22(3) meant the language policy was changed before the governing body had opportunity to make representations, which the court characterized as adding "insult to injury" (para 36).

This is a landmark case in South African education law that definitively clarifies the limits of executive power over school governing bodies. The judgment establishes that the function to determine language policy is an exclusive, core function of school governing bodies that cannot be withdrawn by education departments under sections 22 and 25 of the Schools Act. It overrules the earlier obiter dictum in Mikro Primary School and reinforces the principle of legality in administrative action. The case is significant for: (1) protecting school governing body autonomy in language policy determination; (2) preventing abuse of administrative power by education departments; (3) clarifying the distinction between core governing body functions (sections 6 and 20) and additional allocated functions (section 21); (4) emphasizing that section 22 applies only to functions allocated under section 21; (5) confirming that administrative decisions must comply with PAJA; and (6) demonstrating judicial willingness to overrule recent obiter dicta when shown to be incorrect. The judgment has important implications for the balance of power between the state and school communities in education governance.