Education MEC Panyana Lesufi has lost a titanic struggle to admit 55 English-speaking learners to an Afrikaans medium high school in the Gauteng province after a furious conflict with the governing body of Hoërskool Overvaal.
In a unanimous order dated July 25, the Constitutional Court dismissed the MEC’s appeal and upheld the decision of the Gauteng North (Pretoria) High Court.
South Africa’s highest court, in its concise and unequivocal order, refused to even hear the case, stating that it had no prospect of succeeding.
It also ruled that the Gauteng Education Department must pay the school’s legal fees. This is a victory for constitutionalism and sound common sense.
This educational and jurisprudential saga started in January this year when the said high school sought an urgent application to the Pretoria High Court to prevent the Education Department’s coercive strategy to force it to enrol the 55 English-speaking learners.
In its order, the Constitutional Court declared that “the Department of Education failed to give any or sufficient consideration to the available capacity at Phoenix High School and General Smuts High School, both of which do offer tuition in English within the same feeder zone as Hoërskool Overvaal”.
In this battle royal between Lesufi and the Afrikaans high school, the former accused the latter of blatant racism, although the school had both black and white learners.
At the time, the school explained in a rational way that it was not economically feasible for it to employ a fair number of new English teachers for all the relevant subjects for a mere 55 pupils. Furthermore, it asked why the adjacent English-medium schools could not enrol them. It also pointed out that the school was actually too full to admit additional learners.
Furious tensions erupted over this controversial saga that ensued outside the school as vociferous protesters demonstrated outside the school for several days earlier in January, while learners and educators were actually engaged in the process of education.
There was, unfortunately, an element of violence when a “petrol bomb was thrown at a police vehicle, allegedly by supporters of the Congress of South African Students” (Business Day report, July 25).
In the high court, the department submitted that it had put in place all the necessary measures to accommodate the 55 English-speaking learners, including furniture and study materials, but apparently had only one English teacher.
According to the Business Day report, four cases between governing bodies and education authorities have come before the Constitutional Court for adjudication in recent times, involving the parents of learners pitted against such authorities, arguing over who exactly has the power to determine language, religion or admission policies. In all cases, the court has ordered the authorities and the governing bodies to work together in a “spirit of co-operative governance”.
Probably the most influential of these was the Rivonia Primary School case of 2013 relating to admission policy, which was a triumph for co-operative government and an exercise in partnership between the different educational role-players.
In January, as reported by The Citizen on January 30, Minister of Basic Education Angie Motshekga stated that the dispute between the Gauteng Education Department and Hoërskool Overvaal should be resolved out of court as it was not a racial issue, but rather an administrative one. This is in sharp contrast to that of Lesufi, who perceived the problem essentially as a racial one and went as far as of accusing the high school of racism.
Motshekga favoured a strategy of consultation and negotiation, in contrast with Lesufi, who employed one of confrontation. The minister’s approach was clear from the statement made by her spokesperson Troy Martens, who spelt out that the minister’s strategy, as quoted in The Citizen, was that “she believes that we first sort out the issues by providing resources and English teachers to the school, then we can sit down with the school and resolve these matters out of court”.
He explained further that “she raised the issue in a meeting with the principal last week and he felt they could not just switch to being a dual-medium school in January; it has to be a process.”
It is cogently submitted that the minister’s approach of negotiation and consultation should have been used by Lesufi rather than his strategy of confrontation, which exacerbated the problem.
What was required by the constitution in the four cases referred to above was “a spirit of co-operative governance”, rather than coercion and confrontation. This also in accordance with the letter and spirit of co-operative government as set out in chapter 3 of the constitution.
It is to be hoped that the order of the Constitutional Court of July 25 has provided MEC Lesufi a salutary lesson, and in future in relation to sensitive educational matters involving language, race and religion he will use consultation, partnership and negotiation, as opposed to confrontation.
Such an approach is also in accordance with the African philosophy of Ubuntu, which involves a “shift from confrontation to conciliation”, as explained by retired Constitutional Court judge Yvonne Makgoro in the famous Makwanyane judgment.
It is also submitted that Lesufi owes the Hoërskool Overvaal and its leadership an apology for his unsubstantiated accusation of racism.
* Devenish is an emeritus professor at UKZN and one of the scholars who assisted in drafting the interim constitution in 1993