EDL3703
Assignment 2 Semester 1 2025
Unique #:
Due Date: 26 March 2025
Detailed solutions, explanations, workings
and references.
+27 81 278 3372
, 3 ESSAYS PROVIDED
THE INTERPRETATION OF SECTION 29(2) OF THE CONSTITUTION BY
SOUTH AFRICAN COURTS
Introduction
Section 29(2) of the Constitution of the Republic of South Africa, 1996 provides
that everyone has the right to receive education in the official language or
languages of their choice in public educational institutions where that education is
reasonably practicable. It further obliges the state to consider all reasonable
educational alternatives, including single-medium institutions, in order to give
effect to this right, taking into account factors such as equity, practicability, and
the need to redress the results of past racially discriminatory laws and practices.
Over the years, courts have grappled with the proper interpretation and
application of this section in a diverse set of disputes involving language policies
in public schools. This essay explores how courts have approached Section 29(2)
by focusing on three important cases:
1. Minister of Education (Western Cape) and Others v Governing Body of
Mikro Primary School (SCA)
2. Head of Department: Mpumalanga Department of Education and Another v
Hoërskool Ermelo and Another (CC)
3. Laerskool Middelburg and Another v Departementshoof: Mpumalanga
Department van Onderwys and Others (HC and subsequent appellate
considerations)
Through these cases, one can discern how the judiciary has balanced the
constitutional imperative to ensure meaningful access to education in a preferred
official language against the realities of limited resources, historical inequities,
and the managerial prerogatives of education authorities.
1. Constitutional Framework of Section 29(2)
Before examining the cases, it is useful to outline the constitutional context in
which they arise. Section 29(1) entrenches the right to basic education, while
Section 29(2) qualifies the right to be taught in the language of one’s choice. The
provision underscores the complexity of balancing various rights and interests: on
Varsity Cube 2024 +27 81 278 3372
, one hand, preserving and promoting multilingualism and mother-tongue
education, and on the other hand, ensuring equitable access to schools for all
learners, regardless of language.
The key phrases in Section 29(2)—“where that education is reasonably
practicable” and “taking into account … equity … practicability and … the need to
redress the results of past racially discriminatory laws and practices”—signal that
the right to instruction in one’s chosen official language is not absolute. The state
must assess each context carefully, considering whether resources, capacity, and
the broader constitutional objective of social transformation permit the provision of
single-medium or parallel-medium education.
2. Minister of Education (Western Cape) and Others v Governing Body of
Mikro Primary School
2.1 Background and Facts
In the Mikro Primary School case, the Supreme Court of Appeal (SCA) addressed
a dispute between the provincial Department of Education and a governing body
that had adopted an Afrikaans-only language policy. The Department instructed
the school to admit a group of English-speaking learners and to offer parallel-
medium instruction (Afrikaans and English). Mikro Primary refused, arguing that
Section 6(2) of the South African Schools Act 84 of 1996 empowers the school
governing body to determine the language policy, subject only to the Constitution,
the Schools Act, and any applicable provincial law.
2.2 Court’s Reasoning.
The SCA acknowledged that Section 29(2) creates a right to receive education in
the official language of one’s choice but found that this right must be balanced
with practical realities. Crucially, the court held that a governing body’s chosen
language policy could not be overridden arbitrarily by the Department unless
specific conditions set out in the Schools Act—particularly Sections 22 and 25—
were met. These provisions allow the Head of Department to withdraw a
governing body’s functions or to appoint an interim committee only if the
Varsity Cube 2024 +27 81 278 3372
Assignment 2 Semester 1 2025
Unique #:
Due Date: 26 March 2025
Detailed solutions, explanations, workings
and references.
+27 81 278 3372
, 3 ESSAYS PROVIDED
THE INTERPRETATION OF SECTION 29(2) OF THE CONSTITUTION BY
SOUTH AFRICAN COURTS
Introduction
Section 29(2) of the Constitution of the Republic of South Africa, 1996 provides
that everyone has the right to receive education in the official language or
languages of their choice in public educational institutions where that education is
reasonably practicable. It further obliges the state to consider all reasonable
educational alternatives, including single-medium institutions, in order to give
effect to this right, taking into account factors such as equity, practicability, and
the need to redress the results of past racially discriminatory laws and practices.
Over the years, courts have grappled with the proper interpretation and
application of this section in a diverse set of disputes involving language policies
in public schools. This essay explores how courts have approached Section 29(2)
by focusing on three important cases:
1. Minister of Education (Western Cape) and Others v Governing Body of
Mikro Primary School (SCA)
2. Head of Department: Mpumalanga Department of Education and Another v
Hoërskool Ermelo and Another (CC)
3. Laerskool Middelburg and Another v Departementshoof: Mpumalanga
Department van Onderwys and Others (HC and subsequent appellate
considerations)
Through these cases, one can discern how the judiciary has balanced the
constitutional imperative to ensure meaningful access to education in a preferred
official language against the realities of limited resources, historical inequities,
and the managerial prerogatives of education authorities.
1. Constitutional Framework of Section 29(2)
Before examining the cases, it is useful to outline the constitutional context in
which they arise. Section 29(1) entrenches the right to basic education, while
Section 29(2) qualifies the right to be taught in the language of one’s choice. The
provision underscores the complexity of balancing various rights and interests: on
Varsity Cube 2024 +27 81 278 3372
, one hand, preserving and promoting multilingualism and mother-tongue
education, and on the other hand, ensuring equitable access to schools for all
learners, regardless of language.
The key phrases in Section 29(2)—“where that education is reasonably
practicable” and “taking into account … equity … practicability and … the need to
redress the results of past racially discriminatory laws and practices”—signal that
the right to instruction in one’s chosen official language is not absolute. The state
must assess each context carefully, considering whether resources, capacity, and
the broader constitutional objective of social transformation permit the provision of
single-medium or parallel-medium education.
2. Minister of Education (Western Cape) and Others v Governing Body of
Mikro Primary School
2.1 Background and Facts
In the Mikro Primary School case, the Supreme Court of Appeal (SCA) addressed
a dispute between the provincial Department of Education and a governing body
that had adopted an Afrikaans-only language policy. The Department instructed
the school to admit a group of English-speaking learners and to offer parallel-
medium instruction (Afrikaans and English). Mikro Primary refused, arguing that
Section 6(2) of the South African Schools Act 84 of 1996 empowers the school
governing body to determine the language policy, subject only to the Constitution,
the Schools Act, and any applicable provincial law.
2.2 Court’s Reasoning.
The SCA acknowledged that Section 29(2) creates a right to receive education in
the official language of one’s choice but found that this right must be balanced
with practical realities. Crucially, the court held that a governing body’s chosen
language policy could not be overridden arbitrarily by the Department unless
specific conditions set out in the Schools Act—particularly Sections 22 and 25—
were met. These provisions allow the Head of Department to withdraw a
governing body’s functions or to appoint an interim committee only if the
Varsity Cube 2024 +27 81 278 3372
