Judge rules Afrikaans language school court application is urgent

Converting four laboratories into classrooms and other logistics to admit 55 English pupils to the Hoërskool Overvaal before the school opened on Wednesday might be a bridge too far to achieve in a few days, a high court judge has said.

Judge Bill Prinsloo said it seemed to him that the Gauteng Education Department had admitted the extra 55 English pupils to the Afrikaans language school in “rather rushed and strange circumstances”.

The school applied for an urgent court order setting aside the department’s instruction on 5 December last year – a day before the school closed – forcing them to admit the additional 55 English learners and to become a dual-medium school.

The school maintained their admissions process had already been closed by then, they had admitted even more Grade 8 pupils than they could cope with and that neighbouring English schools had the capacity to take the pupils.

The department flatly denied these allegations and said Overvaal had more than enough space to admit the 55 and more learners, and was using language as segregation tool and to stop learners in their area from having access to basic education.

Counsel for the school, Albert Lamey, argued the school was not trying to deprive learners of their right to education. He said the right to basic education was a right against the state and not against a specific school until the learners had already been enrolled, which he said had not yet happened in this case.

The department conceded that if the matter was not heard urgently and the school succeeded after a few months, it would place the learners in question in a difficult situation.

Judge Prinsloo dismissed the department’s argument that the school’s application should be struck off the roll because it was not urgent and the 55 learners, who was the reason for the application, had not been joined as respondents in the matter.

He said the school had made repeated representations to the department that they could not place the learners mainly because of their language, but the department – which maintained three years of silence about the school’s admission policy until rejecting it in October – never replied and simply issued the instruction on 5 December.

Judge Prinsloo said he was satisfied that the school had acted promptly to bring the matter before court and that a proper case had been made out for the dispute to be considered urgently.

The judge pointed out that there was a dispute about the destiny of the 55 pupils, with the school arguing that 26 of them had already been placed at other schools, seven could not be traced and nine were rejected by the district because of a lack of documentation.

He said theoretically, if it were cast in stone that all possible affected learners had to be joined, one might have a situation involving 4 000 learners, and it was difficult to know where to draw the line. There was a clear difference between qualifying for placement and the right to basic education at the state and final placement vesting a right in the school, he added.

He said the December 5 instruction did not include the addresses of the 55 learners, there was no clear evidence that the school had their details, and in light of argument that the majority had found their destiny elsewhere, it was difficult to see how a court could force the school to join learners whose details were unclear.

The application continues.

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