Advocate Albert Lamey, representing the school, argued in the Gauteng High Court, Pretoria, that in terms of legality the manner in which the school's language policy was haphazardly rejected was incorrect.
Lamey said even though the school had continually informed the department of its language policy no communication was forthcoming until the last minute by an official not authorised to make such a decision.
The rejection by the department was without any explanation or adequate consultation and engagement with the school governing body (SGB), he said.
“Having the district director on December 5 request the principal of the school to place the learners in the school, without any prior engagement, was in a sense an overriding of power and antagonistic,” he said.
Moreover, Lamey said, the action by the district director negated the role and responsibility of the SGB.
The school understood that because it was dependent on the public purse and as such could not have autonomy, certain norms and standards had to be conducted in line with the National Education Policy Act as well as the South African Schools Act, he said.
If anything, Lamey said, the language policy fell within the SGB’s scope of responsibility and not that of the department alone.
Lamey said what also needed to be considered was that some of the 55 had found space elsewhere.
Of the 55, 26 pupils are said to have found space at other schools, eight had been approved by the school, one had been transferred from another school, one was a late application, seven could not be allocated space and nine had been disqualified, he said.
The department’s defence took a few knocks yesterday after Judge Bill Prinsloo dismissed its bid to have the matter struck off the urgent roll. State advocate Kumbirai Thoma appealed to the court to strike the matter off the roll and for the pupils to be placed in the school pending the outcome of the case in a normal court.
Thoma’s reasoning was that the 55 English-speaking pupils the department wanted to place in the school posed no threat to the school governing body.
“The department has already procured furniture and learning material for the learners. They have also sourced teachers.”
However, Judge Prinsloo raised concerns about what would happen to the pupils if the school's bid to bar the department from forcing it to take more pupils was successful in the normal court.
Judge Prinsloo said: “What is going to happen to the children when, after three or six months, the court decides the department's bid is invalid? We need to take into consideration that schools are opening in a few days' time.”
Thoma replied it would be an unfortunate situation, as it currently was. Another setback came as Thoma appealed for the pupils, affected by the proceedings, to also be included in the matter as it dealt with their rights.
Judge Prinsloo, however, dismissed that request as he said the pupils were already being represented by the department. Prospective pupils also pitched up for the court battle along with their parents. Pupil Naledi Mpana said she had barely managed to pass Afrikaans in primary school and was worried that she would not be able to perform at her best if she had to learn other subjects in the language.
“I won't get my best marks if I have to learn everything in Afrikaans and I don’t want to do poorly. I got 60% last year but I prefer getting 70% upwards."