“It appears . . . to serve little purpose to quote dictionaries defining the word. To draw the distinction between what is policy and
what is not with reference to specificity is, in my view, not always very helpful or necessarily correct. For example, a decision
that children below the age of six are ineligible for admission to a school, can fairly be called a ‘policy’ and merely
because the age is fixed does not make it less of a policy than a decision that young children are ineligible, even though the word
‘young’ has a measure of elasticity in it. Any course or program of action adopted by a government may consist of general
or specific provisions. Because of this I do not consider it prudent to define the word either in general or in the context of the
Act. I prefer to begin by stating the obvious, namely that laws, regulations and rules are legislative instruments whereas policy
determinations are not. As a matter of sound government, in order to bind the public, policy should normally be reflected in such
instruments. Policy determinations cannot override, amend or be in conflict with laws (including subordinate legislation). Otherwise
the separation between legislature and executive will disappear. In this case, however, it seems that the provincial legislature
intended to elevate policy determinations to the level of subordinate legislation, but leaving its position in the hierarchy unclear
. . .” (Footnote omitted.)
[11]
In the present matter we are concerned with policy determinations under the National Policy Act. In Ex Parte Speaker of the National Assembly : In Re Dispute Concerning the Constitutionality of Certain Provisions of the National Education
Policy Bill this Court considered the Bill which then became the National Policy Act and stated:
“Nothing in the Bill imposes an obligation on the provinces to act in conformity with national education policy. That may possibly
be achieved by Parliament through the passing of legislation which prevails over provincial law in terms of s 126(3).
. . .
There are no provisions of the Bill that oblige the provinces to follow national education policy, or that empower the Minister to
require them to adopt national policy or to amend their own legislation.”
Policy made by the Minister in terms of the National Policy Act does not create obligations of law that bind provinces, or for that
matter parents or independent schools. The effect of such policy on schools and teachers within the public sector is a different
matter. For the purposes of this case, it is necessary only to determine the extent to which policy formulated by the Minister may
be binding upon independent schools. There is nothing in the Act which suggests that the power to determine policy in this regard
confers a power to impose binding obligations. In the light of the division of powers contemplated by the Constitution and the relationship
between the Schools Act and the National Policy Act, the Minister’s powers under section 3(4) are limited to making a policy
determination and he has no power to issue an edict enforceable against schools and learners. Yet the manifest purpose of the notice
is to do just that.
[12]
A reading of the notice makes it plain that the Minister intended it to have binding effect. Paragraph
3 of the notice provides that:
“A learner must be admitted to grade 1 if he or she turns seven in the course of that calendar year. A learner who is younger than
this age may not be admitted to grade one.”(My emphasis.)
The language of this provision is peremptory and is consistent only with an intention to create a binding obligation. Similarly paragraph
5 of the notice provides that:
“These age requirements must be applied in addition to the grounds for registration of independent schools as determined by the Member
of the Executive Council as contemplated in section 46(2) of the South African Schools Act, 1996 (Act No. 84 of 1996).”
This paragraph too is formulated in peremptory and not permissive terms and is consistent only with an intention to require MECs to
impose the turning-seven rule as a condition of registration of independent schools.
[13]
Complex constitutional questions arise as to whether the Minister is permitted at all to oblige MECs
to enforce national policy in this way. It is not necessary to decide such questions in this case, for section 3 of the National
Policy Act does not accord the Minister such power. It follows that the notice purports to impose legally binding obligations upon
independent schools and upon MECs, and is ultra vires the powers granted to the Minister by section 3 of the National Policy Act.
[14]
Counsel for the Minister contended, however, that even if the notice was not valid under section 3(4)
of the National Policy Act, it was valid under section 5(4) of the Schools Act which empowers the Minister to determine the minimum
age requirement for admission to independent schools. That section reads:
“The Min
