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IN THE EQUALITY COURT OF THE DURBAN MAGISTRATE’S COURT

HELD AT DURBAN

CASE NO: 77/2007

N. R. NKOSI COMPLAINANT

AND

MRS. VERMARK: DEPUTY PRINCIPAL FIRST RESPONDENT

DURBAN HIGH SCHOOL GOVERNING BODY SECOND RESPONDENT

JUDGEMENT

1. INTRODUCTION

The Complainant is represented herein by S. POSWA - LEROTHOLI duly instructed by T. A. NGXINGWENI of Mxenge, Ngxingweni & Co. Both respondents are represented by M. PILLEMER S. C. together with I. L. TOPPING duly instructed by I. A. GRIEVE of Goodrickes.

These proceedings are instituted in terms of section 20 of The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000. (Hereinafter referred to as the Equality Act). This enquiry is held in terms of section 21 of the Equality Act. The nub of the Complainant’s case being that the language policy adopted by the 2^ND Respondent unfairly discriminated against herself and her son Thokozani Fakude who was a pupil at Durban High School (hereinafter referred to as DHS, during 2007.)

The nub of the Respondents response is that the language policy as set out in a document headed ‘Durban High School Language Policy’ (which document was duly handed into Court as exhibit ‘A’ (and shall henceforth be referred to as such), complied with the Constitution as embodied in the relevant guidelines, as per the document entitled’ ‘Norms and Standards for Language Policy in Public Schools.’ The last mentioned document was duly handed into Court as exhibit ‘B’ (and shall hereafter be referred to as such). It is further contended by the Respondents that the language policy adopted by DHS complied with the provisions of a document headed ‘Language in Education Policy’ (the last mentioned document is to be found at page 28 of the bundle of documents before Court (and shall hereinafter be referred to as ‘Annexure A’)

2. RELIEF SOUGHT

As per the written heads of argument the following relief is sought on behalf of the Complainant.

“(a) The Claimant seeks a declarator that the language policy of the school is discriminatory and should be changed to be in line with the legislative framework and policy on languages.

(b) That the fundamental rights of both the Claimant and Thokozani were infringed.

(c) The Respondents should take the necessary steps to introduce isiZulu as a first language.”

As per the written heads of argument the following is sought on the Respondent’s behalf namely, that the application for the relief mentioned above be dismissed.

3. THE EVIDENCE

3.1. THE COMPLAINANT’S EVIDENCE

The Complainant was the only witness who testified on her own behalf. The Court would like to state at this point that the Complainant testified as an expert witness, a summation of her evidence is as follows.

The Complainant told the Court that she is presently the Chief Executive Officer of the Pan South African Language Board which is a constitutional body empowered to protect the rights of language communities and to ensure that these previously marginalized languages namely isiZulu, isiXhosa, isiSwathi, isiNdebele, Tswana, siSotho, siSothosaLebowa, Venda and SiTonga, being the official languages of South Africa according to section 6 of the Constitution, are enhanced and developed.

After stating her qualifications for the record Ms. Nkosi went on to state that she was involved in the process whereby the National Language Policy Framework was designed. This policy has now been handed down to schools to implement.

Ms Nkosi then informed the Court that she had also been involved in the South African Qualifications Authority, which in essence looks at the standards of the languages in question. On the issue of resources used to develop languages it was pointed out that under the previous dispensation the languages mentioned above (hereinafter referred to as indigenous languages) were marginalised, whilst at the same time a huge amount of resources were used to develop English and Afrikaans. Reference was made to section 6.2. of the Constitution and the point was made that the State has an obligation in terms of the said section to take practical and positive steps to elevate and advance the use of indigenous languages which were previously disadvantaged.

At this point Ms Nkosi was referred to exhibit A and was then taken through the various provisions thereof and was asked to comment as to whether in her opinion exhibit ‘A’ complied with the provisions of section 6 of the Constitution, as well as the provisions of exhibit ‘B’ and Annexure ‘A’. She answered that in her opinion exhibit ‘A’ did not comply therewith.

Ms. Nkosi further testified that the policy (as per exhibit ‘A’) practised by DHS during 2007 in respect of learners whose home language is isiZulu, was discriminatory in the sense that its effect would be that proficiency would not be reached by such a learner in his or her home language. She went on to say that this would impact negatively on the student concerned with particular reference to culture, which would in turn have a dehumanizing effect. The failure to be taught one’s own home language at the correct level would lead to an alienation from one’s own culture, and a tendency to uphold other people’s culture at the expense of one’s own.

It is through learning a language at the correct level that one learns cultural practices and therefore is able to appreciate the full value of novels, drama, and poetry. If a child does not go through this process that child is robbed of that knowledge. Reference was then made to section 30 of the Constitution and the point was made that language and culture are intertwined.

While Ms Nkosi agreed that South Africa was a multilingual country and therefore multilingualism was important, she stressed that multilingualism should never be achieved at the expense one’s mother tongue

3.2. CROSS EXAMINATION OF NKOSI

Ms Nkosi told the Court that at the time she applied for her son to attend DHS he was living in Umlazi. She agreed that there were schools in Umlazi at the time which would have taught him isiZulu at a home language level. Ms. Nkosi knew when she applied to have her son enrolled at DHS, that the medium of instruction there was English. When asked whether at the time her son was enrolled at DHS she subjectively believed that DHS would provide the subject of isiZulu for her son at a first or home language level, Ms Nkosi avoided answering the question directly, and eventually said that she was aware that DHS had a certain Mr. Chamane on their teaching staff whom she knew to be a good teacher of isiZulu so she believed that her child would be taken care of.

Ms. Nkosi agreed that at the school which her son was presently attending he was taking isiZulu as a first additional language and not as a home language, she had to accept a compromise position because of the deficit he suffered through being taught isiZulu as a third language at DHS, and so he would have to build up from that. She did not know whether the school presently attended by her son offers isiZulu as a first language because she had not asked them. Ms. Nkosi did not dispute that her son was treated exactly the same way by DHS as every other learner in his class whose home language is isiZulu. Ms Nkosi conceded that the nub of her Complainant does not revolve around the language policy which has now been implemented by DHS, but rather revolved around what happened to her son while he was a pupil there in 2007. She added that the main thrust of her Complainant was that she wanted her son to be taught isiZulu at home language level.

That concluded Ms Nkosi’s evidence after which her case was duly closed.

3.3. EVIDENCE ON BEHALF OF THE RESPONDENTS

The only witness to testify on behalf of the Respondents was DAVID ANTHONY MAGNER. A summation of his evidence is as follows. He is presently the headmaster of DHS. He has been a high school teacher for 29 years, during which time he has been a teacher of English, a Head of Department of languages, Deputy Principal and Principal of DHS. DHS is a boy’s school comprising of some 950 odd, learners Mr. Magner explained that the State operates according to a system called a Post Provisioning Norm which determines how many educators would be paid by the State. Presently 32 educators at DHS are state employees and are thus remunerated by the State. However, there are a further 34 educators at DHS who are not state employees and who are remunerated by the governing body of DHS. Mr. Magner estimated that between 85% and 90% of the learners DHS speak English as their home language.

In respect of grades 8 & 9 the registered class remains as a complete unit for the duration of the day for all their lessons. In respect of grades 10 to 12 the registered class does not remain as a unit for the duration of the day. He went on to explain that if the norms which apply to grades 10 to 12 were to apply throughout the school that would create very, very difficult timetable constraints.

Mr. Magner agreed with the suggestion that the ‘home’ language in relation to the school was English; he also agreed that the language of tuition in which all non language subjects were taught was English. He further agreed that English as a subject was taught at LLC1 level which is the home language level. He told the Court that no other language taught at DHS was taught on the same level as English. The other languages taught at DHS were treated as additional languages.

In grades 10 to 12 Afrikaans is offered as an additional language, as is isiZulu. In grades 10 to 12 both isiZulu and Afrikaans are offered as an additional language and both are offered on the same level. The language policy as per exhibit A had been in place at DHS for ten years, possibly a bit longer. Mr. Magner stated that he was of the view the language policy set out in exhibit A was in line with the policies laid down by the various departments in accordance with the Constitution.

Mr. Magner confirmed that in accordance with exhibit ‘A’ which was in operation during 2007, the learners in grades 8 and 9 were obliged to take Afrikaans at LLC2 level and isiZulu at LLC3 level. He further confirmed that the practical implications of that was that fewer lessons were offered at LLC3 level than at LLC2 level, this in turn translated into fewer actual lessons being offered in the subject of isiZulu when compared to the number of lessons offered in the subject Afrikaans.

During 2007 DHS was involved in a survey, the purpose of which was to find out from both parents and learners their feelings about the teaching of Afrikaans and isiZulu as regards grades 8 and 9. Although Mr. Magner did not testify as regards the results of the said survey it is common cause that the language policy as it applied in 2007, as regards IsiZulu and Afrikaans in respect of grades 8 & 9 has been changed for 2008. The rest of Mr. Magner’s evidence revolved around compliance with certain policy documents regarding language policy by DHS, as well as compliance with the needs of multilingualism

3.4. CROSS EXAMINATION OF MR. MAGNER

It was conceded by Mr. Magner that any language taught at LLC1 or LLC2 levels would be taught at a higher level than any language taught at LLC3 level. He further conceded that he would not recommend to any parent that they take their children to any of the schools that he had seen in Umlazi. He conceded that the general standard of tuition offered by DHS was higher than the standards of tuition of the schools in Umlazi that he had seen. Mr. Magner told the Court that he had never approached the Department of Education with a view to increasing the school’s Post Provisioning Norm in order to gain more state employed educators who could teach isiZulu at a higher level.

It was conceded by Mr. Magner that in March of 2007, the Complainant had expressed her unhappiness with regard to the language policy been pursued by DHS in respect of grades 8 & 9 ,when answering the survey alluded to earlier in this judgement. Mr. Magner further agreed that the Respondents did not revert back to the Complainant in this regard, until she approached DHS personally in August of 2007.

The rest of the cross examination revolved around the need for DHS to embrace and advance transformation as well as the disadvantages suffered by learners when they are taught their home language at a low level.

The Respondents case was then duly closed.

4. THE COURT CONSIDERS ONLY THE SITUATION AS IT PERTAINED IN 2007

Before the Court proceeds further with this judgement the Court would like to state clearly in the interests of clarity and fairness that the Court in the course of this judgement will consider the situation only as it pertained during 2007, when the Complainant’s son was a learner at DHS. Indeed it is that situation which gave rise to the Complainant presently before this Court. This Court has no desire to pontificate on the situation which presently prevails, as the Court’s considered view is that to do so would fall outside the purview of the matter which is duly before this Court.

5. FROM THE EVIDENCE LED IN THIS MATTER THE COURT FINDS THE FOLLOWING FACTS ARE COMMON CAUSE BETWEEN THE PARTIES, OR AT LEAST THEY ARE NOT IN DISPUTE

a) The Complainant’s son Thokozani attended DHS as a learner in grade 8 during 2007;

b) In accordance with exhibit ‘A’ Thokozani was obliged to take the subject of isiZulu at LLC3 level;

c) In accordance with exhibit ‘A’ Thokozani was obliged to take the subject of Afrikaans at LLC2 level;

d) More lessons were provided in respect of a language taken at LLC2 level during the course of the year, than a language taken at LLC3 level;

e) Thokozani’s home language is isiZulu;

f) In March 2007 in answer to a survey put out by DHS in order to address the feelings of the learners and their parents regarding the issue of the Respondent’s policy regarding Afrikaans and isiZulu in respect of grades 8 & 9 the Complainant made known her unhappiness in writing regarding the issue;

g) No response was forthcoming from the Respondents with regard to the above until August 2007, when the complainant approached the Respondents directly;

6. THE NUB OF THE QUESTION BEFORE THE COURT

Reading carefully through the written transcript of these proceedings and considering it from the Complainant’s point of view, one may well be forgiven for coming to the conclusion that the nub of the issue to be decided by this Court is whether Thokozani was entitled to be taught isiZulu at LLC1 level by DHS or not?

Should one engage in the same exercise but this time consider the proceedings from the point of view of the Respondent’s, one may well be forgiven for coming to the conclusion that the nub of the issue to be decided by this Court is whether the Respondent’s had duly complied with all the relevant policy documents disseminated by the Department of Education inter alia exhibit ‘B’ and annexure ‘A’ or not?

While both the above questions are relevant, it is the considered view of this Court that they are merely points to be considered in answering the real issues on which this matter turns which are;

a) Was the language policy adopted by the Respondent’s in respect of the Complainant and Thokozani discriminatory of them or not?

b) If the question in a) above is answered in the affirmative, the next question the Court must consider are the grounds on which such discrimination was based?

c) Lastly, the Court must consider whether such discrimination was fair or unfair, depending on all the relevant issues as regards this particular matter;

7. THE LEGAL POSITION

7.1 The Constitution:

Sub section 9 (1) thereof reads ‘Everyone is equal before the law and has the right to equal protection and benefit of the law;

Sub section 9 (2) reads ‘Equality includes full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons or categories of persons disadvantaged by unfair discrimination may be taken. Sub section 9 (3) reads ‘The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, age, disability, religion, conscience, belief, culture, language and birth.

Sub section 9(4) reads ‘No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.

Sub section 9 (5) reads ‘Discrimination on one or more of the listed grounds listed in sub section (3) is unfair unless it is established that the discrimination is fair.’

The Court quotes from Constitutional Law of South Africa 2^nd Ed. Vol. 2 at page 35 as follows. ‘The achievement of equality is thus a constitutional imperative of the first order. As the Constitutional Court has put it ‘ The Constitution commands us to strive for a society built on the democratic values of human dignity, the achievement of equality and freedom’ See Minister of Finance v Van Heerden [2004] ZACC 3; 2004 (6) SA 121 CC, (11) BCLR 1125 (CC) at paragraph 22.

‘Both the Constitutional Court and other Courts view the Constitution as transformative. The previous Chief Justice has written that ‘a commitment to transform our society lies at the heart of the new constitutional order’ It is clear that the notion of transformation has played and will play a vital role in interpreting the Constitution.

Sub section 6 (1) reads as follows: ‘The official languages of the Republic of South Africa are Sepedi, Sesotho, Setwana, siSwati, Tshivenda, Xitsonga, Afrikaans, English, isiNdebele, isiXhosa and isiZulu.

Sub section 6 (2) reads as follows: Recognizing the historically diminished use and status of the indigenous languages of our people, the state must take practical and positive measures to elevate the status and advance the use of these languages.

7.2. The National Language Policy Framework

The Court quotes from Constitutional Law of South Africa Vol: 3 at page 65 -9 thereof under the heading:

‘The National Language Policy Framework, government’s policy on the achievement of the goals of the Final Constitution’s official language provisions was adopted by the cabinet in 2002. The policy is the result of a lengthy drafting process conducted by the Language Plan Task Group (‘LANGTAG’) established by the National Department of Arts and Culture in 1995. The aims of the policy are to promote the equitable use of the official languages at all levels of government; to facilitate equitable access to government services, knowledge and information; to ensure redress for the previously marginalized official indigenous languages; to initiate and to sustain a vibrant discourse on multilingualism with all language communities; to encourage the learning of indigenous languages in order to promote national unity, as well as linguistic diversity; and to promote good language management for efficient public service administration.’

7.3. The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000; (Hereinafter referred to as the Equality Act).

The Equality Act defines discrimination as ‘discrimination’ means any act or omission, including a policy, law, rule, practice, condition or situation which directly or indirectly-

1. imposes burdens, obligations or disadvantages on; or

2. withholds benefits, opportunities or advantages from,

any person on one or more of the prohibited grounds;‘equality’ as per definition ‘includes the full and equal enjoyment of rights and freedoms as contemplated in the Constitution and includes de jure and de facto equality and also equality in terms of outcomes.’ Under the heading ‘Prevention and general prohibition of unfair discrimination’ section 6 reads as follows: ‘Neither the State nor any person may unfairly discriminate against any person.’

Under the heading unfair discrimination on grounds of race’ sub section 7(d) provides as follows;

Subject to the provisions of section 6, no person may unfairly discriminate against any person on the ground of race including – the provision or continued provision of inferior services to any racial group, compared to those of another racial group;

Under the heading ‘Determination of fairness or unfairness’ sub sections (2) & (3) of section 14 provide:

In determining whether the Respondent has proved that the discrimination is fair, the following must be taken into account:

2. (a) The context;

(b) The factors referred to in sub section (3);

3. Whether the discrimination reasonably and justifiably differentiates between persons according to objectively determinable criteria intrinsic to the activity concerned;

3. The factors referred to in subsection (2) (b) include the following;

(a) Whether the discrimination impairs or is likely to impair human dignity;

(b) The impact or likely impact of the discrimination on the complainant;

(c) The position of the complainant in society and whether he or she suffers from patterns of disadvantage or belongs to a group that suffers from such patterns of disadvantage;

(d) The nature and extent of the discrimination;

(e) Whether the discrimination is systemic in nature;

(f) Whether the discrimination has a legitimate purpose;

(g) Whether and to what extent the discrimination achieves its purpose;

(h) Whether there is a less restrictive and less disadvantageous means to achieve the purpose;

(i) Whether and to what extent the respondent has taken such steps as being reasonable in the circumstances to -

(i) address the disadvantage which arises from or is related to one or more of the prohibited grounds; or

(ii) Accommodate diversity.

8. APPLICATION OF THE LAW AS SET OUT ABOVE TO THE FACTS BEFORE THE COURT

Having set out the legal position as it presently applies at some length, the Court now turns as it must to the application of the law to the facts of this particular case.

8.1 THE COMPLAINANT & THOKOZANI CLEARLY SUFFERED DISCRIMINATION AS A RESULT OF THE POLICY ADOPTED BY THE 2^ND RESPONDENT IN THE FOLLOWING TERMS

It is clearly evident that the Complainant and her son were discriminated against by the language policy followed by the 2^nd Respondent during 2007 in comparison to other racial and language groups in that:

(i) Learners whose home language was English who were in grade 8 during 2007, were afforded the benefit and opportunity of studying their home language at LLC1 level, which is the highest level of tuition of a language as a subject that the 2^nd Respondent could provide;

(ii) Learners whose home language was Afrikaans who were also in grade 8 during 2007, were afforded the benefit and opportunity of studying their home language at LLC2 level which meant that even though these learners were not afforded the opportunity of studying their home language at the highest level possible, they would receive a greater number of lessons in their home language at a higher level of tuition than those learners obliged to learn there home language at LLC 3 level;

(iii) The opportunities to the learners mentioned above were simply not on offer for the Complainant and her son.Thokozani had no choice by to study his home language at the LLC3 level which is the lowest level at which tuition in a language can be offered.

Clearly the above scenario falls squarely within the definition of discrimination in terms of the Equality Act (quoted earlier in this judgement), in that it withheld benefits, opportunities or advantages from the Complainant and her son on one or more of the prohibited grounds;

It is not disputed that the discrimination was based on one or more of the following grounds: race, culture, language all of which are prohibited grounds.

8.2. WAS SUCH DISCRIMINATION FAIR OR UNFAIR?

In considering whether the discrimination suffered by the Complainant and her son when compared to the English speaking learners who were offered English at LLC1 level, was fair or unfair, the Court looks at the context of DHS as a school which historically and traditionally caters for people whose home language is English. The Court further takes into account Mr. Magner’s evidence to the effect that the overwhelming majority of the boys at DHS speak English as their home language. Having due regard to these facts, the Court finds that the discrimination suffered by the Complainant and her son in relation to those boys who speak English as their home language was fair, in all the prevailing circumstances. However, the same cannot be said of the discrimination suffered by the Complainant and her son in relation those boys whose home language was Afrikaans. Mr. Magner’s evidence in this regard was that both isiZulu and Afrikaans were offered at DHS as additional languages. There is no evidence before this Court as to the comparative number of boys in grade 8 and 9 during 2007, who spoke Afrikaans as their home language as compared to those who spoke isiZulu as theirs. Be that as it may, the Court can find no reason or ground of equity why discriminating against boys whose home language is isiZulu (as against Afrikaans) on one or more of the prohibited grounds in the Province of KwaZulu Natal can be legally justified. Indeed there may well be room for the notion that the Respondent’s themselves recognized that the above mentioned situation was untenable and therefore introduced changes of their own accord in this regard for the 2008 academic year.

The Court finds that by offering Afrikaans as a subject at a higher level than the level at which the subject of isiZulu was offered during 2007, constituted unfair discrimination on the part of the 2^nd Respondent, against the Complainant as well as Thokozani.

9. THE QUESTION OF OFFERING ISIZULU AS A FIRST LANGUAGE OR LLC1 LEVEL

The Court has been asked by Adv. POSWA – LEROTHOLI (in her written heads of argument) to find that that the 2^nd Respondent should provide isiZulu at LLC1 level. While this Court whole heartedly supports the notion that the Constitution is transformative, and indeed is in wholehearted agreement the following quote ‘that ‘a commitment to transform our society lies at the heart of the new constitutional order’ It is clear that the notion of transformation has played and will play a vital role in interpreting the Constitution.’ See Constitutional Law of South Africa 2^nd Ed. Vol. 2 at page 35. (Quoted earlier in this judgement.)

Nevertheless, this Court is not prepared to make such a finding for the following reasons:

a) To do so would in effect be treating the 2^nd Respondent as sui generis in that it would be expecting the 2^nd Respondent to meet an idealstandard that no school in this province or indeed in this Country meets;

b) Were this Court to make such a finding, it would be no more or less that that, this Court has grave doubts whether such a finding denuded (as such a finding would be) of any real substantial worth would serve any real lasting or worthwhile purpose.

10. THE COURT EXPRESSES ITS PERSONAL VIEWS ON THE MATTER WHICH ARE OBITER

Lest what has been said above be misconstrued or misinterpreted as reluctance on the part of this Court to fully embrace transformation and / or the ideals which underpin the Constitution, I have decided to clearly set out my personal views on the matter. I do so in sincerity and in the hope that those in positions to introduce meaningful and lasting transformation as regards the level at which isiZulu is taught in schools (particularly in KwaZulu Natal) will be moved to do so.

The ideal of true meaningful and lasting transformation in the area of the level at which isiZulu is taught at schools, (particularly in KwaZulu Natal where the overwhelming majority speak isiZulu as there mother tongue), is that every single school in this province should be fully equipped to offer isiZulu at LLC1 level.

However it is my respectful and considered view that in order to translate the above ideal into reality instead of a finding by this Court about what should be done, the following is needed;

a) A serous commitment by the State to provide the capacity, in terms of resources in order to enable every State or public school in this province to be able to provide isiZulu at LLC1 level;

b) The necessary political will and courage by those entrusted with the duty of turning the ideals enshrined in the Constitution into reality to do so;

c) The necessary commitment on the part of all affected stakeholders;

d) A genuine desire on the part of all stakeholders to see the advancement and upliftment of isiZulu as a language.

It is my considered view that the day that isiZulu is indeed offered at LLC1 level by all, or at least the vast majority of schools in KwaZulu Natal, then, genuine transformation in this area will have been achieved.

11. FINDING OF COURT

The Court makes the following finding:

The Court finds that offering Afrikaans as a subject at a higher level than the subject of isiZulu, during 2007, in respect of grades 8 and 9 constituted unfair discrimination against all learners in those grades, whose home language is isiZulu. It is common clause that the Complainant’s son Thokozani was in grade 8 during 2007, and therefore both the Complainant and her son were the recipients of the unfair discrimination perpetrated against them in this regard by the 2^nd Respondent.

DATED AT DURBAN THIS 30^th DAY OF SEPTEMBER 2008

J.V. SANDERS

ADDITIONAL MAGISTRATE DURBAN

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