Abstract

The Constitutional Court decision in Head of Department, Mpumalanga Department of Education v Hoërskool Ermelo 2010 2 SA 415 (CC) is often celebrated in education law jurisprudence. The Constitutional Court’s call for the radical transformation of public education is zealously repeated in academic discourse. In particular, the apex Court is lauded for the formulation of principles applicable to school governing bodies on how to develop constitutionally compliant language policies in terms of section 29(2) of the Constitution of the Republic of South Africa, 1996. This provision guarantees the right to education in the language of choice in public educational institutions subject to the criterion of reasonable practicability. In the subsequent decision of Gelyke Kanse v Chairperson of the Senate of the University of Stellenbosch 2019 12 BCLR 1479 (CC), the Constitutional Court evaluated the constitutionality of another language policy, this time in the higher education context, but adopted a markedly different approach to the interpretation of section 29(2). Using a particular conceptualisation of transformation as theoretical lens and by contrasting the judicial approaches in the two Constitutional Court judgments, this contribution advances the idea that the Court in Ermelo was myopic in its approach by failing to recognise that some school governing bodies reinforce systemic racial inequality in public schools through the adoption of language policies.