Afrikaans as a medium for teaching and learning has been a controversial topic for years, but particularly so over the last few months. Political parties have also entered the fray, with the Democratic Alliance up in arms regarding the new Language Policy Framework for Public Higher Education (National Language Policy).

On 22 September 2021 the Constitutional Court (CC) handed down a bilingual judgment in the matter of Chairperson of the Council of UNISA v AfriForum NPC (CCT 135/20) [2021] ZACC 32, the latest in a trilogy of cases relating to policy decisions by universities to discontinue Afrikaans as a medium of teaching and learning. The previous decisions concerned the language policies adopted by the University of the Free State (UFS) (Afriforum v University of the Free State [2018] (2) SA 185 (CC)) and the University of Stellenbosch (Gelyke Kanse v Chairperson, Senate of the University of Stellenbosch [2020] (1) SA 368 (CC)), but the CC emphasised that each case must be decided on its own facts and merits. One cannot simply adopt a one-size-fits-all approach to discontinue Afrikaans as a teaching and learning medium at universities.

Background

The University of South Africa (UNISA) is the sole distance-learning institution of higher education in South Africa and the largest on the continent. The vast majority of UNISA’s students are unable to, or prefer not to, attend residential universities, and rely on distance learning.

UNISA’s 2006 language policy provided that UNISA would make tuition available in the official languages of South Africa on the basis of functional multilingualism.

The 2006 language policy was revised in 2010. The revised language policy envisaged the promotion and advancement of multilingualism, while retaining Afrikaans and English as languages of teaching and learning.

In 2012, UNISA introduced Guidelines for the Discontinuation of Afrikaans in Certain Modules to be read with the 2010 language policy. After a comprehensive review, a draft language policy and its implementation plan, providing for only English as a language of teaching and learning, was formulated in 2014. On 30 March 2016 and 28 April 2016 respectively, UNISA’s Senate and Council took the decision to adopt and implement a revised language policy. The stated objective of the language policy was to institute measures to enhance the status of indigenous African languages, while also phasing out Afrikaans and therefore removing the guarantee that courses be offered in both Afrikaans and English. In effect, English became the sole medium of tuition and learning.

Dispute

Section 27(2) of the Higher Education Act 101 of 1997 empowers a university, subject to the policy framework determined by the Minister of Higher Education and Training, through its Council and with the concurrence of its Senate, to determine its language policy, publish it and make it available upon request.

Afriforum launched an application in the High Court in Pretoria to review and set aside UNISA’s language policy based on procedural irregularities and its inconsistency with section 29(2) of the Constitution. It further sought to interdict the implementation of the new policy pending the review application. 

Although the review application was partly based on the Promotion of Administrative Justice Act 3 of 2000 (PAJA), on the assumption that the impugned decision constituted administrative action, the CC concluded in UFS matter that language policy decisions did not constitute administrative action within the ambit of PAJA. Afriforum accordingly abandoned its reliance on PAJA but persisted to challenge on the principle of legality.

Section 29(2) of the Constitution, which deals with the fundamental right to education, provides that:

“Everyone has the right to receive education in the official language or languages of their choice in public educational institutions where that education is reasonably practicable. In order to ensure the effective access to, and implementation of, this right, the state must consider all reasonable educational alternatives, including single medium institutions, taking into account:

(a) equity;

(b) practicability; and

(c) the need to redress the results of past racially discriminatory laws and practices.”

The High Court held that there was a prima facie violation of the section 29(2) right to receive an education in the language of one’s choice and mother tongue, but few students made use of the Afrikaans as teaching and learning medium. It further held that the constitutional right to receive an education in the language of one’s choice is qualified by the term “where that education is reasonably practicable”.

On rationality, the High Court concluded that section 27(2) of the Act confers powers to UNISA to adopt and implement a language policy. The language policy was rationally linked to the powers conferred to UNISA in terms of this section. While the National Language Policy supports Afrikaans as a language in academia and science, it does not prohibit the adoption of policies that discontinue Afrikaans as learning and teaching medium.

Supreme Court of Appeal

Afriforum successfully appealed to the Supreme Court of Appeal (SCA). The SCA relied on the Head of Department, Mpumalanga Department of Education v Hoërskool Ermelo [2009] ZACC 32; 2010 (2) SA 415 (CC); 2010 (3) BCLR 177 (CC) (Ermelo), emphasising that where a learner already enjoys the benefit of being taught in an official language of their choice, the state has a negative duty not to diminish this right without appropriate justification. In order to justify the removal of the dual English/Afrikaans model of teaching and learning, UNISA had to show that it was not reasonably practicable to sustain it, but the SCA found that UNISA failed to do so.

The SCA noted that that the justification by UNISA, based on availability of resources, was unconvincing in the light of the normative content of section 29(2) of the Constitution. The SCA further emphasised that compliance with section 29(2) goes “beyond the availability of resources”.

Regarding equity considerations that are central to the determination of reasonable practicability, the SCA reasoned that the facts of the present matter were distinguishable from those in the UFS and University of Stellenbosch matters. Those cases concerned the revision of previous language policies that had led to racial segregation in the lecture rooms or created an exclusionary hurdle for students at the university. UNISA, however, is a distance-learning university and there is no threat of Afrikaans creating segregated classes or fostering racial supremacy.

Ultimately, the SCA concluded that UNISA had failed to establish that the adoption of its new policy in 2016 was conducted in a constitutionally compliant manner and did not detract from the section 29(2) right without justification. Accordingly, the SCA declared the adopted language policy unconstitutional and unlawful and set it aside. UNISA was ordered to reinstate modules that had been discontinued pursuant to the adoption of the language policy.

Constitutional Court

In a judgment penned by Mahjiedt J, the CC provided a synopsis of the history and development of Afrikaans as a language and dealt with the iniquitous portrayal of Afrikaans and its true roots. It was pointed out that although Afrikaans has undeniably been employed as a tool of oppression, its history is far more multifaceted and nuanced that that. The CC highlighted the misconception that Afrikaans is “a white language”. Today, Afrikaans is spoken predominantly by black people.

In considering the language policy adopted by UNISA, the CC reiterated that “the right to education in a language of one’s choice is entrenched in section 29(2), circumscribed only by appropriateness and reasonableness”. UNISA, as an organ of state, was obliged to comply with the terms of section 29(2) of the Constitution. The CC held that UNISA was constrained to advance facts on affidavit to justify its adoption of the language policy by demonstrating that it applied its mind to the considerations listed in section 29(2) and that it complied with the prescripts of that section. Its decision to abandon Afrikaans had to be tested against objective considerations of reasonableness and there had to be some evidence of how UNISA went about applying its mind. The CC held that UNISA could not simply state that it took a decision without explaining how it was taken and indicating what was considered. The CC concluded that the SCA’s finding that the evidence advanced by UNISA regarding costs, demographics, a “dwindling demand” for Afrikaans tuition, and equity did not support UNISA’s contentions, was unassailable.

The CC held that to give meaningful effect to the right in section 29(2), all reasonable educational alternatives had to be taken into account and considerations of equity, practicability and the need to redress the consequences of our apartheid past, must feature prominently.

Ultimately, UNISA’s decision in 2016 to adopt the new language policy and discontinue Afrikaans as a medium of learning and teaching, contravened section 29(2) of the Constitution, rendering that decision invalid.

When considering an appropriate remedy, the CC stated that the Constitution required that the constitutional invalidity be corrected or reversed where it can no longer be prevented and that where constitutional rights are violated, the relief must effectively vindicate those rights. But, to effectively vindicate rights, the relief must be reasonably capable of implementation. In this instance, the CC held that UNISA, must be afforded the deference to do the necessary feasibility investigations, take the decision it regards as most reasonably practicable and to implement the required changes. In doing so, UNISA must duly comply with the requirements encapsulated in section 29(2) of the Constitution. The order of invalidity was therefore suspended until the start of the 2023 academic year.