Gelyke Kanse v University of Stellenbosch    

Indigenous minority languages considered by the Constitutional Court and decided that it was “impossible to set aside or override its conclusion that it was not reasonably practicable to introduce full parallel medium undergraduate teaching in order to avoid some diminution of Afrikaans”. 

‘Gelyke Kanse’s approach to whether Afrikaans is an “indigenous language” envisaged in section 6(2) seems to have fluctuated. It did not deny that, at least since Afrikaans supplanted Dutch as an official language in pre-democracy South Africa in 1925, Afrikaans has not been disadvantaged by “historically diminished use and status”, as contemplated by the provision. But Gelyke Kanse rightly insisted on Afrikaans’s indigeneity and that it was entitled anyhow under section 6(4) to “parity of esteem” as an official language, and hence that it “must be treated equitably”. The High Court mentions Gelyke Kanse’s section 6(4) argument but does not engage with it; “parity of esteem” and “treated equitably” as constitutional injunctions not detracting from section 6(2) may require consideration.” [para 46]

Essence

Indigenous minority languages discussed and confirmed that Afrikaans is a cultural treasure of South African national life but hostility to minority languages exists.

Decision

(CCT311/17) [2019] ZACC 38 (10 October 2019)

Order

1. Leave to appeal is granted.
2. The appeal is dismissed, with no order as to costs in this Court.
3. The costs orders in the High Court are set aside.
4. In their place is substituted:
“There is no order as to costs.”

Judges

Mogoeng CJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mathopo AJ, Mhlantla J, Theron J, Victor AJ.

Judgments:

  • Cameron J (unanimous): [1] to [51]
  • Mogoeng CJ (concurring): [52] to [63]
  • Froneman J (concurring): [64] to [98]

Heard on: 8 August 2019

Decided on: 10 October 2019

Reasons

‘None of the dignity-restoring and enhancing aspirational measures laid down in our Constitution should deliberately or inadvertently, be rendered unworthy of the constitutional space they occupy. Plans to enhance the status and promote the use of indigenous languages, in line with section 6 of our Constitution, must thus be developed and kept ready for implementation as soon as the contestation for our scarce resources, by key national priority areas, has ebbed out. Where immediate implementation is reasonably practicable it would arguably serve us well to act. And that process would hopefully extend to the possible recognition and equal development of all spoken languages of the First Nation people.” [para 63]

Court summary

“Section 29(2) of the Constitution — “reasonably practicable” — constitutionality of the language policy of the University of Stellenbosch — Afrikaans as a medium of instruction – access to higher education

Section 6 of the Constitution — protection and promotion of indigenous minority languages — diminished use and status”

Media summary

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

“On Thursday, 10 October 2019 at 10h00, the Constitutional Court handed down judgment in an application for leave to appeal directly to it against the judgment and order of the High Court of South Africa, Western Cape Division, Cape Town (High Court). This application concerned the decisions of the Senate and Council of the University of Stellenbosch (University) to adopt a new language policy for the University (2016 Policy). The 2016 Policy was adopted under the Higher Education Act and the National Language Policy for Higher Education (LPHE).

The 2016 Policy creates three language specifications: parallel medium, dual medium and single medium. Its effect is to adopt a preference for English in certain circumstances so as to advance the University’s goals of equal access, multilingualism and integration while also maintaining and preserving Afrikaans, subject to demand and within the University’s available resources. The University contended that the 2016 Policy, in contrast to the 2014 Policy that preceded it, does not exclude black and English-speaking students from full and equitable access to the University. While the Afrikaans language provision under the 2014 Policy could be preserved by fully parallel medium tuition, the cost would total about R640 million in infrastructure (including additional classrooms), plus about R78 million per year thereafter, in additional teaching and other personnel costs. This would entail a 20% increase in fees, an additional R8100 on top of the approximately R40 000 per year students on average pay now.

Gelyke Kanse is a voluntary association originally formed to oppose the 2016 Policy but which now has broader goals in seeking to promote Afrikaans mother-tongue education and the acceptance of mother-tongue education as indispensable to community development. Along with individual applicants, including black, brown and white students affected by the 2016 Policy, Gelyke Kanse approached the High Court seeking an order reviewing and setting aside the 2016 Policy and reinstating the 2014 Policy.

The High Court dismissed the application. It held that the University’s obligations under section 29(2) of the Bill of Rights are limited to providing Afrikaans education where reasonably practicable and through reasonable educational alternatives. In determining whether providing education in an official language of choice is “reasonably practicable”, the State must take into account what is fair, feasible and satisfies the need to remedy the results of past discriminatory laws and practices. Further, assessing what is reasonably practicable requires consideration both of resource constraints and logistics (the factual criterion), and of equity, redress and non-racialism (the constitutional criterion).

The High Court found that the 2014 Policy was not equitable as it denied black students not conversant in Afrikaans full access to the University. It also held that the LPHE, which promised extension of Afrikaans tertiary education, was important as a guiding document but it was not binding. The University adequately justified departing from the LPHE. In any event, the 2016 Policy was found to be consistent with the LPHE, which focuses on ensuring equitable access.

The applicants approached the Constitutional Court for direct leave to appeal. They asked the Court to set aside the 2016 Policy on grounds that it violates section 29(2), and also contravenes other constitutional provisions, including section 6(2), section 6(4), the equality clause and other provisions of the Bill of Rights.

In a unanimous judgment penned by Cameron J, the Court dismissed the appeal. The Court found that the 2016 Policy was constitutionally justified. “Reasonably practicable” in section 29(2) involves both a factual and normative (constitutional) element. The constitutional criterion of reasonable practicability is to be judged objectively, and requires an approach founded in evidence.

In this case, the University’s judgment on the cost of preserving Afrikaans tuition at the level in the 2014 Policy satisfies both the factual and normative elements in section 29(2). The University showed that, near-universally, brown and white-Afrikaans-speaking first-year entrants to the University are able to be taught in English. Though most entrants are able to receive tuition in Afrikaans, a significant minority cannot. The 2014 Policy created an exclusionary hurdle for specifically black students. The University also showed that classes conducted in Afrikaans, with interpreting from Afrikaans into English, made black students not conversant in Afrikaans feel marginalised, excluded and stigmatised.

This Court found that the University’s process in adopting the 2016 Policy was thorough, exhaustive, inclusive and properly deliberative. The University’s determinative motivation for introducing the new Policy was to facilitate equitable access to its campus, its teaching and learning opportunities by black students not conversant in Afrikaans. The University’s decision-making structures, with a scrupulous eye on racial equity, access and inclusiveness, judged that a downward adjustment of Afrikaans, without by any means eliminating it, was warranted. The University also determined that the cost of avoiding down-adjustment of Afrikaans was too high. This evidence established that continuing with the 2014 Policy was not “reasonably practicable”.

The Court noted that the flood-tide of English predominance risks jeopardising South Africa’s entire indigenous linguistic heritage. This is because the march of history both in South Africa and globally seems relentlessly hostile to minority languages, including Afrikaans, which is the mother-tongue of some seven million on a planet inhabited by seven billion people. But this could not be made the University’s burden.

A separate concurrence by the Chief Justice (with Cameron J concurring) agreed that it was neither reasonably practicable nor equitable to maintain the position as it was before the 2016 Policy came into being. Additionally, the understanding and application of reasonable practicability and the need for equitable access to education, stood to be guided by this Court’s articulation of these principles in AfriForum v Free State University. The separate concurrence also emphasized the need to develop all indigenous languages including the spoken languages of the First Nation people.

The concurrence also appeals to corporate citizens’ spirit of generosity to help preserve Afrikaans, and develop other indigenous languages, as essential tools for knowledge impartation and comprehension, by deploying resources to the establishment of private learning institutions envisaged by section 29(3) of the Constitution.

In a separate concurring judgment, Froneman J (with Cameron J concurring) agreed with the reasoning and outcome of the first judgment. The concurring judgment draws out the implications of the entrenchment of English’s dominance as a medium of instruction for the diminished use and protection of minority indigenous languages.”

Quotations from judgment

Note: Footnotes omitted and emphasis added

CAMERON J (Mogoeng CJ, Froneman J, Jafta J, Khampepe J, Madlanga J, Mathopo AJ, Mhlantla J, Theron J and Victor AJ concurring):

Introduction

[1] At issue is the 2016 Language Policy (2016 Language Policy) of Stellenbosch University, the third respondent. The applicants challenge it. They are a voluntary association committed to equal chances for Afrikaans and all indigenous languages, together with six brown and white students of the University who wish to receive tuition in Afrikaans. I refer to them collectively as Gelyke Kanse. In proceedings in the High Court of South Africa, Western Cape Division, Cape Town (High Court) they sought to set aside the 2016 Language Policy and reinstate its predecessor, the University’s 2014 Language Policy (2014 Language Policy). The High Court rebuffed their challenge. They now seek leave to appeal against its finding.

Background

[2] In 2014, the University, after a twelve-year break, adopted a new language policy — the 2014 Language Policy. That Policy stipulated Afrikaans as well as English as the University’s languages of learning and instruction. It committed the institution to purposeful extension of the academic application of both languages. As the preferred options, where practically feasible and affordable, the 2014 Language Policy offered parallel medium teaching of undergraduate courses, in English and Afrikaans, with interpreting. In practice, this was mostly from Afrikaans to English. Postgraduate learning was in both English and Afrikaans, with significant use of English. The 2014 Language Policy envisaged promotion of isiXhosa as an emerging academic language, where feasible and affordable.

[3] Under the 2014 Language Policy, at undergraduate level, a student wanting tuition in Afrikaans could obtain it in all courses and classes, while one seeking English tuition could not always do so: some classes, at least, would be in Afrikaans. In those cases, interpreting within the lecture aimed to bring non-Afrikaans-speakers up to speed in English.

[4] After the Fees Must Fall and Open Stellenbosch upheavals on its campus during 2015, the University thought again. It appointed a working group to re-examine its language policy. After an arduous process the working group recommended a reformulation. This resulted in the 2016 Language Policy, which came into effect on 1 January 2017 and is at issue here. The 2016 Language Policy creates three language specifications – parallel, dual and single medium. Parallel medium – involving equal tuition in both English and Afrikaans – is used “where reasonably practicable and pedagogically sound”. Where not, classes are in dual medium. This means, in effect, teaching in English, with Afrikaans translation (as opposed to real-time interpreting), though questions and answers are conducted in Afrikaans.

[5] The major change from the 2014 Language Policy was that the University now committed itself to a one hundred percent English offering of all classes. This means that students not conversant in Afrikaans can receive all their tuition in English. But while English tuition increased, there was no concordant increase in Afrikaans. This means that Afrikaans students inevitably receive at least some tuition in English. Despite this fact, under the 2016 Language Policy, Afrikaans is still offered on large scale at undergraduate level. And, more pointedly, all first-year lectures continue to be offered in Afrikaans.

[6] Although the University disputed that the 2016 Language Policy “invariably” reduces Afrikaans tuition – claiming “it merely reconfigures it” – this is not so. The 2016 Language Policy effectively gives preference to English in circumstances the Policy specifies. It does so in order to advance the University’s goals of equal access, multilingualism and integration. The 2016 Language Policy does maintain and preserve Afrikaans, but – crucially – this is now subject to demand and to available resources.

[7] The practical effect is that, while undergraduate classes are still generally offered in Afrikaans, Afrikaans has lost its position of primacy. Instead it is placed on a sandy footing where the deluge of English predominance, both local and global, could well destabilise and eventually topple it.

[8] This is what the applicants foresee and what they fear and what they seek to forestall in these proceedings by reinstating the 2014 Language Policy. In doing so, they invoke the precious right of mother tongue education, which is specifically enshrined in section 29(2) of the Bill of Rights. Gelyke Kanse’s argument goes more widely, even. It invokes the value to us as human beings, as constitutive of our self conception and elemental to our functioning as social beings, of the language or languages with which we grew up:

“It is undoubtedly true that a mother tongue is not merely a linguistic system which can, with impunity, be replaced by another language. A child’s mother tongue is the language which allows [them] to impose a structure on the universe. It is associated with [their] thought processes, [their] sense of identity and [their] solidarity with [their] family and environment. As [they] matures, [their] mother tongue may become a symbol of regional or national pride, a means of gaining access to knowledge and wisdom. And it will usually be associated with feelings of warmth, intimacy, spontaneity.”

High Court

[9] The High Court judgment is detailed and comprehensive and it would be superfluous to repeat its constitutional and statutory expositions and analysis. The High Court concluded that the previous 2014 Language Policy fell foul of the “reasonably practicable” criterion in section 29(2) of the Constitution, while, by contrast, the 2016 Language Policy conformed with this standard.

[10] Applying the Supreme Court of Appeal’s decision in AfriForum SCA (given that this Court had not yet heard AfriForum’s application for leave to appeal), the High Court held that the University’s 2016 Language Policy did not constitute administrative action. It thus fell to be reviewed under the principle of legality; but it passed muster even under the stricter test of administrative review. The High Court scrutinised the process by which the 2016 Language Policy was adopted and concluded that it was neither irrational nor unfair.

[11] The High Court concluded that the 2016 Language Policy did not violate section 29(2), which required a “context-sensitive analysis”. That provision’s test of “reasonable practicability” requires an assessment of what is fair, feasible and satisfies the need to remedy the results of past discriminatory laws and practices. Nor did the 2016 Language Policy infringe sections 29(1)(b) or 6(2) of the Constitution. The prohibition against retrogressive measures, where enshrined rights are currently being enjoyed, does not operate abstracted from changes in context and circumstances. The High Court found that the University had advanced “appropriate justification” for any possible reduction in Afrikaans tuition that inevitably flowed from the 2016 Language Policy.

[12] Gelyke Kanse invoked the fact that the 2016 Language Policy was dissonant from the 2002 Ministerial LPHE. The LPHE explicitly encourages multilingualism and envisages development of all indigenous languages as university mediums. It also acknowledges that, as a language of scholarship and science, Afrikaans “is a national resource”. In this, it commits to “ensuring that the capacity of Afrikaans to function as such a medium is not eroded”. Despite these affirmations, the High Court considered the LPHE, though an important guiding document, was not binding on the University. In adopting the 2016 Language Policy, the University was free to depart from the LPHE. And it had shown good reason why a departure was justified.

In this Court

[13] Gelyke Kanse contends not only that the 2016 Language Policy violates section 29(2), but that it also contravenes other constitutional provisions, including section 6(2), section 6(4), the equality clause and other provisions of the Bill of Rights.

Leave to appeal and jurisdiction

[14] A fundamental right is at issue. This Court plainly has jurisdiction. Gelyke Kanse however seeks leave to bypass the Supreme Court of Appeal and appeal directly to this Court. This requires special consideration. Interrelated factors weigh in its favour. The Supreme Court of Appeal pronounced recently and thoroughly on language rights, specifically Afrikaans, at tertiary level in AfriForum SCA. That judgment’s main findings and analysis were affirmed by this Court in AfriForum CC though, before this Court’s judgment, the High Court carefully considered and applied AfriForum SCA. This renders the desirability of a further appellate-level pronouncement in this area less pressing. And the High Court analysed the issues with deep-going rigour and thoroughness. That sets the table for the disposition of the issues in this Court, without a further intermediate appeal.

[15] Though this Court denied the applicants in AfriForum CC leave to appeal, the factual setting and the issues Gelyke Kanse raises, as will emerge, are more complex. I would grant leave to appeal.

Analysis

[16] In advancing its case in this Court, Gelyke Kanse’s factual assertions ranged widely. Yet, despite the importance and the emotional intensity of the issues, we are obliged to play fair with the facts. The well-worn test for the disposition of cases brought on application requires that we decide the matter on the facts stated by the University, together with those Gelyke Kanse states that the University cannot deny, or of which its denials plainly lack credence and can be rejected outright on the papers.

[17] So approached, it is clear that, though triggered by the upheavals of 2015 (which counsel for the University rightly called a “catalyst”), the process for adopting the 2016 Language Policy was thorough, exhaustive, inclusive and properly deliberative. Largely for the reasons the High Court set out in detail, the challenge to the Policy on process and rationality grounds must fail.

[18] Gelyke Kanse also sought to introduce evidence showing that the 2016 Language Policy is currently being implemented in a way that gives warrant to its fears about side-lining Afrikaans. But the High Court rightly rejected this evidence, as must we. The 2016 Language Policy was implemented with effect from 1 January 2017. Gelyke Kanse’s challenge was brought before that, on 30 September 2016. That makes these proceedings a facial challenge to the 2016 Language Policy itself. They are not an “as-applied” challenge. That means Gelyke Kanse cannot in its replying papers bring in evidence creating doubt about the legitimacy of the Policy because of how it is being applied.

[19] This is not to stump Gelyke Kanse on technical points. It is to insist that a litigant should stick to the case it has set out in its challenge, and that it does not ambush its opponent in reply with a new case and new evidence entirely. Gelyke Kanse has ample remedies should the University betray the commitment to Afrikaans it embraced in the 2016 Language Policy. For now, the question before us must be, and be only, whether the University has sufficiently justified the diminished role for Afrikaans in the 2016 Language Policy, as issued, and not as applied.

[20] This puts the focus where it should be, on Gelyke Kanse’s challenge based on the right to tertiary tuition in Afrikaans that the individual applicants claim under section 29(2) and section 6 of the Bill of Rights. Gelyke Kanse rightly contended that section 29(2) entails an enforceable right against the State to provide education in the language of the community so long as it is reasonably practicable.

[21] At the outset, it is important to note two salient features of the right to language. One is that respect for language preference, where appropriate and reasonable, entails no special concession or privileged treatment. It flows from fundamental rights and values. It is an embodiment of the right to be treated equally and without discrimination, which inheres in everyone. It requires no special pleading for its recognition.

[22] Second, it is established in international human rights law that the way in which that respect is practically realised must depend on what is appropriate and reasonable. Section 29(2) of our Bill of Rights recognises this. It accords the right to receive education in public educational institutions in a language of choice “where that education is reasonably practicable”. In this, the Constitution accords with international instruments.

[23] It is also important to state that the constitutional test of “reasonable practicability” in determining whether the right in section 29(2) may be conferred is in essence synonymous with the test of “appropriate justification” for cutting it back, once afforded. It could be said that they are two sides of the same coin, the former dealing with the positive duty to fulfil the right, and the latter with the negative duty not to take it away, once enjoyed.

In Ermelo, this Court stated:

“In short, the reasonableness standard built into section 29(2)(a) imposes a context-sensitive understanding of each claim for education in a language of choice. An important consideration will always be whether the State has taken reasonable and positive measures to make the right to basic education increasingly available and accessible to everyone in a language of choice. It must follow that when a learner already enjoys the benefit of being taught in an official language of choice the State bears the negative duty not to take away or diminish the right without appropriate justification.”

[24] Gelyke Kanse sought to differentiate between the two tests. It contended that, once the right had been afforded, “appropriate justification” it was harder to surmount. But the High Court rejected this contention, rightly invoking the reasoning in AfriForum SCA and University of Pretoria. Both judgments correctly affirm that Ermelo did not create two separate standards. Ermelo goes no further than reaffirming the distinction between positive and negative duties.

[25] Gelyke Kanse developed its section 29(2) case in tandem with section 6(2), which recognises the State’s duty to take practical and positive measures to elevate the status of indigenous and diminished languages. Section 6(4) further requires national and provincial governments to regulate and monitor the use of official languages and ensure that they enjoy parity of esteem and equitable treatment.

Universities as organs of State, the argument proceeded, must heed section 27(2) of the Act which requires universities to adopt language policies “subject to” the LPHE. In the light of all this, Gelyke Kanse urged, the 2016 Language Policy lacks meaningful guidelines, it directly discriminates against Afrikaans-speaking students, and diminishes Afrikaans tuition at the University in a way not justified on any basis.

[26] Gelyke Kanse is correct in its assertion that the constitutional criterion of reasonable practicability is to be judged objectively, and that it requires an approach founded in evidence. But the evidence is against Gelyke Kanse. The evidence shows that, near-universally, brown and white-Afrikaans-speaking first-year entrants to the University are able to be taught in English. Conversely, though most entrants are able to receive tuition in Afrikaans, a significant minority cannot.

[27] And, of course, as so often in our country, there is a hard racial edge to the differences these facts entail. Two aspects stand out.

  • First, most black (in contradistinction to brown) new entrants to the University are not conversant enough to be able to receive tuition in Afrikaans.
  • Second, seen as a bloc, the new entrants for whom Afrikaans is an obstruction are not brown or white, but overwhelmingly black.

[28] The uneasy truth is thus that the primacy of Afrikaans under the 2014 Language Policy created an exclusionary hurdle for specifically black students studying at Stellenbosch. The racial colouring of the barrier is unavoidably freighted with implication. The evidence the University presented showed that elements of the 2014 Language Policy, when applied, left a sting. Separate classes in English and Afrikaans, or single classes conducted in Afrikaans, with interpreting from Afrikaans into English, made black students not conversant in Afrikaans feel marginalised, excluded and stigmatised.

They were not proficient in Afrikaans, could not understand the lectures presented in Afrikaans or, where the balanced use of Afrikaans and English was offered, they felt stigmatised by real-time interpretation (which was almost solely used for translating lectures they could not understand). Also, less directly pertinent to the “right to receive education”, they felt excluded from other aspects of campus life, including residence meetings and official University events held in Afrikaans, without interpretation.

[29] These facts Gelyke Kanse cannot, and it seems, does not, contest. Its response was, in the technical language of legal pleadings, confession and avoidance. It said, “Yes, but” – with its “but” being this: in contrast to what happened at the University of the Free State in AfriForum CC, classes separated by language at Stellenbosch University were not racially distinct.

The University contended this is because numbers of brown students prefer to be taught in Afrikaans (although it seems that most are either comfortable with, or prefer, tuition in English). This meant that, unlike AfriForum CC, where racial segregation was the reason for dispensing with Afrikaans as a medium of instruction, this was not so with the 2016 Language Policy. It was something subtler, but still palpable, and still substantial: the erection along racial lines of a barrier to full access to Stellenbosch’s learning and other opportunities.

[30] That sting Gelyke Kanse sought to deflect by urging the University to ameliorate the exclusionary impact of Afrikaans by upping its parallel medium offering for all undergraduates in both Afrikaans and English. With fully parallel tuition in both English and Afrikaans, with brown, white and black students distributed across both mediums, there would be no marginalisation, no exclusion, no stigma.

[31] The University conceded that this was feasible. But was it “reasonably practicable” in the sense of section 29(2), entitling Gelyke Kanse to insist on it? The University said No.

The University determined by careful study that the cost of immediately changing to fully parallel medium tuition would total about R640 million in infrastructure (including additional classrooms), plus about R78 million each year thereafter for additional personnel costs.

This would entail a 20% increase in fees, an additional R8 100 on top of the approximately R40 000 per year students on average pay now. Reasonably practicable? The University said No.

[32] Gelyke Kanse cried foul when the University’s answering affidavits set out the cost as a justifying factor. It pointed out that cost did not specifically feature in either the working group processes or in the deliberations of Senate and Council when they adopted the 2016 Language Policy. Cost, Gelyke Kanse objects, is a belated make do.

This I think is incorrect. In almost any conceivable issue of institutional management, whether in a profit-driven or no-profit enterprise, cost is an inevitable consideration. The University was entitled to cite cost in answering Gelyke Kanse’s challenge since, albeit inexplicit, it would all along have been a real and substantial factor in its attempts to figure out what it could do to improve the 2014 Language Policy.

[33] In short, the University was entitled to defend the 2016 Language Policy by showing that the cost of offering all undergraduate courses in parallel English and Afrikaans, so that students not conversant in Afrikaans can have English tuition, but without diminishing Afrikaans, would be enormously, even if not prohibitively, expensive.

[34] To this, Gelyke Kanse’s answer, which its counsel gave during argument, was that there are sources the University could tap to meet this cost. Counsel mentioned some. He alluded to wealthy alumni of the University who oppose diminishing the place of Afrikaans, and trust funds dedicated to protection of the heritage of Afrikaans. This does not seem to me to meet the point.

Any institutional allocation of cost involves, not exactly a zero-sum calculation, but some detraction from resources that could be deployed elsewhere. The question is not whether the University could conceivably marshal the resources to sustain fully parallel English/Afrikaans undergraduate tuition, but whether doing so was reasonably practicable.

[35] In this there was a judgment about cost, combined with a judgment about value. The University’s Senate and Council and executive officers made that judgment. They determined that the cost of sustaining fully parallel medium English/Afrikaans undergraduate tuition could not be justified, given other, often competing, claims on its resources.

[36] Does the University’s judgment on this fail the Constitution’s “reasonably practicable” test? Largely for the reasons the University gives, and which the High Court upheld, I think not. The University’s determinative motivation for introducing the 2016 Language Policy was to facilitate equitable access to its campus and to its teaching and learning opportunities by black students who are not conversant in Afrikaans.

The University’s decision-making structures, with a scrupulous eye on racial equity, access and inclusiveness, judged that

  • (a) a downward adjustment of Afrikaans, without by any means eliminating it, was warranted; and
  • (b) taking into account the overall needs of the institution, the cost of avoiding the down-adjustment was too high.

[37] The Supreme Court of Appeal’s decision in AfriForum SCA held that “reasonably practicable” in section 29(2) involves both a factual and normative (constitutional) element. This Court adopted and endorsed this approach in AfriForum CC.

The University’s motivation and judgment on cost here accords with that analysis. Both the factual and normative elements the provision envisages were satisfied.

[38] A different way to pose the dilemma Gelyke Kanse brings before us is this. Is it permissible under section 29(2), where tuition is being offered in an official language of choice at a public educational institution, to diminish that offering (while not extinguishing it) in order to enhance equitable access for those not conversant in that language, when the institution judges the cost of non-diminution too high? In my view the answer is Yes.

[39] Both the facts at issue, and the doctrine articulated, in AfriForum CC support this conclusion. There, the University of the Free State abolished parallel medium classes, and, with them, Afrikaans as a medium of instruction, because black students chose English, and the students who wanted Afrikaans were white.

This resulted in classes segregating white students from black students. In these circumstances, this Court accepted that separate parallel classes gave rise to racial friction and antagonism.

[40] Here, unlike at the University of the Free State, the University by no means abolished Afrikaans. Also dissimilar is that some students seeking tuition in Afrikaans are brown. This means that racial segregation of the kind at issue in AfriForum CC is not a feature. Nevertheless, the University’s evidence indicates that dual medium classes with interpreting from Afrikaans to English peripheralise and stigmatise black students not conversant in Afrikaans. That, together with the non-prohibitive but significant cost of upscaling to full parallelism means that sustaining the 2014 Language Policy was not reasonably practicable for the University.

[41] This is to say that the exclusion of non-Afrikaans speakers from full participation in tuition and other institutional benefits seems to me a legitimate basis for upgrading English, while continuing to offer significant tuition in Afrikaans, even while sacrificing the previous primacy of Afrikaans.

In this, a sliding scale of what is lost in language terms, and what is retained, as against the social justice objective sought to be attained, weighed together, where appropriate, with cost considerations, seems to me constitutionally justified.

[42] Earlier, I noted it was the University’s own decision-making structures that “judged” that the cost of securing inclusivity in teaching, while not diminishing Afrikaans, was too high. Well, who are they to judge that? It is a good question. Certainly, the Court owes no obvious deference to the institution making the judgment.

The Court must itself scrutinise the facts the institution advances for diminishing language-preferent tuition, while bearing in mind that it is a multifactored functional determination in which the judgment of those entrusted with the institution’s well-being should be accorded what this Court has called “appropriate respect”. This means that when considerations of cost are advanced, the Court’s scrutiny will necessarily be tempered by some measure not of deferring to a judgment that might not be sound, but rather of prudent worldly-wise caution in supplanting the judgment of experienced others.

[43] This is not airy doctrine. It is practical. Chapter 4 of the Act, partly through each university’s institutional statute and rules, vests very considerable decision-making responsibilities and fiduciary duties in the council, senate, and executive governance structures of each higher education institution. Members of university councils and their committees must be persons “with knowledge and experience relevant to the objects and governance of the public higher education institution concerned”.

These include both members of the university’s executive team and “outside” members of the council. No sensibly functioning higher education institution can afford to be without senior persons in its governance structures who are both skilled in finance and knowledgeable about the institution’s own needs, risks and opportunities.

[44] Given this, then, what do we make of the University’s costs claims? It said that the additional 20% on top of existing student fees that Gelyke Kanse’s solution to its dilemma entailed was not reasonably practicable. It does not require deference to flinch from substituting that judgment. It requires only accepting that cost considerations, when scrupulously calculated, as here, and conscientiously propounded, as here, should weigh seriously with a court that adjudicates a claim of rights infringement under section 29(2).

[45] Considering the facts and figures the University advances, it seems to me impossible to set aside or override its conclusion that it was not reasonably practicable to introduce full parallel medium undergraduate teaching in order to avoid some diminution of Afrikaans.

Broader considerations

[46] Gelyke Kanse’s approach to whether Afrikaans is an “indigenous language” envisaged in section 6(2) seems to have fluctuated. It did not deny that, at least since Afrikaans supplanted Dutch as an official language in pre-democracy South Africa in 1925, Afrikaans has not been disadvantaged by “historically diminished use and status”, as contemplated by the provision.

But Gelyke Kanse rightly insisted on Afrikaans’s indigeneity and that it was entitled anyhow under section 6(4) to “parity of esteem” as an official language, and hence that it “must be treated equitably”.

The High Court mentions Gelyke Kanse’s section 6(4) argument but does not engage with it; “parity of esteem” and “treated equitably” as constitutional injunctions not detracting from section 6(2) may require consideration.

[47] Gelyke Kanse implored the Court to set aside the 2016 Language Policy. Upholding the University’s policy change, counsel urged, would signal the end of Afrikaans as a language of tertiary instruction. While counsel’s plea on behalf of indigenous languages other than Afrikaans may have seemed opportunistic, the dire entreaty compels reflection. Endorsing the University’s 2016 Language Policy as conforming with section 29(2) comes at a cost. Our judgment must acknowledge it.

[48] Afrikaans has been recognised in this Court as “one of the cultural treasures of South African national life”. The flood-tide of English risks jeopardising the precious value of our entire indigenous linguistic heritage. Gelyke Kanse is entitled to invoke that risk. This is because the march of history both in South Africa and globally seems relentlessly hostile to minority languages, including Afrikaans, which is the mother tongue of some seven million on a planet inhabited by seven billion people.

[49] But that is not the University’s burden, as little is the fact that Afrikaans has all but vanished at other tertiary institutions, barring only one other. And the dilemmas the global march of English poses is not the question before the Court. Yet we should not miss the cost that the diminution of Afrikaans at the University entails not only for Gelyke Kanse and its adherents, but for our world, and for ourselves.

Costs

[50] The High Court, like AfriForum SCA ordered costs against Gelyke Kanse. Before this Court, the University – recognising early that the costs order was at odds with Biowatch, which protects constitutional litigants against adverse costs orders when litigating against organs of state – abandoned that award.

The High Court, however, made a separate award against Gelyke Kanse in respect of its misbegotten attempts to expand its case in reply and its failed resistance to an order striking out additional material in its reply. While counsel for the University did not disavow those costs when directly asked about them, he did not seek to cling to them.

I appreciate that the High Court exercised its discretion in awarding those adverse costs, but would intervene to set them aside on the basis that, viewed overall, and notwithstanding its adventitious mistakes, Gelyke Kanse never forfeited its Biowatch shield. Clearly there should be no costs award in this Court.

Order

[51] The following order is made:

1. Leave to appeal is granted.
2. The appeal is dismissed, with no order as to costs in this Court.
3. The costs orders in the High Court are set aside.
4. In their place is substituted:
“There is no order as to costs.”

MOGOENG CJ (Cameron J concurring):

[52] Stellenbosch University felt constrained to revise its 2014 Language Policy in order to keep up with the access to education demands of the times. The central features of its new policy, the 2016 Language Policy, that have engaged us, read in relevant parts:

“7.1.3 For undergraduate modules where it is reasonably practicable and pedagogically sound to have more than one class group:
7.1.3.1 There are separate lectures in Afrikaans and English.
. . .
7.4.1.2 The Afrikaans offering is managed so as to sustain access to [Stellenbosch University] for students who prefer to study in Afrikaans and to further develop Afrikaans as a language of tuition where reasonably practical.”

[53] The words “reasonably practicable” and “access” are not a product of the University’s creativity, but an unmistakable consequence of its set determination not to veer off the dictates of the Constitution in relation to the right to instruction in one’s language of choice. For section 29(2) of our Constitution says:

“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.”

[54] The University had English and Afrikaans as co-equal mediums of instruction for years before the impugned policy-shift came into being. The need for change was subsequently identified. Hence, the 2016 Language Policy that birthed this application. And a question does arise whether the pre-existing position could not perhaps have been maintained as long as some of our people desire to be taught in Afrikaans.

On this, this Court has previously said:

“At a conceptual level, dual medium institutions might well exist without necessarily nurturing or perpetuating unfair advantage or racial discrimination and its exceedingly harmful tendencies. When that is so, then the right to be taught in a language of choice could be effectively accessible and implemented. That, by the way, is what the University did or hoped to achieve when it moved from a dispensation of Afrikaans as the sole medium of instruction to one where English and Afrikaans enjoyed equal status as media of instruction. It did so to facilitate equitable access for the previously excluded who are mostly better acquainted with English so that they too, could utilise this vital public resource for honing in their much-needed skills.”

[55] I reiterate that one of the critical features of the 2016 Language Policy-direction is said to be the need to facilitate access to education for those students who are not proficient in Afrikaans and are predominantly siXhosa-speaking. This is set to be achieved with due regard to the pre-existing entitlement of some students to be taught in Afrikaans.

Additionally, the financial burden that comes with maintaining the two language streams struck the University as being just too onerous to bear. And the reasonable practicability of and effective access to, being taught in a language of choice must, regard being had to considerations of equity, practicability and the need to redress, be counterbalanced with the need to facilitate access to education through any medium even if some might, given a choice, not have preferred it.

[56] On that need to have our institutions of education accessible to all with due regard to the reasonable practicability of receiving education in a language of choice, we also said:

“Educational institutions are also grappling with challenges of access to opportunities to study or enrol for high cost disciplines like medical sciences and engineering where space is very limited. For these reasons, effective access to the right to be instructed in an official language of choice must be given effect to, but without undermining equitable access, preserving exclusivity or perpetuating racial supremacy. It would be unreasonable to wittingly or inadvertently allow some of our people to have unimpeded access to education and success at the expense of others as a direct consequence of a blind pursuit of the enjoyment of the right to education in a language of choice. This, in circumstances where all could properly be educated in one common language.”

[57] That access must of course be addressed with due sensitivity to the reality that students, desirous of being instructed in Afrikaans, would as in this case, have had that choice available to them all along. Taking away that enjoyment or minimising its availability must be permissible only for good reason. That prejudicial step may not be taken lightly, insensitively, maliciously or inconsiderately.

In the belief that parts of section 29(2) of the Constitution, concerning the assertion of the right on the one hand and how to give practical expression to it on the other, are not to be construed disjunctively but conjunctively. We have had occasion to express ourselves in these terms, particularly on the need for “appropriate justification”:

“Reasonableness within the context of section 29(2) demands that equity, practicability and the critical need to undo the damage caused by racial discrimination, also be the intrinsic features of the decision-making process relating to effective access to education in a language of choice. For they are some of the decisive factors to which regard must be had even where ‘a learner already enjoys the benefit of being taught in an official language of choice.’ Inequitable access and the unintended entrenchment or fuelling of racial disharmony would thus be the ‘appropriate justification’ for taking away or diminishing the already existing enjoyment of the right to be taught in one’s mother tongue.”

[58] Although facts may point to how a principle is to be applied to them, facts do not redefine a principle. A principle, particularly one that is constitutional in character, remains fundamentally unaffected by the dissimilarity of facts in different cases. Like the Constitution from which it is sourced, it ought to be applied to all subsequent matters to which it is relevant even if the new facts are different from those of the case in which the principle was first laid down.

For this reason, while the facts in AfriForum CC admittedly had more to do with blunt racial segregation or overtones than here, the principles we enunciated in relation to reasonable practicability, the need for redress and access to education, apply with equal force to this matter.

[59] The understanding and application of reasonable practicability and the need to equitably enhance access to education for all, as they have arisen here, stand to be guided by our articulation of these principles in AfriForum CC. That is what fidelity to precedent demands of us.

[60] I agree with Cameron J that, in effect, it is neither reasonably practicable nor equitable to adhere to the position that was obtained before the 2016 Language Policy came into being. It indeed frustrates access to education by many. In his judgment I concur.

[61] With all that done and dusted, it needs be said that Afrikaans is indeed an African language, our historic pride to be treasured by all citizens. Its existence precedes colonialism. And its subsequent development with the appropriately enriching infusion of terms from Dutch or any other European language and the unjust attempt to impose it on others, do not at all affect its original African DNA.

[62] Our highly challenged fiscus has however, imposed a constraint on us to share all the acutely limited public resources among ourselves as generously as considerations of justice, equity and reconciliation, informed by reasonable practicability, permit us to.

As a result, it is most fitting to appeal particularly to our corporate citizens’ spirit of generosity, to help preserve Afrikaans, and develop other indigenous languages, as essential tools for knowledge impartation and comprehension. And that they can do by deploying resources to the establishment of private institutions of learning envisaged by section 29(3) of the Constitution, which would obviously not be driven by any sinister agenda to discriminate against others on any unconstitutional basis.

[63] None of the dignity-restoring and enhancing aspirational measures laid down in our Constitution should deliberately or inadvertently, be rendered unworthy of the constitutional space they occupy. Plans to enhance the status and promote the use of indigenous languages, in line with section 6 of our Constitution, must thus be developed and kept ready for implementation as soon as the contestation for our scarce resources, by key national priority areas, has ebbed out. Where immediate implementation is reasonably practicable it would arguably serve us well to act. And that process would hopefully extend to the possible recognition and equal development of all spoken languages of the First Nation people.