AfriForum NPC v Chairperson: Council: University of South Africa

The SCA upheld the appeal with costs and declared that the new language policy adopted by Unisa is unconstitutional and set aside the resolution because Unisa failed to prove that the adoption of the new policy in 2016 was constitutionally compliant in that it did not satisfy the factual and normative ‘reasonably practicable’ requirement in s 29(2) of the Constitution. In other words the policy had the effect of detracting from the s 29(2) constitutional right. 

Essence

Even though there may have been a need to revise the language policy the new policy failed to satisfy the reasonably practicable constitutional requirement.

Decision

(SCA 765/2018) [2020] ZASCA 79 (30 June 2020)

Order:

Allowed appeal with costs. See judgment for order.

 

Judges

MAYA P (PETSE DP, LEACH JA AND KOEN AND EKSTEEN AJJA concurring)

Heard: 27 November 2019

Delivered 30 June 2020

Reasons

“While the evidence suggests that there may have been a need for a revision of UNISA’s language policy, it has not been established that the adoption of the new policy in 2016 was conducted in a constitutionally compliant manner, ie that the factual and normative ‘reasonably practicable’ requirement in s 29(2) of the Constitution was satisfied. UNISA failed to discharge the burden that it was not detracting from the right contained in s 29(2) of the Constitution without appropriate justification. This finding, in my view, is dispositive of and dispenses with the need to determine the other issues raised in the appeal.” [para 47]

“[47] Ukushwankathela: Nakuba ubungqina bubonakalisa ingathi kusenokuba ibikho imfuneko yokuba umgaqo-nkqubo wolwimi waseUNISA uhlaziywe, ayikwazanga ukuphuhlisa kakuhle into yokuba ukumiselwa komgaqo-nkqubo omtsha ngo-2016 kwenziwa ngendlela ehambisanayo na noMgaqo-siseko, oko kukuthi, ingaba laa mmiselo uqulethe izinto ezibambekayo nezinto ezalatha umgangatho, lo wokuba makuvavanywe imeko yokuba ‘nokwenzeka ngokulula’, uku-29(2) woMgaqo-siseko, wathotyelwa ngokwanelisayo. IUNISA isilele ukuphuhlisa uxanduva lwayo lokuba ingalisusi okanye ilinciphise ilungelo eliku-s 29(2) woMgaqo-siseko kungekho sizathu sivakalayo. Oku kufumanisa ngoluhlobo ngokwendlela endibona ngayo, kwenza kungabi sabakho mfuneko yokuba sacubungula eminye le imiba ekhankanyiweyo phaya kwisibheno.”

Quotations from judgment

Note: Footnotes omitted and emphasis added

[insert]

Court summary

“Education – university language policy – whether historically English/Afrikaans university’s decision to replace its dual-medium language policy with English-only policy infringed principle of legality and unlawful – held that the university failed to establish that it was not reasonably practicable to continue offering tuition in Afrikaans under s 29(2) of the Constitution – appeal upheld.”