Chairperson of the Council of UNISA v AfriForum NPC

Constitutional Court was concerned with protecting indigenous languages and a fundamental right in section 29(2) of the Constitution and a trilogy of cases on the policy of Afrikaans as a language of teaching and learning. “The source of UNISA’s power to determine language policy is section 27(2) of the Act, which emanates from section 29(2) of the Constitution. UNISA was thus exercising public power when it took the impugned policy decision, and that policy is reviewable under the doctrine of legality. It is now settled that the question whether an official language that has been developed to convey complex scientific and technical concepts and which has been a medium of instruction for many decades could lose its status as a medium of instruction, is a constitutional issue. Furthermore, the history and sensitivity of the choice of a specific language as a medium of instruction, Afrikaans in particular, ordinarily raises a point of law of general public importance.”

Essence

Protecting indigenous languages and constitutional compliance regarding adoption of new language policy in 2016 by Unisa.

Decision

(CCT 135/20) [2021] ZACC 32 (22 September 2021)

Order:

See below for complete order: Leave granted but disallowed appeal in part.

Judges

Majiedt J (Khampepe ADCJ, Jafta J, Madlanga J, Mhlantla J, Pillay AJ, Theron J, Tlaletsi AJ and Tshiqi J concurring)

Heard:       20 May 2021
Delivered: 22 September 2021

Related books

Darcy du Toit et al Labour Relations Law: A Comprehensive Guide 6ed 925 pages (LexisNexis 2015) at

Darcy du Toit et al Labour Law Through The Cases – loose-leaf service updated 6 monthly (LexisNexis 2021)

Van Niekerk and Smit (Managing editors) et al [email protected] 5ed (LexisNexis 2019) at

Myburgh and Bosch Reviews in the Labour Courts 1ed (LexisNexis 2016) at 

Reasons

“[78] To summarise: UNISA patently misconstrued the applicability of the provisions of section 29(2) to it as an organ of state. This resulted in its failure to have regard to the considerations listed in section 29(2) when the impugned decision was taken. UNISA failed to put up evidence in support of its averment that it had taken into account these considerations. In any event, an objective assessment of the factors that UNISA asks this Court to take into account (without UNISA itself having considered them), does not bear out its case that it was not reasonably practicable for UNISA to continue to offer tuition in Afrikaans.

UNISA’s decision in 2016 to adopt the new language policy, and discontinue Afrikaans as a language of learning and teaching, therefore contravened section 29(2) of the Constitution, rendering that decision invalid. The Supreme Court of Appeal was correct in setting aside the 2016 decision to adopt a new language policy. This is dispositive of the case, although the question whether UNISA’s decision complied with procedural requirements will bear some consideration when the remedy is discussed. What then, must be done about UNISA’s failure to comply with section 29(2) since it changed its language policy in 2016?”

Quotations from judgment

Note: Footnotes omitted and emphasis added

Introduction

[1] CJ Langenhoven, the celebrated Afrikaans writer and a fierce activist for the language, described Afrikaans as “our highest honour, our greatest possession, the one and only white man’s language which was made in South Africa”. But another acclaimed Afrikaans writer of more recent times, Jan Rabie, tellingly observed that “we distort history when we present Afrikaans today as increasingly ‘whiter’ than it really is so that it fits our ideology of increasing separation”.

And a giant of Afrikaans literature, Breyten Breytenbach, said in an affidavit in Gelyke Kanse:

“Afrikaans is the living and changing and change-making outcome of diverging and at times conflicting histories. These diverse origins characterised by adaptation, conquest, subjugation, oppression, survival, resistance, transformation – descended from European dialects, Malay, Portuguese, seafarer language, Khoi languages, Arabic Afrikaans, the Qur’an and the Bible, the courts and churches and kitchens and hospitals and vineyards and factories of our country – have made Afrikaans a unique hybridisation that finds unity as a Creole language which is the verbalisation of the complex world in which we move.”

[2] This stark contrast between three white Afrikaans writers of different eras and outlooks bears testimony to the troubled, warped discourse around Afrikaans. Today, “the majority of Afrikaans speakers are black, and it is spoken as a first language by people from multiple ethnic and social backgrounds”.

[3] This case concerns a decision to discontinue Afrikaans as a language of teaching and learning at South Africa’s largest university. It is the latest in a trilogy of cases relating to policy decisions by universities to remove Afrikaans as a medium of teaching and learning.

In the first, University of the Free State, this Court had to decide “whether that university acted consistently with its obligations in terms of section 29(2) of the Constitution in adopting a policy that phases out Afrikaans as a co-equal medium of instruction with English”.

Next, in Gelyke Kanse, the central issue was whether Stellenbosch University’s 2016 language policy that created three language specifications – parallel, dual and single medium, thereby removing the previous dominance of Afrikaans – was an infringement of the right of Afrikaans students to mother tongue education.

And now, in this matter, this Court is asked to determine whether the decision to adopt a new language policy in 2016 by the third applicant, the University of South Africa (UNISA):

(a) passes constitutional muster;
(b) was rational; and
(c) complied with procedural prescripts.

This new language policy aimed to enhance the status of indigenous African languages, while also phasing out Afrikaans and removing the guarantee that courses be offered in both Afrikaans and English.

[4] This Court’s decisions in Gelyke Kanse and University of the Free State do not signal an acceptance that the Afrikaans language must ineluctably be diminished as a language of teaching and learning in our country’s institutions of higher education.

Apart from the fact that each case must be decided on its facts, the role of Afrikaans in our institutions and civic life cannot be reduced to a simplistic narrative of hegemony and decline. We must resist such simplistic narratives, many of which feed on false myths about the origins and development of the Afrikaans language.

[5] With this in mind, before dealing with the present challenge to UNISA’s revised language policy, the true origins and development of Afrikaans bear consideration. This is necessary to correct the false narrative concerning its origins, development and present position in our society.
Afrikaans in proper perspective

[6] Chinua Achebe reminded us that “until the lions have their own historians, the history of the hunt will always glorify the hunter”. And so it is too with the history of the origins and development of the Afrikaans language.

[7] Afrikaans is a creole language that developed during the 19th century under colonialism in South Africa. It is a language that was once spoken by “peasants, the urban proletariat, whatever their ethnic background, and even the middle class of civil servants, traders and teachers”.

[8] Afrikaans is a veritable potpourri of different languages, melded into what has been referred to in this Court as

“one of the cultural treasures of South African national life, widely spoken and deeply implanted, the vehicle of outstanding literature, the bearer of a rich scientific and legal vocabulary and possibly the most creole or ‘rainbow’ of all South African tongues”.

A great injustice is being done to Afrikaans through the contorted hegemonic white history that has been “inculcated by Afrikaner Christian national education, propaganda and the media” and shamefully overlooks its equally important black history.

[9] During the era of Afrikaner nationalism, a time when the language was used as a weapon for ethnic mobilisation, Afrikaans became a cultural symbol of “Afrikanerness” and national unity. Afrikaans was deployed “to secure power in the hands of an exclusive group” and became associated with the “marginalisation” and “exclusion” of “uncivilised” Afrikaans speakers.

[10] There is a compelling argument that “the endeavour to establish Afrikaans as ‘white’ laid the foundation for ‘racist nationalism, the rise of Afrikaner hegemony, and the politics of apartheid’”.

As Willemse explains:

“In the course of the 20th century, Afrikaner nationalism claimed proprietorship of Afrikaans, the first language of persons from divergent backgrounds, to such an extent that a discussion of it also becomes a discussion about the exclusion of a significant percentage of Afrikaans speakers. . . . Historically, [Afrikaans, as a body of knowledge,] bears the traces of conscious disregard and even continued suppression of a considerable portion of the Afrikaans language community.”

[11] The history of Afrikaans is multi-faceted. The establishment and existence of the language cannot be attributed to a single race. Afrikaans speakers were of different languages, races, nationalities, and social classes. This black history teaches us that Afrikaans is more than just the language of “racists, oppressors and unreconstructed nationalists”, but instead that it “bears the imprint of a fierce tradition of anti-imperialism, anti-colonialism, of an all-embracing humanism and anti-apartheid activism”.

[12] Afrikaans evolved mainly from Dutch, Malay, Portuguese, Khoi languages, and Arabic-Afrikaans. When the Dutch colonialists landed at the Cape of Good Hope in 1652 and established a refreshment station there, they were compelled to interact with Southern Africa’s first peoples, the Khoisan, particularly for purposes of trade. Later, probably around the early 1700s, enslaved people from East Africa and East Asia were brought to the Cape as forced labour. The colonisers forced the Khoisan people and the enslaved Eastern people to speak Dutch, thus manifesting the first roots of the Afrikaans language. Afrikaans linguists all agree that the Khoisan and the enslaved people played important roles in the origins and development of Afrikaans – they only differ on whether their roles were pivotal or less substantial.

[13] The Cape Muslim community, that consisted primarily of enslaved people brought to the Cape from the Indonesian archipelago, Bengal, the South Coast of India, Ceylon (now known as Sri Lanka) and the East Coast of Africa (including Madagascar), adopted Afrikaans as their first language during the 1830s.

This form of Afrikaans was presented in Arabic text and was recognised as Arabic Afrikaans. Recently, the role that Arabic played in the development of Afrikaans has been recognised.

[14] Arabic-Afrikaans was predominantly used in religious contexts (the Islamic Cape Muslim community studied the Qur’an that was written in Arabic). One of the first writings in Afrikaans emanated in 1860 from a Cape Town madrasah, where a descendant of enslaved people copied a prayer in his exercise book.

That prayer, in Arabic script, closely resembles modern day Afrikaans. One of the oldest Afrikaans books was authored prior to 1867 by Abubaker Effendi and was titled Bayān al Din. This guidebook to Islam was written in Arabic-Afrikaans, a language that was the bearer of intimate thoughts and religion of the literate Cape Muslim community.

[15] Van Heerden notes that the contribution of Arabic-Afrikaans occurred before the time that Afrikaans was appropriated as a “white” language:

“Before the appropriation of the creole language Afrikaans by ‘patriotic male European colonists’ during the late nineteenth century, ‘men introduced the creole language into the public sphere’ via ‘[t]he first book in Afrikaans . . . written by an imam, a slave descendant’. However, ‘[slave] owners would later adopt [Afrikaans]. . . and call it their own’.”

Further, Van Heerden notes that:

“The literature first also came from the black community. If we go back to the early Muslim scholars in the Cape, the teachers, who taught at the madrassas. This is where Afrikaans, written with Arabic script, first emerged. It’s long before the Bible. The Bible is translated in the second decade of the 1900s. We’re talking now about the last decade of the 1700s, and the first two decades of the 1800s, is where Islamic scholars, teachers, are teaching the children in Afrikaans, in phonetic Afrikaans, using Arabic script.”

[16] By 1870, the mixture of languages in the Cape was recognised as a distinct language – Afrikaans. It is reported that by the end of the 19th century, Afrikaans, as a written medium, experienced a decline. As a spoken language, it suffered against the dominance of English and Dutch.

Following the South African War of 1899 1902 (Anglo-Boer War), Britain colonised the remainder of South Africa (the Orange Free State and Transvaal were Afrikaner Republics with Dutch as the official language), and English was introduced as the official language. In 1909, Dutch and English were recognised by the South Africa Act as languages of equal force.

The struggle to replace Dutch with Afrikaans ensued in the 20th century. At the forefront was an obscure attorney and poet who contributed immensely to the development of Afrikaans literature and cultural history, CJ Langenhoven, referred to earlier.

However, as Giliomee notes, Langenhoven erred grievously when he described Afrikaans as a “white man’s language”.

[17] During the twentieth century, activists of Afrikaans used the National Party (NP) as its vehicle to drive their cause. Most activists, like Langenhoven, chose to fight the battle for Afrikaans under the “white” flag and they established a racial community whose struggle for the advancement of Afrikaans was subordinate to the entrenchment of white supremacy, instead of forming a language community whose social identity was shaped by the struggle for the acceptance of Afrikaans as a public language enjoying similar status as English.

Giliomee considered the consequences of this thinking, stating as follows:

“[T]he salience of race had to diminish and the creed ‘Die taal is gans die volk’ (the language constitutes the entire people), which activists often cited, had to be made a reality across racial boundaries.”

[18] The NP pursued a racially motivated agenda that eventually led to the “historic exclusivity of the Afrikaners, their culture and their language” and the stance against Afrikaans by the black citizens of our country. Afrikaans became the language of the oppressor: “the medium used when white policemen arrested [b]lack pass offenders or when white civil servants ordered [black people] or ‘coloured’ people out of their houses in racially mixed slum areas”. Afrikaans was forced upon the black community who strongly resisted and, sadly, the exclusive “white” history replaced the forgotten “black” history of our language.

[19] It bears emphasis that, to simplistically style Afrikaans as having a one-dimensional history and existence as “the language of the whites”, and as “the language of the oppressor”, is entirely misconceived and flies in the face of the true history of its origins and development sketched above.

As Valley and Valley explain:

“[W]hile [b]lack students in Soweto were protesting against the use of Afrikaans as the language of instruction, Afrikaans-speaking ‘coloured’ youth joined in the fight against the government, and used their Afrikaans to mobilise communities to fight against the injustices of the day. Members of the UDF, Ashley Kriel, Allan Boesak and Cheryl Carolus come to mind as some of the youth who were at the forefront of resistance politics in Cape Town in the 1970s and ’80s.”

[20] Afrikaans was undeniably employed as a tool of oppression – it is part of our very painful past.

As Gasnolar emphasises: “Afrikaans has a painful history in our country, and was used by the apartheid regime to degrade millions, and that past cannot simply be ignored.”

But its history is far more multifaceted and nuanced than that. Valkhoff explains that “[i]t is not always either one thing or another in the evolution of such a delicate social phenomenon as speech or language”.

And as Roberge rightly concludes:

“In the history of Afrikaans it was not always Dutch or substratum grammar, but three linguistic traditions – European, African (Khoikhoi), and Asian – that have met and converged with one another to produce a new whole that is truly more than the sum of its parts.”

[21] While Afrikaans originated out of oppression and continued to be a tool of oppression, its subsequent development into a heterogeneous, “rainbow” language, spoken today by more black people than white people, is a marvellous paradox of human ingenuity and creativity. Recognising the major role played by lowly indigenous peoples and enslaved people in its history and development is crucial.

The misconception that it is “the language of whites” and “the language of the oppressor” is an iniquitous portrayal of the language and its true roots. It bears repetition that today, Afrikaans is spoken predominantly by black people. And it is spoken by black people in not only so-called “coloured” townships, but also in many African townships in several regions in this country. It is the language of prince and pauper alike, existing comfortably in academia and the professions on the one hand, and in every-day parlance on the other.

[22] It is apt to follow the example of Froneman J in University of the Free State, by borrowing from the world-renowned South African-born fantasy novelist JRR Tolkien, who pointed out that

“it is necessary ‘to distinguish, as far as that is possible, between languages as such and their speakers’ and to remember that languages ‘are not hostile one to another’”.
And that it is only when “men are hostile [that] the language of their enemies may share their hatred”.

In our country, English has become the mainstream language of choice through necessity in virtually all spheres of everyday life, including commerce, law, culture and education. That is so, despite its colonial heritage. Universities as intellectual hubs of transformative constitutionalism must lead the charge for the decolonisation of language.

The only way to achieve that is to ensure that all indigenous languages are progressively introduced as languages of teaching and learning, within the means reasonably available.

In Gelyke Kanse, this Court recognised that “[e]ndorsing the University’s 2016 Language Policy as conforming with section 29(2) comes at a cost. Our judgment must acknowledge it.”

This Court also cautioned that the “flood tide of English” is a real threat to minority languages, including Afrikaans. The cost and threat in this context were comprehensively articulated by Froneman J in his separate concurrence in that matter and need not be repeated. There, and also in University of the Free State, he rightly bemoaned the dominance of English over other indigenous languages, including Afrikaans.

[23] To conclude under this rubric: the disturbing tendency of the one-dimensional portrayal of Afrikaans as a “white language”, and as “the language of the oppressor”, is manifestly misconceived, as I have attempted to show. Afrikaans speakers must accept, however, that their language now enjoys equal status with the other ten official languages. Afrikaans cannot continue to enjoy its privileged position to the exclusion of the other indigenous languages, which were so terribly neglected under apartheid.

That said, it is imperative to dispute its one-dimensional, skewed hegemonic white history by asserting that Afrikaans constitutes heterogeneity. We must remain mindful of Chinua Achebe’s perspective of history that “until the lions have their own historians, the history of the hunt will always glorify the hunter”.

In the present context in particular:

“[W]e still have to recognise the multi-faceted nature of the Afrikaans speaking community, the numerical dominance of its black speakers, and the need to advance Afrikaans in a multilingual, all inclusive antiracist environment, as an example and as part of the development and intellectualisation of African languages. We also have to recognise that Afrikaans is at the core of many fellow South Africans’ sense of identity, and they are not necessarily white.”

[24] Let us turn, then, to the question at the heart of this matter, which is whether UNISA’s revised language policy, which reduces the extent of teaching and learning in Afrikaans, passes constitutional muster.

Background

[25] 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. UNISA was established in 1959 and it offered tuition in both Afrikaans and English. It emerged from the University of the Cape of Good Hope, which was established in 1873. Upon its establishment, UNISA was incorporated into a distance-learning university. In 2004 it merged with two other major distance-learning institutions, Technikon SA and Vista University.

[26] At the outset, it is useful to expound UNISA’s 2006 language policy. The stated objective of the 2006 language policy was to inform “the use of language in all aspects of communication of the University, i.e. tuition, public, internal and external communication”.

It promised, amongst other things, that UNISA would make tuition available in the official languages of South Africa on the basis of functional multilingualism. While English and Afrikaans could operate as higher education level languages, UNISA would pro-actively support African languages with a view to them becoming the medium of instruction at higher education level.

That 2006 language policy was revised in 2010. According to UNISA, this need for revision stemmed from a natural attrition of the demand for Afrikaans, a desire for equality between Afrikaans and other African languages as support, rather than as languages of teaching and learning, and students’ preference to study in English.

Consequently, after 2010, teaching and learning at UNISA was delivered in terms of a revised language policy that envisaged the promotion and advancement of multilingualism, whilst retaining Afrikaans and English as languages of teaching and learning.

[27] In 2012, UNISA introduced the “Guidelines for the Discontinuation of Afrikaans in Certain Modules” (the Guidelines). The Guidelines operated together with the revised 2010 policy. In terms of the Guidelines, all undergraduate modules were grouped into one of three categories.

These were:

(a) Fully bilingual, English and Afrikaans, for tuition in any module that has consistently not had fewer than 100 Afrikaans students in the last three years;
(b) Mixed mode delivery in terms of which all modules that have consistently had, over the last three years, between 15 and 100 Afrikaans students in every registration period, would automatically discontinue formal tuition and printed study material in Afrikaans; and
(c) English-only modules that consistently over the previous three years have had less than 15 Afrikaans students in every registration period, may discontinue tuition in Afrikaans, provided the Senate Language Committee (SLC), which was established by the Senate to review UNISA’s language policy and, thereafter, make recommendations to the Senate, is informed accordingly.

Departments would have the option to continue tuition in Afrikaans in these modules, but may only make study materials available on a digital platform. Examination papers for these modules would be in English, but with an option to have Afrikaans papers so that students would be able to read the examination papers in Afrikaans and to answer them in that language.

[28] After a comprehensive review process, commencing in 2013, a draft language policy and its implementation plan, providing for only English as a language of teaching and learning, was formulated in 2014. Several meetings followed during the ensuing two years, in which UNISA’s SLC, Senate and Council deliberated extensively on the draft language policy. Acting in terms of section 27(2) of the Higher Education Act (the Act), UNISA’s Senate (whose Chairperson is the second applicant) and Council (whose Chairperson is the first applicant) decided to adopt this revised language policy on 30 March 2016 and 28 April 2016 respectively (the impugned decision).

[29] Section 27(2) of the Act 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. The relevant policy framework for present purposes is the Language Policy for Higher Education (the National Language Policy), established by the Ministry of Education in November 2002.

The stated objective of UNISA’s revised language policy was to institute measures to enhance the status of indigenous African languages, while also phasing out Afrikaans and thereby removing the guarantee that courses be offered in both Afrikaans and English. In effect, English became the sole medium of tuition and learning. All formal course materials, assignments and examinations were available in English only.

Litigation History

High Court

[30] The respondent, AfriForum NPC (AfriForum), launched an application in the High Court of South Africa, Gauteng Division, Pretoria, to review and set aside the language policy because of procedural irregularities and the policy’s inconsistency with section 29(2) of the Constitution, and to interdict the implementation of the policy pending that review application.

AfriForum challenged the legality and rationality of the language policy. It also argued that it is not consistent with section 29(2) of the Constitution, as it does not accommodate Afrikaans students’ desire to be taught in the language of their choice, even though it is reasonably practicable to do so.

[31] The review application was partly based on the Promotion of Administrative Justice Act (PAJA), on the assumption that the impugned decision constituted administrative action. However, after the institution of the review application, it was held by this Court in University of the Free State that the language policy decision taken in that instance by the University of the Free State did not constitute administrative action within the meaning of PAJA. AfriForum then abandoned its reliance on PAJA, but it persisted with its challenge on the principle of legality. That challenge failed in the High Court.

[32] The High Court noted that the constitutional right to receive an education in the language of one’s choice is qualified as “tuition in the language of choice must be ‘where that education is reasonably practicable’”. Given the declining demand for Afrikaans, together with the need for resources to develop the academic status of other official languages, the High Court found that UNISA was justified, because of considerations of equity, practicability, and the need to redress the results of past racially discriminatory practices, to discontinue the use of Afrikaans as a language of teaching and learning. There was thus no violation of the section 29(2) right.

[33] On rationality, the High Court held that the language policy was rationally connected to UNISA’s powers in terms of section 27(2) of the Act and the National Language Policy. The High Court noted that, while the National Language Policy in general supports the retention of Afrikaans as a language of academia and science, this does not prohibit the adoption of policies that remove Afrikaans.

In respect of legality, the High Court dismissed AfriForum’s submissions that certain procedures provided for in the rules of the Senate had not been complied with and that these procedural irregularities rendered the decision invalid. While certain specific rules were not complied with – specifically, no formal vote had occurred and information was distributed to members later, outside the official timeframe – the Senate had followed the rules it created for itself by convention, which allowed for flexibility.

In addition, the High Court held that AfriForum could not rely on Albutt as the basis for its procedural challenge, because that case did not give rise to a general principle that public consultations must occur whenever institutions determine policy. The High Court consequently dismissed the review application.

Supreme Court of Appeal

[34] With the leave of the High Court, AfriForum successfully appealed to the Supreme Court of Appeal. That Court, relying on Ermelo, emphasised that in an instance where a student 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 had failed to do so.

In addition, the Supreme Court of Appeal held that the justification offered by UNISA, based on the availability of resources, was unconvincing in light of the normative content of section 29(2) of the Constitution. The Court emphasised that compliance with section 29(2) goes “beyond the availability of resources”.

[35] As for the considerations of equity that are central to the determination of reasonable practicability, the Supreme Court of Appeal held that the facts of the matter are distinguishable from those in University of the Free State and Gelyke Kanse.

UNISA is a distance-learning university, so there was no threat of Afrikaans creating segregated classes or fostering racial supremacy, the Court reasoned. Ultimately, the Supreme Court of Appeal 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 appropriate justification.

The Supreme Court of Appeal declared the adopted language policy unconstitutional and unlawful and set it aside. It ordered UNISA to reinstate Afrikaans modules that have been discontinued pursuant to the adoption of the language policy.

[36] In upholding the appeal with costs, the Supreme Court of Appeal issued the following order:

“The order of the court a quo is set aside and replaced with the following:
(a) the resolutions of the Council and Senate of the University of South Africa to approve a new language policy on 28 April and 30 March 2016, respectively, are set aside;
(b) the new language policy adopted by the University of South Africa is declared unconstitutional and unlawful and is set aside to the extent that Afrikaans has been removed as a language of learning and tuition;
(c) the University of South Africa shall prominently publish on its website and in three major Afrikaans newspapers in South Africa and transmit by email to all its students a notice:
(i) containing a full list of the modules that were on offer in Afrikaans as at 28 April 2016;
(ii) offering all prospective students for the next academic year admission in such modules as presented on first year level;
(iii) offering all existing students, if they were enrolled in any one of those courses or would have enrolled for the subsequent year course available in Afrikaans, but had perforce to follow the module in English, a choice to enrol on the basis that they may follow the module in Afrikaans until completion of their studies;
(iv) all the modules mentioned above will be presented in full in the following academic years until the language policy has been lawfully amended, if at all.”

In this Court

[37] UNISA argues that the Supreme Court of Appeal erred in concluding that the information that was before the Senate and Council was not sufficient to comply with the reasonable practicability requirement. This is so because, as set out in Gelyke Kanse, the constitutional criterion of reasonable practicability under section 29(2) is objective. UNISA contends that the continued provision of Afrikaans language modules at UNISA is not reasonably practicable. That is due to the low and dwindling demand for courses in Afrikaans, and the need for equity in language policy so that past imbalances may be redressed. UNISA also invokes the substantial attendant costs and language demographics.

[38] UNISA points to the following shortcomings in the reasoning of the Supreme Court of Appeal:

(a) It failed to appreciate the objective nature of the test under section 29(2), manifested by its conclusion that UNISA made a mistake of law in its interpretation of the right in section 29(2).
(b) It took issue with UNISA’s attempts to rely on evidence that had not served before the Senate or Council.
(c) It erred in departing from the Plascon-Evans rule in respect of the facts upon which the objective test was to be applied.
(d) It erred in accepting AfriForum’s argument on cost containment that study materials could be provided online and that English modules could cross subsidise Afrikaans modules.

[39] It is forcefully contended on behalf of UNISA that in applying an objective test, there is no concern with how the decision-maker understood her discretion, what her subjective reasons were for the decision, or what did or did not serve before her when making the decision. All that matters is whether that decision is justified on the facts before the Court.

In support of this proposition, UNISA cites Pharmaceutical Manufacturers.

UNISA contends that, in determining the objective facts, a court applies the ordinarily applicable evidentiary rules. In motion proceedings, that entails applying the so-called Plascon-Evans test.

[40] UNISA denies that its decisions were irrational, contending that it did not “remove”, “abolish”, “eradicate”, “abandon” or “do away with” Afrikaans tuition. Instead, the new language policy preferred English as the language of teaching and learning, whilst placing Afrikaans on the same footing as the other official languages. Tuition in Afrikaans and the other official languages was being offered where there is capacity, with learner support in the student’s language, and with the intent that Afrikaans’ development as well as that of the other official languages should be promoted. This, UNISA points out, is best reflected in clause 4.2.3 of the new language policy, which provides:

“Where there is capacity, a selected number of modules and programmes will progressively be offered in more than one official South African language in order to support relevant national policies.”

It contends that this provision moves the university’s new language policy into a “realm of genuine multilingualism”. Whereas the previous language policy entrenched English and Afrikaans whilst paying lip service to developing other African languages, the new language policy enables UNISA to offer courses in African languages as well as in Afrikaans.

[41] On remedy, UNISA points to the practical difficulties of reinstating modules that have been discontinued for four years, which will require extensive resources without any guarantee that any, or a substantial number of, students will register for the modules.

In addition, the reinstatement of the modules would be the same as introducing the modules afresh in Afrikaans, so that equity would require that the modules be offered in the nine other official languages as well.

UNISA therefore challenges the orders granted by the Supreme Court of Appeal. It submits that the appropriate remedy would rather have been to suspend any order of invalidity of the decisions adopting the new language policy, so as to enable UNISA to consider what changes to make to the policy. In the event of this Court dismissing its appeal, UNISA requests that the order of invalidity be suspended until the beginning of the 2023 academic year, to enable it to implement an order properly, or to amend its language policy in a constitutionally compliant manner.

[42] AfriForum argues that section 29(2) requires UNISA, as an organ of state, to consider all reasonable alternatives and to take into account equity, practicability and the need to redress the injustices of the past. UNISA did not do this and has contended that this is an obligation borne by the state, not itself.

Nor did UNISA present any evidence to show that formal tuition in Afrikaans would detract from the development of tuition in any other languages, or conduct a study on the demand for Afrikaans courses. AfriForum argues that the statistics which UNISA does present should be rejected, as they are not accurate. On the question of equity, it argues that UNISA failed to show that it would not be able to offer the benefits of the new language policy to students whose first language is neither English nor Afrikaans, while retaining Afrikaans as a language of teaching and learning.

[43] AfriForum submits that UNISA bears the “negative burden” of establishing “appropriate justification” for why the right to receive education in the language of one’s choice should be abrogated. The justification must address the criterion of “reasonable practicability” referred to in section 29(2), and UNISA has failed to do so. In addition, UNISA did not consult with affected students before deciding to implement the language policy, and the Senate’s decision to approve the language policy did not comply with the procedural requirements of section 27(2) of the Act.

[44] In the alternative, AfriForum argues that UNISA’s decision was irrational and not authorised by law. On rationality, it argues that the Senate and Council failed to have regard to relevant considerations and to consult persons who would be most directly affected by the decisions. In respect of legality, AfriForum argues that the Senate did not comply with its own rules.

And on remedy, it submits that the order of the Supreme Court of Appeal is just and equitable. That order does not mean that UNISA is required to reinstate Afrikaans modules that had already been discontinued under the Guidelines at the time when the new policy was adopted. There is accordingly no merit in UNISA’s contention that the order goes further than reinstating the status quo ante as at 28 April 2016.

Jurisdiction and leave to appeal

[45] This matter concerns a fundamental right in section 29(2) of the Constitution and, as stated, it is the latest in a trilogy of cases on the policy of Afrikaans as a language of teaching and learning. The source of UNISA’s power to determine language policy is section 27(2) of the Act, which emanates from section 29(2) of the Constitution. UNISA was thus exercising public power when it took the impugned policy decision, and that policy is reviewable under the doctrine of legality.

It is now settled that the question whether an official language that has been developed to convey complex scientific and technical concepts and which has been a medium of instruction for many decades could lose its status as a medium of instruction, is a constitutional issue. Furthermore, the history and sensitivity of the choice of a specific language as a medium of instruction, Afrikaans in particular, ordinarily raises a point of law of general public importance.

[46] Like University of the Free State and Gelyke Kanse, the issues here engage our jurisdiction and it is in the interests of justice to hear the matter. Leave should therefore be granted.

Section 29(2) of the Constitution

[47] Having examined the socio-political space occupied by Afrikaans, we must turn our attention to its position in the law.

Section 29(2) of the Constitution provides:

“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”.

[48] The section, which consists of “two distinct but mutually reinforcing parts”, entrenches a qualified right to be taught in a preferred official language at a public institution of learning. The qualification is one of reasonable practicability, that consists of both factual and normative components.

Factually, the question of practicability, relates to resource constraints and the feasibility of adopting a particular language policy. The normative aspect concerns the legal standard of reasonableness, to be tested against constitutional norms which include equity, the need for redress of past discriminatory laws and practices, and non-racialism.

[49] With reference to Ermelo, this Court described the process of establishing what “reasonable practicability” entails as follows:

“After the words ‘where that education is reasonably practicable’ in section 29(2) follow factors to be considered in an endeavour to give effect to ‘the right to receive education in the official language or languages of their choice’. This subsection insists on ‘all reasonable educational alternatives’ being explored. To avoid lip service to this fundamental right, concrete albeit broad options are alluded to for ‘effective access’ to it or its possible practical enjoyment . . . section 29(2) requires ‘(a) equity; (b) practicability; and (c) the need to redress the results of past racially discriminatory laws and practices’, to feature prominently in exploring the possibility of offering education in an official language of choice. They relate to equality, responsiveness and non racialism. And all reasonable educational alternatives must be investigated within this context and with this purpose high on the list of instructive factors.”

[50] The right to education in a language of one’s choice is entrenched in section 29(2), circumscribed only by appropriateness and reasonableness. In that respect, it is aligned with international instruments.

In University of the Free State, this Court expounded:

“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.”

[51] A key consideration is equity, which is an aspect that is emphasised by UNISA in this Court. UNISA stresses that there is a need for equity in language policy so that past imbalances may be redressed. In addition, it points out that English is accepted locally and internationally as a preferred medium of communication, business and teaching.

This Court elaborated on the principle of equity in University of the Free State:

“Where the enjoyment of the right to be instructed in an official language of choice is achievable without undermining any constitutional aspiration or value, then the equity test might well have been met. The challenge could however arise when scarce resources are deployed to cater for a negligible number of students, affording them close, personal and very advantageous attention while other students are crowded into lecture rooms. Where access, integration and racial harmony are imperilled by giving effect to the right to be educated in an official language of choice, then the criterion of reasonable practicability would not have been met. . . .

Reasonable practicability therefore requires not only that the practicability test be met, but also that considerations of reasonableness that extend to equity and the need to cure the ills of our shameful apartheid past, be appropriately accommodated. And that is achievable only if the exercise of the right to be taught in a language of choice does not pose a threat to racial harmony or inadvertently nurture racial supremacy. That goes to practicability. The question then is, has the use of Afrikaans as a medium of instruction at the University had a comfortable co-existence with our collective aspiration to heal the divisions of the past or has it impeded the prospects of our unity in our diversity?”

Did UNISA comply with the prescripts of section 29(2)?

[52] Section 29(2) consists of two parts:

(a) first, it confers a right to receive education in the official language of one’s choice at a public institution, subject only to the qualification that such education “is reasonably practicable”;
(b) secondly, it imposes an obligation for the state to “consider all reasonable educational alternatives”, taking into account the considerations listed in paragraphs (a), (b) and (c), “in order to ensure the effective access to, and implementation of” the right.

[53] It is plain from this Court’s jurisprudence that “reasonably practicable” envisages something that is reasonably capable of being done. In respect of the obligation on the state, UNISA adopted the startling position in Prof Moche’s supplementary affidavit, that “as opposed to the [s]tate, UNISA is not liable to ensure the effective access to, and implementation of, the right concerned in the Republic”. UNISA maintained this position throughout, until the litigation reached this Court. This is a fundamental misconception. UNISA is an organ of state.

In Harrielall this Court held:

“[I]t cannot be gainsaid that the University is an organ of [s]tate. It is a public institution through which the [s]tate discharges its constitutional obligation to make access to further education realisable.”

[54] As an organ of state, UNISA is therefore obliged in terms of section 29(2) to

“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”.

[55] UNISA was constrained to advance facts on affidavit to justify the decision it took 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.

This point was emphatically made by this Court in Gelyke Kanse:

“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.” (Emphasis added.)

[56] When UNISA’s decision to abandon Afrikaans as a language of teaching and learning is tested against objective considerations of reasonableness encapsulated in section 29(2), there must be some evidence of how it, as an organ of state, went about applying its mind. The decision must, after all, comply with the prescripts of that section, which specifically calls for an evaluation of whether the state (in this case, UNISA) did in fact “consider all reasonable educational alternatives”, taking into account the considerations listed in paragraphs (a), (b) and (c).

UNISA cannot simply say that a decision was taken, regardless of how it was taken and without advancing any version of what was considered, and then leave it to this Court to test its objective reasonableness. That would be tantamount to a complete abdication of its constitutional obligations.

As Gelyke Kanse makes plain, there must be facts advanced to justify UNISA’s decision, for the Court to assess whether that decision passes muster.

[57] It is unsurprising, given its fallacious stance in its papers in respect of these obligations, that UNISA singularly failed to adduce any evidence that it had regard to the considerations listed in section 29(2) at the time when the impugned decision was made.

In respect of the justification of its decision and compliance with section 29(2), there is no evidence put up by UNISA that bears scrutiny. It is plain that neither the Senate, nor the Council, had regard to information relevant to any assessment of reasonable practicability.

This includes information regarding:

(a) what the demand for teaching and learning in Afrikaans at UNISA was;
(b) how many students requested tuition in Afrikaans;
(c) what financial and human resources were required to continue with teaching and learning in Afrikaans in order to meet that demand; and
(d) the extent to which UNISA did in fact have such resources, or put differently, the extent to which it was commercially feasible for UNISA to continue with tuition and learning in Afrikaans.

[58] It was incumbent upon UNISA to provide appropriate justification for the decision it took to change its language policy that had an adverse effect on the rights of Afrikaans students to receive tuition in their language of choice. The principles outlined in section 29(2) were not explicitly considered in the final meetings of the SLC, the Senate and the Council, which culminated in the adoption of the new language policy.

“Reasonable practicability” as a concept and factors associated with it do not feature anywhere in the deliberations of those entities, and are not mentioned at all in the impugned decision or in UNISA’s reasons for the decision.

[59] UNISA’s reliance on Pharmaceutical Manufacturers is fallacious.

The passage cited does not bear out UNISA’s contentions that

“there is no concern with how the decision maker understood her discretion, what her subjective reasons were for the decision and what did or did not serve before her when making the decision. All that matters is whether that decision is justified on the facts before the Court.”

These submissions, it will be recalled, relate to the objective approach to the reasonable practicability criterion in section 29(2). But that is not what was decided in Pharmaceutical Manufacturers.

That case concerned the question whether a court has the power to review and set aside a decision by the President to bring into force the South African Medicines and Medical Devices Regulatory Authority Act.

That decision was challenged on the basis that bringing the Act into operation was premature, since the regulations necessary to give effect to other provisions of the Act were not made. It was also alleged that the Government Notice purporting to publish the schedules was invalid. The applicants consequently sought an order declaring invalid the Proclamation purportedly bringing the Act into operation and the Government Notice.

[60] Having become common cause, or at least not seriously disputed on the papers, that, viewed objectively, the decision to bring the Act into force before the regulatory framework was in place, was made in error, this Court held:

“The President’s decision to bring the Act into operation in such circumstances cannot be found to be objectively rational on any basis whatsoever. The fact that the President mistakenly believed that it was appropriate to bring the Act into force, and acted in good faith in doing so, does not put the matter beyond the reach of the Court’s powers of review. What the Constitution requires is that public power vested in the Executive and other functionaries be exercised in an objectively rational manner. This the President manifestly, though through no fault of his own, failed to do.

Rationality in this sense is a minimum threshold requirement applicable to the exercise of all public power by members of the Executive and other functionaries. Action that fails to pass this threshold is inconsistent with the requirements of our Constitution, and therefore unlawful. The setting of this standard does not mean that the courts can or should substitute their opinions as to what is appropriate, for the opinions of those in whom the power has been vested. As long as the purpose sought to be achieved by the exercise of public power is within the authority of the functionary, and as long as the functionary’s decision, viewed objectively, is rational, a court cannot interfere with the decision simply because it disagrees with it, or considers that the power was exercised inappropriately.

A decision that is objectively irrational is likely to be made only rarely but if this does occur, a court has the power to intervene and set aside the irrational decision. This is such a case. Indeed, no rational basis for the decision was suggested. On the contrary, the President himself approached the court urgently, with the support of the Minister of Health and the professional associations most directly affected by the Act, contending that a fundamental error had been made, and that the entire regulatory structure relating to medicines and the control of medicines had as a result been rendered unworkable. In such circumstances, it would be strange indeed if a court did not have the power to set aside a decision that is so clearly irrational.”

[61] That dictum pertains to the proper approach to a review based on rationality and the power of a court to set aside irrational decisions. It does not support UNISA’s approach for at least two reasons.

  • The first is that the comments made by this Court in Pharmaceutical Manufacturers must be read alongside this Court’s decision in Simelane, which confirmed that a decision will be irrational if the decision-maker ignores relevant considerations and thus arrives at a decision by way of an irrational decision-making process. So, insofar as the rationality leg of AfriForum’s review is concerned, the process by which UNISA arrived at its decision is relevant.
  • The second difficulty with UNISA’s reliance on Pharmaceutical Manufacturers is that section 29(2) in its own terms expressly provides that the “state” (in this case, UNISA)—“must consider all reasonable educational alternatives . . . taking into account—

(a) equity
(b) practicability; and
(c) the need to redress the results of past racially discriminatory laws and practices.”

UNISA’s suggestion that this Court should completely ignore the fact that UNISA did not consider reasonable practicability when taking its decision to revise the language policy would fly in the face of the language of section 29(2) itself. UNISA’s submissions in this regard are therefore devoid of merit and the passages cited are misconceived.

[62] In any event, an objective consideration ex post facto bears out the soundness of the Supreme Court of Appeal’s findings against UNISA. That Court correctly held that the present situation is distinguishable from the Gelyke Kanse and University of the Free State scenarios, because UNISA is uniquely a distance learning institution.

University of the Free State concerned parallel-medium education that had led to racial segregation in the lecture rooms. The University of the Free State changed its own language policy because “the use of Afrikaans . . . unintentionally [became] a facilitator of ethnic or cultural separation and racial tension” in the lecture rooms.

In other words, “the use of Afrikaans as a parallel language of instruction unwittingly perpetuate[d] segregation and racism”. .

By contrast, there is no prospect that the continuation of Afrikaans as a language of teaching and learning at UNISA would constitute a threat to racial harmony, precisely because at UNISA there is no tuition in lecture rooms. There can thus be no apprehension of the kind of racial segregation that arose at the University of the Free State – although this conclusion is subject to the qualification I make shortly.

[63] In Gelyke Kanse, the previous language policy created an exclusionary hurdle, specifically for black students studying at the University of Stellenbosch. The policy made black students who were not conversant in Afrikaans feel marginalised, because they could not understand the lectures presented in Afrikaans.

They felt stigmatised by real time interpretation during lectures and these students felt excluded from other aspects of campus life, including residence meetings and official university events. This Court identified that the previous language policy in that case created a barrier along racial lines to full access to the university’s learning and other opportunities.

In the present instance, however, there is no suggestion that Afrikaans tuition will stigmatise students or prevent students who study in English from full access to UNISA’s learning and other opportunities. Again, there is no spectre of possible marginalisation, stigmatisation or exclusion, since there is no teaching that occurs in lecture rooms. As an aside, it is noteworthy that, as was the case in University of the Free State, here Afrikaans is being abolished completely as a language of teaching and learning. That was not the case in Gelyke Kanse, where the university in question opted for dual medium tuition.

[64] It nonetheless bears recognition that it is conceivable that a language policy could affect racial tensions even in the context of distance-learning, as in the case of UNISA. It would be remiss not to acknowledge the justified resentment that may be felt by many students if their university adopts a language policy that caters for only one indigenous language.

There is much to be said for the assertion that, in the context of South Africa’s controversial history of education and languages of learning, the language policy choice of any institution of learning does matter. University of the Free State rightly emphasised “the obligation of white Afrikaans speakers to ensure that their desire to protect their language does not disadvantage others”.

[65] An objective assessment of the other issues that UNISA asks this Court to consider (without UNISA itself having considered them) also do not bear scrutiny. These are considerations of cost, demographics, a “dwindling demand” for Afrikaans tuition, and equity. The evidence simply does not support the various contentions advanced in respect of these aspects and the Supreme Court of Appeal’s findings against UNISA in this regard are unassailable. It is not necessary to conduct a detailed analysis of this evidence, as the decision in this matter does not turn on the evidence. A brief synopsis of the shortcomings will suffice.

UNISA’s purported justification of the impugned decision

Equity

[66] First, there are the equity considerations. As the central normative justification, UNISA asserts that it is inequitable to continue privileging Afrikaans as a language of teaching and learning at the expense of the development of African languages.

But, there is an utter dearth of evidence to show that it is tuition in Afrikaans that has prevented the development of African languages as languages of higher education. There is no evidence that the discontinuation of the one (Afrikaans tuition) is essential for the enablement of offering tuition in the other official languages, other than English.

Put differently, there is nothing on record that precludes UNISA from offering the benefits of its new language policy to students whose first language is neither English nor Afrikaans, even if Afrikaans were to be retained as a language of teaching and learning.

After all, the question is not whether it is reasonably practicable for UNISA to offer tuition in all eleven official languages in all its modules. What must be determined instead, is whether it is reasonably practicable to offer particular modules in particular languages where a demand exists for those modules in those languages.

Since all official languages are not spoken by the same proportion of students, it may be reasonably practicable to offer tuition in some official languages but not in others.

[67] Equity considerations may well be met through dual medium tuition, as existed at UNISA.

As this Court explicated in University of the Free State:

“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. . . . Where the enjoyment of the right to be instructed in an official language of choice is achievable without undermining any constitutional aspiration or value, then the equity test might well have been met.”

Cost

[68] UNISA also cited cost as a consideration for why it is not reasonably practicable to continue with Afrikaans as a language of learning and tuition. It contends that the monetary savings that could be generated by using English only could be spent on developing the other official languages. Cost is a legitimate consideration in this enquiry.

But, crucially, this aspect was not discussed at all at meetings of the SLC, Senate or Council. There is no indication at all that UNISA ever assessed the commercial viability of approximately 300 modules offered in Afrikaans as compared to the commercial viability of the total of approximately 2 300 modules offered in English. Nowhere in the papers is there any evidence of these cost considerations by the SLC, Senate or Council.

[69] Cross-subsidisation of the low demand modules by high demand modules was not considered at all. Instead, in this Court, UNISA vigorously contends that “to demand that a post-apartheid university continues to subsidise the beneficiaries of historical racial privilege at the expense of the broader student population” would be “fundamentally at odds with the ethos of our Constitution”.

  • Firstly, that contention represents a skewed reflection of Afrikaans speakers in this country, an aspect that has been extensively addressed earlier in this judgment.
  • Secondly, it is a bald assertion without any substantiating evidence. It stands in stark contrast to the type of evidence adduced in Gelyke Kanse where a “careful study” conducted by the University of Stellenbosch, demonstrated that tuition in Afrikaans detracts from the development of the other official African languages as languages of higher education and was therefore not reasonably practicable.
  • And thirdly, it is utterly insensitive to our constitutional commitment to build “a historic bridge between the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice and a future founded on the recognition of human rights, democracy and peaceful co existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex”.

[70] Many of the contentions advanced in UNISA’s written submissions in this Court are not supported by any evidence on the record. Some of these contentions are:

(a) that there is hardly any demand for the teaching of Life Sciences modules in Afrikaans;
(b) that UNISA will incur substantial cost when translating all tuition material from English to Afrikaans; and
(c) that there is no capacity for the reconfiguration of its online learning and teaching environment to duplicate sites, so that there are both English and Afrikaans sites available in modules where Afrikaans online tuition has been discontinued since 2016.

[71] Moreover, UNISA is clearly wrong when it contends that its old language policy requires it to ensure that, in every course, it has academics able to teach in Afrikaans and to assess essays and examinations in Afrikaans. It is common cause on the papers that tuition would only be offered in Afrikaans in circumstances where there is adequate demand for it, and that only some 300 out of 2,300 modules were being offered in Afrikaans in 2016. That was what the former language policy entailed and that is all that was required by a reversion to that policy, as ordered by the Supreme Court of Appeal.

The dwindling demand for Afrikaans

[72] In respect of the alleged dwindling demand for Afrikaans tuition, the record produced in terms of rule 53 relating to requests to discontinue tuition in Afrikaans modules does not evince a material decrease in demand for Afrikaans. AfriForum cited extensive figures in this regard, but it is not necessary to delve into the minutiae. It would suffice to note that the numbers show very significant demand for distance learning tuition in Afrikaans, representing a portion of the approximately 24,000 students who elected to study a total of almost 100,000 modules in Afrikaans in 2016.

There is merit in AfriForum’s contentions that, if there had truly been a marked decline in demand for tuition in Afrikaans between 2012 and 2016, UNISA could simply have provided documentary evidence drawn from UNISA’s computer system showing the year-on-year decline. That, it failed to do.

Demographics

[73] Lastly, in respect of demographics, UNISA outlined statistics in its answering affidavit and in its reasons for the impugned decision.

The statistics relate to:

(a) the percentage of UNISA students who indicated that Afrikaans was their home language (8.6% in 2015, 8.7% in 2016 and an estimated 7.3% at some unspecified time in the future);
(b) the percentage of UNISA students who registered for modules in Afrikaans (0.6% in 2015 and 0.3% in 2016, but subsequently amended to 2% in 2015 and 1% in 2016); and
(c) the percentage of UNISA students who registered for at least one module in Afrikaans (5.3% in 2015 and 5.1% in 2016).

[74] Mark Twain skeptically said that “facts are stubborn things, but statistics are pliable”. AfriForum persuasively counters UNISA’s statistics by demonstrating that:

(a) the table on which the figures in (b) in the preceding paragraph are based does not show the number of students taking modules in Afrikaans at all, but merely the alleged number of modules taken in English. This means that the total number of students cannot be discerned from the table at all; and
(b) the table employed in (a) in the preceding paragraph, relating to Afrikaans home language students, is based on erroneous figures and therefore cannot be relied upon at all.

[75] Overall, AfriForum pertinently disputes the statistics relied on by UNISA and comprehensively explains why the statistics did not appear to be plausible or correct. In this regard, it adduced the evidence and accompanying figures of Professors Smit and Potgieter. UNISA did not engage at all with these figures, let alone challenge them.

[76] To compound matters further, these figures, alleged by UNISA to have formed the basis for the adoption of the new language policy, were not even placed before the Senate and the Council at the meetings where the resolutions were taken to adopt the new language policy. UNISA admits this. And the Supreme Court of Appeal correctly found that to be the case.

This approach is plainly destructive of the case sought to be advanced on these figures by UNISA. One fails to see why the SLC would see no need for the Senate and Council to have regard to these important numbers. The figures resoundingly speak of the students who would be affected by the far-reaching decisions of the Senate and the Council, in determining whether it was reasonably practicable to retain Afrikaans as a language of teaching and learning.

The omission to place the statistics, which founded the recommendation to remove Afrikaans as a language of teaching and learning, before the Senate and Council, is a further fatal shortcoming in UNISA’s case.

The Supreme Court of Appeal, notwithstanding its finding that these demographical statistics had not been placed before the Senate and Council, went further to consider those figures and found that they did not meet the reasonable practicability test in section 29(2). Both those findings are unassailable.

[77] An important consideration is that at the time of the impugned decision, Afrikaans tuition was available to UNISA students for some modules. UNISA bears a negative burden of establishing appropriate justification for why the right to receive education in the language of one’s choice, Afrikaans, should be removed.

This is because “when a learner already enjoys the benefit of being taught in an official language of choice, the [s]tate bears the negative duty not to take away or diminish the right without appropriate justification”.

To establish that appropriate justification, UNISA is constrained to demonstrate that it would not be “reasonably practicable” to continue with Afrikaans as a language of learning and tuition, or put differently, that it is not reasonably capable of doing so.

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. For the reasons set out, UNISA failed to do so.

[78] To summarise: UNISA patently misconstrued the applicability of the provisions of section 29(2) to it as an organ of state. This resulted in its failure to have regard to the considerations listed in section 29(2) when the impugned decision was taken. UNISA failed to put up evidence in support of its averment that it had taken into account these considerations. In any event, an objective assessment of the factors that UNISA asks this Court to take into account (without UNISA itself having considered them), does not bear out its case that it was not reasonably practicable for UNISA to continue to offer tuition in Afrikaans.

UNISA’s decision in 2016 to adopt the new language policy, and discontinue Afrikaans as a language of learning and teaching, therefore contravened section 29(2) of the Constitution, rendering that decision invalid. The Supreme Court of Appeal was correct in setting aside the 2016 decision to adopt a new language policy. This is dispositive of the case, although the question whether UNISA’s decision complied with procedural requirements will bear some consideration when the remedy is discussed. What then, must be done about UNISA’s failure to comply with section 29(2) since it changed its language policy in 2016?

Remedy

[79] The relevant terms of the Supreme Court of Appeal’s order have been set out. This Court issued directions, calling for submissions regarding the practicalities of implementing the Supreme Court of Appeal’s order. UNISA’s response was somewhat disappointing in respect of the detail provided. UNISA points out that five years have now elapsed since the decision to abolish Afrikaans as a language of teaching and learning. The order requires UNISA to continue to offer all modules in Afrikaans that were available in Afrikaans in 2016. UNISA emphasises that there have been numerous curriculum changes during the past five years. Courses and course materials have changed and there may also no longer be a demand for some of the courses.

[80] There is some merit in these submissions. But the contention, that the order requires UNISA to move beyond the status quo as it prevailed in 2016, is fallacious. All that is required in terms of the order, is for UNISA to reinstate those Afrikaans modules that were still on offer at that time. It does not require the university to reinstate Afrikaans modules that had already been discontinued under the Guidelines.

[81] There can be no quarrel with AfriForum’s submissions that the Constitution requires that the consequences of constitutional invalidity be corrected or reversed where it can no longer be prevented, and that where constitutional rights are violated, as is the case here, the relief must effectively vindicate those rights.

But for an order to be effective, it must be reasonably capable of implementation. It cannot be seriously disputed that, as UNISA points out, it will have to prepare comprehensive measures to reinstate the relevant Afrikaans modules. And those measures must self-evidently be implemented at the beginning of an academic year. This would require an assessment of personnel and information technology infrastructure adaptations and related costs, translation and printing costs and budget re-assessments – in the face of substantial cutbacks in tertiary education funding by government.

[82] UNISA’s case is that if, after re-assessing its budget and the requirements of the judgment (on the assumption that this appeal on the merits is dismissed), it concludes that it is reasonably practicable to reinstate the 2010 language policy Afrikaans modules, the requisite personnel recruitment and information technology infrastructure changes must be timeously effected in order to re-introduce Afrikaans as a primary language of teaching and learning at the commencement of an academic year.

But, on the other hand, contends UNISA, if after this exercise it becomes evident that it is not reasonably practicable to reinstitute the 2010 language policy, it will have to re-design a new constitutionally compliant policy and implement that new policy with the necessary personnel and infrastructure changes at the beginning of an academic year.

[83] The changes postulated by UNISA, on either scenario, are self-evidently far reaching and will consume substantial time. The estimate of a six-month planning period for implementation prior to the start of an academic year is not unreasonable. UNISA is a very large organisation. The order of the Supreme Court of Appeal, that this Court is endorsing, is far-reaching.

A pragmatic and effective order must reasonably enable UNISA to navigate properly on the course it chooses. And it is not for this Court to order what it should do. It may insist on a language policy that jettisons Afrikaans as a language of teaching and learning, after complying with all the constitutional and legal precepts, or decide to properly reinstate the status quo as it prevailed in 2016 before the impugned language policy was adopted. In any case, it is not for this Court to order what it should do – to act appropriately.

Any attempt to be prescriptive as to the choice UNISA makes will be tantamount to judicial overreach, bearing in mind that, as stated, UNISA is an organ of state.

[84] Courts must remain within the bounds the Constitution sets for them.

In Glenister, this Court stated that:

“In our constitutional democracy, the courts are the ultimate guardians of the Constitution. They not only have the right to intervene in order to prevent the violation of the Constitution, they also have the duty to do so. It is in the performance of this role that courts are more likely to confront the question of whether to venture into the domain of other branches of government and the extent of such intervention.
It is a necessary component of the doctrine of separation of powers that courts have a constitutional obligation to ensure that the exercise of power by other branches of government occurs within constitutional bounds. But even in these circumstances, courts must observe the limits of their powers.”

[85] In this instance, UNISA as an organ of state must be afforded the deference to do the necessary feasibility investigations, take the decision it regards as most reasonably practicable and implement the required changes. If its decision is to design a new language policy, it must self-evidently comply with section 29(2). But there is a further caveat. UNISA plainly failed to follow its own internal processes when it took the impugned decision.

So, for example:

(a) Senate failed to comply with its Rule 11.1, by sending out the draft language policy late to members of the Senate; and
(b) The resolution regarding language policy was not adopted by a show of hands at the meeting of the Senate. This constitutes non-compliance with Rule 13.1.

[86] The Senate Rules were plainly not complied with when the resolution to recommend a new language policy was taken. This invalidated the resolution of Senate, and it had a domino effect on the validity of the resolution of Council, since section 27(2) of the Act provides that Council must determine a language policy “with the concurrence of the Senate”. UNISA will no doubt be mindful of these shortcomings if it chooses to fashion a new language policy.

[87] Having regard to the constraints placed on this Court in respect of the principles of the separation of powers, a suspended order is called for here.

[88] The following order is made:

1. Leave to appeal is granted.
2. Save as set out below, the appeal is dismissed.
3. The order of the Supreme Court of Appeal is suspended until the commencement of the University of South Africa’s 2023 academic year.
4. In the event that the University of South Africa decides to continue with the language policy adopted in 2016, the requirements of section 29(2) of the Constitution must be complied with.
5. If, by the commencement of the 2023 academic year, the University of South Africa decides to adopt an entirely new language policy, the order of the Supreme Court of Appeal, save for the costs order, will fall away.
6. The University of South Africa must pay AfriForum’s costs in this Court, including the costs of two counsel.

Court summary

Summary

“University language policy — phasing out of Afrikaans as a language of teaching and learning — limitation of section 29(2) of the Constitution — justification required”

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 Wednesday, 22 September 2021 at 15h00, the Constitutional Court handed down judgment in an application for leave to appeal against the judgment and order of the Supreme Court of Appeal, which reviewed and set aside the University of South Africa’s (UNISA) decision to adopt a revised language policy. The first applicant is the Chairperson of UNISA, the second applicant is the Chairperson of the Senate of UNISA and the third applicant is UNISA (collectively referred to as UNISA). The respondent is AfriForum NPC (AfriForum).

Acting in terms of section 27(2) of the Higher Education Act 101 of 1997, UNISA’s Senate and Council took the decision to adopt a revised language policy on 30 March 2016 and 28 April 2016 respectively. The objective of this 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.

AfriForum launched an application to review and set aside the language policy on the basis of procedural irregularities and inconsistency with section 29(2) and to interdict the implementation of the policy pending this review at the High Court of South Africa, Gauteng Division, Pretoria (High Court). The High Court concluded that there was a prima facie violation of the section 29(2) right to receive an education in the language of one’s choice, but very few students made use of the Afrikaans modules. 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 held that the language policy was rationally connected to UNISA’s powers in terms of section 27(2) of the High Language Act and the National Language Policy. The High Court noted that while the National Language Policy in general supports the retention of Afrikaans as a language of academia and science, this does not prohibit the adoption of policies that remove Afrikaans.

Finally, on legality, the High Court dismissed AfriForum’s submissions that certain procedures provided for in the rules of the Senate had not been complied with and that these procedural irregularities rendered the decision invalid. 

AfriForum approached the Supreme Court of Appeal (SCA). The SCA noted that when 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. They had not done so convincingly.

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 aside and ordered UNISA to reinstate modules that have been discontinued pursuant to the adoption of the language policy.

The Constitutional Court first dealt with the iniquitous portrayal of the Afrikaans and its true roots. The Court emphasised that it is a misconception that Afrikaans is only “the language of whites” and “the language of the oppressor”. Today, Afrikaans is spoken predominantly by black people.

Then, the Constitutional Court clarified that this matter concerned a fundamental right in section 29(2) of the Constitution. Section 29(2) confers a right to receive education in the official language of one’s choice at a public institution, subject only to the qualification that such education “is reasonably practicable”. In this context, UNISA was constrained to justify the decision it took 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. The Court held that UNISA singularly failed to adduce any evidence that it had regard to the considerations listed in section 29(2) at the time when the impugned decision was made. In respect of the justification of its decision and compliance with section 29(2), there was no evidence put up by UNISA that bears scrutiny. It was plain that neither the Senate, nor the Council, had regard to information relevant to any assessment of reasonable practicability. The evidence simply did not bear up UNISA’s
contentions on equity, on costs, on the dwindling demand for Afrikaans, or on demographics.

The Court held that it was open to UNISA to put up this evidence in to justify the phasing out of Afrikaans in the future, but they could not justify the limitation of the section 29(2) right without clear and convincing evidence.

Consequently, the Court held that UNISA’s decision in 2016 to adopt the new language policy, and discontinue Afrikaans as a language of learning and teaching, contravened section 29(2) of the Constitution, rendering that decision invalid. However, the Court also held that in this instance, UNISA as an organ of state 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. The order of invalidity was therefore suspended until the start of the 2023 academic year.”