<div dir="ltr"><h1>Stellenbosch: Is Afrikaans tuition a constitutional right?</h1>
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Pierre de Vos
</li><li class="">08 Sep 2015 08:55 (South Africa)</li><li class="">
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<div class="">In the now well-known ‘Luister’ documentary several
black students from the University of Stellenbosch speak about the
alienation and disadvantage they experience because of the predominant
use of Afrikaans as the language of instruction in certain lectures at
the university. This raises the question of whether Afrikaans students
have a constitutional right to be taught in their mother tongue at
Stellenbosch or whether the university should move away from its
'Afrikaans-first' multilingual language policy. Can one argue, as some
do, that students have a 'choice' to study elsewhere and should not
complain when they are disadvantaged by the language policy at
Stellenbosch?</div>
<div class=""><p style="margin:8.5pt 0cm 0.0001pt"><span style="font-family:georgia,palatino;font-size:12pt">I
was a student at Stellenbosch University at a time when it was more
than 90% white, its language of instruction exclusively Afrikaans, its
residence culture authoritarian and oppressive, and its management
(needless to say) closely aligned with the racist state. </span></p>
<p style="margin:8.5pt 0cm 0.0001pt"><span style="font-family:georgia,palatino;font-size:12pt">It
was the era when then-president PW Botha served as the chancellor of
the university (as all National Party leaders automatically did),
despite the fact that he had never obtained a university degree. On a
memorable occasion the vice-chancellor summoned me to his office and,
spitting and fuming with rage, threatened to expel me from the
university because I had written a column in the student newspaper in
which I had called PW Botha “a clown in a circus”.</span></p>
<p style="margin:8.5pt 0cm 0.0001pt"><span style="font-family:georgia,palatino;font-size:12pt">Although
this is not always readily apparent when you visit Stellenbosch today, I
assume much has changed for the better since the time when I was a
student there. However attempts to transform the institution both in
terms of its demographic make-up and its culture – have been hampered by
its language policy. </span></p>
<p style="margin:8.5pt 0cm 0.0001pt"><span style="font-family:georgia,palatino;font-size:12pt">Last
year, in an attempt to square this circle, the university adopted a
language policy that is strikingly vague. The policy states that
“Afrikaans and English are applied in various usage configurations” at
the university and that “(p)arallel medium teaching and real-time
educational interpretation are used as preferred options where
practically feasible and affordable”. </span></p>
<p style="margin:8.5pt 0cm 0.0001pt"><span style="font-family:georgia,palatino;font-size:12pt">But
the plan adopted by the university to give effect to the policy
provides not only for real-time interpretation of lectures but also for
teaching in both Afrikaans and English in the same lecture or for
exclusively Afrikaans lectures where resources for multilingual
presentation of a course are not available. </span></p>
<p style="margin:8.5pt 0cm 0.0001pt"><span style="font-family:georgia,palatino;font-size:12pt">Some
black students at Stellenbosch argue that this policy, in effect,
discriminates against them because the interpretation service provided
is often of a poor quality. Even when the interpretation is adequate,
something is invariably lost when you have to rely on a translator
whispering into your ear. </span></p>
<p style="margin:8.5pt 0cm 0.0001pt"><span style="font-family:georgia,palatino;font-size:12pt">Moreover,
it is argued that the 'Afrikaans-first' multilingual approach also
creates an atmosphere in which black students are deliberately or
inadvertently 'Othered' and made to feel unwelcome because they cannot
speak the language of those who belong to the dominant cultural at the
university. This 'Othering' is exacerbated by direct or indirect forms
of racism. This, so the argument goes, is partly why Stellenbosch is the
university in South Africa with the lowest number of black African
students.</span></p>
<p style="margin:8.5pt 0cm 0.0001pt"><span style="font-family:georgia,palatino;font-size:12pt">Those
who support the retention of Afrikaans as the default language of
instruction in a multilingual environment at Stellenbosch often invoke
section 29(2) of the Constitution and argue that mother tongue education
is a human right guaranteed by the Constitution. However, section 29(2)
does not guarantee an absolute right to mother tongue education for
everyone at state-sponsored educational institutions. Instead, the
section states that everyone has the right to receive education in the
official language of their choice only “where that education is
reasonably practicable”. It adds: “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 equity; practicability; and the need
to redress the results of past racially discriminatory laws and
practices.”</span></p>
<p style="margin:8.5pt 0cm 0.0001pt"><span style="font-family:georgia,palatino;font-size:12pt">The
Constitutional Court provided some guidance on the meaning of this
section as it relates to schools in the case of Head of Department:
Mpumalanga Department of Education and Another v Hoërskool Ermelo and
Another. Deputy Chief Justice Dikgang Moseneke pointed out in this
judgment that while the section “places an obvious premium on receiving
education in a public school in a language of choice”, that right is
qualified. </span></p>
<p style="margin:8.5pt 0cm 0.0001pt"><span style="font-family:georgia,palatino;font-size:12pt">Moseneke
pointed out that the choice to be taught in Afrikaans would only be
available when it would be “reasonably practicable” to provide that
option to learners. In determining what would be reasonable, the
specific context within which the determination is being made would be
crucial. That context would include the history of racial discrimination
and exploitation which allowed Stellenbosch to become one of the most
highly regarded and well-funded institutions of higher learning in South
Africa.</span></p>
<p style="margin:8.5pt 0cm 0.0001pt"><span style="font-family:georgia,palatino;font-size:12pt">However,
Moseneke also noted that when a learner already enjoys the benefit of
being taught in an official language of choice at a particular school
the state would bear the duty not to take away or diminish the right
“without appropriate justification”. </span></p>
<p style="margin:8.5pt 0cm 0.0001pt"><span style="font-family:georgia,palatino;font-size:12pt">In
the debate about the language of instruction at Stellenbosch
University, the essential question would therefore probably be whether
there is an appropriate justification for moving away from the present
approach that favours multilingualism with Afrikaans as the default
language of instruction. </span></p>
<p style="margin:8.5pt 0cm 0.0001pt"><span style="font-family:georgia,palatino;font-size:12pt">It
would probably be possible for the state to show that it had an
appropriate justification for diminishing the rights of the privileged
language group (Afrikaans) if it could show that this was fair in the
context and was necessary to satisfy the need to remedy the results of
past racially discriminatory laws and practices. In other words, one
should ask whether it is fair and reasonable to require the university
to move away from a language policy that, in fact, made it more
difficult for black students to succeed and in fact discouraged many
talented black students from applying for admission.</span></p>
<p style="margin:8.5pt 0cm 0.0001pt"><span style="font-family:georgia,palatino;font-size:12pt">What
would matter is not whether there was proof of an actual intention to
exclude or discriminate against black students. What would matter is
whether the policy had a discriminatory effect on some students or in
fact discouraged some potential students from attending the university.</span></p>
<p style="margin:8.5pt 0cm 0.0001pt"><span style="font-family:georgia,palatino;font-size:12pt">The
counter-argument raised by some of the defenders of the status quo at
Stellenbosch is that the vast majority of universities in South Africa
do accommodate students who wish to study in English and that students
who feel excluded by the language policy at Stellenbosch therefore have a
'choice' to study at one of these institutions.</span></p>
<p style="margin:8.5pt 0cm 0.0001pt"><span style="font-family:georgia,palatino;font-size:12pt">But
this argument would not hold water if the 'choice' open to black
students who cannot speak Afrikaans is the choice between obtaining a
better quality education at Stellenbosch or an inferior quality
education at another university elsewhere. </span></p>
<p style="margin:8.5pt 0cm 0.0001pt"><span style="font-family:georgia,palatino;font-size:12pt">In
this regard it is important to note that Stellenbosch is partly funded
by public funds. Public funds must be used appropriately, given the
constitutional obligation of the government to address the effects of
past and ongoing forms of discrimination. It would not be easy to
justify the use of public funds to advance the narrow financial and
political interests of a group when many of its members continue to
enjoy the benefits of Apartheid privilege. </span></p>
<p style="margin:8.5pt 0cm 0.0001pt"><span style="font-family:georgia,palatino;font-size:12pt">It
is also relevant that not all universities in South Africa provide
students with the same quality of education. Stellenbosch is arguably
one of the best universities in South Africa. Access to it is therefore
limited. If its language policy has the effect of limiting the number of
black students studying there, it denies some black students who cannot
speak Afrikaans a benefit that is provided to students who can speak
Afrikaans. </span></p>
<p style="margin:8.5pt 0cm 0.0001pt"><span style="font-family:georgia,palatino;font-size:12pt">In
any event, the notion that impermissible discrimination occurs even
where students have a 'choice' to attend another education facility, is
not unique to South Africa. In United States v Virginia, the US Supreme
Court ruled that the state of Virginia impermissibly discriminated
against women when it maintained a men-only military academy and
provided female students with the 'choice' of attending a women-only
academy nearby.</span></p>
<p style="margin:8.5pt 0cm 0.0001pt"><span style="font-family:georgia,palatino;font-size:12pt">In
this judgment, Justice Ruth Bader Ginsburg noted that the women-only
academy did not provide female students with the same quality of
education as the male institution and thus denied women an
“extraordinary educational opportunity” in a discriminatory manner. The
court compared the quality of the academic staff, the range of courses
on offer, the quality of the facilities, and the number of graduates who
obtained Doctor of Philosophy degrees at the men-only and women-only
schools and concluded that the latter institution was not the equal of
the former. </span></p>
<p style="margin:8.5pt 0cm 0.0001pt"><span style="font-family:georgia,palatino;font-size:12pt">Moreover,
the court argued that the women excluded from the men-only school were
being denied the many benefits associated with having a degree from an
institution with an excellent reputation. This included the benefits
associated with becoming an alumnus of the school and gaining access to
the informal alumni networks associated with a highly valued and
influential institution.</span></p>
<p style="margin:8.5pt 0cm 0.0001pt"><span style="font-family:georgia,palatino;font-size:12pt">I
would therefore argue that any language policy that made it more
difficult for non-Afrikaans speaking black students to study at
Stellenbosch would be discriminatory. Such a policy would not be
reasonable and Afrikaans students would not have a right to have it
maintained.</span></p>
<p style="margin:8.5pt 0cm 0.0001pt"><span style="font-family:georgia,palatino;font-size:12pt">Conversely,
while changing the policy to address its exclusionary effect may
diminish the right of Afrikaans students to be taught in their mother
tongue, it would not be too difficult to justify this by demonstrating
that the change was aimed at addressing the effects of past racial
discrimination at Stellenbosch, and at eliminating existing racial
discrimination in the institution in order to provide students of all
races with a wider choice of educational opportunities in South Africa.</span></p>
<p style="margin:8.5pt 0cm 0.0001pt"><span style="font-family:georgia,palatino;font-size:12pt">Ultimately
this about correcting the wrongs of the apartheid past and creating a
more fair and equal society – although many defenders of the status quo
will deny this. <b><span style="text-decoration:underline">DM</span></b></span></p><p style="margin:8.5pt 0cm 0.0001pt"><span style="font-family:georgia,palatino;font-size:12pt"><b><span style="text-decoration:underline"><a href="http://www.dailymaverick.co.za/opinionista/2015-09-08-stellenbosch-is-afrikaans-tuition-a-constitutional-right/#.VfBNBpeU2-c">http://www.dailymaverick.co.za/opinionista/2015-09-08-stellenbosch-is-afrikaans-tuition-a-constitutional-right/#.VfBNBpeU2-c</a><br></span></b></span></p></div><br clear="all"><br>-- <br><div class="gmail_signature">**************************************<br>N.b.: Listing on the lgpolicy-list is merely intended as a service to its members<br>and implies neither approval, confirmation nor agreement by the owner or sponsor of the list as to the veracity of a message's contents. Members who disagree with a message are encouraged to post a rebuttal, and to write directly to the original sender of any offensive message. A copy of this may be forwarded to this list as well. (H. Schiffman, Moderator)<br><br>For more information about the lgpolicy-list, go to <a href="https://groups.sas.upenn.edu/mailman/" target="_blank">https://groups.sas.upenn.edu/mailman/</a><br>listinfo/lgpolicy-list<br>*******************************************</div>
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