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<h1 class="gmail-headline__title">Afrikaans At UFS: Subjectivity And Fallacious Arguments On The Language Policy</h1>
<h2 class="gmail-headline__subtitle">"What is the impact of the
Constitutional Court judgment on the only two other public universities
that still have limited use of Afrikaans?"</h2> </div>
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<p>Just before the end of 2017, and while
South Africa almost came to a halt during the Christmas holidays, an
extremely important ruling almost passed unnoticed. Chief Justice
Mogoeng Mogoeng delivered the majority ruling in Afriforum's leave to
appeal in the case on the University of the Free State's language
policy.</p>
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<p>He did so without having heard any oral arguments and dealt simply
with the documents before the court. He and seven (black South African)
judges denied the leave to appeal, and Judge Froneman and two other
(white South African) judges differed in a minority ruling.</p>
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<p>The question was whether the new English only language policy of the
UFS was contrary to section 29(2) of the Constitution and the Ministry
of Higher Education's language policy. Chief Justice Mogoeng with the
majority ruled that the decision of the UFS was correct and in line with
both the Constitution and the ministerial language policy.</p>
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<p>The essence is not about the UFS and its language policy. One could
argue that, given the changing demographics of that university,
Afrikaans would not have a chance of survival in the medium and long
term anyway. It is rather about what in law is referred to as
"precedent".</p>
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<p>What is the impact of this judgment on the only two other public
universities that still have limited use of Afrikaans, and on the 2500
schools that still use Afrikaans as the language of tuition? But before
we look at the impact of this in a second article, we first have to
consider the Court's ruling in detail.</p>
<p>The core argument in the majority ruling is that the acceptance of
the UFS's argument that the parallel use of Afrikaans by the UFS is
discriminatory, and therefore unconstitutional. In this regard, Chief
Justice Mogoeng said that in South Africa's transitional phase from
racism and inequality to non-racialism, equality and high quality higher
education, access should be given to the right to education in the
official language of your choice, but without undermining equitable
access, preserving exclusivity or perpetuating racial supremacy.</p>
<blockquote class="gmail-pull-quote"><span class="gmail-quote">It is said that
someone that is aware of his subjectivity, can have the highest degree
of objectivity. This is apparently not applicable to the majority
ruling.</span></blockquote>
<p>It would be unreasonable to give some people unrestricted access to
and success in education at the expense of others, as a direct
consequence of a "blind pursuit" of the right to education in the
language of one's choice, especially where everyone can receive proper
education in one communal language (English, by implication).
Inequitable access and the (even unintentional) entrenchment or fuelling
racial disharmony will be justification for taking this right to mother
tongue education away. Then that right no longer passes the test of
"reasonably practical".</p>
<p>The problem with this argument is that it is not based on the
empirical evidence before the Court, but on written allegations of the
UFS's management -- and of course the so-called "context" provided by
the Chief Justice himself. Justice Froneman in the minority ruling uses
the following strong words about it: "I am not aware that this Court has
yet concluded that the mere exercise of a constitutionally-protected
language right can amount to unfair racial discrimination that would
necessarily justify taking away that right. This is a novel and
important issue".</p>
<p>The minority ruling states that the majority ruling has enormous
implications outside of the UFS campus, as it "sanctions an approach
that deprives speakers of one of our official languages of the
constitutional right to receive education in the language of their
choice. This is not an issue that has been dealt with authoritatively by
this Court before."</p>
<p>It is said that someone that is aware of his subjectivity, can have
the highest degree of objectivity. This is apparently not applicable to
the majority ruling. Probably to defend himself against criticism about
subjectivity, the Chief Justice states that judges should not be biased
towards Afrikaans based on its historical role. But then he continues to
do exactly that -- in an almost complacent manner. It reminds one of
Marx and Engels that said that the ideology of the rulers becomes the
ideas of society. The majority's ideology is very clear here.</p>
<p>The "context" given by the ruling is a barely hidden manner to bring
the radical transformation ideology into play. Chief Justice Mogoeng
even uses the words radical transformation as a constitutional
imperative. He selectively quotes from the Gerwel report and the
ministerial language policy, but conveniently does not mention that in
2001, Gerwel recommended that two universities become the guardians of
Afrikaans, and that the ministerial policy unequivocally states that the
use of Afrikaans as a national asset must not be abolished and can be
retained by various options. This fact was also pointed out by the
minority ruling.</p>
<blockquote class="gmail-pull-quote"><span class="gmail-quote">The majority ruling completely misses the internationally proven importance of mother tongue education.</span></blockquote>
<p>With parts of the Chief Justice's ruling, it is impossible to
distinguish between his words and statements from the UFS's management,
as he quotes them in agreement. For example, the Chief Justice says:</p>
<p>Now, unlike then, united in their diversity, the University community
has overwhelmingly decided in favour of English as the sole medium of
instruction. Afrikaans is being phased out as a medium of instruction to
advance a constitutionally-inspired transformational agenda. The aim is
to deracialise classes, foster unity and reconciliation and to defuse
observable racial tensions, but certainly not to impose any of the home
languages of those in government on Afrikaners or others.</p>
<p>This statement was made even before he considered and judged the merits of the case, as part of the "context".</p>
<p>And later, when the concept of "reasonably practicable" is discussed, he says:</p>
<p>It will be unreasonable to slavishly hold onto a language policy that
has proved to be the practical antithesis of fairness‚ feasibility‚
inclusivity and the remedial action necessary to shake racism and its
tendencies out of their comfort zone.</p>
<p>It almost sounds as if it is the Reitz Four that are on trial, and not the language policy of the UFS.</p>
<p>Of course, one has to accept the majority ruling. This is what
respect for the law and the judiciary requires. However, it does not
mean that one must agree with it or to let it pass unchallenged. There
is, in addition to the subjectivity, some fallacious arguments
underlying the majority judgment -- which in a number of cases are also
pointed out by the minority ruling.</p>
<p>The first gross faulty argument is that Afrikaans is a white
Afrikaner language. Neither the census of 2011 nor the language
realities in the Western, Northern and Eastern Cape support this myth.
The majority of Afrikaans speakers (more than 60 percent) are not white.
To punish Afrikaans is to penalize formerly disadvantaged people
politically and linguistically -- and there are thousands of young
coloured people who do not only want to study in Afrikaans but also are
unable to reach their full potential in English.</p>
<p>The second faulty argument is that the majority ruling did not at all
take into account the intention of the authors of the Interim
Constitution in 1994 and the final Constitution in 1996 with the highly
artificial interpretation of section 29 (2). This article was an
inherent part of the political compromise and reconciliation process. To
throw it in the trash can of history through an argument of changing
circumstances goes directly against the intent of the Constitutional
Assembly. Just ask the new president of the ANC -- he was the chairman.</p>
<blockquote class="gmail-pull-quote"><span class="gmail-quote">The confirmation of the English only language policy of the UFS, is an injustice to all languages apart from English.</span></blockquote>
<p>In addition to this is the fact that the majority ruling violates
several linguistic rules by its interpretation of "reasonably
practicable" in section 29 (2). "Reasonably" is and remains an adjective
that qualifies the adverb "practicable". These are not two concepts, of
which the first is normative and overshadows the former. How the
Supreme Court of Appeal and the majority ruling could make this
interpretation, can only be explained by the presence of ideological
thinking that apparently aims to show Afrikaans the public education
door at all costs.</p>
<p>A third faulty argument is that enforcing English (the colonial
repressive language par excellence) is the only way to achieve
reconciliation and cohesion at university campuses. The minority ruling
shows that the majority missed the irony that the UFS's chosen language,
English, has been favoured for a long time (if not more) than
Afrikaans. Judge Froneman quotes former judge Albie Sachs and points out
that because of the power and omnipresence of English "all language
rights are rights against English".</p>
<p>The confirmation of the English only language policy of the UFS, is
an injustice to all languages apart from English. The minority ruling
itself states that the majority ruling did not even mention the state's
constitutional obligation to promote other official languages. Judge
Froneman rightly pointed out that there is a complete lack of
recognition in the majority ruling that Afrikaans remains a minority
language, and that there are sufficient international sources that
support the view that minority languages are entitled to special
protection measures.</p>
<p>A fourth error is that the majority judgement accepts the good faith
of the UFS without hesitation. The argument is that if there were a
reasonable alternative to respect the constitutional rights of Afrikaans
speaking students, the university would have implemented it. Even the
argument that Afrikaans was causing racial tension and that (all)
Afrikaans students caused it, was accepted. The majority ruling does not
see the hypocrisy of the UFS that the evil Afrikaans will still be used
in theology and education, because of what is called "market demand".</p>
<p>This is rather praised as an example of the UFS's flexibility and its
commitment to (at least) maintaining constitutional norms. It is clear,
however, that the UFS in these two faculties has merely kept Afrikaans
to make sure they do not lose the majority of Afrikaans students who
study in it. Money has the last word, not the highly lauded and
constitutionally driven transformation.</p>
<p>The fifth error is that the majority ruling completely misses the
internationally proven importance of mother tongue education. The Chief
Justice, in his uncritical acceptance of the UFS management's arguments,
concludes that Afrikaans "has fallen into relative disuse" because
Afrikaans students largely prefer English. No empirical evidence has
been offered to support this, a fact that the minority decision also
points out. South Africa's failing education system is continuous proof
that mother tongue education should not be so easily discarded.</p>
<blockquote class="gmail-pull-quote"><span class="gmail-quote">The majority judgment regards Afrikaans subjectively as the main problem for access and quality in higher education.</span></blockquote>
<p>Finally, it is more than interesting and very significant that the
verdict of chief justice Mogoeng was supported by seven fellow black
judges and that the minority ruling of Judge Froneman was supported by
two white judges (two of whom are Afrikaans speakers).</p>
<p>One does not want to pit the honourable judges against each other,
but if such developed and intelligent jurists cannot even agree on the
emotive issue of language in section 29 (2), how can Chief Justice
Mogoeng expect that by getting rid of one language at a university,
reconciliation, racial harmony and nation building will follow? This is a
fundamental error often encountered in arguments around nation
building.</p>
<p>The majority judgment regards Afrikaans subjectively as the main
problem for access and quality in higher education. It is viewed as the
language of domination and oppression and alienation and
inaccessibility. The Court can, however, prepare itself for another
case, not long from now. The student applicants will complain about
alienation and domination and lack of accessibility. It will not come
from one of the evil historically-Afrikaans universities. The university
will be that of Cape Town, the students will be black and the language
that alienates and dominates is English...</p>
<p><em>Theuns Eloff is Executive Director of the FW de Klerk Foundation.
This article first appeared in Afrikaans on Netwerk24 and this
translated version can be viewed on the <a href="http://www.fwdeklerk.org/index.php/en/latest/news/726-article-subjectivity-and-fallacious-arguments-in-the-majority-ruling-on-the-ufs-language-policy" target="_blank">FW de Klerk Foundation page</a>.</em></p>
</div><br clear="all"><br>-- <br><div class="gmail_signature">=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+<br><br> Harold F. Schiffman<br><br>Professor Emeritus of <br> Dravidian Linguistics and Culture <br>Dept. of South Asia Studies <br>University of Pennsylvania<br>Philadelphia, PA 19104-6305<br><br>Phone: (215) 898-7475<br>Fax: (215) 573-2138 <br><br>Email: <a href="mailto:haroldfs@gmail.com" target="_blank">haroldfs@gmail.com</a><br><a href="http://ccat.sas.upenn.edu/~haroldfs/" target="_blank">http://ccat.sas.upenn.edu/~haroldfs/</a> <br><br>-------------------------------------------------</div>
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