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<h3 id="gmail-DailyNewsHeadline">The ConCourt and Afrikaans</h3>
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Christine Botha |
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23 January 2018
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Christine Botha analyses the judgment in the case of AfriForum vs the UFS
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<p><b>AfriForum and another vs University of the Free State – The
right to be taught in Afrikaans inescapably leads to racial
discrimination</b></p>
<p><i>23 January 2018</i></p>
<p>The Constitutional Court (the Court) delivered a crucial judgment in
December 2017 on the constitutional right to receive education in the
language of one’s choice when it dismissed AfriForum’s leave to appeal
in the case between the <em><i>University of the Free State v AfriForum and Another</i></em> (SCA judgment).</p>
<p>The SCA judgment upheld the University of the Free State’s decision
to replace the dual Afrikaans-English language policy with English as
the primary medium of instruction (UFS decision). Importantly, the UFS’s
decision was mainly taken due to racial friction caused by a perception
that the Afrikaans students (majority of whom were white) were
perceived to receive better education, as the Afrikaans classes were
smaller.</p>
<p>This raises the question whether the Court’s approach delivered an “objective and justifiable denial to the right”?</p>
<p>It is fair, before analysing the Court’s findings, to criticise the
fact that this matter, which raised a new and important constitutional
issue, was only decided on written heads of arguments and on questions
sent to the parties in the form of directives. No oral arguments were
presented to the Court.</p>
<p>There were essentially three critical issues the Court had to
determine. First, whether the UFS decision amounted to “administrative
action” reviewable under the <em><i>Promotion of Administrative Justice Act </i></em>(PAJA).
The SCA reviewed the UFS decision on the less rigorous doctrine of
legality, as they held that it involved policy-formulation, which is
executive in nature and excluded from PAJA.</p>
<p>Second, whether the UFS upheld section 29(2) of the Constitution that
guarantees everyone the right to education in the language of their
choice at a public education institution, provided same is “reasonably
practicable”. The State must consider all “reasonable educational
alternatives” considering “equality, practicability and the need to
redress the results of past discriminatory laws and practices”.</p>
<p>The SCA, held that the dual language policy might be practical
regarding resources but it was not “reasonable” as it caused
“segregation”. Last, whether the UFS’s language policy is “subject” to
the Minister’s Language Policy for Higher Education (the Minister’s
Policy) in terms of the <em><i>Higher Education Act</i></em>. The
Minister’s Policy recognises the equal status of Afrikaans and English
as the primary languages of instruction at higher education institutions
and promotes the academic development of all South African languages.</p>
<p>It is mainly the second issue that is at the core of this matter.
Both parties essentially agreed in their answers to the directives that
the executive or administrative nature of the UFS decision should play
no role in the interpretation section 29(2). However, for the majority
of the Court’s judges, it was important in considering granting leave to
appeal.</p>
<p>It was considered “fatal” for the “reasonable prospect of success of
the appeal” as the review was mainly based on PAJA grounds. The majority
held that the UFS decision amounted to policy-formulation, as the UFS
Council does not ordinarily perform administrative duties. The
legislative constraints to the Council’s power in general were however
not investigated by the majority.</p>
<p>This could arguably have indicated a narrower sense of
policy-formulation, which would be administrative in nature. Would this
determination have made any difference to the outcome? The
interpretation of a constitutional right should be an objective test and
no deference should be tolerated. However, the majority, with respect,
failed to factually test the UFS’s decision, which leans towards
judicial deference, a laxer form of review.</p>
<p>The UFS’s language policy was also held by the majority to be
“subject” to the Minister’s Policy but since the Ministerial Policy was
adopted circumstances have changed (general reference was made by the
majority to racial incidents committed by white Afrikaans-speaking
students). These changed circumstances accordingly made the dual policy
inconsistent with constitutional norms.</p>
<p>Therefore, the Ministerial Policy, according to the majority,
required a new constitutionally-aligned policy. However, respectfully,
no rational distinction was made between the option to study in a
language and the conduct of some people speaking the same language -
which was also pointed out by the minority of judges. The majority
respectfully failed to objectively show how the option to study in
Afrikaans is to blame for the racial conduct of some students and
specifically how it rationally relates to the ‘Reitz Four’ hostel
incident, as referred to in the footnote.</p>
<p>The majority’s approach to the “reasonably practicable” qualifier in
section 29(2), is difficult to criticise as a contextual purposive
approach was taken. The meaning was considered against the overall right
to education, which requires “reasonable measures” to be taken to make
higher education “progressively available and accessible”.</p>
<p>The two parts of section 29(2) were not isolated and the majority
held with reference to “reasonable educational alternatives” that
“Whatever model is chosen must be informed by among others the
constitutional obligation to make education accessible to all…”. The
majority agreed with the SCA that despite the dual medium policy being
practical it was not “reasonable” as it “posed a threat to racial
harmony”.</p>
<p>At this point, the objectivity of the majority however becomes
questionable. On considering what is “reasonable”, reference was made to
“scarce resources”, “inequitable access” and “entrenching racial
supremacy”. Yet, this matter did not concern access to education, as
non-white English students were not barred from studying at UFS nor did
it concern the use of UFS resources. The UFS’s standpoint has never
been, according to the court papers, that it could not financially
continue with the dual policy.</p>
<p>Critically, the majority, with due respect, fails to investigate
factually the perceived unequal quality of education and what has been
done by the UFS to address this before taking such drastic measures.
This view is simply endorsed under “racial supremacy”. No factual
evidence was referred to and at most there is only the UFS’s Language
Committee’s report which held “...it does not, from the student point of
view, guarantee equality of access to knowledge”.</p>
<p>AfriForum was also criticised for failing to suggest other
“reasonable educational alternatives” but in all fairness this
constitutional obligation neither rests on them nor did the Court’s
directives request them to do so. This issue and the alleged racial
discrimination should have been investigated, as pointed out in the
minority judgment, on oral argument with factual evidence being
presented.</p>
<p>It did not matter what approach the Court took to determine if it is
“reasonably practicable” to provide Afrikaans classes. What matters is
the failure to justify this denial objectively. This judgment provides
little certainty for the future enforceability of this right for
Afrikaans-speaking learners (or other minority languages) as the
criteria, respectfully, are not objectively determinable.</p>
<p><em>Christine Botha is Legal Officer, Centre for Constitutional Rights, </em><i>23 January 2018</i></p>
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</div></article></section><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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