[lg policy] South Africa: Stellenbosch: Is Afrikaans tuition a constitutional right?

Wed Sep 9 15:18:02 UTC 2015

Stellenbosch: Is Afrikaans tuition a constitutional right?

   - Pierre de Vos
   - 08 Sep 2015 08:55 (South Africa)
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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?

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.

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”.

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.

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”.

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.

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.

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.

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.”

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.

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.

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”.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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. *DM*

*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>*

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