[lg policy] South Africa: Universities' language policies at a crossroads?

Harold Schiffman hfsclpp at gmail.com
Wed May 24 10:42:48 EDT 2017

Universities' language policies at a crossroads?
Christine Botha |
23 May 2017
Christine Botha writes there is merit in Afriforum’s arguments

*Universities' language policies at a crossroads? The interpretation of
Administrative action*

*23 May 2017*

A crucial finding made in the SCA judgment related to the reviewability of
the University of the Free State’s decision (UFS decision) to replace its
dual-medium language policy with a single-medium language policy. The SCA
held that the UFS’s decision was not “administrative action” as defined in
the *Promotion of Administrative Justice Act* of 2000 (PAJA) and therefore
only the rationality of the decision could be reviewed by the Court. The
aforesaid finding, given the provisions of section 29(2) of the
Constitution, is the key issue to be decided in Afriforum’s appeal to the
Constitutional Court.

Section 29(2) of the Constitution guarantees everyone the right to receive
education at a public higher education institution, in the language of
their choice - provided same is “reasonably practicable”. Furthermore, to
give effect to this right, the State is obliged to consider “all reasonable
educational alternatives”, while taking into account factors such as
equity, practicability and historical redress.

If the UFS decision to replace the existing dual language policy is
“administrative action”, as was held by the Free State High Court (High
Court), it would allow the Constitutional Court to review the UFS decision
against the framework of the legal requirements of PAJA. The Constitutional
Court would have the power to analyse whether all relevant considerations
were taken into account and the weight attached to these considerations by
the UFS. On the other hand, if the UFS’s decision is of executive nature,
as was held by the SCA Judgment, the Constitutional Court would only
interfere to the extent that the UFS, an organ of State, did not exercise
its power rationally as the decision must be rationally related to the
purpose for which the power was given.

The starting point in this analysis of the SCA judgment should be the
definition of “administrative action” in section 1 of PAJA. Considering
that the UFS is an organ of State and that its Council, together with the
Senate, has the power to adopt a language policy in terms of the *Higher
Education Act* (Education Act), the approach in *Greys Marine Hout Bay
(Pty) Ltd and Others v Minister of Public Works* (*Greys Marine*) should be
adopted. *Greys Marine* broke down “administrative action” to seven
requirements, namely: any decision of an administrative nature; by an organ
of State; exercising a public power or performing a public function; in
terms of any legislation; that adversely affects someone’s right; which has
a direct external legal effect and that does not fall under any of the
exclusions listed in section 1 of PAJA.

The first requirement, namely “a decision of administrative nature”, is
especially difficult to determine in this instance. In line with *President
of the Republic of South Africa and Others v South African Rugby Football
Union and Others* (*SARFU*), the focus should be on the nature of the
power. A distinction needs to be drawn here between policy formulation,
associated with a wide discretionary power, and policy implementation. The
general principle is - the closer the decision lies to policy formulation
the less likely it is to be administrative in nature - which was the
general approach in the SCA judgment.

The SCA however, failed to investigate other ancillary factors used by the
Courts to determine the nature of the power, specifically the source and
constraints on the power. It is, arguably, in line with the reasoning
in *Permanent
Secretary of the Department of Education of the Government of the Eastern
Cape Province and Another v Ed-U-College* (*Ed-U*), that the UFS decision
might constitute policy formulation in a narrower sense, which would make
it administrative in nature. In *Ed-U*, the Constitutional Court
distinguished between policy formulation in a broader sense, which would
involve more a political decision, such as policy formulated by the
executive outside the legislative framework, and policy formulated in a
narrower sense where a member of the executive is in fact implementing
legislation. The power to formulate policy in the narrower sense is often
sourced from legislation and as in *Ed-U*, ultimately the power is
constrained by the Legislature.

The constraints in terms of the Education Act on the Universities’ power to
govern, and the fact that the Minister may intervene if the Council of the
University for instance is unable to perform its functions properly or
where there is financial impropriety, can be strong indicators that
Universities are not granted a wide discretionary power. The Universities’
power to govern arguably relates more to a narrower discretionary power as
they would be in the best position in a specific factual context to decide.
However, this power is still exercised under the umbrella of the Minister’s
power in line with the *Ed-U* approach. Following the Constitutional
Court’s reasoning in *Head of Department, Mpumalanga Department of
Education and Another v Hoërskool Ermelo and Another* (*Ermelo*), which
confirmed that the Head of the Education Department may intervene on
“reasonable grounds” when a governing body of a public school adopts a
language policy, it is plausible that the Minister in the context of public
higher education institutions would also have the power to intervene on
“reasonable grounds”.

On further analysis of the requirements of “administrative action”, the SCA
judgment came to a further inexplicable conclusion the “the policy itself
does not adversely affect the rights of any person or have the capacity to
do so”. This was in relation to the requirement that “administrative
action” constitutes a decision that “adversely affects the rights of any
person and which has a direct external legal effect”. This roundabout
approach must be read with the fact the SCA approached the matter on the
basis that as the decision to adopt a language policy was sought to be set
aside and not the policy, the legal consequences will only follow once the
policy is implemented.

The SCA judgment loses sight of the fact that the decision to adopt a new
language policy also constitutes a decision to abandon the current
bilingual option as the High Court stated. Therefore, there is merit in
Afriforum’s argument in their leave to appeal to the Constitutional Court,
that the decision to remove Afrikaans - in effect - removes a language
choice for a prospective student at UFS. This has the “capacity”, in line
with *Greys Marine*, to affect their section 29(2) constitutional right.
Hence the decision should be viewed as an “administrative action”.

Had the SCA Judgment approached the UFS decision as “administrative action”
it could have considered and weighed all factors taken into account,
including a “commitment to transformation” in the decision to abandon the
dual language option. This approach would also have allowed the SCA to
specifically investigate the weight the UFS attached to the impact on
section 29(2) of the Constitution. Considering the importance of this
distinction, it will be crucial for the Constitutional Court to provide
legal certainty.

*By Christine Botha: Legal Officer, Centre for Constitutional Rights *


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