[lg policy] South Africa: Understanding the University of the Free State Afrikaans Court Case

Thu Feb 1 15:15:26 UTC 2018

 South Africa: Understanding the University of the Free State Afrikaans
Court Case
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Photo: Stefan Schäfer/Wikipedia <https://en.wikipedia.org/>
Constitutional Court of South Africa (file photo).
By Ohene Yaw Ampofo-Anti

On 29 December 2017, the Constitutional Court handed down judgment in a
case which has important implications for the right to learn in the
language of one's choice. The Court upheld the decision of the University
of Free State to change its language policy from a dual medium institution
(English and Afrikaans) to English as the primary medium of instruction.

*Background*

In 2003, the university adopted a bilingual language policy. However,
shortly afterwards, several of the university's top officials noted that
the policy had the undesirable consequence of separating classes along
racial lines. In addition, they noted that the policy increased racial
tensions.

The university then decided to commission a report into the matter. This
report highlighted the fact that the continued use of Afrikaans as a medium
of instruction entrenched racial divisions on campus and reduced equal
access to knowledge; and noted that Afrikaans was declining as a language
of preference amongst students. In light of this, the university decided to
adopt a new language policy after consulting interested parties including
Afriforum, Solidarity, and language experts.

The new language policy adopts English as the primary medium of
instruction. However, it provides for tutorials to be given to students
whose first language is Afrikaans, Sotho or Zulu, in order to assist them
into the new English system. It also retains Afrikaans instruction in
certain courses such as Education and Theology, due to the considerable
demand for Afrikaans in these subjects. The new policy is to be phased in
progressively over about five years. The university argued that this policy
shift was needed to increase equal access to knowledge and promote racial
integration on its campus.

However, Afriforum and Solidarity were not happy with the new policy. They
argued that many students (white and black) preferred to be taught in
Afrikaans. They also argued that insufficient research had been conducted
and that there was simply no justification for this policy shift. In the
Constitutional Court, they sought leave to appeal a ruling of the Supreme
Court of Appeal which upheld the new language policy.

The Constitutional Court had to determine two main issues in this case. The
first issue was whether it was reasonably practicable to retain Afrikaans
as a medium of instruction at the university. The second issue was whether
the new language policy had been made in line with the Ministerial Policy
framework on the language of instruction at universities. This policy was
developed by the late former Minister of Education, Kader Asmal.

The majority of judges in the court decided, based on the court papers, not
to hear it in the Constitutional Court. This means the Supreme Court of
Appeal order stands, but the reasoning of the majority judgment in the
Constitutional Court overrides the Supreme Court of Appeal's reasoning.
This is the first time dissenting judgments of this sort have been written
on a case without that case having been heard in the Constitutional Court.

*What is reasonably practicable*

The Court noted that everyone has the constitutional right to be taught in
the official language of their choice at a public school or university.
However, this right is qualified by the requirement that it must be
"reasonably practicable" to provide learning in that language. In
considering what is reasonably practicable, an institution should consider
what is most pragmatic and equitable and what will redress the results of
past discrimination.

A majority of the judges (Mogoeng Mogoeng, Bess Nkabinde, Chris Jafta, Sisi
Khampepe, Mbuyiseli Madlanga, Nonkosi Mhlantla, Phineas Mojapelo and
Raymond Zondo) found that it was not reasonably practicable to retain
Afrikaans as a medium of instruction. First, they noted that South Africa
was still in transition from "an era of unrivalled racism and inequity that
entailed the deliberate sub-standardisation of the quality of education for
black people." For this reason, they said, the right to learn in a language
of one's choice should not be protected at the cost of perpetuating racial
supremacy on university campuses.

They also found there was a need to ensure equitable access to quality
education, racial harmony and a well-integrated campus. The judges
contended that the retention of Afrikaans had the unintended consequence of
exacerbating racial tensions on campus and keeping white supremacy alive.
Furthermore, they pointed out that the introduction of the new policy had
been done properly after consulting all the relevant stakeholders including
Afrikaans lobby groups such as Afriforum.

*Compliance with Ministerial Policy*

The primary goal of the Ministerial Policy is to create a university that
is "neither black nor white, English or Afrikaans-speaking but unabashedly
and unashamedly South African." The policy aims to promote multilingualism
and supports the retention of the use of Afrikaans as a medium of
instruction. However, the policy highlights the potential use of language
as an instrument of oppression and discrimination and says Afrikaans may be
retained to the extent that this does not promote discrimination and
segregation.

Afriforum sought to challenge the new language policy on the basis that it
is not consistent with the Ministerial Policy. However, a majority of the
judges dismissed this argument. They found that the Ministerial Policy
required a university to develop a language policy which is largely
informed by the circumstances on that particular campus. Furthermore, such
a language policy had to advance constitutional values such as equality and
reconciliation.

Repeating their earlier statements, these judges found that the university
had changed its language policy because the dual language policy had
undermined race relations on the campus. Furthermore, it was neither
feasible nor fair to retain Afrikaans as a language of instruction.They
also found that the policy was flexible and balanced because it had
accommodated Afrikaans to some extent by continuing its use in Education
and Theology in particular.

*Minority Opinion*

A minority of the judges (Johan Froneman, Edwin Cameron and Cynthia
Pretorius) found that it would have been better to grant leave to appeal
and hear the case in the Constitutional Court. They found that based on the
papers alone their decision would have been to reserve costs and send the
matter to the High Court for re-consideration. This would have enabled more
evidence on a number of the disputed points to be introduced.

The minority argued that the main issue was to determine under what
circumstances a person may be prohibited from learning in the language of
his or her choice.

These judges were also sceptical that a clear link had been established
between the use of Afrikaans on the one hand, and increased racial tensions
on the other. They noted with concern that it had not been been alleged or
proved that Afrikaans-speaking students on campus had committed acts of
racism. For this reason, they believed it best that these issues be
discussed before the High Court in a fresh application.

*More litigation likely*

The case comes at a time when there is still debate about the
transformation of institutions of higher learning. The language issue is
possibly the most divisive aspect in this respect. The case has
far-reaching implications for other universities which are still grappling
with this issue. For example, the University of Stellenbosch has also
recently changed its language policy from having Afrikaans as the primary
language to becoming dual medium (Afrikaans and English). This decision was
upheld by the Western Cape High Court. That may well be challenged, and
whether the Constitutional Court will reach the same conclusion in each
case remains to be seen

-- 
=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+=+

 Harold F. Schiffman

Professor Emeritus of
 Dravidian Linguistics and Culture
Dept. of South Asia Studies
University of Pennsylvania
Philadelphia, PA 19104-6305

Phone:  (215) 898-7475
Fax:  (215) 573-2138

Email:  haroldfs at gmail.com
http://ccat.sas.upenn.edu/~haroldfs/

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