[lg policy] Afrikaans At UFS: Subjectivity And Fallacious Arguments On The Language Policy

Thu Jan 11 15:46:38 UTC 2018

 Afrikaans At UFS: Subjectivity And Fallacious Arguments On The Language
Policy "What is the impact of the Constitutional Court judgment on the only
two other public universities that still have limited use of Afrikaans?"

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   - <http://www.huffingtonpost.co.za/author/theuns-eloff>
   By Theuns Eloff <http://www.huffingtonpost.co.za/author/theuns-eloff>

gregobagel via Getty Images

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.

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.

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.

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".

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.

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.

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.

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".

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".

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."

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.

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.

The majority ruling completely misses the internationally proven importance
of mother tongue education.

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:

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.

This statement was made even before he considered and judged the merits of
the case, as part of the "context".

And later, when the concept of "reasonably practicable" is discussed, he
says:

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.

It almost sounds as if it is the Reitz Four that are on trial, and not the
language policy of the UFS.

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.

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.

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.

The confirmation of the English only language policy of the UFS, is an
injustice to all languages apart from English.

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.

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".

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.

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".

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.

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.

The majority judgment regards Afrikaans subjectively as the main problem
for access and quality in higher education.

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).

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.

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...

*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 FW de Klerk Foundation page
<http://www.fwdeklerk.org/index.php/en/latest/news/726-article-subjectivity-and-fallacious-arguments-in-the-majority-ruling-on-the-ufs-language-policy>.*

-- 
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 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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