[lg policy] AfriForum and another vs University of the Free State – The right to be taught in Afrikaans inescapably leads to racial discrimination

Wed Jan 24 15:52:11 UTC 2018

The ConCourt and Afrikaans
Christine Botha |
23 January 2018
Christine Botha analyses the judgment in the case of AfriForum vs the UFS

*AfriForum and another vs University of the Free State – The right to be
taught in Afrikaans inescapably leads to racial discrimination*

*23 January 2018*

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 *University of the Free State v AfriForum and
Another* (SCA
judgment).

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.

This raises the question whether the Court’s approach delivered an
“objective and justifiable denial to the right”?

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.

There were essentially three critical issues the Court had to determine.
First, whether the UFS decision amounted to “administrative action”
reviewable under the *Promotion of Administrative Justice Act *(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.

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”.

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 *Higher
Education Act*. 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.

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.

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.

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.

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.

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.

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”.

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”.

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.

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”.

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.

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.

*Christine Botha is Legal Officer, Centre for Constitutional Rights, **23
January 2018*
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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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