AfriForum and Another v University of the Free State (CCT101/17) [2017] ZACC 48

8th January 2018

AfriForum and Another v University of the Free State (CCT101/17) [2017] ZACC 48

At 10h00 on 29 December 2017 the Constitutional Court handed down judgment in an application for leave to appeal against a judgment of the Supreme Court of Appeal (SCA).  The issues to be resolved are whether the adoption of the language policy that discontinues the use of Afrikaans as a primary medium of instruction, by the University of the Free State (University), is constitutionally valid and whether the University’s policy is consistent with the Ministerial Language Policy Framework.

Exercising his powers in terms of the Higher Education Act, the then Minister of Education Professor Kadar Asmal developed a language policy framework for higher education institutions.  That policy begins by recognising the use of language as a potential instrument of discrimination and oppression and sets out constitutional provisions and values that ought to inform its proper understanding and application.  It then ends by underscoring the need for multilingualism, expressing support for the retention and development of Afrikaans as a medium of instruction.  This it says is on condition that the use of Afrikaans does not unjustly deprive others of access to higher education and wittingly or unwittingly become an instrument for the furtherance of racial or narrow cultural discrimination.

It was with this understanding that in 2003, the University formalised its bilingual policy that had been proactively introduced in 1993.  Two years into its implementation the then Rector, Professor Fourie, acknowledged that the policy had had the undesirable consequence of having separate lecture rooms for white and black students.  Concerns were later raised by staff members and students that the dual-medium policy had given rise not only to racially segregated lecture rooms but also racial tensions.
A report that was commissioned by the University authorities to look into the appropriateness of the continued use of Afrikaans as a medium of instruction highlighted its entrenchment of racial division among students and virtual subversion of racial integration.  As a result, the University Management recommended a language policy shift.  After open and admittedly extensive consultations with interested parties, including AfriForum, Solidarity and language experts, the final report was presented to the University Council and it was adopted.  The new language policy is that English will the only primary medium of instruction.  Afrikaans will still have an important role to play in the expanded tutorial system, and as a medium of instruction to cater for certain professional programmes like Education and Theology.

AfriForum and Solidarity are however unhappy with the policy.  Some of their objections are that proper research was not conducted, and that most white and some black Afrikaans-speaking students prefer to be taught in Afrikaans.  They see no justification for the language policy-shift.  As a result, they successfully approached the High Court of South Africa, Free State Division, Bloemfontein (High Court) to review and set aside the adoption of the policy by Council.  The University successfully appealed to the SCA.  AfriForum and Solidarity then sought leave from this Court to appeal against the SCA decision.  Leave is refused for the following reasons.

The majority judgment written by Mogoeng CJ, concurred in by Nkabinde ADCJ, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Mojapelo AJ and Zondo J holds that it would 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.

Whatever model is chosen must be informed by among others the constitutional obligation to make education accessible to all so as to free the potential of all our people.  Also, our constitutional values ought to be central to every transformative or important measure we seek to implement.  That is why section 29(2) requires “(a) equity; (b) practicability; and (c) the need to redress the results of past racially discriminatory laws and practices,” to feature prominently in exploring the possibility of offering education in an official language of choice.  They relate to equality, responsiveness and non-racialism.

It also says that effective access to the right to be instructed in an official language of choice must be given effect to, but without undermining equitable access, preserving exclusivity or perpetuating racial supremacy.  Inequitable access and the unintended entrenchment or fuelling of racial disharmony would thus be the “appropriate justification” for taking away or diminishing the already existing enjoyment of the right to be taught in one’s mother tongue.

Racial inclusivity and redressing the damage caused by racism and its tendencies are a critical component of the ministerial policy.  The implementation of any language policy that undermines these constitutional and policy objectives has to be desisted from.  The use of Afrikaans has unintentionally become a facilitator of ethnic or cultural separation and racial tension.  It is for that reason that a policy revision or intervention has since become necessary.  The link between racially segregated lectures and racial tensions has not been denied.  And while it may be practicable to retain Afrikaans as a major medium of instruction, it certainly cannot be “reasonably practicable” when race relations is poisoned thereby.

So, the challenge based on the correct meaning of “reasonably practicable” must fail.  On the alternative, grounded on the alleged inconsistency between the ministerial policy framework and the University policy, the majority held that there can be no denying that Afrikaans is indeed a highly developed language of scholarship and science.  Like all our official languages, it is truly a national resource to be treasured by all of us. 

Here, the University community, Council and Senate in particular, have satisfied themselves that instead of the dual language policy brightening up the prospects of redressing the damage caused by apartheid; it threatens to perpetuate racial discrimination or disharmony.  The retention of the dual medium of instruction was neither considered to be fair nor feasible to satisfy the need to remedy the results of apartheid laws and practices.  The University was at risk of violating poignant constitutional provisions, and the ministerial language policy, properly understood.  The good sought to be achieved through a parallel medium of instruction, has backfired.

Unjust denial of access and racial and narrow cultural segregation has become the consequence of seeking to have Afrikaans-speaking students enjoy their own constitutional right to be taught in their official language of choice.  The University’s language policy was determined “subject to” and is thus consistent with the ministerial policy framework and the Constitution of the Republic.  Its adoption is lawful and valid.  For these reasons the application for leave to appeal was dismissed.

In a dissenting judgment, Froneman J (Cameron J and Pretorius AJ concurring) took the view that the Court ought to have set this matter down for hearing.  He considered that such an approach would have enhanced the legitimacy of the outcome and better reflected the Court’s practice.  He also would have granted leave to appeal on the basis that the applicants’ case bore prospects of success and, in any event, concerns “unfinished business” under the Constitution.

The dissenting judgment stresses the broader context in which this matter arose and points out that the Court has never held that the mere exercise of a constitutionally‑protected language right can amount to unfair racial discrimination that would necessarily justify taking away that right.  He noted that the parties do not accept the SCA’s interpretation of section 29(2) of the Constitution.  He draws attention to unclear factual issues and regretted that these had not been fully ventilated.  He also regretted that other institutions and organisations have not been given an opportunity to make submissions.

Froneman J closed his judgment by noting that, on the papers as they stood, he would have reserved costs and referred this matter back to the High Court so that additional evidence could be taken.  He expressed his hope that the outcome in this matter will not undermine the development of languages other than Afrikaans and English as languages of higher learning.  In a passage written in Afrikaans, he doubted the effectiveness of the applicants’ conduct and, noting the diverse history of Afrikaans, called on young people to lead a “Derde Taalbeweging” (Third Language Movement) for an inclusive Afrikaans short of racial and other prejudices.