Away from colonialism or not? The Constitutional Court is to decide an important UNISA v Afriforum case on language policy at University level in terms of s 29(2) of the Constitution

The arguments in this matter are first, that the UNISA has violated Section 29(2)[2] of the Constitution in that it did not prove that it was not practicable to continue with Afrikaans at the University, secondly, that the policy violated Section 9 and the right to dignity, and, thirdly, that the process UNISA followed in implementing the policy was procedurally irrational. The Supreme Court of Appeal (SCA) upheld the argument by Afriforum after the High Court dismissed its application.

Background

On 28 April and 30 April 2016, the UNISA Senate resolved to approve a new language policy to replace a dual English-Afrikaans language policy with a new English-only policy. This in effect meant that UNISA would remove Afrikaans as a medium of instruction. The old policy was approved in 2006, wherein ‘The goal of [the] policy was to make tuition available in the official languages of South Africa on the basis of functional multilingualism and that, where English and Afrikaans already had the capacity to operate as higher education-level languages, UNISA would proactively support African languages with a view to them becoming the medium of instruction at higher education level’. In 2016, UNISA decided that this was difficult to achieve and therefore opted for the policy approach of removing Afrikaans as a language of instruction.

The rationale advanced by UNISA for the revision of the policy in 2010 and the decision taken in 2016 is that there was:

1. an attrition of the demand for Afrikaans, and
2. a move for parity between Afrikaans and other African languages as support languages, rather than as languages of learning, and
3. an inclination of students wanting to study in English.

It also released Guidelines for the Discontinuation of Afrikaans in Certain Modules grouped into three categories in 2012.[3] Consultations continued from 2013 with the SRC, and Senate, and the Council. Different views were considered including the objections from UNISA Forum vir Afrikaans.

The High Court concludes it is not practicable to achieve the objectives of the 2006 policy

Afriforum took the matter to court to have this resolution declared unconstitutional and unlawful. The High Court dismissed the application. Afriforum’s challenge of the language policy was based on a threefold argument:

1. The resolution violates the right to section 29(2) of the Constitution since there was no justification for the adoption of an English only Language of Learning and Tuition (LOLT) policy when no feasibility study had evidenced that it was no longer reasonably practicable to use the old dual language policy.
2. It was also a violation of their right not to be unfairly discriminated against in section 9 of the Constitution and that of the right to dignity.
3. The breach of the principle of legality based on rationality.

The High Court dismissed the urgent application on the basis that irreparable harm had not been proved and the main application was also dismissed in its entirety. The Court held that the policy decision was undergirded by the rationale that there was a lack of demand and capacity for Afrikaans tuition’. Language parity and the need to treat students equitably when it came to mother tongue tuition were critical drivers of the policy decision. It held that on the evidence, it was no longer reasonably practicable for UNISA to offer tuition in Afrikaans while not offering tuition in the remaining official languages. Further, English is both the locally and internationally preferred medium for communication, academia and business. So, adopting English as the sole LOLT was a matter of simple practicality.

The Supreme Court of Appeal concludes that it is practicable to continue with the dual-medium policy

The SCA wrote a bilingual judgment in English and isiZulu. It held that this decision was unconstitutional and unlawful ‘to the extent that Afrikaans has been removed as a language of learning and tuition’.[4] The ratio decidendi of the SCA on the fundamental point of practicability stems from a context-based test held in Mpumalanga DoE v Ermelo[5] which stated that ‘an important consideration will always be whether the State has taken reasonable and positive measures to make the right to basic education increasingly available and accessible to everyone in a language of choice’. Importantly, then ‘it must follow that when a learner already enjoys the benefit of being taught in an official language of choice the state bears the negative duty not to take away or diminish the right without appropriate justification.’

It is clear from this test that the court took the approach that UNISA ‘must show that it was not reasonably practicable to sustain dual English Afrikaans tuition’ and not whether it was practicable to achieve the goal of teaching all other languages as contemplated by the 2006 policy. This is a very important distinction, as the former only takes into account the current status quo of teaching in Afrikaans and English instead of the overarching policy of LOLT contemplated in the 2006 policy.

The argument about section 29(2)

The SCA did not deal with the difficulty of achieving an overarching policy contemplated in section 29(2). A couple of factors are important for the scope of the right contained in the provision. Firstly, everyone has a right to be taught in their own language of choice, where practicable, secondly, where that language is already provided in a language of choice, there is a negative duty not to remove it, provided that it is practicable.

Section 29(2) states that:

Everyone has the right to receive education in the official language or languages of their choice in public educational institutions where that education is reasonably practicable. In order to ensure the effective access to, and implementation of, this right, the state must consider all reasonable educational alternatives, including single medium institutions, taking into account—

1. equity;
2. practicability; and
3. the need to redress the results of past racially discriminatory laws and practices.

Provisions (a), (b) and (c) are important in considering whether the language policy of an educational institution complies with the Constitution. The implementation of English is globally and locally easy to implement with plenty of resources to support it. The implementation of Afrikaans has also been achieved historically and Mpumalanga DoE v Ermelo found that it should continue, where practicable.

Official languages other than English and Afrikaans

This case occurs against the background of debate about transformation and the manner it should be implemented in South Africa. In principle, there is no contention about two points: that transformation should occur and that past exclusion occurred on the basis of race and language. A claim for the use of other languages at UNISA could be advanced in order to achieve ‘equity’ and the ‘need to redress the results of past racially discriminatory laws and practices’. The difficulty is ‘practicability’. Achieving the goal of complete multilingualism is resource intensive and it has not been achieved. UNISA took the view that its 2006 policy functioned without equity and did not redress ‘past racial discriminatory policies’ then it decided to level the playing field by choosing a global language and removing all other languages. Part of the ways in which South Africa is divided is on the basis of race and tribe and language.[6]The Chief Justice in Afriforum v UFS stated that ‘after all, we come from a racially divided past to which Afrikaans was inextricably linked… the use of Afrikaans is thus one of the most likely areas of fierce disputation.’[7]

What could have been done

Policy makers must consider alternatives in order to achieve optimal development of the policy. Upon realizing the goals of the 2006 policy had not been achieved in a decade, the next course of action could have to table policies derived from the lessons learned ever since its inception. These could include (1) methodology ranging in different stages from mere translation, language workshops from one to three modules per programme (e.g. BSc) every three years. In these three years, they could phase in three new languages. A 9-year plan would achieve the phasing in of all nine new languages in all programmes. The alternative could be (2) to phase in each of the other 9 official languages in South Africa by phasing in one language every three years in all programmes. This would take 27 years to achieve.

Both of these courses of action are resource-intensive. Given the current economic climate and budgetary burden of the transformation agenda across race, and language, it may not be practicable on financial grounds for UNISA. Perhaps this is a good reason for UNISA’s adoption of the single-medium policy of simply removing the Afrikaans as a language of instruction and exams alongside English. Others may see this policy as crystallizing colonialism, since it no longer moves toward multilingualism but persists with English only.

Mihloti Basil Sherinda
Legal Researcher
mihloti@hsf.org.za

[1] Afriforum NPC v Chairperson of the Council of the University of South Africa [2020] ZASCA 79. A similar case scenario occurred at the University of Free State and was decided by the Constitutional Court, See AfriForum and Another v University of the Free State [2017] ZACC 48; 2018 (2) SA 185 (CC). See also Daniels v Scribante and Another [2017] ZACC 13; 2017 (4) SA 341 (CC) para 154.