by Christine Botha: Manager, Centre for Constitutional Rights
On Thursday, 10 October, the majority of the Constitutional Court held that the University of Stellenbosch’s contentious 2016 Language Policy (US 2016 Language Policy), which effectively provided for the increase of English tuition to broaden access to the University, with no similar provision for Afrikaans tuition, was constitutionally valid. The Gelyke Kanse and Others versus the Chairman of the Senate of the University of Stellenbosch and Others matter (Gelyke Kanse matter) was heard on appeal from the Western Cape High Court, which dismissed the review of US’s 2016 Language Policy in October 2017.
The matter essentially revolved around the meaning of section 29(2) of the Constitution, the right to receive education in an official language of one’s choice at a public education institution, on the condition that it is “reasonably practicable” considering “equity”, “practicability” and the “need to redress the results of past discriminatory laws and practices”. The interpretation of this constitutionally-enforced right has been highly contentious in both the fields of tertiary and basic education. Since Afrikaans is the majority language spoken in the Western Cape, followed by Xhosa and then English, the Gelyke Kanse matter presented an interesting legal challenge.
Gelyke Kanse, an organisation established to promote mother-tongue education and specifically Afrikaans mother-tongue education, centred their argument around various constitutional rights. They essentially argued that the meaning of what is “reasonably practicable” in terms of the right to education in one’s language of choice is context-sensitive, and one must consider various factors. These include the choice of first language in the national and provincial context, the demand for Afrikaans tuition at US and that the 2016 Language Policy was not adopted because the US’s previous Language Policy (providing equal use of Afrikaans and English academically) was unaffordable.
Gelyke Kanse argued that the adoption of the US 2016 Language Policy was not about transformation but rather about accommodating the increase in number of white English speakers at the University and lecturers who are unwilling to lecture in Afrikaans. Gelyke Kanse argued that the US failed to consider that in the Western Cape, the highest number of Afrikaans first-language speakers come from the Brown community who have been historically disadvantaged. Furthermore, Gelyke Kanse also argued that the State must undertake positive measures in terms of section 6(2) of the Constitution to elevate the status of indigenous languages and cannot diminish existing language rights without proper justification.
The University argued that the 2016 Language Policy was specifically adopted to give effect to “equity, redress and practicability” (in terms of section 29(2) of the Constitution) by broadening access to African students. The University argued that it will be less burdensome on Afrikaans-speaking students (white and Brown) to learn in English and that the 2016 Language Policy does not reduce the Afrikaans offering but it instead prefers English in certain circumstances. If there is a reduction in Afrikaans, the University argued, it would be due to students’ needs, coupled with US resource constraints – and not because of the Policy.
Three judgments were penned by the Constitutional Court, with the majority agreeing with the University that the 2016 Language Policy gave effect “equity, redress and practicability”. Even though the dire state of promoting indigenous languages in South Africa and globally was recognised by the Constitutional Court, the Court felt that this was not a burden to be carried by the University alone. Considering the importance of this judgment on the interpretation of this constitutional right, the three separate judgments call for a careful in-depth analysis. The Centre for Constitutional Rights will be providing a full analysis of all three judgments and the potential impact of the findings.