Afriforum and Another v University of the Free State

• Jurisdiction: South Africa

Afriforum and Another v University of the Free State
2018 (2) SA 185 (CC)

2018 (2) SA p185

Citation	2018 (2) SA 185 (CC)
Case No	CCT 101/17; [2017] ZACC 48
Court	Constitutional Court
Judge	Mogoeng CJ, Nkabinde ADCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Mojapelo AJ, Pretorius AJ and Zondo J
Heard	December 29, 2017
Judgment	December 29, 2017
Counsel	A Cockrell SC (with MJ Engelbrecht) for the applicants; JJ Gauntlett SC QC (with FB Pelser) for the respondent.

Flynote : Sleutelwoorde

Education — University — Language policy — Historically Afrikaans university's decision to replace dual Afrikaans/English language policy with English-only policy — Valid in light of racially discriminatory effects of dual-language C policy — Constitution, s 29(2).

Headnote : Kopnota

In 2016 the historically Afrikaans University of the Free State, which had since 2003 had a dual Afrikaans/English language policy, settled on a new policy under which the use of Afrikaans would be discontinued, leaving English as D the sole primary medium of instruction. The University instituted the new policy after it found that the dual-medium policy had (unintentionally) resulted in the racial segregation and tension.

Government policy on language in higher education was set out in the Ministry of Education's Higher Education Language Policy Framework of 2002 (the ministerial policy), which, while recognising the use of language as a E potential instrument of discrimination, underscored the need for multilingualism. It supported the retention of Afrikaans at historically Afrikaans universities, provided it did not become a barrier to access or an instrument of discrimination. The applicable constitutional provision is s 29(2), which holds that 'everyone has the right to receive education in the official language or languages of their choice in public educational institutions where . . . reasonably practicable'. F

Afriforum and the Solidarity trade union (the appellants), unhappy with the University's new language policy, succeeded in a review application to the Bloemfontein High Court. But in an appeal by the University the Supreme Court of Appeal ruled sided with the University. The appellants sought leave to appeal to the Constitutional Court. G

The Constitutional Court had to determine four issues: (a) standing; (b) whether the University's determination of the language issue was administrative action; (c) whether the University's conduct was consistent with its obligations under s 29(2) of the Constitution; and (d) whether the University determined and adopted its new language policy 'subject to' the ministerial policy. H

Held per Mogoeng CJ for the majority

While Afriforum had standing because it was acting in the furtherance of its members' right to have their children instructed in Afrikaans, the same could not be said of Solidarity, whose members had no such right (see [27] – [29]). The University's decision was a policy decision taken in the exercise of a public power that, while not administrative action reviewable I under PAJA, [*] was nevertheless subject to a legality review (see [34] – [39]).

As to s 29(2) and the meaning of 'reasonably practical': It would be unreasonable to retain a language policy that in had proved to be the practical J

2018 (2) SA p186

antithesis A of fairness, feasibility, inclusivity and the remedial action necessary confront racism (see [46]). Constitutional values like equality, responsiveness and non-racialism, and the constitutional obligation to make education accessible to all, ought to be central to any language policy (see [48]). Since s 29(2) demanded equity, practicability and the undoing of the damage caused by racial discrimination, inequitable access or the entrenchment B or fuelling of racial disharmony would justify the withdrawal or curtailment of the right to be taught in one's mother tongue (see [50]). Given that the use of Afrikaans at had unintentionally become a facilitator of ethnic or cultural separation and racial tension, a revision of the dual language policy had become necessary (see [62]). While it might be practicable to retain Afrikaans as a major medium of instruction, it was not C 'reasonably practical' when race relations were poisoned thereby (see [62]).

As to the new language policy's alleged inconsistency with the ministerial policy: Whatever language policy a university adopted, it had to take its cue from the ministerial policy, which expressly incorporated constitutional norms (see [70]). Constitutional imperatives like access, equity and inclusivity would dictate a radical departure from the preferred language option, and D that was what the University was constrained to do in the present case (see [72], [75] – [76]). Since the new language policy was determined 'subject to', and consistent with, the ministerial policy and the Constitution, its adoption lawful and valid (see [79]). Leave to appeal would therefore be refused (see [81]).

Froneman J E for the minority

The court should have set the matter down for hearing and granted leave to appeal on the ground that applicants' case had prospects of success and concerned 'unfinished business' under the Constitution (see [83], [120], [125] – [126]). The majority judgment sanctioned an approach that deprived Afrikaans speakers of the constitutional right to receive education in the F language of their choice, a matter that the court had never authoritatively dealt with before (see [84]). The case raised a question of great constitutional and legal import, namely whether the exercise of one's constitutional right to choice of language in tertiary education resulted in unconstitutional discrimination, and the majority's acceptance of the University's own assessment that the continuation of the existing policy amounted to racial G discrimination went too far (see [110] – [113]). The matter should have been referred back to the High Court for the ventilation of various factual issues and to allow other institutions, like the Universities of Pretoria and Stellenbosch, a say (see [114] – [116], [121]).

Cases cited

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Affordable Medicines Trust and Others v Minister of Health and Others 2006 (3) SA 247 (CC) (2005 (6) BCLR 529; [2005] ZACC 3): dictum in para [49] applied

Agri SA v Minister for Minerals and Energy 2013 (4) SA 1 (CC) (2013 (7) BCLR 727; [2013] ZACC 9): referred to

Albutt I v Centre for the Study of Violence and Reconciliation and Others 2010 (3) SA 293 (CC) (2010 (5) BCLR 391; [2010] ZACC 4): referred to

Allpay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer, South African Social Security Agency and Others 2014 (4) SA 179 (CC) (2014 (6) BCLR 641; [2014] ZACC 12): referred to

Aurecon South Africa (Pty) Ltd v Cape Town City 2016 (2) SA 199 (SCA) J ([2015] ZASCA 209): referred to

2018 (2) SA p187

Azanian Peoples Organisation (AZAPO) and Others v President of the Republic A of South Africa and Others 1996 (4) SA 671 (CC) (1996 (8) BCLR 1015; [1996] ZACC 16): referred to

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others 2004 (4) SA 490 (CC) (2004 (7) BCLR 687; [2004] ZACC 15): referred to

Biowatch Trust v Registrar, Genetic Resources and Others B 2009 (6) SA 232 (CC) (2009 (10) BCLR 1014; [2009] ZACC 14): applied

Brummer v Gorfil Brothers Investments (Pty) Ltd and Others 2000 (2) SA 837 (CC) (2000 (5) BCLR 465; [2000] ZACC 3): referred to

Cape Town City v Aurecon SA (Pty) Ltd 2017 (4) SA 223 (CC) (2017 (6) BCLR 730; [2017] ZACC 5): referred to

Cool Ideas 1186 CC v Hubbard and Another 2014 (4) SA 474 (CC) C (2014 (8) BCLR 869; [2014] ZACC 16): dictum in para [28] applied

Daniels v Scribante and Another 2017 (4) SA 341 (CC) (2017 (8) BCLR 949; [2017] ZACC 13): referred to

Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining & Development Co Ltd and Others 2014 (5) SA 138 (CC) (2014 (3) BCLR 265; [2013] ZACC 48): dicta in paras [84] – [86] applied D

Department of Home Affairs v Public Servants Association 2017 (9) BCLR 1102 (CC) ((2017) 38 ILJ 1555; [2017] ZACC 11): referred to

Department of Land Affairs and Others v Goedgelegen Tropical Fruits (Pty) Ltd 2007 (6) SA 199 (CC) (2007 (10) BCLR 1027; [2007] ZACC 12): dictum in para [5] applied

De Reuck v Director of Public Prosecutions, Witwatersrand Local Division, and E Others 2004 (1) SA 406 (CC) (2003 (2) SACR 445; 2003 (12) BCLR 1333; [2003] ZACC 19): referred to

Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996 1996 (4) SA 744 (CC) (1996 (10) BCLR 1253; [1996] ZACC 26): referred to

Ex parte Gauteng Provincial Legislature: In re Dispute Concerning the F Constitutionality of Certain Provisions of the Gauteng School Education Bill of 1995 1996 (3) SA 165 (CC) (1996 (4) BCLR 537; [1996] ZACC 4): referred to

Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others 1999 (1) SA 374 (CC) (1998 (12) BCLR 1458; [1998] ZACC 17): dictum in para [56] applied G

Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1) SA 984 (CC) (1996 (1) BCLR 1; [1995] ZACC 13): dictum in para [165] applied

Frazer v Naude 1999 (1) SA 1 (CC) (1998 (11) BCLR 1357; [1998] ZACC 13): referred to

Head of Department, Mpumalanga Department of Education and Another v H Hoërskool Ermelo and Another 2010 (2) SA 415 (CC) (2010 (3) BCLR 177; [2009] ZACC 32): applied

Islamic Unity Convention v Independent Broadcasting Authority and Others 2002 (4) SA 294 (CC) (2002 (5) BCLR 433; [2002] ZACC 3): referred to

Kanse v Chairman of the Senate of the Stellenbosch University I [2017] ZAWCHC 119: referred to

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