Kanse v the President of the Convocation of the Stellenbosch University

• Jurisdiction: South Africa
• Judge: DV Dlodlo J and KM Savage J
• Judgment Date: 25 October 2017
• Citation: 2017 JDR 1687 (WCC)
• Docket Number: 17501/2016
• Court: Western Cape Division, Cape Town

Dlodlo, J

INTRODUCTION

[1]

The applicants seek orders reviewing and setting aside the decisions of the Senate and Council of Stellenbosch University ('SU'), taken on 9 and 12 June 2016 respectively (the decisions), to adopt a new language policy for the SU ('the Policy or the 2016 Policy') in terms of section 27 (2) of the Higher Education Act 101 of 1997 ('the Act'); as well as an order setting aside the Policy itself; and an order directing SU to implement its previous language policy approved by the Council on 22 November 2014 ('the 2014 Policy') until it is validly amended or replaced. Clearly final relief is sought by the applicants in this application. A mention must be made that since application was made in this case at the end of September 2016, the Supreme Court of Appeal handed down judgment in the matter of University of Free State v Afriforum2017 (4) SA 283; 2017 (2) ALL SA 808 (SCA) on 28

2017 JDR 1687 p4

Dlodlo, J

March 2017. The latter judgment is binding on this Court in respect of issues which also arise in the current case by virtue of the doctrine of stare decisis.

Mr Heunis sought to distinguish the SCA decision from the present matter. This shall be dealt with later in this judgment.

[2]

On behalf of the applicants it is contended that these proceedings were instituted 'in an attempt to convince the court, for the reasons comprehensively set out in the affidavits filed, of the vital importance of the continuation of Afrikaans as a primary language of instruction at the SU and, to that end, to convince the Court that this can only be achieved by the Court reviewing and setting aside the SU's newly adopted language policy which dispenses with Afrikaans as a primary language of instruction'. In oral argument the applicants conceded that the impugned decision did not involve administrative action as contemplated in the Promotion of Administrative Justice Act 3 of 2000 ('PAJA') but that the adoption of the new policy could be subject to a legality review on the ground that it was made in the exercise of a public power. However, in written argument the applicants contended that since the policy itself is attacked and has the legal consequences of adversely affecting the rights of people as well as a direct, external legal effect, that part of their case predicated upon the operation of PAJA remains alive. It is apparent therefore that the applicants approached this matter on the basis that they seek to

2017 JDR 1687 p5

Dlodlo, J

have the policy set aside on constitutional as well as administrative law grounds. It remains common cause that the Higher Education Language Policy ('the LPHE') is implicated. Mr Heunis set out an overview of the statutory regime, including the provisions of the Act and the LPHE, as well as the Constitution and the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 ('the Equality Act'). We are also referred to European law.

[3]

The respondents were out of time with regard to the filing of the answering papers. Consequently there is an unopposed application for condonation in that regard which is accompanied by a tender for costs. The respondents also brought two striking out applications in terms of Rule 6 (15) of the Uniform Rules of Court. Furthermore, the applicants brought an application for the admission of a further affidavit. In this application the applicants also applied for the leading of oral evidence i.e. that the Court should subpoena an identified person to come and testify before Court. This application is strenuously resisted by the respondents. Prior to presentation of oral submissions, the parties informed the Court that they have reached an agreement to the effect that all these issues would be argued together with the main matter and this duly occurred.

2017 JDR 1687 p5

Dlodlo, J

THE APPLICANTS' CASE AND SOME PASSING REMARKS THERETO

[4]

Mr Heunis correctly contended that the language policy determined by the Council of the University has to be informed by the LPHE and all such policies (including the LPHE itself) have to comply with Sections 29 (1) (b) and 29 (2) of the Constitution. He referred us to some provisions of the LPHE which he described as directly pertinent and which echo provisions of the Constitution, namely: (a) The role of all South Africa's languages "working together" to build a common sense of nationhood is consistent with the constitutionally enshrined values of "democracy, social justice and fundamental rights". (See Section 6 (2) of the Constitution and para 3 of the LPHE: (b) Everyone has the right to use the language and to participate in the cultural life of his or her choice, provided that these rights may not be exercised inconsistently with any provision of the Bill of Rights. (See S30 of the Constitution and para 3.1 of the LPHE): (c) Everyone has the right to receive education in the official language or languages of his or her choice in public education institutions where such education is reasonably practicable. In order to ensure the effective access to, and implementation of this right, the state has to consider all reasonable educational alternatives, including single medium institutions, taking into account equity, practicability and the need to redress the results of past racially discriminatory laws and practices. (S 29 (2) of the Constitution and para 3.1.2 of the LPHE); (d) The role of language and access to language skills are critical to ensure the right of individuals to realise their full

2017 JDR 1687 p6

Dlodlo, J

potential to participate in and contribute to the social, cultural, intellectual, economic and political life of the South African society. (para 4 of the LPHE); (e) The challenge facing higher education is to ensure the simultaneous development of a multilingual environment in which all South Africa's languages are developed as academic/scientific languages, while simultaneously ensuring that the existing languages of instruction do not serve as a barrier to access and success. This is what the policy framework, set out in the LPHE, seeks to address. (para 6 of the LPHE).

[5]

Mr Heunis relied heavily on the fact that the Minister of Higher Education had invited Prof GJ Gerwel to convene an informal committee to provide him (the Minister) with advice specifically with regard to Afrikaans as a language of instruction. It is true that the committee referred to in this regard was tasked to advise on ways in which Afrikaans could be assured of continued long-term maintenance, growth and development as a language of science and scholarship in the higher education system without non-Afrikaans speakers being unfairly denied access within the system or the use and development of the language as a medium of instruction wittingly or unwittingly becoming the basis for racial, ethnic or cultural division and discrimination. Of course the reason for focusing on Afrikaans was that, with the exception of English, Afrikaans is the only other South African language which is employed as a medium of instruction and official

2017 JDR 1687 p7

Dlodlo, J

communication in institutions of higher education. There is hardly a dispute that the framework for language in higher education also reflects the values and obligations of the Constitution, especially the need to promote multilingualism, and it commits (as it were) to an attempt to ensure that all the official languages are accorded parity of esteem. See para 12 of the LPHE.

[6]

It remains a fact that in relation to languages of instruction the Ministry: (a) acknowledges the prevailing position of English and Afrikaans as the dominant languages of instruction in higher education and believes that it will be necessary to work within the confines of the status quo until such time as other South African languages have been developed to a level where they may be used in all higher education functions (para 15.1 of the LPHE); (b) acknowledges that Afrikaans as a language of scholarship and science is a national resource and, therefore, fully supports the retention of Afrikaans as a medium of academic expression and communication in higher education and is committed to ensuring that the capacity of Afrikaans to function as such a medium is not eroded (para 15.4 of the LPHE); (c) does not believe, however, that the sustainability of Afrikaans in higher education necessarily requires the designation of the University of Stellenbosch and the Potchefstroom University of Christian Higher Education (now the North West University ("NWU")) as "custodians" of the academic use of that language as proposed by the Committee (para 15.4.1 of the LPHE); (d) also agreed with the

2017 JDR 1687 p8

Dlodlo, J

Rectors of the Historically Afrikaans Universities that the sustained development of Afrikaans should not be the responsibility of only some of the universities (para 15.4.2 of the LPHE); (e) is of the view that the sustainability of Afrikaans as a medium of academic expression and communication can be ensured through a range of strategies which include the adoption of parallel and dual language medium options which would, on the one hand, cater for the needs of Afrikaans language speakers and, on the other, ensure that the language of instruction is not a barrier to access and success, to which end the Ministry committed itself, in consultation with the historically Afrikaans medium institutions, to examine the feasibility of different strategies, including the use of Afrikaans as a primary but not a sole medium of instruction (para 15.4.4 of the LPHE).

It must be mentioned that the LPHE seeks to balance, on the one hand, the needs to transform higher education, and in particular to prevent institutions' languages of instruction from impeding access and success by people who are not fully proficient in English and Afrikaans on the other hand, the development of multilingualism in those...