The Right to Receive Education in One’s Language of Choice: A Fundamental, but Contentious Right

• Jurisdiction: South Africa
• Citation: (2010) 21 Stell LR 239
• Pages: 239-264
• Published date: 16 August 2019
• Date: 16 August 2019
• Author: P R Msaule

239

THE RIGHT TO RECEIVE EDUCATION IN ONE’S

LANGUAGE OF CHOICE: A FUNDAMENTAL,

BUT CONTENTIOUS RIGHT

PR Msaule

LLB LLM

Researcher: Research and Policy Information Unit (NPA)*

“A language may be likened to a mature tree with beautiful green foliage. Fertile soil and years of

faithful and proper care are essential to produce such a tree. A beautiful language is the gift of God

to a people and they should cherish it with love and respect by using it and expanding it and proudly

transmitting it as a heritage, greater and richer each time, to the next generation.”1

“It cannot be denied that the business of government is easier in a monolingual than a multilingual

nation. However, it does not follow that legislation or school policy requiring the use of the ofcial

language at all times will give the same results as actual monolingualism. On the contrary, it is fairly

likely that absolute insistence on the use of the national language by people of another mother tongue

may have a negative effect, leading the local groups to withdraw in some measure from the national

life. In any event, it seems clear that the national interests are best served by optimum advancement

of education, and this in turn can be promoted by the use of the local language as a medium of

instruction, at least at the beginning of the school programme.”2

1 Introduction

The post-apart heid South African Constitut ions protect eleven ofcial

languages and mandate that they be treated equitably.3 Part of the state’s

obligation to treat languages equitably is to ensure that the historical diminution

in use and stat us of the indigenous languages is remedied by preserving,

developing and encouraging the use of these languages4 and thus avoid any

form of “language hierarch isation” by favouring and preferr ing one language

over others.5 Although equitable treat ment is not equal or identical treatment,

such treat ment must be fai r, having due regard to ou r past which was based

on inequality and d iscrimination on various ground s including language.6 As

a resu lt, the prev iously di minished language s may requi re special attention

* Th e insightful comment s on the draft by Professor Sandra Liebenbe rg are acknowledged and apprecia ted

Special t hanks ar e nevertheles s reserved for Professor Omphemetse Sibanda for his unst inting supp ort

and guida nce in the process of w riting this ar ticle However, opinions ex pressed and conclus ions arrived

at are those of the a uthor

1 Ma hlalela-Thusi & Heu gh “Unraveli ng Some of th e Historical Threads of Mother-tongue Development

and Use during the First Per iod of Bantu Education (1955-1975)” 2002 Perspectives in Educa tion 241 244

(reference omit ted)

2 Fis hman Readi ngs in the Sociology o f Language (1970) 693

3 See s 3(1) of the Constitution of the Republic of South Afr ica Act 200 of 1993 (“the Interi m Constitution”)

and s 6(4) of the Constit ution of the Republic of Sout h Africa, 1996 (“the C onstitution of 1996”)

4 S 6(2) of t he Constitution of 1996 places a positive obligation on the st ate to adopt pra ctical and posit ive

measures t o elevate and advance t he use of these langu ages

5 Du Plessis & Pretorius “The Structure of the Official Language Clause: A Framework for its

Implementat ion” 2000 SAPL 505 512

6 Cu rrie & De Waal The Bill of Ri ghts Handbook 5 ed (2005) 2 31

(2010) 21 Stell LR 239

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and support7 in an endeavour to advance their use and status vis-à-vis English

and Afrikaa ns. T he drafters of the post-apartheid South African Constitutions

were well alive to the reality of the divisive role played by language during the

apartheid er a. Thus, the langua ge protection provisions in the post-apartheid

South African Constitutions are in stark cont rast with the apartheid policy of

only two ofcial languages,8 which were af forded ent renched pr otection by the

previous Constitutions to the exclusion of indigenous languages.9 It is therefore

not surprising that both the post-Apar theid South African Constit utions make

provision for the creation of the Pan South Afr ican Language Board to create

conditions conducive for the development of ofcial as well as non-ofcial

languages spoken in this country.10 T he Inter im Con stitution went a step

furthe r by explicitly advocating the promotion of multiling ualism.11

The objective of this paper is to critical ly apprais e the right to receive

education in one’s of cial la nguage of choice. Perhaps from the onset it

should be state d that this is a fundam ental yet contentious rig ht, particularly

to imple ment in a mult icultural a nd multilingu al society li ke South Afr ica.

The prev ious government’s la nguage policy for education was premised on

the anomaly that Engl ish and Afr ikaans were t he only ofcial langu ages in

the cou ntry and co nsequently they both enjoyed the status of bei ng used as

the sole languages of instruc tion in edu cation whilst indigenous la nguages

were taught as subjects. The teaching of i ndigenous lang uages as subjects

was meant to entrench ethnic ident ity and reinforce division in line with

apart heid policy of div ide and rule. The use of i ndigenous l anguages has

been deliberately regionally entrenched.12 T his (the education la nguage

policy), according to Brown, “led to a n en forced t rilingua lism i n African

education.”13 Nonetheless, prociency in any of the indigenous la nguages

was insufcient to ensure upward mobility in education or employment even

in areas where a p articular language was widely spoken.14 T his sce nario

persists to this d ay.

Currie postulates that South African education language policy was ofcially

bilingual despite Africans being taught indigenous languages as subjects in

primar y and secondar y school.15 This set-up is not strange in many par ts of

the world, but it symbolises, al most in all case s, domination of one group

by another. For this reason, the apartheid language policy for education was

unsurpr ising a s it reected power relations in the country. Language represents

the most potent form of domin ation and control. According to Alexander, the

power of language is both social and economical: in a multilingua l society,

7 Cu rrie “Offi cial Languages” in Chaskalson, Ke ntridge, Klaa ren, Marcus, S pitz & Woolman (eds)

Constitut ional Law of South Af rica (Revision ser vice 5, 30 June 1999) 37-5; Du Plessis & Pretor ius 2000

SAPL 520

8 Cu rrie “Offic ial Languages” i n CLAWSA 37-1

9 See s 152 of the 1910, s 118 of the 1961 and s 99 of the 1983 Constitut ions

10 S 3(10) of the Interim Con stitution and s 5 of the C onstitution of 1996

11 See s 3(9)(d)

12 Currie “ Official Lang uages” in CLAW SA 37-1

13 As quoted by Cu rrie 37-1 n 5

14 37-1

15 37-2

240 STELL LR 2010 2

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