Gelyke Kanse and Others v Chairman of the Senate of the Stellenbosch University and Others (17501/2016) [2017] ZAWCHC 119; 2018 (1) BCLR 25 (WCC); [2018] 1 All SA 46 (WCC) (25 October 2017)

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[2017] ZAWCHC 119
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Gelyke Kanse and Others v Chairman of the Senate of the Stellenbosch University and Others (17501/2016) [2017] ZAWCHC 119; 2018 (1) BCLR 25 (WCC); [2018] 1 All SA 46 (WCC) (25 October 2017)

IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NO:
17501 /2016
In
the matter between:
GELYKE
KANSE
First

Applicant
DANIëL
JOHANNES
ROSSOUW
Second

Applicant
THE
PRESIDENT OF THE CONVOCATION
OF
Third

Applicant
THE
STELLENBOSCH UNIVERSITY
BERNARDUS
LAMBERTUS
PIETERS
Fourth

Applicant
MORTIMER
BESTER
Fifth

Applicant
JAKOBUS
PETRUS
ROUX
Sixth

Applicant
FRANCOIS
HENNING
Seventh

Applicant
ASHWIN
MALOY
Eighth

Applicant
RODERICK
EMILE
Ninth

Applicant
and
THE
CHAIRMAN OF THE SENATE OF
THE
First

Respondent
STELLENBOSCH
UNIVERSITY
THE
CHAIRMAN OF THE COUNCIL OF
THE
Second

Respondent
STELLENBOSCH
UNIVERSITY
THE
STELLENBOSCH
UNIVERSITY
Third

Respondent
PROF
ESTIAN CALITZ (CHAIRMAN) a
trustee
Fourth

Respondent
for
the time being of the Het Jan Marais Fund
PROF
WALTER CLAASSEN N.O., a
trustee
Fifth

Respondent
for
the time being of the Het Jan Marais Fund
GEORGE
STEYN N.O., a
trustee
Sixth

Respondent
for
the time being of the Het Jan Marais Fund
DR
JOHAN VAN DER MERWE N.O., a
trustee
Seventh

Respondent
for
the time being of the Het Jan Marais Fund
GYS
STEYN N.O., a
trustee
Eighth

Respondent
MARTHIE
HEYL N.O., a trustee
for
the time being of the Het Jan Marais
Fund
Ninth

Respondent
Coram:
Dlodlo J  and Savage J
Date
of Hearing:
14, 15 and 16 August 2017
Date
of Judgment:
25 October 2017
JUDGMENT
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 Afriforum
2017 (4) SA 283
;
2017 (2) ALL SA 808
(SCA) on
28 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 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.
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 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
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 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 institutions' day-to-day functioning and core activities,

including the development of indigenous African and other languages
as scientific and academic languages.  It also seeks to
assure
the long-term maintenance and growth of Afrikaans as a language of
science and scholarship in the higher education system.
[7]
The LPHE (based on Prof Gerwel's Committee) acknowledges that
Afrikaans, ‘
as a language of scholarship and science is a
national resource’
and it commits to ‘
ensuring
that the capacity of Afrikaans to function as such a medium is not
eroded’
. It is of significance that in the above regard the
Supreme Court of Appeal in the
University of the Free State v
Afriforum and Another
2017 (4) SA 283
;
2017 2 ALL SA 808
(SCA)
made the following observation:
‘
In November 2002 The
Education Ministry outlined a framework for a Higher Education
Language Policy (LPHE), which encouraged the
promotion of
multilingualism.  It advocated "that attention and
strengthening of Afrikaans as a language instruction"
(sic), in
historically Afrikaans Universities but it also acknowledged that
this will practically create a tension with other constitutional

imperatives, particularly considerations of equity, the need to
redress past racially discriminatory laws and practices and
practicability,
identified in s 29(2) of the Constitution.’
In
Mr Heunis’s contention in formulating its language policy, the
SU had to have regard to, and comply with (or else justify
departure)
the following features of the LPHE: (a) The acknowledgement that
Afrikaans as a language of scholarship and science
is a national
resource. (b) The Ministry's support for the retention of Afrikaans
as a medium of academic expression and communication
in higher
education and its commitment to ensure that the capacity of Afrikaans
to function as such, is not eroded. (c) The Ministry's
position that
the sustained development of Afrikaans is not the responsibility of
only some of the historically Afrikaans universities.
(d) The
Ministry's view that the sustainability of Afrikaans as a medium of
academic expression and communication can be secured
through a range
of strategies, including 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 language
of instruction is not a barrier to access
and success.
[8]
In Mr Heunis’s contention the SU failed to have regard to and
comply with or else justify departure from the aforementioned

features of the LPHE. Mr Heunis submitted as follows:
‘
Electing to abandon a
policy in terms of which Afrikaans was a primary language of
instruction with equal status to English, particularly
in
circumstances where instruction in Afrikaans has been abandoned or
significantly curtailed at other universities, is clearly

inconsistent with the LPHE as evidenced in particular by the summary
according to which the framework is designed to promote
multilingualism
and to enhance equity and access in higher education
inter alia through the retention and strengthening of Afrikaans as a
language
of scholarship and science.’
In
his submission as far as the adoption and implementation of their
policies are concerned, the historical Afrikaans Universities,
at
which a significant number of Afrikaans-speaking students still
enrol, have a primary obligation, which derives from the LPHE,
in
respect of the retention and strengthening of Afrikaans as a language
of scholarship and science. Concluding reference and reliance
on the
LPHE, Mr Heunis submitted as follows:
‘
What has been
happening at the UJ, UFS, UP, and UNISA and now also at the SU, is
self-evidently inconsistent with the LPHE.
That inconsistency
is the most dramatic in the instance of the SU which has taken a
deliberate decision to end the status of Afrikaans
as a primary
language of instruction with full knowledge of what has happened at
the other historical Afrikaans universities.
It may be that
this is the reason why the Second Respondent consistently denies, in
the face of overwhelming evidence to the contrary,
that the NLP would
lead to a significant down scaling of the role of Afrikaans as a
language of instruction at the SU.’
[9]
Talking to the
constitutional aspect of this case, Mr Heunis prefix his submissions
by referring to the provisions of Section 239
of the Constitution.
The latter Section provides as follows:
‘
In the Constitution,
unless the context indicates otherwise – … 'organ of
state' means –
(a)
any department of
state or administration in the national, provincial or local sphere
of government; or
(b)
any other
functionary or institution –
(i)
exercising a
power or performing a function in terms of the Constitution or a
provincial constitution; or
(ii)
exercising
a public power or performing a public function in terms of any
legislation, but does not include a court or a judicial
officer.
’
Mr
Heunis pointed out that the concept ‘
organ of state’
in Section 239 covers all instances in which a public power is
exercised or a public function is performed in terms of legislation

regardless of whether the person or institution exercising a power or
performing the function is formally recognised as an organ
of state
or not. It is important to note that as far as possible at this stage
an endeavour is made to document Mr Heunis’s
contentions. I
make passing remarks but would fully and comprehensively deal with
these contentions later in this judgment. We
have been referred to
Western Cape Minister of Education v Governing Body of Mikro
Primary School
2006 (1) SA 1
;
2005 (10) BCLR 973
(SCA), a
judgment which overturned a finding of this Court that the governing
body of the School was not an organ of state and
intended by the
legislature to be independent of state or government control in the
performance of its functions. The SCA concluded
as follows:
"In terms of the
definition in the Constitution, any institution exercising a public
power or performing a public function
in terms of any legislation is
an organ of State.  The second respondent, a public school,
together with its governing body,
the first respondent, is clearly an
institution performing a public function in terms of the Act.
It follows that it is an
organ of State as contemplated in the
Constitution."
Relying
on the above authority Mr Heunis contended that by parity of
reasoning, the SU is also an organ of state and, therefore,
bound by
the Bill of Rights by virtue of the provisions of Section 8 (1) of
the Constitution. In this regard this Court was referred
to the
following authorities:
See
Baloro
and
Others
v
University of Bophuthatswana
1995
(4) SA 97
(B)
(university
is an organ of state);
Toerien
en 'n Ander v De Villiers en 'n Ander
1995 (2) SA 879
(C), 885F (university is a public authority);
National
Union of Tertiary Employees of SA v Central University of Technology:
Free State
(2009) 30 ILJ 1620 (LC);
Gardner
and Others v Central University of Technology:
Free
State
2012 ZALAC 23
(25 July 2012) (respondent treated as higher education
institution in terms of section 1 of the HEA, and as an organ of
state in
terms of section 239(b) of the Constitution).
It
would of course appear that the SCA took this as axiomatic in the
University
of the Free State
case
supra.
[10]
Mr Heunis invited the attention of this court to the known principles
governing the interpretation of the Bill of Rights, namely:
(a)
A
purposive interpretation is called for.  This is not synonymous
with the broadest or most generous meaning which can be given
to a
provision.  The purpose of a right must be determined with
reference to the language, history, larger character of the
Bill of
Rights, and, where applicable, to the meaning and purpose of related
rights. See in this regard
S
v Zuma and Others
[1995] ZACC 1
;
1995 (2) SA 642
;
1995 (4) BCLR 401
(CC) para 15;
S
v Makwanyane
[1995] ZACC 3
;
1995 (3) SA 391
;
1995 (6) BCLR 665
(CC) para 9; (b) in
Makwanyane
supra
the
court talking to the interpretation principles stated thus: ‘
In
giving meaning to s 9, we must seek the purpose for which it was
included in the Constitution.  This purposive or teleological

approach to the interpretation of rights may at times require a
generous meaning to be given to provisions of chp 3 of the
Constitution
and at other times a narrower or specific meaning.’
(c) In
Ferreira
v Levine NO and Others
;
Vryenhoek
and Others v Powell NO and Others
1996
(1) SA 984
;
1996 (1) BCLR 1
(CC) para 172, Chaskalson P (as he then
was) stated that the Court had adopted a purposive interpretation of
the Constitution.
One, in my view, may not conclude this aspect on
interpretation without reference to Davis et al –
Fundamental
Rights in the Constitution
,
Commentary and Cases (1997) page 14 where the learned authors
describe the difference between a generous and purposive
interpretation
as follows:
‘
The generous
interpretation of a charter right would require a court to interpret
the language in the widest possible manner.
By contrast the
purposive interpretation is predicated upon the purpose of the right,
with the result being that the widest possible
interpretation will
not inevitably be the one which will be supported.’
I
unreservedly accept that in each case the language of the
Constitution has to be the starting point and that (
in
casu
),
the purpose of Section 29 is informed by the content of,
particularly, Section 6.
[11]
Mr Heunis contended that the issue of language at the SU engages two
constitutional principles which he mentioned as follows:
(a) the
constitution’s commitment to diversity, including linguistic
diversity. In this regard he referred this Court to
MEC
for Education, KwaZulu-Natal and Others v Pillay
[2007] ZACC 21
;
2008 (1) SA 474
;
2008 (2) BCLR 99
(CC) para 65, where the
Constitutional Court held that ‘
our
constitutional project … not only affirms diversity, but
promotes and celebrates it’
.
The Court continued (per Langa CJ) by saying that ‘
our
Constitution does not tolerate diversity as a necessary evil, but
affirms it as one of the primary treasures of our nation’
.
See para 92 of the judgment. According to Devenish-
A
Commentary on the South African Bill of Rights
(1999) page 419, the protection of language rights secures more than
merely the technical facility to communicate, it guarantees
cultural
viability and continuity. The writer continued and said that Section
92 (2) (c) is strengthened by Sections 30 and 31
of the Constitution.
Mr Heunis relying on Sections 15, 30 and 31 of the Constitution,
contended that, that commitment is manifest,
for example, in the
protection of religious and cultural rights.  He submitted that
more pertinently, it underlies (in part),
the right to an education
in the language of one's choice in Section 29 (2) and recognises
Afrikaans as part of that diversity.
In his view, it supports
the need to sustain Afrikaans as a vibrant language and the need to
increase Black (African) students
at historically White public
educational institutions such as the SU.
[12]
According to Mr Heunis it may fairly be said that the underlying
purpose of this right is to facilitate instruction, to promote

educational progress and to foster linguistic diversity.  He
added that there are also important objectives of educational
rights,
including equitable access to quality education.  Section 29 (2)
requires authorities to take all these considerations
into account in
formulating balanced and fair language policies. In the second place
is the Constitution's commitment to eradicating
the legacy of South
Africa's racial past including unequal access to public education,
and it commits to eradicating it through
positive measures to promote
those who were previously disadvantaged.  Section 9 (2) of the
Constitution permits affirmative
action measures that are ‘
designed
to protect or advance persons, or categories of persons disadvantaged
by unfair discrimination’.
See
Minister of
Finance
and Another v Van Heerden
[2004] ZACC 3
;
2004
(6) SA 121
;
2004 (11) BCLR 1125
(CC) on the proper interpretation of
Section 9 (2).
[13]
Malherbe –
The Constitutional Framework for Pursuing Equal
Opportunities in Education, Perspectives in Education,
Volume 22
(3), September 2004, talking to the commitment to diversity,
including linguistic diversity states the following:
‘
Section 29(2)
guarantees the right of everyone to education in the official
language or languages of their choice in public educational

institutions where it is reasonably practicable, in other words,
whenever it is reasonable to expect the State to provide such

education.  In the heated atmosphere generated by the ongoing
disputes over single-medium institutions, the recognition of
this
basic right in the South African multilingual situation is being
overlooked sometimes.  Note that the right goes further
than
Article 2 of Protocol I of the European Convention on Human Rights
and Fundamental Freedoms as it was interpreted and applied
in the
Belgian Linguistic cases, and that it indeed imposes a duty on the
State to provide such education wherever reasonably practicable.

The right is not confined to existing facilities either.  The
right applies to all education and is not restricted to basic

education.  Even institutions of higher education are therefore
required to provide instruction in the languages preferred
by
students.  However, the right extends only to the official
languages and not to all languages used in South Africa.

Although it would accommodate most South Africans, it therefore does
not strictly speaking provide for a right to mother-tongue

education.  Of course the right includes mother-tongue
education, which is significant not only for the protection of
language
rights, but also, as mentioned, because it has been proven
over and over that the mother-tongue is the preferred medium of
education,
especially in the early phases, and is therefore a
legitimate mechanism for creating equal educational opportunity.’
The
aforementioned two constitutional principles raise a question for
language at the SU, namely: How should it accommodate –
(a) the
rights of the Afrikaans-speaking students to their language and
culture; (b) the promotion of multilingualism; and (c)
the rights of
primarily Black (African) people who are not conversant in Afrikaans
to access a tertiary education at the SU? It
does not appear that
there is an ideal solution. In the absence of a language policy that
assigns precisely equal weight to all
eleven of the official
languages in every subject of the curriculum, it will always be
arguable that one or other language is subordinated
relative to
others.  Importantly, the reality of limited resources entails
that any recognition of a linguistic or cultural
right may be to the
detriment of a competing and arguably more deserving right.
[14]
In Mr Heunis’s contention though, what has happened at the SU
involves a move towards English domination, a development
(he
described) that would reinforce an already overwhelmingly dominant
language – which is the mother-tongue of only a particularly

privileged minority of White South Africans. He argued that this is
clearly at odds with the State's duty under section 6 (2) of
the
Constitution ‘
to
take
practical
and
positive measures to elevate the status and advance the use’
also
of Afrikaans.  In addition, so argued Mr Heunis, like all
official languages, Afrikaans, under section 6 (4), enjoys parity
of
esteem and must be treated equally. His contention was that for one
of the last universities that is not effectively English
single
medium to abandon Afrikaans as a primary language of instruction is
clearly inconsistent with these provisions of the Constitution.
I
mentioned earlier that I shall fully deal with these contentions. But
I cannot resist the temptation to point out that in my
understanding
of the 2016 Policy which is under attack nothing can be construed as
amounting to the abandonment of Afrikaans as
a primary language of
instruction at SU.
[15]
The Court was referred to Professor Haysom in Cheadle et al –
South African Constitutional Law
(Issue 1, 2005) 25-3 where
the learned Professor notes as follows in the context of language
rights:
‘
The increasing
tendency to recognise and protect language rights in more recent
national constitutions reflects a concern with resisting
the
'globalisation' of dominant languages, and, much more specifically,
with the recognition of the value of diversity as opposed
to
uniformity – an appreciation that equality does not imply
sameness.’
The
above sentiments were echoed by Justice Kriegler with respect to
Afrikaans in particular in
Ex Parte Gauteng Provincial
Legislature: In re
Dispute Concerning the constitutionality of
Certain Provisions of the Gauteng School Education Bill of
[1996] ZACC 4
;
1995
1996 (3) SA 165
;
1996 (4) BCLR 537
(CC) para 39 (SALR editors’
translation):
‘
Language – and
particularly the preservation of Afrikaans – evokes deep-rooted
emotions.  For that reason it is
vitally necessary that sober
and considered attention be given to the implications of this matter
…  (I)t
(section
32(c) of the interim Constitution, the equivalent of section 29(3) of
the Constitution) …
is
and remains a bulwark against the swamping of any minority's common
culture, language or religion.  For as long as a minority

actually guards its common heritage, for so long will it be its
inalienable right to establish educational institutions for the

preservation of its culture, language or religion.’
In
the same case Justice Sachs held that although ‘
(a)t
present, the imperatives of equalising access to education are
strong’
, those imperatives should not override
constitutionally protected rights in relation to language and
culture. See para 52 of the
latter case. It is true that the
Constitution recognises all the interests at stake and requires
organs of state to find a reasonable
balance between them.
Indeed the Constitutional Court in the
Pillay
case
supra
employed the phrase ‘
reasonable accommodation’
in
a similar context describing the principle as follows:
‘
At
its core is the notion that sometimes the community, whether it is
the State, an employer or a school, must take positive measures
and
possibly incur additional hardship or expense in order to allow all
people to participate and enjoy all their rights equally.
It
ensures that we do not relegate people to the margins of society
because they do not or cannot conform to certain social norms.’
Mr
Heunis placed reliance on the aforementioned formulation and
contended that in the context of SU policy it means that the
University
may need to take additional steps to accommodate students
who are unable to succeed with what may appear to be a neutral
language
policy, but what it cannot do is to take away Afrikaans’
status as a primary language of institution and, by so doing
depriving
Afrikaans –speaking students of an existing right.
[16]
Indeed the key to the present challenge is Section 29 of the
Constitution. It is apposite that the provisions of Section 29
of the
Constitution be set out in order to facilitate this discussion. It
provides as follows:
‘
(1)
Everyone has the right–
(a)
to
a basic education, including adult basic education; and
(b)
to
further education, which the State, through reasonable measures, must
make progressively available and accessible.
(2)
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–
(a)
equity;
(b)
practicability;
and
(c)
the
need to redress the results of past racially discriminatory laws and
practices.’
Our
Courts of Appeal i.e., the Constitutional and the Supreme Court of
Appeal have had occasion to consider and analyse the import
of
section 29 of the Constitution.  For instance in
Gauteng
School Education Bill
supra,
though in the context of the
predecessor to section 29 of the Constitution (Section 32 of the
Interim Constitution), the Constitutional
Court observed: (a) That
the Constitution provides that every person shall have the right to
establish educational institutions.
Linguistically and grammatically,
it provides a defensive right to a person who seeks to establish such
educational institutions
and it protects that right from invasion by
the State, without conferring on the State an obligation to establish
such educational
institutions. (b) The object of subparagraph (c) is
to make it clear that while every person has a right to basic
education through
instruction in the language of his or her choice,
those persons who want more than that and wish to have educational
institutions
based on a special culture, language or religion which
is common, have the freedom to set up such institutions based on that
commonality,
unless it is not practicable. Thus interpreted, section
32 (c) is neither superfluous nor tautologous; it preserves an
important
freedom. (c) The interpretation of section 32 (c) as a
defensive right, based on its grammatical and linguistic structure,
seems
to be supported by its context within section 32 itself.
Section 32 (a) creates a positive right that basic education be
provided
for every person and not merely a negative right that such a
person should not be obstructed in pursuing his or her basic
education.
(d) Section 32 (b), recognising the diversity of languages
in our country, again creates a positive right for every person to
instruction
in the language of his or her choice, where this is
reasonably practicable, not merely a negative right to prevent any
obstruction
if such person seeks instruction in the language of his
or her choice. Section 32 (c), by contrast, guarantees a freedom - a
freedom
to establish educational institutions based on a common
culture, language or religion. It is that freedom which is protected
by
section 32 (c). A person can invoke the protection of the Court
where that freedom is threatened, but the language of section 32
(c)
does not support a claim that such educational institutions, based on
a commonality of culture, language or religion, must
be established
by the State, or a claim that any person is entitled to demand such
establishment, notwithstanding the fact that
his or her right to
basic education and to instruction in the language of his or her
choice is, where practicable, otherwise being
satisfied by the State.
In the same judgment, Justice Kriegler observed as follows:
‘
[41] Secondly, it
should be clearly understood what the debate is really about in this
case. Subsections (a) and (b) of s 32 of
the Constitution record and
confirm the right of everyone to a basic education, equal access to
educational institutions and, where
reasonably practicable,
instruction in the language of the pupil's choice. The government is
constitutionally obligated to that.
The standard of reasonable
practicability is elastic - as it necessarily has to be in order to
leave room for a wide range of circumstances.
It is, however,
objectively justiciable, which means that arbitrary governmental
action can be restrained by the Courts. Accordingly,
meaningful
numbers of language-speakers have an enforceable right against the
government to instruction in the language of their
community as long
as it is reasonable practicable.
[42] Section 32(c) enlarges
on this. As my Colleague Mahomed DP indicates - and I emphasise - the
Constitution keeps the door open
for those for whom the State's
educational institutions are considered inadequate as far as common
culture, language or religion
is (sic) concerned. They are at liberty
harmoniously to preserve the heritage of their fathers for their
children. But there is
a price, namely that such a population group
will have to dig into its own pocket therefor. In a sense, the
present dispute is
not about a people's heritage but about money.’
[17]
In the
Minister
of Education, Western Cape v Governing Body, Mikro Primary School
supra
the SCA held: (a) The right of everyone to receive education in the
official language or languages of their choice in public educational

institutions where that education is reasonably practicable is a
right against the State. (b) The Constitution recognises that
there
may be various reasonable educational alternatives available to the
State to give effect to this right and has left it to
the State to
decide how best to do so. In order to ensure the effective access to,
and implementation of, this right, the State
must in terms of the
provision consider all reasonable educational alternatives, including
single medium institutions. (c) Section
29 (2), therefore, empowers
the State to ensure the effective implementation of the right by
providing single-medium educational
institutions. This is a clear
indication that, in terms of section 29 (2), everyone has a right to
be educated in an official language
of his or her choice at a public
educational institution to be provided by the State if reasonably
practicable, but not the right
to be so instructed at each and every
public educational institution subject only to it being reasonably
practicable to do so.
[18]
In
Head of Department, Mpumalanga Department of Education and
Another v Hoërskool Ermelo and Another
2010 (2) SA 415
(CC),
the Constitutional Court: (a) Observed that unequal access to
opportunity, including private and public    education

were among the many scars left by apartheid. (b) Observed that the
Constitution ardently demands that this social unevenness be

addressed by a radical transformation of society as a whole and of
public education in particular. This, according to the then
Deputy
Chief Justice, the Constitution does in a cluster of warranties which
include: section 1(a) which entrenches respect for
human dignity,
achievement of equality and freedom; section 6(1) read with section
6(2) which warrants and widens the span of our
official languages
from a partisan pair to include nine indigenous languages which for
long have jostled for space and equal worth;
sections 9(1) and (2)
which entitle everyone to formal and substantive equality; section
9(3) which precludes and inhibits unfair
discrimination on the
grounds of, amongst others, race and language or social origin;
section 31(1) which promises a collective
right to enjoy and use
one's language and culture; and section 29(1) which entrenches the
right to basic education and a right
to further education which,
through reasonable measures, the State must make progressively
accessible and available to everyone.
(c) Recognised and embraced the
tribute Sachs J paid to minority language rights in general and to
Afrikaans in particular in the
Gauteng School Education Bill
supra:
‘
The fourth assumption
is that the Afrikaans language is one of the cultural treasures of
South African national life, widely spoken
and deeply implanted, the
vehicle of outstanding literature, the bearer of a rich scientific
and legal vocabulary and possibly
the most creole or "rainbow"
of all South African tongues. Its protection and development is
therefore the concern not
only of its speakers but of the whole South
African nation. In approaching the question of the future of the
Afrikaans language,
then, the issue should not be regarded as simply
one of satisfying the self-centred wishes, legitimate or otherwise,
of a particular
group, but as a question of promoting the rich
development of an integral part of the variegated South African
national character
contemplated by the Constitution. Stripped of its
association with race and political dominance, cultural diversity
becomes an
enriching force which merits constitutional protection,
thereby enabling the specific contribution of each to become part of
the
patrimony of the whole.
At the same time, these
assumptions have to be located in the context of three important
considerations highlighted by the Constitution.’
(d)
Analysed section 29 of the Constitution on the following basis:
(i) That the
provision is made up of ‘
two
distinct but mutually reinforcing    parts’
.
The first part places an obvious premium on receiving education
in a public school in a language of choice. (ii) That
right, however,
according to the Constitutional Court, is internally modified because
the choice is available only when it is ‘
reasonably
practicable’
.
(iii) When it is reasonably practicable to receive tuition in a
language of one's choice will depend on all the relevant
circumstances
of each particular case. These would include the
availability of and accessibility to public schools, their enrolment
levels, the
medium of instruction of the school that its governing
body has adopted, the language choices that learners and their
parents make,
and the curriculum options offered.
[19]
In short, the reasonableness standard built into section 29 (2) (a)
imposes a context-sensitive understanding of each claim
for education
in a language of choice. (iv) 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.
(v) 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.  (vi) The second part of
section 29(2) of the
Constitution points to the manner in which the State must ensure
effective access to and implementation of
the right to be taught in
the language of one's choice. It is an injunction on the State to
consider all reasonable educational
alternatives which are not
limited to, but include, single-medium institutions. (vii) In
resorting to an option, such as a single
or parallel or dual medium
of instruction, the State must take into account what is fair,
feasible and satisfies the need to remedy
the results of past
racially discriminatory laws and practices.
[20]
In
the
University
of the Free State
case
supra,
the SCA held
inter
alia
:
(a)
The
legal standard of reasonableness, of necessity, involves a
consideration of constitutional norms, including equity, redress,

desegregation and non-racialism. (b) The factual criterion is
practicability, which is concerned with resource constraints and
the
feasibility of adopting a particular language policy. (c) Even if a
language policy is practical because there are no resource

constraints to its implementation, it may not be reasonable to
implement because it offends constitutional norms. The policy would

therefore not meet the reasonably practicable standard. (d) Once the
standard is met and the right to a language of choice exists,
the
State bears a negative duty not to take it away or diminish the right
without justification.  But this does not mean that
once the
right exists it continues, regardless of whether the context and the
circumstances have changed. A change in circumstances
may materially
bear on the question whether it is reasonably practicable to continue
with a policy. What is required of a decision-maker,
when there is a
change in circumstances, is to demonstrate that it has good reason to
change the policy. In other words, it must
act rationally and not
arbitrarily. (e) That the dispute raises potentially difficult
constitutional questions, including whether
the new policy’s
pursuit of racial integration and equality has the effect of unfairly
discriminating against linguistic
and cultural minorities;
impermissibly promoting majoritarian hegemony at the expense of
linguistic and cultural diversity, or
undermining the fundamental
language scheme of our constitutional order, which requires the State
to take practical and positive
measures to elevate the status and
advance the use of all official languages, instead of diminishing
their importance. (f)
That
such questions
may
only be confronted through a substantive constitutional challenge to
the State’s language policy, and not somewhat diffidently
or
obliquely through judicial review, as the respondents have done in
that case. (g)
The
Court concluded that
the
respondents sought an order reviewing and setting aside the decision
of UFS to adopt a single-medium English language policy.
That
decision, according to the Court was not reviewable under PAJA; and
the respondents had failed to make out a proper case for
review under
the principle of legality.   In light thereof, the SCA
concluded that the UFS was entitled to adopt a new
policy because it
was no longer reasonably practicable to continue with the 2003
policy, which had the effect of segregating the
student community
along racial lines. The UFS was under no legal obligation to apply
the LPHE and was free to depart from it for
good reason. It had done
so.
[21]
Mr Heunis in an endeavour to distinguish the
Free
State
case from the present case argued that in the
Free
State
case the
Afriforum
case did not deal with a substantive constitutional challenge to the
language policy; instead (so he argued) the matter was approached
on
the basis of judicial review. He contended that in contradistinction,
the present challenge is also underpinned by a frontal
substantive
constitutional challenge. He submitted that the constitutional values
underpinning the right to dignity and the right
to have one’s
dignity respected and protected, also comes into play when language
rights are derogated from. Relying on
Governing
Body of the Juma Musjid Primary School and Others v Essay N.O. and
Others
(Centre
for Child Law and Another
as
amici
curiae
)
2011 (8) BCLR 761
para 37, Mr Heunis contended that the right to
basic education in Section 29 (1) (a) which is ‘
immediately
realisable’
,
the right to further education is progressively realisable and
subject to reasonable measures. Importantly, unlike other
socio-economic
rights such as the right to housing, healthcare, food,
water and security, the right to further education) is not expressly
made
subject to the availability of resources. See in this regard
Sections 26 and 27 of the Constitution and Woolman & Bishop at

cit page 37:
Constitutional
Law of South Africa
.
Mr Heunis correctly conceded on this aspect stating that although the
absence of this internal limitations clause have some meaning,
he
submitted that it does not render resource constraints irrelevant
since that would undermine the limitations of reasonableness
and
progressive realisation.
[22]
Even though the internal limitations of reasonableness and
progressive realisation have not been explored in the context of

Section 29 (1) (b), Courts have dealt with this and have provided
guidance which is to be found from the meaning assigned to them
when
the other socio-economic rights were interpreted. Courts have spoken
thus: (a) ‘
Reasonable
measures’
generally
requires the state to have a program ‘
capable
of facilitating the realisation of a right’
.
This obligation rests on all the levels of government involved but,
in the context of higher education, it rests primarily
on the
national government and higher education institutions since tertiary
education is a functional area of national legislative
and executive
competence. (See
Government
of the Republic of South Africa and Others v Grootboom
2001 (1) SA 46
;
2000 (11) BCLR 1169
(CC) para 41; Schedule 4 of the
Constitution). (b) Progressive realisation calls for the progressive
facilitation of accessibility
calling for the examination and, where
possible, lowering over time legal, administrative, operational and
financial hurdles. See
Grootboom
case
para 45. (c) Like other socio-economic rights, section 29(1)(b)
includes both positive and negative aspects requiring the state
to
take positive measures to improve the availability of further
education and to gradually improve the quality of that education

while, on the other hand, providing protection against unreasonable
exclusion from existing access to higher education. (d) The
negative
dimension arises from the general non-retrogression principle that
applies to all socio-economic rights in South African
law, and
internationally. See
International
Covenant on Economic, Social and Cultural Rights, Geneva Comment 3:
The Nature of State Parties, Obligations
(1990) para 9. (e) For example, a measure which allows a person to be
deprived of existing access to housing will violate the negative

dimension of the right to housing.  Similarly, a blanket denial
of access to higher education to asylum seekers limits the
right. See
Minister
of Home Affairs v Watchenuka and Another
2004 (4) SA 326
;
2004 (2) BCLR 120
(SCA). The negative part of the
right is obviously not subject to the limitations of progressive
realisation and reasonableness.
Mr Heunis’ submission in above
regard was as follows:
‘
It stands to reason
that no single university can be solely responsible for fulfilling
the positive element of the right to further
education and that
universities must do so together with one another and the national
government.  This implies that when
they are called upon to
determine their language policies, they should do so with regard to
the national picture in terms of offer
and demand.  What is
clear, however, is that they cannot, when they determine language
policy, summarily dispense with existing
rights.’
[23]
Noticeably, the phrase ‘
reasonable
measures’
is used in several of the socio economic rights in the Bill of
Rights. It does require the State to have a policy or   program

that must be capable of facilitating the realisation of the right in
question. We accept that the State does have a wide latitude
in
choosing the policy or program.  A court considering the
reasonableness of measures adopted by an organ of state may not

enquire whether other more desirable or favourable measures could
have been adopted, or whether public money could have been better

spent.  ‘
Progressive
available and accessible’
as a phrase means and must mean that the hurdles to the realisation
of the right to further education - legal, administrative,

operational and financial – must be identified by the State
and, where possible, lowered over time. Given the significant
number
of mainly Black (African) students and prospective students who have
enrolled or will in future enrol at SU and who are
not conversant or
sufficiently conversant in Afrikaans, but who are conversant or
sufficiently conversant in English, what this
means is that SU must
provide and implement measures aimed at an adequate English
offering.  Mr Heunis is, however, fully
aware of the aforegoing
statement of fact. He contended that SU is able to achieve this
without dispensing with Afrikaans as a
primary language of
instruction precisely because of its achievement in this regard
consistently with the language policy which
stands to be replaced by
the New Language Policy (the 2016 Policy).
[24]
There is no denying that the right in section 29 (2) serves two
purposes, namely: (a) to improve access to education by ensuring
it
is available in a language that is understood.  Talking to this
purpose, Mr Heunis opined that it is relevant to those
students and
prospective students who are not conversant in Afrikaans, but who
are conversant in English. (b) to promote
linguistic communities,
including Afrikaans-speakers, and to protect linguistic populations
against assimilation and the erosion
of their culture associated with
the language.  Mr Heunis contended that this is particularly
important given the increasing
prevalence of English in South Africa,
including in public higher education where most institutions lecture
exclusively or mainly
in English. Mr Heunis relied heavily on
Gauteng
Provincial Legislature,
supra
where the Constitutional Court recognised that Afrikaans (like all
languages) is not simply a means of communication and instruction.

The Constitutional Court found that Afrikaans is Central to the
cohesion and identification of the Afrikaans-speaking community.

In the words of Sachs J
‘
the
Afrikaans language, like all languages, is not simply a means of
communication and instruction, but a central element of community

cohesion and identification for a distinct community in South
Africa.  We are accordingly dealing not merely with practical

issues of pedagogy, but with tangible factors, that as was said in
Brown v Board of Education of Topeka
[347 US 483
(1954)], form an
important part of the educational endeavour.  In addition, what
goes on in schools can have direct implications
for the cultural
personality and development of groups spreading far beyond the
boundary fences of the schools themselves.’
[25]
In the above regard this Court was also referred to
Solski (Tutor
of) v The  Quebec (Attorney-General)
2005 SCC 14
;
2005 1 SCR 201
para 3,
a Canadian Supreme Court matter which quoted
Doucet-Boudereau v
Nova Scotia (Minister of Education)
2003 3 SCR 3
para 26 as
follows:
‘
(e)ducation rights
play a fundamental role in promoting and preserving minority language
communities.  Indeed, '[m]inority
language education rights are
the means by which the goals of linguistic cultural preservation are
achieved'.
Mr
Heunis contended that this concern is not only compelling at the
level of primary and high schools where the failure to provide

education would quickly result in the death of a language, but is
also important at the level of higher education since universities

train the professionals and academics of tomorrow and if that
training does not occur in a particular language, the language will

suffer over time, both as a social language and as a language of the
professions, business, science and so on.
[26]
In
Mikro,
case
supra,
Streicher JA held that
"(t)he
right of everyone to receive education in the official language or
languages of their choice in public educational institutions
where
that education is reasonable practicable is a right against the
State"
. See para 31 of judgment. In
Ermelo,
Moseneke
DCJ, speaking for the Court, stated as follows:
‘
The right to receive
education in the official language of one's choice in a public
educational institution where it is reasonably
practicable is located
in s 29(2) of the Constitution.  In order to give effect to this
right, the same provision imposes
a duty on the State to consider all
reasonable educational alternatives, including single-medium
institutions, taking into account
what is equitable, practicable and
addresses the results of past racially discriminatory laws and
practices.
Turning
to examine section 29(2), he said the following:
‘
The provision is made
up of two distinct but mutually reinforcing parts.  The first
part places an obvious premium on receiving
education in a public
school in a language of choice.  That right, however, is
internally modified because the choice is available
only when it is
'reasonably practicable'.  When it is reasonably practicable to
receive tuition in a language of one's choice
will depend on all the
relevant circumstances of each particular case.  These would
include the availability of and accessibility
to public schools,
their enrolment levels, the medium of instruction of the school that
its governing body has adopted, the language
choices that learners
and their parents make, and the curriculum options offered.  In
short, the reasonableness standard build
into s 29(2)(a) imposes a
context-sensitive understanding of each claim for education in a
language of choice.’
Malherbe
–
the
Constitutional Dimension of the Best Interests of the Child as
applied in Education
(2008
TSAR 267)
, points out,
"learner
numbers, costs, availability of facilities and educators, the
distance to the nearest similar institution that is
able to provide
education in the chosen language, and the chosen medium of
instruction in the case of universities, can be relevant
factors that
may determine whether, in a particular case, it is reasonably
practicable to provide such education.’
The
applicants place reliance also on Woolman & Bishop,
supra
op cit
page 59 where the learned authors say that language of choice
instruction is reasonably practicable
‘
where
sufficient numbers of learners request instruction in their preferred
language…and no adequate alternative school exist
to provide
such instruction’
.
The authors
opine that at that point, the educational institution ‘
is
under an obligation – with assistance from the State – to
provide instruction in the language of Choice’.
[27]
Speaking to the Section 29 (2) requirement, Malherbe
supra
made
the following observation:
‘
Although this
provision does not provide for a right to single-medium institutions,
it imposes a particular duty on the State and
on any applicable organ
of State.  In choosing the appropriate institution in general or
in a particular case, the State must
consider all reasonable
alternatives in a bona fide way, taking into account what is
educationally appropriate, as well as the
listed factors of equity,
practicability and the need for redress.  The factors carry
equal weight and must be balanced.
What may be equitable to
everybody concerned may not be practicable or educationally
reasonable or appropriate, and what may be
practicable may not serve
to redress of historical inequalities.  This duty applies in the
case of existing institutions as
well.’
Of
course the Supreme Court of
Appeal
pointed out in
Mikro
case
supra
at paragraph 30 of the judgment, that Section 29
(2) does not mean that:
"Everyone has the right
to receive education in the official language of his or her choice at
each and every public education
institution where this was reasonably
practicable.  If this were the correct interpretation of s
29(2), it would mean that
a group of Afrikaans learners would be
entitled to claim to be taught in Afrikaans at an English medium
school immediately adjacent
to an Afrikaans medium school which has
vacant capacity provided they can prove that it would be reasonably
practicable to provide
education in Afrikaans at that school.
So interpreted, since the right in question extends to 'everyone',
this would entail
that boys have a constitutional right to be
educated at a school for girls if reasonably practicable."
The
fact of the matter is simply that once it is shown that education in
the language of choice is reasonably practicable, it becomes

necessary to consider the second part of Section 29 (2), i.e. the
means to fulfil the right. In truth, at that point, as the
Constitutional
Court said in
Ermelo
case, the second sentence
of Section 29 (2) places ‘
an injunction on the State to
consider all reasonable educational alternatives’
to
achieve the right. In the determination of what alternatives to
employ, ‘
the State must take into account what is fair,
feasible and satisfies the need to remedy the results of past
racially discriminatory
laws and practices’
.
Woolman
& Bishop
op cit
page 61 pointed out that the combination
of these factors means that ‘t
he State cannot simply invoke
an overriding commitment to “equality” or
“transformation” in order to dismantle
single medium
institutions’
.
See
also in this regard
Laërskool
Middleburg en ‘n Ander v Departmentshoof  Mpumalanga
Departement van Onderwys, en Andere
2003 (4) SA 160
(T). Mr   Heunis contended as follows:
‘
One of the crucial
flaws in the decisions which led to the adoption of the new language
policy is precisely that the Council and
the Senate of the SU did not
consider what was "reasonably practicable" at the
University and has clearly overlooked
that, as an organ of state, it
is co-responsible for taking the desired measures, and not to abolish
measures that were in place
and were consistent with the LPHE and the
Constitution, particularly in the face of the Ermelo decision's
affirmation of the principle
of non-retrogression.  This
doctrine stands squarely in the way of a decision that has the effect
of curtailing vested rights
that claim the protection of the
Constitution.’
[28]
In his submission although the SU is a historically Afrikaans
University, it has established English as a language of learning
and
teaching to a considerable extent and the issue is not whether it
should offer learning in English at all (that was the point
of
contention in the case concerning the Afrikaans-medium in Mikro
Primary School).  The issue is what the nature and extent
of the
SU's English and Afrikaans offering should be.  Section 29 (2)
truly obliges the State to consider all reasonable educational

alternatives in order to achieve the right. Needless to mention that
in
Ermelo
case
supra
,
the Constitutional Court emphasised that when determining what
alternative to employ (as already mentioned), the State is obligated

to take into account what is fair, feasible and what satisfies the
need to remedy the results of past racially discriminatory laws
and
practices. It is true that in the
Ermelo
matter
the Constitutional court also held that when a person 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. See para
53 of the
Ermelo
judgment.
[29]
Mr Heunis drew the attention of the Court to Section 23 of the
Canadian Charter of Rights and Freedoms
which grants parents
who are minority language speakers in a province – whether
French or English – the right ‘
to have their children
receive primary secondary school instruction in that language in that
province’
. The latter Section (S 23 of the
Canadian
Charter of Rights and Freedoms)
is, according to Mr Heunis
closely analogous to our Section 29 (2) under discussion. In
Association des parents De L’ecole Rose – Des –
Vents v British Colombia (Education)
2015 2 SCR 139
para 27, the
Canadian Supreme Court held:
‘
The gradual loss of
the mother tongue is inevitable without some institution to give
formal instruction in the language and to enhance
its prestige by
according it some social recognition.’
In
Canada the right is granted to parents, not to children and is only
incidentally concerned with the quality of the education.
In
Mahe
v Alberta
1990 1 SCR 342
, the Canadian Supreme Court interpreted the
limitations imposed in Section 23 (3) to create a sliding scale of
the right to minority-language
education.  At the upper end of
the scale is what is promised in Section 23 (3) (b) namely ‘
minority
language educational facilities provided out of public funds"
.
Indeed at the lower end is the simple ‘
instruction’
mentioned in Section 23 (3) (a).  Therefore ‘S
23
guarantees whatever type and level of rights and services is
appropriate in order to provide minority language instruction for
the
particular number of students involved’
.
See page 366 of the
Mahe
judgment. When the number of learners warrants the provision of
education at the upper end of the scale, then the Courts in Canada

apply a test of ‘
equivalency’
.
The minority-language facilities must be equivalent to the
majority-language facilities.  The Canadian Supreme Court
has
held that ‘
the
educational experience of the children
(must)
be
of meaningfully similar quality to the educational experience of
majority language students’
.
See
Association
des parents
case supra para 33. The question is whether parents would be
‘
deterred
from sending their children to a minority language school because it
is meaningfully inferior to an available majority
language school’
.
See
Association
des parents
case para 34.
[30]
A three-pronged argument presented by Mr Heunis on the application of
the Section 29 (2) criteria maintaining that it has to
take into
account of: (a) the importance of the retention and protection of
Afrikaans' status as an academic and science language
and as a
national asset which can only be secured if it is used as a language
of instruction at the tertiary level of education;
(b) that it could
never have been the intention of section 29(2) that the right of
Afrikaans-speaking students to choose Afrikaans
as a language of
instruction at public institutions of tertiary education would be
systematically phased out bearing in mind also
that the other
indigenous languages have to be developed in the interests of a
multilingual society and that the exclusion of Afrikaans
through its
replacement by English cannot be conducive to the multilingual ideal;
(c) that the erosion of Afrikaans at the tertiary
level of education
will inevitably put pressure on schools to also treat English as the
dominant language and will no doubt have
a domino effect which will
result in the right of mother-tongue education, which derives from
section 29(2), being eroded also
at schools with obvious detrimental
implications for Afrikaans as also the quality of education and the
promotion of multilingualism.
[31]
In Mr Heunis’ contention regarding what is fair and what will
remedy the results of past racially discriminatory laws
and
practices, the language policy (the 2014 Policy) which is being
replaced by the New Language Policy (the 2016 Policy) clearly
passes
muster. In this regard the contention advanced on behalf of the
applicants is as follows:
‘
The decimation of the
Afrikaans lecture offering is not justifiable, particularly since
there is only one other option for Afrikaans
learning in South Africa
and none in the Western Cape Province.  The people of this
Province have a legitimate expectation
that the SU will cater
primarily (although not exclusively) to students from the Province.
There is also a legitimate concern
that abrogating the Afrikaans
lecture offering will adversely and irreversible affect the role of
Afrikaans at the university and,
as a result, in higher education in
South Africa generally.’
I
point out without expanding on this issue that the fact of the matter
is that students at all universities (including SU) come
from various
parts of the Provinces of South Africa. They also come from the other
countries, not only of the African continent
but also European
countries. They choose to study at a particular university for
various reasons. Some universities have acquired
international
reputation, even students born in the Western Cape enrol (by choice)
to other universities in the Country. Nothing
binds them to only
enrol at SU.
[32]
It is absolutely true that when weighing the competing interests of
Afrikaans-  speakers and Blacks (Africans) with no
or inadequate
Afrikaans, it is also important to bear in mind that the Constitution
aims at achieving an equality of opportunities
not inequality or
equivalence of burdens.  The Constitutional Court put it rather
eloquently in
Minister of Home Affairs and Another v Fourie and
Another; Lesbian and Gay Equality Project and Others v Minister of
Home Affairs
and Others
[2005] ZACC 19
;
2006 (1) SA 524
;
2006 (3) BCLR 355
(CC)
by stating that when section 9 (2) of the Constitution speaks of the
State taking measures to promote the achievement of equality,
it
‘
calls for equality of the vineyard not the graveyard’
.
Mr
Heunis, talking to the feasibility, told this Court that he knows
that the SU has the financial, infrastructure and personnel
resources
for equality teaching because that was required in terms of the
language policy which is now being replaced (the 2014
Policy).
He referred this Court to
Gauteng
Provincial Legislature
case
supra
particularly where Kriegler J stated the following:
‘
The standard of
reasonable practicability is elastic – as it necessarily has to
be in order to leave room for a wide range
of circumstances.  It
is, however, objectively justiciable, which means that arbitrary
governmental action can be restrained
by the Courts.
Accordingly, meaningful numbers of language-speakers have an
enforceable right against the government to instruction
in the
language of their community as long as it is reasonably practicable.’
Reliance
is also placed on the concurring judgment of Sachs J in the same
matter, particularly the following portions:
‘
[46] The first
assumption is that the 'never again' principle, which I feel should
be one of our guides to interpretation, applies
not only to bitter
experiences of former State enforced segregation, but also to those
of past compulsory assimilation.  This
was a major theme at the
National Convention held to draft the document which became the
Constitution of the Union of South Africa
in 1910.
[47] The second assumption
is that the Afrikaans language, like all languages, is not simply a
means of communication and instruction,
but a central element of
community cohesion and identification for a distinct community in
South Africa.  We are accordingly
dealing not merely with
practical issues of pedagogy, but with intangible factors that, as
was said in Brown v Board of Education
of Topeka, form an important
part of the educational endeavour.  In addition, what goes on in
schools can have direct implications
for the cultural personality and
development of groups spreading far beyond the boundary fences of the
schools themselves.
[48] The third assumption is
that there exists amongst a considerable number of people in this
country a genuinely-held, subjective
fear that democratic
transformation will lead to the down-grading, suppression and
ultimate destruction of the Afrikaans language
and the
marginalisation and ultimate disintegration of the Afrikaans-speaking
community as a vital group in South African society.
[49] The fourth assumption
is that the Afrikaans language is one of the cultural treasures of
South African national life, widely
spoken and deeply implanted, the
vehicle of outstanding literature, the bearer of a rich scientific
and legal vocabulary and possibly
the most creole or 'rainbow' of all
South African tongues.  Its protection and development is
therefore the concern not only
of its speakers but of the whole South
African nation.  In approaching the question of the future of
the Afrikaans language,
then, the issue should not be regarded as
simply one of satisfying the self-centred wishes, legitimate or
otherwise, of a particular
group, but as a question of promoting the
rich development of an integral part of the variegated South African
national character
contemplated by the Constitution.  Stripped
of its association with race and political dominance, cultural
diversity becomes
an enriching force which merits constitutional
protection, thereby enabling the specific contribution of each to
become part of
the patrimony of the whole.’
But
Justice Sachs added the following important observation:
‘
[49] Of course, vital
parts of the 'patrimony of the whole' are indigenous languages which,
but for the provisions of s 6 of the
Constitution, languished in
obscurity and underdevelopment with the result that at high-school
level, none of these languages have
acquired their legitimate roles
as effective media of instruction and vehicles for expressing
cultural identity.
[50] And that perhaps is the
collateral irony of this case.  Learners whose mother tongue is
not English, but rather one of
our indigenous languages, together
with their parents, have made a choice to be taught in a language
other than their mother tongue.
This occurs even though it is
now settled that, especially in the early years of formal teaching,
mother-tongue instruction is
the foremost and the most effective
medium of imparting education.’
[33]
Woolman
& Bishop
op
cit
page 59
supra
,
point out that the right to receive education in the official
language of one's choice in public educational institutions is not
an
unqualified right but is subject to a standard of reasonable
practicability presupposing sufficient numbers of learners requiring

instruction in a preferred language and that a failure to demonstrate
that request for instruction is reasonably practicable ends
the
enquiry. The latter was also a finding by the Supreme Court of Appeal
in
Mikro
case
supra
.
The
second sentence in Section 29 (2) requires that all reasonable
educational alternatives that would make mother-tongue or preferred

language instruction possible, ought to be considered. For instance,
for a single medium institution to be preferred to another
reasonable
practicable institutional arrangement, such as dual medium
instruction or parallel medium instruction, it has to be
demonstrated
that it is more likely to advance or satisfy the three listed
criteria of equity, practicability and historical redress.
See in
this regard
Woolman
& Bishop
supra
op cit
p. 57-60.
[34]
There are three factors which require consideration in the
interpretation and implementation of Section 29 (2) of the
Constitution.
It is not necessary to further explore these factors.
It suffices to mention, though that in Mr Heunis’ contention,
the third
factor (which talks to redress) weighs strongly in favour
of ensuring that the language is not a barrier to access for Black
(African),
Coloured and Indian students. In his contention though,
this consideration (for reasons advanced by him infra) does not
favour
the new policy over the old. He proffered these reasons: (a)
The old policy favoured multilingualism and sustaining the use of
Afrikaans. (b) While Afrikaans is a barrier to Black (African)
students, English is a barrier to many coloured students who were

also victims of the past discrimination and a move that decreases the
Afrikaans offering would negatively affect them, particularly
when
regard is had to the diminishing other options for Afrikaans-language
higher education. (c) It will not benefit Black (African)
students
since the previous policy was not a barrier to access for them
because in the prevailing parallel medium environment there
is a 100%
English offering. An important contention put forth by Mr Heunis is
that the facts regarding language demography in the
feeder areas of
universities, as also statistics regarding the language offer, on one
hand, and the demand of Afrikaans-speaking
matriculants, on the
other, have to be important considerations when decisions are made as
to whether or not Afrikaans as a language
of choice is reasonably
practicable. The concern expressed by the applicants is that not one
university remains as a single medium
Afrikaans University. This,
according to Mr Heunis, is a fact testifying to compliance with
(particularly) the third criterion
in Section 29 (2). He brought it
to the attention of the Court that as a consequence of the
developments the NWU and the SU were
(until the latter decided to
adopt the impugned 2016 Policy), the only universities at which
Afrikaans-speaking students had the
benefit of a 100% Afrikaans
offering. In the latter regard, the submission made on behalf of the
applicants is:
‘
In our submission the
fact that English has been introduced at all historical Afrikaans
universities as a language of instruction,
especially to comply with
the redress criterion in section 29(2), does not mean that Afrikaans
must inevitably be replaced by English
as the dominant language of
instruction since that would clearly fall foul of the fairness
criterion without any commensurate benefit
viewed from the
perspective of the demand which derives from the redress criterion.’
[35]
The applicants also postulate that the Constitution's recognition of
community rights, associational rights, religious rights,
cultural
rights and linguistic rights, creates a set of background conditions
against which the claim of continued parallel medium
instruction at
the SU has to be considered. The view taken on behalf of the
applicants is that ‘
an overriding commitment to “equality”
or “transformation”
cannot simply be invoked to
dispense with Afrikaans as a medium of instruction. See
Woolman &
Bishop
supra op cit
p. 60. Lastly on this aspect, the
applicants place reliance on the following observation made by
Professor Malherbe
supra
:
‘
A balance must also
be struck between the constitutional values of dignity, equality and
freedom.  Aspects of current education
policies fail to
appreciate this, especially when it comes to reflecting language and
religious diversity in education.  Policies
that deny this
diversity, and impose uniformity
(including
language uniformity)
in
the name of equality, will fail in the long run, because a unified
nation cannot be built by rejecting the bricks one has to
use.
As such policies marginalise people, and deny their self-respect and
self-worth; they affect their human dignity.
A clearer
understanding is needed of what nation building is about, and in
pursuing everyone's equal worth, it must be appreciated
that equality
will remain an illusive dream if people's uniqueness is ignored, and
if we fail to pursue equality within the context
of their diversity.
In the final analysis it is a quest for human dignity rather than
equality.  That is what Brown
v the Board of Education is
about.  That is what democracy in South Africa should be about.’
JURISPRUDENCE
THE APPLICANTS RELIED ON – DOMESTIC AND FOREIGN
(re:
FREEDOM AND DIVERSITY)
[36]
The Promotion of Equality and Prevention of Unfair Discrimination Act
4 of 2000 (‘the Equality Act’) recognises
in clause 2 of
the Schedule thereto that the failure to reasonably and practicably
accommodate diversity in education is an example
of an illustrative
unfair practice in the educational sector. Thus in
MEC for
Education, KwaZulu-Natal v Pillay
[2007] ZACC 21
;
2008 (1) SA 474
(CC), the
Constitutional Court recognised the significance of freedom and
diversity to the constitutional agenda.  What the
Constitutional
Court observed in this regard is the following: (a) The centrality of
freedom as one of the underlying values in
the Bill of Rights and the
injunction on the Courts to interpret all rights to promote the
underlying values of human dignity,
equality and freedom. (b) A
necessary element of freedom and of dignity of any individual is an
entitlement to respect for the
unique set of ends that the individual
pursues. (c) That our constitutional project not only affirms
diversity, but promotes and
celebrates it. The acknowledgment and
acceptance of difference is particularly important in our country
given its history. The
Constitution thus acknowledges the variability
of human beings (genetic and socio-cultural), affirms the right to be
different,
and celebrates the diversity of the nation.
The
Court was also referred to
Prince
v President of the Republic of South Africa and Others
[2002] ZACC 1
;
2002
(2) SA 794
(CC) which dealt with freedom of religion and the
protection of the associational nature of cultural, religious and
language rights.
I accept that international law does have an
important role to play in the interpretation of the Bill of Rights in
our Constitution.
Thus Section 39 (1) of the Constitution provides:
‘
(1) When interpreting
the Bill of Rights, a court, tribunal or forum-
(a) must promote the values
that underlie an open and democratic society based on human dignity,
equality and freedom;
(b) must consider international
law; and
(c) may consider foreign law.’
[37]
The relevance of international law to the South African
constitutional framework was explained by the Constitutional Court
as
follows in
Glenister v President of the Republic of South Africa
and Others
2011 (3) SA 347
(CC) at para 97:
“
[95] To summarise, in
our constitutional system, the making of international agreements
falls within the province of the executive,
whereas the ratification
and the incorporation of the international agreement into our
domestic law fall within the province of
Parliament. The approval of
an international agreement by the resolution of Parliament does not
amount to its incorporation into
our domestic law. Under our
Constitution, therefore, the actions of the executive in negotiating
and signing an international agreement
do not result in a binding
agreement. Legislative action is required before an international
agreement can bind the Republic.
[96] This is not to suggest
that the ratification of an international agreement by a resolution
of Parliament is to be dismissed
'as a merely platitudinous or
ineffectual act'.   The ratification of an international
agreement by Parliament is a positive
statement by Parliament to the
signatories of that agreement that Parliament, subject to the
provisions of the Constitution, will
act in accordance with the
ratified agreement. International agreements, both those that are
binding and those that are not, have
an important place in our law.
While they do not create rights and obligations in the domestic legal
space, international agreements,
particularly those dealing with
human rights, may be used as interpretive tools to evaluate and
understand our Bill of Rights.
[97] Our Constitution
reveals a clear determination to ensure that the
Constitution and South African law are interpreted
to comply with
international law, in particular international human-rights law.
Firstly, s 233 requires legislation to be interpreted
in compliance
with international law; secondly, s 39(1)(b) requires courts, when
interpreting the Bill of Rights, to consider international
law;
finally, s 37(4)(b)(i) requires legislation that derogates from the
Bill of Rights to be 'consistent with the Republic's obligations

under international law applicable to states of emergency'. These
provisions of our Constitution demonstrate that international
law has
a special place in our law which is carefully defined by the
Constitution.
[98] But treating
international conventions as interpretive aids does not entail giving
them the status of domestic law in the Republic.
To treat them as
creating domestic rights and obligations is tantamount to
'incorporat[ing] the provisions of the unincorporated
convention into
our municipal law by the back door'.”
The
fact is that our Country (South African) ratified the International
Covenant on Economic, Social and Cultural Rights (‘the

International Covenant’). Several General Comments have of
course been issued under the International Covenant which have

provided guidance to the Constitutional Court in its interpretation
of certain rights in the Bill of Rights. An example would be
Motswagae
v Rustenberg Local Municipality
2013 (2) SA 613
(CC) at footnote 6;
Residents
of Joe Slovo Community, WC v Thubelisha Homes (Centre on Housing
Rights & Evictions,
Amici
Curiae
)
2010 (3) SA 454
(CC) para 237 and
Government
of the RSA v Grootboom
2001 (1) SA 46
(CC) paras 30 and 31.
[38]
In support of the relief sought in these proceedings Mr Heunis
referred to what he called the threshold of justification. He

elucidated that the position at SU (a) was initially one of single
medium Afrikaans instruction; (b) thereafter of dual and parallel

medium English and Afrikaans instruction; and (c) currently of
predominantly English medium instruction to the virtual exclusion
of
Afrikaans.  He maintained that the consequence is that until the
adoption of the current language policy, Afrikaans-speaking
students
at the university had the right and option of being taught in
Afrikaans.  In his contention, the current policy (the
2016
Policy) deprives them of this right and it thus implicates the
negative elements of the right protected by Section 29 of the

Constitution. In
Mazibuko
v City of Johannesburg
2010
(4) SA 1
(CC) at para 47, the Constitutional Court reaffirmed that
traditionally, constitutional rights (especially civil and political
rights) are understood as imposing an obligation upon the State to
refrain from interfering with the exercise of the right by citizens

(the so-called negative obligation or the duty to respect).
According to the Constitutional Court social and economic rights
are
no different in that the State bears a duty to refrain from
interfering with social and economic rights just as it does with

civil and political rights. For example in
Government
of the Republic of South Africa and Others v Grootboom
supra
at para 34, the Constitutional Court held that a negative obligation
placed on the State and all other entities and persons to
desist from
preventing or impairing the right of access to adequate housing.  See
too
Ex
parte Chairperson of the Constitutional Assembly: In re Certification
of the Constitution of the Republic of South Africa
,
1996 (4) SA 744
(CC) at 79 and
Minister
of Health and Others v Treatment Action Campaign and Others
No2
[2002] ZACC 15
;
2002 (5) SA 721
(CC) para 46.
[39]
It is true that the Supreme Court of Appeal reaffirmed in
Afriforum
matter that a negative duty on the State exists not to take away or
diminish the right to being taught in Afrikaans without
justification.
Key to the assessment of the justification, according
to the SCA, is whether the context and the circumstances have
changed, and
if so, whether good reason has been proffered for the
change of policy. Mr Heunis argued that the current language policy
constitutes
a retrogressive measure in relation to the Afrikaans
speaking students’ rights to education whereas Section 29 (1)
(b) of
the Constitution requires that the State make rights to
further education progressively available and accessible. The Court
is
privy to the fact that, drawing from International experience in
this regard (in the context of the International Covenant), the

Committee on Economic, Social and Cultural Rights stated in General
Comment No. 3 that the duty to progressively realise rights
imposes
an obligation to move as expeditiously and effectively as possible
towards the goal of realising the right. The committee
commented that
‘
any
deliberately retrogressive measures in that regard would require the
most careful consideration and would need to be fully justified
by
reference to the totality of the rights provided for in the Covenant
and in the context of the full use of the maximum available

resources’
.
See General Comment No. 3 para 9.
[40]
In Mr Heunis’ contention the evidence tendered by the
University does not meet the above threshold test because Afrikaans

speaking students, although they are no longer more than 50% of the
total student population, remain the largest group. He conceded
that
there is a significant number of students who require to be educated
in English. He hastened to add that there would be no
justification
for not lecturing the Afrikaans speaking students in Afrikaans. A
mention must be made that according to the Constitutional
Court,
determining when it is reasonably practicable to receive tuition in a
language of one’s choice will depend on all
the relevant
circumstances of each particular case. I agree that the
Constitutional Court has not considered the issue in the context
of
university education. It has indeed provided a non- exhaustive list
of factors in the school context and to this end has emphasised
the
context-specific approach that must be employed. As far as the latter
approach is concerned, the applicants contend that the
following
evidence is of relevance: (a) Historically, there were 7 universities
that catered for Afrikaans medium of instruction.
This has
changed since the inception of democracy.  Currently, there is
only one university that offers Afrikaans as a medium
of instruction.
(b) In the Western Cape, the evidence demonstrates that despite the
Afrikaans speaking population accounting for
almost 50%, there is
currently not a single university offering Afrikaans as a medium of
instruction. (c) In the Western Cape,
Afrikaans is the first language
of a large majority of persons of colour whose interests are
affected.  The submission on
behalf of the applicants is that
when considering the threshold of reasonable practicability, this
Court must have regard to other
rights in the Constitution which
emphasise the importance of language to the Constitutional Court
agenda. A reference to Section
6, 31 and 9 was made.
[41]
The Court was also referred to
Hartson v Lane N.O
.
[1997] ZACC 12
;
1998 (1) SA
300
(CC) where the Court set out the stages for an equality enquiry.
This was done with reference to the Interim Constitution. In
Prinsloo
v Van der Linde
1997 (3) SA 1012
(CC) reliance is placed by Mr
Heunis on the following:
‘
It must be accepted
that, in order to govern a modern country efficiently and to
harmonise the interests of all its people for the
common good, it is
essential to regulate the affairs of its inhabitants extensively. It
is impossible to do so without differentiation
and without
classifications which treat people differently and which impact on
people differently. It is unnecessary to give examples
which abound
in everyday life in all democracies based on equality and freedom.
Differentiation which falls into this category
very rarely
constitutes unfair discrimination in respect of persons subject to
such regulation, without the addition of a further
element. What this
further element is will be considered later.’
A
point is made on behalf of the applicants that a clear
differentiation exists in the present case in that Afrikaans is being
ousted as a language of instruction on an exclusive basis but SU has
not demonstrated that the differentiation meets a legitimate

government objective. The contention is that since differentiation is
on the ground of language (listed in terms of section 9 (3)
of the
Constitution) it is presumed to be unfair. The impugned language
policy is also attacked on the basis that its impact is
that it
impedes the constitutional objective of diversity as opposed to
enhancing it. It is not only the Afrikaans speaking students,
but it
is also preferred by students of colour from this Province whose
mother-tongue is Afrikaans. The 2016 Policy adopted by
SU is
described as having failed to foster diversity in language. According
to Mr Heunis, the impugned policy instead, imposes
a singular
language option of English notwithstanding the provisions of Sections
6 and 31 of the Constitution. I undertake to consider
and analyse the
2016 Policy.
[42]
Mr Heunis is of the view that the Afrikaans speaking persons who are
unable to communicate adequately or at all in the language
of
instruction at the SU (English), they will, in all likelihood forego
the opportunity to study at SU, and if they are unable
to access
another university that has Afrikaans as a medium of instruction,
they may forego the opportunity for tertiary study
completely.
Talking to unfair discrimination a reference was made to Equality
Court. In the latter instance the claimant has to
show that there is
discrimination. Direct discrimination occurs when a law or policy
expressly singles out a group for inferior
treatment. On the other
hand, indirect discrimination (also argued Mr Heunis) happens when a
law or policy appears to be neutral,
but has a disproportionate
adverse impact on the protected class of persons. In Mr Heunis’
contention, since the vast majority
of Afrikaans-speaking students
are White and Coloured, the downscaling of Afrikaans as a language of
instruction amounts to discrimination
against them. One must observe
that the argument that the policy discriminates on the grounds of
language postulates that it withholds
benefits from
Afrikaans-speaking students that are enjoyed by English-speaking
students since preference is given to English and
there is no longer
a clear commitment to equality of the two languages. The
determination of fairness is not at all an easy task
to be involved
in. In anticipation of an argument to be presented on behalf of the
respondents, Mr Heunis contended as follows:
‘
Anticipating an
argument that because the use of English imposes a burden on
(primarily) Black (African) students whose home language
is not
English, it would be fair to expect Afrikaans students (including
both White and Coloured students) to endure a similar
burden by being
taught in a language other than their home language, namely English,
we submit that this type of formal equality
is not what the
Constitution (or the Equality Act) envisages.  It is an argument
for "the equality of the graveyard where
all people must be
equally badly off’.
[43]
In
Fourie
supra
, the Constitutional Court responding to
an argument that equality could be obtained by the State refusing to
issue marriage licences
to either heterosexual or homosexual couples
made the following observation:
‘
Levelling down so as
to deny access to civil marriage to all would not promote the
achievement of the enjoyment of equality.
Such parity of
exclusion rather than of inclusion would distribute resentment
evenly, instead of dissipating it equally for all.
The law
concerned with family formation and marriage requires equal
celebration, not equal marginalisation; it calls for equality
of the
vineyard and not equality of the graveyard.’
One
bears in mind that since the decision to adopt the new policy is
apparently said to be subject to review in that it was made
in the
exercise of a public power, the question calling for consideration is
whether, viewed objectively, the decision was rationally
connected to
the purpose for which the power was given. See
University of the
Free State supra and Pharmaceutical Manufacturers Association of
South Africa and Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC) paras 85-86. Of
course the above remains a factual enquiry and if a decision maker
acts within its powers, and considers the
relevant material in
arriving at a decision so that there is a rational link between the
power given, the material before it and
the end sought to be
achieved, the rationality threshold would be met. Of course if the
decision maker misconstrues its power,
it ordinarily will offend the
principle of legality thereby rendering the decision made reviewable.
See
Masetlha v President of the Republic of South Africa and
Another
[2007] ZACC 20
;
2008 (1) SA 566
(CC) para 81. Concluding on this aspect
Mr Heunis accused the Working Group, the Senate and Council as
follows:
‘
One of the most
important shortcomings of the decision-making process which led to
the adoption of the NLP is that neither the Working
Group nor the
Senate and the Council considered what would be reasonably
practicable and overlooked the fact that the SU, as an
organ of
State, is co-responsible for taking steps to implement the right
which derives from section 29(2) of the Constitution.
The NLP
falls foul of the LPHE, other provisions of the Constitutions and the
requirement that existing rights may not be compromised
without
justification.’
In
the process the SU is said to have abandoned its negative duty not to
abrogate an existing right without proper justification.
INTERNATIONAL
AND FOREIGN LAW
[44]
Admittedly, the jurisprudence in this area is not well developed.
The court was nevertheless referred to some international
instruments
and case law. Indeed there is some international and foreign
authority suggesting that there may be an obligation upon
States (in
certain circumstances) to recognise and progressively realise such a
right; to deploy available resources to support
the exercise thereof;
and not to withdraw such a right once it has vested, save where
retrogression in the implementation of the
right can be shown to be
justified. This court is obligated to interpret the Constitution and
the law such that the interpretation
complies with the relevant
international law to the extent the latter is not inconsistent with
our law. This was best elucidated
by the Constitutional Court in
Glenister v President of South Africa and Others
supra
at
para 97 where the Court observed as follows:
‘
Our
Constitution
reveals a clear determination to ensure that the Constitution
and South African law are interpreted to comply
with international
law, in particular international human-rights law. Firstly, s 233
requires legislation to be interpreted in
compliance with
international law; secondly, s 39(1)(b) requires courts, when
interpreting the Bill of Rights, to consider international
law;
finally, s 37(4)(b)(i) requires legislation that derogates from
the Bill of Rights to be 'consistent with the Republic's
obligations
under international law applicable to states of emergency'. These
provisions of our Constitution demonstrate that international
law has
a special place in our law which is carefully defined by the
Constitution.’
Article
26 of the
Universal Declaration of Human Rights
(‘
UDHR’
)
provides that ‘
Everyone has the right to education’.
The UN Committee on Economic, Social and Cultural Rights has
stated that measures entailing the withdrawal of a vested right:
‘
Would require the
most careful consideration and would need to be fully justified by
reference to the totality of the rights provided
for in the covenant
and in the context of the full use of the maximum available
resources.’
See
UNDOC
HR1/GEN
1
Rev 5.20
;
Liebenberg,
Socio-Economic Rights
(2009) p.189.
[45]
Mr Heunis referred also to the
International Covenant on Civil and
Political Rights
(‘
ICCPR’
) which affords
protection to the right to education.  Article 27 of ICCPR
provides:
"In those States in
which ethnic, religious or linguistic minorities exist, persons
belonging to such minorities shall not
be denied the right, in
community with the other members of their group, to enjoy their own
culture, to profess and practise their
own religion, or to use their
own language."
See
GA res 2200A (XXI), 21 UN GAOR supp.
(No 16) at 52,
UNDOC
A/6316 (1966), 999
UNTS
171, which came into force on 23 March
1976. Although the above is expressed negatively, the provision is
accepted by the UN Human
Rights Committee as conferring a positive
right. It places an obligation upon the State to protect a minority’s
identity
‘
and the right of its members to enjoy and develop
their culture or language’
.  See
Human Rights
Committee
, General Comment No. 23 (50):
The Rights of
Minorities
(Art 27) 08/09/04 CCPR/C/Rev. 1/Add. 5 (1994), paras
6.1 and 6.2. A reference was also made to the
United Nations
Convention on the Rights of the Child
(‘CRC’).
Perhaps a mention must be made that while the CRC protects the right
of a child from a minority group to ‘
enjoy his or her own
culture’
and ‘
to use his or her own language’
,
it does not guarantee a right to be taught in one’s mother
tongue or freedom from the assimilary effects of schooling,
particularly in the State sector. See H Cullen –
Education
Rights or Minority Rights?
(1993) 7
International Journal of
Law and the Family
p. 143. Article 2 (1) of the UN General
Assembly
Declaration on the Rights of Persons Belonging to
National or Ethnic, Religious or Linguistic Minorities
defines
the right of persons belonging to minorities as regards culture,
language and religion in positive terms as follows:
‘
Persons belonging to
national or ethnic, religious and linguistic minorities … have
the right to enjoy their own culture,
to profess and practice their
own religion, and to use their own language, in private and in
public, freely and without interference
or any form of
discrimination.’
The
Court was also referred to the
European Convention on Human Rights
(‘ECHR’) particularly article 2 of the
First Protocol
providing thus:
‘
No-one shall be
denied the right to education. In the exercise of any functions which
it assumes in relation to education and to
teaching, the State must
respect the right of parents to ensure such education and teaching in
conformity with their own religious
and philosophical convictions.’
The
judgment of the ECHR in
Belgian
Linguistics (No.2)
[1968] ECHR 3
;
(1979-80) 1 EHRR 252
, is regarded the most influential authority on
the interpretation of A2PI. The question was whether the failure to
make French-language
education available in the Flemish region, and
the withholding of grants from schools which did not give instruction
in Flemish,
violated A2P1 read with article 14, by discriminating on
the ground of language.  It was held that Article 2 of Protocol
1
(A2P1) to the ECHR
‘
does
not specify the language in which education must be conducted in
order that the right to education should be respected"
,
the right
"would
be meaningless if it did not imply … the right to be educated
in the national language or one of the national
languages, as the
case may be’
.
SUBMISSIONS
IMPLICATING PAJA SPECIFICALLY
[46]
Mr Heunis contended that the impugned decisions and the New Language
Policy (NLP) are subject to being reviewed and set aside
under PAJA
in that the SU is an organ of State. He referred to
Altech
Autopage Cellular (Pty) Ltd v The Chairperson of the Council of the
Independent Communications Authority of South Africa
(Case No
2002/08 (TPD). The latter is an unreported case where the Court
reviewed and set aside ministerial ‘policy’
directives,
rejecting arguments that the directions were not susceptible to
review, because they constituted executive rather than
administrative
action.  Davis J held that even if not so, the directives could
not escape review since they would then be
subject to the
constitutional principle of legality. The latter judgment only has
persuasive value that does not bind this Court.
In Mr Heunis’
contention the NLP and decisions which led thereto are invalid,
reviewable and fall to be set aside by reasons
of the provisions of
Section 6 (2) (a) (iii), 6 (2) (c), 6 (2) (d) and further provisions
of PAJA. He attacked the procedure followed
contending that the
process was procedurally unfair. The following are some of the
accusations labelled against the respondents:
(a) the decisions were
influenced by errors of law; (b) they were taken for ulterior
purposes or motives; (c) decisions were infected
with bias; (d) were
so unreasonable that no reasonable person could have supported such.
Importantly, the submission made is that
ignoring the comments of
interested parties in respect of the draft language policy
overwhelmingly supportive of the retention
of Afrikaans as a primary
language of instruction testifies to bias and the inappropriate
attachment to a pre-determined outcome.
In Mr Heunis’
contention, the whole process was designed to create the pretence of
a consultation without there having been
any real consultation. The
respondents are accused of having not honoured undertakings made to
Afriforum and the convocation regarding
consultation. On the
applicants behalf neither the Working Group nor the Senate and the
Council considered the Constitution and
the LPHE. Having documented
the submissions made on behalf of the applicants, it is now time
opportune to respond thereto. In the
nature of this matter, the best
response must be governed by subtopics. The discussion will be best
facilitated if I first briefly
describe the main elements of the 2014
Policy and the impugned 2016 Policy. I record briefly the reasons
advanced by SU as to why
it replaced the 2014 Policy with the 2016
Policy.
THE
ELEMENTS OF 2014 AND 2016 POLICIES
[47]
The SU adopted its first official language policy and an accompanying
language plan on 12 December 2001 following the publication
of the
national language policy for higher education (‘the LPHE’)
under Section 3 of the Act in November 2002. A mention
must be made
that under the 2002 Policy, Afrikaans was the default language of
undergraduate learning and instruction, with the
use of English being
allowed only after the reasons had been thoroughly considered. Of
course Afrikaans was also the default institutional
language with
English being used alongside Afrikaans as a language of internal
communication as circumstances may require. Both
Afrikaans and
English were used in postgraduate learning and instruction.
Afrikaans, English and, where possible, isiXhosa were
the languages
of external communication. IsiXhosa would (reportedly) be promoted as
a developing academic language.
[48]
On 22 November 2014, the SU Council adopted the 2014 Policy and it
made consequential amendments, to the language plan. Under
the 2014
Policy (a) Afrikaans and English were SU’s languages of
learning and teaching – it was committed to purposefully

extending the academic application of both; (b) Afrikaans and English
would be employed in various usage configurations, which
were spelled
out in more detail in the Plan; (c) Parallel-medium teaching and
real-time educational interpreting were the preferred
options where
practically feasible and affordable; (d) Postgraduate learning would
happen in both languages, with significant utilisation
of English;
(e) Documentation of prime importance had to be available in
Afrikaans and English; (e) Afrikaans and/or English and
where
feasible, isiXhosa had to be used by SU for external communication.
[49]
The Plan, as amended by the Council on 22 November 2014, gave
substance to the 2014 Policy. In particular, it created the following

language – specifications for undergraduate teaching in the
following order of preference: (a) for the first two years of

undergraduate studies, normally: (i) parallel-medium teaching in
separate groups for modules with 250 students or more (A+E); or
(ii)
real-time interpreting from Afrikaans to English (A+i) or from
English to Afrikaans (E+i)), depending on the language the
lecturer
was more comfortable with. (b) For the third year of undergraduate
studies and onwards: (i) preferred options: A+E; A+I
or E+i,
depending on the language the lecturer was more comfortable with; or
(ii) provided the relevant faculty can show: (a) the
preferred
options are not feasible; and (b) the support offered for students
who are not sufficiently academically literate in
Afrikaans or
English: (i) dual-medium teaching, i.e. the balanced use of Afrikaans
and English to one class group, with the Afrikaans
offering at least
50% (T-specification). The Plan states this exploits the proven
advantages of bi-or multilingual teaching and
is particularly suited
in the senior years of study, when students’ proficiency in the
two languages should be more strongly
developed. However, the Plan
acknowledges the T-specification supposes a certain minimum
proficiency in both these languages. Consequently,
the Plan that
students who do not understand one of the languages at all will miss
content in a context where they are not well
supported.  (ii)
English only (E), if the lecturer is not proficient enough in
Afrikaans for the T-specification; (iii) Afrikaans
only (A) where the
resources for multilingual presentation are not yet available. (c)
The Plan did however, allow for the use of
the T, E or
A-specifications in the first two years of undergraduate study,
provided it was indicated how students who lacked sufficient

Afrikaans or English language skills would be supported to benefit
from the full content of lectures.
WHY
CHANGE THE 2014 POLICY?
[50]
The 2014 Policy and Plan were intended to make it easier for
English-speaking students to obtain an education at SU. We are
told
that during 2015 and the first half of 2016 it became clear that the
2014 Policy and Plan (although it was not their purpose)
excluded
students who were proficient in English but not proficient in
Afrikaans. The majority of those students excluded were
Black
(African) students. As a result of their poor Afrikaans, the majority
of Black (African) students (i) could not fully understand
the
lectures presented in the A or T specifications; (ii) they felt
stigmatised by the real-time interpretation, which was almost
solely
used for translating the lectures they could not understand; and
(iii) they felt excluded from other aspects of campus life,
like
residence meetings and official SU events which took place in
Afrikaans, without interpretation.
[51]
It is not disputed that by contrast, nearly all Afrikaans-speaking
students were sufficiently proficient in English to understand
SU’s
academic content presented in English. Thus to require them to take
certain lectures in English would not impose a comparable
burden on
them. Importantly for many years SU has prescribed text books in
English, the result being that its students have at
least to be able
to read and understand English. We gather from the answering papers
that SU undertook a study of the cost of an
immediate change to a
full  parallel medium system and this indicated that it would be
an amount of about R640 million in
infrastructure and about R78
million per year for additional personnel. This reportedly,
translated to an approximately 20% increase
in fees (up by R8100 from
about R40 000 per year).
[52]
Consequently SU decided to adopt a new language policy (the 2016
Policy) which would result in a 100% English offering, but
would not
similarly increase the Afrikaans offering. According to the answering
papers, instead, it (SU) would manage the sum total
of the Afrikaans
offering so as to maintain access for students who choose to study in
Afrikaans and to further develop Afrikaans
as a language of
instruction where reasonably practicable. As hinted in the
introduction the 2016 Policy was adopted by Senate
on 9 June 2016 and
by the Council on 22 June 2016.
THE
2016 POLICY
[53]
The applicants in their contentions assume that the 2016 Policy will
cause the ‘virtual exclusion’ of Afrikaans.
The
respondents, however, are of the view that this assumption is totally
mistaken. Looking squarely at the 2016 Policy, one gathers
that it
does not reduce the Afrikaans offering at SU. In fact the expressly
stated goal of the Policy (at its para 7.4.1.2) is
to maintain and if
possible increase the Afrikaans offering subject to demand and
resources. Of course it does at the same time
adopt a preference for
English in certain circumstances in order to advance SU’s
multiple goals, namely, equal access, multilingualism,
integration,
and preserving Afrikaans, all within available resources. The purpose
and aims of the Policy are: (a) The Policy expressly
states that its
purpose is to ‘give effect to Section 29 (2) (language in
education) and 29 (1) (b) (access to higher education)
read with
Section 9 (equality and the prohibition against direct and indirect
unfair discrimination) of the Constitution’.
(b) It records
that ‘
[a]pplying and enhancing the academic potential of
Afrikaans is a means to empowering a large and diverse community in
South Africa’
. See Para 2 of the Policy. It explains in
detail how SU will ‘advance the academic potential of
Afrikaans’ in Para
7.5.3 of the Policy. (c) It repeatedly notes
SU’s commitment to multilingualism ‘
as a
differentiating characteristics of SU’,
and devotes an
entire Section to how SU will promote multilingualism and
particularly the use of Afrikaans and isiXhosa. (d) One
of its
principles is that ‘
[l]anguage should promote access…
and should not constitute a barrier to students or staff’
,
particularly in the light of past racial discrimination. See Policy
para 6.1. (e) It emphasises that the Policy ‘
and its
implementation are informed by what is reasonably praticable’
.
See Policy para 6.8. It then goes on to explain that reasonably
practicability included an assessment of:
‘
The number of
students who will benefit from a particular mode of implementation,
the language proficiency of the students involved,
the availability
and language proficiency of staff members, timetable and venue
constraints, as well as SU’s available resources
and the
competing demands on those resources.’
[54]
The operational parts of the Policy must be interpreted in light of
the above stated goals, purposes and principles. The provisions

regulating the use of Afrikaans as set out in the answering papers
are the following: As to learning and teaching, the Policy provides:

(a) Afrikaans and English are SU’s two languages of learning
and teaching; (b) undergraduate modules will be taught mainly
in
parallel medium (separate lectures in Afrikaans and English) or dual
medium (during each lecture all information is conveyed
at least in
English and summaries or emphasis on content are also given in
Afrikaans), or, in a limited range of circumstances,
in either
Afrikaans or English (Namely, where the nature of the subject matter
of the module justifies doing so, where the assigned
lecturer is
proficient to teach only in Afrikaans or English or where all the
students in the class group have been invited to
vote by means of a
secret ballot and these students who have voted, agree unanimously to
the module being presented in Afrikaans
only or English only]; (c) in
postgraduate learning and teaching, including final year modules at
NQF level 8, any language may
be used provided all the relevant
students are sufficiently proficient in that language.
[55]
In addition to the general policy provisions governing and teaching
set out above, the following further provisions govern
the use of
Afrikaans at SU: (a) In dual-medium module lectures questions in
Afrikaans are answered in Afrikaans. (b) In dual-medium
module
lectures and single-medium module lectures in English, during the
first year of study SU makes simultaneous interpreting
available in
Afrikaans; and during the second and subsequent years of study,
simultaneous interpreting is made available upon request
by a
faculty, if the needs of the students warrant the service and SU has
the resources to provide it. (c) For all undergraduate
modules, all
SU module frameworks and study guides are available in Afrikaans
compulsory reading material (excluding published
material) is also
provided in Afrikaans where reasonable practicable and students are
supported in Afrikaans during a combination
of appropriate,
facilitated learning opportunities (e.g. consultations during office
hours, or scheduled tutorials and practicals).
(d) Question papers
for tests, examinations and other summative assessments in
undergraduate modules are available in Afrikaans
and students may
answer all assessments and submit all written work in Afrikaans. (e)
A variety of information and communication
technology (ICT) enhanced
learning strategies, including podcasts and vodcasts of lectures, are
made available to students in Afrikaans
for the further reinforcement
of concepts and for revision purposes. (f) Afrikaans (together with
English) is used for internal
institutional communication, including
in all documentation of primary importance. (g) Afrikaans (together
with English) is used
for external communication.
[56]
Generally, SU advances the academic potential of Afrikaans by means
of, for example, teaching, conducting research, holding
symposia,
presenting short courses, supporting language teachers and hosting
guest lecturers in Afrikaans; presenting Afrikaans
language
acquisition courses; developing academic and professional literacy in
Afrikaans; supporting Afrikaans reading and writing
development;
providing language services that include translation into Afrikaans,
and editing of and document design for Afrikaans
texts; developing
multilingual glossaries with Afrikaans as one of the languages; and
promoting Afrikaans through popular-science
publications in the
general media. Additionally the following further policy provisions
govern the use of English at SU: (a) In
dual-medium module lectures
questions in English are answered in English. (b) In dual-medium
module lectures, during the first
year of study SU makes simultaneous
interpreting available in English; and during the second and
subsequent years of study, simultaneous
interpreting is made
available upon request by a faculty, if the needs of the students
warrant the service and SU has the resources
to provide it. (c) In
single-medium module lectures in Afrikaans, SU makes simultaneous
interpreting available in English. (d)
For all undergraduate modules,
all SU module frameworks and study guides are available in English,
all compulsory reading
material is provided in English except
where the module is about the language itself and students are
supported in English during
a combination of appropriate, facilitated
learning opportunities (e.g. consultations during office hours, or
scheduled tutorials
and practicals). (e) Question papers for tests,
examinations and other summative assessments in undergraduate modules
are available
in English and students may answer all assessments and
submit all written work in English. (f) A variety of ICT-enhanced
learning
strategies, including podcasts and vodcasts of lectures, are
made available to students in English for the further reinforcement

of concepts and for revision purposes. (g) English (together with
Afrikaans) is used for internal institutional communication,

including in all documentation of primary importance. (h) English
(together with Afrikaans) is used for external communication.
[57]
In summary, the Policy creates three language specifications, namely,
parallel medium, dual medium and single medium. The parallel
medium
is employed where it is reasonably practicable and pedagogically
sound. Where parallel classes are not possible or appropriate,

classes are taught in dual medium meaning that: all material is
conveyed in English; (b) summaries or emphasis of content is provided

in Afrikaans; and (c) questions are answered in the language in which
they are asked. Additionally, (i) All first year dual medium
classes
are supported by simultaneous translation; and (ii) Lectures in later
years will be translated if there is a request by
the faculty, the
needs of students warrant it, and SU has the resources to provide it.
[58]
Single medium classes are offered in only three limited
circumstances: (a) where the subject matter justifies it; (b) where

the lecturer is only proficient in one language; or (c) where the
students unanimously vote by secret ballot to be taught in a
single
language. Where the lecture is single medium because of the
lecturer’s proficiency:
(a)
SU will always provide simultaneous translation from Afrikaans to
English; and (b) It will provide simultaneous translation
from
English to Afrikaans; (i) for all first year modules; and (ii) in
second and third year modules if there is a request by the
faculty,
the needs of students warrant it, and SU has the resources to provide
it.
[59]
The details below testify to the assertion that the Policy is
designed to grant the greatest possible tuition in English and

Afrikaans, within SU’s available resources. Indeed there are
only three ways in which the Policy treats English differently
from
Afrikaans and these are (a) in dual-medium module lectures all
information is conveyed at least in English, whereas summaries
or
emphasis of content is also given in Afrikaans. However, simultaneous
translation is made available in all first year dual medium
modules,
and in later years on request, considering student needs and
available resources. (b) for undergraduate modules where
the assigned
lecturer is proficient to teach only in Afrikaans, SU will make
simultaneous interpreting available in English during
all years of
undergraduate study. It is only during the second and subsequent
years of study that there is a distinction. In those,
English,
simultaneous interpreting will only be made available upon request by
a faculty, if the needs of the students warrant
the service, and SU
has the resources to provide it. (c) whereas all compulsory reading
material is provided in English (the exception
being where the module
is about another language), there are two limitations on the
provision of compulsory material in Afrikaans:
(i) Material which is
not published in Afrikaans need not be made available in Afrikaans;
and (ii) Non-published compulsory material
is made available in
Afrikaans where reasonably practicable.
[60]
In all other ways, it would appear, English and Afrikaans are treated
identically. While English enjoys preference, it can
safely be
mentioned that the impact on Afrikaans speakers is extremely limited.
The aforegoing is so because: (a) in the first
year of study there is
no difference at all. All lectures are given simultaneous
translation, students will have equal access;
(b) the limitations are
all linked directly to what is reasonably practicable. Whether SU
will offer a module in parallel medium,
and whether it will offer
simultaneous translation in dual-medium or English lectures in later
years of study is expressly made
subject to what is ‘
reasonably
practicable’
, or to the needs of students and SU’s
resources;  (c) The
slight
preference only applies to lectures and, to a limited degree,
materials. For pedagogical reasons, SU intends – like
other
universities across the world – to move away from the lecture
being the sole focus of learning and teaching. Other
facilitated
learning opportunities will become increasingly central to the
learning process. Those will be equally available in
English and
Afrikaans and increasingly in IsiXhosa; (d) the Policy creates an
accountability mechanism to ensure that Afrikaans
teaching is not
reduced significantly from pre-2016 Policy level and in increased
where this is possible. Paragraph 7.4.1.2 of
the Policy reads: ‘The
Afrikaans offering is managed so as to sustain access to SU for
students who prefer to study in Afrikaans
and to further develop
Afrikaans as a language of tuition where reasonably practicable’.
The Senate is obligated in terms
of paragraph 7.4.3 to approve all
language plans and so can send a plan back to the faculty for
reconsideration if it fails to
meet this requirement. The import of
this provision is that: (i) the Afrikaans offering cannot be reduced
materially as that would
not ‘
sustain access’
for
Afrikaans students; and the Afrikaans offering should be increased to
the extent that is logistically and financially practicable.
[61]
It is doubtful that there will be any reduction in the Afrikaans
offering (to the level suggested on behalf of the applicants)

compared to what was offered under the 2014 Policy. Obviously, that
will depend on how faculties implement the policy. Arguably,
it may
be that the 2016 Policy under discussion will lead to more parallel
medium classes and more simultaneous interpretation
which will
increase the total amount of Afrikaans tuition. Even if the reduction
becomes a reality, that cannot be described as
the intent of the
Policy and will certainly not be an inevitable consequence of
implementing the Policy. It clearly will be a direct
consequence of
the nature of student demand and the limits of SU’s resources.
I find it difficult to accept that the Policy
intends to reduce
Afrikaans. In my understanding, the Policy is crafted and/or designed
to retain the extent of Afrikaans tuition
under the 2014 Policy and
to offer as much Afrikaans tuition as SU is reasonably able to do so,
considering what is reasonably
practicable (particularly the needs of
students and SU’s resources).
A
CHALLENGE TO SU 2016 POLICY - BUT THE STATE POLICY NOT CHALLENGED
[62]
It is abundantly clear from the aforegoing discussion that the
applicants have sought to review and set aside SU’s 2016
Policy
and the decisions of the Senate and the Council adopting it. It has
been sufficiently demonstrated that the right to receive
education in
the official language of one’s choice in Section 29 (2) of the
Constitution is at the Centre of the applicants’
attack. The
applicants have not sought to challenge the State’s language
policy- the LPHE referred to earlier. It is trite
that the LPHE has
provisions that: (a) reject the idea that SU and the (then)
Potchefstroom University for Christian Higher Education
should be
designed as ‘custodians’ of Afrikaans as an academic
language, because doing so could concentrate Afrikaans
speaking
students in those institutions and thereby set back ‘the
transformation agendas of [the other] institutions that
have embraced
parallel or dual medium approaches as a means of promoting
diversity]; (b) reject the idea of Afrikaans universities,
as
district from universities which accept institutional responsibility
for promoting Afrikaans as an academic medium, because
Afrikaans
universities would be contrary to the end goal of a transformed
higher education system which, as indicated in National
Plan for
Higher Education, envisages ‘
the creation of higher
education institutions whose identity and cultural orientation is
neither black nor white, English or Afrikaans-speaking,
but
unabashedly South African’
; and (c) State that to achieve
the goal of sustaining Afrikaans as medium of academic expression and
communication, there must
be ‘
a range of strategies’
including ‘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 language of
instruction is not a barrier
to access and success’
.
[63]
Indeed the fact that there is no challenge to the State’s
language policy is of importance in the light of the SCA’s

holdings in
UFS
v Afriforum
supra
.
Needless to mention that the challenge there was limited to a review
of the decision to adopt UFS’S language policy. The
main
constitutional ground of attack in the
UFS
case
was that Section 29 (2) required the UFS to continue with its
existing parallel medium policy because there were no resource

constraints stopping it from doing so  (and even though in
practice it led to segregation along racial lines with mainly white

students attending the Afrikaans lecture). It must be pointed out
that, like the challenge in the present matter, the challenge
in
UFS
v Afriforum
supra
did
not extend to the LPHE.
[64]
In view of the confined target of the challenge in
UFS
v Afriforum,
the SCA held that difficult underlying questions about whether UFS’s
policy unfairly discriminated against linguistic and
cultural
minorities, or promoted ‘
majoritarian
hegemony at the expense of linguistic and cultural diversity’
,
or undermined ‘
the
fundamental language scheme of our constitutional order, which
requires the state to take practical and positive measures to
elevate
the status and advance the use of all official languages, instead of
diminishing their importance
’,
did not arise for decision. As Cachalia JA explained, ‘
such
questions may only be confronted through a substantive constitutional
challenge to the State’s language policy, and not
somewhat
diffidently or obliquely through judicial review, as the respondents
have done in this case’.
[65]
Regard being had to the aforegoing one may go so far as to say that
SU is not at all responsible for the fate of Afrikaans
throughout
South Africa. Its responsibility in this regard stretches to the
boundaries of the University itself. The deeper issues
about
‘
majoritarian hegemony’
must be dealt with through
an attack on the State’s policy, as expressed in the LPHE. SU’s
Policy complies with the
LPHE which allows each university to take
reasonable decisions on their own language policy. The Applicants’
real complaint
appears to be the cumulative effect of those decisions
by multiple universities that negatively impact Afrikaans-speakers.
As the
SCA held, the target then is the State’s language
policy, not SU’s Policy. The respondents contend that the 2016
Policy
is constitutionally compliant. The applicants have, in my
view, not persuaded this Court that the SU 2016 Policy is in any way
unconstitutional.
DO
THE IMPUGNED DECISIONS CONSTITUTE EXECUTIVE ACTION OR ADMINISTRATIVE
ACTION?
[66]
Notably both the applicants and the respondents have pleaded this
case on the basis that the impugned decisions constitute

administrative action as defined in PAJA. Indeed that was the
position the parties and the High Court adopted in
Afriforum
v University of Free State
(A701
[2016] ZAFSHC 130
(21 July 2016). Seemingly, the same approach
was adopted by the Full Court in
Afriforum
and Another v Chairperson of the Council of the University of
Pretoria and Others
[2017] 1 ALL SA 832
(GP) (even though in the latter case, there is no
clear finding on the aspect). However, in
UFS
v Afriforum
supra
,
the Supreme Court of Appeal held that the decision to adopt a
language policy taken by the Council of the UFS was executive in

nature and ‘
does
not constitute administrative action as contemplated by PAJA.’
See para 18 of the judgment. Thus the challenges to the decisions of
the Senate and Council could not be adjudicated under PAJA.
[67]
As highlighted earlier in this judgment, the applicants contend that,
because they (unlike UFS) have challenged the Policy,
PAJA does
apply. The point is, however, although the policy itself was not
challenged in the
University of the Free State
case, Cachalia
JA made it clear that the Policy itself does not amount to
administrative action. He held: ‘the policy itself
does not
adversely affect the rights of any person or have the capacity to do
so. Neither does it have direct, external legal effect’.
See
UFS v Afriforum
supra
para 18. It seems, it would only
be decisions taken in the implementation of the policy that would be
subject to administrative
review. Therefore on the authority of the
Supreme Court of Appeal PAJA remains inapplicable to the present
application. Of course
the decisions and the Policy are subject to
review under the principle of legality. That would essentially mean
that the grounds
of review that apply are more circumscribed and that
the intensity of review is reduced. The Supreme Court of Appeal
observed guidingly
as follows in this regard in
UFS v Afriforum
supra:
‘
The
question to be considered in this context is whether, objectively
viewed, the decision was rationally connected to the purpose
for
which the power was given. This is a factual enquiry and courts must
be careful not to interfere with the exercise of a power
simply
because they disagree with the decision or consider that the power
was exercised inappropriately. If, therefore, the decision-maker
acts
within its powers, and considers the relevant material in arriving at
a decision so that there is a rational link between
the power given,
the material before it and the end sought to be achieved, this would
meet the rationality threshold. The weight
to be given to the
material lies in the discretion of the decision-maker; so too does
the determination of the appropriate means
to be employed towards
this end. But if a decision-maker misconstrues its power, this will
offend the principle of legality and
render the decision reviewable.
’
[68]
Therefore, the only grounds of review that the applicants can rely on
are: (a) That the decision was substantively irrational.
See
Pharmaceutical Manufacturers Association of South Africa and
Another: In re Ex Parte President of the Republic of South Africa and

Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC). This of course is a far lower
standard than reasonableness required under PAJA. See
Democratic
Alliance v President of South Africa and Others
2013 (1) SA 248
(CC) at paras 29-32. The important message to bear in mind is that
Chaskalson CJ explained that, it is not for the courts to decide
that
there were better ways for the executive to achieve its goal. He
observed as follows:
‘
The
fact that there may be more than one rational way of dealing with a
particular problem does not make the choice of one rather
than the
others an irrational decision. The making of such choices is within
the domain of the executive. Courts cannot interfere
with rational
decisions of the executive that have been made lawfully, on the
grounds that they consider that a different decision
would have been
preferable.’
See
Bel Porto School Governing Body v Premier, Western Cape
[2002] ZACC 2
;
2002
(3) SA 265
(CC) at paras 41-5. (b) That the decision was procedurally
irrational. This of course does not require full procedural fairness

but merely a rational connection between the procedure adopted and
the purpose of the decision. See
Albutt v Centre for the Study of
Violence and Reconciliation
2010 (3) SA 293
(CC) at paras 49, 72
and 74;
Democratic Alliance v President of South Africa and Others
supra
at paras 27 and 34;
National Treasury and Another v
Kubukeli
2016 (2) SA 507
(SCA) at paras 16-18. (c) That the
decision was unlawful. This includes that: (i) the decision and the
policy are inconsistent
with the Constitution; (ii) The
decision-makers were biased or improperly influenced; (iii) The
decision was taken for an ulterior
purpose; and (iv) The decision was
ultra vires
.
Importantly,
the applicants cannot attack the decisions or the Policy on the basis
that they were unreasonable or procedurally unfair,
nor on the ground
that information was not considered, unless the failure to do so
tainted the rationality of the process as a
whole.  The
difficulty faced by the applicants is that even if PAJA is
nevertheless applicable, the Policy would still have
been lawfully
adopted and will thus survive substantive administrative law review.
THE
IMPLEMENTATION OF THE 2016 POLICY IS NOT BEING ATTACKED
[69]
The application was launched in September 2016 far before the Policy
was implemented (it was implemented on 1 January 2017).
The
applicants clearly believed that the 2016 Policy and the process
followed to adopt same are irredeemably flawed. In the evaluation
of
the substantive attack on the constitutionality of the Policy, this
Court is duty bound to evaluate it as written accepting

implementation as a reality. Several constitutional court cases have
spoken to this. In
S
v Jordan and Others (Sex Workers Education and Advocacy Task Force
and Others
as
Amici
Curiae
)
[2002] ZACC 22
;
2002 (6) SA 642
(CC), the applicants argued that a law criminalising
sex work was unfairly discriminatory because (in practice) it was
only enforced
against the sex workers, who were almost all female.
The Court rejected the argument for the following simple reason:
‘
What
happens in practice may therefore point to a flaw in the application
of the law but it does not establish a constitutional
defect in it.’
[70]
In
Minister
of Public Works and Others v Kyalami Ridge Environmental Association
and Others (Mukhwevho Intervening)
2001 (3) SA 1151
(CC), the Government established a transit camp to
aid flood victims. An organisation challenged the decision to
establish the
camp on the basis that it was unlawful. The High Court
upheld the challenge because the government could not implement its
decision
without obtaining the necessary consents under various
pieces of legislation (which had not yet been obtained). The
Constitutional
Court concluded that the High Court had been wrong to
take that approach because it ‘
failed
to distinguish between the taking of the decision and its
implementation
.’
As Chaskalson P (as he then was) explained, it was possible that the
decision could ‘
be
lawfully implemented if the necessary consents are obtained.
While the absence of the consents was a basis to interdict
implementation, ‘
it
is not a ground on which the decision can be set aside’,
so
the Constitutional Court reasoned.
South
African Police Service v Solidarity obo
Barnard
2014 (6) SA 123
(CC) concerned the reverse situation – a
challenge to implementation instead of the underlying policy itself.
The Constitutional
Court again stressed that the two types of
challenges are distinct. As the policy itself – in that case an
employment equity
plan – had not been challenged, the Court had
to accept that it was valid. The reverse is also true – where
implementation
has not been challenged, it must be accepted that it
will occur according to the policy.
[71]
Mr Muller took a point that the third applicant (Adv. JC Heunis SC)
participates in these proceedings as a party – (as
distinct
from his role as lead counsel for the applicants) in his official
capacity as the President of the SU Convocation; and
that as the
President of the Convocation he does not have legal capacity to bring
an application of this kind against SU, since
the Convocation itself
also does not have the requisite legal capacity and both the
Convocation and its President are organs of
SU and cannot adopt a
position in litigation adversarial to the University. In this regard
a reference was made to
Registrar of Pension Funds v Howie NO and
Others
[2016] 1 ALL SA 694
(SCA). In the latter case it was held
that the Financial Services Board does not have
locus standi
to review a decision of the Board of Appeal established by the
Financial Services Board Act 97 of 1990 because it cannot adopt
a
position adversarial to the Board of Appeal. The above point was,
however, not persisted with in view of the fact that there
are a
number of applicants involved in this matter. The point is thus not
dispositive of the issues in this application.
THE
CHALLENGES TO THE CONTENT OF THE 2016 POLICY
[72]
It has been demonstrated above that on authority of the Supreme Court
of Appeal in the
University of the Free State
matter, the
decisions and the Policy are executive action and subject only to
limited review on grounds of rationality and legality.
We are mindful
that the primary case presented by the applicants in the light of the
findings in
UFS v Afriforum
supra is that: (a) the Policy is
inconsistent with Section 29 (2) of the Constitution; (b) the Policy
constitutes unfair discrimination
against Afrikaans speakers and
White and Coloured students; and (c) the Policy is contrary to the
right of access to higher education
in Section 29 (1) (b) of the
Constitution.  It is by now common cause that the aforegoing
arguments rest on the standard of
reasonableness and fairness. The
contention by SU is that the Policy will not result in any reduction
in the Afrikaans offering.
In any event the differential treatment of
English and Afrikaans is justified by the necessity to ensure that
Black (African) students
are not excluded from SU, to promote
multilingualism, and to ensure integration. Another point made is
that it is consistent with
what SU is reasonably able to provide
given its resources.
THE
RIGHT TO EDUCATION IN THE LANGUAGE OF CHOICE (S 29 (2) OF THE
CONSTITUTION)
[73]
The legal position in the above regard has now been definitively set
out by the Supreme Court of Appeal in
UFS v Afriforum
supra.
The position is the following: (a) What is ‘
reasonably
practicable’
is an assessment of equity and historical
redress; (b) Courts should be extremely hesitant to interfere with a
university’s
determination of what is reasonably practicable;
and (c) it is rational for a university to conclude that it is not
reasonably
practicable to teach in Afrikaans because it will result
in an unconstitutional situation on its campus, such as segregated
classrooms.
A mention must be made that the Supreme Court of Appeal
upheld the UFS’s language policy which ended Afrikaans tuition
almost
entirely, solely to ensure that the campus was racially
integrated. There was no suggestion that UFS lacked the resources to
continue
to provide Afrikaans tuition, or that any students were
unfairly discriminated against as a result of the UFS’s prior
policy.
I am of the view that the fact that SU acted on the basis of
a more onerous understanding of the legal limits on its power to
determine
its own policy cannot be allowed to count against it.
INTERPRETATION
OF S 29 (2) ITS HISTORICAL CONTEXT, PURPOSE AND STRUCTURE
[74]
The above task has been embarked upon and concluded by the Supreme
Court of Appeal in the recent
UFS
v Afriforum
judgment. The right to own language education protected in Section 29
(2) has indeed a pedigree in international human rights law.
See, for
example,
UNESCO
Convention Against Discrimination in Education, art 5; The Document
of the Copenhagen Meeting of the Conference on the Human
Dimension of
the CSE, para 34; UN Declaration of the Rights of Persons Belonging
National or Ethnic, Religious and Linguistic Minorities
,
art 4.3 (‘
States
should take appropriate measures so that, wherever possible, persons
belonging to minorities may have adequate opportunities
to learn
their mother tongue or to have instruction in their mother tongue
’);
and the
Framework
Convention for the Protection of National Minorities
,
art 14. None of the instruments that South Africa has ratified
includes this right. None of the following conventions contain
an
express right to own-language education: The
African
Charter, the ICESCR, the ICCPR, the Convention on the Rights of the
Child, and the African Charter on the Rights and Welfare
of the
Child.
They
include only general prohibitions against discrimination on the basis
of language,
general
protections
of minorities’ rights to use their language, and rights to
basic education (not higher education).
[75]
As the applicants note, some commentators have argued that a limited
right to own-language education can be gleaned from these
provisions.
SU accepts that. But it does not alter the analysis of s 29(2)
because the international law does not impose a higher
standard on SU
than the Constitution does. The right is normally claimed by
vulnerable minorities who have been disadvantaged by
past or current
oppression by a majority. It is vital for those communities to
maintain their language and their community. One
of the key ways in
which they achieve those goals is through education in their own
language.
[76]
Nobody can deny that the South African context is more complicated.
Afrikaans- speakers are a linguistic racial and ethnic
minority in
this country. White Afrikaans-speakers, as a group are also (together
with White English-speakers) the beneficiaries
of Apartheid and are
as such undoubtedly economically and educationally an advantaged
group. Given the historical advantage given
to Afrikaans it enjoys
far better reach educationally than any other official language, save
for English. In this regard Moseneke
DCJ has observed in
Head of
Department of Education and Another v Hoërskool Ermelo and
Another
2010 (2) SA 415
(CC) (‘Ermelo’) at para 46:
‘
It is so that white
public schools were hugely better resourced than black schools. They
were lavishly treated by the apartheid
government. It is also true
that they served and were shored up by relatively affluent white
communities. On the other hand, formerly
black public schools have
been and by and large remain scantily resourced. They were
deliberately funded stingily by the apartheid
government. Also, they
served in the main and were supported by relatively deprived black
communities. That is why perhaps the
most abiding and debilitating
legacy of our past is an unequal distribution of skills and
competencies acquired through education.
’
This
was of course in the context of schooling. See also
MEC
for Education in Gauteng Province and Other v Governing Body of
Rivonia Primary School and Others
2013 (6) SA 582
(CC) at paras 1-2.
[77]
The Constitution addressed this history by allowing and mandating the
S
tate
to take measures to address past discrimination. See Section 9 (2) of
the Constitution which reads as follows:
‘
Equality includes the
full and equal enjoyment of all rights and freedoms. To promote the
achievement of equality, legislative and
other measures designed to
protect or advance persons, or categories of persons, disadvantaged
by unfair discrimination may be
taken.
’
Section
9 (2) needs to be read together with Section 7 (2) which imposes a
positive obligation on all organs of State to ‘
respect,
protect, promote and fulfil the rights in the Bill of Rights’.
Afrikaans speakers remain the bearers of the rights under Section 29
(2).  The Constitutional Court has recognised that Afrikaans
‘
is
one of the cultural treasures of South African national life
’.
See
In Re Dispute concerning the Constitutionality of Certain
Provisions of the Gauteng School Educational Bill of 1995
supra
at para 49, quoted with approval in
Ermelo
case
supra
para 48. I do not understand the case presented by SU to be denying
that Afrikaans speakers are fully entitled to the rights in
Section
29 (2) of the Constitution. But the truth is that the nature of the
right must be analysed with full acknowledgement of
the historical
context of State support for Afrikaans, disregard for other
indigenous languages, and racial exclusion from education.
In
City
of Tshwane Metropolitan Municipality v Afriforum and Another
[2016] ZACC 19
;
2016 (6) SA 279
(CC), Mogoeng CJ observed as follows:
‘
we
have made a solemn undertaking to embark on an all-inclusive
constitutional project, geared at achieving national unity and
reconciliation. The injustices of the past are not to be pampered or
approached with great care or understanding or sympathy. And
the
immeasurable damage racism or cultural monopoly has caused requires
that stringent measures be taken to undo it.’
Clearly
the commitment to equality, to redress and to equal access to further
education (motivating the LPHE as well) are and remain
fundamental
parts of the Constitution’s mission.
[78]
Talking to the purpose of Section 29 (2) Mr Muller submitted that it
serves two purposes, namely (a) ‘
To
improve the quality of education, as people learn better in their
mother tongue. It is therefore related to section 29(1) of
the
Constitution and, in the context of the University, to section
29(1)(b) which guarantees the right to “further education,

which the state, through reasonable measures, must make progressively
available and accessible’ a
nd
(b) to promote and maintain cultural communities. In
Gauteng
School Education Bill
supra
Sachs J explaining the language observed that ‘
is
not simply a means of communication and instruction, but a central
element of community cohesion and identification for a distinct

community in South Africa.’
It is linked to culture. See Section 31 of the Constitution. The
structure of Section 29 (2) is such that it achieves its
purposes
in ‘
two
distinct but mutually reinforcing part’
.
See
Ermelo
case
supra
para 52. It is so that the first part reads ‘
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’
.
This
clearly affords a right to own-language
tuition
only where that is
‘
reasonably
practicable’
calls
for a
‘
c
ontext-sensitive
understanding’
.
Indeed
in the context of basic education, the inquiry has been held to
demand a consideration of
‘
all
the relevant circumstances of each particular case’
including:
‘
the
availability of and accessibility to public schools, their enrolment
levels, the medium of instruction of the school that its
governing
body has adopted, the language choices that learners and their
parents make, and the curriculum options offered.’
See
Ermelo
supra
para 52. See also
Afriforum v UFS
supra
para 15
(‘factors such as learner numbers,
costs, availability of facilities and educators, the distance to the
nearest similar institution
that is able to provide education in the
chosen language, and the chosen medium of instruction in the case of
universities, can
be relevant factors that may determine whether, in
a particular case, it is reasonably practicable to provide such
education’)
.  The second part explains how the state
should provide the right if it is triggered by the first part –
if own-language
education is reasonably practicable. Section 29 (2)
places ‘
an injunction on the State to consider all
reasonable educational alternatives’
to achieve the right.
See
Ermelo
supra
at para 53. In order to determine what
alternatives are to be employed, ‘
the State must take into
account what is fair, feasible and satisfies the need to remedy the
results of past racially discriminatory
laws and practices.
”
See
Ermelo
supra
.
REASONABLY
PRACTICABLE AND REASONABLE EDUCATIONAL ALTERNATIVES
[79]
Indeed the most important finding in the Supreme Court of Appeal’s
judgment in
UFS v Afriforum
supra
remains the
recognition that what is reasonable includes an assessment of the
factors in the second part of Section 29 (2). It is
needless perhaps
to mention that the SCA was confronted with two competing
interpretations of the term ‘
reasonably practicable’
.
Afriforum argued that it was limited to logistical factors. UFS, on
the other hand, contended that it included an assessment of
other,
substantive factors, including the constitutional need to promote
integration. The SCA sided squarely with UFS and held
as follows:
‘
The legal standard is
reasonableness, which of necessity involves a consideration of
constitutional norms, including equity, redress,
desegregation and
non-racialism. The factual criterion is practicability, which is
concerned with resource constraints and the
feasibility of adopting a
particular language policy.
It follows, in my view, that
even if a language policy is practical because there are no resource
constraints to its implementation,
it may not be reasonable to
implement because it offends constitutional norms. The policy would
therefore not meet the reasonably
practicable standard.
’
See
UFS
v Afriforum
supra paras 26-7.
[80]
It is therefore settled law that the assessment of what is reasonably
practicable requires a consideration both of resource
constraints and
logistics (the factual criterion), and what is reasonable which
clearly includes considerations of equity, redress,
and non-racialism
(the constitutional criterion). In
UFS
v Afriforum
supra,
the
SCA concluded that UFS’s decision to almost completely end
tuition in Afrikaans was a rational executive decision because

Afrikaans tuition was no longer reasonably practicable. Therefore,
the UFS had considered,
inter
alia
,
the following: (a) The ‘
ever-increasing
numbers of black students opting for English-medium language
instruction, and correspondingly fewer numbers of white
Afrikaans
students seeking Afrikaans- medium instruction’;
(b)
The resulting racial segregation; and (c) The perception that
Afrikaans (White) students received closer supervision than English

(Black) students because they were in smaller classes.
[81]
The above consideration ‘
led UFS to conclude that the
continuation of the 2003 policy is not only reasonably practicable,
but absolutely impossible’.
Because that conclusion was
reached with ‘
the support of the overwhelming majority of
the University community’
and ‘
after proper
research, debate and deliberation’
a court ‘
should
be slow to interfere with [it] on review.’
See
UFS v
Afriforum
judgment
supra,
para 29. Additionally, the SCA
held, UFS’s policy was ‘
carefully calibrated’
.
It allowed currently-registered students to complete their studies in
Afrikaans, would be piloted in only three faculties, kept
Afrikaans
for tutorials (particularly for first year students), and kept
Afrikaans in specific faculties. UFS, therefore, had accordingly

correctly construed Section 29 (2), and had ‘
been exemplary
in the manner it approached the decision to reconsider the 2003
policy and adopt a new policy
’. See para 30 of
UFS v
Afriforum
supra
.  The same analysis was adopted in
Afriforum v University of Pretoria
supra
. There as
well, both the Senate and the Council had considered a range of
factors, but supported the new policy on the basis that
integration
was the most important factor. Kollapen J (writing for the full
court) who seemed to be applying the ordinary test
for reasonableness
rather than rationality – held that:
‘
both
Senate and Council applied their minds to a number of relevant and
often competing considerations and properly considered what
was
before them. The weight that they afforded to the different
considerations that were before them is not a matter for the Court
to
prescribe. In any event it hardly appears that the c
onsiderations
that occupied them were neither cogent nor relevant to the
determination of what the law required of them.’
He
concluded that UP had been responsive to the constitutional rights of
Afrikaans students, but that ‘
[b]eing
responsive can hardly equate to having to positively respond to the
request made’.
The
UP was held to have considered its language policy at ‘a high
level of engagement, thoroughness and transparency and the
ultimate
conclusion that it would
not
be reasonably practicable was reached after a proper consideration of
all the necessary and relevant factors in a context-sensitive

understanding within which the claim was located.
’
See para 30 of
University
of Pretoria
judgment
supra.
Mr
Muller pointed out that the prohibitive cost of full parallel-medium
lectures, and the incorporation of the ‘
reasonably
practicable
’
standard into the determination of when to offer parallel-medium or
simultaneous translation, means that the Policy must
stand even on
this more restrictive approach. The latter is an aspect still to be
considered
infra.
Having had regard to what the applicants contend, it perhaps suffices
merely to state that the
UFS
v Afriforum
supra
is
and remains the governing precedent and that its approach to what is
reasonably practicable makes it clear that what is logistically

possible, but constitutionally offensive is not reasonably
practicable.
[82]
As soon as the right has been established to exist, a university need
only consider the reasonable education alternatives only
if education
in the language of choice is ‘
reasonably
practicable’
as properly understood. I mention, however, that neither the SCA in
UFS
v Afriforum
supra
,
nor the High Court in
Afriforum
v University of Pretoria
supr
a,
reached this question because both courts held that continued
parallel-medium tuition was not reasonably practicable. Mr Muller

pointed out that it was rational for SU to conclude that Afrikaans
tuition beyond what is offered in the Policy is not reasonably

practicable. This, is an aspect which I consider later in this
judgment. The High Court in
UFS
v Afriforum
supra
held
that a single medium institution could only be preferred to another
reasonably practicable option that would provide mother
tongue
education ‘
if
it is more likely to advance or satisfy the three listed criteria of
equity, practicability and historical redress’
.
See para 28 of the
University
of the Free State v Afriforum and Another
(SCA)
supra
:
(a) From the perspective of equity, it held that doing away with
Afrikaans would not affect Black (African) students because the
vast
majority are neither English nor Afrikaans speaking. It would violate
Afrikaans-speakers’ Section 29 (2) negative right.
(b)
There being no suggestion that the previous, parallel medium position
was impracticable, UFS could not claim its new
policy was justified
on that ground. (c) On the question of redress, the Court held that
this factor ‘
weighs
strongly in favour of ensuring that language is not a barrier to
access for Black (African), Coloured and Indian students
’.
The High Court’s general approach to Section 29 (2) was
overruled by the SCA. It is of cardinal importance to mention
that
given the clear inter-connectedness of the two parts of the test, it
is highly likely that the SCA may have adopted an approach
that
leaned more in favour of access and integration, and in the process,
gave universities more leeway to determine their own
language
policies. Concluding on this aspect, Mr Muller contended that even
adopting the High Court’s approach to the matter,
when these
factors are applied to SU, it is plain that the 2016 Policy is a
‘
reasonable
educational alternative’
that fully complies with the obligations of Section 29 (2) of the
Constitution. In the answering papers it is demonstrated that
SU
accepts that it was functionally possible to continue to provide
tuition in terms of the 2014 Policy. It had the necessary
infrastructure, staff and monetary resources to do so. But that was
the case for both the UFS and UP when their policies were challenged

in court. However, doing so would not have been consistent with the
constitutional criterion.
[83]
The 2014 Policy referred to above was but a brave attempt to move
away from SU’s past and to recognise the equal status
of
English and Afrikaans. That much is demonstrated in the answering
papers and remain undisputed. The answering papers explain
that the
2014 Policy was adopted because of the changing demographics of SU’s
student body and the increasing demand for
English. However, despite
the intent to make SU equally accessible to all, that did not
apparently eventuate during the implementation
of the 2014 Policy.
The unintended consequence became that the 2014 Policy served to
exclude Black (African) students from full
and equitable access to
SU. That resulted from a combination of the linguistic and racial
demographics of SU’s student body,
and the manner in which that
policy was implemented. Statistically 63% of the 539 first years
without Grade 12 Afrikaans were Black
(African); 61% of all Black
(African) first years did not have Grade 12 Afrikaans. Additionally
82.7% of the Afrikaans-speaking
students were White; and only 17% of
the Afrikaans-speaking students were Coloured, while 62% of such
Coloured students were English-speaking.
The statistics appear from
the figures in the Breitenbach and Bishop opinion and were
incorporated by reference into the answering
affidavit.
[84]
As we gather from the answering papers (not disputed in reply), the
majority of African students could not learn in Afrikaans.
The 2014
Policy as shown earlier, adopted various language specifications or
options. How it functioned and how it became necessary
to replace it
with the impugned 2016 Policy has been dealt with supra. In passing
one may mention that there were significant complaints
by both the
Student Representative Council and Open Stellenbosch about
implementation and how simultaneous translation was provided,

lecturers were said to be unable or unwilling to lecture in both
languages and it being alleged that sometimes they ended up teaching

almost entirely in one language. The T-option in 2014 Policy is
described to have been more burdensome for the English-speaking

students who could not understand Afrikaans, than for Afrikaans
students who were sufficiently proficient in Afrikaans. Students

complained labelling the interpretation as often of poor quality. The
simultaneous translation was primarily used to translate
from
Afrikaans to English. Thus in 2015 and the first half of 2016 it
became clear to SU that the 2014 Policy discriminated directly

against English speakers, and indirectly against Black (African)
students. As explained in the answering papers, it was easier
for
White students to understand lectures than Black (African) students.
Of course this created a serious burden for Black (African)
students
to access further education. This burden was not experienced by their
white counterparts.
RETROGRESSIVE
MEASURES
[85]
One must acknowledge that the general rule against retrogressive
measures in socio-economic rights in both our law and the

international law as contended by Mr Heunis, also applies in the
context of Section 29 (2) of the Constitution. The truth is that

since the judgment in
Ex Parte Chairperson of the Constitutional
Assembly: In re Certification of the Constitution of the Republic of
South Africa
1996, 1996 (4) 744 (CC)
(‘the Certification
Judgment’
), the Constitutional Court has repeatedly
recognised that socio-economic rights include a duty not to take away
or diminish existing
access. The meaning of the negative right in
Section 29 (2) was (as alluded to earlier) pertinently been addressed
by the Constitutional
Court in
Ermelo
supra
where the
Court held, inter alia: ‘
[W]hen 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.’
Mr Heunis has of course
referred to this authority. However, the decisions in
UFS v
Afriforum
and
Afriforum v University of Pretoria
make it
abundantly clear that the negative element of the right does not
substantially alter the inquiry. In
UFS v Afriforum
,
supra
,
Cachalia JA indicated that he was aware of the above statement from
Ermelo
case
,
but held as follows:
‘
But
this does not mean that once the right exists it continues,
regardless of whether the context and the circumstances have changed.

A change in circumstances may materially bear on the question whether
it is reasonably practicable to continue with a policy.
What
is required of a decision-maker, when there is a change in
circumstances, is to demonstrate that it has good reason to change

the policy. In other words, it must act rationally and not
arbitrarily.’
The
same point was made by the full bench in
Afriforum v University of
Pretoria
supra as follows:
‘
I do not understand
that there are two tests of application here, one located in section
29(2) in so far as it relates to a request
for education in the
language of choice, and the other that applies to instances where the
right is already enjoyed. While it is
and must be so when the State
seeks to take the right away or diminish it, as is the case with the
introduction of the 2016 language
policy, there has to be sufficient
justification. Such justification in this instance is to be found in
the successful activation
of the test of reasonable practicability
found in Section 29(2). To suggest a different or a more onerous
justification would have
the effect of impermissibly entrenching
language rights.
’
See
para 54 of
Pretoria
judgment
supra
.
[86]
An important point to make is that neither the SCA nor the North
Gauteng full bench considered a separate test of ‘
appropriate
justification’
in finding that the universities in those
cases had complied with their obligations under Section 29 (2). The
point though is that
if SU can show that retaining the 2014 Policy
was not reasonably practicable, or that the impugned 2016 Policy is a
reasonable
educational alternative, then it has acted
constitutionally. One need not shy away from mentioning that the fact
that Afrikaans
speakers previously enjoyed greater rights does not
entitle them to retain those rights where it is not reasonable for
them to
do so. In my view, the applicants are wrong in stating that
Section 29 (2) means that SU ‘
may not take away or diminish
the rights of Afrikaans-speakers to receive education in Afrikaans in
order to increase the English
offering.
’ Plainly SU  may
do so provided that increasing the English offering is otherwise
consistent with Section 29 (2) because,
for example, it is necessary
to ensure all students can have equitable access to SU. Mr Muller is
correct in contending that whether
or not there is any reduction in
the Afrikaans offering is a question of implementation and is not a
necessary consequence of the
impugned Policy. The truth is that the
implementation of the Policy is not before us. If one assesses the
2016 Policy holistically,
one finds or comes to the realisation that
it is proportional to the goals it seeks to achieve. I can think of
no better and carefully
crafted policy. I am of the view that SU has
indeed advanced an ‘
appropriate justification’
for
any possible reduction in Afrikaans tuition that flows inevitably
from the Policy.
THE
NATURE OF THE OBLIGATION IMPOSED BY SECTION 29 (2) AND THE RELIANCE
ON FOREIGN AND COMPARATIVE LAW
[87]
The Supreme Court of Appeal in
Mikro
supra
removed any
conceivable doubt as to whose primary obligations are contemplated in
Section 29 (2) of the Constitution. The primary
obligations imposed
by Section 29 (2) rest solely on the State and not on individual
universities. The Supreme Court of Appeal
speaking to this aspect in
Mikro
supra
stated it categorically as follows:
‘
everyone has a right
to be educated in an official language of his or her choice at a
public educational institution to be provided
by the State if
reasonably practicable, but not the right to be so instructed at each
and every public educational institution
subject only to it being
reasonably practicable to do so.’
Almost
similarly, the full bench in the
University of Pretoria
supra
put it thus:
‘
Clearly the claim to
the right must be located and adjudicated upon within the context of
the education system as a whole and the
resources and other means
that exists within it, as opposed to the confines of any single
public educational institution at any
given time where such a claim
may arise’.
[88]
That is essentially the reason why the SCA in
UFS
v Afriforum
supra
held that the more difficult questions had to be addressed by a
constitutional challenge to ‘
the
State’s language policy’
,
not a review of a single university’s language policy. See
UFS
v Afriforum
supra
para 31. This certainly must be correct. Students cannot go to any
university and demand tuition in the language of their choice
where
they can access education in the same language at another university
nearby. The aforegoing must not, however, be understood
to mean that
SU has no obligations at all arising from Section 29 (2) and can
simply defer the problem to the national government.
SU is and
remains an organ of state and as such is a vehicle through which ‘
the
State’
provides higher education.  SU is required to comply with
Section 29 (2) when it adopts a language policy. But it is important

to emphasise that it is not SU’s to ensure that Afrikaans
students across the country have access to Afrikaans tuition. SU’s

obligation is limited to providing Afrikaans education where
reasonably practicable and through reasonable educational
alternatives.
Its obligation in this regard must necessarily be based
on its own existing and predicted student base, its own financial
resources,
and its own commitments to equity and redress. It clearly
cannot be the case that the lawful and constitutional decisions by
UFS,
UP and other universities to stop teaching in Afrikaans impose a
greater obligation on SU to continue teaching in Afrikaans. The
point
is simply that each individual university must be assessed
individually based on its own peculiar and particular facts and

circumstances.
[89]
It has been indicated above that the applicants’ place reliance
on Canadian law and international law. Section 39 (1)
(c) of the
Constitution is authority for the proposition that this court may
consider foreign law and that it must consider international
law.
However, I am still to be persuaded that the Canadian and
international authorities are particularly helpful in interpreting

Section 29 (2) of our Constitution. Our courts have already
conclusively interpreted Section 29 (2) in this precise context.  I

have reservation about the necessity and appropriateness for this
Court to turn to foreign or comparative law to seek to second-guess

the interpretations of the Constitutional Court, Supreme Court of
Appeal and the full bench in Pretoria. In any event it is to
be noted
that the Section of Canadian law was also referred to in the opinion
of Breitenbach SC and Bishop. One must perhaps paraphrase
Advocates
Breitenbach and Bishop’s opinion: (a) The Constitutional Court
has warned repeatedly about the danger of borrowing
uncritically from
comparative jurisprudence. See for example
Bernstein
and Others v Bester and Others NNO
[1996] ZACC 2
;
1996
(2) SA 751
(CC) at para 133;
Alexkor
Ltd and Another v Richtersveld Community and Others
2004 (5) 460 (CC) at para 33. More specifically, it has been held:
‘
The special
provisions of Section 23 of the Charter makes it a unique set of
constitutional provisions quite peculiar to Canada’
.
See
Gauteng Provincial Legislature In re: Gauteng School Education
Bill
1996 (3) SA 165
(CC) at para 15, quoting
Attorney-General
of Quebec v Quebec Association of Protestant School Board
et
al
[1984] 10 DLR 321
(S.C.C.) at 331. That statement itself must
be read with some caution as the Court was dealing with Section 32
(c) of the Interim
Constitution, the equivalent of Section 29 (3). It
noted that Section 23 was indeed analogous to Section 23 (b) of the
Interim
Constitution, the equivalent of Section 29 (2). (b) There are
a number of important differences between the Canadian protection
of
minority language rights, and the right to education in a language of
choice in Section 29 (2). The Canadian language rights
are part of
Canada’s unique constitutional history and settlement. Hence
the focus on provinces in which French or English
speakers are in the
minority. A mention must also be made that the nature of
discrimination and historical disadvantage against
linguistic
minorities while somewhat present in Canada, is most certainly vastly
different from South Africa’s Apartheid
past which imposed
Afrikaans on Black learners. (c) The Canadian right belongs to the
parents, not the children. See
Association des parents de l’ècole
Rose-des-vents v British Columbia (Education)
[2015] 2 SCR 139
at
paras 34-5. That alone highlights its importance as a right aimed at
the preservation of linguistic and cultural communities,
rather than
as a right directed to facilitating access to education. Our Section
29 (2) serves both purposes, neither of which
predominates. (d)
Section 23 of the Charter (unlike Section 29 (2) of the Constitution)
is expressly limited to primary and secondary
education. As shown in
the answering papers, the concerns of assimilation that animate the
decisions of the Canadian courts seem
less weighty in the context of
mother tongue education. The same hold true for the issues of
practicability and access. The fact
is there will always be fewer
universities and colleges than schools.
NOT
REASONABLY PRACTICABLE AND ABSENCE OF REASONABLE EDUCATIONAL
ALTERNATIVE
[90]
On the approach adopted in
UFS
v Afriforum
and
University
of Pretoria
supra
,
continuing with that position was not reasonably practicable because
it was inconsistent with the demands in Section 29 (2) for
equity and
redress. In the current case, it could not be equitable for the
majority of Black (African) students to be denied equal
access to SU.
It was plainly inconsistent with SU’s obligation to provide
redress to continue to exclude Black (African)
students in that way.
Undoubtedly, it was only reasonably practicable for SU to offer
Afrikaans tuition to the extent it could
do so without excluding
English-speakers. One may therefore competently argue that
Afrikaans-speakers had no Section 29 (2) right
to demand Afrikaans
tuition beyond what SU was reasonably able to provide without
excluding English speakers. What the 2016 Policy
does (in practical
terms) is that it provides as much Afrikaans tuition as is reasonably
practicable without excluding the majority
of Black (African)
students. It grants some measure of preference to English in limited
ways connected to the available resources:
(a)
Parallel-medium
teaching is the first option. According to the impugned 2016 Policy
the latter option must be used when it is ‘
reasonably
practicable and pedagogically sound
’.
This will depend on the size of classes and the availability of
lecturers and classrooms. Other learning opportunities
are provided
jointly in order to avoid the difficulties associated to lack of
integration. (b)  Dual medium teaching is used
when it is either
not reasonably practicable or not pedagogically sound. In this
category while not all information will be provided
in Afrikaans by
the lecturer, the important information is, and translation is
provided in all first year modules, and where resources
allow, in
other years. See para 7.1.4 of 2016 Policy. (c) Single medium English
teaching is only permitted where the subject matter
requires it, or
where no lecturer is available to teach in Afrikaans. Even in this
category SU provides translation for all first-year
modules, and for
other modules if SU has the resources to do so. It remains very
difficult
to conceive how SU could have crafted a language policy that offered
greater Afrikaans tuition, without excluding Black
(African)
students.
[91]
The apparent difficulty one encounters is that the applicants in the
founding papers do not provide any reasonable basis as
to how the
Policy should be amended to prevent exclusion while providing for
more Afrikaans tuition. All they suggest is that SU
should have
adopted a fully parallel-medium solution, or offer increased
interpretation services. As is apparent from the answering
papers,
these are not realistic solutions to the challenges SU faced. The
answering papers reveal that SU cannot afford full parallel
medium,
demonstrated by the study that was conducted. We are told it would
cost SU R640 million to create the additional infrastructure,
R78
million per year to employ the additional staff. That would translate
to a 20% increase, or at current fee rates, R8 100 per
year increase
in average fees. SU states that this would not be financially
feasible. This is an aspect criticised at some length
by the
applicants. But the fact of the matter is that the relevance of the
study is merely to show that moving to full parallel
medium tuition
was not reasonably practicable for the same reason advanced in
UFS
v Afriforum
supra
- it would result in a segregated campus. In fact, for the reasons
pertinently identified in
UFS
v Afriforum
and
University
of Pretoria
,
it may well be constitutionally undesirable to move to a full
parallel-medium policy. It would result in two separate streams
of
students who would have limited interaction. Although the 2016 Policy
continues to use some parallel-medium lectures, this is
necessitated
by the fact that SU’s student body remains almost 50% Afrikaans
and 50% English.
[92]
The answering papers explain that one of the reasons SU wishes also
to continue using both languages in a single lecture is
to prevent
segregation and promote multilingualism. The provision of
interpretation services for all lectures is not necessarily
a viable
option in that: (a) it would be too expensive and SU may not have the
resources to do so; (b) it is not a long term solution
because
interpretation will never be as good as a lecturer in the original
language. Although the applicants maintain that no students
were
denied access under the 2014 Policy, it si apparent that the 2014
Policy led to significant discrimination against Black (African)

students who were unable to understand Afrikaans. One must bear in
mind that
Afriforum
repeatedly
sought to prevent SU from increasing the English offering during the
very 2016 when SU sought to address the discrimination
which had
arisen in this regard. In conclusion there is sufficient evidence
testifying to the fact that it was not reasonably practicable
for SU
to continue with the 2014 Policy. It clearly would not be reasonably
practicable to offer more Afrikaans tuition than what
is currently
provided for in the 2016 Policy.
[93]
The applicants’s case on the constitutional question referred
to
supra
boils down to a series of complaints about the 2016
Policy, and primarily the implementation thereof. By way of a
summary, the applicants
essentially contend that: (a) SU failed to
consider the broader context of its decision; (b) SU has exploited
Afrikaans-speaking
students’ bilingualism; and (c) for various
reasons, the implementation of the Policy will result in a
substantial reduction
in Afrikaans offering. The most appropriate way
of evaluating these complaints, is to consider them as subtopics
(some of which
are combined).
THE
BROADER CONTEXT OF THE DECISION AND THE EXPLOITATION OF AFRIKAANS
STUDENTS
[94]
The applicants argue that SU’s constitutional obligations to
Afrikaans-speakering students have been more powerful due
to two
factors, namely: (a) several other universities cancelling or
diminishing the extent of Afrikaans tuition at the same time;
and (b)
If SU decreased its Afrikaans offering, that would reduce demand for
Afrikaans education at primary and secondary level
which would have
severe effects on Afrikaans culture. The aforegoing factors are
clearly beyond SU’s direct control. Perhaps
it is necessary to
state categorically that the aforegoing factors do not (in the least)
affect the legality of the 2016 Policy
or the Decisions. SU as an
institution cannot be said to be responsible for the provision of
Afrikaans tuition throughout the Country.
I have demonstrated earlier
in this judgment that the obligation rests on the State as a whole
and not individual universities.
A point that must be made also is
that SU’s obligations under Section 29 (2) cannot be determined
by the decisions taken
by other universities. I emphasise that SU is
of course obligated to merely act rationally and consistently with
Section 29 (2)
based on its own particular circumstances. Perhaps the
applicants must take the issue of what is perceived to be a
countrywide
pattern (that Afrikaans is being systematically phased
out of higher education), up with the National government. The point
is
that SU continues to teach in Afrikaans and the impugned 2016
Policy requires it to maintain or increase Afrikaans offering.
Countrywide
occurrences concerning Afrikaans usage do not result from
SU’s actions.
[95]
The SCA in
UFS
v Afriforum
supra
,
held that the Senate and the Council must merely have acted
rationally. This Court cannot second-guess the way the SCA weighed

various factors. The 2016 Policy is clearly rationally related to
SU’s goals of ensuring equitable access, promoting
multilingualism,
and providing as much Afrikaans tuition as possible,
all within its available resources. SU, which continues to provide
Afrikaans
tuition cannot conceivably, in my view, be found to have
acted unconstitutionally because other universities have lawfully
abolished
Afrikaans tuition altogether. It would be strange to single
out a
university
that continues to provide the most support for Afrikaans. It adopted
the 2016 Policy in order to ensure that students
had full and equal
access to higher education.
[96]
The applicants accuse SU of cynically ‘
exploiting’
or ‘
capitalising’
on the bilingualism of Afrikaans
students to reduce Afrikaans tuition. It is true that SU justifies
the 2016 Policy on the basis
that Afrikaans students are universally
bilingual whereas the majority of Black (African) students are not.
The reality is that
Afrikaans students will suffer less harm being
required to learn in English than English students will incur if they
have to learn
in Afrikaans. If SU did not take account of the
aforegoing, it would have acted irrationally. The complaint about
capitalising
on bilingualism is inconsistent with the argument that
SU is seeking equal disadvantage for all students. A similar argument
surfaced
before the Constitutional Court in the context of same-sex
marriage in
Minister of Home Affairs v Fourie
supra
.:
‘
Levelling
down so as to deny access to civil marriage to all would not promote
the achievement of the enjoyment of equality. Such
parity of
exclusion rather than of inclusion would distribute resentment
evenly, instead of dissipating it equally for all. The
law concerned
with family formation and marriage requires equal celebration, not
equal marginalisation; it calls for equality of
the vineyard and not
equality of the graveyard.
’
The
submission by the applicants is that because English is already the
second language for many Black (African) students, SU seeks
to
justify its policy on the basis that Afrikaans students should suffer
equal disadvantage by being required to learn in their
second
language. In my understanding of the answering papers, SU had to
choose between: (a) requiring the majority of Black (African)

students to attend lectures in a language they could not understand
at all; or (b) requiring Afrikaans students to attend lectures
in a
language they can understand, but is not their mother tongue. That
certainly is substantive equality that takes account of
South
Africa’s history and the need to promote equitable access for
all students. In the
University of Pretoria
case
supra,
the
full bench made the following observation:
‘
It
is true that instruction in English only may be to the advantage of a
small number of mainly white English speakers. All students
will, to
some extent, be disadvantaged ‘equally’. This is
sometimes referred to as the ‘graveyard’ option,
often
illustrated by the analogy of a swimming pool being closed because
black people are denied access to it, resulting in the
area being
left without a swimming pool. Whether an unlawfully discriminating
swimming pool is better than no pool is a choice
to be made.
’
See
para 51 of the
Pretoria
matter. Similarly, if the choice is
between some equal disadvantage for all, and disadvantage based on
race, then SU must be held
to have been justified in choosing the
former.
THE
IMPLEMENTATION OF THE 2016 POLICY AND THE ASSOCIATED COMPLAINTS
[97]
There are various complaints about how the 2016 Policy will be
implemented. The applicants claim,
inter alia
, that the
implementation result in a significant decrease in the extent of the
Afrikaans offering. However, the Decisions and the
2016 Policy are
either valid or invalid based on the manner in which they were taken,
and the content, and not how they are implemented.
What is before
Court is not a challenge about improper implementation. That is not a
case the respondents are called upon to meet.
I accept that concerns
about implementation could only possibly be relevant if the evidence
established that it was intended or
inevitable that the Policy would
have certain results, notwithstanding the internal accountability
mechanisms designed to ensure
proper implementation. The applicants
associated arguments advanced are discussed hereunder.
‘
The
applicants complain that the Faculties and Management have too much
power’
[98]
The nature of the above complaint is that the Policy under attack
delegates too much power to faculties and management to determine

what language option will be used in each module. Para 7.4.3 of the
Policy does require faculties to determine their language
specification for each module. That is subject to the approval by
Senate. Additionally, the Policy makes provision for: (a) annual

agreements between the Vice-Rector: Learning and Teaching and the
deans of the faculties on mechanisms to ensure accountability
for the
implementation of the policy, including the faculties’ annual
reports on the realisation of the implementation of
their language
implementation plans and the compliance reports which the faculties
must submit after each semester; and (b) an
annual report by the
Vice-Rector: Learning and Teaching to the Council, via the Rector’s
Management Team (‘RMT’)
and Senate, on the accountability
mechanisms agreed with the deans for the next ensuing year. See
Policy para 7.4.1 read with paras
8.1 and 8.3.
[99]
A reference to SU’s institutional statute reveals the
following: (a) ‘
The
day-to-day management of the University is the responsibility of the
Rector’s Management Team collectively or individually’
.
(b) Faculty boards are responsible for submitting recommendations to
Senate on academic programmes, which must include the language
of
instruction. (c) Council, by contrast, ‘
exercises
a general supervisory responsibility in respect of academic and
operational matters and institutional policy and strategy’
.
(d) Senate has very specific obligations that do not include
determining language specifications. See generally
Statute
of Stellenbosch University
serving as Annexure “GMS4” in the answering papers. In
passing I mention that the respondents contend that the structure
of
decision-making adopted in the Policy is consistent with SU’s
institutional statute. In any event, common sense and logic
dictate
that Faculties know what resources they have and how best to use
them. They know which lecturers are competent and available
to teach
which courses. The decisions they take are then inevitably subject to
appropriate oversight by Senate and Council to prevent
any abuses
that are inconsistent with the purpose of the Policy. That is how
universities function.
[100]
I am not persuaded that (as to the delegation linkage) it has been
shown that Management and the Faculties are biased against
offering
Afrikaans tuition. The applicants complain that, in their contention,
the Policy does not have adequately measurable goals.
It is true that
the 2016 Policy sets no strict requirements of, for example, the
percentage of modules that must be offered in
parallel medium, dual
medium, or the percentage of second and third years classes that must
have simultaneous translation. Mr Muller
pointed that, this was a
deliberate policy choice. He conceded that the advantage of strict
measures is that they provide clarity.
But, he elucidated, the
disadvantage is that they may unintentionally inhibit the achievement
of the policy’s real goals,
be unrealistic and unachievable, or
be unresponsive to changing circumstances.  This is fairly
clear. I understand why SU
opted for a different form of
accountability that rests ultimate authority with the Senate.
[101]
The different form of accountability opted for operates in the
following manner as gathered from the Policy itself: (a) Each
faculty
must annually prepare a Language Implementation Plan (LIP) and submit
it to Senate. The LIP describes how the faculty will
implement the
Policy, including which modules will be offered in parallel, dual and
single medium. Senate has the power to either
accept the LIP, or
refer it back to the faculty (para 7.4.3). (i) If changes are made to
the LIP outside of the annual review (for
example because a lecturer
becomes unavailable) those must be reported to Senate and to the
faculty board (para 7.4.4). (ii) Each
faculty is required to report
to the Vice-Rector: Learning and Teaching after each semester on its
compliance with the Senate-approved
LIP. The faculty must identify
and describe each instance of non-compliance with the LIP, “
the
reasons for it fully and the steps the faculty is or will be taking
to avoid future deviations from the [LIP]
” (para 8.3).
(iii) Each faculty reports annually to the Vice-Rector about any
difficulties in implementing the Policy, any
mechanisms to improve
implementation, and any suggestions for amendments to the Policy
(para 8.1). (iv) The Vice-Rector must agree
further accountability
mechanisms with the deans of the faculties and must report on those
mechanisms to the Council, the Senate
and the Rectors Management
Team. Those accountability mechanisms must have due regard to the
principles in paragraph 6, and the
following two principles (para
7.4.1):
‘
The English offering
is revised upwards so as to achieve full accessibility to SU for
academically deserving prospective and current
students who prefer to
study in English.
The Afrikaans offering is
managed so as to sustain access to SU for students who prefer to
study in Afrikaans and to further develop
Afrikaans as a language of
tuition where reasonably practicable.
’
I
agree that these accountability mechanisms must necessarily provide
SU with the necessary flexibility to manage the implementation
of the
Policy in the light of changing circumstances, but within defined
principled boundaries. In my finding, it was a reasonable
policy
choice for SU to make to achieve accountability in this way, rather
than through numerical targets.
[102]
Another complaint is that the possibility for lectures to be offered
in Afrikaans alone is illusory because there
are only 8 lecturers who
are proficient only in Afrikaans, whereas there are 202 lecturers who
are only able to lecture in English.
The answering papers accept the
aforementioned factual basis as accurate. There are, however,
respects that water-down the applicants’
argument in this
regard. These are set out as follows both in the answering papers and
the contentions advanced on behalf of the
respondents:
‘
The result of the
disparity in lecturers is that there will be more modules offered in
parallel-medium or in English than in Afrikaans
alone. The Applicants
can have no complaint about an increase in parallel-medium lectures.
Nor can there be a meaningful complaint
about English lectures where
it is not possible for SU to offer the module in dual medium (because
a lecturer is not available)
or parallel medium (because the size
does not justify the additional expense). That was the position even
under the 2014 Policy.
The real complaint is that,
in second and further years, Afrikaans lectures will automatically be
translated, whereas English lectures
will only be translated “upon
request by a faculty, if the needs of the students warrant the
service and SU has the resources
to provide it”. (para
7.1.5.2(a)). That minor relative burden is justified by the reality
of Afrikaans bilingualism, the
limited ability of a majority of Black
students to learn in Afrikaans, SU’s commitment to equitable
access, and the limited
available resources.
The extent of the burden
will depend on how often requests for translation are granted. There
is no evidence on this score and so
this court must accept that they
will be granted whenever it is reasonable to do so. On that basis, it
is impossible to declare
that the Policy is unlawful merely because
there are more English-only lecturers.’
I
cannot fault the aforegoing. In addition to a claim based on s 29(2),
the Applicants argue that the Policy constitutes direct
unfair
discrimination against Afrikaans-speaking students; and indirect
unfair discrimination against White and Coloured students,
belongs to
a different forum and not this Court. The Constitutional Court has
made it clear that complaints that the policies or
conduct of organs
of state violate the right not to be unfairly discriminated against
must be brought under the Equality Act, not
under the Constitution.
See
MEC
for Education: Kwazulu-Natal and Others v Pillay
[2007] ZACC 21
;
2008 (1) SA 474
(CC) at para 40. See also
My
Vote Counts NPC v Speaker of the National Assembly and Others
2016
(1) SA 132
(CC) at para 57;
De
Lange v Presiding Bishop of the Methodist Church of Southern Africa
for the time being and Another
2016 (2) SA 1
(CC) at para 53. This is of course a result of the
operation of the principle of subsidiary. The same point was
correctly made
in the opinion of Breitenbach SC and Bishop.
[103]
Litigants must bear in mind that where an applicant has multiple
claims, one of which is an equality claim, the correct procedure
is
to launch the case in both the High Court and the Equality Court and
then seek to have the matter heard by the same judge, sitting
as a
judge of both the Equality Court and the High Court. See
De
Lange
(n 201) at para 46 above,
citing
Manong & Associates (Pty)
Ltd v Department of Roads and Transport Eastern Cape and Others
(No 2)
2009 (6) SA 589
(SCA) at paras 54 and 57;
Manong
& Associates (Pty) Ltd v Department of Roads and Transport,
Eastern Cape, and Another
(No 1)
2009 (6) SA 574
(SCA) at paras 30-1; and
Minister
of Environmental Affairs and Tourism v George and Others
2007 (3) SA 62
(SCA) at paras 12-3.
Simply
put,
absent
an application in the Equality Court, a High Court judge has no power
to hear complaints in terms of the Equality Act. That
is why in
De
Lange
supra
,
the Constitutional Court refused to hear an unfair discrimination
claim that had been raised only in the High Court. See
De
Lange
judgment
at para 59.   The Applicants have launched this application
exclusively in the High Court. This Court lacks jurisdiction
to hear
the complaint. I demonstrate infra that even if this court had the
necessary jurisdiction to entertain this complaint,
the applicants
would still be faced with difficulties. I say so because even if the
limited preference granted to English under
the 2016 Policy
constitutes discrimination on the basis of language, it does not
constitute indirect discrimination on the basis
of race. In order to
establish that claim the applicants would have to demonstrate, at
least
prima
facie
that the Policy has a disproportionate impact on White or Coloured
students. That is, for example, is said to have occurred under
the
2014 Policy which imposed a disproportionate burden on Black
(African) students because the majority of them could not speak

Afrikaans at all. The majority of all students who could not speak
Afrikaans were Black (African). A consideration of the relevant

demographic information demonstrate that the same cannot be said to
be true of the 2016 Policy.
[104]
The test for fairness is set out in Section 14 (2) of the Equality
Act. The latter Section requires a Court to consider the
context and
the following factors:
‘
(3)
The factors referred to in subsection (2) (b) include the following:
(a)
Whether the discrimination impairs or is likely to impair human
dignity;
(b)
the impact or likely impact of the discrimination on the complainant;
(c)
the position of the complainant in society and whether he or she
suffers from patterns of disadvantage or belongs to a group
that
suffers from such patterns of disadvantage;
(d)
the nature and extent of the discrimination;
(e)
whether the discrimination is systemic in nature;
(f)
whether the discrimination has a legitimate purpose;
(g)
whether and to what extent the discrimination achieves its purpose;
(h)
whether there are less restrictive and less disadvantageous means to
achieve the purpose;
(i)
whether and to what extent the respondent has taken such steps as
being reasonable in the circumstances to-
(i) address the disadvantage
which arises from or is related to one or more of the prohibited
grounds; or
(ii) accommodate diversity.’
[105]
If one considers the aforementioned factors properly, one is
compelled to conclude that the 2016 Policy is fair in that: (a)
SU
accepts that access to tuition in the language of one’s choice
has a connection to human dignity and that (assuming there
is
discrimination at all) it will have some negative impact on Afrikaans
speakers. At the risk of being repetitive, SU still offers
tuition in
Afrikaans and accordingly any conceivable impairment of dignity is
minimal. Importantly, the majority of Afrikaans speakers
are able to
learn in English, particularly with the additional assistance offered
by SU in the first year of study. (b) Those who
are disadvantaged are
primarily White Afrikaans speakers. The truth is that they generally
occupy an historic and current position
of privilege in society.
Certainly, that weighs in favour of fairness. (c) The discrimination
is thus limited. It is systemic in
the sense that it flows from a
policy, but there is systematic discrimination against White
Afrikaans people generally. (d) The
2016 Policy serves the legitimate
purpose of ensuring equitable access to SU, and ensuring that Black
(African) students are not
prevented from learning. By ensuring that
all information will be available in English, it achieves that
purpose. (e) There (as
explained earlier) are no less restrictive
means to achieve that purpose within SU’s available resources.
The reason is because
the Policy requires the maximum possible
Afrikaans offering within SU’s resources. (f) The Policy
promotes (as it were) diversity
in that it makes SU an attractive and
accommodating space for all students, regardless of race.
Accordingly, any conceivable discrimination
is most certainly fair.
THE
RIGHT OF ACCESS TO FURTHER EDUCATION (S 29 (1)( b) OF THE
CONSTITUTION), INDIGENOUS LANGUAGE (S 6 (2) OF THE CONSTITUTION AND

THE LPHE
[106]
Some of the above topics have already been touched on. But their
importance and the pivotal role they have been employed to
play by
the applicants have earned them some passing observations. Section 29
(1) (b) of the Constitution grants everyone the ‘
right
to further education, which the State, through reasonable measures,
must make progressively available and accessible.’
Unlike the right to basic education in Section 29 (1) (a) which is
‘
immediately
realisable’
,
the right to further education is progressively realisable and
subject to reasonable measures. See in this regard
Governing
Body of the Juma Musjid Primary School & Others v Essay N.O. and
Others
2011
(8) BCLR 761
(CC) at para 37. Maybe one needs to encupulate the
applicant’s argument in this regard. They argue that the 2016
Policy violates
Section 29 (1) (b) because ‘
it
will exclude, alternatively impede access to the SU by Afrikaans
speaking learners’
.
The argument continues, and it says that, this is because Afrikaans
speakers who cannot obtain Afrikaans tuition at SU will not
study
there, and if they cannot study in Afrikaans elsewhere, will forego
tertiary education altogether. I fail to comprehend the
above
argument. The point is in terms of the 2016 Policy, first year
students can learn entirely in Afrikaans. In later years,
Afrikaans
is used as much as students’ needs demand, within SU’s
resources. Unlike Black (African) students who cannot
learn in
Afrikaans, Afrikaans-speaking students can learn in English.
Certainly, any barrier to access is rather minimal, considering
the
measures taken to teach in Afrikaans in the first year. There is no
evidence (non preferred by the applicants) that potential

Afrikaans-speaking students will rather not attend university than
attend SU if they must attend under the 2016 Policy rather than
the
2014 Policy. I hold that there is no violation of Section 29 (1) (b)
of the Constitution.
[107]
T
he
Applicants appear to launch a separate constitutional attack based on
Section 6 (2) of the Constitution. Section 6 (1) of the
Constitution
identifies the 11 official languages of South Africa. Section 6 (2)
provides: ‘
Recognising
the historically diminished use and status of the indigenous
languages of our people, the State must take practical
and positive
measures to elevate the status and advance the use of these
languages.’
The applicants complain that SU failed to appreciate that Afrikaans
was an indigenous language contemplated in Section 6 (2) and
that SU
was obliged to take practical and positive measures to elevate the
status and advance the use of Afrikaans. In their contention,
the
2016 Policy is inconsistent with that obligation. Nobody can deny the
fact that Afrikaans is certainly a South African and
African
language. I accept that it could very well be described as
‘
indigenous’
in general terms. But let the truth be told, Afrikaans is not an
indigenous language as contemplated in Section 6 (2) of the
Constitution.
This is abundantly clear from the introductory phrase
that refers to the ‘
historically
diminished use and status of the indigenous languages’
that the Constitution is not at all referring to Afrikaans. Nobody
can dispute that Afrikaans received massive State support in
order to
develop it as a language of scholarship and science which it is
today. The massive State support was intended to compel
Afrikaans use
in schools and to promote its use in government and business. Of
course, the languages that qualify for corrective
measures under
Section 6 (2) are the other African languages that received no such
similar investment. See in this regard I Currie
‘
Official
Languages and Language Rights’
in S Woolman & M Bishop (eds)
Constitutional
Law of South Africa
(2 ed, 2005) ch65-p15 (‘
Is
Afrikaans an 'indigenous language of our people'? … While its
origins might qualify it for the label 'indigenous', it
is unlikely
that Afrikaans qualifies for the corrective measures required by FC S
6 (2). The language was the beneficiary of decades
of active
promotion by the National Party government and can hardly be
considered 'historically diminished' in use and status’).
[108]
The Constitutional Court itself seems to have recognised the above in
Ermelo
supra.
Referring to Sachs J’s statement
that reducing Afrikaans reduced the ‘
patrimony of the
whole
’, Moseneke DCJ wrote:
‘
Of course, vital
parts of the “patrimony of the whole” are indigenous
languages which, but for the provisions of section
6 of the
Constitution, languished in obscurity and underdevelopment with the
result that at high school level, none of these languages
have
acquired their legitimate roles as effective media of instruction and
vehicles for expressing cultural identity.
’
See
Ermelo
at para 49. Indeed the clear implication of the above is that
Afrikaans is not an indigenous language as meant in Section 6 because

it most certainly did not ‘
languish
in obscurity and underdevelopment
’.
[109]
The fact of the matter is that even if Afrikaans qualifies to be
referred to as an indigenous language under Section 6 (2)
(it does
not so qualify), it is a general obligation that rests on ‘
the
State’
,
not a specific obligation on SU. Undoubtedly, the type of obligation
envisaged by Section 6 (2) is for the State as a whole to
take a
variety of measures (over time), to promote the indigenous languages.
It hardly provides a legal basis to declare a particular
policy of a
particular university invalid. In the latter regard Mr Muller
correctly contended as follows: ‘
even
if the obligation applies to SU in this context, it has complied with
it. SU has – over the years and in its 2016 Policy
–
taken “practical and positive measures to elevate the status
and advance the use” of Afrikaans. It continues
to invest
heavily in Afrikaans teaching, scholarship and research. It continues
to employ Afrikaans as one of two official languages
in its events
and communications.’
[110]
The complaint regarding the LPHE is that SU acted contrary to the
LPHE. This aspect features later in this judgment. For present

purposes one needs to point out that in the first place even though
the LPHE is so important, it is not binding on SU.
Section 27
(2) of
the
Higher Education Act 101 of 1997
allows universities to determine
their language policies ‘
subject
to the policy determined by the Minister
’.
The phrase ‘
subject
to’
is usually used to mean that the subordinate document ‘
may
not be inconsistent with’
the superior one. See
UFS
v Afriforum
supra at paras 34-5. That it is not the case in this matter is beyond
question. In
UFS
v Afriforum
the SCA held that ‘
the
words ‘subject to’ in
Section 27
(2) [of the HEA],
contextually understood, do not impose a legal obligation on any
university to adopt the LPHE. The LPHE goes
no further than to
provide a policy guideline for the universities from which they are
free to depart.’
See
UFS
v Afriforum
para 39. Clearly, the only obligation on SU was to justify any
departure from the LPHE. Importantly, in
UFS
v Afriforum
supra,
the SCA held that UFS had adequately justified its departure. I have
indicated that this shall be revisited later in this
judgment. It
suffices at this stage to merely observe that the Policy under attack
is fully consistent with the LPHE.
The
LPHE at para 15.4 recognises the importance of Afrikaans as a
language of instruction. What the LPHE, however, does not do is
that
it does not specify how that tuition should be provided, nor does it
impose any specific duty on SU not to alter its existing
Afrikaans
offering.
[111]
To the contrary, the LPHE’s focus is on ensuring equitable
access. It stresses that the ‘
continued
long term maintenance, growth and development
’
of Afrikaans, must be done “
without
non-Afrikaans speakers being unfairly denied access with 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 or discrimination
’.
[112]
The LPHE requires universities to adopt ‘
a range of
strategies’
to both preserve and grow Afrikaans, while not
excluding non-Afrikaans speakers. As stated by the High Court in
Afriforum
supra
at para 39.
‘
The [LPHE] seeks to
balance, on the one hand, the need 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, with,
on the other hand, the
development of multilingualism in those institutions’
day-to-day functioning and core activities,
including the development
of indigenous African and other languages as scientific and academic
languages. It also seeks to assure
the long-term maintenance and
growth of Afrikaans as a language of science and scholarship in the
higher education system.
’
The
latter is of course consistent with what the SCA held in
UFS
v A
friforum
supra.
See
also
University
of Pretoria
at para 15. I agree with Mr Muller that the 2016 Policy  is
carefully calibrated to achieve the balanced approach endorsed
in the
LPHE.
THE
ADMINISTRATIVE-LAW-BASED CHALLENGE
[113]
It has been established earlier in this judgment that on authority of
the Supreme Court of Appeal in
UFS
v Afriforum
supra
that neither the Decisions nor the Policy are reviewable under PAJA.
As shown above they are only reviewable  under the less

stringent principle of legality. A point must, however, be made that
even if they are reviewable under PAJA (they are not), they
would
withstand the scrutiny. The applicants contend that as regards the
process which led to the adoption of the 2016 Policy:
(a) SU
Management determined the process, notwithstanding the fact that it
must have been obvious to the Senate and the Council
that SU
Management could not adopt an objective and independent position
regarding the matter; (b) a radical minority prescribed
to the SU
Management what the language policy should be and the SU Management
did the same to the SU Council; and (c) the process
was designed to
create the pretence of a consultation, whereas there was no real
consultation. The applicants allege that the real
reasons SU adopted
the Policy were the improper purposes of regularising SU’s
deviations from the 2014 Policy and Plan and
averting political
pressure and the prospect or threats of violence.
[114]
Importantly the  allegation is that SU failed to take into
consideration a wide range of relevant considerations, namely:
(a)
the Constitution and the LPHE;  (b) the various legal opinions
from counsel; (c) the status of Afrikaans as an indigenous
language
which is being marginalised by English; SU’s capacity to offer
tertiary education in Afrikaans; (d)
the
difficulty Afrikaans-speaking students will experience when
transitioning from
Afrikaans-language
schooling to English-language teaching at university; (e) the
knock-on effect of moving from Afrikaans to English
teaching at
universities on Afrikaans-language schooling – school learners
will switch to English to avoid being handicapped
at university; (f)
SU’s own survey which showed strong support for the retention
of Afrikaans as a primary medium of instruction;
(g) the growing
demand for tertiary education in Afrikaans in the Western Cape
Province and South Africa as a whole; (h) the demands
of higher
education at the national level, especially the fact that only one of
the other 16 universities in South Africa (the
North West University)
still has a language policy that provides for Afrikaans as a primary
medium of instruction; (i) the demographics
of the Western Cape and
Northern Cape Provinces; and (j) the fact that the “Coloured”
community in the Western Cape
Province is predominantly Afrikaans
speaking and the most under-represented population group at tertiary
institutions.
[115]
The applicant allege that SU was biased and obstinately adhered to a
pre-determined outcome, as evidenced by its reckless
disregard of
relevant considerations, its slavish adherence to irrelevant
political considerations, its abject pandering to the
threats of a
militant minority, its attempts to suppress the invocation of the
Constitution and its dismissal or failure to take
into consideration
the comments of interested parties and the Convocation about the
draft language policy which supported the retention
of Afrikaans as a
primary language of instruction. These categories of challenges shall
be dealt with
infra
. Having said so, I need to mention that
the adjudication must be based on the assumption that the Policy is
(as already found above)
substantively lawful and consistent with
SU’s constitutional obligations. I address the challenges
documented above.
THE
PROCESS FOLLOWED BY SU SUMMARISED
[116]
It has been emphasised above that the only permissible
procedural challenge to the Decisions is that they were procedurally

irrational, i.e. there is no rational connection between the
procedure adopted and their purpose. Having found that the Decisions

are not administrative action, there is no requirement that they be
procedurally fair. The process SU followed to adopt the Policy
is
comprehensively set out in the answering papers. I document hereunder
a mere summary of the process SU followed.
[117]
On 9 February 2016, at its first weekly meeting in the 2016 academic
year, the RMT decided that a formal process for the review
of the
2014 Policy and Plan should start and requested the Vice-Rector to
make proposals for the possible extent of the review
and the
composition of a task team. On 12 February 2016, the SU Management
issued a formal communication which included that SU
had initiated a
review of its language policy and plan with a view to submitting a
new draft before the end of the first semester
and that SU would
ensure that a participatory process would be followed and interest
groups would be given a fair opportunity to
give inputs. On 16
February 2016, the Vice-Rector proposed a timeline for the review of
the language policy to the RMT. This timeline
was provided to members
of the Council prior to their meeting of 20 February 2016.
[118]
On 16 February 2016, at the RMT’s second weekly meeting, the
Vice-Rector submitted proposals for the review of the 2014
Policy and
Plan together with a timeline. At this meeting the RMT decided to
establish a Language Policy Review Working Group (
the
Working Group
).
The RMT further decided that there should be wide ranging
consultations, and consequently sufficient time for the Working Group

to prepare a first draft, for public consultation, to consider
proposals from interested parties for inclusion in the second and

final drafts, to receive feedback from external and internal
interested parties, and to consult with the Council and receive its

feedback. The 18 members of the Working Group included academics from
seven faculties and members of SU’s administration
and support
services with knowledge and experience of language planning and the
implementation of language arrangements in teaching
and
administrative environments, as well as two student representatives
nominated by student bodies.
[119]
During the review process the members of the Working Group utilised a
wide range of documents, including the Constitution,
the LPHE,
various internal SU documents and legal opinions (including the legal
opinions by Advocates Breitenbach SC and Bishop),
relevant
demographic information about South Africa generally and the Western
Cape in particular, the trends over the past few
years regarding SU
students’ home languages and language preferences for study,
the results of a survey about the home languages
and language
preferences of SU students and the feedback from external and
internal interested parties received during the public
and internal
processes of consultation described below. On 20 February 2016 there
was an extraordinary meeting of the SU Council
about the problems SU
was experiencing with deviations in certain faculties from the 2014
Policy and Plan in the 2016 academic
year. This had led, amongst
other problems, to urgent litigation in this Court against SU by
Afriforum and others instituted on
5 February 2016. The February 2016
Afriforum litigation, which was aimed at compelling SU to adhere to
the 2014 Policy and Plan
and the resulting language specifications
for modules in the 2016 Yearbook, was settled on 12 February 2016
when SU gave an undertaking
that it would take steps to ensure that
all faculties implemented the 2014 Policy and Plan and those language
specifications.
[120]
When giving the undertakings, SU’s attorneys recorded that a
process aimed at reviewing the 2014 Policy and Plan had
commenced and
SU would ensure all stakeholders, including Afriforum, were afforded
a reasonable opportunity to make a contribution
to the plan and the
review process and further that the review would be completed within
a reasonable time. Prior to the SU Council
meeting on 20 February
2016, the members of the Council were provided with copies of the
Vice-Rector’s language policy review
proposal, the instructions
to the Working Group, and the timeline for the review process.
Between 3 March and 6 June 2016, before
sending the final draft of a
new policy to the Senate for consideration, the Working Group met six
times. Each of those meetings
and the work done by members of the
Working Group between the meetings are described in detail in the
Answering Affidavit. At its
first meeting on 3 March 2016 the Working
Group decided to appoint a three-member sub-group (
the
Sub-Group
)
and to task it with preparing a first draft policy for the Working
Group to consider at its next meeting and, thereafter (i.e.
between
meetings of the Working Group), with considering and summarising
comments on the draft, doing further work on the draft
and if
necessary preparing discussion documents for the Working Group.
[121]
In an unrelated development, on 7 March 2016 Afriforum and several
others brought a second urgent application in this Court
to compel SU
to adhere to the 2014 Policy and Plan and the language specifications
in its 2016 Yearbook with immediate effect.
SU abided the decision of
the Court in this second urgent application, on condition the order
would take effect at the start of
the second term on 29 March 2016.
SU did so because its investigations had revealed deviations from the
language specifications
when the 2016 lectures began on 22 February
2016, but it would take several weeks to ensure that all deviating
modules changed
back to the language specifications and to put
measures in place to reduce the adverse impact of the change for
students who were
not proficient in Afrikaans. On 11 March 2016 this
Court issued a rule
nisi
operating
as an interim interdict directing SU to implement the language
specifications in the 2016 Yearbook with effect from 29
March 2016.
SU duly complied with this order. On 19 May 2016, by agreement
between Afriforum and SU this Court confirmed the rule
nisi
and
Afriforum withdrew the further relief it was seeking against SU,
thereby bringing the March to May Afriforum litigation to a
close.
[122]
Returning to the language policy revision process, at the second
meeting of the Working Group on 17 March 2016 it considered
a first
draft policy prepared by the Sub-Group and finalised it (
the
First Draft Policy
).
This draft was then posted on SU’s website in both English and
Afrikaans on 22 March 2016 for public comment. On 22 and
23 March
2016 SU sent messages to all students and other stakeholders,
including Afriforum, inviting them to comment on the First
Draft
Policy. Comments were due one month later, by 22 April 2016. In
addition to soliciting comments, during April 2016 SU conducted
an
online survey of all 19 648 undergraduate students about their
language preferences. The responses received from 5 196 students

showed that 59% of the respondents preferred to be taught at SU in
English, 26% in Afrikaans and 15% in both English and Afrikaans.
In
addition, only 65.8% of respondents who did Grade 12 in Afrikaans
preferred to be taught at SU in Afrikaans. In all, SU reportedly

received 514 responses to its invitation for comments on the first
draft language policy, including one from Afriforum. All the
comments
were saved in a Dropbox folder that was accessible to all members of
the Working Group. In addition, on 13 May 2016, all
the comments, as
well as summaries of the comments prepared by the Sub-Group, were
made available to members of the SU Council
through the Dropbox
folder.
[123]
At the third meeting of the Working Group on 15 April 2016, it
discussed the Sub-Group’s summaries of all the comments
that
had been received up to 8 April 2016. During this meeting, the
Working Group made changes to the First Draft Policy (which
was
projected on a screen at the meeting) with reference to the comments.
After the meeting, using all the comments received between
22 March
and 22 April 2016 the Sub-Group continued working on the draft
policy, a revised version of which was circulated to all
members of
the Working Group on 28 April 2016. On 3 May 2016, the Working Group
held its fourth meeting. By that stage, in addition
to the revised
version of the First Draft Policy, all the comments received between
22 March and 22 April 2016 had been made available
to the members of
the Working Group (this was done on 27 April 2016). At this meeting
the Working Group considered the further
comments received (i.e.
after 8 April 2016) and worked on preparing the second draft of the
policy (
the
Second Draft Policy
).
[124]
The factors which influenced the content of the Second Draft Policy
included the feedback received during the public consultation

process. The Second Draft Policy was completed on 5 May 2016 and sent
to the faculties for consideration at their faculty council
meetings
between 9 and 13 May 2016 and to the Council for consideration at its
meeting on 9 May 2016. At the Council meeting of
9 May 2016 (which
was an ordinary, scheduled meeting), the Vice-Rector briefed the
Council on the review process. The Council supported
the continuation
of the review process and unanimously adopted a motion that a special
meeting of the Council be held where it
could consider the language
policy and give its feedback to the Working Group. (The First
Applicant would later welcome this decision.)
The special meeting of
the Council took place over a full day on 21 May 2016. The meeting
began with a presentation by Advocate
Breitenbach SC about the
constitutional principles that governed the Council’s decision.
The presentation included a summary
of the 2014 Policy and Plan; a
summary of the three legal opinions he and Adv Bishop had provided to
the SU (the third of which
was that legal challenges to the 2014
Policy and Plan based on section 29(2) of the Constitution and the
Equality Act would probably
succeed); a summary of the important
facts and data with which he had been briefed (including the relevant
demographic statistics
and the costs of moving to full
parallel-medium instruction); and a discussion of what he considered
to be the main sources of
the legal principles relevant to the
language policy, namely
sections 3
and
27
(2) of the
Higher Education
Act, the
LPHE, sections 6, 9 and 29(1)(b) and (2) of the Constitution
and sections 6, 7 and 14 of the Equality Act.
[125]
During the course of the ensuing discussion, (which as stated lasted
a day) the Council adopted a series of resolutions to
be submitted to
the Working Group for its consideration, including: (i) That the
Council accept Advocate Breitenbach’s presentation
as a guiding
document and that it be given to the Working Group; (ii) That “
[t]he
Policy must be enabling and not shackling. There
should
not be micro management
”;
(iii) That “
[t]he
Policy must enable equitable access to SU for all academically
deserving students on the basis of language, i.e. language
should not
be a barrier to access
”;
and (iv) ‘
That
the English offering be extended to the extent that no admitted
student is excluded, that it is ensured that the Afrikaans
offering
is not reduced, and that Afrikaans as language of tuition is further
developed, and also that the commitment to the development
and
promotion of isiXhosa as academic language is honoured
’.
[126]
The fifth meeting of the Working Group took place on 23 May 2016 over
eight hours. It considered the principles adopted by
the Council, the
feedback from the faculties and the presentation of Advocate
Breitenbach SC (who attended the meeting), and in
the process revised
the draft policy. After a long and intense debate, the Working Group
adopted a revised draft of the policy
to be submitted to the
Institutional Forum and the Senate for consideration (
the
Third Draft Policy
).
Over the next week, the Institutional Forum, the Executive
Committee of the Council and the Executive Committee of the
Senate
all met (on 25 May, 26 May and 1 June 2016 respectively) and gave
feedback on the Third Draft Policy. The Council’s
comments
included that the Third Draft Policy did not fully encompass the
policy principles on which the Council had resolved at
its meeting on
21 May 2016, including that no provision was made for the expansion
or even the maintenance of the Afrikaans offering.
[127
The Senate met on 3 June 2016 to consider the Third Draft Policy.
After a long and intense discussion it approved the document,
subject
to specific reservations. It required the Working Group (augmented by
Professors Quinot and Liebenberg of the Law Faculty)
to reconsider
parts of the policy and circulate a revised policy to the members of
the Senate for a special Senate meeting on 9
June 2016. The Working
Group held its sixth and last meeting on 6 June 2016. It included
Professors Quinot and Liebenberg. Again,
there was intense debate.
The result was the approval by consensus of an amended version of the
Policy (
the
Final Draft Policy
).
The Final Draft Policy, in the form in which it was then circulated
to the Senate, showed (using different colours) the changes
to the
Third Draft Policy suggested by the Executive Committee of the Senate
on 1 June 2016, the Working Group on 6 June 2016 and
the
Institutional Forum on 7 June 2016. At its meeting of 9 June 2016,
the Senate approved the Final Draft Policy, more specifically
the
Third Draft Policy with the changes suggested by the Executive
Committee of the Senate on 1 June 2016 and the Working Group
on 6
June 2016, and recommended to the Council that it be adopted. On 17
June 2016 Advocate Breitenbach SC provided a memorandum
on the
constitutionality of the Final Draft Policy. He advised that, in his
view, the policy was constitutionally sound. A copy
of the memorandum
was provided to the Council. At its ordinary meeting on 22 June 2016
the Council – after a presentation
by the Vice Rector and two
hours of debate – adopted the Final Draft Policy by a majority
of 16 votes in favour and 9 votes
against. (On 28 November 2016 the
Council approved an Afrikaans translation of the Policy as the
official translation.)
[128]
Unavoidably, a comparison needs to be made between the process
followed by SU (summarised above) and process followed by both
UFS
and UP in their respective matters. Because of the concern about
integration, in 2015 the UFS established a Language Committee
to
formulate a new language policy. That committee’s work ‘
spanned
several months and involved thorough investigation, vigorous debate
and full deliberation.
’  See
University of Free
State
judgment at para 8. The Committee reported to the UFS’s
Council and Senate together with faculty comments. Afriforum
participated
throughout the process. A similar approach was taken by
the UP. In both cases, the process followed was never questioned as
being
inadequate. It must be remarked that like both UFS and the UP,
SU assigned the responsibility of developing a draft policy to a
task
team (the Working Group) the members of which had relevant expertise
and experience. It prepared a draft policy, called for
and considered
inputs from the faculties, the Senate and the Council on revised
drafts of the policy and received and considered
legal advice. It did
not act procedurally irrationally or even unfairly. The process
documented above has not been disputed by
applicants in reply.
THE
RATIONAL CONNECTION; THE SU MANAGEMENT DETERMINED THE PROCESS (WAS
THERE UNLAWFUL DICTATION?)
[129]
The submission made by Muller is that the purpose of the making of a
language policy by the Senate and Council of a higher
education
institution is to guide the use of language at the institution in a
manner consistent with Section 29 (2) of the Constitution,
the other
applicable legal principles and the particular facts and
circumstances of the institution. This is indeed a sound submission

and I fully endorse its correctness. The point was made earlier in
this judgment and perhaps it is worth repeating. The point is
that
the principle of legality requires that when making a language policy
a higher education institution must choose and implement
a means
(i.e. a process) which, viewed as a whole, is rationally related to
(i.e. capable of achieving) that purpose. See
Albutt
supra
at paras 49, 72 and 74;
Democratic Alliance
supra
at
paras 27, 34, 36 and 37. The persons preparing the policy for
consideration by the Senate and Council (i.e. the members of the

Working Group) were suitably qualified and experienced. It is an
undeniable fact that they considered the most relevant documents
and
information (including the applicable legal principles, the LPHE,
relevant demographic information, a well-supported contemporaneous

survey of student preferences and the cost of moving to full
parallel-medium education). They afforded students and other
stakeholders
an opportunity to give input, which they considered when
preparing a revised draft of the policy. They considered and
responded
(by preparing amended drafts) to input received from the
faculties, the Council, the Executive Committee of the Senate, the
Executive
of the Council, the
Institutional
Forum and the Senate. After long and intense debates in the Working
Group, the Senate and the Council, the resulting
(fourth) draft of
the policy was formally approved by the Senate and the Council. The
requirement was met in this case.
[130]
It is correct that the process and timetable for the review of the
language policy was determined by the Vice-Rector and approved
by the
RMT. In principle there was nothing wrong with that. The point is
that there is nothing in the
Higher Education Act, the
Statute of SU
or the 2014 Policy or Plan which precluded SU Management from
initiating and determining the process of review. We
gather from the
answering papers that in view of the respective roles and capacities
of the Council and SU Management, that it
is normal that the process
and timetable are prepared for acceptance or amendment by the
Council. It was appropriate that SU Management
initiated the process
of reviewing the language policy because it (especially the
Vice-Rector) had the capacity to assess the changing
circumstances
and the impacts of the 2014 Policy and Plan. In any event, the Vice
Rector was the ‘
owner’
of the 2014 Policy and the RMT is responsible for the day-to-day
management of the university. The process that was adopted assigned

the responsibility for the review to a specially appointed body (the
Working Group) which comprised a majority of persons from
outside the
administration of SU. Importantly, the Council did not question the
design of the process because it was clearly a
considered and
transparent one.
[131]
The Applicants allege that a radical minority prescribed to the SU
Management what the language policy should be and the SU
Management
did the same to the SU Council. The latter allegation is strangely
missing in the founding papers. It  surfaced
for the first time
in the heads of argument. What appears in the founding papers is the
allegation that Open Stellenbosch (the
members of which are the
alleged radical minority) were given an unreasonable opportunity to
make representations early in the
process and in so doing to exercise
greater influence than other organisations like Afriforum. The
response by the respondents
as documented  in the answering
papers is briefly the following: (a) In May 2015 Open Stellenbosch
handed a memorandum to
SU Management in which it raised concerns
about the content and implementation of the 2014 Policy and Plan. (b)
The Vice-Rector
thereupon appointed a task team to investigate and
make suggestions about Open Stellenbosch’s concerns, as well as
concerns
raised in a separate memorandum from the Students
Representative Council.  (c) In addition, SU Management engaged
in discussions
with various student groups, including Open
Stellenbosch, about the 2014 Policy and Plan and its implementation.
[132]
According to SU Management, during these discussions Open
Stellenbosch made a significant contribution which was aimed at

ensuring that the use of language at SU was not an obstacle to access
to SU or the successful completion of studies there. The
RMT openly
acknowledged Open Stellenbosch’s positive contribution in its
media release of 11 November 2015 in which it made
concrete proposals
for changes to the use of language at SU. (d) On 9 September 2015 the
task team delivered its report, following
which the SU did not give
Open Stellenbosch any opportunity to give input regarding the
language issue or the review process until
the public
notice-and-comment process in March 2016 (when it could participate
along with all other interested parties like Afriforum).
Although the
2016 Policy eventually adopted by the Senate and the Council
emphasised the principle that language should facilitate
access to
and success at SU, the details of the policy differed significantly
from the concrete proposals in the RMT’s media
statement of 11
November 2015. There is no evidence that to the extent Open
Stellenbosch influenced SU, it did so otherwise than
through the
strength of its arguments.
[133]
It would appear, regard being had to the aforegoing that the
applicants’ allegation in this regard is without substance.
The
allegation too that the SU Management prescribed to the SU Council
what the language policy should be, makes no logical sense.
I say so
because SU Management is subordinate to the Council. Both
Section 17
(1) of the
Higher Education Act and
article 11 (1) the SU Statute
make it clear that the Council is the ultimate decision-making body
of SU. I have been unable to
find any evidence to support the
allegation that the SU Management forced the Council to act contrary
to its preference. Clearly
this must mean that it did not happen.
[134]
The answering papers deal exhaustively with the applicants’
allegation that the process was designed to create the pretence
of a
consultation whereas there was no real consultation.  In brief
the response is that: (a) At no stage during the language
policy
review process was it a foregone conclusion that the 2014 Policy and
Plan would be replaced with a new plan, let alone that
that the First
Draft Policy published for public comment (on 22 March 2016) would be
approved by the Senate and the Council. (b)
If the 22 March 2016
First Draft Policy is compared with the 6 June 2016 Final Draft
Policy that was approved by the Senate and
the Council, it is clear
that the former was materially amended. (c) In the period between 22
March 2016 and the decision of the
Council to adopt the Policy on 22
June 2016, there was no consensus within SU about the proposed new
policy. (d) There is no evidence
of a conspiracy between SU
Management and majorities of the Working Group, the Senate and the
Council to manipulate the process.
I am not persuaded that there are
merits in the allegation discussed under this paragraph. Moreover,
the chairperson of the Council,
the Rector and the Vice-Rector
testified that they did not have control over the precise contents of
the policy and had no idea
what the outcome of the relevant meetings
of the Senate and the Council would be. Notably, the answering
affidavit states unequivocally
that all comments received were in
fact considered. The applicants have not put up any evidence that
comments were excluded from
consideration. Perhaps in passing I need
to mention that the fact that the comments of those in favour of, an
increase in the Afrikaans
offering or equal offerings for Afrikaans
and English, were not accepted, does not mean they were not
considered.
IMPROPER
PURPOSES & FAILURE TO CONSIDER RELEVANT INFORMATION
(AND
THE APPLICABLE STANDARD)
[135]
Indeed the second category of procedural attack is the applicants’
allegation that the real reasons SU adopted the Policy
were the
improper purposes of regularising SU’s deviation from the 2014
Policy and Plan and averting political pressure and
the prospect or
threat of violence. In my view the aforegoing attack is but unfair
and is devoid of merits. One must immediately
point out that SU’s
deviations from the 2014 Policy and Plan are well documented and
fully explained in answering papers.
We are told (and have no reason
not to accept) that the Council and SU Management took a range of
steps aimed at bringing the deviations
to an end by the start of the
second term of the 2016 academic year on 29 March 2016 and that they
succeeded in doing so. As a
result, the first problem of the
deviations had been resolved long before the Senate and the Council
adopted the 2016 Policy. In
any event, the point regarding the
alleged political pressure as being the real reason the Senate and
the Council adopted the new
Policy is not contained in the founding
papers. As to alleged improper influence to amend the 2014 Policy and
Plan by threats (particularly
from Open Stellenbosch), it suffices to
mention that the answering papers make it abundantly clear that the
risk of violence did
not influence the content of the 2016 Policy.
[136]
The latter Policy was determined instead by the educational and
constitutional considerations set out and discussed above.
This
appears from the evidence
of
the numerous meetings, wide-ranging deliberations and detailed inputs
from linguistic and legal experts. The answering papers
also show
that the only relevance for the language policy issue of the
widespread disruptions on campuses countrywide during 2015
and 2016,
was that it emphasised the need for a decision about the issue sooner
rather than later. I suppose the risk of violence
or disruption
merely and plainly created urgency to resolve the issue.  In my
view if SU did not consider that risk, it could
competently be found
to have been irrational. SU took firm measures designed to prevent
occurrence of violence and disruptions
on campus during 2016. Maybe
to conclude I must quote the answering affidavit deposed to by Mr
Steyn where he states unequivocally
that threats of violence did not
influence the content of the Policy: ‘
Die
risiko van geweld en ontwrigting het nie die inhoud van die 2016
Taalbeleid beïnvloed nie. Ek kan did onomwonde stel dat
die
inhoud van die 2016 Taalbeleid bepaal is deur opvoedkundige en
grondwetlike oorwegings
’.
It is of importance that I mention (without elaborating) that
because the Applicants are seeking final relief on
motion and have
not sought to refer this or any other issue to oral evidence, and Mr
Steyn’s evidence is not inherently implausible,
it must
therefore be accepted as correct for purposes of the adjudication of
the present matter. See
Fakie
NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) paras 55-56;
Wightman
t/a JW Construction v Headfour (Pty) Ltd and Another
[2008] ZASCA 6
;
2008 (3) SA 371
(SCA) para 12. Failure to consider
various
relevant factors or documents alleged by the applicants is, in
effect, a procedural rationality challenge. SU contends that
all the
relevant information was in fact considered. I do not for a moment
doubt this assertion. Moreover, even if this Court were
to find that
(I do not so find) a particular piece of relevant information was not
considered, that alone would not taint the rationality
of the process
followed.
[137]
The law does not require that each and every member of Senate and
Council must read every relevant document. In
Minister of
Environmental Affairs and Tourism and Another v Scenematic Fourteen
(Pty) Ltd
[2005] ZASCA 11
;
2005 (6) SA 182
(SCA),
the SCA explained guidingly what
is required of a decision-maker in situations where he is required to
consider a large amount of
information. The case concerned the
allocation of fishing rights, a decision that ultimately had to be
taken by the Deputy Director-General.
He did not consider every
application himself, but relied on detailed advice provided by his
subordinates. The SCA held that there
was nothing improper about this
process:
‘
[I]t does not follow
that a functionary such as the DDG in the present case would have to
read every word of every application and
may not rely on the
assistance of others. Indeed, given the circumstances, Parliament
could hardly have intended otherwise. What
the functionary may not
do, of course, is adopt the role of a rubber stamp and so rely on the
advice of others that it cannot be
said that it was he who exercised
the power. If in making a decision he were simply to rely on the
advice of another without knowing
the grounds on which that advice
was given the decision would clearly not be his. But, by the same
token, merely because he was
not acquainted with every fact on which
the advice was based would not mean that he would have failed
properly to exercise his
discretion. This would be particularly so if
that advice was merely one of the factors on which he relied to
arrive at his ultimate
decision.
’
See
para 20 of the judgment, quoted with approval in
Walele v City of
Cape Town and Others
[2008] ZACC 11
;
2008 (6) SA 129
(CC) at para 114 (the
dissenting judgment). It is even needless to mention that the issue
is and must be complicated when one is
called upon to evaluate
decisions taken by multi-member bodies. It is certainly not possible
to know exactly what documents each
member of Senate or Council read
or did not read, or what information they regarded as relevant or
irrelevant. The question is
whether the relevant information was
presented to them and the relevant documents were available for them
to consider.
THE
INFORMATION CONSIDERED
AND
THE EXTENT TO WHICH CONSIDERED
[138]
The applicants argue as demonstrated above that SU failed to consider
the Constitution and the LPHE. Even though
this has, to some extent
been dealt with earlier, its importance necessitate a few remarks. SU
is accused of having attempted to
‘
suppress
invocation of the Constitution
’.
One simple response is that the Policy itself states its essence as
including aiming ‘
to
give effect to section 29(2) of the Constitution in relation to
language usage in [SU’s] academic, administrative, professional

and social contexts. The Policy aims to increase equitable access to
SU for all students and staff and to facilitate pedagogically
sound
teaching and learning. Since our campuses are situated in the Western
Cape, we commit ourselves to multilingualism by using
the province’s
three official languages, namely Afrikaans, English and isiXhosa
’.
[139]
It cannot be denied that SU received detailed input and legal advice
during the policy-making process, including Advocate
Breitenbach SC’s
presentation regarding the applicable constitutional principles on 21
May 2016 and his memorandum regarding
the constitutionality of the
Final Draft Policy adopted by the Senate on 9 June 2016. As stated
earlier, the LPHE was considered
in detail throughout the process.
Even if SU’s understanding of the LPHE and the Constitution
markedly differed, that would
not mean that the LPHE and the
Constitution were not taken into account. Indeed the contents of the
Policy does show that SU was
well aware of the fact that speakers of
the various South African languages use English to communicate with
one another. SU was
also aware of the significant academic, business
and international value of English and of the need to advance the
academic potential
of Afrikaans. SU proceeded from the assumption
that it was reasonably practical to deliver Afrikaans tuition. It
must be emphasised
that although SU knew that almost all Afrikaans
–speaking students
were
sufficiently proficient in English to study in English and this was a
key factor which allowed it to adopt the 2016 Policy,
it did consider
the need for a smooth transition to a university environment in which
there would be more teaching in English than
in Afrikaans.
[140]
The above is evidenced by the fact that SU tries as far as possible
to offer all first-year and second-year lectures in parallel
medium.
Of course this is further evidenced by the fact that the Policy
provides that during the first year of undergraduate study
SU will
provide real-time interpreting from English to Afrikaans in all
dual-medium lectures and all lectures in English; and that
in the
second and later years it will do so, subject to available resources,
upon request of the faculties in cases where Afrikaans-speaking

students need the service. Additionally, in all undergraduate modules
all SU module frameworks and study guides will be available
in
Afrikaans. Finally, in this regard, all question papers for tests,
examinations and other summative assessments in undergraduate
modules
will be available in Afrikaans and students may answer all
assessments and submit all written work in Afrikaans. As to
the
knock-on effect on moving from Afrikaans to English teaching at
universities on Afrikaans-language schooling, the answering
papers
reveal that SU was aware that there
may
be a link between the availability of Afrikaans tertiary education
and the demand for Afrikaans primary and secondary education.
This,
however, did not result in SU altering the balance it sought to
strike between Afrikaans-language teaching (access would
be at least
sustained) and English-language teaching which would be increased to
a 100% offering so as to facilitate access for
students especially
Black (African) students who are not sufficiently proficient in
Afrikaans.
[141]
SU considered the results of its own survey which showed strong
support for the retention of Afrikaans as a primary medium
of
instruction. However, while the results showed support for Afrikaans,
they also showed significantly more support for dual-medium
teaching
and for English-only teaching. Mr Muller contended that SU did not
consider in detail the demand for Afrikaans tertiary
education in the
Western Cape or nationally because its point of departure was that
there is currently a significant and continuing
demand for Afrikaans
education in the Western Cape Province and nationally. Of course this
appears from the statistics set out
in the 27 November 2015 opinion
of Advocates Breitenbach SC and Bishop. What SU also considered is
the fact that other universities
had reduced or ended their Afrikaans
offering. It is said to also have been aware of, and took into
account, the changes taking
place at other universities during 2016,
especially the changes to the language policies of the UFS and the
UP. I am told that
while SU considered this information, it did not
let itself be led by what other universities had decided. The
submission made
on behalf of Stellenbosch in this regard is that the
choices of those universities do not determine the legality of SU’s
decision to amend its language policy. One must, perhaps conclude
this aspect by categorically stating that when assessing this

challenge it is important to do so in the light of what the 2016
Policy actually does. Although the Policy does not increase the

Afrikaans offering to the same level (100%) as the increase English
offering, the Policy nevertheless retains Afrikaans as a language
of
learning and teaching.
[142]
According to the answering papers, SU considered the demographics of
the Western Cape Province in particular. It reportedly
focussed on
the 15 to 24 years age category in the Western Cape Province because
that is the primary source of its student body.
It reportedly
analysed the language and racial demographics of this category in
detail and compared them with the national demographics
and the
demographics of SU’s 2015 first-year intake. It is of
significance that these figures are set out in the first of
the
opinions by Advocates Breitenbach SC and Bishop dated 27 November
2015  and referred to again in Advocate Breitenbach
SC’s
presentation to the SU Council on 21 May 2016. As far as the Northern
Cape is concerned, Mr Muller submitted that SU
did not separately
consider the demographics relating thereto. He hastened to add that
in his submission SU was not obliged to
do so as only 3.4% of its
students came from that province in 2015 and only 1.92% of its
students did so in 2016. The complaint
that SU did not consider the
fact that the ‘Coloured’ community in the Western Cape is
predominantly Afrikaans speaking
is correctly grounded. The answering
papers make it clear that SU was well aware of this. In fact, the
first of the opinions by
Advocates Breitenbach SC and Bishop dated 27
November 2015 identified the fact that Coloured students were also
victims of past
discrimination, that ‘
37.6%
of SU’s first year coloured students use Afrikaans as their
home language’
and that SU offered the only possibility for Afrikaans tertiary
education in the Western Cape. According to the answering papers,
SU
was also well aware that the majority of its ‘Coloured’
students, came from the Western Cape.
[143]
According to the submissions made on behalf of the respondents SU
considered all the relevant information. In any event if
this
Court
concludes that some piece of relevant information was not considered
or was not (as it were) adequately considered, the question
then
becomes whether that must render the entire policy invalid? It
cannot. It was pointed out earlier in this judgment that not
every
procedural failure renders a decision invalid. It is only when that
failure ‘
had
an impact on the rationality of the entire process
’
that it will render the decision invalid. See
Democratic
Alliance v President of South Africa and Others
2013 (1) SA 248
(CC) at para 39. According to the latter authority,
there is a three-step process to determine when the failure to
consider information
taints an entire process:
‘
The first is whether
the factors ignored are relevant; the second requires us to consider
whether the failure to consider the material
concerned (the means) is
rationally related to the purpose for which the power was conferred;
and the third, which arises only
if the answer to the second stage of
the enquiry is negative, is whether ignoring relevant facts is of a
kind that colours the
entire process with irrationality and thus
renders the final decision irrational.
’
It
is therefore our law that even if this Court finds that any
particular item of information was not considered, that alone will
be
insufficient to render the entire process irrational. It will be
irrational only if ignoring that particular item of information

colours the entire process with irrationality.
[144]
If the applicants’ claim must be understood to be saying that
the factors were considered but that SU did not accord
appropriate
weight to those factors, that would mean it is a claim that the
decision was not reasonable contrary to Section 6 (2)
(h) of PAJA.
But that is, of course, not a basis to attack an executive act such
as the Decisions and the Policy. It was precisely
in this context
that the SCA held in
Bel Porto School Governing Body v Premier,
Western Cape
[2002] ZACC 2
;
2002 (3) SA 265
(CC) at para 45:
‘
The
weight to be given to the material lies in the discretion of the
decision-maker. And the fact that there are other means of
achieving
the same purpose is not something the court can consider: “Courts
cannot interfere with rational decisions of the
executive that have
been made lawfully, on the grounds that they consider that a
different decision would have been preferable.’
In
truth even on the PAJA standard of reasonableness, the applicants’
claim clearly must fail for the general reasons outlined
in
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC).  It is not for a
court to second-guess how much weight to afford each factor in a
polycentric administrative decision.
Navsa JA and Swain AJA in
MEC
For Environmental Affairs and Development Planning v Clairison’s
CC
2013 (6) SA 235
(SCA) put it as follows:
‘
It has always been
the law, and we see no reason to think that PAJA has altered the
position that the weight or lack of it to be
attached to the various
considerations that go to making up a decision, is that given by the
decision-maker. As it was stated by
Baxter:
‘
The court will merely
require the decision-maker to take the relevant considerations into
account; it will not prescribe the weight
that must be accorded to
each consideration, for to do so could constitute a usurpation of the
decision-maker's discretion.’
That
above
dictum
was cited in
University of Pretoria
case
supra
as follows:
‘
both Senate and
Council applied their minds to a number of relevant and often
competing considerations and properly considered what
was before
them. The weight that they afforded to the different considerations
that were before them is not a matter for the Court
to prescribe.’
Accordingly,
in the instant matter, once it is shown that SU considered the
relevant factors, the weight it afforded them is not
at all an issue
that this Court needs to address. The SCA in
UFS v Afriforum
supra
held that UFS had considered other factors, but
concluded that they were outweighed by the need to promote
integration. That was
held to have been a rational decision. I
conclude by stating that SU appears to have decided that its multiple
purposes of preventing
exclusion, promoting multilingualism, ensuring
integration, and fostering Afrikaans are best served by the 2016
Policy it adopted.
It clearly considered multiple factors and weighed
them all. This Court is commanded by the law not to second-guess that
extremely
difficult process, unless the outcome is obviously
irrational.
BIAS
AND NATURE THEREOF
[145]
Hoexter-Administrative Law in South Africa (2ed, 2012) at 452, points
out that  claims of bias are generally reserved
for cases
involving judicial or quasi-judicial decisions where there is a clear
contest between different arguments. Yes, similar
claims against
administrators are generally ‘
couched in the language of
abuse of discretion
’. I do not accept an argument advanced
to the effect that SU acted for an ulterior purpose. The
decision-makers were the
Senate and Council and not SU Management.
The fact that Management had a view about what language policy it
wished the Council
to adopt simply does not found a case for bias.
Management was entitled to form and publicly state its view –
which it did
in its controversial media statement of 11 November
2015. It attempted to persuade the Senate and Council to accept its
view.  Both
the Council and the Senate are multi-member bodies
and together they represent a range of different interested parties.
In conclusion,
the applicants do not appear to rely on extrinsic
evidence of bias. Their argument is that bias is the only possible
explanation
for the decision. There is no basis on the papers to draw
a conclusion of bias.
APPLICANTS’
APPLICATION FOR LEAVE TO ADMIT A FURTHER AFFIDAVIT
AND
TO LEAD ORAL EVIDENCE OF THERON
[146]
On 3 August 2017 the applicants delivered an application for leave to
admit a further affidavit by Mr Daniel Rossouw (‘Rossouw’),

the applicants’ attorneys, and for Mr Johan Theron (‘Theron’)
to be subpoenaed and to testify to the content
of his statement of
defence, Annexure ‘DJR5’ to Rossouw’s affidavit.
The application is opposed by the first
to third respondents (‘the
respondents’). It was contended that this court should not in
the exercise of its discretion
permit the adducing of further
evidence at this late stage. Accordingly the submission was that both
the application for leave
to adduce Rossouw’s further
affidavit, and the application for leave to subpoena and adduce the
evidence of Theron, should
be dismissed with costs. The general rule
is that only three sets of affidavits are permitted in motion
proceedings. See
Uniform
Rule 6 (5) (e)
.
It is in the interests of the administration of justice that the
number and sequence of affidavits should ordinarily be observed.
See
James
Brown & Hamer (Pty) Ltd (previously named Gilbert Hamer & Co
Ltd) v Simmons NO
1963 (4) SA 656
(A) 660E;
Hano
Trading CC v JR 209 Investments (Pty) Ltd
2013 (1) SA 161
(SCA) para [12]. However, that rule is not always
rigidly applied and the Court enjoys a discretion to permit the
filing of further
affidavits. The Rule provides that
‘
(e)
Within 10 days of the service upon him of the affidavit and documents
referred to in sub-paragraph (ii) of paragraph (d) of
subrule (5)
[the answering affidavit] the applicant may deliver a replying
affidavit. The Court may in its discretion permit the
filing of
further affidavits.’
[147]
Perhaps a mention must be made that while the Courts may permit the
filing of further affidavits in exceptional circumstances,
the Court
(a) will not exercise its discretion in the absence of an explanation
of why it is necessary to file the affidavit concerned;
and (b) will
always act subject to considerations of fairness and justice and the
absence of prejudice to other parties. See
Transvaal
Racing Club v Jockey Club of SA
1958 (3) SA 599
(W)
at 604A-E;
Gold
Fields Ltd v Motley Rice LLC
2015 (4) SA 299
(GJ) at para [123];
Standard
Bank of SA Ltd v Sewpersadh & Another
2005 (4) SA 148
(C) at 154D.
James
Brown & Hamer
supra
660 D-H.
[148]
Importantly, other considerations will include the degree of
materiality of the evidence, the stage which the litigation has

reached, and the general need for finality in judicial proceedings.
See Erasmus,
Superior
Court Practice
,
Vol. 2 page D1-68. Of course this follows from the trite rule of
practice that an applicant must, generally speaking, stand and
fall
by his founding papers. The most important consideration of all is
that adhering to the principles ensures that disputes between
the
litigants are resolved in terms of a procedure which is just, orderly
and well recognised. See
Gold
Fields Ltd v Motley Rice LLC
,
supra
,
par 125;
Union
Finance Holdings Ltd v IS Mirk Office Machines II (Pty) Ltd and
Another
2001 (4) SA 842
(W) at 847J-848E. Needless to mention that this is
not at all pedantry. It is and remains an integral part of the
principle of
legal certainty. It is therefore the rule of law,
because the other party is entitled to know precisely the case it has
to meet.
See
Pilane
& Another v Pilane & Another
2014
(4) BCLR 431
(CC) at para [49] ft nt 40;
Standard
Bank of SA Ltd v Sewpersadh & Another
,
supra
,
at 154A, relying in
James
Brown & Hamer
,
supra
at
660.
[149]
The point is where (as in the present case), affidavits are tendered
both late and out of the their ordinary sequence, the
party tendering
has no right to do so, but seeks an indulgence from the Court. Such
party must both advance an explanation of why
the affidavits are out
of time, and satisfy the Court that, although the affidavits are
late, they should, having regard to all
the circumstances of the
case, nevertheless be received. See
James
Brown & Hamer
supra at 660F;
Sewpersadh
& Another
supra
at 154C-E. The courts have correctly refrained from delineating
precisely all the considerations that will be taken into account
in
exercising the discretion to admit or reject a late tendered
affidavit, but what is invariably accepted as being one pre-requisite

is ‘ the adequacy or otherwise of the explanation for the late
tendering of the affidavit.’ See
James,
Brown & Hamer
supra
at 660H;
Sewpersadh
& Another
supra
,
at 154E. There must indeed be a proper and satisfactory explanation
as to why the information contained in the affidavit was not
put up
earlier. Quite apart from this being an indulgence sought from the
Court, the applicant for such filing must show that he
has not been
mala
fide
or culpably remiss in not having put up the information in the
further affidavit earlier. The Court must be satisfied that no
prejudice will be occasioned to the other party if the new affidavit
is admitted. It is axiomatic that to permit the filing of further

affidavits severely prejudices the party who now has to meet a case
based on those submissions. See
Hano
Trading CC v JR209 Investments (Pty) Ltd
2013
(1) SA 161
(SCA) at para [12]. An unfortunate development is
developing in this regard. Parties would be well advised that courts
will stamp
out the practice that tends to show laxity and
non-adherence to the rules regarding the three essential affidavits
and the contents
of each of them.
[150]
In Mr Muller’s submission the further evidence which the
applicants seeks to adduce by way of Rossouw’s further

affidavit and the testimony of Theron is irrelevant to the
determination of the relief sought in the main application. In the
alternative, Mr Muller contended that it is insufficiently relevant
to permit further evidence to be adduced in this way and at
this late
stage, because it concerns an hypothesis and allegations in support
of it which lack any plausible factual basis. It
is trite that in
paragraph 3 of Rossouw’s affidavit (read in context) he
purports to set forth the ostensible purpose of
that affidavit and
the intended oral evidence of Theron. In essence the ostensible
purpose is to place information before this
Court: (a) which has not
yet been put before Court and could not have been adduced earlier;
(b) which supports the Applicants’
version and legal
conclusions in support of the relief sought in the main application,
as set out in their founding and replying
papers in the main
application; (c) which was not placed before Judge Howie for purpose
of his investigation in 2016 into the deviations
from SU’s 2014
Language Policy and Plan
(‘the
2014 Policy’
)
in the first term of 2016; (d) which indicates that Prof Wim De
Villiers, the Rector of SU
(‘De
Villiers’
),
misled this management team (‘
RMT’
),
and the RMT was never prepared to honour the undertaking given to
Afriforum on 12 February 2016; (e) which indicates that the
new
Language Policy was accepted in June 2016 simply to clothe with
legality unlawful departures from the previous language policy
in the
first term of 2016; and (f) which indicates that Mr George Steyn
(‘Steyn’), the chair of the SU Council, was
initially
against the actions of the RMT, but later supported its actions as
the way of least resistance and in fact became a pawn
of the RMT.
[151]
In paragraph 4 of Rossouw’s affidavit he asserts that the above
information explains why the outcome of the review of
the 2014 Policy
during the first half of 2016 was (as he contends) a foregone
conclusion and simply an attempt to regularise the
contraventions of
the 2014 Policy. The respondents have, however, given exhaustive
reasons in their answering affidavits and in
their subsequent
submissions. Essentially, according to the respondents (a) there is
no connection between the deviations from
the 2014 Policy in the
first term of 2016 and the new Language Policy which was approved by
Senate and Council in June 2016 (the
deviations from the 2014 Policy
were rectified and ceased with effect from the start of the second
term of 2016 on 29 March 2016);
(b) the reasons for the deviations
from the 2014 Policy were thoroughly investigated by Judge Howie in
March and April 2016 and
his report and conclusions were extensively
debated at, and accepted by an overwhelming majority of, the SU
Council at its meeting
on 9 May 2016; and (c) the litigation between
SU and Afriforum about the deviations from the 2014 policy was
settled on 19 May
2016. It is thus clear that the deviations from the
2014 Policy and the controversy and litigation concerning them had
been finally
resolved more than a month before the SU Council adopted
the new Policy on 22 June 2016.
[152]
In my view, the applicants’ argument that the new Policy was
adopted to regularise the 2014 Policy deviations lacks
any factual
foundation. One must say so because deviations had long ceased and
had also been addressed by an investigation undertaken
by a respected
retired Judge and settled in hotly contested litigation between the
SU and the Afriforum and other applicants. This
court cannot
conceivably validly exercise its discretion in favour of permitting
the applicants to file a fourth set of papers
and grant leave for a
third party to be subpoenaed, in circumstances where the contents of
the papers and the intended oral evidence
are aimed at ‘proving’,
or ‘substantiating, an hypothesis and allegations in support of
it made by the applicants
which clearly lack any plausible factual
foundation and is consequently not relevant, or is insufficiently
relevant to the relief
sought.
[153]
Of importance in this application is Judge Howie’ report which
I briefly summarise
infra
:
(a) During the course of his investigation Judge Howie interviewed
sixteen individuals. These included Theron, Steyn, Professor
PW van
der Walt (‘
Van
Der Walt’
),
Proff. CS Human and A Schoonwinkel. De Villiers was the last person
interviewed. Theron had the opportunity to say to Judge Howie

whatever he wanted to concerning, for example, the deviations from
the 2014 Policy, his discussions and meetings with De Villiers,

Steyn, Van Der Walt, Human and Schoonwinkel and generally the issue
of language at SU (all matters dealt with in Theron’s
statement
of defence). (b) All the individuals mentioned in the preceding
paragraph, plus several others, including Prof JH Knoetze
(whose
correspondence is relied on by Theron in his statement of defence),
were interviewed by Judge Howie and their versions taken
into account
for purposes of his report. (c) The Howie report was considered and
debated at the meeting of the SU Council held
on 9 May 2016. Those
present at the meeting included Theron himself, as well as Professor
Carstens and Advocate Jan Heunis SC.
By closed ballot Council they
voted overwhelmingly to approve the report and its findings, by a
majority of 20 votes to 1, with
2 abstentions.
[154]
As far as the adoption by SU in June 2016 of the new Policy the
following must be mentioned: (a) On 9 June 2016 the Senate
approved
the new Policy by a vote of 113 in favour to 10 against. (b) On 22
June 2016 the Council adopted the new Policy by a majority
of 17
votes in favour to 9 against. (c) The lengthy process which preceded
and culminated in these decisions by the Senate and
Council
respectively has been dealt with by all parties fully in the papers.
I accept, in any event, that at no stage during the
language policy
review process was it a forgone conclusion that the 2014 Policy would
be replaced with a new plan, let alone that
the First Draft Policy
which was published for public comment on 22 March 2016 would be
approved by the Senate and the Council
– not least because
during the period 22 March to 22 June 2016 there was no consensus
whatsoever within SU about the proposed
new policy. Given these
facts, I am not persuaded that there is a scope for the hypothesis
that the process which culminated in
the approval of the new Language
Policy by the Senate and Council in June 2016 was a foregone
conclusion or was not properly considered
by the Senate and Council.
The important thing is that the applicants’ contentions in this
regard are already before the
Court. In my finding, Rossouw’s
further affidavit and the proposed evidence of Theron take these
matters no further. What
they do is that they merely serve to repeat
allegations already made and seek to demonise individuals such as
Steyn, De Villiers
and Schoonwinkel even further.
[155]
I bear in mind that were the applicants permitted to adduce the
further affidavit evidence of Rossouw and the oral evidence
of Theron
(quite apart from the lack of relevance discussed above), this would
substantially prejudice the respondents. It shall
be remembered that
the application to adduce further evidence was delivered: (a) by
e-mail on the afternoon of Thursday, 3 August
2017 (only 5 Court days
prior to the commencement of the hearing of this matter on Monday, 14
August 2017; (b) after both parties
had already filed their heads of
argument. If this Court were to allow the further evidence of Rossouw
and Theron to be adduced,
that will entitle the respondents to deal
with numerous issues mentioned in Rossouw’s further affidavit.
I do not deem it
necessary to document such issues in this judgment.
They are contained in Rossouw’s further affidavit.
[156]
Theron’s statement of defence is annexed as ‘LVH1’.
Were this Court to permit the applicants’ to subpoena
and call
Theron to testify, it would not have been practicable for the
respondents’ legal representatives to obtain instructions

necessary properly to cross-examine Theron on the many aspects of his
statement of defence during the hearing scheduled for 14
August 2017.
Importantly, in any event, were such an unusual procedure in a matter
of this kind and magnitude to be countenanced
at this very late
stage, the respondents might be required to also make application to
adduce oral evidence of their own in response
to such evidence that
Theron might give. If that eventuality becomes a reality, that would
have the unavoidable and inevitable
effect of delaying the hearing of
this application and be severely prejudicial to both the applicants
and the respondents. The
truth is that, this being an attack on SU’s
new language policy, it is in the interests of the SU community that
the matter
be heard and finalised on dates agreed to by the parties.
The respondents have a procedural right that the matter proceed and
be
concluded speedily, it is quite obvious that SU community and the
respondents will be prejudiced by the conceivable postponement
which
will be necessitated if the further affidavit of Rossouw is admitted
and/or the oral evidence of Theron is permitted.
[157]
According to the applicants, the only motivation for permitting the
further affidavit of Rossouw and to subpoena and adduce
oral evidence
of Theron, is the following:
‘
Aangesien Theron se
verweerskrif feite openbaar wat Gelyke Kanse se aansoek teen die US
in belangrike opsigte staaf, en belangrike
inligting wat daarin
vervat is nie tot die Applikante se beskikking was ten tye van die
opstel van die antwoordende (sic) en repliserende
beëdigde
verklaring ingedien word.’
Rossouw
does not even attempt to identify which part(s) of Theron’s
statement of defence contains information which was not
available to
the applicants when their affidavits were prepared. Most (if not all)
of it was or would have been. The contents of
the statement can be
described as a repetition of allegations which already appear in the
applicants’ papers. There is no
explanation why such
information as is in Theron’s statement of defence and which
might not have been known to the applicants,
was not known to them
and could not have been included in the applicants’ papers from
the outset. It remains incumbent on
an applicant seeking to adduce
additional evidence out of its ordinary sequence, to provide a full
explanation for why the information
sought to be adduced could not
have been obtained earlier. It is now extremely late and parties even
filed heads of argument. Rossouw
does not assert that it was not
possible to confer with Theron earlier or that Theron had previously
declined to provide any relevant
information.
[158]
The founding and answering papers make it clear that Theron was part
of the contingent of Council members opposed to any revision
of the
2014 language policy and bitterly resisted adoption of the 2016
Policy. He is referred to and relied on several times by
the
applicants in the founding papers. He spoke up frequently at Council
meetings and he left the Council meeting in protest at
the adoption
by the Council on 22 June 2016 of the 2016 language Policy (this
appears from the minutes of that meeting) and is
a fact also
mentioned in the founding papers. After this meeting Theron gave an
interview to the Afrikaans press expressing his
dissatisfaction with
the 2016 Policy and the adoption process. Perhaps Mr Muller puts it
rather accurately by stating the following:
‘
throughout the
process Theron has been a leading and outspoken critic of the 2016
Policy, its adoption by Senate and Council, and
the process which
preceded such adoption. The Applicants knew this.’
[159]
Regard being had to the aforegoing, when preparing their founding and
replying papers the applicants knew or must have known
that Theron
was a witness with information which might be of relevance, but they
evidently failed to consult with him. Had the
applicants done so they
could have adduced his evidence in the founding papers or, had he
then taken up the attitude (which he
now reportedly has done) that as
a sitting member of the SU Council he cannot give evidence for the
applicants without an order
of this Court ordering him to do so, the
applicants could have applied for the order requiring that he testify
orally far sooner
than the eve of the hearing. In conclusion I
emphasise that in the absence of any explanation as to whether the
applicants interviewed
Theron, or why they did not interview him when
preparing the founding or at least replying papers, I  am
obliged to find that
there is simply no adequate explanation
furnished for seeking to adduce Rossouw’s further affidavit or
to compel the oral
testimony of Theron at this extremely late stage
by way of the unusual procedure in motion proceedings of seeking an
order that
he be subpoenaed to testify. The application to admit the
further affidavit and to subpoena Theron to testify stands to be
dismissed
forthwith.
THE
STRIKING OUT APPLICATIONS
[160]
SU has launched two striking out applications in terms of Uniform
Rule 6(15) of the Uniform Rules of Court. The first application
is
dated 24 February 2017. This application is aimed mainly at the
substantial quantity of hearsay and what the respondents describe
as
irrelevant allegations contained in the applicants’ founding
papers. This application is resisted by the applicants. The
second
application is dated 27 July 2017 and it pertains to the applicants’
replying papers, as papers that are replete with
new and irrelevant
matters. Although the Rule under discussion deals expressly with the
striking out of scandalous, vexatious or
irrelevant matter, those
grounds are not at all exhaustive or intended to be exhaustive as to
the grounds on which a court will
strike out allegations; the court
enjoys an inherent jurisdiction to grant relief where appropriate.
See
Titty’s
Bar and Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd and Others
1974 (4) SA 326
(T) at 368F-H. It is trite that new matter raised for
the first time in reply falls to be struck out. Therefore, for an
application
to strike out to succeed, (a) the matter to be struck out
must be of an offending kind as indicated above; and (b) the court
must
be satisfied that if the matter is not struck out the party
seeking to have the matter struck out would be prejudiced. See
Bredenkamp
v Standard
Bank
of SA Ltd
2009 (5) SA 304
(GSJ) at para 75-77. The requirement of prejudice
does not, however, (I point out), mean that if the offending
allegations remain
the innocent party’s chances of success will
be reduced. On the contrary, it is substantially less than that. See
Vaatz
v Law Society of Namibia
1991 (3) SA 563
(NM) at 566J-567B.
[161]
Perhaps before proceeding further, it becomes necessary to point out
that the nature of the applicants’ case and the
relief sought
form important background to the determination of these interlocutory
applications. The respondents have been at
pains to emphasise that
the applicants attack is on the 2016 Policy itself which they seek to
have reviewed and set aside together
with the decisions of the Senate
and Council approving it. Obviously, matters pertaining to the
implementation of the Policy are
irrelevant to the determination of
that relief. Mr Muller correctly contended that an attack on the
implementation of the Policy
would be an entirely different case, one
which is not made out in the founding papers and one which the SU has
consequently not
been called upon to answer.
[162]
The allegations sought to be struck out from the founding papers in
the first striking out application are specifically set
out in the
schedule to the application. These amount to approximately 250 pages
and need not be set out in this judgment. They
are found at  pages
3676-3678 of the record of proceedings. The overwhelming quantity is
uncorroborated hearsay and irrelevant
matter.  There are a few
allegations which are described as vexatious. A reading of the
schedule reveals that much of the
uncorroborated hearsay evidence is
also irrelevant. It is clear that it is advanced on account of the
applicants’ approach,
which is to make SU and its language
policy responsible for the fate of Afrikaans throughout South Africa.
That this in an incorrect
and erroneous approach is beyond question.
This amounts to substantial allegations and documentation dealing
inter
alia
with
– (a) the role of mother-tongue instruction in education; (b)
press coverage and/or commentary of language-related developments
at
SU; (c) commentary on the hegemony of English; and (d) commentary on
the ‘death’ of Afrikaans language and Afrikaans
culture.
The above is completely irrelevant to the relief sought.
[163]
The general rule is that hearsay evidence is not permitted in
affidavits. The aforegoing rule is subject to the Law of Evidence

Amendment Act. I accept that such evidence could, in terms of Section
3, be admitted in the present circumstances only on the basis
that
this Court forms the view that it is in the interests of justice to
do so, having regard to: (a) the nature of the proceedings;
(b) the
nature of the evidence; (c) the purpose for which the evidence is
tendered; (d) the probative value of the evidence; (e)
the reason why
the evidence is not given by the person upon whose credibility the
probative value of the evidence depends; (f)
any prejudice to the SU
that the admission of the evidence might entail; or (g) any other
factor that should in the opinion of
the court be taken into account.
As shown above invariably the hearsay evidence tendered by the
applicants is also irrelevant to
the determination of the relief. The
point is if the hearsay evidence is found to be irrelevant (as I
hereby find), it must follow
necessarily that no purpose would be
served in further considering whether it can be admitted in terms of
Section 3 (1) of the
Act.
[164]
In my finding, those hearsay allegations which may survive the
relevance inquiry utterly fail to satisfy the ‘
interests
of justice’
requirement.
The Applicants have not (let alone attempted)  to satisfy the
requirements of Section 3 of the Act in relation
to any hearsay
allegations tendered. Why the author of a newspaper article could not
provide an affidavit for purposes of this
litigation, remains a
mystery to me. No steps have been taken in order to comply with
Section 3 of the Act. SU contends that it
is prejudiced by this. This
cannot be gainsaid. SU is obliged to deal with this which they
correctly describe as unnecessary and
irrelevant matter. Importantly
SU shall incur costs in that regard. The first application to strike
out stands to succeed.
[165]
The second application to strike out is indeed a composite
application. It is directed at the striking out of new, irrelevant

and hearsay matter raised in reply by the applicants. Of importance
is the fact that if the impermissible new matter in reply is
not
struck out, then the Court shall be obliged to allow SU leave to
adduce a further set of affidavits in order to address that
matter.
The offending allegations complained of pertain to the following: (a)
New allegations concerning the implementation of
the Policy in
various faculties of SU (by far the bulk of the offending
allegations, including numerous affidavits from various
students at
SU); (b)
New
allegations concerning an alleged meeting in March/April 2015 between
Professors Koopman and Schoonwinkel and students Burger
and Pieters;
(c) The new allegation that SU never tried to engage in discussion
with the national Higher Education Ministry about
the feasibility of
different strategies aimed at sustaining Afrikaans as a medium of
academic expression and communication; (d)
The new allegation that
the implementation of the Policy in 2017 has resulted in a notable
reduction in the Afrikaans offering;
(e) Whether the legal opinions
of advocates Breitenbach SC and Bishop dated 27 November 2015 and 30
March 2016 were made available
to the members of the Senate and
Council; (f) The omission from the table in SU’s main answering
affidavit of the fact that
all the responses received between 22
March and 22 April 2016 were made available to the Working Group on
27 and 28 April 2016;
(g) Whether at the Working Group meeting of 3
May 2016 a screen-projected version of the draft language policy was
used to make
changes; (h) Whether the report on the costs of a fully
parallel-medium language offering served before the Institutional
Forum,
the Senate and the Council; and the criticisms of the contents
of that report; and (i) Whether SU ever tried to engage in discussion

with the national Higher Education Ministry about the feasibility of
different strategies aimed at sustaining Afrikaans as a medium
of
academic expression and communication.
[166]
It is of importance to mention that the applicants seek to justify
the inclusion of this new matter on the ostensible basis
that:
‘
Aangesien die US nie
die implementering van die nuwe taalbeleid opgeskort het hangende die
beregting van hierdie aansoek nie, is
die Applikante nou by magte om
nuwe feite wat voortspruit uit die implementering van die taalbeleid
en
wat die Applikante se voorspellings en gevolgtrekkings staaf aan die
Agbare Hof voor te hou.’
Indeed
the aforementioned purported justification is manifestly without
merit. That these allegations complained of constitute new
matter
raised in reply is beyond question. In fact the applicants
effectively concede by (at the outset and before the SU had
challenged it or launched the striking out application) seeking to
justify its inclusion. The law is clear on this aspect. It is
not
open to the applicants to introduce this new matter in reply. The
implementation of the Policy was not challenged in the founding

papers. The fact is that the implementation of the Policy is a
heavily fact-based issue which was not canvassed in the founding

papers. It has not been properly ventilated in the papers before
court. The applicants’ allegations are vague and
unparticularised,
inadmissible hearsay, and/or simply false. The
allegations put forth in reply are uncorroborated hearsay and/or
palpably false.
It is true that there are what one may call
speculative allegations concerning proposed implementation in the
founding papers.
But the law is clear in this regard. An applicant is
not in our law permitted to set up a ‘skeleton’ case in
its founding
papers and to flesh it out in reply. See
Bergkelder
v Delheim Wines (Pty) Ltd
1980 (3) SA 1171
(C) at 1176H;
Johannesburg
City Council v Bruma
32
(Pty) Ltd
1984 (4) SA 87
(T) at 91F-92F;
Herbstein
& Van Winsen The Civil Practice of the High Courts of South
Africa
(5
th
ed) p 441. Only existing facts may be alleged. It is improper to
allege facts in anticipation of an event.
[167]
The following authorities demonstrate that the general principle
against making out a new case in reply has indeed hardened
in recent
times. In
Pilane and Another
2013 (4) BCLR 431
(CC),
the
majority of the Constitutional Court held, without any qualification,
that it is impermissible for an applicant in motion proceedings
to
make out a new case in reply. An applicant must stand or fall by what
is contained in his founding affidavit. The majority consequently

disregarded the issues raised in the relevant parties’ replying
papers in the court
a quo
when
deciding the matter on appeal. In this regard, the Court said the
following in a lengthy footnote:
‘
In
Director of Hospital Services v Mistry
1979 (1) SA 626
(AD) at
635H–636B, the Appellate Division held:
“
When
... proceedings are launched by way of notice of motion, it is to the
founding affidavit which a Judge will look to determine
what the
complaint is. As was pointed out by Krause J in Pountas’
Trustees v Lahanas
1924 WLD 67
at 68 and as has been said in many
other cases:
‘
...
an applicant must stand or fall by his petition and the facts alleged
therein and that, although sometimes it is permissible
to supplement
the allegations contained in the petition, still the main foundation
of the application is the allegation of facts
stated therein, because
those are the facts which the respondent is called upon either to
affirm or deny’.
Since
it is clear that the applicant stands or falls by his petition and
the facts therein alleged, ‘it is not permissible
to make out
new grounds for the application in the replying affidavit’ (per
Van Winsen J in
SA
Railways Recreation Club and Another v Gordonia Liquor Licensing
Board
1953
(3) SA 256
(C) at 260)."
[168]
In
South African Transport and Allied Workers Union and another v
Garvas and others
[2012] ZACC 13
,
2013 (1) SA 83
(CC),
2012
(8) BCLR 840
(CC) (Garvas) at para [114], this Court held as follows:
“
Holding parties to
pleadings is not pedantry. It is an integral part of the principle of
legal certainty which is an element of
the rule of law, one of the
values on which our Constitution is founded. Every party
contemplating a constitutional challenge should
know the requirements
it needs to satisfy and every other party likely to be affected by
the relief sought must know precisely
the case it is expected to
meet.”’
The
rule against allowing new matter in reply was held in
Shephard
v Tuckers Land and Development Corporation (Pty) Ltd
1978 (1) SA 173
(W) 178A;
and
in Poseidon Ships Agency (Pty) Ltd v African Coaling and Exporting Co
(Durban) (Pty) Ltd and Another
1980 (1) SA 313
(D) at 315F-316A, to be capable of being departed
from only in special or exceptional circumstances. The latter
decisions are,
however, old and they predate the stance adopted by
the Constitutional Court. Even if one were to rely on
Shephard
and Poisedon Ships Agency
supra,
one will be unable to find that such exceptional circumstances have
been shown to exist in this matter.
[169]
Quite apart from the new matter in reply, the hearsay evidence which
is challenged comprises mainly – (a) uncorroborated
press
clippings; and (b)  references to the representations, comments
etc. of third parties without identifying them or providing

confirmatory affidavits from them and the further replying affidavit
of Mr Rossouw (dated 4 July 2017) consisting of references
to social
media pages and comments of and belonging to various third parties.
The obvious needs to be mentioned. The prejudice
to SU is clear
inasmuch as the admission of such matter unnecessarily broadens the
issues for determination and requires time and
resources to answer.
Of course SU does not enjoy the right to answer. In any event, I
accept that, to do so would be wasteful in
circumstances where it is
unnecessary for purposes of determining the relief sought.  The
second striking out application
is well grounded and stands to be
granted.
Having
regard to the issue of costs in respect of the main application, I
can find no reason as to why costs, including in respect
of the use
of two counsel, should not follow the result. It was not in any event
contended differently by counsel for either party.
ORDER
[170]
In the result, the following orders are made in this matter:
(a) The
application for condonation launched by the respondents seeking
condonation for the late filing of the answering papers
is hereby
granted; the respondents are liable to pay the applicants’
costs in this regard as tendered.
(b) The
application by the applicants for the admission of further affidavit
deposed to by Mr Daniel Rossouw (‘Rossouw’)
and for Mr
Johan Theron to be subpoenaed and to testify to the content of his
statement of defence, Annexure “DJR5”
to Rossouw’s
affidavit, is hereby dismissed with costs.
(c) The two
striking out applications launched by the respondents are hereby
granted; the applicants shall pay costs in this regard.
(d) The main
application (in which orders are sought reviewing and setting aside
the decisions of the Senate and Council of Stellenbosch
University
taken on 9 and 22 June 2016 respectively to adopt a new language
policy for the Stellenbosch University in terms of
Section 27
(2) of
the
Higher Education Act 101 of 1997
as well as the setting aside the
2016 Policy itself) is hereby dismissed with costs.
(e) The costs
mentioned in (b), (c) and (d) above shall include the costs
occasioned by the employment of two counsel and shall
be paid by the
applicants jointly and severally.
____________________________
D
V DLODLO
Judge
of the High Court
I
agree.
_________________________
K
M SAVAGE
Judge
of the High Court
APPEARANCES:
For
the Applicants:

Adv. J Heunis (SC)
Instructed by DJ
Rossouw of West & Rossouw
For
the First to Third Respondents: Adv. J Muller (SC)
Adv. N De Jager
Instructed by L
Van Niekerk of Cluver Markotter Inc.