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[2017] ZASCA 32
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University of the Free State v Afriforum and Another (1027/2016) [2017] ZASCA 32; [2017] 2 All SA 808 (SCA); 2017 (4) SA 283 (SCA) (28 March 2017)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 1027/2016
In
the matter between:
UNIVERSITY OF THE FREE
STATE APPELLANT
and
AFRIFORUM FIRST
RESPONDENT
SOLIDARITY SECOND
RESPONDENT
Neutral
citation:
University
of the Free State v Afriforum
(1027/2016)
[2017] ZASCA 32
(28 March 2017)
Coram:
Cachalia,
Swain and Mathopo JJA and Fourie and Schippers AJJA
Heard:
17
February 2017
Delivered:
28
March 2017
Summary:
Review
: whether decision of University to adopt language policy
administrative action under
Promotion of Administrative Justice Act 3
of 2000
: whether University misconstrued its power under principle
of legality : test for legality review restated : whether language
policy ‘reasonably practicable’ as contemplated in s
29(2) of the Constitution : whether in the exercise of its power
to
decide language policy University constrained by requirement that
policy ‘subject to’ Higher Education Language
Policy in
terms of
s 27(2)
of the
Higher Education Act 101 of 1997
.
ORDER
On
appeal from:
Free
State Division of the High Court, Bloemfontein (
Hendricks
and Mokgohloa JJ and Motimele AJ
sitting
as court of first instance):
1
The appeal in the review application is upheld with costs including
the costs of two counsel, save that in the case of the first
respondent, each party shall pay its own costs.
2
The appeal in the strike-out application is upheld with costs
including the costs of two counsel, on a scale as between attorney
and client. As a consequence the following parts of the respondents’
papers are struck out:
(a) para 3.2 of the
founding affidavit: ‘that were too scared to divulge their
identity for fear of intimidation and reprisal’;
(b) para 10 of the
founding affidavit: ‘they informed Messrs Human and Kruger that
they are absolutely fearful that their
positions may be jeopardised
should their identities be disclosed, but were prepared to do so in
view of the constitutional principle
of transparency and since the
UFS will in any event in good time have to make disclosure of these
very documents’;
(c) para 101.14 of the
founding affidavit: ‘Nothing could be further from the truth
than this misleading statement of the
second respondent to the UFS
Senate, the one body which has to make a decision on something as
serious and contentious as the possible
validity of a new language
policy which was in the process of formulation’;
(d) para 125.1.4 of the
founding affidavit (excluding the first three sentences): ‘On
the basis of the assurance given by
a member attending that meeting
to Mr Human, I sincerely believe that it is true that Prof Jansen
dismissed the letter as being
irrelevant as coming from a third party
. . . the new language policy’;
(e) para 154 of the
founding affidavit: ‘because the persons who provided them were
too scared to reveal their identities
and’;
(f) para 20.5.3 of the
supplementary founding affidavit: ‘it nonetheless amounts to a
serious misrepresentation vitiating
the legality of any decision
taken on that basis’; and
(g) para 41 of the
supplementary founding affidavit: ‘led to believe’ and
‘the assertions were misleading’.
3
The order granted by the Free State Division of the High Court,
Bloemfontein (under case no. A70/2016) is set aside and substituted
by the following order:
(a) ‘The
applicants’ application to review and set aside the decision by
the Council of the University of the Free State
to adopt a new
language policy is dismissed with costs including the costs of two
counsel, save that in the case of the first applicant,
each party
shall pay its own costs.
(b) The respondents’
application to strike out is upheld with costs including the costs of
two counsel on a scale as between
attorney and client. As a
consequence the parts identified in the applicants’ papers at
paras 2 (a) to (g) of the order of
this court are set aside.’
JUDGMENT
Cachalia
JA (
Swain
and Mathopo JJA and Fourie and Schippers AJJA
concurring)
[1]
The legal dispute in this case concerns a decision by the University
of the Free State (UFS) to adopt a new language policy
in March 2016.
The new policy replaces Afrikaans and English as parallel mediums of
instruction with English as the primary medium.
A full court of the
Free State Division of the High Court, Bloemfontein, reviewed and set
aside the decision in July 2016 on the
ground that it constituted
unlawful administrative action as defined in s 1 of the Promotion of
Administrative Justice Act 3 of
2000 (PAJA). This appeal is with its
leave.
[2]
The respondents, Afriforum and Solidarity, were the successful
applicants in the full court. I shall consider their standing
to seek
relief in these proceedings later in the judgment. However, I accept
their legitimate concern that the new language policy,
which prefers
English over Afrikaans at UFS, and the adoption of similar policies
at other universities, will erode the position
of Afrikaans as a
language of instruction and its constitutionally protected status as
an official language.
[1]
Their
disquiet should be shared by all South Africans who value our diverse
cultural and language heritage. Because Afrikaans is,
as Sachs J
colourfully observed in the
Gauteng
School Education Bill
case:
‘one of the cultural treasures of South African national life,
widely spoken and deeply implanted, the vehicle of outstanding
literature, the bearer of rich scientific and legal vocabulary and
possibly the most creole or “rainbow” of all South
African tongues’.
[2]
[3]
UFS has a 113-year history. It may come as a surprise to some that
from 1904, English was the sole medium of instruction. This
changed
to Afrikaans in 1953. In 1993 a parallel-medium policy was
introduced.
[4]
In November 2002 the Education Ministry outlined a framework for a
Higher Education Language Policy (LPHE), which encouraged
the
promotion of multilingualism. It advocated ‘the retention and
strengthening of Afrikaans as a language instruction’,
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 this
regard the LPHE cautioned that the sustained development of Afrikaans
should
not have the ‘unintended consequence of concentrating
Afrikaans-speaking students in some institutions’ thereby
retarding
attempts to promote diversity. In addition historically
Afrikaans-medium institutions had to submit plans to show that
language
instruction was not impeding access by non-Afrikaans
speaking students to their academic programmes. One of respondents’
contentions is that UFS ignored this policy in formulating the new
language policy, an issue I shall consider later.
[5]
Following the publication of the LPHE, UFS approved a language policy
in June 2003. The 2003 policy acknowledged that English
and Afrikaans
shall be the dominant languages of instruction for the foreseeable
future, and also that multilingualism shall be
promoted so that other
South African languages, particularly Sesotho, are ultimately
accepted as mediums of instruction.
[6]
The 2003 policy had an inauspicious beginning. In its second year of
operation already, Professor Fourie, who was rector at
the time,
acknowledged the ‘unintended consequence’ of the
parallel-medium policy segregating the lecturing rooms along
racial
lines. This problem persisted and was repeatedly mentioned in various
reports, including one by the Language Policy Committee
of Council,
in the years that followed. It also generated racial tensions and
complaints from both staff and students.
[7]
Professor Lange, the Vice-Rector (Academic), deposed to the answering
affidavit in the present proceedings. She described the
persistence
of the problem as ‘untenable on a post-apartheid campus’.
The UFS’s Management accordingly sought
and obtained a mandate
from its Council to formulate a new language policy in June 2015. The
task was to be undertaken by the Language
Committee (the Committee),
which the minutes of the Council meeting record as having to be
‘balanced and representative’.
Furthermore, the Committee
had to ensure that an ‘open process of consultation would be
followed, with no preconceived agenda
regarding the desired outcome’.
[8]
There is no dispute that the Committee executed its mandate
diligently. The process undertaken is recorded fully in the papers.
It spanned several months and involved thorough investigation,
vigorous debate and full deliberation. Linguistic experts assisted
the process.
[9]
The draft report was considered by both UFS’s Senate and
Council and the final report, including faculty submissions,
served
before Council. The final report, the respondents accept freely in
their written argument, embodies a qualitative analysis
of the
arguments for and against a policy change and encapsulates every
standpoint adopted in the course of the debate. The respondents
participated actively throughout the process. So it is hardly
surprising that they have not raised any procedural objections to
the
decision to adopt a new policy.
[10]
Council ultimately adopted the report on 11 March 2016 by twenty
votes in favour, one abstention and one vote against it. The
key
finding in the report – that the parallel-medium policy was
entrenching racial separation and impeding racial integration
–
is captured in the executive summary, which states:
‘
The consensus finding of the
review committee is that the current parallel medium language policy
does not work. It divides students,
largely by race, and therefore
works against the integration commitments of the university; it does
not, from the student point
of view, guarantee equality of access to
knowledge in the two different language class groups; it has not kept
up with the dramatic
changes in the racial and language demography of
the university in recent years; and the continuation in Afrikaans is
a declining
language of preference among students who see themselves
as living, learning and labouring in a global world where English
competence
provides more access and mobility than any other South
African language.’
[11]
The finding formed the basis of six policy recommendations the
Committee made to Council, which were also approved. They were:
‘
1. That English becomes the
primary medium of instruction in undergraduate education and, as
largely exists already, in postgraduate
education.
2. that the [UFS] embeds and enables a
language-rich environment committed to multilingualism with
particular attention to Afrikaans,
Sesotho, isiZulu and other
languages represented on the three campuses.
3. that an expanded tutorial system is
available to especially first-year students in Afrikaans, Sesotho,
isiZulu and other languages
to facilitate the transition to English
instruction.
4. that in particular professional
programmes, such as Education and the Agricultural Sciences, the
parallel-medium policy continues
given the well-defined Afrikaans
markets that still makes such language-specific graduate preparation
relevant at the moment.
5. that the language of administration
be English.
6. that the English-medium language
policy be implemented with flexibility and understanding rather than
as a rigid rule regardless
of the circumstances.’
[12]
The approved policy authorised the Committee, in consultation with
the faculties and the Centre for Teaching and Learning,
to approve a
phased implementation plan for the period 2016 to 2021 commencing in
2017. The respondents are dissatisfied with the
new policy and sought
to have the decision to adopt the policy reviewed and set aside.
[13]
On 21 July 2016 the full court delivered its judgment reviewing and
setting aside the Council decision to ‘adopt and
approve’
the new policy. UFS then sought leave to appeal to the Constitutional
Court directly, alternatively to this court,
against the order. The
Constitutional Court refused direct access, but as the full court had
conditionally granted UFS leave to
appeal to this court, its order
was suspended pending the outcome of this appeal.
[14]
The respondents then applied to the full court for an order in terms
of
s 18
of the
Superior Courts Act 10 of 2013
for its order of 21
July 2016 not to be suspended pending the determination of the
appeal. The application was granted. Believing
that the effect of
this order would stymie the implementation of the new policy, UFS
exercised its automatic right of appeal to
this court, which then set
aside the order of the full court. The judgment is reported sub nom
UFS v Afriforum & another
[2016] ZASCA 165
(17 November
2016);
[2017] 1 All SA 79
(SCA).
[15]
It is now necessary to set out the nature of the relief the
respondents sought in the review and the case they made out on
the
papers. In their founding affidavit, the respondents say their
application is concerned first, with preventing UFS from
implementing
the new
language policy, and secondly, setting it aside. Neither is correct
and both misconceive the nature of the relief sought.
The notice of
motion pertinently seeks only to have the Council decision to
adopt
the new policy on 11 March 2016 set aside,
[3]
principally on the ground that it constituted unlawful administrative
action. The respondents did not seek to interdict the policy
from
being implemented, nor did they seek to have it set aside on
administrative law or constitutional grounds.
[16]
The court a quo and both parties approached the matter on the basis
that the impugned decision constituted ‘administrative
action’
as defined in s 1 of the Promotion of Administrative Justice Act 3 of
2000 (PAJA).
[4]
I turn first to
consider whether it is.
[5]
[17]
The determination of whether an action by an organ of state
[6]
is administrative action requires an analysis of its nature and a
positive decision that it is of an administrative character.
[7]
In general policy-making lies within the realm of an organisation’s
executive authority, and the implementation or application
of policy,
lies within its administrative domain. The more closely a decision is
related to the formulation – or the adoption
– of policy,
the more likely it is to be executive in nature; where it is closer
to the implementation of policy, this suggests
it is administrative.
Administrative decisions are generally and appropriately subjected to
a more exacting administrative standard
of review than executive
decisions.
[8]
[18]
In this case, the review is aimed at attacking the decision to adopt
the policy, which the Council has the authority to decide
under s
27(2) of the Higher Education Act 101 of 1997 (the Act). The policy
is not impugned, nor is it sought to be set aside.
Importantly, the
policy itself does not adversely affect the rights of any person or
have the capacity to do so. Neither does it
have a direct, external
legal effect. The policy will only have these legal consequences when
implemented, which the review is
not concerned with. So, properly
understood, it is the UFS’s executive decision to determine its
language policy that is
being attacked and not any of its
administrative actions flowing from the adoption of the policy. The
impugned decision therefore
does not constitute administrative action
as contemplated by PAJA.
[19]
I accept, however, that the decision to adopt the new policy may be
subject to legality review on the ground that it was made
in the
exercise of a public power. 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.
[9]
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.
[10]
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.
[11]
But if a decision-maker misconstrues its power, this will offend the
principle of legality and render the decision reviewable.
[12]
[20]
The complaint advanced in the respondents’ papers was that UFS
failed to take into account the requirements of s 29(2)
of the
Constitution and the LPHE, for which provision is made in s 27(2) of
the Act. In its answering affidavit, UFS says it took
both s 29(2)
and the LPHE into account. There is ample evidence that it did. There
is therefore no substance in this attack. The
court a quo, therefore,
erred in upholding this argument, albeit that it did so in the belief
that it was concerned with administrative
action.
[21]
The respondents advance a more nuanced complaint in their written
submissions before this court. They now contend that in exercising
its power to adopt the new policy, UFS did so without appreciating
the constitutional and statutory parameters within which the
power
had to be exercised. The constitutional constraint, it is contended
was s 29(2) of the Constitution, which affords the right
to language
instruction in a language of choice where this is ‘reasonably
practicable’. And the statutory limitation
on the power was s
27(2) of the Act, which made the exercise of the power ‘subject
to’ the LPHE. Properly understood,
the complaint on both
grounds is that UFS misconstrued its powers in formulating its new
language policy.
[22]
I deal first with the s 29(2) complaint, which lies at the heart of
this appeal. Section 29 of the Constitution reads thus:
‘
(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.’
[23]
As I understand the respondents’ case regarding s 29(2), it is
this: In 2003 UFS adopted a dual-medium language policy.
There were
no resource constraints (cost, human resources and infrastructure) to
continuing with the policy. Section 29(2) therefore
required UFS to
continue with the 2003 policy because it was ‘reasonably
practicable’ to do so. When the problem of
the racial
segregation arose, UFS was not entitled to abandon the 2003 policy
only because of this problem. It had to consider
all ‘reasonable
educational alternatives’ before departing from the 2003
policy. This assessment involved taking the
listed criteria of
equity, practicability and historical redress into account. A proper
consideration of these criteria, would
have involved balancing the
relevant constitutional considerations and standards, and would not
have led to the 2003 policy being
abandoned solely to promote racial
integration. In other words, UFS ought to have employed other means,
without limiting the right
of Afrikaans language speakers to their
language of choice, to solve this problem. The respondents do not
explain what other means
were available to UFS.
[24]
Professor Lange’s response on behalf of UFS is embodied in the
following pithy statement in her answering affidavit,
which
emphasises that the ‘reasonably practicable’ requirement
in s 29(2) has a normative content, and is not just
concerned with
resource constraints:
‘
It is inherently impossible to
avoid racial division when language division is maintained and where
the statistics show that one
of the two language streams comprises of
white and the other of black students. While this is at times
described by different individuals
as an "ethical" or
"redress" issue, it is equally a matter of what is
reasonably practicable. The fact of the
matter is that the
“reasonably practicable" criterion is far exceeded: it is
absolutely impossible
to
provide language of choice without indirectly discriminating on the
basis of race.’ [Emphasis added]
[25]
UFS submits that the right to receive an education in a language of
choice is not only a matter of practicality, but also of
reasonableness. In other words the existence of the right depends on
an important internal modifier: that it is
reasonably
practicable.
[13]
Relying on
Hoërskool
Ermelo
[14]
it contends that the assessment of whether the attainment of the
right is reasonably practicable involves a ‘context-sensitive’
appraisal of ‘all the relevant circumstances of each particular
case’. This of necessity must include constitutional
norms. On
this interpretation, the criteria mentioned in the second part
(equity, practicability and redress), which are relevant
when
considering effective access to, and implementation of the right,
also enter into the assessment. It is thus incorrect, UFS
says, to
read the first part of s 29(2) as a mere provisioning provision,
which is hermetically sealed from the second part. To
use the
language used in
Hoërskool
Ermelo
,
the two parts are ‘mutually reinforcing’.
[15]
[26]
In my view, the crux of the dispute regarding s 29(2) as to whether
UFS misconstrued its powers turns on which of the two interpretations
of the reasonably practicable requirement – UFS’s or the
respondents’ – is correct. Once it is accepted,
as the
respondents were constrained to accept, that the very existence of
the right depends on a ‘context-sensitive’
assessment of
what is reasonably practicable, this can hardly exclude any factor
that may bear on this assessment. As Kriegler
J said of the
reasonably practicable standard in the
Gauteng
School Education Bill
case,
it is ‘elastic – as it necessarily has to be in order to
leave room for a wide range of circumstances’.
[16]
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.
[27]
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. I am mindful that 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.
[17]
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.
[28]
UFS’s research has shown conclusively that as the demographic
and language profile of its student population has changed
with
ever-increasing numbers of black students opting for English-medium
language instruction, and correspondingly fewer numbers
of white
Afrikaans students seeking Afrikaans- medium instruction, racial
segregation is becoming an increasing problem. The ratio
of Afrikaans
speaking students per lecturer and per classroom is significantly
lower than is the case with non-Afrikaans-speaking
students, who
choose the English stream. This in turn leads to a perception that
Afrikaans-speaking students are receiving closer
supervision than
students who choose to study through the English medium of
instruction. While the problem was observed by Professor
Fourie more
than a decade ago, the circumstances now have led UFS to conclude
that the continuation of the 2003 policy is not only
not reasonably
practicable, but absolutely impossible. That conclusion has the
support of the overwhelming majority of the University
community,
including substantial numbers of Afrikaans speakers. It was arrived
at after proper research, debate and deliberation.
UFS’s
assessment that it is no longer reasonably practicable to continue
with the 2003 is, therefore, one that a court of
law should be slow
to interfere with on review.
[29]
What is more, it is apparent from reading the policy that it was
carefully calibrated. Those students, who currently use Afrikaans
as
a medium of instruction, shall be allowed to complete their studies
using this medium. The policy will first be piloted in only
three
faculties for the 2017 academic year, namely medicine, law and the
humanities, and only rolled out thereafter.
[18]
An expanded tutorial system will be made available to especially
first-year students in Afrikaans, Sesotho, isiZulu and other
languages to facilitate the transition to English instruction. In the
case of professional programmes, such as Education and the
Agricultural Sciences, the parallel-medium policy shall continue
because there remains a market-demand for them. Importantly, the
intention is to implement the new policy with ‘flexibility and
understanding rather than as a rigid rule regardless of the
circumstances.’
[30]
I therefore conclude that the respondents’ contention that UFS
misconstrued its powers by failing to properly apply the
‘reasonably
practicable’ standard in s 29(2) must fail. UFS’s
conduct has been exemplary in the manner it
approached the decision
to reconsider the 2003 policy and adopt a new policy. It also gave
careful consideration to the content
of the new policy. It is the
respondents, not UFS, who misconstrue this provision.
[31]
I should add that this 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.
[19]
[32]
But such questions may only be confronted through a substantive
constitutional challenge to the State’s language policy,
and
not somewhat diffidently or obliquely though judicial review, as the
respondents have done in this case.
[33]
I turn to consider the respondents’ second complaint, that
UFS’s statutory power to adopt a language policy was
constrained by the LPHE, which required the retention and
strengthening of Afrikaans, as a medium of instruction. Put
differently
it is contended that UFS misconstrued its power by
adopting a language policy that was in conflict with the LPHE.
[34]
The source of the power to decide its language policy is s 27(2) of
the Act, which authorises the council of a university,
with the
concurrence of the senate, to determine its language policy. But it
may only do so, ‘subject to’ the policy
determined by the
Minister of Higher Education, which in this case refers to the
LPHE.
[20]
[35]
Drafters usually use the words ‘subject to’ – as in
s 27(2) – as subordinating language to denote that
if clause A
is made subject to clause B, clause A is subordinate to clause B. In
other words clause A may not contradict clause
B. In this case the
respondents’ contend that the new policy impermissibly
contradicts the LPHE’s injunction to retain
and strengthen
Afrikaans as a language of instruction.
[36]
Before considering the ambit of the LPHE it must be borne in mind, as
Harms JA pointed out, in
Akani
Garden Route (Pty) Ltd v Pinnacle Point Casino (Pty) Ltd
,
[21]
that the word ‘policy’ is ‘inherently vague and may
bear different meanings’. He went on, in the context
of the
statute he was dealing with, to say the following:
‘
I prefer to begin by stating
the obvious, namely that laws, regulations and rules are legislative
instruments, whereas policy determinations
are not. As a matter of
sound government, in order to bind the public, policy should normally
be reflected in such instruments.
Policy determinations cannot
override, amend or be in conflict with laws…’
[37]
This brings me to the LPHE. I mentioned earlier that the LPHE
encouraged the promotion of multilingualism, and it also advocated
‘the retention and strengthening of Afrikaans as a language of
instruction’ in historically Afrikaans universities.
At the
same time it acknowledged that this will practically create a tension
with other constitutional imperatives including equity
and redress.
It also presciently cautioned that the sustained development of
Afrikaans should not have the ‘unintended consequence
of
concentrating Afrikaans-speaking students in some institutions’
thereby retarding attempts to promote diversity. This
is precisely
what happened at UFS.
[38]
The question is whether the LPHE – in particular the sentiment
that Afrikaans be retained and strengthened – was
intended to
be prescriptive and bind universities in the formulation of their
language policies, or merely to act as a guideline
from which they
could depart if the circumstances warranted this? In my view there
are clear indications in the LPHE and in the
Act that it was not
meant to be binding: first, the language used in the LPHE is
noticeable for its absence of any prescriptive
language; secondly,
the LPHE envisaged the unintended consequence that may result from
the retention and strengthening of Afrikaans
as a language of
instruction, which must mean that it was left to universities to
decide how best to deal with this problem in
their language policies,
and thirdly, while s 49(A) of the Act gives the Minister of Higher
Education the authority to issue directives
to universities to deal
with, among other things, financial impropriety, ineffectiveness in
the performance of their functions
and failure to comply with any
law, it conspicuously omits any authority for him or her to intervene
in their language policies.
[39]
In my view, and having regard to the language of the preamble of the
Act that it is ‘desirable for higher education institutions
to
enjoy freedom and autonomy in their relationship with the State
within the context of public accountability . . .’, the
words
‘subject to’ in s 27(2), 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.
The only obligation
on universities that choose this course is to justify their
departure. In this case UFS has done so adequately.
The contention
that it failed to appreciate the statutory constraint on its power in
s 27(2) of the Act read together with the
LPHE must therefore fail.
[40]
This brings me to UFS’s application to strike out certain
damaging allegations in the respondents’ papers regarding
its
conduct. The court a quo dismissed the application because these
allegations were ‘not material’. But allegations
that are
immaterial and irrelevant should be struck out, especially when they
advance damaging, vague and unsubstantiated allegations
regarding a
party’s conduct.
[22]
The
respondents did not seek to suggest that they were true.
[23]
And neither did they withdraw or apologise for them. The prejudice to
UFS is evident. When pressed in this court the respondents’
response was a grudging, half-hearted ‘apology’: ‘To
the extent that the allegations were damaging we apologise
for them’.
This is simply not good enough. In the circumstances UFS is entitled
to a striking-out order.
[41]
In regard to standing, it is settled that a party must establish a
legal interest in the subject matter of the relief sought.
UFS does
not dispute Afriforum’s standing, but I have some doubt that it
has a legal interest in these proceedings. Afriforum
does not purport
to represent all Afrikaans speaking students, and has not shown that
any of its members’ rights are adversely
affected by the new
policy. It seeks, in these proceedings, to review and set aside UFS’s
executive decision to adopt a new
language policy, and not the policy
itself, but has not demonstrated that its legal interest extends to
this relief. There is also
no constitutional challenge to the policy
in the public interest. However, in view of UFS’s stance
regarding Afriforum’s
standing, there is no need to decide this
question.
[42]
Solidarity stands on a different footing. It is a trade union under
the
Labour Relations Act 66 of 1995
. It claims standing in its own
interest and on behalf of its members, but not in the public
interest. However, neither Solidarity
nor its members, who are
employees of UFS, have any entitlement to assert the
s 29(2)
right to
a choice of language. The rights-bearers of
s 29(2)
rights are
students. It follows that Solidarity has no legal interest in these
proceedings.
[43]
What remains is the question of costs. Afriforum relies on what has
now become known as the
Biowatch
principle
to avoid a costs order against unsuccessful litigants who seek to
vindicate constitutional rights.
[24]
As I have mentioned, Afriforum has not challenged the
constitutionality of the policy, nor shown that any of its members’
constitutional rights are adversely affected by the new policy.
However, I accept that these proceedings have, as their main purpose,
to protect the constitutional rights of Afrikaans-speaking students,
and that the proper interpretation of s 29(2) of the Constitution
lies at the heart of this dispute. I also accept that language
rights, which overlap with cultural rights, is a very emotive issue
and of considerable importance to many South Africans, and not only
to Afrikaans-speakers, many of whom Afriforum represent. In
the
circumstances of this case I would relieve Afriforum of having to pay
the costs of the litigation. This excludes the costs
of the
striking-out application, which respondents could have avoided with a
bit more circumspection. Solidarity has no standing
and has no basis
to avoid a costs order in its case.
[44]
To sum up: the respondents sought an order reviewing and setting
aside the decision of UFS to adopt a single-medium English
language
policy. That decision was not reviewable under PAJA. And the
respondents failed to make out a proper case for review under
the
principle of legality. 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. UFS was under no legal obligation
to apply the
LPHE and was free to depart from it for good reason. It did so.
[45]
The
Biowatch
principle applied in the case of
Afriforum
as
its real purpose was to vindicate the language rights of
Afrikaans-speaking students, but not to
S
olidarity, which had
no legal interest in the relief claimed. Both parties are however
liable for UFS’s costs in the striking-out
application on a
scale as between attorney and client.
[46]
The following order is made:
1
The appeal in the review application is upheld with costs including
the costs of two counsel, save that in the case of the first
applicant, each party shall pay its own costs.
2
The appeal in the strike-out application is upheld with costs
including the costs of two counsel, on a scale as between attorney
and client. As a consequence the following parts of the respondents’
papers are struck out:
(a) para 3.2 of the
founding affidavit: ‘that were too scared to divulge their
identity for fear of intimidation and reprisal’;
(b) para 10 of the
founding affidavit: ‘they informed Messrs Human and Kruger that
they are absolutely fearful that their
positions may be jeopardised
should their identities be disclosed, but were prepared to do so in
view of the constitutional principle
of transparency and since the
UFS will in any event in good time have to make disclosure of these
very document’;
(c) para 101.14 of the
founding affidavit: ‘Nothing could be further from the truth
than this misleading statement of the
second respondent to the UFS
Senate, the one body which has to make a decision on something as
serious and contentious as the possible
validity of a new language
policy which was in the process of formulation’;
(d) para 125.1.4 of the
founding affidavit (excluding the first three sentences): ‘On
the basis of the assurance given by
a member attending that meeting
to Mr Human, I sincerely believe that it is true that Prof Jansen
dismissed the letter as being
irrelevant as coming from a third party
. . . the new language policy’;
(e) para 154 of the
founding affidavit: ‘because the persons who provided them were
too scared to reveal their identities
and’;
(f) para 20.5.3 of the
supplementary founding affidavit: ‘it nonetheless amounts to a
serious misrepresentation vitiating
the legality of any decision
taken on that basis’; and
(g) para 41 of the
supplementary founding affidavit: ‘led to believe’ and
‘the assertions were misleading’.
3
The order granted by the Free State Division of the High Court,
Bloemfontein (under case no. A70/2016) is set aside and substituted
by the following order:
(a) ‘The
applicants’ application to review and set aside the decision by
the Council of the University of the Free State
to adopt a new
language policy is dismissed with costs including the costs of two
counsel, save that in the case of the first applicant,
each party
shall pay its own costs.
(b) The respondent’s
application to strike out is upheld with costs including the costs of
two counsel on a scale as between
attorney and client. As a
consequence the parts identified in the applicants’ papers at
paras 2 (a) to (g) of the order of
this court are set aside.’
______________
A
Cachalia
Judge
of Appeal
APPEARANCES
For
Appellant:
J J Gauntlett SC (with him F B Pelser)
Instructed
by:
Phatshoane Henney Inc, Bloemfontein
For
First Respondent: J I du
Toit SC (with him M J Engelbrecht; M J Merabe)
Instructed
by:
Hurter Spies Inc,
Centurion
Schoeman Maree Attorneys,
Bloemfontein
Amici
Curiae:
Horn & Van Rensburg Attorneys, Bloemfontein
[1]
Section 6(1) of the Constitution says:
‘The official languages of the Republic are Sepedi, Sesotho,
Setswana, siSwati, Tshivenda,
Xitsonga, Afrikaans, English,
isiNdebele, isiXhosa and isiZulu.’
[2]
Ex Parte Gauteng Provincial
Legislature: In re Dispute concerning the constitutionality of
certain provisions of the Gauteng School
Education Bill
[1996] ZACC 4
;
1995
1996
(3) SA 165
(CC) para 49.
[3]
The notice of motion seeks to have
both the decisions of the Senate on 7 March 2016, and that of the
Council on 11 March 2016,
set aside. However, only the Council
decision is in issue in this appeal.
[4]
In terms of s 1 of PAJA:
‘‘administration action’ means any decision taken,
or any failure to take a decision,
by-
(a)
an
organ of state, when-
(i) exercising a power 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; or
(b)
a
natural or juristic person, other than an organ of state, when
exercising a public power or performing a public function in
terms
of an empowering provision, which adversely affects the rights of
any person and which has a direct, external legal effect
. . . .’
[5]
In
Head,
Department of Education, Free State Province v Welkom High School &
another
[2012] ZASCA 150
;
2012 (6) SA 525
(SCA) para 23, this court stated that the decision
by a school governing body to adopt a pregnancy policy is an
administrative
decision. It did not analyse the nature of the
decision in making this statement.
[6]
There is no dispute that that a
university is an organ of state.
[7]
Tshwane City & others v
Nambiti Technologies (Pty) Ltd
[2015]
ZASCA 167
;
2016 (2) SA 494
(SCA) para 25.
[8]
See generally
Minister
of Defence and Military Veterans v Motau
[2014]
ZACC 18
;
2014 (5) SA 69
(CC) paras 37-44 and
Minister
of Home Affairs & others v Scalabrini Centre & others
[2013]
ZASCA 134
;
2013 (6) SA 421
(SCA) para 57.
[9]
Pharmaceutical Manufacturers
Association of South Africa: In re Ex Parte President of the
Republic of South Africa & others
[2000] ZACC 1
;
2000
(2) SA 674
(CC) paras 85-86.
[10]
Pharmaceutical Manufacturers
Association of South Africa
para
90;
Scalabrini Centre
fn
8 above para 66.
[11]
Democratic Alliance v President of
the Republic of South Africa & others
[2012] ZACC 24
;
2013 (1) SA 248
(CC) paras 39-40.
[12]
Masetlha v President of the
Republic of South Africa & another
[2007] ZACC 20
;
2008
(1) SA 566
(CC) para 81.
[13]
B Fleisch and S Woolman ‘On the
constitutionality of single medium public schools’ (2007)
SAJHR
34
at 50.
Head of department,
Mpumalanga Department of Education
v Hoërskool Ermelo & another
[2009]
ZACC 40
;
2010 (2) SA 415
(CC) para 52.
[14]
Ibid.
[15]
Ibid.
[16]
Ex Parte Gauteng Provincial
Legislature: In re Dispute concerning the constitutionality of
certain provisions of the Gauteng School
Education Bill 1995
1996
(3) SA 165
(CC) para 41. That case concerned s 32 of the
Constitution of the Republic of South Africa 200 of 1993.
Section 32(b) dealt
with the reasonable practicability
standard. Section 32 read as follows:
‘
Every
person shall have the right-
a.
to
basic education and to equal access to educational institutions;
b.
to
instruction in the language of his or her choice where this is
reasonably practicable; and
c.
to
establish, where practicable, educational institutions based on a
common culture, language or religion, provided that there
shall be
no discrimination on the ground of race.’
[17]
Hoërskool Ermelo
fn
13 above para 52.
[18]
UFS v Afriforum & another
[2016] ZASCA 165
(17
November 2016) para 17;
[2017] 1 ALL SA 79
(SCA) para 17.
[19]
Section 6(1) of the Constitution
says: ‘The official languages of the Republic are Sepedi,
Sesotho, Setswana, siSwati, Tshivenda,
Xitsonga, Afrikaans, English,
isiNdebele, isiXhosa and isiZulu.’ Section 6(2) reads as
follows: ‘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.’
[20]
Section 27(2) provides: ‘Subject
to the policy determined by the Minister, the council, with the
concurrence of the senate,
must determine the language policy of a
public higher education institution and must publish it and make it
available on request.’
[21]
Akani Garden Route (Pty) Ltd v
Pinnacle Point Casino (Pty) Ltd
2001
(4) SA 501
(SCA) para 7.
[22]
In terms of Uniform rule 23(2):
‘
(2)
Where any pleading contains averments which are scandalous,
vexatious, or irrelevant, the opposite party may, within
the period
allowed for filing any subsequent pleading, apply for the striking
out of the matter aforesaid, and may set such application
down for
hearing in terms of paragraph
(f)
of subrule (5) of rule 6, but the court shall not grant the same
unless it is satisfied that the applicant will be prejudiced
in the
conduct of his claim or defence if it be not granted.’
[23]
Titty’s Bar and Bottle Store
(Pty) Ltd v ABC Garage (Pty) Ltd & others
1974 (4) SA 362 (T).
[24]
Biowatch Trust v Registrar,
Genetic Resources & others
[2009] ZACC 14
;
2009 (6) SA 232
(CC) para 21.