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[2016] ZAFSHC 130
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Afriforum and Another v Chairman of the Council of the University of the Free State and Others (A70/2016) [2016] ZAFSHC 130 (21 July 2016)
IN
THE FREE STATE HIGH COURT, BLOEMFONTEI N
CASE
NO: A70/2016
REPORTABLE
CIRCULATE
TO JUDGES
In
the matter between:
AFR
I
FORUM
1
st
Applicant
SOLIDARITY
2
nd
Applicant
and
CHAIRMAN
OF THE COUNCIL OF
THE
1
st
Respondent
UNIVERSITY
OF THE FREE STATE
CHAIRMAN
OF THE SENATE OF THE
2
nd
Respondent
UNIVERSITY
OF THE FREE STATE
THE
UNIVERSITY OF THE
FREE
STATE
3
rd
Respondent
and
FEDERATION
OF GOVERNING BODIES OF
SOUTH
AFRICAN SCHOOLS
AFRIKAANSE
TAALRAAD
SOUTH
AFRICAN
TEACHERS'
UNION
Amici curiae
FULL
BENCH REVIEW
HENDRICKS
J, MOKGOHLOA J & MOTIMELE AJ
DATE
OF HEARING
:
20 JUNE 2016
DATE
OF JUDGMENT
:
21 JULY 2016
COUNSEL
FOR
APPLICANTS
ADV. JI DU TOIT SC with ADV.MJ ENGELBRECHT
COUNSEL
FOR
THE RESPONDENT
ADV. JJ GAUTLETT SC with ADV. FB PELSER
COUNSEL
FOR AMICI
CURAE
ADV. JC HEUNIS SC
JUDGMENT
HENDRICKS
J
INTRODUCTION
[1]
The University of the Free State ("UFS") is a university as
defined in the
Higher Education Act 101 of 1997
. It comprises of
three campuses namely the
Qwaqwa Campus
(representing
10% of the student population of the
UFS); the
South
Campus
near Bloemfontein (representing 20% of the
student population of the UFS)
and the
Bloemfontein
campus
(representing
70% of the student population of the UFS). The UFS
was at first an Afrikaans University with tuition
almost exclusively
in Afrikaans.
[2]
Since 1993 the UFS has offered Afrikaans and English parallel medium
instruction. In June 2003 the UFS formally adopted a language
policy
of parallel medium instruction in Afrikaans and English
("the
2003
language
policy").
This language policy was adhered to until March 2016. On 07 March
2016 the Senate of the UFS took a decision to adopt a new language
policy. On 11 March 2016 the Council of the UFS embraced the decision
to adopt a new language policy for the UFS
("the
2016
language policy")
with English becoming the primary
medium of instruction at all levels and Afrikaans remaining available
only in particular professional
programs such as teacher education
and the training of students in theology. It is these decisions taken
by the Senate and Council
of the UFS respectively, which the
Applicants seek to be reviewed and set aside by this Court, in this
semi -urgent review application.
[3]
This application is premise on
inter
alia
the
following grounds of review:-
"(a)
in reaching the decision to adopt the new language policy of
the UFS, the Council and Senate were unconcerned
with:
(i)
considering
whether
it
remain reasonably practicable for
the
UFS
to
offer
Afrikaans as
a
medium
of
instruction, by having regard to the relevant
factors to be brought into account in such an assessment;
(ii)
the
legal implications
of
its election forthwith to deprive
Afrikaans
speaking students
(current and prospective) of
the
opportunity
to
assert
their
section
29
(2) of the Constitution of the Republic of South Africa Act 108 of
1996 ("the Constitution'/ right at the UFS;
(iii)
the costs
of and the human
resource
and infrastructural requirements for
the
effective implication
of the
new language policy
(i.e. with
its
reasonable
practicability).
(b)
the
UFS
Council
and
Senate
were also
unconcerned
and did not
take into
account
(or effectively
so)
the result
of
a poll
conducted
across
all
three
campuses
that
demonstrated substantial support
for
parallel
medium instruction,
with 3323 students in favour
thereof compared
to
the
1107
that
favoured
English
with
tutorials in Afrikaans
and
Sesotho.
(c)
The Language Committee
tasked
with
preparing
a
report on
the
new
language
policy left
it
to
the
Council
of
the UFS
to
consider
the
legal
and
constitutional
implications of its
adoption.
The
UFS
Council
took
no
internal
or external
legal
advice
on
this
issue.
Both
members
of
the
UFS
Senate
and
the
members
of
the
UFS
Council making
the
decision
were
led
to
believe
that
no constitutional
issue for
consideration
arose.
They considered
that
facts
relevant
to
the
determination
of relative
reasonable
practicability
of the
2003
language policy
and the
(then
proposed)
language
policy
(costs, human
resource
and
infrastructure availability) fell
within the ambit of
implementation,
and
therefore did
not consider
them.
The decision
turned
on
the
perceived need to
achieve
integration of
classes: the 'overarching consideration
underlying
the adoption
of the impugned policy
is
to redress
the classroom
segregation
brought
by the previous
policy.
The
new
policy
seeks
racial integration ...'
This is
surprising
because
the
2016
Prospectus
proclaimed
that
the
Bloemfontein campus
is
a
multicultural, parallel
medium institution,
regarded
as
the most
integrated
campus
in
South
Africa
with the most diverse group
of
students."
[4]
The applicants attack the decision to adopt
the new language policy, on the
basis that:
•
relevant considerations
were left out of account;
•
account was taken of
irrelevant considerations; and/or
•
a material error of law
influenced the adoption of the new language policy;
•
no rational connection
existed between the decision to adopt the new language policy and the
purpose for doing so, the purpose of
the empowering provision and/or
the information available to the decision-maker;
•
the decision to adopt the
new policy was otherwise unconstitutional or unlawful.
[5]
It behoves no argument that this case raises important constitutional
issues. This was quite correctly conceded to by Mr.
Gauntlett
on behalf of the Second Respondent and the Third Respondent ("the
Respondents"). [the First Respondent abide by the decision
of
this Court].
IS
THE
UFS AN ORGAN OF STATE?
[6]
As a starting point, it need to be determined whether the UFS is an
organ of State. The Constitution of the Republic of South
Africa Act
108 of 1996
("the
Constitution")
is
the supreme law of the land. Any law or conduct inconsistent
therewith is invalid and the obligations imposed thereby must be
fulfilled. Section 7(1) of the Constitution echoes aspects of the
Preamble to the Act inasmuch as it describes the Bill of Rights
as a
cornerstone of democracy which enshrines the rights of all people and
affirms the democratic values of human dignity, equality
and freedom.
[7]
The Bill of Rights applies to all law and binds the legislature, the
executive, the judiciary and all organs of state. In addition,
a
provision of the Bill of Rights binds a natural or juristic person
if, and to the extent that, it is applicable, taking into
account the
nature of the right and the nature of any duty imposed by the right.
Conversely, a juristic person is entitled to the
rights in the Bill
of Rights to the extent required by the nature of the right and the
nature of that juristic person.
[8]
Section 239 of the Constitution provides:
"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."
In
defining the concept "organ of state", 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. This
raises the question whether a university, which exercises
public
powers and performs public functions in terms of legislation, is an
organ of state for purposes of the Constitution.
[9]
In
Minister of Education,
Western Cape and Others v Governing Body, Mikro Primary School and
and Another,
2006
(1) SA
1(SCA)
,
["the
Mikro
case"],
the Supreme Court of Appeal per
Streicher
JA
(with whom
Cameron
JA,
Brand
JA,
Lewis
JA
and
Mlambo JA
concurred) overturned a finding of the Court a
quo
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 and concluded as follows at paragraph [20]:
"[20]
..
.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."
[10]
In my view, and by parity of reasoning, the UFS 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.
See
a
lso:-
Baloro
and
Others
v
University
of
Bophuthatswana
1995 (4) SA 97
(B).
Gardener and Others
v Central University
of Technology:
Free State
[2012] ZALAC 23
(25 July 2012).
THE
CONSTITUTION
[11]
Section 6 (1) of the Constitution sets out the eleven (11) official
languages of the Republic of South Africa (which includes
Afrikaans).
Section 6 (2) of the Constitution recognize the historically
diminished use and status of the indigenous languages
of our people.
These are languages other than Afrikaans and
English.
Section
6(4) of the Constitution provides as follows:
"The
national government and provincial governments, by legislative and
other measures, must regulate and monitor their use
of official
languages. Without detracting from the provisions of subsection
(2), all official languages must enjoy parity
of esteem and must be
treated equitably."
Sections
9(3), (4) and (5) of the Constitution provide as follows:
"(3)
The state may not unfairly discriminate directly or
indirectly against anyone on one or more grounds,
including race,
gender, sex, pregnancy, marital status, ethnic or social origin,
colour, sexual orientation, age, disability, religion,
conscience,
belief, culture, language and birth.
(4)
No
person may
unfairly
discriminate directly
or
indirectly
against
anyone
on
one
or
more
grounds
in
terms
of subsection (3). National
legislation must
be
enacted to
prevent
or prohibit
unfair
discrimination.
(5)
Discrimination
on one or
more of
the
grounds listed in subsection (3)
is
unfair
unless
it
is
established that
the discrimination
is
fair.
"
Section
29 of the Constitution 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.
"
[12]
Section 29 (1) (a) of the Constitution states that everyone has the
right to basic education. Unlike the right to basic education
in
Section 29 (1) (a) of the Constitution which is immediately
realisable, the right to further education in terms of Section 29
(2)
of the Constitution is progressively realisable and subject to
reasonable measures.
[13]
In the
Mikro
case, supra,
Streicher
JA held that
paragraph [31]:
"[31]
..
The
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".
[14]
In
Head
of the Department,
Mpumalanga Department
of
Education and Another v Hoerskool Ermelo and Another
2010
(2)
SA 415 (CC), ["
the
Ermelo
case"],
Moseneke
DCJ
writing the unanimous judgment
of that Court, stated as follows in paragraph [53]:
"[53]
The second part of s 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 thought 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.
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 Jaws and practices."
In
so far as Section 29(2) of the Constitution is concerned,
Moseneke
DCJ
said the following in paragraph [52] of this judgment:
"[52]
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..."
[15]
The "reasonably practicable" specific limitation provision
in the section 29(2) right means that the State has to
fulfil this
right, unless it is not reasonably practicable or the State can
establish on other grounds that its refusal or inability
to provide
such education complies with the general limitation provision of
section 36 of the Constitution. 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.
See:
The
Constitutional Framework
for
Pursuing Equal Opportunities
in Education,
Perspectives in Education
Vol 22 (3), September 2004.
[16]
Accordingly, as the Supreme Court of Appeal quite correctly pointed
out in the
Mikro
case, supra, that section 29(2) of the
Constitution does not mean that
"[30]
In effect,
the first and second
appellants
contended
that s 29(2)
of
the Constitution
should
be
interpreted to
mean that
everyone
had
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.
"
(emphasis
added)
[17]
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. At that
point, as the Constitutional Court said in the
Ermelo
case,
supra, at paragraph [53], the second sentence of section 29(2) places
"an
injunction
on
the
State
to
consider
all
reasonable educational
alternatives"
to achieve the right. It continue further by stating that in
determining 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".
[18]
Although the UFS is a historically Afrikaans university as alluded to
earlier on in this judgment, it has established English
as a language
of learning and teaching to a considerable extent. The issue is not
whether it should offer learning in English at
all - as was the point
of contention in the case concerning the Afrikaans medium Mikro
Primary School - but the issue is what
the nature and extent of the
UFS's English and Afrikaans offering should be. That brings one to
the second part of section 29(2),
i.e. the means to fulfil students'
and prospective students' right to receive education in Afrikaans and
English. It obliges the
State to consider all reasonable educational
alternatives to achieve the right.
[19]
In the
Ermelo
case, the Constitutional Court emphasised
that when determining 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. 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. It is
noteworthy that in the
Ermelo-case
the Constitutional
Court saw nothing reprehensible about a parallel medium language
policy that allowed for 'racial
redress'
for students demanding institution in
English without deprivation of
the
rights of those seeking tuition in Afrikaans.
[20]
Therefore, what section 29(2) requires of the UFS is the following:
•
It has to adopt
reasonable measures to fulfil students' and prospective students'
right to receive education in Afrikaans and English.
•
When choosing what
measures to adopt, it has to take into account what is fair, what is
feasible and what will remedy the results
of past racially
discriminatory laws and practices.
•
It may not take away or
diminish the right of Afrikaans speakers to receive education in
Afrikaans, in order to increase the
English offering.
[21]
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
(CC)
["the Education
Bill case"],
the Constitutional Court was confronted
with the meaning and scope of section 32 of the Interim Constitution,
the counterpart of
section 29 of the Constitution, which
provided as follows:
"Education
32.
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 grounds
of race."
[22]
In paragraph [9] of the judgment, Mahomed DP states:-
"{9]
The interpretation
of
s
32 (c)
as a
defensive right, based
on its grammatical
and
linguistic structure,
seems
to me
also
to
be
supported
by
its
context
within
s
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.
Section
32
(b),
recognizing
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 s 32 (c). A person can invoke the protection
of
the
Court
where
that
freedom is
threatened, but the language
of
s
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"
[23]
In his concurring judgment
Kriegler
J,
having
expressed his "wholehearted agreement with
Mahomed
DP's
clinical analysis" and his broad
affirmation of "the more historical-international law trent of
thought and conclusion
of
Sachs J'',
said that the government
is constitutionally obligated to, inter alia, where reasonable
practicable, provide instruction in the
language of a pupil's choice.
He states as follows:
"[39]
Nietemin
is
daar
enkele
aspekte
wat
ek spesifiek
wil
toelig.
Taal
-
en by name
die behoud
van
Afrikaans
-
ontlok
diepgewortelde
emosie.
Daarom
is
dit lewensnoodsaaklik
dat
daar
nugter
en
oorwoe
gelet
word op
die
implikasies van
hierdie
saak.
Subartikel
32(c)
van die Grondwet
dra weliswaar
nie
die
bree
betekenis
wat die
petisionarisse
en
die
amicus daaraan wou
heg
nie. Dit
is
en
bly
egter 'n
skans
teen
verswelging van
enige minderheid
se
gemeenskaplike kultuur, taal of godsdiens.
Solank
'n
minderheid daadwerklik wagstaan oor
sy
gemeenskap/ike erfgoed,
solank
is
dit
sy onvervreembare
reg
om eie onder-wysinstellings
ter behoud
van kultuur,
taal of godsdiens
tot
stand
te bring.
[40]
Daar is egter twee belangrike voorbehoude. Ten eerste is die
slotwoorde van die betrokke subartikel ondubbelsinnig; daar mag
geen
diskriminasie op grand van ras wees nie. Die Grondwet bied dus geen
beskerming vir rassevooroordeel op die onderwysterrein
nie. 'n
Gemeenskaplike kultuur, taal of godsdiens met rassisme as 'n
wesense/ement het geen konstitusionele aanspraak op die vestiging
van
afsonder/ike onderwysinstellings nie. Die Grondwet beskerm
verskeidenheid, nie rassediskriminasie nie.
[41]
Ten
tweede moet daar
duidelik
ingesien
word waaroor die
debat
in
hierdie
saak
werklik
gaan.
Subartikels
(a) en
(b)
van
art
32
van
die
Grondwet
boekstaaf en
bevestig die
reg van
iedereen
op
basiese
onderwys,
gelyke toegang
tot
onderwysinstellings en,
waar redelikerwys
uit-voerbaar,
onderrig
in
die
taal
van
die
Jeerling
se keuse. Daartoe
is
die
owerheid grondwetlik
verplig.
Die
maatstaf
van
redelike
uitvoerbaarheid
is
wel
rekbaar - soos
dit
noodwendig
moet
wees
om
ruimte
te
laat
vir
'n
groat verskeidenheid
omstandighede. Dit
is
egter
objektief
beoordeelbaar,
wat
beteken dat
owerheidswillekeur
deur
die Howe aan
bande
gele
kan word.
Betekenisvolle
getalle
taalsprekers
het
gevolglik
'n afdwingbare
reg
teenoor die
owerheid
op
onderrig
in
hul gemeenskaplike
taal
solank
dit
maar
redelikerwvs uitvoerbaar is."
(emphasis
added)
Translated
into English, the underlined portion in paragraph [41] states 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 reasonably
practicable."
[24]
Sachs J, in this judgment stated as follows:
"[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."
[25]
Significantly, in the
Ermelo
case, supra,
Moseneke
DCJ
considered it appropriate, before examining section
29(2) of the Constitution, to
"echo
and
embrace
the
tribute
Sachs
J
paid to minority
rights
in general
and
to
Afrikaans
in
particular"
in the Ermelo
area and, more specifically, what he said in relation to the fourth
assumption.
Moseneke
DCJ
in the
Ermelo
judgment then stated the
following:
"[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
yearsof formal teaching, mother-tongue instruction is
the
foremost and the most effective medium of imparting education."
[26]
In my view, only once the reasonably practicable requirement has been
satisfied, the import of the second sentence in Section
29 (2) of
the Consitution, which states that
"(i)n 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",
comes
to the fore.
[27]
The second sentence of Section 29 (2) of the Constitution makes it
clear that single medium institutions are but one way of
accommodating the right of a learner to instruction in the language
of choice and the mere mention thereof does not privilege such
institutions over dual or parallel medium institutions or
institutions which accommodate multilingualism in some other way.
[28]
What this portion of section 29(2) of the Constitution requires 1s
that all reasonable educational alternatives that would
make
mother-tongue or preferred language instruction possible, ought to be
considered. 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. Due
consideration of all reasonable educational alternatives that would
make mother-tongue instruction possible, such
as dual or parallel
medium instruction, taking into account the three listed criteria of
equity, practicability and historical
redress, stands squarely in the
way of dispensing with Afrikaans as a primary language of instruction
at the UFS.
[29]
Section 29(2) of the Constitution requires
the consideration of three factors:
(i)
The first is
equity
and there are two parts to the equity
enquiry.
•
The first is that from an
educational perspective Black (African) students of whom the vast
majority are neither Afrikaans nor English-speaking
and of whom
English or Afrikaans is the second language, will not benefit
from the new policy.
•
The second is that
dispensing with Afrikaans as a primary language of instruction will
necessarily come at a cost to the Afrikaans
offering, a fact that
would violate Afrikaans-speakers' section 29(2) right not to have
their existing access to Afrikaans higher
education interfered with.
(ii)
The second is
practicability.
This is a consideration
which is easily applied in casu since there is no suggestion that it
is impracticable, a prov1s1onmg
perspective,
to continue instruction with Afrikaans and English as
primary languages of instruction by way of
parallel medium.
(iii)
The third is
redress.
This factor weighs strongly in
favour of ensuring that language is not a barrier to access for Black
(African), Coloured and Indian
students. For the following reasons
this consideration does not favour the new policy over the old:
•
The old policy favoured
multilingualism and sustaining the use of Afrikaans.
•
While Afrikaans may be a
barrier to Black (African) students, English is a barrier to many
Coloured students who were also victims
of 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.
•
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°/o English offering.
[30]
The fact that English has been introduced at the UFS which was a
historical Afrikaans university as a language of instruction,
especially to comply with the redress criterion in section 29(2) of
the Constitution, 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. Such an application
of section
29(2) would clearly be unfair and discriminate against
Afrikaans-speakers inconsistently with the requirements of section
29(2).
[31]
Also, 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 UFS
has
to be considered and "an overriding commitment to 'equality'
or 'transformation"' cannot simply be invoked to dispense
with
Afrikaans as a medium of instruction.
[32]
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 UFS did not consider what was "reasonably
practicable" at the UFS 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 Ministerial Policy 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.
THE
HIGHER EDUCATION ACT
[33]
Section 3 of the Higher Education Act 101 of 1997
("the Act")
provides that the Minister of Higher Education has to determine
policy on higher education, which must include provisions on the
language policy of public higher education institutions, i.e.
universities.
Section
27(1) of the Act provides that the council of a public higher
education institution has to govern it "subject to this
Act, and
the institutional statute".
Section
27(2) of the Act provides as follows:
"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 and make
it available on
request."
[34]
Although the phrase "subject to", when used in litigation,
has been said to have no generally applicable meaning,
it is, in my
view, used in section 27(2) of the Act in its common sense of
establishing what is dominant (the policy determined
by the Minister)
and what is subservient (the policy determined by the Council in
consultation with the Senate). This
means the UFS's
language policy may not be inconsistent with the Ministerial Policy.
It follows that section 27(2) of the Act is
a peremptory requirement
which compels the councils of universities to adopt language policies
which are consistent with the Ministerial
Policy determined by the
Minister pursuant to the provisions of section 3(1) of the Act after
consultation with the Council on
Higher Education ("CHE").
THE
MINISTERIAL
POLICY ON LANGUAGES
[35]
In my view, the language policy determined by the council of a
university has to be compatible with the Ministerial Policy
and all
such policies, i.e. including the Ministerial Policy, have to comply
with sections 29(1)(b) and 29(2) of the Constitution.
Directly
pertinent provisions of the Ministerial Policy, some of which echo
provisions of the Constitution, are the following:
·
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".
·
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.
·
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.
•
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.
•
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
ministerial
Policy,
seeks
to address."
[36]
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 to an attempt to ensure that
all the official languages are accorded parity of
esteem.
[37]
Subsequent to receiving advice from the CHE, the Minister invited
Prof G J Gerwel to convene an informal committee to provide
him with
advice specifically with regard to Afrikaans as a language of
instruction. The committee was requested, in particular,
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. The reason for the
focus 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.
[38]
In relation to languages of instruction, the Ministry -
"•
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;
·
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;
•
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;
•
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;
•
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. (The
obvious
point is, of
course, that
the UFS's language
policy which had to make way for the NLP is
entirely consistent with this, and other, features of the ministerial
Policy whereas
the NLP is not.)"
[39]
The Ministerial Policy 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.
Based on Prof Gerwel's committee's findings, the Ministerial Policy
acknowledges that Afrikaans, "as a language of
scholarship and
science is a national resource". It commits to "ensuring
that the capacity of Afrikaans to function as
such a medium is not
eroded".
[40]
It was submitted that in formulating its language policy, the UFS had
to have regard to, and comply with (but failed to do
so), the
following features of the Ministerial Policy:
•
The acknowledgement that
Afrikaans as a language of scholarship and science is a national
resource.
•
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.
•
The Ministry's position
that the sustained development of Afrikaans is not the responsibility
of only some of the historically Afrikaans
universities.
•
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.
[41]
The irony is, of course, that the UFS's 2003 language policy which is
replaced by the 2016 language policy fit in perfectly
with the
aforementioned positions of the Ministry as expressed in the
Ministerial Policy, whereas the 2016 language policy does
not. It is
clearly evident that section 27(2) of the Act requires that the UFS's
language policy has to be compatible with the
Ministerial Policy.
[42]
By electing to abandon a policy in terms of which Afrikaans was a
primary language of instruction with equal status to English,
and
used as such by way of a parallel medium dispensation,
particularly in circumstances where instruction in Afrikaans
has been
abandoned or significantly curtailed at other universities, is
clearly inconsistent with the Ministerial Policy 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.
[43]
As far as the adoption and implementation of their language 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 Ministerial
Policy, in
respect of the retention and strengthening of Afrikaans as a language
of scholarship and science.
THE
TEST
TO
BE APPLIED
IN A
REVIEW
[44]
This case being a review, the test to be applied for a review is set
out as follow in
Bel
Porto
School
Governing
Body
v Premier, Western
Cape
2002 (3) SA 265 (CC) at paragraph [87]:-
''[87]
The role of the
Courts has
always been
to ensure
that the administrative
process
is
conducted
fairly
and
that decisions
are
taken
in
accordance with
the
law
and
consistently
with the
requirements
of
the
controlling legislation.
If these requirements
are met,
and
if the decision
is
one
that
a
reasonable authority could
make, Courts
would not
interfere
with the
decision."
In
Bato Star
Fishing
(Pty)
Ltd
v
Minister
of
Environmental
Affairs
2004 (4) SA 490 (CC), the Constitutional Court reiterated
this principle. It held at paragraph [48]:-
"[48]
In
treating
the
decisions
of
administrative agencies with the appropriate
respect,
a
Court is recognising
the
proper role
of
the
Executive
within
the
Constitution. In
doing
so
a
Court should
be
careful not
to attribute
to itself
superior wisdom in
relation
to
matters
entrusted
to
other
branches of
government.
A
Court
should
thus
give
due
weight
to findings
of
fact
and
policy decisions
made
by
those
with
special
expertise
and
experience
in
the
field.
The
extent to which
a
Court
should give weight to
these considerations will
depend
upon
the
character
of
the
decision
itself,
as
well
as
on
the
identity
of
the
decision maker.
A
decision
that requires
an
equilibrium
to be struck
between
a
range
of
competing
interests
or
considerations and
which
is
to
be
taken
by
a
person
or institution
with specific
expertise
in
that area must
be shown
respect
by
the
Courts.
Often
a
power
will identify
a
goal to
be
achieved, but will
not dictate which
route should be followed to
achieve that
goal. In
such
circumstances
a
Court should pay
due
respect
to the route selected
by
the
decision-maker."
[45]
This principle is
also applicable
in
labour matters.
In
Sidumo
&
another v Rustenburg Platinum Mines Ltd
&
others
2008
(2) SA 24(CC) the following is
stated at paragraph [110]:
-
"[110]
To summarize, Carephone held that s 145 of the LRA was suffused by
the then constitutional standard that the outcome
of an
administrative decision should be justifiable in relation
to the reasons given for it. The better approach is
that s 145 is now
suffused by the constitutional standard of reasonableness. That
standard is the one explained in Bato Star:
Is the decision reached
by
the
commissioner
one
that
a
reasonable
decision
maker could not reach? Applying it
will give effect not only to the constitutional right to fair labour
practices, but also to the
right to administrative action which is
lawful, reasonable and procedurally fair."
[46]
The following
is stated
in
Herholdt v Nedbank
Ltd (Congress of SA Trade Unions as Amicus Curiae)
(2013)
341LJ 2795 (SCA):-
“
[13]
The distinction between review and appeal, which the Constitutional
Court stressed is to be preserved, is therefore clearer
in the case
of the Sidumo test. And while the evidence must necessarily be
scrutinized to determine whether the outcome was reasonable,
the
reviewing court must always be alert to remind itself that it must
avoid judicial overzealousness in setting aside administrative
decisions that do not coincide with the judge's own opinions'. The
LAC subsequently stressed that the test 'is a stringent [one]
that
will ensure that ... awards are not lightly interfered with' and that
its emphasis is on the result of the case rather than
the reasons for
arriving at that result. The Sidumo test will, however, justify
setting aside an award on review if the decision
is 'entirely
disconnected with the evidence' or is 'unsupported by any evidence'
and involves speculation by the commissioner.
[14]
After
Sidumo
the position
in
regard
to
reviews
of
CCMA arbitration
awards
should
have
been
clear.
Reviews
could be brought on the unreasonableness test laid down by
the
Constitutional
Court and the specific grounds
set out in s
145(2)(a) and
(b) of
the LRA.
The latter had not been extinguished by the
Constitutional Court but were to be
'suffused'
with
the
constitutional
standard
of reasonableness.
What
this meant simply
is that a
'gross
irregularity
in the conduct
of the
arbitration
proceedings' as envisaged by s
145(2)(a)(ii) of the LRA, was not confined to a situation
where the arbitrator misconceives the
nature of
the
enquiry,
but
extended
to
those instances
where the result
was unreasonable
in
the sense
explained
in
that case.
Beyond
that there
was no reason to
think that their meaning
had been significantly altered
provided
they were viewed in
the light of the constitutional guarantee of
fair
labour practices."
[47]
The question that arises for determination is: Is the decision by the
decision-maker rational in relation to all the facts
and
circumstances? Furthermore, what informed the decision to adopt the
2016 language policy? Apparently, racial segregation was
experienced
at the UFS because of the 2003 language policy. Apparently, (and
almost exclusively), white students attend the Afrikaans
stream of
classes proffered at the UFS while black students attend the English
stream of classes. There was no indicator indicating
that white
students should attend the Afrikaans stream of classes and black
students the English classes. Exclusivety did not inform
this
practice. That racial segregation was the most pertinent reason
for the impugned decisions was confirmed by
Mr. Gauntlett
on behalf of the Respondents.
[48]
The Respondent's explanation of why the decision was taken to adopt
the policy is:
'The
policy
was
adopted
for
transformation and
academic
reasons',
and the
'entire
language
policy
project was
concerned
with
nothing
other
than
the
constitutional injunction
of
integration
and
how this
is to
be
accomplished'.
[49]
Furthermore the UFS seems to consider that the English offering was
of a poorer quality, but that is no basis to change the
language
policy. The duty of the UFS to offer
an equitable academic offering is manifest.
It can - and
must - do so through quality control measures. If the quality tuition
offered in some classes does not meet the required
standard, then
steps must be taken to improve the quality of tuition offered in
those classes. A change in language policy is not
the axiomatic
answer, particularly not if it is held out that English classes are
of poorer quality than those offered in Afrikaans.
Implicitly the UFS
is contending that it would rather offer the poorer quality of
tuition to all students than to make efforts
to improve the quality
of tuition offered in English classes.
[50]
What the Respondents left out of account, was that there is no
segregation, and certainly not segregation in the sense of
compulsion. As the language committee noted, some African students at
the UFS elect to receive their education in Afrikaans, as
do some
Coloured students. Together, these students account for about 10% of
the demand for instruction in Afrikaans, and there
is nothing to
prevent them (or others) from exercising this option. The demand of
instruction in English comes from all race groups.
The Respondents'
assertion that the 2003 language policy
'created a divided
black and white
campus'
is
unsupported.
The
UFS Council and Senate had as its goal to achieve great racial
integration on its campuses. In striving to achieve this goal,
the
UFS Council and Senate did not apply the reasonable practicability
test as required by Section 29 (2) of the Constitution.
[51]
South Africa has indeed a history of racial segregation. That
Afrikaans was in the pre-democratic era the language of the oppressor
can't be wished away. That Afrikaans was also in the pre-democratic
South Africa promoted and developed by the then government
is also a
fact. However, the drafters of our constitution deemed it appropriate
and necessary that Afrikaans should be recognized
as one of the
official languages of our country- South Africa and be equal in
status to the other ten (10) official languages.
Applying the dicta
in the cases of
Mikro,
Ermelo
and the
Education
Bill case,
supra, I am of the
view that Afrikaans still has a role to play at the UFS.
[52]
It is however not the policy as such that is seek to be reviewed but
the decision to adopt it. In view of the demand for Afrikaans
tuition
under the 2003 parallel medium language policy, the UFS Council and
Senate had to be satisfied that it was no longer reasonably
practicable to offer instruction alongside English. The adoption of
the new 2016 language policy led to a deprivation of the rights
of
the Afrikaans speaking students without appropriate justification as
constitutionally required. The belief of the decision-makers
that
integration and transformation would justify their decision, without
them taking into account factors universally accepted
to form part of
the reasonable practicability standard in Section 29 (2) of the
Constitution, constituted, in my view, a material
error of law. This
alone renders the decisions reviewable.
[53]
Ironically, in the faculties of education and theology the decision
is to maintain the dual medium of instruction in both English
and
Afrikaans. The reasoning behind this decision is based on the
required needs of society. It was argued that certain denominations
of a particular religion still want to be served in Afrikaans by
their reverends. So too, is there a need to train teachers in
Afrikaans to equip them to teach at schools where the medium of
instruction is Afrikaans. If this reasoning informed the decision
to
retain dual medium of instruction in the faculties of education and
theology then surely the same can be said about the other
faculties.
Why should the right of a student who want to study in Afrikaans and
who would serve his community in Afrikaans in the
field in which he
study, be denied of the opportunity to do so? Furthermore, if there
is provision at the UFS for a student to
study education in Afrikaans
and to teach at an Afrikaans medium school to Afrikaans speaking
learners, then surely the learners
to be taught must also be allowed
to study at the UFS in Afrikaans in which ever field they choose to
study.
S
ee:
Ermelo,
supra
[54]
I echo the sentiments expressed by
Moseneke
DCJ
in paragraph [49] of the
Ermelo
case. I am of the
view that it is by time that something more needs to be done in South
Africa to promote the other indigenous languages
to the level of
being languages of instruction until the level of tertiary
institutions. More than twenty (20) years have
passed since the
advent of our democratic dispensation and not much was done in this
regard. Perhaps it would be prudent for the
UFS to develop the
Sesotho language at the Qwaqwa campus as a language of instruction
alongside English and Afrikaans. The need
for such development is
informed by the feeder area of the communities near that campus.
[55]
I am of the view that in taking the decision to abolish Afrikaans as
a medium of instruction at UFS, the UFS Council and Senate
did not
take into account:-
•
the obligation under s 29
(2) to be responsive to students seeking instruction in Afrikaans,
where it is reasonably practicable;
•
the preference of the
Higher Education Language Policy for the retention, preservation and
promotion of Afrikaans as scientific
language;
•
costs and human resources
associated with the continued offer of Afrikaans, and whether
this remained reasonably practicable.
[56]
In
Westinghouse
Electric Belgium SA
V
Eskom Holdings
(SOC)
Ltd
2016 (3) SA
1 (SCA) the following is stated in paragraph [45] on page 14 A - B:
"Once
a bad reason plays a significant role in the outcome it is not
possible to say that the reasons given for it provide
a rational
connection to it."
In
my view, the reason that played the most important and significant
part in determination of the 2016 language policy namely curing
the
segregation, 1s not one that is rationally connected to the purpose
of the empowering provision namely the adoption of a language
policy
in the interest of the community, with due regard to the
constitutional requirements and standards imposed by the Ministerial
Policy.
[57]
There are some other issues that need to be addressed. These relate
to an application by the Respondents to have certain paragraphs
in
the affidavits deposed to on behalf of the Applicants strike out and
the
locus
standi
of the Second Applicant. I have
carefully examined the paragraphs referred to in so far as the
striking out application is concerned
and I am of the view that what
is complained about is not material. It does not go to the root of
the matter. That the identity
of the informers is protected for fear
of victimization is indeed not material to the determination of this
matter. It is not vague,
embarrassing or even vexatious. Not much
turns on this application. It can simply be dismissed because it is
frivolous. Costs should
follow the result in this regard.
[58]
In so far as the
locus
standi
of the
Second Applicant is concerned, it was contended that this is not a
labour matter in which the rights of employees who are
members of the
Second Applicant is affected. Therefore, so it was contended, that
the Second Applicant does not have any
legal standing in this
matter. I do not agree. The Second Applicant, in the protection of
the interest of its members, do have
legal standing. It was within
its right (in order to protect the interests of its members) that the
Second Applicant be a
party to these proceedings.
[59]
No rational connection exist between the decision taken and the
surrounding facts and circumstances. That the decision about
the new
2016 language policy for the UFS involves constitutional issues is
exactly what was not considered by the Council and Senate
of the UFS.
The record is self-evidently clear that the members of the Council
and the Senate were made to belief that it is not
a constitutional
issue whereas it is in fact one. That it is a constitutional issue
was, as already stated, conceded to by the
counsel representing the
UFS,
Mr.Gauntlett.
Had the members of both the UFS Council and
Senate taken cognisance of the fact that changing the language policy
of the UFS has
a bearing on the Afrikaans speaking segment of the
student population of the UFS, the result inevitably would have been
different.
Similarly, had they been made aware of the fact that what
was at hand to be determined is a constitutional issue, the result
would
inevitably be different. The rationale of the decision taken
was compromised by the fact that it was perceived not to be
unconstitutional
per
se
to change the
language policy. The decision taken is in my view, not rationally
connected to the facts and circumstances which
informed the
decision. I am of the view that these decisions must be reviewed and
set aside.
COSTS
[60]
I am mindful of the Biowatch - principle as enunciated in the case of
Biowatch
Trust
v
Registrar,
Generic
Resources
and
Others
2009 (6) SA 232 (CC). However, in the present case,
the Applicants are successful in their challenge to the
constitutionality of
the adoption of the new 2016 language policy of
the UFS. I can find no plausible reason why costs should not follow
the result.
As a result of the importance of the matter to all the
parties concerned; the fact that the issues are involved; and that it
is
a new issue with regard to the interpretation of Section 29 (2) of
the Constitution insofar as tertiary education is concerned,
it
justified the employment of two counsel (senior and junior). Costs
should consequently also include the costs consequent upon
the
employment of two counsel where applicable.
ORDER
[61]
Resultantly, the following order is made:
(i)
The application is one of semi-urgent and non-compliance with the
terms of Rule 6 (12) is condoned.
(ii)
The decision by Council with the concurrence of the Senate of the
University of the Free State to approve and adopt the
new 2016
language policy for the University of the Free State on 07 and 11
March 2016 respectively, is reviewed and set aside.
(iii)
The application to strike out is dismissed with costs.
(iv)
The Third Respondent is ordered to pay the costs of this application,
which costs shall include the costs consequent upon the
employment of
two counsel (senior and junior), where applicable.
_________________
R
D HENDRICKS
JUDGE
OF THE HIGH COURT, NORTH WEST PROVINCE
ACTING
JUDGE OF THE FREE STATE HIGH COURT
I
agree
_________________
F
MOKGOHLOA
JUDGE
OF THE HIGH COURT, LIMPOPO PROVINCE
ACTING
JUDGE OF THE FREE STATE HIGH COURT
I
agree
_________________
M
M TIMELE
ACTING
JUDGE
OF THE FREE STATE HIGH COURT
APPEARANCES:
ATTORNEYS
FOR THE APPLICANT :
SCHOEMAN MAREE INC.
ATTORNEYS
FOR THE RESPONDENT:
PHATSHOANE HENNEY
INC.
ATTORNEYS
FOR THE AMICI CURAE:
HORN &
VAN RESNBURG ATT.