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[2016] ZAGPPHC 1030
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Afriforum and Another v Chairperson of the Council of the University of Pretoria and Others (54451/2016) [2016] ZAGPPHC 1030; [2017] 1 All SA 832 (GP) (15 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 54451/2016
DATE:
15/12/2016
Reportable:
Yes
Of
interest to other judges: Yes
Revised.
IN
THE MATTER BETWEEN
:
AFRIFORUM
First
Applicant
SOLIDARITY
Second
Applicant
and
CHAIRPERSON
OF THE COUNCIL OF THE
UNIVERSITY
OF PRETORIA
First
Respondent
CHAIRPERSON
OF THE SENATE OF THE
UNIVERSITY
OF PRETORIA
Second
Respondent
THE
UNIVERSITY OF PRETORIA
Third
Respondent
THE
MINISTER OF HIGHER EDUCATION
AND
TRAINING
Fourth
Respondent
JUDGMENT
Kollapen
J:
Introduction
1.
This is a case involving the assertion of language rights. Language
is considerably more than simply a means of communication;
it has
been recognised as central to human development and an inextricable
part of the construction of human identity. In its 2004
Report titled
'Cultural Liberty in today's diverse World' the United Nations
Development Programme described cultural liberty in
the following
terms:
' Cultural liberty is an important part of human
development because being able to choose one 's identity
-
who
one is
-
without losing the respect of others or being
excluded from other choices is important in leading a full life.
People want the freedom
to practise their religion openly, to speak
their language, to celebrate their ethnic or religious heritage
without fear or ridicule
or punishment or diminished opportunity.
People want the freedom to participate in society without having to
slip off their chosen
cultural moorings. It is a simple idea, but
profoundly unsettling.'
2.
While language is indeed a positive and affirming component of human
identity, history is also replete with examples of how powerful
elites were able to harness language as a tool of domination, of
subjugation and of exclusion. Those examples also exist in South
Africa· s own painful history.
3.
The Senate and the Council of the University of Pretoria ('UP')
resolved on the 20th and the 22nd of June 2016 respectively to
change
the language policy of UP to provide for English as the main language
of learning and teaching.
4.
The applicants seek to review and set aside those decisions of the
Senate and Council. The first, second and third respondents
oppose
the relief sought, while the fourth respondent has elected to abide
by the decision of the Court.
Background
5.
It is however necessary in contextualising the dispute, to have
regard to a number of factors and considerations all of which
are
relevant in assessing and determining the relief claimed. They
include:
5.1 A brief history of UP and of its language
policy over time;
5.2 The legal and policy framework relevant
to the determination of language policy at UP; and
5.3 The process followed by UP prior to the
decision to adopt the current language policy
Ø
A brief history of UP and its changing language policy over
time
6.
The Pretoria branch of the Transvaal University College was the
forerunner of UP and it commenced activities in 1908. Interestingly,
English was the only medium of instruction. In 1917, UP initiated
dual medium instruction offering subjects in English and Afrikaans
where it was warranted and/or requested. In 1932 the Council of UP
resolved that Afrikaans would be the only medium of instruction
and
this continued up until 1994 when UP adopted a bilingual language
policy offering instruction in English and Afrikaans. In
2010 the
policy was amended and while in the main it remained a policy of
bilingualism, offering English and Afrikaans as languages
of
instruction and communication, it recognised Sepedi as a third
language of communication. For the sake of completeness the policy
adopted in June 2016 and which is the subject matter of this case,
provides that English will be used as the language of teaching
and
learning while the development and advancement of Afrikaans and
Sepedi will be promoted.
7.
Over the time the demographics of the students at UP and their
language choice and preference also underwent changes. In the
years
prior to 1994 UP was essentially a White university with Afrikaans as
the only medium of instruction. The following tables,
prepared by UP,
illustrate how in the last 20 years or so there has been a radical
transformation in the student profile of UP
as well as in the
language preference of those students.
§
Demographics:
Year
Demographic
1990
Approximately 88% of the University's students are Afrikaans.
1994
At this stage, approximately 77% of the University's students
are Afrikaans.
1997
The Constitution comes into effect.
2000
The number of Afrikaans students at the University as a
proportion to the total number of students has now declined to
57%.
2005
The number of home-language Afrikaans speakers declines to
41.8% of the student population.
2010
At this stage, approximately 35.9% of students are
home-language Afrikaans-speaking.
2016
The present proportion of home-language Afrikaans speakers in
the student population of the University is 25.1%.
§
Statistics in relation to mother-tongue speakers of Afrikaans:
Year
Event
2010
77. I % of mother-tongue speakers prefer Afrikaans as a
language of tuition.
2016
Only 59.14% of the mother-tongue Afrikaans students of the
University preferred Afrikaans as a language of tuition, with
40.86%
of Afrikaans- speaking students expressing a preference for
English tuition. These figures must be understood in the context
of the percentage of Afrikaans at the University who, in 2016,
numbered 25.1%.
§
Pro
jected demographics for planned enrolment between the
2017 and 2019 academic years:
Race group
Projected percentage increase in enrolment at
the University
Black
4.5% increase
Coloured
5.8% increase
Indian
2.5% increase
White
-2.8% decrease
§
Demand for Afrikaans as a language of tuition at the University:
Year
Overall University demand for Afrikaans
as a
language of tuition
2009
29.70%
2011
25.7%
2013
22.8%
2015
17.9%
8.
The conclusion by UP that the decline in the enrolment of White
students as well as the decline in the demand for Afrikaans are
likely to continue, appear to be supported by the data in the tables
above.
Ø
The legal and policy framework relevant to the determination of
language policy at UP
9.
The University of Pretoria is a 'public higher education
institution', as defined by section 1 of the Higher Education Act 101
of 1997 ('the
Higher Education Act'). The
University is also an
'organ of state' under section 239 of the Constitution of the
Republic of South Africa, 1996 ('the Constitution').
As an organ of
state and pursuant to section 8(1) of the Constitution, the
University is bound by the Bill of Rights.
10.
In deposing to an answering affidavit in these proceedings on behalf
of UP, Professor Norman Duncan in alluding to the university's
commitment to address the imperative of transformation and a past
characterised by strife, conflict and injustice, pointed out
that UP
was committed to:
i.
A decisive move awayfrom exclusivity and
privilege;
ii.
Promotion of an educational environment which
recognises equal dignity and respect for all, seeking to actively
overcome discriminatory
practices of the past;
iii.
The creation of an education environment which
is reflective of the diversity of society, specifically with regard
to race; and
iv.
The promotion of social integration and a
rejection of exclusivity and the perpetuation of privilege.
Ø
The Higher Education Act and Language Policy Framework
11.
Section 26
of the
Higher Education Act provides
that a 'public higher
education institution' such as the University must establish,
inter
alia,
a 'council' ('the Council') and a 'senate' ('the Senate').
Furthermore, pursuant to
sections 27(1)
and
28
(1) of the
Higher
Education Act:
>
i. The Council of the University must govern it subject
to the
Higher Education Act and
the University's Institutional
Statute; and
ii. The Senate of the University is accountable to the
Council for the academic and research functions of the University and
must
perform such other functions as may be delegated or assigned to
it by the Council.
12.
Section 27(2)
of the
Higher Education Act provides
inter alia
that
the University must adopt a language policy: 'Subject to the policy
determined by the Minister, the Council (of the University),
with the
concurrence of the Senate, must determine the University's language
policy and must publish and make it available on request'.
13.
The policy referred to in
Section 27(2)
of the
Higher Education Act
is
the Higher Education Language Policy of 2002, which must itself be
read with the National Language Policy Framework of 2003. That
policy
framework evidences a recognition of Afrikaans as a national resource
where in paragraph 15.4 the following is stated:
'The Ministry acknowledges that Afrikaans as a
language of scholarship and science is a national resource. It,
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.
'
14.
In addition in recognising the right to receive education in the
language of their choice, the policy points out in paragraph
3.2
thereof that:
'The Constitution delineates clearly the limit of the
right of individuals to receive education in the language of their
choice.
The exercise of this right cannot negate consideration of
equity and redress in the context of the values that underpin our
shared
aspirations as a nation. In this regard, as the late Chief
Justice Ismail Mohamed, stated in 1995:
'All Constitutions seek to articulate, with differing
degrees of intensity and detail, the shared aspirations of a nation;
the values
which bind its people and which discipline its government
and its national institutions; the basic premise upon which judicial,
legislative and executive power is to be wielded; the constitutional
limits and the conditions upon which that power is to be exercised;
the national ethos which defines and regulates that exercise; and the
moral and ethical direction which the nation has identified
for its
future' .
15.
The parties were in agreement that while these are policy
pronouncements and not law,
Section 27(2)
of the
Higher Education Act
enjoins
UP to have consideration to the policy determined by the
Minister. At the same time the policy to which reference has already
been
made reflects a commitment to the retention and strengthening of
Afrikaans as a language of scholarship and science while recognising
that the right to be taught in the language of choice cannot negate
consideration of race and redress.
Ø
The Constitution
16.
Section 29(2) of the Constitution provides as follows:
'Education
29 (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. Jn 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.'
18.
A significant portion of the dispute in these proceedings relates to
the interpretation to be given to Section 29(2) and in
particular to
the considerations that go into determining the question of 'where
that education is reasonably practicable'. In
HEAD OF
DEPARTMENT, MPUMALANGA DEPARTMENT OF EDUCATION
&
ANOTHER v HOERSKOOL ERMELO
&
ANOTHER
2010 (2) SA 415
( CC)
('Ermelo')
the Court analysed Section 29(2) as follows at 433D-G):
'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
built into s 29(2)(a) imposes a context-sensitive understanding
of
each claim for education in a language of choice. An important
consideration will always be whether the State has taken reasonable
and positive measures to make the right to basic education
increasingly available and
accessible to everyone
in a language of their choice. It must follow that when a learner
already enjoys the benefit of being taught
in an official language of
choice the State bears the negative duty not to take away or diminish
the right without appropriate
justification.'
19.
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 Gauteng Education Bill case'), KRIEGLER J also referred to
the concept of reasonably practicable as being elastic so that it
leaves room for the consideration of a large number of factors.
20.
Certainly in argument before us there was agreement that the concept
of 'reasonably practicable' was not exhaustive in the number
of
factors that in any given case could go into its determination. To
the extent that the parties seek to approach the interpretation
of
Section 29(2) differently, it is a matter I will return to later in
this judgment.
Ø
The process followed by UP prior to the decision taken to
adopt the current language policy
18.
During the early part of 2016 various internal processes were
activated within the UP community on the question of its language
policy culminating in a decision by its Council on 16 March 2016 to
appoint an Independent Transformation Panel ('the Panel) whose
mandate, as an advisory body, was to advise UP 'on a range of
transformation matters including the language policy and
institutional
culture at UP'. The Panel was chaired by retired
Constitutional Court Justice Johann van der Westhuizen.
19.
The Panel, in the discharge of its mandate, prepared a report dated
17 June 2016 dealing with the issue of a language policy
for UP. The
comprehensive report deals extensively with a number of issues
including the history of language use at UP, the process
the Panel
followed in calling for receiving and considering submissions, the
demographics, statistics and finances in so far as
they were relevant
to language policy, the legal position, its analysis and conclusions
and finally its recommendations.
20.
Some of the submissions it received and arguments considered were
those in favour of a more comprehensively multilingual policy,
others
that were in favour of a monolingual policy as well as those that
centred on the protection of Afrikaans.
21.
The Panel in ultimately making its recommendations took into account
some of the following considerations:
i. The considerable change in the language profile of UP
students over the past 22 years where in l 994, 77.7% of students
indicated
Afrikaans as home language compared to 28.6% in 2016. In
addition it also noted the decline in the number of Afrikaans
home-language
students who preferred to be taught in Afrikaans and
concluded from the data that the demand for Afrikaans as a medium of
instruction
has been declining.
ii. It expressed the sentiment that 'Afrikaans must be
spoken, written and further developed' and pointed out that 'a choice
for
English as the main medium of instruction on campus does not at
all affect the right of Afrikaans-speaking academics and students
to
communicate in Afrikaans on campus or to publish in Afrikaans'
cautioning that 'to portray the situation otherwise is dishonest'.
iii. On the question of the law and while recognising
the right in Section 29(2) to receive education in the language of
their choice
where this was 'reasonably practicable' it pointed out
that the Section was required to be interpreted purposively within
the context
of the Constitution as a whole and as far as possible in
harmony with other rights.
iv. While it left open the question of the reasonable
practicability of teaching in Afrikaans at UP, it did make the
observation
that 'it seems to be reasonable practicable, seeing that
it has been and is still being done'.
v. It accepted as having merit a submission it received
that Afrikaans speaking students have a pedagogic advantage over
speakers
of Sepedi and other African languages on the basis that
these latter students have no choice in the language in which they
are
taught whereas Afrikaans-speaking students have a choice between
Afrikaans and English.
vi. In considering that class sizes for Afrikaans
lectures were substantially much smaller in number than class sizes
for English
lectures (e.g. Law Faulty 97 to 360; Economic and
Management Sizes 152 to 371) and while accepting that it did not have
the benefit
of expert evidence as to the impact of different class
sizes on education, it nevertheless expressed the view that on the
basis
of general logic the figures seem to support a conclusion that
this results in a disparate impact upon, and discrimination against,
non Afrikaans speakers .
vii. It appeared to favour the argument that separation
academically on the basis of language may well undermine social
cohesion
as students (who may invariably have different social,
economic and political backgrounds) will not have the opportunity in
the
same space to debate and engage with each other on matters of
significance and this will thereby perpetuate the separateness that
our Constitution is set against.
22.
The Panel concluded its report by recommending English as the main
language of teaching and communication.
23.
The full report of the Panel served before Senate and Council at its
meetings of the 20th and 22nd of June 2016 and was duly
considered by
these structures in their deliberations and the decision they
ultimately made. In addition the Chair of the Independent
Panel and
other panel members were in attendance at those meetings, presumably
to speak to the Report and provide clarification
if and where this
was required.
24.
While the minutes of Senate and Council adopting the new language
policy are part of the Record filed in terms of the provisions
of
Rule 53(3), reference was made in argument by both parties to a
document prepared by the Vice Chancellor of UP, Prof. C
de La
Rey titled 'Reasons for the University of Pretoria's decision to
adopt the Language Policy on 22 June 2016 ('the Reasons
Memo'). It
may for the purpose of this judgment be more convenient to refer to
this document as the parties have in argument and
in any event there
was no suggestion that the document does not correctly reflect and
record the reasons for the decisions taken
on the 20th and 22nd June
2016 by the Senate and Council. I will make further reference to this
Memo later in this judgment.
The challenge of the applicants
25.
In seeking to review and set aside the decisions of Senate and
Council of UP of the 20th and 22nd June 2016 respectively, the
applicants contend:
i. That the decisions stand to be reviewed on the basis
that they are not responsive to the right in Section 29(2) and under
circumstances
where they contend that it is reasonably practicable to
offer tuition in Afrikaans;
ii. That the decisions constitute a denial of the right
in Section 9 of the Constitution not to be discriminated against on
the
basis of language;
iii. That the decision constitutes a withdrawal of
extant rights of students currently seeking instruction in Afrikaans
and those
who might do so in the future.
The stance of the respondents
26.
The Respondents contend that the language policy does not violate
Section 29(2) of the Constitution, but that even if the Court
found
that it did limit the rights in Section 29(2), then in such event the
Respondents contend that the limitation is justifiable
in terms of
Section 36( 1) of the Constitution.
27.
Initially the Respondents sought relief that the application be
dismissed on the basis that the applicants have not come to
Court
with 'clean hands', having based the application solely on an
anonymous informant who unlawfully procured confidential information
from the University. At the hearing of the matter the Respondents
indicated that they did not persist with the dismissal of the
application on this ground but would nevertheless seek to continue
rely on it in so far as it related to the costs order the Court
would
ultimately make. It is a matter I will return to.
Analysis
The
scope and extent of the right under Section 29(2)
28.
As a starting point, it warrants mention that while the section
creates the right to receive education in the official language
or
languages of choice in public educational institutions where that
education is reasonably practicable, the Supreme Court of
Appeal in
MINISTER OF EDUCATION, WESTERN CAPE, AND OTHERS v GOVERNING
BODY, MIKRO PRIMARY SCHOOL, AND ANOTHER
2006
(1) SA 1
(SCA),
pointed out that it was not the right to be so
instructed at each and every public educational institution subject
only to it being
reasonably practicable to do so. Clearly the claim
to the right must be located and adjudicated upon within the context
of the
education system as a whole and the resources and other means
that exists within it, as opposed to the confines of any single
public
educational institution at any given time where such a claim
may arise.
29.
Reverting to the content of the right, the Court in the
ERMELO
case, in its analysis of Section 29(2), described it as 'made
up of two distinct but mutually reinforcing parts'. Thus while they
are distinct parts of the section they remain mutually reinforcing
and cannot be artificially separated.
30.
The Applicants adopt the stance that in determining what is
reasonably practicable as contemplated in the first part of the
section, regard should not be had to the considerations referred to
in the second part of the section i.e. equity, practicability
and
historical redress. While in
ERMELO
the Court alluded
to some of the considerations that would ordinarily go into the
determination of what is reasonably practicable
such as the
availability of public schools, enrolment levels and language choices
of learners, it nevertheless went on to describe
the reasonableness
standard as imposing a 'context-sensitive understanding of each claim
for education in a language of choice.'
31.
In much the same vein this accords with KRIEGLER J's description in
the
GAUTENG
BILL
case of the concept of
reasonable practicability as being elastic so as to accommodate and
be open to a variety of considerations.
Under such circumstances it
would in my view be an exercise in artificiality to insulate factors
relating to equity, practicability
and historical redress in the
determination of what is reasonably practicable. The South African
Concise Oxford Dictionary describes
practicable as 'able to be done
or put into practise successfully.' Clearly this relates purely to
what may be described as the
functional aspect of the task or put
differently, whether the available resources enable the task to be
undertaken. However the
matter does not and should not end at the
functional level. The section in requiring the importation of a
standard of reasonableness
certainly meant that the lawmaker
contemplated much more than a functional ability to provide education
in the language of choice.
32.
The concept of reasonableness described in the Concise Oxford
Dictionary as 'fair and sensible', introduces a value and qualitative
standard into the determination of reasonable practicability. That
being the case it is difficult to justify the exclusion of the
factors in the second part of the section in the manner in which the
claim to the right is dealt with. To do so may well have the
unacceptable consequence that a determination of reasonable
practicability may be arrived at under circumstances where it negates
considerations of equity and race. This can hardly be consistent with
the overall scheme, architecture and values of the Constitution,
or
the policy and legal framework adopted by the State in seeking to
give effect to Section 29(2).
33.
In this regard the Ministerial Policy Framework upon which the
applicants place considerable reliance, explicitly accepts that
the
exercise of the right to receive education in the language of one's
choice cannot negate considerations of race and equity.
34.
Thus, reverting to the reasons advanced by UP for the June 2016
decisions of the Senate and Council, the Reasons Memo prepared
by the
Principal of UP dealt extensively with a number of factors and
considerations including the Regulatory Framework (The Constitution,
the
Higher Education Act and
Higher Education Policy and National
Language Policy Framework as well as UP's Mission and Institutional
Statute.) It then considered
the history and changing demographics of
the University, some of which has already been traversed in this
judgment and then finally
considered the Report of the Panel.
35.
The Senate was clear in its view that the new language policy aimed
at removing segregation and facilitating social cohesion,
and that a
parallel medium policy with Afrikaans and English as medium of
tuition would perpetuate racial segregation. It described
it's
concern in the following terms:
'Keeping the two language groups apart in whatever
configuration is educationally inferior to having them together
because it teaches
students it is acceptable to be taught apart and
it makes the experience impossible of being taught in a truly diverse
context,
where one's views are challenged by people who hold views
fundamentally different from your
own. '
36.
When the matter came before Council, they also expressed themselves
clearly and unequivocally on the need for the University
Language
policy to reflect the commitment of UP to move away from exclusivity
and privilege, to promote an educational environment
that recognised
equal dignity and social integration and one that was reflective of
the diversity of society with specific regard
to race. They expressed
the view that the language policy which they ultimately adopted gave
effect to the commitment of UP in
this regard.
37.
They then proceeded to consider the question of reasonable
practicability and in doing so indicated the following:
i. That the question had to be understood in the light
of a wide range of considerations. This 1s consistent with the
context-sensitive
understanding alluded to m
ERMELO
and
the elasticity of the concept as so described in the
GAUTENG
EDUCATION BILL
case.
ii. That in the light of the available data the
implementation of a parallel medium language policy would not be
practicable at
all in the medium to long term.
iii. That the perpetuation of a language policy the
utility of which in the context of the future demographics of the
University,
will increasingly be diminished, was considered to be
directly relevant to what was reasonably practicable.
iv. The question of reasonable practicability had to be
considered within a matrix of competing considerations and the choice
of
about 18% of the student population was but one such factor, while
the interests of the other 82% also required consideration.
38.
Both Senate and Council then proceeded to adopt by resolution, the
new language policy.
39.
Before considering whether the decision and the reasons advanced in
support thereof stand up to the scrutiny of the law and
the
Constitution, it is important to have regard to the role and
expertise of those entrusted with decision-making as well as the
avowed reluctance of Courts to usurp the functions of administrative
agencies or other functionaries.
40.
In
BATO STAR FISHING (PTY) LTD v MINISTER OF ENVIRONMENTAL
AFFAIRS AND OTHERS
[2004] ZACC 15
;
2004 (4) SA 490
(CC)
the Court
stated the following:
'What will constitute a reasonable decision will
depend on the circumstances of each case, much as what will
constitute a fair procedure
will depend on the circumstances of each
case. Factors relevant to determining whether a decision is
reasonable or not will include
the nature of the decision, the
identity and expertise of the decision-maker, the range of factors
relevant to the decision, the
reasons given for the decision, the
nature of the competing interests
involved and the impact of
the decision on the lives and well-being of those affected. Although
the review functions of the court
now have a substantive as well as a
procedural ingredient, the distinction between appeals and reviews
continues to be significant.
The court should take care not to usurp
the functions of administrative agencies. Its task is to ensure that
the decisions taken
by administrative agencies fall within the bounds
of reasonableness as required by the Constitution.'
(at 513B-D)
41.
Also in
MEC FOR ENVIRONMENTAL AFFAIRS AND DEVELOPMENT PLANNING
v CLAIR/SON'S CC
2013 (6) SA 235
(SCA)
the Court
expressed the following view:
'When the law entrusts a functionary with a
discretion it means just that: the law gives recognition to the
evaluation made by the
functionary to whom the discretion is
entrusted and it is not open to a court to second-guess his
evaluation. The role of a court
is no more than to ensure that the
decision-maker has performed the function with which he was
entrusted.'
(at 239I-240A)
The
Court added:
'It has always been the law and we see no reason to
think that PAJA has altered the position that the weight or lack of
it to be
attached to the
various considerations that go into
making up a decision, is that given by the decision-maker. As it was
stated by Baxter: 'The
court will merely require the decision-maker
to take the relevant considerations into account; it will not
prescribe the weight
that must be accorded to each consideration, for
to do so could constitute a usurpation of the decision-maker's
discretion.'
(at 240D)
' The law remains, as we see it, that when a
functionary is entrusted with a discretion, the weight to be attached
to particular
factors or how far a particular factor affects the
eventual determination of the issue, is a matter for the functionary
to decide
... '
(at 240H-241A)
42.
Thus regard being had to the above
dicta,
it is clear that
both Senate and Council applied their minds to a number of relevant
and often competing considerations and properly
considered what was
before them. The weight that they afforded to the different
considerations that were before them is not a matter
for the Court to
prescribe. In any event it hardly appears that the considerations
that occupied them were neither cogent nor relevant
to the
determination of what the law required of them.
43.
If one has regard to the
dicta
in
ERMELO
then it
does appear that what emerged was a careful consideration of context,
a proper application of the mind as to the legal framework
that was
applicable including Section 29(2) of the Constitution and then an
engagement on the key question of the reasonable practicability
of
the demand to be taught in the language of choice.
44.
To the extent that the applicants seek to rely on the judgement of
the Full Court of the Free State High Court in the matter
of
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)
('the UFS matter'), that matter is
clearly distinguishable. In the UFS matter the Court in setting aside
the decisions of the University
said the following (in paragraph 52):
' 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 decision reviewable' .
45.
The above
dicta
is certainly not supportive of the submission
that integration and transformation are in themselves irrelevant
considerations. As
I understand it what the Court simply cautioned
against was that the exercise in responding to a claim for education
in the language
of choice, had to be located within the parameters of
Section 29(2) and that the factors universally accepted to form part
of the
standard had to be considered. Those factors were not
circumscribed nor is there anything in the judgment to suggest that
integration
and transformation were not legitimate factors to
consider in the determination of what is reasonably practicable.
46.
In these proceedings and if one has regard to the Reasons Memo then
there was certainly an understanding by UP of the centrality
of
Section 29(2) in its formulation of a language policy and the various
steps it embarked upon prior to taking the decisions of
June 2016, as
well as the decision and the reasons for it, reflect an ongoing
engagement with the context-sensitive considerations
it was required
to take into account, including present and projected demand, the
best utilisation of resources, the numbers involved
as part of the
whole, transformation, social cohesion and redress.
47.
Accordingly on this leg of the challenge it could hardly be said that
UP failed to be responsive to the constitutional rights
of Afrikaans
students seeking instruction in the language of Afrikaans. Being
responsive can hardly equate to having to positively
respond to the
request made. What it requires is for the University of Pretoria to
consider the request and determine whether the
request is one that is
reasonably practicable as contemplated in Section 29(2). I have
demonstrated that this exercise, as required,
was undertaken with a
high level of engagement, thoroughness and transparency and the
ultimate conclusion that it would not be
reasonably practicable was
reached after a proper consideration of all the necessary and
relevant factors in a context-sensitive
understanding within which
the claim was located. I must accordingly conclude that the relief
sought on this leg of the argument
must be destined to fail.
48.
Before concluding on this aspect, and in the event that I am wrong
that the determination of what is reasonably practicable
is to
exclude those considerations mentioned in the second part of Section
29(2), namely equity, practicability and the need to
redress past
racially discriminatory practises, then even on the narrow
construction contended for by the applicant, I would conclude
that
the conclusion that providing tuition in Afrikaans was not reasonably
practicable is supported and unassailable.
49.
In this regard the Reasons Memo clearly indicates that in the light
of the available data, it would not be practicable in the
medium to
long term and was thus unsustainable. This conclusion is buttressed
by the data that indicates a steady decline in the
demand for
Afrikaans as a language of tuition as well as a steady decline in the
number of White students at UP. The data certainly
suggests that the
decline is likely to continue and under such circumstances UP is
justified in having regard to the medium and
long term in its policy
making and planning processes. Thus even on the narrow construction
on Section 29(2) I am satisfied that
UP has demonstrated that tuition
in Afrikaans is not reasonably practicable and the application will
have failed on this ground
as well.
Ø
The equality argument
50.
While this aspect of the challenge was not pursued in argument, for
the reasons already given the 2010 policy of bilingualism
was
certainly considered by the Independent Panel to be possibly
discriminatory in so far as it deprived students whose mother
tongue
was neither English nor Afrikaans of any choice in the language of
instruction. Most, if not all of them, were obliged to
choose English
as the medium of instruction. On the other hand students whose mother
tongue was Afrikaans and who were proficient
in English had the
choice of English and Afrikaans as the medium of instruction and were
certainly in a more advantageous position.
51.
The new policy cannot be discriminatory simply because it ceases to
offer Afrikaans as a language choice of instruction. If
one has
regard to the overall effect of the policy decision to make English
the sole language of instruction, read together with
the Report of
the Independent Panel, then it may well constitute some levelling of
the playing fields but in a constructive and
forward-looking manner.
The Panel accepted that English is a compromise without much of an
alternative and in paragraph 206 of
its Report says the following:
'It is true that instruction in English only may be
to the advantage of a small number of mainly white English speakers.
All students
will, to
some extent, be disadvantaged 'equally'.
This is sometimes referred to as the 'graveyard ' option, often
illustrated by the analogy
of a swimming pool being closed because
black people are denied access to it, resulting in the area being
left without a swimming
pool. Whether an unlawfully discriminating
swimming pool is better than no pool is a choice to be made.'
52.
I am accordingly of the view that there is no substance in the
discrimination argument.
The interference with extant rights
53.
The applicants in advancing this argument rely on the
dicta
of
the Constitutional Court in
ERMELO
to the effect that
where a student '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'.
While this is indeed so, I did not
understand the applicants to argue
that the issue of reasonable practicability would not be sufficient
justification.
54.
I do not understand that there are two tests of application here, one
located in Section 29(2) in so far as it relates to a
request for
education in the language of choice, and the other that applies to
instances where the right is already enjoyed. While
it is and must be
so when the State seeks to take the right away or diminish it, as is
the case with the introduction of the 2016
language policy, there has
to be sufficient justification. Such justification in this instance
is to be found in the successful
activation of the test of reasonable
practicability found in Section 29(2). To suggest a different or a
more onerous justification
would have the effect of impermissibly
entrenching language rights.
55. The
challenge on this ground must in my view fail as well.
56.
In the circumstances and for the reasons given, the application is
destined to fail on all of the grounds upon which it has
been
advanced.
Costs
57.
As alluded to earlier, the respondents persist in their stance that
as the applicant came to Court with 'unclean hands', the
Court should
consider it against the applicant, in the determination of an
appropriate costs order. It is not in dispute that the
applicants
relied on information in launching this application, from an
informant who is a member of Council. In the Founding Affidavit
it is
stated that 'the informant that provided the documents is subject to
the Rules of Council which impose confidentiality on
him'.
58.
Despite various requests on the part of the respondents insisting
that the identity of the informer be disclosed, the applicants
have
refused to do so and have simply adopted the position that no further
debate on the matter is required as the relevant documents
and
information are now before the Court.
59.
While it is so that relevant documents and information were
considered by the Court without regard being had to the manner of
their procurement, the question of unclean hands raised by the
respondents does require further and proper consideration.
60. In
AFRISURE CC AND ANOTHER v WATSON NO AND ANOTHER
[2008] ZASCA 89
;
2009
(2) SA 127
(SCA)
the Court expressed the view that in the context
of the unclean hands doctrine that it would be contrary to public
policy to render
assistance to those who defy the law.
61.
In
BROOKS v MINISTER OF SAFETY AND SECURITY
2009 (2)
SA 94
(SCA)
the Court stated the following:
'It is true that in matters of human behaviour we are
often told not to judge by results, but in law, when considering
whether a
contention is well founded, the absurdity of the results to
which it will give rise is not an immaterial consideration. That a
person in the position of Brooks could by his own intentional
wrongful act create in favour of his
dependants a cause of
action that would not otherwise exist is nothing short of
preposterous; indeed in my view that would be a
dangerous
proposition. After all it is a trite principle of our law, that a
person should not be allowed to benefit from his/her
own wrongful
act' .
(at l00E-F)
62.
In these proceedings it is clear that the informant who is a member
of Council has acted in an unethical and wrongful manner.
As a member
of Council he owes a duty to both the University and to Council and
the office he holds requires at least some degree
of fidelity to the
University. It is remarkable that he chose to breach such a duty and
when the respondents press for details
of his identity, the response
is that to disclose his identity would expose the informant to
disciplinary steps and that withholding
his name is necessary for his
protection.
63.
It is unconscionable that someone could act in the fashion in which
the informant has done and then elect to hide behind the
risk of
disciplinary action to remain secret. Our Constitution seeks in many
ways to advance the concept of individual and institutional
integrity
and to encourage conduct that is consistent with both the letter and
the spirit of the law.
64.
The information and documents in question relate to the legitimate
business of the University and of Council. Their leaking
has
compromised the integrity of Council and will invariably cast a
shadow over Council and in particular its ability to engage
in robust
and honest debate such of the kind that universities invariably are
involved in.
65.
Finally it warrants mention that the information and documents in
question are not in the nature of a protected disclosure or
information evidencing corruption or illegality and thus no special
measures exist to protect its disclosure. As indicated they
relate to
the proceedings of a Council meeting where the legitimate affairs of
the University were discussed. In my view the unclean
hands doctrine
would certainly apply, in principle, to the information and documents
that the informant, against the Rules of Council,
made available to
the applicant.
66.
The question that arises from this is whether the applicant, who may
not have necessarily requested or solicited the information
and
documents, should be visited with the consequences of their unlawful
procurement. In my view it is not permissible for the
applicant in
the context of these proceedings to avoid the application of the
unclean hands doctrine by asserting that it was not
responsible for
the unlawful behaviour that constituted the breach of Council Rules.
67.
The documents that formed the basis of this application could have
been secured through the rules of discovery and there was
no need in
my view to rely on the information and documents made available by
the informant. The applicant was aware at the time
the founding
affidavit was deposed to that the information and documents were
procured in breach of the Rules of Council. Notwithstanding
this
knowledge it elected to use and act on the information and documents
it received and in my view this conduct simply served
to compound the
unlawfulness of the actions of the informant. To clothe such conduct
with legality and to adopt the approach that
the matter is academic,
as the information and documents are now before Court, will lose
sight of the need to ensure that even
litigation while governed by
the rules of court in the main, is conducted with integrity and that
the Court demonstrates a willingness
to reprimand litigants who
deliberately choose to act outside of these values. This is precisely
the kind of case where such a
reprimand is called for and in my view
an appropriate costs order would be the kind of reprimand and
sanction that would be justified.
68.
For the reasons I have given the ordinary rule expounded in
BIOWATCH
TRUST v REGISTRAR, GENETIC RESOURCES, AND OTHERS
2009 (6)
SA 232
in so far as it relates to constitutional litigation
should not apply. In
BIOWATCH TRUST
the Court concluded
that 'courts should not lightly turn their backs on the general
approach of not awarding costs against unsuccessful
litigants in
proceedings against the State where matters of genuine constitutional
import arise'.
69.
The
BIOWATCH TRUST
principle is not an inflexible one
and in
LAWYERS FOR HUMAN RIGHTS v MINISTER IN THE PRESIDENCY
AND OTHERS
[2016] ZACC 45
(1 December 2016)
the
Constitutional Court made the following observations:
'In both
Biowatch
and
Helen Suzman
Foundation,
this Court emphasised that judicial officers should
caution themselves against discouraging those trying to vindicate
their constitutional
rights by the risk of adverse costs orders if
they lose on the merits. Particularly, those seeking to ventilate
important constitutional
principles should not be discouraged by the
risk of having to pay the costs of their state adversaries because
the Court holds
adversely against them.
This, of course, does not mean risk-free
constitutional litigation. The Court, in its discretion, might order
costs,
Biowatch
said, if the constitutional grounds of
attack are frivolous or vexatious
-
or if the litigant has
acted from improper motives or there are other circumstances that
make it in the interests of justice to
order costs. The High Court
controls its process. It does so with a measure of flexibility. So a
court must consider the 'character
of the litigation and [the
litigant 's conduct in pursuit of it ', even where the litigant seeks
to assert constitutional rights.'
70.
In my view the applicant's conduct as well as the interests of
justice in so far as they relate to the protection of the integrity
of UP and the litigation process should result in an adverse costs
order. This would also signify that the imperatives of public
policy
located as they are within the values framework of the constitution
should not and does not sanction such conduct.
71.
I would for these reasons also direct that the costs of Part A which
were reserved be dealt with on the same basis and essentially
for the
same reasons.
Some concluding observations
72.
The idea of a society in transformation can, on the one hand, be
positive and affirming while at the same time be unsettling
and the
source of much insecurity. These are but some of the formidable
challenges we are required to navigate in translating the
values and
the imperatives of the Constitution into reality. The Constitution is
not vindictive nor vengeful in charting the path
for our future. It
contemplates a principled, value-based trajectory for the change that
must herald the unfolding of a new constitutional
order.
73.
Given the enforced separation that was the hallmark of our society
for so long, we have the choice of continuing to thrive ensconced
in
our separateness or embracing the unifying diversity our Constitution
contemplates for our society. The language policy choice
made by the
University of Pretoria is not only consistent and in accord with the
provisions of Section 29(2) but also signals a
deep and sincere
commitment to place the University at the forefront of being an agent
in advancing social cohesion and in providing
an important
intellectual space where South Africans, in their bewildering
diversity, can together reflect on the kind of
issues and debates
that a young and vibrant society such as ours must confront.
74.
Accordingly it can hardly be further away from the truth when the
Applicant, in its founding affidavit, describes the language
policy
as being part of a 'focussed countrywide clampdown on Afrikaans as
language of learning and tuition'. Such language in the
founding
affidavit, only serves to impermissibly deepen the fault-lines that
already characterise our fragile democracy and one
should caution
against it.
ORDER
75. In
the circumstances the following order is made:
I. The application is dismissed.
II. The first and second applicants jointly and
severally, the one paying, the other to be absolved, are ordered to
pay the costs
of the application which costs shall include the costs
of Part A, and the costs of two counsel.
______________________
P
M MABUSE
Judge
of the High Court
______________________
N
KOLLAPEN
Judge
of the High Court
______________________
S
A M BAQWA
Judge
of the High Court
HEARD
ON: 01 December 2016
DATE OF
JUDGMENT: 15 December 2016
APPEARANCES:
FOR THE
1
st
& 2
nd
APPLICANTS: Adv. J I du
Toit SC (appearing with Adv. M J Engelbrecht)
INSTRUCTED
BY: Kriek Wassenaar & Venter Incorporated
(ref.:
P Wassenaar/JS/QB0068)
FOR THE
1
st
& 2
nd
& 3
rd
RESPONDENTS:
Adv. G Marcus SC (appearing with Adv. M Stubbs)
INSTRUCTED
BY: Anton Bakker Attorneys (ref.: 0516002)