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[2017] ZACC 48
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AfriForum and Another v University of the Free State (CCT101/17) [2017] ZACC 48; 2018 (2) SA 185 (CC); 2018 (4) BCLR 387 (CC) (29 December 2017)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT
101/17
In the matter
between:
AFRIFORUM
First

Applicant
SOLIDARITY
Second

Applicant
and
UNIVERSITY OF THE
FREE
STATE
Respondent
Neutral citation:
AfriForum and Another v University of the Free State
[2017]
ZACC 48
Coram:
Mogoeng CJ, Nkabinde ADCJ, Cameron J, Froneman J, Jafta J,
Khampepe J, Madlanga J, Mhlantla J, Mojapelo AJ, Pretorius

AJ and Zondo J
Judgments:
Mogoeng CJ (majority):  [1] to [81]
Froneman J
(dissenting): [82] to [135]
Decided on:
29 December 2017
Summary:
Section
29 of the Constitution   Higher Education Act —
Ministerial language policy — Promotion of Administrative

Justice Act
Administrative
action — Legality review — Reasonable practicability —
Legal standing
ORDER
On appeal from the
Supreme Court of Appeal (hearing an appeal from the High Court of
South Africa, Free State Division, Bloemfontein):
1. Leave to appeal is refused.
2. There will be no order as to costs.
JUDGMENT
MOGOENG CJ (Nkabinde
ADCJ, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Mojapelo AJ and
Zondo J concurring):
Essential context
[1]
Whenever we seek to resolve disputes that have the potential
to divide our people along racial lines or exacerbate pre-existing
divisions, a proper context would always be essential.  This is
such a case.  It raises a real but unarticulated question

whether Afrikaans has been “downgraded” from the status
of a major medium of instruction for genuine and constitutionally

sound reasons or in the furtherance of some historical and
insensitive score-settling agenda.  And the following remarks
made by this Court in relation to language as a medium of instruction
are some of the indispensable ingredients for the necessary
context:
“[45] Apartheid has left us with many scars.  The worst of
these must be the vast discrepancy in access to public and
private
resources.  The cardinal fault line of our past oppression ran
along race, class and gender.  It authorised a
hierarchy of
privilege and disadvantage.  Unequal access to opportunity
prevailed in every domain.  Access to private
or public
education was no exception.  While much remedial work has been
done since the advent of constitutional democracy,
sadly deep social
disparities and resultant social inequity are still with us.
[46] It is so that white public schools were hugely better resourced
than black schools.  They were lavishly treated by the
apartheid
government.  It is also true that they served and were shored up
by relatively affluent white communities.  On
the other hand,
formerly black public schools have been and by and large remain
scantily
resourced.  They were deliberately funded stingily by the
apartheid government.  Also, they served in the main and were

supported by relatively deprived black communities.  That is why
perhaps the most abiding and debilitating legacy of our past
is an
unequal distribution of skills and competencies acquired through
education.
[47] In an unconcealed design, the Constitution ardently demands that
this social unevenness be addressed by a radical transformation
of
society as a whole and of public education in particular.”
[1]
[2]
These truths and the demand for “radical transformation”
apply with equal force to those of our universities where Afrikaans

was the sole medium of instruction.  They were exceedingly
well-resourced for the exclusive or primary benefit of
white Afrikaner
students.  And their inseparable and almost
destiny-defining mandate was to develop the Afrikaans language very
well.
As a result, it now effortlessly and admirably fits
President Mandela’s poetic description of it as a language of
“scholarship
and science”.
[2]
Sadly, all African universities and languages were deliberately
starved of resources and capacities critical for a similar

developmental agenda.  Alive to this inequity and deliberate
prejudice, it was deemed prudent to have this sobering reminder

annexed to the ministerial language policy framework, that is central
to this application, so as to give it the vital context which
could
easily elude many, and deflate the transformation project of its
critical zest and legitimacy:
“The level of development attained by the Afrikaans language is
in demonstrable ways connected to aspects of history of
colonial-settler domination and particularly in its latter phases to
the dominant position of a sector of the Afrikaans speaking

communities in the apartheid order.  Afrikaans became the
language most closely associated with the formalisation and execution

of apartheid.  To a great proportion of South Africans it
probably calls up first and foremost associations of discrimination,

oppression and systematic humiliation of others.
These associations understandably often affect the approaches people
take to the role and future of Afrikaans.  That history
of
association with racism and racially based practices is often one
that Afrikaans-speaking communities will have to confront
and deal
with.  That is part of the challenge of healing, reconciliation
and reparation our society will continue to face
for a considerable
time to come.”
[3]
[3]
Issues around language policy are as emotive as the language
itself.  This would be especially so where plans are afoot to
effect changes that would water down the role or usage of language,
particularly Afrikaans.  For, Afrikaans has for many years
been
associated with dominion or power.  Those whose mother tongue it
is once ruled this country.  And everything official
had to also
be in Afrikaans.  It was a compulsory subject for all African
learners and all law students.  In at least
five of our
universities,
[4]
Afrikaans was the only medium of instruction for decades.  To
get to the point where Afrikaans now appears to be driven to
virtual
extinction, as a university medium of instruction, was always going
to give rise to disaffection, controversy or a suspicion
that a less
than innocent agenda was being pursued.
[4]
Extremely difficult, sensitive and potentially divisive as the
language issue in general, and Afrikaans in particular, was and is

bound to be for many years to come, the historical role of Afrikaans
inescapably has to be confronted whenever possibilities of
its use or
disuse as a language of instruction are explored.  After all, we
come from a racially divided past to which Afrikaans
was inextricably
linked.  It bears emphasis that, though not necessarily
articulated, a suspicion that Afrikaans was being
unreasonably
singled out for marginalisation for ignoble historical reasons, is
always likely to lurk in the background.  The
use of Afrikaans
is thus one of the most likely areas of fierce disputation.
“That is part of the challenge of healing,
reconciliation, and
reparation that our society will continue to face for a considerable
time to come”.
[5]
It is a difficult transformational issue that requires a meticulous
and detached handling by all true defenders and ambassadors
of our
constitutional vision.
[5]
We all must consciously guard against the possibility of a
subliminal and yet effectively prejudicial disposition towards
Afrikaans
setting in, owing only to its past record as a virtual
synonym to “racism and racially based practices”.
[6]
That said, the introduction of a language policy is a matter of
such monumental importance that it once triggered what arguably

turned out to be the most tragic, yet inspiring and proud moment in
the history of our struggle for freedom from apartheid
–
a crime against humanity.  In the 1970s
and 1980s black learners rose against government’s imposition
of Afrikaans as
the sole medium of instruction in flagrant disregard
for the most vociferous opposition from students, teachers, parents
and progressive
leaders of all races.  Afrikaans was being used
as an instrument of control, exploitation and systematic
humiliation.
And this is what the ministerial language policy
seeks to sensitise universities about right on its first page:
“The use of language policy as an instrument of control,
oppression and exploitation was one of the factors that triggered
the
two great political struggles that defined South Africa in the
twentieth century
–
the struggle of the Afrikaners against
British imperialism and the struggle of the black community against
white rule.
Indeed it was the attempt by the apartheid state to
impose Afrikaans as a medium of instruction in black schools that
gave rise
to the mass struggles of the late 1970s and 1980s.”
[7]
[6]
Multitudes of virtually unarmed students were detained, maimed
and killed by the State law enforcement machinery.  Then, it
was
a government led by predominantly Afrikaans-speaking people who
sought to thrust their mother tongue upon others in the furtherance

of sectional and self-serving white supremacist policies.
[7]
Now, unlike then, united in their diversity, the University
community has overwhelmingly decided in favour of English as the sole

medium of instruction.  Afrikaans is being phased out as a
medium of instruction to advance a constitutionally-inspired
transformational
agenda.  The aim is to deracialise classes,
foster unity and reconciliation and to defuse observable racial
tensions, but
certainly not to impose any of the home languages of
those in government on Afrikaners or others.  And this is sought
to be
realised progressively, and with due regard to sensitivities
attendant to the policy-shift.
[8]
This then brings into sharp focus the critical need for
judicial officers to always bring an impartial mind to bear on
issues, and
never to be emotionally entangled in matters presented
for their determination.  For, as this Court once cautioned, it
would
be most regrettable for them to make or appear to be making
common cause with litigants:
“Judicial officers must be very careful not to get
sentimentally connected to any of the issues being reviewed.  No

overt or subtle sympathetic or emotional alignments are to stealthily
or unconsciously find their way into their approach to the
issues,
however much the parties might seek to appeal to their emotions.  To
be caught up in that web, as a judicial officer,
amounts to a dismal
failure in the execution of one’s constitutional duties and the
worst betrayal of the obligation to do
the right thing, in line with
the affirmation or oath of office.”
[8]
[9]
All of the above said, it falls to be determined whether it
was reasonably practicable for the University of the Free State
(University)
to retain Afrikaans as the second major medium of
instruction.  The meaning of “reasonably practicable”,
[9]
factors that ought to inform its determination and whether the
University language policy was developed with due deference to that

of the Minister, are some of the issues central to the decision of
this Court.
Parties
[10]
The first applicant is AfriForum.  It is a
non-governmental organisation involved in the protection and
advancement of civil
rights.  In this case it seeks to promote
the interests of students who seek to be taught in Afrikaans or the
interests of
parents who would like to have their children so
instructed.  That includes members of the organisation and their
children.
[11]
Solidarity, the second applicant, is a registered trade union.
It acts in its own interest and now it says also in the
interest
of those of its members who are allegedly affected by the
significant scaling down of Afrikaans as a medium of instruction.
Its
members are said to have an interest in the new language
policy since they would be required to implement it.
[12]
The University is the respondent.  It is its
policy-decision on the medium of instruction that is being
challenged.
Background
[13]
Exercising his powers in terms of section 3 of the Higher
Education Act,
[10]
the then Minister of Education Professor Kadar Asmal developed a
language policy framework for higher education institutions.  That

policy begins by recognising the use of language as a potential
instrument of discrimination and oppression and sets out
constitutional
provisions and values that ought to inform its proper
understanding and application.  It then ends by underscoring the
need
for multilingualism, expressing support for the retention and
development of Afrikaans as a medium of instruction.  This is

however on condition that the use of Afrikaans does not unjustly
deprive others of access to higher education and wittingly or

unwittingly become an instrument for the furtherance of racial or
narrow cultural discrimination.
[11]
Annexed to it is a report on the language policy framework generated
by an Advisory Committee that was appointed by the Minister
of
Education and chaired by Professor Jakes Gerwel.
[14]
The policy framework posits as its end goal “a
transformed higher education system, which is the creation of higher
education
institutions whose identity and cultural orientation is
neither black nor white, English or Afrikaans-speaking but
unabashedly
and unashamedly South African.”
[12]
It also requires that historically Afrikaans medium institutions
“submit plans . . . indicating strategies and time
frames they
intend putting in place to ensure that language of instruction does
not impede access, especially in high costs programmes
with limited
student places such as health sciences and engineering.”
[13]
[15]
It was with this understanding that in 2003, the University
formalised its bilingual policy that had been proactively introduced

in 1993.  Two years into its implementation the then Rector,
Professor Fourie, acknowledged that the policy had had the
undesirable
consequence of having separate lecture rooms for white
and black students.  This trend was regularly reported on.  It

persisted until concerns were raised by staff members and students
that the dual-medium policy had given rise not only to racially

segregated lecture rooms but also racial tensions.
[16]
Of even greater moment are the observations captured by
Professor Lange, the Vice-Rector (Academic) of the University.
She
characterised the worrisome and persistent challenge of racial
segregation as “untenable on a post-apartheid campus”.

Professor Lange goes on to say:
“It is inherently impossible to avoid racial division when
language is maintained and where statistics show that one of the
two
language streams comprises white and the other black students.  While
this is at times described by different individuals
as an ‘ethical’
or ‘redress’ issue, it is equally a matter of what is
reasonably practicable.  The
fact of the matter is that the
‘reasonably practicable’ criterion is far exceeded.
It is absolutely impossible
to provide language of choice without
indirectly discriminating on the basis of race.”
[17]
A report that was commissioned by the University authorities
to look into the appropriateness of the continued use of Afrikaans as

a medium of instruction highlighted its entrenchment of racial
division among students and virtual subversion of racial
integration.
As a result, the University Management recommended
a language policy shift.  After open and admittedly extensive
consultations
with interested parties, including AfriForum,
Solidarity and language experts, the final report was presented to
the University
Council for approval.  The major finding was:
“The consensus finding of the review committee is that the
currently parallel medium language policy does not work.  It

divides students, largely by race, and therefore works against the
integration commitments of the university; it does not, from
the
student point of view, guarantee equality of access to knowledge in
the two different language class groups; it has not kept
up with the
dramatic changes in the racial and language demography of the
university in recent years; and the continuation in Afrikaans
is a
declining language of preference among students who see themselves as
living, learning and labouring in a global world where
English
competence provides more access and mobility than any other South
African language.”
[18]
The use of Afrikaans reportedly worked against equal access to
knowledge.  Racial discrimination and the need for redress are

the paramount concerns raised by the University within the context of
reasonable practicability.  And Afrikaans has itself
fallen into
relative disuse since many Afrikaner students allegedly prefer
English because they “see themselves as living,
learning and
labouring in a global world where English competence provides more
access and mobility than any other South African
language.”
Observable incidents and daily experience backed up by
empirical research evidently caused the University
to think and
respond differently to Afrikaans as a medium of education.
[19]
And the key policy positions taken by the Council are—
“1. that English becomes the primary medium of instruction in
undergraduate education and, as largely exists already, in

postgraduate education.
2. that the [University] embeds and enables a language-rich
environment committed to multilingualism with particular attention
to
Afrikaans, Sesotho, isiZulu and other languages represented on the
three campuses.
3. that an expanded tutorial system is available to especially
first-year students in Afrikaans, Sesotho, isiZulu and other
languages
to facilitate the transition to English instruction.
4. that in particular professional programmes, such as Education, the
parallel-medium policy continues given the well-defined Afrikaans

market that still makes such language-specific graduate preparation
relevant at the moment.
5. that the language of administration be English.
6. that the English-medium language policy be implemented with
flexibility and understanding rather than as a rigid rule regardless

of the circumstances.”
[20]
The new language policy is intended to be implemented
progressively over a period of about five years.  Although
English will
be the only primary medium of instruction, Afrikaans
still has an important role to play.  It is to be used in the
expanded
tutorial system, and as a medium of instruction to cater for
certain professional programmes like Education and Theology because

there is a market demand for them.  This is consistent with
the last point of the policy which provides:
“the English-medium language policy [is to] be implemented with
flexibility and understanding rather than as a rigid rule
regardless
of the circumstances.”
[21]
AfriForum and Solidarity are however unhappy with the policy.
Some of their objections are that proper research was not conducted,

and that most white and some black Afrikaans-speaking students prefer
to be taught in Afrikaans.  In essence, they see no

justification for the language policy-shift.  As a result, they
approached the Free State High Court, Bloemfontein (High Court),
to
review and set aside the adoption of the policy by Council.  The
Full Court of the High Court ruled in their favour.
Displeased
with this outcome, the University successfully appealed to the
Supreme Court of Appeal.  AfriForum and Solidarity
were
aggrieved by this outcome. They now seek leave from this Court to
appeal against the Supreme Court of Appeal (SCA) decision.
Issues
[22]
The issues to be determined are:
(a) standing;
(b) leave to appeal, in particular whether the determination of a
language policy by the University constitutes administrative
action
in terms of the provisions of the Promotion of Administrative Justice
Act
[14]
(PAJA),  alternatively, whether the doctrine of legality is
implicated;
(c) whether the University acted inconsistently with its obligations
in terms of section 29(2) of the Constitution in adopting
a policy
that phases out Afrikaans as a co-equal medium of instruction with
English; and
(d) whether the University determined and adopted the new language
policy “subject to” the ministerial language policy

framework as required by section 27(2) of the Higher Education
Act.
Standing
[23]
Section 38 of the Constitution
provides for standing in these terms:
“Anyone listed in this section has the right to approach a
competent court, alleging that a right in the Bill of Rights has
been
infringed or threatened, and the court may grant appropriate relief,
including a declaration of rights.  The persons
who may approach
a court are—
(a) anyone acting in their own interest;
(b) anyone acting on behalf of another person who cannot act in their
own name;
(c) anyone acting as a member of, or in the interest of, a group or
class of persons;
(d) anyone acting in the public interest; and
(e) an association acting in the interest of its members.”
[24]
Our constitutional provisions on standing could properly be
characterised as an open invitation and encouragement to natural and

corporate citizens to vigilantly guard against and resist violations
of the Constitution, by testing compliance with fundamental
rights.
These provisions are self-evidently designed to ease, smoothen and in
a way fuel insistence on the fulfilment of
constitutional obligations
and the rigorous observance of rights, in view of our shameful past.
The language is more inviting,
progressive and understandably
permissive.  Additionally, fundamental rights do not necessarily
have to be infringed on before
litigation is initiated.  It is
enough that they be threatened.  Resource constraints or any
other cause of the inability
to litigate personally or as a group
does not necessarily amount to an unliftable embargo on the
litigation vessel.  It is
permissible for others to litigate on
behalf of those enmeshed in any situation of incapacitation or
disadvantage.  This approach
to standing is consistent with the
constitutional mandate our higher courts have to uphold the supreme
law of the land and “ensure
that constitutional rights enjoy
the full measure of protection to which they are entitled”.
[15]
[25]
So understood, this Court unsurprisingly crafted the
Biowatch
[16]
principle to avoid an inadvertent subversion of this almost
open-ended licence to litigate, by the inexorable chilling effect
that cost orders ordinarily have or could have on the enthusiasm to
embark on constitutional litigation.  This applies especially
to
those who are not exceedingly well-resourced.  In sum, legal
steps geared at vindicating constitutional rights are encouraged
as
opposed to being deliberately or inadvertently constrained.
For, a young constitutional democracy like ours, needs as
much
constitutional litigation as possible, as a platform for the
divination of hidden meanings of unclear yet crucial constitutional

clauses and concepts, for the development of its jurisprudence.
A proper reflection on the need to litigate, and if so, on
which
matters, is likely to stand litigants and the court system in good
stead.
[26]
The University agrees that AfriForum
has standing.  But this is obviously not binding on this Court.
It must therefore
still satisfy itself that AfriForum does have
standing.  AfriForum litigates to vindicate its own rights and
those of its
members and their children.  It seeks to act in the
interest of the Afrikaans speaking people and to assert the
right
to have the children of their members instructed in Afrikaans
in every educational programme offered by the University, very much

in line with one of its stated objectives, as a civil rights
organisation.  That is public interest litigation for which
section 38 of the Constitution provides.
[27]
The same does not necessarily hold
for Solidarity.  It is a trade union whose obvious mandate is to
advance the interests of
its members in the labour sphere.  As
correctly observed by the SCA, its members do not have the right to
be instructed in
Afrikaans.  That right is available to students
and possibly their parents to assert, none of whom was said to be
their members.
Neither Solidarity nor its members have any
legal or material interest in the matter to support their assumed
legal standing.
[17]
[28]
And Solidarity does not claim to act
in the public or any other constitutionally recognised interest
but its own.  Its
belated attempt to explain its standing hurdle
away on the basis that its members would be required to implement the
policy and
therefore have an interest, is not helpful.  Assuming
that this explanation would ordinarily have sustained standing, it
should
have been set out in those terms in the founding affidavit
filed in the High Court, to afford even the SCA the opportunity to
consider
it.
[29]
The generosity or liberality of our
standing provisions does not mean that standing is there for the
taking.  On the contrary,
closer scrutiny is always called for,
especially when standing is not apparent from the nature of the
party, its interest in or
relationship with the issues and the
explanation offered to support standing.  And courts ought to be
circumspect in affording
standing to similarly-positioned parties
where the grounds for standing are weak.  They must first be
satisfied that factors
relevant to determining whether a person is
genuinely acting in the interest of a group, that has legal interest
in the matter,
have been shown to exist.  Solidarity has failed
to explain its interest and that of its members to meet the standing
requirements.
Leave to appeal
[30]
Leave to appeal depends on whether the University’s
language policy determination constitutes an administrative action,
alternatively,
on whether the decision to adopt the new policy is
inconsistent with the Constitution or the law.
[31]
To conclude that the University’s determination of a
language policy in terms of its section 27(2) powers constitutes an
administrative
action in terms of PAJA, certain requirements would
have to be satisfied.  They are that the decision (a) be of an
administrative
nature; (b) by an organ of State or a natural or
juristic person; (c) exercising public power or performing a public
function;
(d) be in terms of any legislation or empowering provision;
(e) that adversely affects rights; (f) that has a direct external
legal
effect; and (g) that does not fall under any of the listed
exclusions.
[18]
[32]
It is now settled that those decisions that relate to the
award of tenders adversely affect the rights of those who lost out
and
that they have a direct external legal effect even before the
winning party takes advantage of or executes the contract.
[19]
Understandably so, because it would be quite artificial to adopt an
approach that insists on the right to challenge that
decision on PAJA
grounds being exercisable only when implementation takes place.
Why would an affected party have to wait
until full-blown harm has
been done while that could be circumvented?  Properly
contextualised, why would a threat to a fundamental
right be adequate
to trigger litigation but not for all other rights?
[20]
For this reason I accept, that the University’s language policy
adversely affects the rights of those desiring to have
Afrikaans as a
medium of instruction available to them or their children and that it
has a direct external legal effect.
The pre-existing right of
Afrikaans-speaking students to be taught in their own language is not
remotely threatened but would cease
to be effectively accessible upon
the implementation of the impugned University language policy.
[33]
It is also to be accepted that the practical effect of a
challenge to the adoption of the language policy is that it is not to
be
implemented.  Whatever ground is held out prominently for the
setting aside of the policy, its implementation is certainly
sought
to be arrested thereby.  Inelegantly framed though the challenge
is, it really does boil down to one thing, and that
is the policy is
invalid because it was adopted despite its inconsistency with the
provisions of section 29(2) of the Constitution
and the ministerial
policy framework.
[34]
That said, the challenge also relates to whether a statutory
policy-making responsibility is, without more, administrative in
nature.
A decision or action that is administrative in nature
is one that relates to the implementation or execution of a statutory

function or policy that has already been fleshed out particularly in
relation to what needs to be done.  It is fundamentally
about
carrying out what the executive authority or the key decision-makers
of an institution or entity have already pronounced
upon
definitively.  A decision or action that is administrative in
nature is therefore operational, for it is about carrying
out what
has already been prescribed often in some detail.
[35]
The University Council and Senate did not purport to
implement a ministerially predetermined language policy.  They
sought
to develop a policy in line with the ministerial policy
framework so that the University Management could, in turn, put it
into
operation.  Council, even when it acts with the concurrence
of Senate, does not ordinarily function in the realm of performing

duties that are administrative in nature.  It takes policy
decisions.  Here, it is enjoined by section 27(2) of the Act
to
make a policy that would then be executed by Management.
Additional to the legal reality that Council does not exist to
make
decisions of an administrative nature, policy determination
is,
by its very nature, executive rather than administrative.  And
there is nothing about the kind of decision Council took
in this
regard that gives it a character that is even remotely
administrative.  The PAJA requirement for review that a decision

must be of an administrative nature, has thus not been satisfied.
And that alone is fatal to a review application that is
primarily
grounded on PAJA as outlined above.
[36]
Two further possibilities were
belatedly resorted to.  One is that even if the University’s
decision is ordinarily executive
in nature, it is still such as to
qualify as administrative action.  The other is that PAJA would
still apply because policy making
is not the kind of executive
action excluded from the PAJA scope of application.  The other
grounds strike one more as an
afterthought and are even difficult to
understand.  Since parties are correctly agreed that legality
provides a clear basis
for review here, it is indeed the only option
AfriForum has in the circumstances.
[37]
It is therefore on the alternative
ground of legality that this application for leave to appeal is to be
considered.  The source
of the University’s power to
determine the language policy is section 27(2) of the Act which in
turn owes its origin to section 29(2)
of the Constitution.  It
follows that the University was exercising public power when it took
the impugned policy decision
and that policy is reviewable under the
doctrine of legality.  For, the University may neither exercise
any power inconsistently
with the Constitution nor perform any
function or take decisions other than those it is legally authorised
to make.
[21]
If it took a decision that it lacked the power to take or that is
unlawful
–
either by reason of its
inconsistency with the Constitution, applicable legislation or
ministerial policy
–
then that
decision could be reviewed and set aside.
[38]
The question whether an official
language that has been developed to convey complex scientific and
technical concepts, that has
been a medium of instruction for many
decades and could lose its status as a medium of instruction is a
constitutional matter,
must be answered affirmatively.  And the
history and sensitivity of language as a medium of instruction,
Afrikaans in particular,
do ordinarily raise a point of law of
general public importance.  Sadly, there simply are no
reasonable prospects of success.
[39]
Both grounds of review are so devoid
of merit that the grant of leave to appeal would be an injudicious
deployment of the scarce
and already over-stretched judicial
resources.  It is thus not in the interests of justice to grant
leave to appeal.
This will become apparent from an analysis of
the two key issues raised; namely (i) whether the University acted
consistently with
the provisions of section 29(2) of the
Constitution; and (ii) whether, in adopting its new language policy,
the University paid
any or adequate attention to the ministerial
policy framework on the language of instruction.
[40]
What must be said upfront is that issues that have arisen for
determination under the headings “Reasonable practicability”

and “Inconsistency with ministerial policy” are so
interrelated that repetition is at times difficult to avoid.

Section 29(2)
and the ministerial policy apply
to both, thus adding to the inevitability of some repetition however
hard one might try to avoid it.  An iteration or omission
of a
discussion of an important aspect of the case under any of these
topics must be understood in this context.
Reasonable
practicability
[41]
Much turns on the correct meaning of the words “reasonably
practicable” in section 29(2) which provides:
“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.”
[42]
Every South African has the constitutional right to be taught
in a preferred official language in our public institutions of
learning.
But access to that right is not unqualified.
The overarching condition is that the fulfilment of the promise of
education
in a language of choice must be reasonably practicable.
And what reasonable practicability means and entails lies at the
heart of this application.  The disputation relates to whether
all factors set out in section 29(2) are to inform “reasonable

practicability” or only some, and if only some which, and where
in the subsection we are to find a pointer to or the necessity
for,
their carving out.  To answer this question correctly requires
that we employ canons of constitutional interpretation.
[43]
Some of those key interpretive aides that have by now become
trite are the textual or ordinary grammatical meaning, context,
purpose
and consistency with the Constitution.  Context comes
into operation where the ordinary grammatical meaning is not
particularly
helpful or conclusive.  And contextual
interpretation requires that regard be had to the setting of the word
or provision
to be interpreted with particular reference to all the
words, phrases or expressions around the word or words sought to be
interpreted.
This exercise might even require that
consideration be given to other subsections, sections or the chapter
in which the key word,
provision or expression to be interpreted is
located.
[22]
The meanings and themes emerging from that reflection would then
reveal the overall thrust that cannot justifiably be veered
away
from.
[44]
Similarly, where it is necessary to resort to a purposive
interpretation, the purpose of a provision might not always be
readily
apparent from the words or expressions sought to be
understood.  When that is so, it is from the totality of the
words, expressions,
sections, if necessary the Chapter or much more
that the purpose does at times have to be sought or made out.
The values
or norms foundational to our constitutional democracy may
at times have to be taken into account in construing any provision.
For,
no meaning inconsistent with the Constitution ought to
prevail.  None of the above should be understood to mean that
the process
of interpretation is a regimented or compartmentalised
exercise.  In practice, they tend to kick into operation
effortlessly
because of their interconnectedness.
[45]
More importantly policy, like all legal instruments, is better
understood when no aspects of it are sought to be interpreted in
isolation from and inconsistently with some of its equally relevant
and important aspects, particularly when that approach yields

absurdities.  And policy cannot exist in defiance of pertinent
and explicitly incorporated constitutional values and modifiers.

Its own provisions, context, purpose and the Constitution are
inextricably connected and crucial components of the interpretive

process.  No sound legal basis exists for the isolation of parts
of section 29(2) in seeking to understand the totality
of the
requirement of “reasonable practicability.”  As was
stated in
Ermelo
, different parts of this subsection are
mutually reinforcing.
[23]
[46]
It would be unreasonable to slavishly hold on to a language
policy that has proved to be the practical antithesis of fairness,
feasibility,
inclusivity and the remedial action necessary to shake
racism and its tendencies out of their comfort zone.
[24]
Section 29 of the Constitution applies in its totality to the
educational sector.  It is fundamentally about the right
to
education that we all have, the need for “reasonable measures”
to be taken to make education “progressively
available and
accessible”, and the impermissibility of racial discrimination,
intended or otherwise, in all our educational
institutions.
[25]
It is with the benefit of this perspective, that reasonable
practicability must now be given meaning.
[47]
After the words “where that education is reasonably
practicable” in section 29(2) follow factors to be
considered
in an endeavour to give effect to “the right to
receive education in the official language or languages of their
choice”.
This subsection insists on “all reasonable
educational alternatives” being explored.  To avoid lip
service to
this fundamental right, concrete albeit broad options are
alluded to for “effective access” to it or its possible
practical
enjoyment.  One stated possibility is the creation of
new or the retention of some or all single medium institutions.

The latter could for example have been done at all the pre-existing
Afrikaans-speaking educational institutions.
[48]
Whatever model is chosen must be informed by among others the
constitutional obligation to make education accessible to all so as

to free the potential of all our people.  Also, our
constitutional values ought to be central to every transformative or
important measure we seek to implement.  That is why section
29(2) requires “(a) equity; (b) practicability; and (c)
the
need to redress the results of past racially discriminatory laws and
practices,” to feature prominently in exploring
the possibility
of offering education in an official language of choice.  They
relate to equality, responsiveness and non-racialism.
And all
reasonable educational alternatives must be investigated within this
context and with this purpose high on the list of
instructive
factors.  The determination of this issue was contextualised by
Moseneke DCJ in
Ermelo
in this manner:
“[52] 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. . . .  In short, the
reasonableness standard built into section 29(2)(a) imposes
a
context sensitive understanding of each claim for education in a
language of choice. . . . 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.
[53] The second part of section 29(2) of the Constitution points to
the manner in which the state must ensure effective access
to and
implementation of the right to be taught in the language of one’s
choice. . . . In resorting to an option, such as
a single or parallel
or dual medium of instruction, the state must take into account what
is fair, feasible and satisfies the need
to remedy the results of
past racially discriminatory laws and practices.”
[26]
[49]
Our nation is still transitioning from an era of unrivalled
racism and inequity that entailed the deliberate sub-standardisation

of the quality of education for black people, to non-racialism,
equity and high quality education for all.  Educational
institutions
are also grappling with challenges of access to
opportunities to study or enrol for high cost disciplines like
medical sciences
and engineering where space is very limited.
For these reasons, effective access to the right to be instructed in
an official
language of choice must be given effect to, but without
undermining equitable access, preserving exclusivity or perpetuating
racial
supremacy.  It would be unreasonable to wittingly or
inadvertently allow some of our people to have unimpeded access to
education
and success at the expense of others as a direct
consequence of a blind pursuit of the enjoyment of the right to
education in a
language of choice.  This, in circumstances where
all could properly be educated in one common language.
[50]
Reasonableness within the context of section 29(2) demands
that equity, practicability and the critical need to undo the damage
caused by racial discrimination,  also be the intrinsic features
of the decision-making process relating to effective access
to
education in a language of choice.  For they are some of the
decisive factors to which regard must be had even where “a

learner already enjoys the benefit of being taught in an official
language of choice”.
[27]
Inequitable access and the unintended entrenchment or fuelling of
racial disharmony would thus be the “appropriate

justification”
[28]
for taking away or diminishing the already existing enjoyment of the
right to be taught in one’s mother tongue.
[51]
At a conceptual level, dual medium institutions might well
exist without necessarily nurturing or perpetuating unfair advantage
or racial discrimination and its exceedingly harmful tendencies.
When that is so, then the right to be taught in a language
of choice
could be effectively accessible and implemented.  That, by the
way, is what the University did or hoped to achieve
when it moved
from a dispensation of Afrikaans as the sole medium of instruction to
one where English and Afrikaans enjoyed equal
status as media of
instruction.  It did so to facilitate equitable access for the
previously excluded who are mostly better
acquainted with English so
that they too, could utilise this vital public resource for honing in
their much-needed skills.
[52]
Where the enjoyment of the right to be instructed in an
official language of choice is achievable without undermining any
constitutional
aspiration or value, then the equity test might well
have been met.  The challenge could however arise when scarce
resources
are deployed to cater for a negligible number of students,
affording them close, personal and very advantageous attention while

other students are crowded into lecture rooms.
[29]
Where access, integration and racial harmony are imperilled by giving
effect to the right to be educated in an official language
of choice,
then the criterion of reasonable practicability would not have been
met.
[53]
Reasonable practicability therefore requires not only that the
practicability test be met, but also that considerations of
reasonableness
that extend to equity and the need to cure the ills of
our shameful apartheid past, be appropriately accommodated.  And
that
is achievable only if the exercise of the right to be taught in
a language of choice does not pose a threat to racial harmony or

inadvertently nurture racial supremacy.
[30]
That goes to practicability.  The question then is, has the use
of Afrikaans as a medium of instruction at the University
had a
comfortable co-existence with our collective aspiration to heal the
divisions of the past or has it impeded the prospects
of our unity in
our diversity?
[31]
Has race relations, particularly among students, improved or
degenerated as a consequence of the University’s 2003
language
policy?  If not, would it be “reasonably practicable”
for the University to relegate Afrikaans to low-key
utilisation in a
constitutionally permissible way?
[54]
On that, Cachalia JA had the following to say:
“[27] It follows, in my view, that even if a language policy is
practical because there are no resource constraints to its

implementation, it may not be reasonable to implement because it
offends constitutional norms.  The policy would therefore
not
meet the reasonably practicable standard. . . . A change in
circumstances may materially bear on the question whether it is

reasonably practicable to continue with the policy”
[32]
[55]
A conclusion that is embraced by many Afrikaners at all levels
of the University community and in Council is that the use of
Afrikaans
as a parallel language of instruction unwittingly
perpetuates segregation and racism – “because it offends
constitutional
norms”.  The policy does not work.
And has lost support because many Afrikaner students prefer English
which they
see as a tool of communication that would enhance their
prospects of being global players.  Furthermore, it is quite
telling
that within two years of the implementation of the dual
medium policy, the then Rector of the University, Professor Fourie,
expressed
concern about the unintended consequences of the parallel
medium policy giving rise to or entrenching segregation in lecture
rooms
along racial lines.  He would know whether that
segregation was innocuous or toxic in its effect.  Naturally, he
would
not have been concerned if it were not inimical to our shared
constitutional vision of building “a common sense of
nationhood”.
[33]
[56]
Consistent with Professor Fourie’s apparent discomfort,
this policy eventually led to racial tension and concerns were raised

by both staff and students about its injurious consequences.
Its counter-productive effect featured regularly in progress
reports
on dual medium policy implementation.  Observations, daily
experience, consultative processes in which Solidarity
and AfriForum
participated and empirical research, pointed to the need to
progressively phase out Afrikaans as a medium of instruction.
[57]
A particularly striking observation relates to what is not
said about the need to consider “all reasonable alternatives”.

That process would require that equitable access and the need to
redress the effects of racism be taken into account in exploring
all
reasonable alternatives.  On the assumption that those
alternatives do exist, they must be “reasonable”.

And that reasonableness requirement would have been met only when
equity and the pursuit of non-racialism, listed in the section

itself, were appropriately factored into the process of choosing the
alternative.  Both Solidarity and AfriForum were involved
in the
admittedly transparent, inclusive and robust consultative process.
There is no suggestion that they, any stakeholder
or language expert
tabled any constitutionally-compliant alternative and that it was
ignored.
[58]
It is hard to imagine why the University would ignore known or
available reasonable alternatives in wanton disregard for its
constitutional
obligations, particularly when the change it is
effecting takes away a pre-existing entitlement.  The only
reasonable deduction
to make from the non-implementation of any
alternative that would allow the full retention of Afrikaans as a
medium of instruction
is that, but for its continued use in
Education, Theology and tutorials, no other reasonable alternative
was available for the
University to consider.
[59]
The University authorities’, lecturers’ and
students’ intimate connection to or daily experience on campus
put
them at a vantage point to understand better and speak with
respectable authority on the true state of affairs in their own
“house”.
Whether white Afrikaner students have
demonstrated respect for the dignity of fellow students who are black
in their daily interactions
over the years, and whether a credible or
vital connection has been made between racially segregated classes
and the “racial
tensions” alluded to, the University
community would know better.
[60]
It is common cause that the dual language policy was
introduced by the University authorities, presumably in the genuine
belief
that President Mandela’s fears, properly contextualised,
would not materialise.  Remember, he was concerned about the

possibility of the use of Afrikaans resulting in the unjust
deprivation of access to education for others.  He said:
“[N]on-speakers of Afrikaans should not be unjustly deprived of
access within the system.  And moreover, that the use
and
development of no single language medium should – either
intentionally or unintentionally
– be made the basis for the furtherance of
racial, ethnic or narrow cultural separation”.
[34]
[61]
The ministerial policy framework says that “the Ministry
has built on this statement in the National Plan for Higher
Education.”
Racial inclusivity and redressing the damage
caused by racism and its tendencies are therefore a critical
component of the
ministerial policy.  The implementation of any
language policy that undermines these constitutional and policy
objectives
has to be desisted from.
[62]
And the University is in effect saying that President
Mandela’s worst nightmares have come to pass.  The use of
Afrikaans
has unintentionally become a facilitator of ethnic or
cultural separation and racial tension.  And this has been so
from around
2005 to 2016.  Its continued use would leave the
results of white supremacy not being redressed but kept alive and
well.
It is for that reason that a policy revision or
intervention has since become necessary.  The link between
racially segregated
lectures and racial tensions has not been
denied.  While it may be practicable to retain Afrikaans as a
major medium of instruction,
it certainly cannot be “reasonably
practicable” when race relations is poisoned thereby.
Logic dictates that
if there was a known way of addressing racial
tension and other concerns relating to the use of Afrikaans as a
medium of instruction,
it would not only have been stated by the
aggrieved parties but also implemented.
[63]
So, the challenge based on the correct meaning of “reasonably
practicable” must fail.  This then leaves us with
the
alternative, grounded on the alleged inconsistency between the
ministerial policy framework and the University policy.
Inconsistency
with ministerial policy?
[64]
The Minister of Higher Education has the authority to
determine a language policy framework for public higher education
institutions.
[35]
The University’s authority to develop its language policy
derives from section 27(2) of the Act, which provides:
“Subject to the policy determined by the Minister, the Council,
with the concurrence of the Senate, must determine the language

policy of a public higher education institution and must publish and
make it available on request.”
[65]
The University’s impugned language policy was determined
by Council with the concurrence of Senate in terms of this statutory

power.  This policy is challenged on the basis that it flouts
the essence of the ministerial policy and was therefore not
developed
“subject to” it.  In particular, it is contended
that the University’s policy has strayed from
the ministerial
policy framework by phasing out Afrikaans as one of the two “dominant
languages of instruction” when
it should be retaining and not
eroding it.  That, by the way, is essentially the basis on which
the High Court ruled in favour
of AfriForum and Solidarity.
[66]
It must be accepted as correct that the words “subject
to” mean exactly that.
[36]
Whatever language policy a university determines in terms of section
27(2) of the Act, must take cue from and be fundamentally
in sync
with the ministerial policy.
[37]
The hallmarks of the former must be significantly traceable to or
reconcilable with the latter.
[38]
That is the ordinary grammatical and correct meaning of the words
“subject to” as used in this text.  What
must
however not be lost sight of is that the applicability of the
ministerial policy is, like all others, situational or
context specific.
It largely depends for its relevance and
effect on the particular circumstances that inform its existence as
well as its compliance
with our constitutional norms.  When the
situation has since changed in a way that would cause a university to
undermine our
Constitution and its foundational values if it were to
adhere slavishly to parts of the policy framework, then a
situation-sensitive
and constitutionally-compliant policy-change
would have to be effected.
[67]
There can be no denying that Afrikaans is indeed a highly
developed language of scholarship and science.  Like all our
official
languages, it is truly a national resource to be treasured
by all of us.  The full support for the retention of Afrikaans
as “a medium of academic expression and communication in higher
education,”
[39]
was no doubt informed by what was known and hoped for then.  And
so was the commitment to ensure that “the capacity
of Afrikaans
to function as such medium is not eroded”.
[40]
That position was thus inspired by the context of that time.
[68]
Would these policy provisions prevent an institution of higher
learning from revising its policy and prescribing English as the only

medium of instruction even where no student wanted to be taught in
Afrikaans?  What if racial polarisation or tension has
for years
proved to be a direct consequence of using Afrikaans as the second
medium of instruction and all reasonable endeavours
to address it
have failed?  What if there were widely televised incidents of
crass racism at the University, perpetrated by
white Afrikaner
students against black students or black staff members that drove a
chill down the spines of well-meaning South
Africans of all
races?
[41]
Would the University still be constrained by the ministerial policy
framework from acting in line with changed circumstances
and the
Constitution?
[42]
[69]
Be that as it may, the ministerial policy framework highlights
the need to “ensure that a language of instruction is not a

barrier to access and success”.
[43]
And there has already been a concern raised about access.  One
crucial aspect of the ministerial policy is the constitutional

proviso “that these rights may not be exercised inconsistently
with any provision of the Bill of Rights”.
[44]
The other in-built constitutional qualifiers are the section 29(2)
criteria like “reasonably practicable” as
well as
“equity, practicability and the need to redress the results of
the past racially discriminatory laws and practices”.
[45]
[70]
It follows from the language of the ministerial policy that it
is meant to operate subject to these internal modifiers which it has

expressly incorporated.  In other words, if it would not be
consistent with our core values or any provision of the Bill of

Rights to develop or retain an institutional policy that retains
Afrikaans as a medium of instruction, then the ministerial policy

framework itself demands that a constitutionally-conformant
institutional policy be determined.  The express incorporation

of constitutional norms and imperatives is meant to serve that
purpose.  Section 27(2) does not prescribe policy.  It

effectively recognises that section 3 vests power in the Minister to
provide nothing more than a policy framework that universities
must
have regard to in developing their own policies in a way that is
informed by the peculiarities and realities on the ground.
As
is the case with all other policy-determinations, the ministerial
policy basically cautions universities not to develop their
own
language policy in total disregard for it and the constitutional
provisions that are relevant to language policy.
[71]
The ministerial policy framework provides that retention could
be “ensured through a range of strategies” like “the

use of Afrikaans as a primary but not a sole medium of
instruction”.
[46]
But, again this is to be done on condition that “language of
instruction is not a barrier to access”
[47]
and that Afrikaans does not become an inadvertent tool for racial
discrimination.
[48]
[72]
There is nothing in the framework to suggest that its
preferred language policy option is to be followed by universities at
all
costs.  Constitutional imperatives like access, equity and
inclusivity could dictate a radical departure from the first prize
or
preferred option.  That is what the University, supported by
some Afrikaner students, staff members and University leaders,
was
constrained to do.
[73]
What was done in effect heeds former President Mandela’s
wisdom-laden cautionary note delivered to the then exclusively or

predominantly Afrikaans medium Stellenbosch University.  This
caution is an integral part of the same ministerial policy framework

that expresses full support for the use of Afrikaans and commits to
its retention and non-erosion.
[74]
It bears emphasis that one cannot even begin to contend for a
particular language policy stance or nuance without navigating her

way around the qualifying aspects of section 29(2) of the
Constitution and other constitutionally-inspired clauses of the
ministerial
policy.  Inspired by this section,
Ermelo
rightly says:
“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 the
past racially discriminatory laws or procedures.”
[49]
[75]
Here, the University community, Council and Senate in
particular, have satisfied themselves that instead of the dual
language policy
brightening up the prospects of redressing the damage
caused by apartheid, it threatens to perpetuate racial discrimination
or
disharmony.  The retention of the dual medium of instruction
was neither considered to be fair nor feasible nor to satisfy
the
need to remedy the results of apartheid laws and practices.  So,
the University was at risk of violating poignant constitutional

provisions, and the ministerial language policy, properly
understood.  Nobody is to blame for the out-turn of racially
segregated
lectures.  It is the policy itself that yielded
deleterious and certainly unintended consequences.  The good
sought to
be achieved through a parallel medium of instruction, has
backfired.  The retention of that policy is therefore no longer
reasonably practicable since it does not help students “to
build a common sense of nationhood consistent”
[50]
with the ministerial policy framework in its entirety.
[76]
The University’s new language policy responds to the
materialised warning, sounded by the ministerial policy framework,
that
unintended consequences could flow from a well-intentioned
attempt to be as inclusive and sensitive as institutions of learning

should always strive to be.  Unjust denial of access and racial
and narrow cultural segregation has become the consequence
of seeking
to have Afrikaans speaking students enjoy their own
constitutional right to be taught in their official language
of
choice.  And the likelihood of unjust exclusion and racial
discrimination, alluded to in the ministerial framework, is
so
important that it is repeated in clause 10 of the self-same
policy.
[51]
Not only does this cautionary note resonate with the section 29(2)
internal qualifiers, imbedded in that policy, but also
with what
caused the University to scale down the use of the Afrikaans
language.  Afrikaans as a medium of instruction has
unwittingly
become an instrument of racial or cultural division and
discrimination.
[77]
No criticism can justifiably be levelled at the University
authorities on the basis that they are unfair, harsh, insensitive or
vindictive.  On the contrary, they have everything to be proud
of for efficiently and considerately navigating this troubled
and
fragile ship to its correct constitutional destination, under
challenging circumstances.  A flexible, pragmatic and reasonable

approach has been adopted for the implementation of a policy that
unavoidably diminishes the status of Afrikaans as a medium of

instruction.  That this flexibility has left elements of its use
intact in areas like tutorials, Education and Theology, does
not
detract from the soundness of the principle behind the new policy and
the validity of its adoption.  This accommodation
is
demonstrative of the University’s commitment to uphold
applicable constitutional norms in pursuit of what is in the best

interests of all the people it serves.
[78]
It was the use of Afrikaans as a second major medium of
instruction that frustrated racial integration and generated racial
tension.
When the majority of white Afrikaner learners use English
like all other students and only a few use Afrikaans, the prospects
of
we being “united in our diversity” and building “a
united and democratic South Africa”, alluded to by Professor

Gerwel,
[52]
would be enhanced.
[79]
The University’s language policy was determined “subject
to” and is thus consistent with the ministerial policy

framework and the Constitution of the Republic.  Its adoption is
lawful and valid.
Costs
[80]
There is no reason to interfere with the cost orders made by
the SCA.  Solidarity has failed to establish its standing and
AfriForum has again been unsuccessful.  The cost orders made by
the SCA in the exercise of its discretion must, for these reasons,
be
left undisturbed.
[81]
In the result the following order is made:
1. Leave to appeal is refused.
2. There will be no order as to costs.
FRONEMAN
J (Cameron J and Pretorius AJ concurring):
[82]
I have had the privilege of reading the Chief Justice’s
judgment (main judgment).  I differ from him in that I consider

that it would have been a wiser course for this Court to have set
this matter down for hearing and then, in the interests of justice,

to have granted leave to appeal.  In my view this would have
enhanced the legitimacy of the outcome of the matter in many
ways.
Nothing would have been lost and much would have
been
gained.
[83]
Had that approach been followed, we would also have been in a
better position to assess the merits of the appeal.  Like the

Supreme Court of Appeal, the main judgment accepts the University’s
assertion that it is impossible to provide education
in a language of
choice without indirectly discriminating on the basis of race.
[53]
This has enormous implications beyond the confines of the
University’s campus.  It sanctions an approach that

deprives speakers of one of our official languages of the
constitutional right to receive education in the language of their
choice.
This is not an issue that has been dealt with
authoritatively by this Court before.  It seems self-evident
that it is important,
if this approach is to be sanctioned, to
determine the factual and normative boundaries within which the
Constitution will allow
it.  This has not been done –
which is unfortunate because, in my view, the applicants’
prospects of success are
not as bleak as the main judgment suggests.
[84]
This is a dissenting judgment that concerns language.  It
is best to acknowledge and take responsibility for “one’s

own ideological positioning within the disciplinary constraints and
commitments of one’s craft”.
[54]
My home language is Afrikaans and I went to a parallel medium of
instruction school in Bloemfontein.  That inevitably
colours my
perspective – as their own different backgrounds do for that of
my colleagues – but the hope is that rational
and critical
self-reflection keeps our individual subjectivity at bay in pursuit
of detached legal reasoning.
Central issue
[85]
To me the central constitutional
issue to be determined is this: what circumstances justify preventing
someone from receiving instruction
in the official language of his or
her choice?  That enquiry involves two of the issues addressed
in the main judgment –
the proper interpretation of section
29(2) of the Constitution and the role that ministerial policy has to
play in the formulation
of language policy at educational
institutions.
Context
[86]
I will start with context, as the
main judgment does.
[87]
The main judgment rightly emphasises
the obligation of white Afrikaans speakers to ensure that their
desire to protect their language
does not disadvantage others.
This is another necessary and constant reminder
“
that
the past is not done with us; that it is not past; that it will not
leave us in peace until we have reckoned with its claims
to
justice”.
[55]
That inevitable reckoning must take place.
[88]
However,
as J R R Tolkien
[56]
reminds us, it is necessary “to distinguish, as far as that is
possible, between languages as such and their speakers”
and to
remember that languages “are not hostile one to another”.
[57]
It is only when “men are hostile [that] the language of their
enemies may share their hatred”.
[58]
In the present matter, it is said to be impossible to distinguish the
use of Afrikaans from its speakers, at least in respect
of white
students at the University.  It is important that the burden of
the undeniable injustices perpetrated by white Afrikaans
speakers in
the past, which are necessarily and justifiably condemned, should not
be visited disproportionately and uncritically
on future generations
of white Afrikaans speakers.  Of course, their own role in the
possible perpetuation of racial injustice
must be scrutinised; I will
return to this aspect in due course.
[89]
Because I fully endorse its analysis
and exposition as well as its importance in setting the present
matter in its proper context,
I consider it necessary to repeat the
passage from the Gerwel Committee’s report quoted in the main
judgment:
“The level of development attained by the Afrikaans language is
in demonstrable ways connected to aspects of history of
colonial-settler domination and particularly in its latter phases to
the dominant position of a sector of the Afrikaans-speaking

communities in the apartheid order.  Afrikaans became the
language most closely associated with the formalisation and execution

of apartheid.  To a great proportion of South Africans it
probably calls up first and foremost associations of discrimination,

oppression and systematic humiliation of others.
These associations understandably often affect the approaches people
take to the role and future of Afrikaans.  That history
of
association with racism and racially based practices is often one
that Afrikaans-speaking communities will have to confront
and deal
with.  That is part of the challenge of healing, reconciliation
and reparation our society will continue to face
for a considerable
time to come.”
[59]
[90]
What the main judgment neglects to
mention, however, is that the Gerwel Committee ultimately
recommended that the universities
in Stellenbosch and Potchefstroom
be designated as “custodians” of academic Afrikaans.
[60]
The Ministry rejected this suggestion.  It nevertheless
acknowledged “that Afrikaans as a language of scholarship
and
science is a national resource” and therefore supported “the
retention of Afrikaans as a medium of academic expression
and
communication in higher education” more broadly.
[61]
In its view, the sustainability of Afrikaans as a medium of academic
expression and communication could be ensured “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”.
[62]
[91]
The context on which the main
judgment exclusively concentrates is the use of Afrikaans as an
instrument of oppression by
a racist and nationalist
government
.
[63]
It refers only to Afrikaans single medium universities
[64]
and seeks to contrast the historic imposition of Afrikaans on the
speakers of other languages with a modern refusal to “
impose
any of the home languages of those in government”
on
Afrikaans speakers.
[65]
It makes no reference to the state’s constitutional obligation
to advance the other official languages.
[66]
[92]
Again, the ministerial policy
exhibits a richer understanding.  It recognises that, in
addition to its use in the oppression
of the black community,
language also featured as an instrument of control in the second of
the “two great political struggles
that defined South Africa in
the twentieth century” – the struggle waged by
“Afrikaners against British imperialism”.
[67]
[93]
The main judgment’s emphasis on the institutional
privileges that Afrikaans enjoyed – and, it must be said, still
enjoys
– exhibits no appreciation of the irony that the
language favoured by the University, English, has long been equally,
if
not more, privileged.
[68]
And in that failure it loses the perspective that Afrikaans’
struggle for recognition was in the first place a struggle
against
the dominance of English – a struggle that it shares with other
official languages.  Writing extra judicially
on the
genesis of the inclusion of language rights in the Constitution, an
“erstwhile negotiator” of our constitutional
dispensation
and former member of this Court, Sachs J, remarked that—
“[t]o speakers of other languages . . . [t]he enforced
omnipresence of English could be seen as inconvenient and
suffocating,
and as inducing a sense of disempowerment and
exclusion.  In a sense, all language rights are rights against
English, which
in the modem world is such a powerful language that it
needs no protection at all and tends to resist being slotted into any
system
of rights”.
[69]
[94]
The ministerial policy also recognises the Constitution’s
demand that the marginalisation of indigenous languages in the past

be practically and positively addressed
[70]
and that the existing situation favouring Afrikaans and English
should only endure “until such time as other South African

languages have been developed to a level where they may be used in
all higher education functions”.
[71]
[95]
Thus, while I agree that context is
important, I am concerned that an incomplete and partial rendering of
that context may skew
what follows.
The
question of racial discrimination
[96]
I am not aware that this Court has
yet concluded that the mere exercise of a constitutionally-protected
language right can amount
to unfair racial discrimination that would
necessarily justify taking away that right.  This is a novel and
important issue.
[97]
The
Ermelo
case comes closest to addressing the
issue, but certainly did not decide the point.  In discussing
section 29(2) of the Constitution,
[72]
Moseneke DCJ stated:
“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.  They would include
the availability of
and accessibility to public schools, their enrolment levels, the
medium of instruction of the school its governing
body has adopted,
the language choices learners and their parents make and the
curriculum options offered.  In short, the
reasonableness
standard built into section 29(2)(a) imposes a context-sensitive
understanding of each claim for education
in a language of choice.
An important consideration will always be whether the state has taken
reasonable and positive measures
to make the right to basic education
increasingly available and accessible to everyone in a language of
choice.  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.
The second part of section 29(2) of the Constitution points to the
manner in which the state must ensure effective access to and

implementation of the right to be taught in the language of one’s
choice.  It is an injunction on the state to consider
all
reasonable educational alternatives which are not limited to, but
include, single medium institutions.  In resorting to
an option,
such as a single or parallel or dual medium of instruction, the state
must take into account what is fair, feasible
and satisfies the need
to remedy the results of past racially discriminatory laws and
practices.”
[73]
[98]
The ultimate legal issue in
Ermelo
was whether a provincial department of
education had the
authority
under section
22 of the South African Schools Act
[74]
to revoke the language policy adopted by a school’s governing
body and, if it had, whether that authority had been exercised

properly.
[75]
The facts also differed: at stake was a change from single medium
Afrikaans instruction to parallel instruction in both English
and
Afrikaans.
[76]
There was thus no “taking away” of a language right; at
worst, there was merely a diminution of that right (assuming
that
instruction in English at a school where instruction in Afrikaans is
also offered can ever be described as somehow diminishing
the
Afrikaans instruction).  Here, however, the change was from
parallel medium instruction to single medium instruction:
a clear
“taking away”.
[99]
So even if
Ermelo
is authority for the proposition that section 29(2) of the
Constitution allows one to be deprived of the constitutional right to

be educated in the language of one’s
choice
,
it says nothing about the circumstances in which such deprivation
would be justified.  And it says nothing about whether
the mere
innocent exercise of that choice by a person of one race can or
should be sanctioned as racial discrimination.
[100]
The Supreme Court of Appeal held
that the applicants’ failure to challenge the implementation of
the language policy somehow
prevented them from arguing about the
effect of the policy’s adoption, which was the central aspect
of their challenge on
review.
[77]
Much of the discussion in the judgment of the Supreme Court of
Appeal and in written argument in this Court also turned on
whether
the adoption of the new language policy amounted to administrative or
executive action and the effect of this determination
on the
interpretation and application of section 29(2) of the Constitution.
[101]
The applicants sought review of the
adoption of the language policy partly on the ground that
the
adoption of the policy violated the language rights of Afrikaans
speakers and amounted to unfair discrimination.  I see
no
contradiction between the relief sought and the grounds for review in
the founding affidavit.  Had the applicants been
successful in
having the decision to adopt the new language policy reviewed and set
aside, it would have necessarily followed that
the implementation of
the policy could not proceed.  The emphasis placed in the
Supreme Court of Appeal’s judgment and
the respondents’
submissions on the fact that the implementation and constitutionality
of the policy was not directly attacked
on review seems to me to miss
this obvious point.
[102]
Whether the adoption of the policy
amounted to administrative or executive action should play no role in
the proper interpretation
of section 29(2).  At least there now
seems to be agreement on that.
[103]
Both parties accept that the enquiry as regards compliance
with section 29(2) is objective.  The applicants contend that,
because
of this, it does not matter whether the adoption of the
policy was administrative or executive action, although they take the
view
that it was administrative action.  They argue that the
less exacting standard does not apply “when it comes to
interpreting
the Constitution”.  The University, for its
part, contends that it was executive action, but does not suggest
that its
interpretation of the Constitution deserves deference.  Its
position is instead that an appropriate degree of deference applies

to its assessment of the factual circumstances relating to the
application of the “reasonable practicability” criterion.
[104]
The Supreme Court of Appeal held that the decision to adopt
the language policy was executive in nature and neither adversely
affect
the rights of any person nor had the capacity to do so because
it would
only
have legal consequences when
implemented, “which the review is not concerned with”.
[78]
It therefore proceeded on the basis that the only review ground
was that of legality: “whether, objectively viewed,
the
decision was rationally connected to the purpose for which the power
was given”.
[79]
[105]
The Court interpreted section 29 as
comprising
both legal and factual elements:
“The legal standard is reasonableness, which of necessity
involves a consideration of constitutional norms, including equity,

redress, desegregation and non-racialism.  The factual criterion
is practicability, which is concerned with resource constraints
and
the feasibility of adopting a particular language policy.
It follows, in my view, that even if a language policy is practical
because there are no resource constraints to its implementation,
it
may not be reasonable to implement because it offends constitutional
norms.  The policy would therefore not meet the reasonably

practicable standard.
. . .
[The University’s] assessment that it is no longer reasonably
practicable to continue with the 2003 [policy] is, therefore,
one
that a court of law should be slow to interfere with on review.”
[80]
[106]
In their written submissions to this Court, the parties
disagree with each other, and with the Supreme Court of Appeal, as to
the
objective criteria for compliance with section 29(2).  The
applicants submit that—
“[s]ection 29(2) does not impose a dual requirement that such
education must be practicable
and
that such education must be
reasonable.  It imposes a single requirement: the education must
be ‘reasonably practicable’.
Differently expressed,
there is no self-standing requirement of reasonableness since
‘reasonably’ qualifies what
is ‘practicable’.
. . . The relevant considerations are practical rather than
normative”.
[107]
The respondent contends that “similar to section 25 of
the Constitution, the inquiry as regards what is reasonably
practicable
is more demanding than merely imposing a rationality
criterion, but less demanding than a proportionality analysis”.
[108]
The parties also have differing perspectives from each other,
and the judgment of the Supreme Court of
Appeal
,
on the additional questions relating to educational alternatives that
need to be considered: whether only resource-related factors
relate
to the section 29(2) criterion; whether there is an internal
limitation in section 29(2); and what role other constitutional

rights to language, equality and culture play in determining the
proper objective criteria.
[109]
From different and opposing perspectives, then, neither party
accepts the Supreme Court of Appeal’s interpretation of the
criteria laid down in section 29(2).
[110]
As I understand the main judgment, it accepts the Supreme
Court of Appeal’s interpretation that the “reasonable
practicability”
requirement contains both factual and legal
elements, the latter to be tested against constitutional norms.
[81]
I would have preferred more detailed debate and oral argument on
this, but for present purposes I am constrained to accept
that
approach as correct.  But the main judgment goes on to accept
the correctness of the University’s own assessment
that the
continuation of the existing policy amounted to racial
discrimination.
[82]
In my view that is a step too far.
[111]
One of the applicants’ grounds of review was that this
assessment in itself amounted to unfair discrimination against white

students exercising their choice of instructional language.
[112]
This squarely raises a question of great constitutional and
legal import:
can
the exercise of one’s
constitutional right to choice of language in tertiary education
result in discrimination proscribed
by the Constitution
?
That is an objective legal question to be
determined by a court.  The University can claim no deference to
its assessment
of this legal question.
[83]
Whether the final assessment ought to take the usual form of a
two stage enquiry (whereby the first question is whether
a
rights-limitation has been established and the second is whether, if
so, that limitation is justifiable) or instead should proceed
under
section 9(3) of the Constitution does not, for present purposes,
matter much.  The crucial point is that this assessment
must be
made by this Court rather than the very institution that stands
accused of discrimination.
[113]
On the papers, there is no suggestion that all, most or even a
substantial portion of white Afrikaans-speaking students being taught

in that language have been guilty of racial discrimination.  Any
unfair discrimination was instead that of the University
in its
provision of instruction to different language groups and control of
other activities on campus.  It is thus for the
University to
provide a factual and normative justification for depriving innocent
users of an official language of the right to
receive education in
that language.
[114]
There are factual issues that are neither clear to me nor
addressed in the main judgment.  For example, if there were
individual
students or members of staff who were themselves guilty of
racial discrimination, whether in the delivery and receipt of
Afrikaans
instruction or otherwise, why was it impracticable to
discipline them?  What exactly made it impossible to eradicate
the racial
discrimination?  Did it have anything to do with the
reaction to the continued use of Afrikaans in lectures by those who
preferred
another language?  If so, was the reasonableness of
that reaction assessed?  Was an attempt made to address it by
other
measures?
[115]
In the absence of evidence that the students receiving
instruction in the language of their choice were themselves guilty of
racial
discrimination in the receipt of that instruction, what is the
normative justification for visiting a sanction upon them?
It
is not at all obvious to me – and the main judgment does not
address this question directly.
[116]
All these questions should have formed part of this Court’s
own assessment of the legal question of racial discrimination.

It may well be that, had the issues raised been fully ventilated, the
conclusion of factual and normative impracticability would
have been
found justified.  The applicants’ failure to present
practical alternatives may well have played an important
part in that
assessment.
[117]
However, that assessment cannot now be made because this
matter is being decided, without a hearing, by way of a summary
refusal
of leave to appeal.
A hearing and
leave to appeal
[118]
This Court will grant
leave
to appeal when it is “in the interests of
justice” to do so.
[84]
An appeal’s prospects of success are obviously an important
consideration in making the decision whether to grant leave,
“[b]ut
they are not the only issue to be considered when the interests of
justice are being weighed”.
[85]
Even had this been as “open and shut” a case as the main
judgment holds, the interests of justice would have
been better
served by holding a hearing before deciding whether to grant leave to
appeal.
[86]
[119]
Our Constitution represents a negotiated
revolution based on a historical compromise.
[87]
It was and is subjected to criticism across racial lines for its
alleged failure to fulfil different and conflicting aspirations
and
expectations
.
[88]
For some people, particularly white Afrikaans speakers, the result in
this case – the loss of the right to receive
tertiary education
in Afrikaans – may be seen as a betrayal of their expectations
about the Constitution’s guarantees
in respect of their home
language.  For others, this result may be seen as a small step
towards the transformation promised
in the Constitution.  It
would have been better to confront these contradictions.  In
Albutt
,
Ngcobo CJ stated:
“[T]his is not a case where the prospects of success are
necessarily determinative of the interests of justice.  The

issue raised in the application for leave to appeal is of
considerable constitutional importance . . . .  It is an issue
which goes to the ‘unfinished business’ of
nation-building and national reconciliation.  It is an issue
which
calls for an early and definitive decision of this Court.”
[89]
[120]
The present matter also concerns “unfinished business”
under the Constitution, at least for a significant portion of
white
Afrikaans speakers.  Summarily disposing of this matter, without
an oral hearing, will unfortunately strengthen, in
certain quarters,
what Sachs J memorably described as—
“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”.
[90]
[121]
The future of Afrikaans as a
language of instruction is contested, not only at the University of
the Free State, but also at universities
in Pretoria and
Stellenbosch.
[91]
It would have been in the interests of justice for this Court to
allow those institutions a say, as intervening parties or
friends of
the court, before foreclosing the pertinent constitutional and legal
issues in the manner that it has now done.
[122]
The same applies to organisations
that aspire to a more inclusive approach to
Afrikaans
than
the applicants, AfriForum and Solidarity.  White Afrikaans
speakers are becoming a minority of Afrikaans-language users,
and
there is now greater awareness of those Afrikaans speakers whose role
in the origin and history of the language has been shamefully

marginalised.
[92]
It is vital that their voices be heard about the future of Afrikaans
and how that future will affect them.  It would
be presumptuous
of me, as a white Afrikaans speaker, to attempt to speak on their
behalf, but I would have valued their input.
It might very well
be that many or most support the University’s decision, but
either way their contribution would have enhanced
the legitimacy of
the outcome in this matter.
[123]
Of similar value would have been the
input of users of other official languages.  In
Ermelo
Moseneke DCJ referred to what he called the “collateral irony”
in that case: that learners and their parents preferred
English to
their own home languages as a medium of instruction.
[93]
The reason for the acceptance of one language with a colonial
heritage, but the rejection of another, could have been clarified.

But apart from that, the implications of the
conclusion
that
the use of an official language by people of one race constitutes
discrimination is, I imagine, also important for those who
wish to
advance the cause of other official languages as media of
instruction.  Would the same kind of reasoning apply to
their
cause?  If not, what distinguishes their cause from that of
white Afrikaans speakers?  I suspect that there may
be good
reasons, reflecting the historic and still-pervasive inequality that
afflicts our society, which would justify differential
treatment –
but would it not be in the interests of justice to have given
substantive consideration to them?
[124]
There is a total lack of appreciation in the main judgment
that Afrikaans remains a minority language and that there is
considerable
foreign and international authority in support of the
proposition that minority languages deserve special measures for
their protection.
[94]
[125]
It would have served the interests of
justice better to have granted leave to appeal after an oral
hearing.  A public hearing
in this Court, where important and
emotive issues are debated rationally and objectively, would have
allayed any unjustified fears
that people may harbour.
The
merits of the appeal should have been considered in a manner that
took into account the wider context and the interests of those
others
to whom I have referred.  This has not been done, to my deep
regret.
Disposition
[126]
On the papers as they stand, I would have granted leave to
appeal; allowed the appeal; reserved costs; and referred the matter
back
to the High Court in order to allow—
(a) the University to present evidence on:
(i)
the nature and extent of any racial discrimination by students
receiving instruction in Afrikaans;
(ii)
the nature and extent of any racial discrimination by staff lecturing
in Afrikaans;
(iii)
the steps taken to address these acts of racial discrimination, in
the form of disciplinary proceedings or other measures;
and
(iv)
if none of these measures were taken, the reason for not doing so.
(b) the applicants to present evidence on the practicable
alternatives available to continue parallel medium instruction that
would not result in indirect racial discrimination.
The future for
other official languages
[127]
I sincerely hope that I am proved wrong, but I fear that the
main judgment’s reasoning and outcome do not bode well for the

establishment and nurturing of languages other than Afrikaans and
English as languages of higher learning.  It may well be
that it
is better for the country to concentrate on the inclusiveness that
English might bring as the sole language of instruction
– but
that is a choice that ought to be made by the public rather than this
Court.  From my perspective, this Court’s
constitutional
duty is instead to create space for other official languages.
That is what true unity in diversity entails.
[128]
In conclusion, I turn to the implications of the main judgment
for the future of Afrikaans.  This part of the judgment is in

Afrikaans; however, I provide a translation into English that I hope
and trust will be accepted as evidence that no exclusion is

intended.
[95]
Allesverloren?
[129] Die geskiedkundige
Professor Hermann Giliomee vertel dat toe hy die Afrikaanse
skrywer Jan Rabie kort na 1994 besoek
het, hy hom gevra het wat
die toekoms van Afrikaans was en die kort antwoord was:
“Allesverloren”.
96
Is all lost?
[129] The historian
Professor Hermann Giliomee has described how, shortly after 1994,
he asked the Afrikaans writer Jan Rabie
about the future of
the language, only to receive a short answer: “All is
lost”.
[96]
[130] Is alles verlore vir
Afrikaans?
[130] Is all lost for
Afrikaans?
[131] Die onderliggende
boodskap van die hoofuitspraak is dat Afrikaans nie aanspraak kan
maak op grondwetlike beskerming
solank as wat dit eksklusief en
rasgebonde bly nie.  Dit is niks nuuts nie.
97
Die keuse berus by almal wat Afrikaans praat.  En die
meerderheid Afrikaanssprekendes is nie blank nie.
98
[131] The underlying message
of the majority judgment is that Afrikaans cannot claim the
guarantees of the Constitution so
long as it remains exclusive and
race-bound.  That is nothing new.
[97]
And it bears repeating that the majority of Afrikaans speakers are
not white.
[98]
[132] Sommige het lankal
reeds verkies om ’n inklusiewe pad te loop wat nie op ras of
ander gronde diskrimineer nie.
Vir blanke
Afrikaanssprekendes is dit ’n pynlike maar ook bevrydende
ervaring.  Ons leer hoe ons ons taalgenote
se ontstaansbydrae
tot die taal wat ons liefhet en hul menswaardigheid liederlik
misken en ontken het.
99
Maar terselfdertyd leer ons soveel nuuts wat ‘n trots
vir die taal aanwakker: byvoorbeeld dat dit ook deel van
die
bevrydingstryd was.  Die akademikus Professor Hein Willemse
vertel:
[132] Some have long chosen
to walk an inclusive route that is not based on racial or other
prejudice.  For white Afrikaans
speakers it is a painful but
also liberating experience.  We learn of our denial of our
fellow Afrikaans speakers’
role in the origin of Afrikaans
and our shameful disregard of their human dignity.
[99]
But at the same time we also learn something new that makes us
proud of the language: it was also part of the liberation

struggle.  The academic Professor Hein Willemse tells us:
“Up
to that time of my life I had lived in small towns in the southern
and western regions of the then Cape Province,
in the southern
Cape, the Boland, the Little Karoo.  By the time I was
eighteen, I was fortunate to have travelled north
to the
Northern Cape, to the Free State, Natal and Transvaal, and
even further to Botswana, Mozambique and Rhodesia.
On those
travels I had witnessed deep poverty in isolated rural homesteads.
The people that I had met in the
far-flung villages of
today’s southern Namibia and Northern Cape were as
desperately poor as I have seen elsewhere
and they were mostly
Afrikaans-speaking.  How could they, these people –
the poorest of the poor –
be ‘the oppressor’?
Why were their stories not told?  How could those
people struggling in the townships
of the towns that I’ve
lived in or the people in Cape Town’s townships where I
helped out as a paralegal in the
University of the Western Cape’s
student Law Society be ‘the oppressor’?  Why were
their stories not
told?
In 1976
UWC became the hub of the student uprising in the Western Cape and
we as students sang revolutionary songs in isiXhosa,
English and
in Afrikaans . . . .  We performed plays and poetry in
Afrikaans and a young, eloquent firebrand named Allan
Boesak
whipped us all into rousing Black Consciousness fervour – in
Afrikaans . . . .  This is an example
of Afrikaans in
resistance; it is also an example of a counter narrative unknown
to those outside the sphere of Afrikaans
speakers.  There are
many such tales in the distant past and even closer to our
time.”
[100]
[133] In
Gauteng
Legislature
skryf Sachs R pragtig oor Afrikaans:
[133] In
Gauteng
Legislature
Sachs J wrote beautifully about Afrikaans:
“
[T]he
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.”
[101]
Maar ook verder:
But also:
“
In
the first place, similar claims for constitutional regard can be
made by ten or more other language communities, claims
which could
be weaker in some detailed respects than those made on behalf of
Afrikaans, and very much stronger in others.
It was evident
from the intensity with which the matter was presented by some of
the Petitioners that it represents an issue
of deep meaning to
them.  One may accept that even abstract questions of law
have to be considered in the concrete context
of history, and we
cannot ignore the fact, urged upon us by counsel, that, although
the words of the constitutional text
are generalised, they are
also suffused with specific and (frequently contradictory) life
experiences.  Yet, even if
the poignancy of history flows
through the veins of the Constitution, we must always be guided by
the words and spirit of
the constitutional text itself,
supporting, not this group or that, but the values articulated by
the Constitution.
In interpreting clause 19 of the
Gauteng Education Bill in the light of section 32 of the
Constitution, the rights of
certain members of the
Afrikaans-speaking community, therefore, cannot be considered in
isolation from equally valid claims
of members of other language
groups.  The very concept of multi-culturalism has to be
looked at in a multi-cultural
way.”
[102]
[134]
Litigasie wat die regte van individue en groepe probeer bevorder
is ‘n ingewikkelde proses wat weldeurdag moet
wees.
103
By ‘n vorige geleentheid het hierdie Hof opgemerk dat
AfriForum ‘n indruk skep van rassisme waarvoor hulleself
te
blameer is.
104
Mens sou verwag dat die aanpak van ’n saak oor taalregte sou
geskied met deeglike oorweginge van, onder andere,
die uitsprake
in
Gauteng Legislature
en in besonder diè van Sachs R.  Maar vergeefs soek
mens in die applikante se funderende eedsverklaring enige

erkenning van die kompleksiteit van taalregte van andere en die
ongelyke behandeling van onderdrukte mense van ander rasse
in die
verlede, wat nog te sê van die huidige voortsetting van
hierdie historiese bevooregting.  Geen praktiese
voorstelle
om ander rasse tegemoet te kom en taalgebruik te vergemaklik is
blykbaar gemaak in die Universiteit se ondersoek
daarna nie.
Daar is klaarblyklik geen insig in hierdie realiteite nie, en ook
nie ‘n besef van watter persepsie
dit teenoor andere skep
nie.  Hierdie gebreke bevestig die karikatuur van Afrikaners
as
hardvogtig en mense wat min omgee vir andere.  Die
applikante moet ook hand in eie boesem steek oor die wyse waarop
hulle
taalregte probeer beskerm: bevorder hulle die saak van
Afrikaans of benadeel hulle dit?
[134]
Litigating for the rights of individuals and groups is a complex
endeavour that needs careful thought.
[103]
On a previous occasion members of this Court remarked that
AfriForum created an impression of racism, for which it
had itself
to blame.
[104]
In a case about language rights one would expect a proper
consideration of, among others, this Court’s judgment
in
Gauteng Legislature
– particularly the words of Sachs J.  But what is
singularly lacking in the applicants’ founding affidavit
is
any recognition of the complexity of the language rights of others
and the unequal treatment of oppressed people of other
races in
the past, let alone the continued existence of historic
privilege.  No practical suggestions were apparently
made to
accommodate the needs of other race groups and facilitate language
instruction during the University’s extensive
inquiry into
the problem.  There is no apparent insight into these
realities, nor any realisation of the perception
that this creates
in others.  These failures entrench the caricature of
Afrikaners as intransigent and insensitive to
the needs of
others.  The applicants need to ask themselves whether their
manner of attempting to protect language rights
advances the cause
of Afrikaans or hinders it.
[135] Die toekoms van
Afrikaans lê in die hande van ’n jonger geslag wat
Afrikaans praat.  Of daar ooit ’n
Derde Taalbeweging
sal wees,
105
hierdie keer vir ’n inklusiewe
Afrikaans ontdaan van ras- en ander vooroordele sal slegs die tyd
leer.
[135] The
future of Afrikaans lies in the hands of a younger generation of
Afrikaans speakers.  Whether there will ever
be a “Derde
Taalbeweging”,
[105]
this time for an inclusive Afrikaans shorn of racial and other
prejudices, only time will tell.
For the Applicants:
A Cockrell SC and M J Engelbrecht instructed Hurter Spies Inc
For the Respondent:
J J Gauntlett SC QC and F B Pelser instructed by Phatshoane Henney
Inc
[1]
Head of Department, Mpumalanga Department of Education v
Hoërskool Ermelo
[2009] ZACC 32
;
2010 (2) SA 415
(CC);
2010
(3) BCLR 177
(CC) (
Ermelo
) (per Moseneke DCJ) at paras 45-7.
[2]
Mandela “Address by President Nelson Mandela on the occasion
of his acceptance of an honorary doctorate of
the University of Stellenbosch” (25 October 1996), available at http://www.mandela.gov.za/mandela_speeches/1996/961025_stellenbosch.htm.
[3]
Professor Jakes Gerwel was asked by the then Minister of Higher
Education to lead a committee that would give advice on the use
and
future of Afrikaans as a medium of instruction.  The report is
available at
http://www.dhet.gov.za/Management%20Support/Gerwel%E2%80%99s%20Language%20Policy%20Framework%20for%20Higher%20Education%20in%20South%20Africa.pdf.
[4]
University of Pretoria, Stellenbosch University, University of the
Free State, Randse Afrikaanse Universiteit and Potchefstroomse

Universiteit vir Christelike Hoër Onderwys.
[5]
Gerwel above n 3.
[6]
Id.
[7]
Language Policy for Higher Education, November 2002 (Ministerial
Policy).
[8]
South African Revenue Service v Commission for Conciliation,
Mediation and Arbitration
[2016] ZACC 38
;
2017 (1) SA 549
(CC);
2017 (2) BCLR 241
(CC) at para 13.
[9]
See section 29(2) of the Constitution.
[10]
101 of 1997.
[11]
See above n 2. This captures the essence of what former President
Mandela said of the University of Stellenbosch on 25 October 1996

on the occasion of the acceptance of an honorary doctorate.
[12]
See above n 7 at Clause 15.4.3 of the Ministerial Policy.
[13]
See above n 7 at Clause 15.4.5 of the Ministerial Policy.
[14]
3 of 2000.
[15]
Ferreira v Levin N.O.
;
Vryenhoek v Powell N.O.
[1995]
ZACC 13
;
1996 (1) SA 984
(CC);
1996 (1) BCLR 1
(CC) at para 165; see
also sections 2, 167, 168 and 172 of the Constitution.
[16]
Biowatch Trust v Registrar Genetic Resources
[2009] ZACC 14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC).
[17]
See
University of the Free State v AfriForum
[2017] ZASCA 32
;
2017 (4) SA 283
(SCA) (SCA judgment) at para 42.
[18]
See section 1 of PAJA.
[19]
The Supreme Court of Appeal decided in
Umfolozi Transport (Edms)
Bpk v Minister van Vervoer
[1997] ZASCA 8
;
[1997] 2 All SA 548
(SCA) that the award of a state tender amounted to administrative
action.  See also
Aurecon South Africa (Pty) Limited v Cape
Town City
[2015] ZASCA 209
;
2016 (2) SA 199
(SCA) at paras 14-6.
[20]
See section 38 of the Constitution.
[21]
See
Affordable Medicines Trust v Minister of Health
[2005]
ZACC 3
;
2006 (3) SA 247
(CC);
2005 (6) BCLR 529
(CC) at para 49 and
Fedsure Life Assurance Ltd v Greater Johannesburg Transitional
Metropolitan Council
[1998] ZACC 17
;
1999 (1) SA 374
(CC);
1998
(12) BCLR 1458
(CC) at para 56.
[22]
Cool Ideas 1186 CC v Hubbard
[2014] ZACC 16
;
2014 (4) SA 474
(CC);
2014 (8) BCLR 869
(CC) at para 28.  See also
Dengetenge
Holdings (Pty) Ltd v Southern Sphere Mining and Development Company
Ltd
[2013] ZACC 48
;
2014 (5) SA 138
(CC);
2014 (3) BCLR 265
(CC)
at paras 84-6 and
Department of Land Affairs v Goedgelegen
Tropical Fruits (Pty) Ltd
[2007] ZACC 12
;
2007 (6) SA 199
(CC);
2007 (10) BCLR 1027
(CC) at para 5;
North East Finance (Pty) Ltd
v Standard Bank of South Africa Ltd
[2013] ZASCA 76
;
2013 (5) SA
1
(SCA) at para 24 and
KPMG Chartered Accountants (SA) v
Securefin Ltd
[2009] ZASCA 7
;
2009 (4) SA 399
(SCA) at para 39.
[23]
Ermelo
above n 1 at para 52.
[24]
See id at para 53.
[25]
Section 29(1)-(3) of the Constitution.
[26]
Emerlo
above n 1 at paras 52-3.
[27]
Id at para 52.
[28]
Id.
[29]
This is alluded to in SCA judgment above n 17 at para 28.
[30]
See
Ermelo
above n 1 at para 52.
[31]
See that part of the report of Professor Jakes Gerwel quoted at [2].
[32]
SCA judgment above n 30 at para 27.
[33]
Ministerial Policy above n 7 at Clause 3.
[34]
Mandela above n 2.
[35]
Section 3 of the Act.
[36]
See
S v Marwane
1982 (3) SA 717
(A) at 747H-748B.
[37]
Id.
[38]
Id.
[39]
Ministerial Policy above n 7 at Clause 15.4.
[40]
Id.
[41]
Soudien “Who Takes Responsibility for the ‘Reitz Four’?
Puzzling our Way Through Higher Education Transformation
in South
Africa” (2010) 106
South African Journal of Science
1.
[42]
See [52] to [53].
[43]
Ministerial Policy above n 7 at Clause 15.4.4.
[44]
See id at clause 3.1.1 (quoting section 30 of the Constitution).
[45]
Id at Clause 3.1.2.
[46]
Id at Clause 15.4.4.
[47]
Id.
[48]
Id.
[49]
Ermelo
n 1 above at para 53.
[50]
Ministerial Policy above n 7 at para 3.
[51]
That clause cautions against “non-Afrikaans speakers being
unfairly denied access within the system or the use and development

of the [Afrikaans] language as a medium of instruction wittingly or
unwittingly becoming the basis for racial, ethnic or cultural

division and discrimination.”
[52]
See the report annexed to the ministerial policy, which draws from
the preamble to our Constitution and contains the advice that
the
Committee led by Professor Gerwel was asked to give by Minister
Asmal.
[53]
See [16] and [55].
[54]
Salem Party Club v Salem Community
[2017] ZACC 46
at para 68.
[55]
Daniels v Scribante
[2017] ZACC 13
;
2017 (4) SA 341
(CC);
2017 (8) BCLR 949
(CC) at para 154.
[56]
Tolkien was born in Bloemfontein: Carpenter
J R R Tolkien: A
Biography
(HarperCollins, London 2016) at 25.  He would
later say that “[his] cradle tongue was English (with a dash
of Afrikaans)”:
J R R Tolkien “English and Welsh”
in C Tolkien
The Monsters and the Critics and Other Essays
(HarperCollins, London 2013) at 191.
[57]
Tolkien id at 178.
[58]
Id at 179.
[59]
See [2].
[60]
Ministerial Policy above n 7 at clause 15.4.1.
[61]
Id at clause 15.4.
[62]
Id at clause 15.4.4.
[63]
See [1] to [7].
[64]
See [3].
[65]
See [7].
[66]
See section 6(2) of the Constitution, which provides:
“Recognising the historically diminished use and status of the
indigenous languages of our people, the state must take
practical
and positive measures to elevate the status and advance the use of
these languages.”
[67]
Ministerial Policy above n 7 at clause 2.
[68]
English has been an official language in South Africa for more than
a century: see section 137 of the South Africa Act 1909.

Afrikaans only subsequently became an official language nearly two
decades later: see section 1 of the Official Languages of
the Union
Act 8 of 1925.
[69]
Sachs “The Language Question in a Rainbow Nation: The South
African Experience”
(1997) 20
Dalhousie Law Journal
5
at 2 and 6-7.  He also referred, at 10, to the strategic
balances that had to be struck:
“The first strategic balance was between the principles of
non-diminution and of extension.  Existing rights in relation

to privileged languages should not be reduced, while at the same
time there should be an expansion of rights in relation to
underprivileged languages.
The second strategic balance was between rights and practicality.
Rights and practicality should not be seen as principles
in
collision, but rather as mutually interacting concepts.  The
rights become meaningful to the extent that they are claimed
in a
reasonable fashion, and to the degree that all reasonable steps are
taken to ensure their realization.”
When considering
the dominance of English, it may be worth recalling that the
language – like all languages – has
a “dual
character” in the sense that “it is both a means of
communication and a carrier of [British, and particularly
English]
culture” and that its imposition in Africa and elsewhere by
colonisers intent on controlling the “social
production of
wealth through military conquest and subsequent political
dictatorship” thus represented an attempt to dominate
“the
mental universe of the colonised” in order to ensure the
effectiveness of that economic and political control:
Wa Thiong’o
Decolonising the Mind: The Politics of Language in African
Literature
(East African Educational Publishers Ltd,
Nairobi 2004) at 13-6.
[70]
Ministerial Policy above n 7 at clause 3.
[71]
Id at clause 15.1.
[72]
See [41].
[73]
Ermelo
above n 1 at paras 52-3.
[74]
84 of 1996.
[75]
Ermelo
above n 1 at para 41.
[76]
Id at para 26.
[77]
SCA judgment above n 17 at paras 31-2.
[78]
Id at para 18.
[79]
Id at para 19.
[80]
Id at paras 26-8.
[81]
See [53].
[82]
See [59], at which it is said that—
“[t]he University authorities, lecturers and students’
intimate connection to or daily experience on campus put them
at a
vantage point to understand better and speak with respectable
authority on the true state of affairs in their own ‘house’.

Whether white Afrikaner students have demonstrated respect for the
dignity of fellow students who are black in their daily interactions

over the years, and whether a credible or vital connection has been
made between racially segregated classes and the ‘racial

tensions’ alluded to, the University community would know
better”.
[83]
See, for example,
Trencon Construction (Pty) Limited v Industrial
Development Corporation of South Africa Ltd
[2015] ZACC 22
;
2015
(5) SA 245
(CC);
2015 (10) BCLR 1199
(CC) at para 45;
Allpay
Consolidated Investment Holdings (Pty) Ltd v Chief Executive
Officer, South African Social Security Agency
[2014] ZACC 12
;
2014 (4) SA 179
(CC);
2014 (6) BCLR 641
(CC) at para 42;
MEC for
Education, KwaZulu-Natal v Pillay
[2007] ZACC 21
;
2008 (1) SA
474
(CC);
2008 (2) BCLR 99
(CC) at para 81; and
Bato Star Fishing
(Pty) Ltd v Minister of Environmental Affairs and Tourism
[2004]
ZACC 15
;
2004 (4) SA 490
(CC);
2004 (7) BCLR 687
(CC) at para 47.
[84]
See section 167(6) of the Constitution and, for example,
Fraser v
Naude
[1998] ZACC 13
;
1999 (1) SA 1
(CC);
1998 (11) BCLR 1357
at
para 7.
[85]
Fraser
id.  See also, for example,
Snyders N.O. v
Louistef (Pty) Ltd
[2017] ZACC 28
;
2017 (6) SA 646
(CC) at para
14;
Radio Pretoria v Chairperson, Independent Communications
Authority of South Africa
[2004] ZACC 24
;
2005 (4) SA 319
(CC);
2005 (3) BCLR 231
(CC) at para 22;
De Reuck v Director of Public
Prosecutions, Witwatersrand Local Division
[2003] ZACC 19
;
2004
(1) SA 406
(CC);
2003 (12) BCLR 1333
(CC) at para 3;
Islamic
Unity Convention v Independent Broadcasting Authority
[2002]
ZACC 3
;
2002 (4) SA 294
(CC);
2002 (5) BCLR 433
(CC) at para 18;
National Education Health and Allied Workers Union v University
of Cape Town
[2002] ZACC 27
;
2003 (3) SA 1
(CC);
2003 (2) BCLR
154
(CC) at para 25;
S v Boesak
[2000] ZACC 25
;
2001 (1) SA
912
(CC);
2001 (1) BCLR 36
(CC) at para 12; and
Brummer v Gorfil
Brothers Investments (Pty) Ltd
[2000] ZACC 3
;
2000 (2) SA 837
(CC);
2000 (5) BCLR 465
(CC) at para 3.
[86]
This Court has regularly held hearings in matters in which leave to
appeal is ultimately refused.  In the past year alone,
this
approach was adopted in
Municipal Employees Pension Fund v Natal
Joint Municipal Pension Fund (Superannuation)
[2017] ZACC 43
;
S
v Barlow
[2017] ZACC 27
;
2017 (2) SACR 535
(CC);
2017 (11) BCLR
1357
(CC);
Department of Home Affairs v Public Servants
Association
[2017] ZACC 11
; (2017) 38 ILJ 1555 (CC);
2017 (9)
BCLR 1102
(CC); and
Cape Town City v Aurecon SA (Pty) Ltd
[2017] ZACC 5; 2017 (4) SA 223 (CC); 2017 (6) BCLR 730 (CC).
[87]
See,
for example,
Agri SA v Minister for Minerals and Energy
[2013] ZACC 9
;
2013 (4) SA 1
(CC);
2013 (7) BCLR 727
(CC) at para
105;
Albutt v Centre for the Study of Violence and Reconciliation
[2010] ZACC 4
;
2010 (3) SA 293
(CC);
2010 (5) BCLR 391
(CC) at para
54;
Masetlha v President of the Republic of South Africa
[2007] ZACC 20
;
2008 (1) SA 566
(CC);
2008 (1) BCLR 1
(CC) at para
238;
Mashavha v President of the Republic of South Africa
[2004] ZACC 6
;
2005 (2) SA 476
(CC);
2004 (12) BCLR 1243
(CC) at
para 20;
President of the Republic of South Africa v Hugo
[1997] ZACC 4
;
1997 (4) SA 1
(CC);
1997 (6) BCLR 708
(CC) at
para 103;
Ex parte Chairperson of the Constitutional
Assembly: In re Certification of the Constitution of the Republic of
South Africa,
1996
[1996] ZACC 26
;
1996 (4) SA 744
(CC);
1996
(10) BCLR 1253
(CC) at para 10;
Azanian Peoples Organisation
(AZAPO) v President of the Republic of South Africa
[1996] ZACC
16
;
1996 (4) SA 671
(CC);
1996 (8) BCLR 1015
(CC) at para 2; and
S
v Makwanyane
[1995] ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6) BCLR
665
(CC) at para 307.
[88]
Compare Giliomee
Historian: An Autobiography
(Tafelberg, Cape
Town 2016) at chapter 14 (arguing that President de Klerk promised
his voters power-sharing in the 1992 referendum
and then surrendered
it) with Modiri “Race, Realism and Critique: The Politics of
Race and
AfriForum v Malema
in the (In)Equality Court”
(2013) 130
SALJ
274
at 289 (suggesting that “the new
legal order in post-1994 South Africa” may have “inaugurate[d]
a bill of rights
and legal order that . . . protect[s] and defend[s]
the interests and values of whites”).
[89]
Albutt
above n 87 at para 29.
[90]
Ex
parte Gauteng Provincial Legislature: In re Dispute Concerning the
Constitutionality of Certain Provisions of the Gauteng School

Education Bill of 1995
[1996] ZACC 4
;
1996 (3) SA 165
(CC);
1996
(4) BCLR 537
(CC) (
Gauteng Legislature
) at para 48.
[91]
See, for example,
Kanse v Chairman of the Senate of the
Stellenbosch University
[2017] ZAWCHC 119.
[92]
See [50] to [51].
[93]
Ermelo
above n 1 at para 50.
[94]
For example, after the First World War, the Permanent Court of
International Justice developed a jurisprudence on treaties intended

to protect minority rights that is of “lasting importance in
human rights law”: Higgins “The International
Court of
Justice and Human Rights” in her
Themes and Theories:
Selected Essays, Speeches, and Writings in International Law
(OUP, Oxford 2009) vol 1 at 639-42.  In one particularly
well known case, the Court considered that—
“[t]he idea underlying the treaties for the protection of
minorities is to secure for certain elements incorporated in
a
State, the population of which differs from them in . . .
language . . . the possibility of living peaceably

alongside that population and co-operating amicably with it, while
at the same time preserving the characteristics which distinguish

them from the majority, and satisfying the ensuing special needs.
In order to attain this object, two things were regarded as
particularly necessary, and have formed the subject of provisions
in
these treaties.
The first is to ensure that nationals belonging to . . . linguistic
minorities shall be placed in every respect on a footing
of perfect
equality with the other nationals of the State.
The second is to ensure for the minority elements suitable means for
the preservation of their . . . peculiarities,

their traditions and their . . . characteristics.
These two requirements are indeed closely interlocked, for there
would be no true equality between a majority and a minority
if the
latter were deprived of its own institutions, and were consequently
compelled to renounce that which constitutes the very
essence of its
being as a minority.”
Minority Schools
in Albania
[1935] PCIJ Ser A/B No 64 at 17.  And domestic
courts have been no less aware of these concerns.  The Supreme
Court
of Canada, for example, has stressed that, in a minority
language community, institutions that provide formal instruction in

the community’s language are both primary instruments of
linguistic transmission and vital community centres:
Association
des parents de l’école Rose
des
vents
v British Columbia (Education)
2015 SCC 21
;
[2015] 2 SCR 139
at
para 27.
[95]
Like Kriegler J in
Gauteng Legislature
above n 90, I adopted
a similar approach in
Daniels
above n 55.
[96]
Giliomee above n 89 at 294.  See also Giliomee “Hul skrif
was aan die muur”
Rapport
(13 August 2017).  The
same author has quoted a 1947 poem by C. Louis Leipoldt that
describes two characters, the Fool and
the Master, as they observe a
chess match between white and black in which the prize is political
control of South Africa:
“The much belauded Fool
Looked wise and pondered what he saw.
‘I think’ he said, ‘that if he tries
White still might make a draw!’
The Master smiled and shook his head
‘You have left it all too late.’
‘There is no doubt of it,’ he said,
‘It’s black to move and mate.’”
Giliomee “What
future for South Africa?”
Politicsweb
(19 July 2017),
available at
http://www.politicsweb.co.za/opinion/what-future-for-south-africa.
[97]
Gauteng Legislature
above n 90 at paras 39-40 and
Tshwane
City v AfriForum
[2016] ZACC 19
;
2016 (6) SA 279
(CC);
2016 (9)
BCLR 1133
(CC) at para 122.
[98]
Willemse “The hidden histories of Afrikaans” (9 October
2015), available at
http://www.up.ac.za/media/shared/45/willemse_mistra-20151105-2_2.zp80127.pdf:
“Afrikaans is an African language, with its primary speech
community concentrated on the African continent. Afrikaans is
a
southern African language.  Today six in ten of the almost
seven million Afrikaans speakers in South Africa are estimated
to be
black (in the generic sense of the word), a figure that will by all
indications increase significantly in the next decade.
Like
several other South African languages, Afrikaans is a cross-border
language spanning sizable communities of speakers in
Namibia,
Botswana and Zimbabwe.  In South Africa and Namibia Afrikaans
is spoken across all social indices, by the poor
and the rich, by
rural and urban people, by the undereducated and the educated.
Afrikaans is a creole language, it shares
traits common to creolized
languages in the Caribbean, the Malayan Peninsula, Indonesia, the
northern parts of South America,
and an East-African Niger-Congo (or
Bantu) creole like Kiswahili.”
[99]
Antjie
Krog, “all the words used to humiliate, all the orders given
to kill, belonged to the language of my heart”:
Krog
Country
of My Skull
(Random House Struik, Cape Town 2009) at 238.
[100]
Willemse above n 98.
[101]
Gauteng Legislature
above n 90 at para 49.
[102]
Id at para 51.
[103]
Budlender “On Practising Law” in Corder (ed)
Essays
on Law and Social Practice in South Africa
(Juta & Co Ltd,
Cape Town 1988) at 319-33.
[104]
Tshwane City
above n 97 at para 120.
[105]
This literally translates as “Third Language Movement”.
There have been two such movements in the history of
Afrikaans: see,
for example, Gérard
Contexts of African Literature
(Rodopi, Amsterdam 1990) at 108.