Gelyke Kanse and Others v Chairperson of the Senate of the University of Stellenbosch and Others (CCT 311/17) [2019] ZACC 38; 2019 (12) BCLR 1479 (CC); 2020 (1) SA 368 (CC) (10 October 2019)

CONSTITUTIONAL COURT OF SOUTH AFRICA


Case CCT 311/17

In the matter between:


GELYKE KANSE First Applicant

DANIËL JOHANNES ROSSOUW Second Applicant

PRESIDENT OF THE CONVOCATION
OF THE UNIVERSITY OF STELLENBOSCH Third Applicant

BERNARDUS LAMBERTUS PIETERS Fourth Applicant

MORTIMER BESTER Fifth Applicant

JAKOBUS PETRUS ROUX Sixth Applicant

FRANCOIS HENNING Seventh Applicant

ASHWIN MALOY Eighth Applicant

RODERICK EMILE LEONARD Ninth Applicant

and

CHAIRPERSON OF THE SENATE OF
THE UNIVERSITY OF STELLENBOSCH First Respondent

CHAIRPERSON OF THE COUNCIL OF
THE UNIVERSITY OF STELLENBOSCH Second Respondent

UNIVERSITY OF STELLENBOSCH Third Respondent

2
Neutral citation: Gelyke Kanse and Others v Chairperson of the Senate of the
University of Stellenbosch and Others [2019] ZACC 38

Coram: Mogoeng CJ, Cameron J, Froneman J, Jafta J, Khampepe J,
Madlanga J, Mathopo AJ, Mhlantla J, Theron J, Victor AJ


Judgments: Cameron J (unanimous): [1] to [51]
Mogoeng CJ (concurring): [52] to [63]
Froneman J (concurring): [64] to [98]

Heard on: 8 August 2019

Decided on: 10 October 2019

Summary: Section 29(2) of the Constitution — “reasonably practicable” —
constitutionality of the language policy of the University of
Stellenbosch — Afrikaans as a medium of instruction – access to
higher education

Section 6 of the Constitution — protection and promotion of
indigenous minority languages — diminished use and status




ORDER



On direct appeal from the High Court of South Africa, Western Cape Division, Cape
Town:
1. Leave to appeal is granted.
2. The appeal is dismissed, with no order as to costs in this Court.
3. The costs orders in the High Court are set aside.
4. In their place is substituted:
“There is no order as to costs.”




3


JUDGMENT




CAMERON J ( Mogoeng CJ, Froneman J, Jafta J, Khampepe J, Madlanga J,
Mathopo AJ, Mhlantla J, Theron J and Victor AJ concurring):


Introduction
[1] At issue is the 2016 Language Policy (2016 Language Policy ) of Stellenbosch
University, the third respondent. The applicants challenge it. They are a voluntary
association committed to equal chances for Afrikaans and all indigenous languages,
together with six brown 1 and white students of the University who wish to receive
tuition in Afrikaans. I refer to them collectively as Gelyke Kanse. 2 In proceedings in
the High Court of South Africa, Western Cape Division, Cape Town (High Court) they
sought to set aside the 2016 Language Policy and reinstate its predecessor, the
University’s 2014 Language Policy (2014 Language Policy). The High Court rebuffed
their challenge.3 They now seek leave to appeal against its finding.

Background
[2] In 2014, the University, after a twelve -year break, 4 adopted a new language
policy — the 2014 Language Policy .5 That Policy stipulated Afrikaans as well as
English as the University’s languages of learning and instruction. It committed the

1 Gelyke Kanse itself, and the individual applicants concerned, used the term “brown Afrikaners” or “brown
people” for persons sometimes referred to in South Africa as “coloured people” or “kleurlinge”.
2 “Gelyke Kanse” can be translated as “even chances”, “fair chances” or “equal opportunities”.
3 Kanse v The President of the Convocation of the Stellenbosch University 2017 JDR 1687 (WCC) (Dlodlo J and
Savage J concurring) (High Court judgment) at paras 86 and 170.
4 The 2002 Language Policy emphasised singl e-medium Afrikaans tuition. Afrikaans was specified as the
“default” option in the “hierarchy of language options” – but the Policy also provided for parallel medium teaching
and, in exceptional cases, single-medium English tuition. There was also a “bilingual option” (T-Option). This
envisaged teaching in both English and Afrikaans in the same class, but with not less than 50% Afrikaans being
used.
5 In terms of section 27(2) of the Higher Education Act 101 of 1997 (the Act), in accordance with the Ministerial
Language Policy for Higher Education of 2002 (LPHE).
CAMERON J
4
institution to purposeful extension of the academic application of both languages. As
the preferred options, where practically feasible and affordable , the 2014 Language
Policy offered parallel medium teaching of undergradua te courses, in English and
Afrikaans, with interpreting. In practice, this was mostly from Afrikaans to English.
Postgraduate learning was in both English and Afrikaans , with significant use of
English. The 2014 Language Policy envisaged promotion of is iXhosa as an emerging
academic language, where feasible and affordable.

[3] Under the 2014 Language Policy , at undergraduate level, a student wanting
tuition in Afrikaans could obtain it in all courses and classes, while one seeking English
tuition could not always do so: some classes, at least, would be in Afrikaans. In those
cases, interpreting within the lecture aimed to bring non-Afrikaans-speakers up to speed
in English.

[4] After the Fees Must Fall and Open Stellenbosch upheavals on its campus during
2015, the University thought again. It appointed a working group to re -examine its
language policy. 6 After an arduous process the working group recommended a
reformulation. This resulted in the 2016 Language Policy, which came into effect on 1
January 2017 a nd is at issue here. The 2016 Language Policy creates three language
specifications – parallel, dual and single medium. Parallel medium – involving equal
tuition in both English and Afrikaans – is used “where reasonably practicable and
pedagogically sound”. Where not, classes are in dual medium. This means, in effect,
teaching in English, with Afrikaans translation (as op posed to real-time interpreting),
though questions and answers are conducted in Afrikaans.

[5] The major change from the 2014 Language Policy was that the University now
committed itself to a one hundred percent English offering of all classes. This means
that students not conversant in Afrikaans can receive all their tuition in English. B ut
while English tuition increased, there was no concordant increase in Afrikaans. This

6 The working group was chaired by Professor Antoinette van der Merwe.
CAMERON J
5
means that Afrikaans students inevitably receive a t least some tuition in English.
Despite this fact, under the 2016 Language Policy , Afrikaans is still offered on large
scale at undergraduate level. And, more pointedly, all first-year lectures continue to be
offered in Afrikaans.

[6] Although the University disputed that the 2016 Language Policy “invariably”
reduces Afrikaans tuition – claiming “it merely reconfigures it” – this is not so. The
2016 Language Policy effectively gives preference to English in circumstances the
Policy specifies. It does so in order to advance the University’s goals of equal access,
multilingualism and integration. The 2016 Language Policy does maintain and preserve
Afrikaans, but – crucially – this is now subject to demand and to available resources.

[7] The practical effect is that, while undergraduate classes are still generally offered
in Afrikaans, Afrikaans has lost its position of primacy. Instead it is placed on a sandy
footing where the deluge of English predominance, both local and global, could well
destabilise and eventually topple it.

[8] This is what the applicants foresee and what they fear and what they seek to
forestall in these proceedings by reinstating the 2014 Language Policy.7 In doing so,
they invoke the precious right of mother tongue education, whi ch is specifically
enshrined in section 29(2) of the Bill of Rights. 8 Gelyke Kanse’s argument goes more

7 In 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 Provincial Legislature), Sachs J at para 48 sought to articulate ways in which retention of
Afrikaans would not collide with equity. He appeared to note that—
“there exists amongst a considerable number of people in this country a genuinely -held,
subjective fear that democratic transformation will lead to the down -grading, suppression and
ultimate destruction of the Afrikaans language and the marginal isation and ultimate
disintegration of the Afrikaans-speaking community as a vital group in South African society.”
This may still be so 25 years after democracy.
8 Section 29(2) 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;
CAMERON J
6
widely, even . It invokes the value to us as human beings, as constitutive of our
self-conception and elemental to our functioning as social beings, of the language or
languages with which we grew up:

“It is undoubtedly true that a mother tongue is not merely a linguistic system which
can, with impunity, be replaced by another language. A child’s mother tongue is the
language which allows [them] to impose a structure on the universe. It is associated
with [their] thought processes, [their] sense of identity and [their] solidarity with [their]
family and environment. As [they] mature, [their] mother tongue may become a
symbol of regional or national pride, a means of gaining access to knowledge and
wisdom. And it will usually be associated with feelings of warmth, intimacy,
spontaneity.”9

High Court
[9] The High Court judgment is detailed and comprehensive and it would be
superfluous to repeat its constitutional and statutory expositions and analysis. The High
Court concluded that the previous 2014 Language Policy fell foul of the “reasonably
practicable” criterion in section 29(2) of the Cons titution, while, by contrast, the 2016
Language Policy conformed with this standard.10

[10] Applying the Supreme Court of Appeal’s decision in AfriForum SCA11 (given
that this Court had not yet heard AfriForum’s application for leave to appeal), the High
Court held that the University’s 2016 Language Policy did not constitute administrative
action.12 It thus fell to be reviewed under the principle of legality; but it passed muster

(b) practicability; and
(c) the need to redress the results of past racially discriminatory laws and
practices.”
9 Innis Empire and Communications (Press Porcépic, Victoria 1986) at 130 as quoted in De Varennes Language
Minorities and Human Rights: International Studies in Human Rights (Kluwer International Law, The Hague
1996) at 193.
10 High Court judgment above n 3 at para 86.
11 University of Free State v AfriForum [2017] ZASCA 32; 2017 (4) SA 283 (SCA) (per Cachalia JA; Swain JA,
Mathopo JA, Fourie AJA and Schippers AJA concurring) (AfriForum SCA).
12 High Court judgment above n 3 at paras 66-7.
CAMERON J
7
even under the stricter test of administrative review.13 The High Court scrutinised the
process by which the 2016 Language Policy was adopted and concluded that it was
neither irrational nor unfair.14

[11] The High Court concluded that the 2016 Language Policy did not violate section
29(2), which required a “context-sensitive analysis”.15 That provision’s test of
“reasonable practicability”16 requires an assessment of what is fair, feasible and satisfies
the need to remedy the results of past discriminatory laws and practices. 17 Nor did the
2016 Language Policy infringe sections 29(1)(b) or 6(2)18 of the Constitution. 19 The
prohibition against retrogressive measures, where enshrined rights are currently being
enjoyed, does not operate abstracted from changes in context and circumstances. The
High Court found that the University had advanced “ appropriate justification” for any
possible reduction in Afrikaans tuition that inevitably flowed from the 2016 Language
Policy.20


13 Id at para 113.
14 Id at paras 116-44.
15 Id at para 82 and Head of Department; Mpumalanga Department of Education v Hoërskool Ermelo [2009]
ZACC 32; 2010 (2) SA 415 (CC); 2010 (3) BCLR 177 (CC) (Ermelo) at para 52.
16 Section 29(2) is set out in full above n 8.
17 High Court judgment above n 3 at para 28 and Ermelo above n 15 at para 53.
18 Section 6 of the Constitution, which forms part of Chapter One, headed “Founding Provisions”, reads in so far
pertinent to the applicants’ case:
“(1) The official languages of the Republic are Sepedi, Sesotho, Setswana, siSwati,
Tshivenda, Xitsonga, Afrikaans, English, isiNdebele, isiXhosa and isiZulu.
(2) 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.
. . .
(4) The national government and provincial governments, by legislative and other
measures, must regulate and monitor their use of official languages. Without detracting
from the provisions of subsection (2), all official languages must enjoy parity of esteem
and must be treated equitably.”
19 High Court judgment above n 3 at paras 106-9.
20 High Court judgment above n 3 at paras 85-6, applying the decision of this Court in Ermelo above n 15, where
Moseneke DCJ, on behalf of the Court, at para 52 stated 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”.
CAMERON J
8
[12] Gelyke Kanse invoked the fact that the 2016 Language Policy was dissonant
from the 2002 Ministerial LPHE. The LPHE explicitly encourages multilingualism and
envisages development of all indigenous languages as university mediums.21 It also
acknowledges that, as a language of scholarship and science , Afrikaans “is a national
resource”.22 In this, it commits to “ensuring that the capacity of Afrikaans to function
as such a medium is not eroded ”.23 Despite these affirmations, t he High Court
considered the LPHE, though an important guiding document, was not binding on the
University.24 In adopting the 2016 Language Policy, the University was free to depart
from the LPHE. And it had shown good reason why a departure was justified.

In this Court
[13] Gelyke Kanse contends not only that the 2016 Language Policy violates
section 29(2), but that it also contravenes other constitutional provisions, including
section 6(2), section 6(4), the equality clause and other provisions of the Bill of Rights.

Leave to appeal and jurisdiction
[14] A fundamental right is at issue. This Court plainly has jurisdiction.
Gelyke Kanse however seeks leave to bypass the Supreme Court of Appeal and appeal
directly to this Court. This requires special consideration. Interrelated factors weigh in
its favour. The Supreme Court of Appeal pronounced recently and thoroughly on
language rights, specifically Afrikaan s, at tertiary level in AfriForum SCA. That
judgment’s main findings and analysis were affirmed by this Court in AfriForum CC25
though, before this Court’s judgment, the High Court carefully considered and applied
AfriForum SCA. This renders the desirability of a further appellate -level
pronouncement in this area less pressing. And the High Court analysed the issues with

21 LPHE above n 5 at para 18.2.
22 Id at para 15.4.
23 Id.
24 High Court judgment above n 3 at para 110.
25 AfriForum v University of the Free State [2017] ZACC 48; 2018 (2) SA 185 (CC); 2018 (4) BCLR 387 (CC)
(AfriForum CC).
CAMERON J
9
deep-going rigour and thoroughness. That sets the table for the disposition of the issues
in this Court, without a further intermediate appeal.

[15] Though this Court deni ed the applicants in AfriForum CC leave to appeal , the
factual setting and the issues Gelyke Kanse raises, as will emerge, are more complex. I
would grant leave to appeal.

Analysis
[16] In advancing its case in this Co urt, Gelyke Kanse’s factual assertions ranged
widely. Yet, despite the importance and the emotional intensity of the issues, we are
obliged to play fair with the facts. The well-worn test for the disposition of cases
brought on application 26 requires that we decide the matter on the facts stated by the
University, together with those Gelyke Kanse states that the University cannot deny, or
of which its denials plainly lack credence and can be rejected outright on the papers.

[17] So approached, it is clear that, though triggered by the upheavals of 2015 (which
counsel for the University rightly called a “catalyst”), the process for adopting the 2016
Language Policy was thorough, exhaustive, inclusive and properly deliberative.
Largely for the reasons the High Court set out in detail,27 the challenge to the Policy on
process and rationality grounds must fail.

[18] Gelyke Kanse also sought to introduce evidence showing that the 2016 Language
Policy is currently being implemented in a way that gives warrant to its fears about side-
lining Afrikaans. But the High Court rightly rejected this evidence,28 as must we. The
2016 Language Policy was implemented with effect from 1 January 2017. Gelyke
Kanse’s challenge was brought before that, on 30 September 2016. That makes these
proceedings a facial challenge to the 2016 Language Policy itself. They are not an “as-

26 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A) at 634E-
635C.
27 High Court judgment above n 3 at paras 116-44.
28 Id at paras 69-71.
CAMERON J
10
applied” challenge. That means Gelyke Kanse cannot in its replying papers bring in
evidence creating doubt about the legitimac y of the Policy because of how it is being
applied.

[19] This is not to stump Gelyke Kanse on technical points. It is to insist that a litigant
should stick to the case it has set out in its challenge, and that it does not ambush its
opponent in reply with a new case and new evidence entirely. Gelyke Kanse has ample
remedies should the University betray the commitment to Afrikaans it embraced in the
2016 Language Policy. For now, the question before us must be, and be only, whether
the University has suffici ently justified the diminished role for Afrikaans in the 2016
Language Policy, as issued, and not as applied.

[20] This puts the focus where it should be, on Gelyke Kanse’s challenge based on
the right to tertiary tuition in Afrikaans that the individual appli cants claim under
section 29(2) and section 6 of the Bill of Rights . Gelyke Kanse rightly contended that
section 29(2) entails an enforceable right against the State to provide education in t he
language of the community so long as it is reasonably practicable.

[21] At the outset, it is important to note two salient features of the right to language.
One is that respect for language preference, where appropriate and reasonable, entails
no special concession or privilege d treatment. It flows from fundamental rights and
values. It is an embodiment of the right to be treated equally and without discrimination,
which inheres in everyone.29 It requires no special pleading for its recognition.


29 See De Varennes above n 9 at 117:
“[T]he respect of language preferences of individuals, where appropriate and reasonable, flows
from a fundamental human right and is not some special concession or privilege d treatment.
Simply put, it is the right to be treated equally without discrimination, to which everyone is
entitled.”
CAMERON J
11
[22] Second, it is established in international human rights law that the way in which
that respect is practically realised must depend on what is appropriate and reasonable.30
Section 29(2) of our Bill of Rights recognises this. It accords the right to receive
education in public educational institutions in a language of choice “where that
education is reasonably practicable”. In this, the Constitution accords with international
instruments.31

[23] It is also important to state that the constitutional test of “reasonable
practicability” in determining whether the right in section 29(2) may be conferred is in
essence synonymous with the test of “appropriate justification” for cutting it back, once
afforded. It could be said that they are two sides of the same coin, the former dealing
with the positive duty to fulfil the right, and the latter with the negative duty not to take
it away, once enjoyed. In Ermelo, this Court stated:

“In short, the reasonableness standard built into section 29(2)(a) imposes a context -
sensitive understanding of each claim for education in a langu age of choice. An
important consideration will always be whether the State has taken reasonable and
positive measures to make the r ight 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.”32

[24] Gelyke Kanse sought to differentiate between the two tests. It contended that,
once the right had been afforded, “appropriate justification” was harder to surmount.

30 UN Committee on Economic, Social and Cultural Rights, General Comment No 21 “Right of Everyone to Take
Part in Cultural Life” E/C.12/GC/21 (2009) at para 61 and see further De Varennes “Language Rights as an
Integral Part of Human Rights” (2001) 3 International Journal of Multicultural Societies 15 at 20-1.
31 See Article 29 of the Universal Declaration of Linguistic Rights, 9 June 1996; Article 8 of the European Charter
for Regional or Minority Languages, 5 November 1992; Article 29(1)(c) of the Convention on the Rights of the
Child, 20 November 1989; Article 12 of the Framework Convention for the Protectio n of National Minorities,
1 February 1995; Article 5 of the Convention Against Discrimination in Education , 14 December 1960; and
Article 27 of the International Covenant on Civil and Political Rights, 16 December 1966.
32 Ermelo above n 15 at para 52.
CAMERON J
12
But t he High Court rejected this contention, 33 rightly invoking the reasoning in
AfriForum SCA and University of Pretoria.34 Both judgments correctly affirm that
Ermelo did not create two separate standards. Ermelo goes no further than reaffirming
the distinction between positive and negative duties.35

[25] Gelyke Kanse developed its section 29(2) case in tandem with section 6(2) ,
which recognises the State’s duty to take practical and positive measures to elevate the
status of indigenous and diminished languages.36 Section 6(4) further requires national
and provincial governments to regulate and monitor the use of official languages and
ensure that they enjoy parity of esteem and equitable treatment.37 Universities as organs
of State, the argument proceeded, must heed section 27(2) of the Act which requires
universities to adopt language policies “subject to” the LPHE.38 In the light of all this,
Gelyke Kanse urged, the 2016 Language Policy lacks meaningful guidelines, it directly
discriminates against Afrikaans-speaking students, and diminishes Afrikaans tuition at
the University in a way not justified on any basis.


33 High Court judgment above n 3 at paras 85-6.
34 AfriForum v Chairperson of the Council of the University of Pretoria 2017 JDR 0150 (GP) (Kollapen J)
(University of Pretoria) at para 54.
35 As Currie and De Waal explain in The Bill of Rights Handbook 6 ed (Juta, Cape Town 2013) at 639:
“[T]he Constitution recognises a right only to publicly funded mother -tongue education in an
official language. Nevertheless, given that there are eleven official languages, the right imposes
potentially onerous positive obligations. The subsection therefore contains an internal modifier.
The right may only be claimed where instruction in an official language of choice is ‘reasonably
practicable’. Where 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.”
36 Afrikaans is “a creole language, a variant of the Dutch 17th century colonists, with some lexical and syntactical
borrowings from Malay, Bantu languages, Khoisan languages, Portuguese and other European languages” (Currie
“Official Languages” in Woolman et al (eds) Constitutional Law of South Africa Service 6 (2014) at 15, drawing
on Gordon (ed) Ethnologue: Languages of the World 15 ed (2005) available at http://www.ethnologue.com). In
Gauteng Provincial Legislature above n 7 at para 49, Sachs J described Afrikaans as “possibly the most creole or
‘rainbow’ of all South African tongues”. From a linguistic standpoint, Afrikaans is properly classified not only
as a fully-fledged, independent language rather than a dialect, but also as a language indigenous to South Africa.
37 See section 6(4) as set out in full above n 18.
38 Section 27(2) of the Act 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.”
CAMERON J
13
[26] Gelyke Kanse is correct in its assertion that t he constitutional criterion of
reasonable practicability is to be judged objectively, and that it requires an approach
founded in evidence. But the evidence is against Gelyke Kanse. The evidence shows
that, near -universally, brown and white -Afrikaans-speaking first-year entrants to the
University are able to be taught in English. Conversely, though most entrants are able
to receive tuition in Afrikaans, a significant minority cannot.

[27] And, of course, as so often in our count ry, there is a hard racial edge to the
differences these facts entail. Two aspects stand out. First, most black (in
contradistinction to brown) new entrants to the University are not conversant enough to
be able to receive tuition in Afrikaans . Second, seen as a bloc , the new entrants for
whom Afrikaans is an obstruction are not brown or white, but overwhelmingly black.

[28] The uneasy truth is thus that the primacy of Afrikaans under the 2014 Language
Policy created an exclusionary hurdle for specifically black students studying at
Stellenbosch. The racial colouring of the barrier is unavoidably freighted with
implication. The evidence the University presented showed that elements of the 2014
Language Policy, when applied, left a sting. Separate classes in English and Afrikaans,
or single classes conducted in Afrikaans, with interpreting from Afrikaans into English,
made black students not conversant in Afrikaans feel marginalised, excluded and
stigmatised. They were not proficient in Afrikaans, could not understand the lectures
presented in Afrikaans or, where the balanced use of Afrikaans and English was offered,
they felt stigmatised by real -time interpretation (which was almost solely used for
translating lectures they could not understand). Also, less directly pertinent to the “right
to receive education”, they felt excluded from other aspects of campus life, including
residence meetings and official University events held in Afrikaans, without
interpretation.

[29] These facts Gelyke Kanse cannot, and it seems, does not, contest. Its response
was, in the technical language of legal pleadings , confession and avoidance. It said,
“Yes, but” – with its “but” being this: in contrast to what happened at the University of
CAMERON J
14
the Free State in AfriForum CC , classes separated by language at Stellenbosch
University were not racially distinct. The University contended this is because numbers
of brown students prefer to be taught in Afrikaans (although it seems that most are either
comfortable with, or prefer, tuition in English). This meant that, unlike AfriForum CC,
where racial segregation was the reason for dispensing with Afrikaans as a medium of
instruction, this was not so with the 2016 Language Policy. It was som ething subtler,
but still palpable, and still substantial: the erection along racial lines of a barrier to full
access to Stellenbosch’s learning and other opportunities.

[30] That sting Gelyke Kanse sought to deflect by urging the University to ameliorate
the exclusionary impact of Afrikaans by upping its parallel medium offering for all
undergraduates in both Afrikaans and English . With fully parallel tuition in both
English and Afrikaans , with brown, white and black students distributed across both
mediums, there would be no marginalisation, no exclusion, no stigma.

[31] The University conceded that this was feasible. But was it “reasonably
practicable” in the sense of section 29(2), entitling Gelyke Kanse to insist on it ?
The University said No. The University determined by careful study that the cost of
immediately changing to fully parallel medium tuition would total about R640 million
in infrastructure (including additional classrooms) , plus about R78 million each year
thereafter for additional personnel costs. This would entail a 20% increase in fees, an
additional R8 100 on top of the approximately R40 000 per year students on average
pay now. Reasonably practicable? The University said No.

[32] Gelyke Kanse cried foul when the U niversity’s answering affidavits set out the
cost as a justifying factor. It pointed out that cost did not specifically feature in either
the working group processes or in the deliberations of Senate and Council when they
adopted the 2016 Language Policy. Cost, Gelyke Kanse objects, is a belated make-do.
This I think is incorrect. In almost any conceivable issue of institutional management,
whether in a profit -driven or no -profit enterprise, cost is an inevitable consideration.
The University was entitled to cite cost in answering Gelyke Kanse’s challenge since ,
CAMERON J
15
albeit inexplicit, it would all along have been a real and substantial factor in its attempts
to figure out what it could do to improve the 2014 Language Policy.

[33] In short, t he University w as entitled to defend the 2016 Language Policy by
showing that the cost of offering all undergraduate courses in parallel English and
Afrikaans, so that students not conversant in Afrikaans can have English tuition, but
without diminishing Afrikaans, would be enormously, even if no t prohibitively,
expensive.

[34] To this, Gelyke Kanse’s answer, which its counsel gave during argument, was
that there are sources the University could tap to meet this cost . Counsel mentioned
some. He alluded to wealthy alumni of the University who oppose diminishing the
place of Afrikaans, and trust funds dedicated to protection of the heritage of Afrikaans.
This does not seem to me to meet the point. Any institutional allocation of cost involves,
not exactly a zero -sum calculation, but some detraction from resources that could be
deployed elsewhere. The question is not whether the University could conceivably
marshal the resources to sustain fully parallel English/Afrikaans undergraduate tuition,
but whether doing so was reasonably practicable.

[35] In this there was a judgment about cost, combined with a judgment about value.
The University’s Senate and Council and executive officers made that judgment. They
determined that the cost of sustain ing fully parallel medium English/Afrikaans
undergraduate tuition could not be justified, given other, often competing, claims on its
resources.

[36] Does the University’s judgment on this fail the Constitution’s “reasonably
practicable” test? Largely for the reas ons the University gives, and which the
High Court upheld, 39 I think not. The University’s determinative motivation for
introducing the 2016 Language Policy was to facilitate equitable access to its campus

39 High Court judgment above n 3 at paras 51 and 90-3.
CAMERON J
16
and to its teaching and learning opportunities by black students who are not conversant
in Afrikaans. The University’s decision -making structures, with a scrupulous eye on
racial equity, access and inclusiveness, judged that (a) a downward adjustment of
Afrikaans, w ithout by any means eliminating it, was warranted; and (b) taking into
account the overall needs of the institution, the cost of avoiding the down-adjustment
was too high.

[37] The Supreme Court of Appeal’s decision in AfriForum SCA40 held that
“reasonably prac ticable” in section 29(2) involves both a factual and normative
(constitutional) element .41 This Court adopted and endorsed this approach in
AfriForum CC.42 The University’s motivation and judgment on cost here accords with
that analysis. Both the factual and normative elements the provision envisages were
satisfied.

[38] A different way to pose the dilemma Gelyke Kanse brings before us is this. Is it
permissible under section 29(2) , where tuition is being offered in an official language
of c hoice at a public educational institution, to diminish that offering ( while not
extinguishing it) in order to enhance equitable access for those not conversant in that
language, when the institution judges the cost of non-diminution too high? In my view
the answer is Yes.

[39] Both the facts at issue, and the doctrine articulated, in AfriForum CC support this
conclusion. There, the University of the Free State abolished parallel medium classes,
and, with them, Afrikaans as a medium of instruction, because black students chose
English, and the students who wanted Afrikaans were white. This resulted in classes

40 AfriForum SCA above n 11 at para 27.
41 Ermelo above n 15 at paras 45-7 and 51-3.
42AfriForum CC above n 27 at paras 53-4.
CAMERON J
17
segregating white students from black students. In these circumstances, this Court
accepted that separate parallel classes gave rise to racial friction and antagonism.43

[40] Here, unlike at the University of the Free State, the University by no means
abolished Afrikaans. Also dissimilar is that some students seeking tuition in Afrikaans
are brown. This means that racial segregation of the kind at issue in AfriForum CC is
not a feature. Nevertheless, the University’s evidence indicates that dual medium
classes with interpreting from Afrikaans to English peripheralise and stigmatise black
students not conversant in Afrikaans. That, together with the non -prohibitive but
significant cost of upscaling to full parallelism means that sustaining the 2014 Language
Policy was not reasonably practicable for the University.

[41] This is to say that the exclusion of non-Afrikaans speakers from full participation
in tuition and other institutional benefits seems to me a legitimate basis for upgrading
English, while continuing to offer significant tuition in Afrikaans , even while
sacrificing the previous primacy of Afrikaans. In this, a sliding scale of what is lost in
language terms, and what is retained, as against the social justice objective sought to be
attained, weighed together, where appropriate, with cost considerations, seems to me
constitutionally justified.44

43 The dissentients, Froneman J, Cameron J and Pretorius AJ, objected that the Court did so, on this point, without
oral argument or any specific factual basis. See AfriForum CC above n 25 per Froneman J at paras 96, 99 -100
and 110-2.
44 De Varennes above n 30 at 21-2, suggests a “sliding scale model”:
“Beginning at the lower end of what will be called a “sliding-scale model”, public officials should at the
very least have official documents and forms available in appropriate areas where there is a low, though
sufficient number of speakers of a minority language. As the numbers progressively get higher, in
addition to bilingual or minority language documents, public officials would have to accept and respond
to applications in a minority language. At the very top of the scale, there would have to be some kind of
bilingual administration in districts where a minority language is used by a very high percentage of the
population. This means that there would have to be a sufficient number of public officials who are in
contact with the public in place to respond to the use of the non-official or minority language, and even
that in these areas the minority language be used as an internal and daily language of work within public
authorities. So the principle, based on the relevant treaty provisions or non-discrimination, would apply
to all activities relating to “administrative or public authorities”, all areas of state involvement, including
the judiciary, state education, state-provided health services, public broadcasting, etc.
For example, where a sufficient number of students of a linguistic minority are concentrated territorially,
it would be unreasonable - and in all likelihood be a breach of non -discrimination - for a state not to
provide an appropriate degree of use of their language as medium of instruction in public schools. The
degree of use of a minority language will vary according to what is “reasonable”, “appropriate” or
CAMERON J
18

[42] Earlier, I noted it was the University’s own decision-making structures that
“judged” that the cost of securing inclusivity in teaching, while not diminishing
Afrikaans, was too high. 45 Well, who are they to judge that? It is a good question.
Certainly, the Court owes no obvious deference to the institution making the judgment.
The Court must itself scrutinise the facts the institution advances for diminishing
language-preferent tuition,46 while bearing in mind that it is a multifactored functional
determination in which the judgment of those entrusted with the institution’s well-being
should be accorded what this Court has called “appropriate respect”.47 This means that
when considerations of cost are advanced, the Court’s scrutiny will necessarily be
tempered by some measure not of deferring to a judg ment that might not be sound, 48
but rather of prudent worldly-wise caution in supplanting the judgment of experienced
others.


“practical” in each situation: the extent of demand for such instruction, the le vel of use of the minority
language as medium of instruction, the state’s ability to respond to these demands, etc.”
45 See [31] and [35] above.
46 See Ermelo above n 15 at para 52.
47 It is in exactly this sense that this Court explained “deference” to administrative decision-making bodies in 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) (Bato Star) at para 48:
“In treating the decisions of administrative agencies with the appropriate respect, a Court is recognising
the proper role of the Executive within the Constitution. In doing so a Court should be careful not to
attribute to itself superior wisdom in relatio n to matters entrusted to other branches of government. A
Court should thus give due weight to findings of fact and policy decisions made by those with special
expertise and experience in the field. The extent to which a court should give weight to these
considerations will depend upon the character of the decision itself, as well as on the identity of the
decision-maker. A decision that requires an equilibrium to be struck between a range of competing
interests or considerations and which is to be taken by a person or institution with specific expertise in
that area must be shown respect by the Courts. Often a power will identify a goal to be achieved, but
will not dictate which route should be followed to achieve that goal. In such circumstances a Court
should pay due respect to the route selected by the decision -maker. This does not mean however that
where the decision is one which will not reasonably result in the achievement of the goal, or which is not
reasonably supported on the facts or not reasonable in the light of the reasons given for it, a Court may
not review that decision. A Court should not rubber-stamp an unreasonable decision simply because of
the complexity of the decision or the identity of the decision-maker.”
48 See further on defer ence Bato Star id; Minister of Environmental Affairs and Tourism v Phambili Fisheries
(Pty) Ltd; Minister of Environmental Affairs and Tourism v Bato Star Fishing (Pty) Ltd [2003] ZASCA 46; 2003
(6) SA 407 (SCA) at para 50; and Logbro Properties CC v Bedderson N.O. [2002] ZASCA 135; 2003 (2) SA 460
(SCA) at paras 20-1.
CAMERON J
19
[43] This is not airy doctrine. It is practical. Chapter 4 of the Act, 49 partly through
each university’s institutional statute and ru les,50 vests very considerable decision -
making responsibilities and fiduciary duties in the council,51 senate,52 and executive
governance structures 53 of each higher education institution. Members of u niversity
councils and their committees must be persons “ with knowledge and experience
relevant to the objects and governance of the public higher education institution
concerned”.54 These include both members of the university’s executive team 55 and
“outside” members of the council. 56 No sensibly functioning high er education
institution can afford to be without senior persons in its governance structures who are
both skilled in finance and knowledgeable about the institution’s own needs, risks and
opportunities.

[44] Given this, then, what do we make of the University’s costs claims? It said that
the additional 20% on top of existing student fees that Gelyke Kanse’s solution to its
dilemma entailed was not reasonably practicable. It does not require deference to flinch
from substituting that judgment. It requires only accepting that cost considerations,
when scrupulously calculated, as here, and conscientiously propounded, as here, should
weigh seriously with a court that adjudicates a claim of rights infringement under
section 29(2).

[45] Considering the facts and figures the University advances, it seems to me
impossible to set aside or override its conclusion that it was not reasonably practicable

49 Sections 26-38 of the Act.
50 Section 32 of the Act.
51 Section 27 of the Act.
52 Section 28 of the Act.
53 Section 30 of the Act.
54 Section 27(7)(a) of the Act.
55 Section 27(4)(a) and (b) of the Act.
56 Section 27(4)(c) and (h) of the Act.
CAMERON J
20
to introduce full parallel medium undergraduate teaching in order to avoid some
diminution of Afrikaans.57

Broader considerations
[46] Gelyke Kanse’s approach to whether Afrikaans is an “indigenous language”
envisaged in section 6(2) seems to have fluctuated. It did not deny that, at least since
Afrikaans supplanted Dutch as an official language in pre-democracy South Africa in
1925,58 Afrikaans has not been disadvantaged by “historically diminished use and
status”, as contemplated by the provision. 59 But Gelyke Kanse rightly insisted on
Afrikaans’s indigeneity60 and that it was entitled anyhow under section 6(4) to “ parity
of esteem” as an official language, and hence that it “must be treated equitably ”. The
High Court mentions Gelyke Kanse’s section 6(4) argument61 but does not engage with
it; “parity of esteem” and “treated equitably” as constitutional injunctions not detracting
from section 6(2) may require consideration.62


57 It must be stated that the University certainly made a far more convincing case of setting out and explaining its
cost considerations relating to the 2016 Language Policy than the constitutional duty-bearer, the City, did in City
of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd [2011] ZACC 33; 2012 (2)
SA 104 (CC); 2012 (2) BCLR 150 (CC) at paras 68 -75, where the City spoke “in the vaguest terms” about
affordability.
58 By the enactment of the Official Languages of the Union Act 8 of 1925.
59 High Court judgment above n 3 at para 107. In Ermelo above n 15 at para 47, Moseneke DCJ on behalf of the
Court explained that “[s]ection 6(1) read with section 6(2) warrants and widens the span of our official languages
from a partisan pair to include nine indigenous languages which for long have jostled for space and equal worth”.
60 See above n 36.
61 High Court judgment above n 3 at para 14.
62 Afrikaans enjoys protection under section 6(4) as the section speaks of “official languages”. However, unlike
the positive duty placed upon the State by section 6(2) to take “practical and positive measures”, the duty imposed
by section 6(4) is not oriented towards a strongly normative goal. It affords the State a wide margin in
implementing its policy for the use of official languages. Th e subsection is thus a conserving constraint on
government’s existing use and practice of official languages like Afrikaans. This is so because it explicitly
stipulates that this does not detract from the corrective measures required by section 6(2) but rather seeks to ensure
that, in doing so, no official language is disregarded or treated inequitably. Section 3(2) of the interim
Constitution, in fact, explicitly required non-diminution:
“Rights relating to language and the status of languages existing at the commencement of this
Constitution shall not be diminished, and provision shall be made by an Act of Parliament for
rights relating to language and the status of languages existing only at regional lev el, to be
extended nationally in accordance with the principles set out in subsection (9).”
See also section 3(5) of the interim Constitution, which provides for provinces to determine their own official
languages.
CAMERON J
21
[47] Gelyke Kanse implored the Court to set aside the 2016 Language Policy .
Upholding the University’s policy change, counsel urged, would signal the end of
Afrikaans as a language of tertiary instruction. While counsel’s plea on behalf of
indigenous languages other than Afrikaans may have seemed opportunistic, the dire
entreaty compels reflection. Endorsing the University’s 2016 Language Polic y as
conforming with section 29(2) comes at a cost. Our judgment must acknowledge it.

[48] Afrikaans has been recognised in this Court as “one of the cultural treasures of
South African national life”.63 The flood-tide of English risks jeopardising the precious
value of our entire indigenous linguistic heritage. Gelyke Kanse is entitled to invoke
that risk. This is because the march of history both in South Africa and globally seems
relentlessly hostile to minority languages, including Afrikaans, w hich is the
mother tongue of some seven million64 on a planet inhabited by seven billion people.

[49] But that is not the University’s burden, as little is the fact that Afrikaans has all
but vanished at other tertiary insti tutions, barring only one other. 65 And the dilemmas
the global march of English poses is not the question before the Court. Yet we should
not miss the cost that the diminution of Afrikaans at the University entails not only for
Gelyke Kanse and its adherents, but for our world, and for ourselves.66


63 Gauteng Provincial Legislature above n 7 at para 49.
64 Statistics South Africa South African National Census of 2011 (Report No. 03-01-41, 2012) at 23.
65 The Potchefstroom campus of North-West University.
66 There is however also cause for hope. While indigenous languages do not (yet) enjoy parity of esteem at tertiary
level, in 2017, Rhodes University awarded its first PhD in isiXhosa: Mahlakoana “PhD Written in isiXhosa Hailed
as Milestone” IOL (23 April 2017) available at https://www.iol.co.za/news/south-africa/phd-written-in-isixhosa-
hailed-as-milestone-8779991. The University of Fort Hare followed suit in 2018: “History Made As Fort Hare
Awards First PhD written in is iXhosa” News24 (23 October 2018) available at
https://www.news24.com/SouthAfrica/News/history-made-as-fort-hare-awards-first-phd-written-in-isixhosa-
20181023. This matches a growing trend in South African popular culture: in telenovelas such as The Queen and
The River both set in Gauteng embracing Setswana, isiZulu, isiXhosa, The Throne which is set in Magaliesburg
and embraces Setswana. Skeem Saam is set in Turfloop and embraces Sep edi, Muvhango is set in Venda and
embraces Tshivenda, 7de Laan and Binnelanders are set in Johannesburg and embrace Afrikaans. Finally, in
April 2019, So uth Africa celebrated the first -ever Xitsonga telenovela, Giyani: Land of Blood which is set in
Giyani. See Hlalethwa “‘Giyani’ Translates to Viewers” Mail & Guardian (12 April 2019) available at
https://mg.co.za/article/2019-04-12-00-giyani-translates-to-viewers.
CAMERON J / MOGOENG CJ
22
Costs
[50] The High Court, like AfriForum SCA ordered costs against Gelyke Kanse.
Before this Court, the University – recognising early that the costs order was at odds
with Biowatch,67 which protects constitutional litigants against adverse costs orders
when litigating against organs of state – abandoned that award. The High Court,
however, made a separate award against Gelyke Kans e in respect of its misbegotten
attempts to expand its case in reply and its failed resistance to an order striking out
additional material in its reply. While counsel for the University did not disavow those
costs when directly asked about them, he did not seek to cling to them. I appreciate that
the High Court exercised its discretion in awarding those adverse costs, but would
intervene to set them aside on the basis that, viewed overall, and notwithstanding its
adventitious mistakes, Gelyke Kanse never forfeited its Biowatch shield. Clearly there
should be no costs award in this Court

Order
[51] The following order is made:
1. Leave to appeal is granted.
2. The appeal is dismissed, with no order as to costs in this Court.
3. The costs orders in the High Court are set aside.
4. In their place is substituted:
“There is no order as to costs.”



MOGOENG CJ (Cameron J concurring):


[52] Stellenbosch University felt constrained to revise its 2014 Language P olicy in
order to keep up with the access to education demands of the times. The central features

67 Biowatch Trust v Registrar Genetic Resources [2009] ZACC 14; 2009 (6) SA 232 (CC); 2009 (10) BCLR 1014
(CC) (Biowatch).
MOGOENG CJ
23
of its new policy, the 2016 Language Policy, that have engaged us, read in relevant
parts:

“7.1.3 For undergraduate modules where it is reasonably practicab le and
pedagogically sound to have more than one class group:
7.1.3.1 There are separate lectures in Afrikaans and English.
. . .
7.4.1.2 The Afrikaans offering is managed so as to sustain access to
[Stellenbosch University] for students who prefer to study in Afrikaans
and to further develop Afrikaans as a language of tuition where
reasonably practical.”

[53] The words “reasonably practicable” and “access” are not a product of the
University’s creativity, but an unmistakable consequence of its set determination not to
veer off the dictates of the Constitution in relation to the right to instruction in one’s
language of choice. For section 29(2) of our Constitution says:

“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.”

[54] The University had English and Afrikaans as co -equal mediums of instruction
for years before the impugned policy -shift came into being. The need for change was
subsequently identified. Hence, the 2016 Language Policy that birthed this application.
And a question does arise whether the pre-existing position could not perhaps have been
maintained as long as some of our people desire to be taught in Afrikaans. On this, this
Court has previously said:

MOGOENG CJ
24
“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 e quitable 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.”68

[55] I reiterate that one of the critical features of the 2016 Language Policy-direction
is said to be the need to facilitate access to education for those students who are not
proficient in Afrikaans and are predominantly siXhosa -speaking. This is set to be
achieved with due regard to the pre -existing entitlement of some students to be taught
in Afrikaans. Additionally, the financial burden that comes with maintaining the two
language streams struck the University as being just too onerous to bear. And the
reasonable practicability of and effective access to, being taught in a language of choice
must, regard being had to considerations of equity, practicability and the need to redress,
be counterbalanced with the need to facilitate access to education through any medium
even if some might, given a choice, not have preferred it.

[56] On that need to have our institutions of education accessible to all with due
regard to the reasonable practicability of receiving education in a language of choice,
we also said:

“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

68 AfriForum CC above n 25 at para 51.
MOGOENG CJ
25
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.”69

[57] That access must of course be addressed with due sensiti vity to the reality that
students, desirous of being instructed in Afrikaans, would as in this case, have had that
choice available to them all along. Taking away that enjoyment or minimising its
availability must be permissible only for good reason. That prejudicial step may not be
taken lightly, insensitively, maliciously or inconsiderately. In t he belief that parts of
section 29(2) of the Constitution, concerning the assertion of the right on the one hand
and how to give practical expression to it on the other, are not to be construed
disjunctively but conjunctively . We have had occasion to express ourselves in these
terms, particularly on the need for “appropriate justification”:70

“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.’ Inequitable access and the unintended entrenchment
or fuelling of racial disharmony would thus be the ‘appropriate justification’ for taking
away or diminishing the already existing enjoyment of the right to be taught in one’s
mother tongue.”71

[58] Although facts may point to how a principle is to be applied to them, facts do not
redefine a principle. A principle, particula rly one that is constitutional in character,
remains fundamentally unaffected by the dissimilarity of facts in different cases. Like
the Constitution from which it is sourced, it ought to be applied to all subsequent matters
to which it is relevant even if the new facts are different from those of the case in which
the principle was first laid down. For this reason, while the facts in AfriForum CC

69 Id at para 49.
70 The term “appropriate justification” was first used in Ermelo above n 15 at para 52.
71 AfriForum CC above n 25 at para 50.
MOGOENG CJ
26
admittedly had more to do with blunt racial segregation or overtones than here, the
principles we enunciated in relation to reasonable practicability, the need for redress
and access to education, apply with equal force to this matter.

[59] The understanding and application of reasonable practicability and the need to
equitably enhance access to education for all, as they have arisen here, stand to be
guided by our articulation of these principles in AfriForum CC. That is what fidelity to
precedent demands of us.

[60] I agree with Cameron J that, in effect, it is neither reasonably practicable nor
equitable to adhere to the position that was obtained before the 2016 Language Policy
came into being. It indeed frustrates access to education by many. In his judgment I
concur.

[61] With all that done and dusted, it needs be said that Afrikaans is indeed an African
language, our historic pride to be treasured by all citizens. Its existence precedes
colonialism. And its subsequent development with the appropriately enriching infusion
of terms from Dutch or any other European language and the unjust attempt to impose
it on others, do not at all affect its original African DNA.

[62] Our highly challenged fiscus has however, imposed a constraint on us to share
all the acutely limited public resources among ourselves as generously as considerations
of justice, equity and reconciliation, informed by reasonable practicability, permit us to.
As a result, it is most fitting to appeal particularly to our corporate citizens’ spirit of
generosity, to help preserve Afrikaans , and develop other indigenous languages, as
essential tools for knowledge impartation and comprehension. And that they can do by
deploying resources to the establishment of private institutions of learning envisaged
by section 29(3) of the Constitution, which would obviously not be driven by any
sinister agenda to discriminate against others on any unconstitutional basis

MOGOENG CJ / FRONEMAN J
27
[63] None of the dignity-restoring and enhancing aspirational measures laid down in
our Constitution should deliberately or inadvertently, be rendered unworthy of the
constitutional space they occupy. Plans to enhanc e the status and promote the use of
indigenous languages, in line with section 6 of our Constitution, must thus be developed
and kept ready for implementation as soon as the contestation for our scarce resources,
by key national priority areas, has ebbed o ut. Where immediate implementation is
reasonably practicable it would arguably serve us well to act. And that process would
hopefully extend to the possible recognition and equal development of all spoken
languages of the First Nation people.



FRONEMAN J (Cameron J concurring):


[64] It is always a pleasure to read the
elegant and persuasive judgments of my
brother Cameron J. His judgment here
(first judgment) is no exception. I
concur in its reasoning and outcome.
The first reason for doing so is that w e
are, of course, bound by this Court’s
judgment in AfriForum CC on which the
first judgment builds. My separate
concurrence does not question the legal
reasoning underlying the first
judgment’s adherence to AfriForum CC,
nor the legal reasoning of AfriForum CC
itself. Judicial precedent is a
fundamental aspect of the rule of law. 72
This binding precedent is buttressed by
Dit is altyd ‘n voorreg om my
ampsbroeder, Cameron R, se elegante en
meevoerende uitsprake te lees. Weereens
is dit geen uitsondering nie. Ek stem
saam met die eerste uitspraak se
redevoering en uitslag. Die eerste rede
daarvoor is natuurlik dat ons geb onde is
aan hierdie Hof se uitspraak in
AfriForum CC, waarop die eerste
uitspraak voor tbou. My afsonderlike
uitspraak bevraagteken nie die
onderliggende regsbeginsels van die
eerste uitspraak se bevestiging en
ondersteuning van AfriForum CC nie.
Regspresedent is grondliggend tot ’ n
regstaat en die legaliteitsbeginsel.72 Maar

72 Turnbull-Jackson v Hibiscus Coast Municipality [2014] ZACC 24; 2014 (6) SA 592 (CC); 2014 (11) BCLR
1310 (CC) at paras 54-6.
FRONEMAN J
28
recognising that, substantively, South
Africa’s history and current inequality
entail that the white Afrikaans-speaking
minority, because of its historically and
currently p rivileged position, cannot
exact the same treatment as historically
disadvantaged minorities. 73 The
substantive advantages the
Afrikaans-language minority has
generally enjoyed, in contradistinction
to other linguistic minorities, makes this
inevitable.

hierdie bindende regspresedent word
ondersteun deur die substantiewe
erkenning dat ons Suid -Afrikaanse
geskiedenis en huidige ongelykheid
beteken dat wit Afrikaanssprekendes nie
dieselfde behandeling as voorheen
benadeelde taalminderheidsgroepe kan
verwag nie.73 Die wesenlike voordele wat
Afrikaanssprekendes geniet het in
teenstelling met ander taalminderhede
maak dit onvermydelik.

[65] Why, then, a s eparate
concurrence? Simply put it is because,
looking to the future, I believe a
cautionary tale is needed.

Waarom ‘n afsonderlike instemmende
uitspraak? Omdat, eenvoudig gestel, die
pad vorentoe ‘n waarskuwing inhou.

[66] The first judgment candidly
declares that “[e]ndorsing the
University’s 2016 Language Policy as
conforming with section 29(2) comes at
a cost. Our judgment must acknowledge
it”.74 It recognises that the “flood-tide of
English” is a real threat to minority
languages, including Afrikaans. 75 It
Die eerste uitspraak verklaar rondborstig
dat “[e]ndorsing the University’s 2016
Language Policy as conforming with
section 29(2) comes at a cost. Our
judgment must necessarily acknowledge
it”.4 Dit erken dat die vloedgolf van
Engels ‘n daadwerklike risiko inhou vir
minderheidstale as onderrigtale,

73 Tshwane City v AfriForum [2016] ZACC 19; 2016 (6) SA 279 (CC); 2016 (9) BCLR 1133 (CC) at para 120
and AfriForum CC above n 25 at para 134.
74 First judgment at [47].
75 Id at [48]:
“The flood-tide of English risks jeopardising the precious value of our entire linguistic heritage.
Gelyke Kanse is entitled to invoke that risk. This is because the march of history both in South
FRONEMAN J
29
proceeds then to state that this risk is not
Stellenbosch University’s burden, nor is
the fact that Afrikaans has all but
vanished as a language of instruction at
other tertiary institutions. 76 I think it
may be helpfu l for the future if we
explore what that cost is and who will
have to bear the burden of carrying it.

insluitend Afrikaans. 5 Dit is nie die
Universiteit van Stellenbosch se las nie,
so ook nie die feitlike v erdwyning van
Afrikaans van ander têrsiêre instellings
nie.6 Ek dink dit sal waardevol vir die
toekoms wees om na te gaan wat die
gevolge is en wie uiteindelik die las
daarvan sal dra.

[67] The structure I will follow to do
this is first to—
(a) set out my understanding of
the su bstantive justification
in AfriForum CC and the first
judgment for the use of
different models of language
instruction at tertiary
education level; and then
(b) translate the impact of that
into the practical effect it has
on different language
speakers at Stellenbosch
University and nationally.
On the basis of this analysis , I will then
attempt to tease out the cost our
Die werkswyse sal wees om eers—
(a) my siening van die substantiewe
regverdiging vir die gebruik
van verskillende taalonderrig
modelle op têrsiêre vlak in
AfriForum CC en die eerste
uitspraak uiteen te sit; en dan
(b) die impak daarvan op
verskillende taalsprekers by
die Universiteit van
Stellenbosch en verder
landswyd in praktiese terme te
verduidelik.
Op grond van hierdie analise sal ek dan
die gevolge van ons regspraak oor
taalkeuse onder die Grondwet probeer

Africa and globally seems relentlessly hostile to minority languages, including Afrikaans, which
is the mother-tongue of some seven million on a planet inhabited by seven billion people.”
76 Id at [49]:
“[T]hat is not the University’s burden, as little is the fact that Afrikaans has all but vanished at
other tertiary institutions, barring only one other. And the dilemma the global march of English
poses is not the question before the Court. Yet we should not miss the cost that the diminution
of Afrikaans at Stellenbosch entails not only for Gelyke Kanse and its adherents, but for our
world, and for ourselves.”
FRONEMAN J
30
jurisprudence on language choice under
the Constitution exacts – and on whom
the burden of carrying that cost will fall.

ontrafel – en ondersoek doen oor wie dan
die las daarvan sal dra.

Substantive justification Substantiewe regsverdiging
[68] The underlying rationale for the
outcome that both AfriForum CC and
the first judgment articulate is that the
use of Afrikaans as a medium of
instruction leads to the exclusion or
stigmatisation of black students. 77
Because most Afrikaans -speaking
students are proficient in English, but
black students are not co -equally
proficient in Afrikaans, policies that
favour English as medium of instruction
are judged normatively reasonable. 78
This emerges from the context of the
historical and current institutional
privileges that white Afrikaans-speakers
enjoyed and still enjoy.79

Beide AfriForum CC en die eerste
uitspraak druk die onderliggende rede vir
die uitslag uit as een waar die gebruik van
Afrikaans as onderrigmedium daartoe lei
dat swart studente gestigmatiseer word. 77
Omdat meeste Afrikaanssprekende
studente Engels magtig is, maar swart
studente nie eweneens Afrikaans magtig
is nie, word ‘n taalbeleid wat voorkeur
aan Engels as onderrigmedium verleen as
normatief redelik geag.78 Dit volg uit die
konteks van histories e en huidige
institusionele voorregte wat wit
Afrikaanssprekendes geniet het en steeds
geniet.79

[69] This justification has an
entailment. It exacts an inexorable price
from any form of language instruction
where Afrikaans is sought to be used.

Hierdie regverdiging het gevolge. Daar is
‘n onverbiddelike prys wat betaal moet
word vir enige vorm van taalonderrig in
Afrikaans.


77 Id at [30] and [40] and AfriForum CC above n 25 at para 62.
78 See the discussion of “reasonableness” in AfriForum CC above n 25 at para 53.
79 Id at para 2.
FRONEMAN J
31
[70] It is most obvious in the provision
of single-medium Afrikaans instruction
where that automatically results in the
exclusion of b lack students. The same
applies to dual -medium instruction,
where the need to have Afrikaans
lectures translated into English for black
students leads to their stigmatisation.

Die mees voor -die-hand-liggende
voorbeeld is enkel -medium Afrikaanse
onderrig wat outomaties uitsluiting van
swart studente tot gevolg het. Dieselfde
geld vir dubbel -medium Afrikaanse
onderrig waar die vertaling van
Afrikaanse lesings in Engels tot die
stigmatisering van swart studente lei.

[71] That leaves parallel -medium
instruction. Some may argue that the
AfriForum CC finding that parallel -
medium instruction inevitably results in
segregation and, with it, indirect
discrimination,80 finds application even
where brown or coloured learners are
segregated from black learners. 81 The
first judgment avoids this conclusion, 82
but instead finds normative justification
for deviating from full parallel -medium
instruction on reasonable cost -related
impracticability grounds.83


Wat oorbly is parallel -medium onderrig.
Dit kan geargumenteer word dat die
AfriForum CC formulering – dat
parallel-medium onderrig onvermydelik
segregasie meebring, en daarmee saam
ook indirekte diskriminasie, 80 ook geld
waar bruin studente geskei word van
swart studente. 81 Die eers te uitspraak
ontduik hierdie afleiding 82 deur eerder
normatiewe regverdiging vir die
afwyking van volle parallel -medium
onderrig te vind in redelike koste -gerigte
praktiese uitvoerbaarheidsgronde.83


80 Id at paras 75-6.
81 Compare Bishop “ The Challenge of Afrikaans Language Rights in South African Education” in Fredman,
Campbell and Taylor (eds) Human Rights and Equality in Education: Comparative Perspectives on the Right to
Education for Minorities and Disadvantaged Groups (Policy Press, Bristol 2018) at 88.
82 First judgment at [44] to [45].
83 Id at [40] to [41].
FRONEMAN J
32
Practical effect Praktiese effek
[72] In practical terms, this normative
justification means that at
Stellenbosch—
(a) all first -language English -
speakers who so choose will
receive instruction in English at
both graduate and post-graduate
level;
(b) all second -language English -
speakers who also choose
English will receive instruction
in English at graduate and post -
graduate level;
(c) first-language Afrikaans -
speakers who choose Afrikaans
will receive a diminished form
of Afrikaans instruction, in
varying degrees, and otherwise
in English at graduate level. At
post-graduate level they will
receive instruction only in
English; and
(d) first-language siXhosa-speakers
who wish to choose isiXhosa
will not be able to do so, but
may be progressively assisted in
that language as the 2016
Language Policy develops.

In praktiese terme beteken dit dat op
Stellenbosch—
(a) alle eerstetaal Engels -
sprekendes wat dit verkies,
voor- en nagraadse onderrig in
Engels sal ontvang;
(b) alle tweedetaal Engels -
sprekendes wat dit verkies,
voor- en nagraadse onderrig in
Engels sal ontvang;
(c) eerstetaal Afrikaans-
sprekendes wat Afrikaans
verkies, sal voorgraads
afgewaterde onderrig in
Afrikaans in verskillende
variasies ontvang. Andersins
sal dit in Engels wees. Op
nagraadse vlak sal hulle
onderrig slegs in Engels
ontvang; en
(d) eerstetaal siXhosasprekendes
wat isiXhosa verkies sal nie
die geleentheid gebied word
om dit te doen nie, maar sal op
progressiewe wyse bygestaan
word in daardie taal soos die
2016 Beleid ontwikkel.
FRONEMAN J
33
[73] First-language English -speakers
are mostly white peopl e; first-language
Afrikaans-speakers are mostly white
and brown people; first -language
siXhosa-speakers are mostly black
people; and second -language English
speakers comprise black, brown and
white people. 84 In the Western Cape,
first-language Afrikaans -speakers
constitute almost exactly half of the
provincial population (49.6%) while
first-language siXhosa -speakers
constitute one quarter (24.7%) and
English-speakers only one fifth
(20.2%).85

Eerstetaal Engelssprekendes is meestal
witmense; eerstetaal Afri kaans-
sprekendes is meestal wit- en bruinmense;
eerstetaal siXhosa -sprekendes is meestal
swartmense en tweedetaal
Engelssprekendes sluit swart -, bruin - en
witmense in. 84 In die Wes -Kaap
verteenwoordig eerstetaal
Afrikaanssprekers amper helfte van die
bevolking (49.6%), eerstetaal siXhosa -
sprekendes amper ‘n kwart (24.7%) en
eerstetaal Engelssprekendes slegs ‘n
vyfde (20.2%).85

[74] This situation is replicated
countrywide:
(a) All first -language English -
speakers who choose English
will receive instruction in
English at both graduate and
post-graduate level at any
university in South Africa;
(b) All second -language English -
speakers who also choose
English will receive
instruction in English at
Hierdie stand van sake word land swyd
herhaal:
(a) Alle eerstetaal Engels -
sprekendes wat dit verkies,
kan voor - en nagraadse
onderrig in Engels ontvang by
enige universiteit in Suid -
Afrika;
(b) Alle tweedetaal Engels -
sprekendes wat dit verkies,
kan voor - en nagraadse
onderrig in Engels ontvang by

84 I use these terms (black, brown and white people) because that is still how our demographics are described in
legislation and in the University’s policy documents, despite our Constitution’s non-racial aspirations.
85 See Statistics South Africa Census 2011 Provincial Profile: Western Cape (Report No. 03-01-70, 2014) at 26.
FRONEMAN J
34
graduate and post -graduate
level at any university in South
Africa;
(c) First-language Afrikaans -
speakers who choose
Afrikaans will receive a
diminished form of instruction
at Stellenbosch University in
Afrikaans and instruction in
Afrikaans with English
interpretation at the
Potchefstroom campus of the
North-West University;86 and
(d) First-language speakers of
other indigenous African
languages who wish to choose
their language as a medium of
instruction will not be able to
do so at any university, except
to the limited extent that these
universities may offer
assistance to them in their own
language to supplement the
main English language
medium of instruction.

enige universiteit in Suid -
Afrika;
(c) Eerstetaal Afrikaans -
sprekendes wat Afrikaans
verkies, sal by die Universiteit
van Stellenbosch afgewaterde
onderrig in Afrikaans ontvang
en onderrig in Afrikaans met
Engelse vertaling by die
Potchefstroom kampus van die
Noordwes Universiteit;86 en
(d) Eerstetaalsprekendes van
enige ander inheemse Afrika -
tale wat onderrig daarin
verkies sal nie die geleentheid
gebied word om dit by enige
universiteit te doen nie,
behalwe tot die beperkte
omvang wat enige van hierdie
universiteite hulp in hul eie
taal mag aanbied om die
Engelse onderrigmedium beter
onder die knie te kry.

[75] One does not need international
studies, of which there are many, 87 to
Mens benodig nie internasionale studies
nie, waarvan daar vele is, 87 om te besef

86 See North -West University “Multilingualism”, available at http://www.nwu.ac.za/content/nwu-
multilingualism.
87 See, for example, Phillipson Linguistic Imperialism (Oxford University Press, Oxford 1992).
FRONEMAN J
35
realise that this state of affairs
entrenches English as the dominant
language not only in tertiary education,
but also, as we will see, from primary
through secondary school to universi ty.
Opinions may differ on whether this is a
good or bad thing, but it seems strange
for this Court, the ultimate protector of
minority language rights under the
Constitution, to give its blessing to this
result.

dat hierdie stand van sake Engels as
dominante taal bevestig, nie net op
têrsiêre vlak nie, maar, soos ons sal sien,
ook vanaf laerskool na hoërskool tot by
universiteit. Menings mag wissel oor die
wysheid hiervan, maar dit is seer
eienaardig dat hierdie Hof, die
uiteindelike bewaker van
minderheidstaalregte ingevolge die
Grondwet, sy goedkeuring daaraan gee.

Burdens and benefits Laste en voordele
[76] Cameron J speaks of the “racial
edge” to all of this in relation to white
Afrikaans-speakers.88 But the “racial
edge” has some further, and rather
surprising, consequences too. The first
is that the other main beneficiaries – and
bearers – of our colonial and apartheid
past, white English -speakers, come out
tops (and t hus linguistically unscathed)
as far as choice of language of
instruction is concerned. The second is
that English second -language speakers
who have the best chance of becoming
academically proficient in English at
tertiary level are those who can afford to
attend private, independent English
Cameron R praat van die rasse -byt
(“racial edge”) wat hierdie het met
betrekking tot wit Afrikaans -
sprekendes.88 Hierdie rasse -aspek het
egter ook ander, soms verrassende,
gevolge. Die eerste is dat die ander mede-
bevoorregtes en -draers van ons koloniale
en apartheidsgeskiedenis, wit
Engelssprekendes, heelhuids daarvan
afkom (met hul taalregte ongeskaad) wat
die uitoefening van taalonderrigkeuse
betref. Die tweede is dat diegene wat die
beste kans staan om akademies in Engels
as ‘n tweede taal oor die weg te kom, juis
persone sal wees wat dit kan bekostig om
skoolonderrig te ontvang by onafhanklike

88 First judgment at [27].
FRONEMAN J
36
schools or previously privileged public
schools.89 These “newly” educationally
privileged English second -language-
speakers include black, white and brown
people whose mother tongue is any of
the other official languag es, including
Afrikaans.90

Engelse privaatskole of voorheen
bevoorregte openbare skole. 89 Hierdie
‘nuut’ opvoedkundig bevoorregte
Engelse tweedetaalspreker s sluit swart -,
wit- en bruinmense in wie se moedertaal
enige van die ander amptelike tale,
Afrikaans inkluis, is.90

[77] The third, and most troubling,
consequence is that those mainly black
and brown people from the lowest socio-
economic rung who attend und er-
resourced and poorly staffed schools in
rural and marginalised urban
communities, will suffer most from
effectively having their language of
instruction being limited to English. Not
only do they receive inadequate mother-
tongue education when they sta rt their
education, but the education that they
receive in English is also often of a poor
quality.91

Die derde, mees kommerwekkende,
gevolg is vir die hoofsaaklik swart en
bruin mense op die laagste sosio -
ekonomiese skaal van ons samelewing.
Hulle woon die swakste toegeruste skole
by, beide in befondsing en personeel, in
die landelike en stedelik
gemarginaliseerde gemeensk appe en
word die meeste benadeel deur slegs
Engels as hul keuse van onderrig. Hulle
ontvang onvoldoende moeder -
taalonderrig wanneer hulle hul opvoeding
begin en die Engelse onderrig is ook
dikwels van ‘n swak gehalte.91

[78] The evidence before us shows
that Afrikaans is the home language of a
significant proportion of brown people
Volgens die getuienis op rekord is
Afrikaans die moedertaal van ‘n
beduidende gedeelte van bruinmense in

89 See Spaull “Poverty and Privilege: Primary School Inequality in South Africa” (2013) 33 International Journal
of Educational Development 436 at 437 -8 and Van der Berg “Apartheid’s Enduring Legacy: Inequ alities in
Education” (2007) 16 Journal of African Economies 849 at 853 and 859-860.
90 See Soudien “‘Constituting the Class’: An Analysis of the Process of ‘Integration’ in South African Schools”
in Chisholm (ed) Changing Class: Education and Social Change in Post-Apartheid South African Schools (HSRC
Press, Cape Town 2004) at 89.
91 See Spaull above n 89 at 438.
FRONEMAN J
37
in the Western Cape (and also the
Northern Cape). It also shows that they
are predominantly working-class people
and that many of them are not proficient
in English. Statistically they are the
smallest of all population groups
proceeding to tertiary education .92
Poverty means that it is more difficult
for them than for most even to aspire to
tertiary education. And if they do get
that far, they have only one university to
go to in the Western Cape where
Afrikaans may be chosen as a medium
of instruction.93 Now, when they arrive
at Stellenbosch, they will find that their
choice of medium of instruction is not as
comprehensive as those more privileged
students who choose English. The grim
message that seems to be sent to this
segment of extremely marginalised
brown people , is that, if they are be
accommodated, they need to grow out of
poverty and learn English fast.

die Wes -Kaap (asook in die Noord -
Kaap). Dit toon ook aan dat hulle
hoofsaaklik van die werkersklas
afkomstig is en dat baie van hulle nie
Engels magtig of vlot daarin is nie.
Statisties gesproke is hulle die
bevolkingsgroep met die kleinste
verteenwoordiging in têrsiêre
opvoeding.92 Armoede beteken dat dit vir
hulle moeiliker is om bloot net te aspireer
na têrsiêre onderrig as vir meeste andere.
As hulle ooit so ver sou kom, is daar net
een universiteit in die Wes -Kaap waar
Afrikaans nog gekies kan word as
medium van onderrig. 93 Wanneer hulle
nou daar sou aankom, sal hulle vind dat
hul keuse van Afrikaans as medium van
onderrig nie so omvattend is as die meer
bevooregte student wat Engels kies nie.
Die bitter waarheid is dat hul armoede en
agterstand in Engels hulle selfs slegter af
laat.


92 See Statistics South Africa Education Series Volume III: Educational Enrolment and Achievement, 2016
(Report No. 92 -01-03, 2017) at 16 and 49 and Department of Higher Education and Training Post–School
Education and Training Monitor: Macro–Indicator Trends (March 2019) at 27.
93 Under apartheid, the University of the Western Cape (UWC) was initiated as an Afrikaans university for brown
people but the ideological premises of this plan were undermined when, increasingly, black students started
attending it and the medium of instruction changed to English. It eventually, under Vice-Chancellor Jakes Gerwel,
turned apartheid intentions further on their head by becoming a self-styled “university of the left”. See Antia and
Van der Merwe “Speaking with a Forked Tongue about Multilingualism in the Language Policy of a South African
University” (2019) 18 Language Policy 407 at 410 -1 and Bassey “University Multilingualism: A Critical
Narrative from the University of the Western Cape, South Africa” (2015) 36 Journal of Multilingual and
Multicultural Development 571 at 572 and 574-5.
FRONEMAN J
38
[79] There is something deeply
disturbing and wrong about this. What
are the comparative numbers of this
segment of brown people in
contradistinction to those black Africans
who felt or were excluded by the
application of dual medium instruction
at Stellenbosch University? The
evidence on record is not clear. Nor was
this at the centre of Gelyke Kanse’s
constitutional challenge to the 2016
Language Policy . But common sense
inference indicates that it is a significant
problem, and not only for the people
concerned, but for all marginalised and
poor people whose home language is not
English.

Dit is ’ n diep ontstellende onreg. Wat is
die vergelykende hoeveelheid mense in
hierdie groep bruinmense teenoor daardie
swartmense wat uitgesluit was, of
uitgesluit gevoel het, deur die toepassing
van dub bel-medium onderrig by
Stellenbosch? Die prentjie is nie duidelik
op die stukke nie. Dit was ook nie die
middelpunt van Gely ke Kanse se
grondwetlike aanval op die 2016 Beleid
nie. Maar gesonde verstand dui aan dit is
‘n wesenlike probleem, nie net vir d ie
betrokke persone nie, maar vir alle
gemarginaliseerde en arm mense met ‘n
moeder- of huistaal wat nie Engels is nie.

[80] Nor is this only a local problem.
It is an international one, mainly with
regard to the dominance of English, but
also in relation to other colonial
languages like French, Spanish and
Portuguese.94 It is also a very specific
post-colonial problem in Africa, 95 not
only South Africa. Commenting on the
Dit is ook nie bloot ‘n plaaslike probleem
nie. Dit is ‘n internasionale probleem,
hoofsaaklik gespits op die dominansie
van Engels, maar ook met betreeking tot
ander koloniale tale soos Frans, Spaans en
Portugees.94 Voorts is dit ook ‘n
besondere post -koloniale probleem in
Afrika,95 nie slegs in Suid-Afrika nie. In
‘n onlangse studie oor die

94 Kamwangamalu Language Policy and Economics: The Language Question in Africa (Palgrave Macmillan,
London 2016) at ix.
95 See Mazrui “The World Bank, the Language Question and the Future of African Education” (1997) 38 Race &
Class: A Journal for Black and Third World Liberation 35 and Ermelo above n 15 at para 50 and works cited in
fn 30.
FRONEMAN J
39
alarming rate of illiteracy in various
African countries, a recent study noted:

“In so-called Anglophone,
Francophone, and Lusophone
Africa, the prominence given
to English, French and
Portuguese respectively has
rendered African languages
instrumentally virtually
valueless. What is at issue . . .
is whether it can be deemed
appropriate and economically
justifiable to devote so many
resources to education through
the medium of a foreign
language such as English, for
instance, especially since
centuries of experimentation
with Western education has not
resulted in mass literacy
development in the African
continent.”96


kommerwekkende graad van
ongeskooldheid in verskeie Af rika lande
merk die skrywer op:

“In so -called Anglophone,
Francophone, and Lu sophone
Africa, the prominence given to
English, French and Portuguese
respectively has rendered
African languages
instrumentally virtuall y
valueless. What is at issue . . . is
whether it can be deemed
appropriate and economically
justifiable to devote so many
resources to education through
the medium of a foreign
language such as English, for
instance, especially since
centuries of experimentation
with Western education has not
resulted in mass literacy
development in the African
continent.”96

[81] Studies have shown that mother -
tongue-based education, generally and
in the more particular form of mother -
tongue-based multilingual education ,
develops the necessary skills of children
for cognitive language proficiency and
interpersonal communicative skills
Studies toon aan dat die noodsaaklike
vaardighede vir kognitiewe
taalkundigheid en interpersoonlike
kommunikasie beter ontwikkel onder
moedertaalonderrig, in die algemeen en in
die besondere vorm van moedertaal
gebaseerde multi-taal onderrig.97

96 Kamwangamalu above n 94 at 72.
FRONEMAN J
40
better than when they have to learn these
in a language not known to them.97

[82] The scientific literature suggests
that, for mother -tongue-based
multilingual education to be effective, it
needs at least six years of teaching in the
primary language, together with the
second language as a subject to be
learned in order for an eventual
transition to tuition in that second
language in some subjects.98 But that is
not the norm in Africa nor in our
southern part of it.99 Why not?

Wetenskaplike literatuur toon aan dat
effektiewe moedertaal gebaseerde multi -
taal onderrig minstens ses jaar se onderrig
in die moedertaal verg, tesame met die
tweede taal as die vak wat aangeleer moet
word vir die moontlike oorskakeling
daarna vir sekere akademiese
vakrigtings.98 Dit is egter nie die norm in
Afrika nie en ook nie in ons suidelike deel
daarvan nie.99 Hoekom nie?

[83] Some ascribe it to elitism:

“Often, although individuals
vote for the promotion of a
national language . . . in their
personal lives they act in a way
that subverts that vote. In
many cases, they enrol their
children in schools where
access to the former colonial
Sommige skryf dit toe aan elitisme:

“Often, although individuals
vote for the promotion of a
national language . . . in their
personal lives they act in a way
that subverts that vote. In many
cases, they enrol their children in
schools where access to the
former colonial language is

97 Id at 109. See further Spaull “Disentangling the Language Effect in South African Schools: Measuring the
Impact of ‘Language of Assessment’ in Grade 3 literacy and numer acy” 2016 (6) South African Journal of
Childhood Education 1 and Taylor and Von Vintel “Estimating the Impact of Language of Instruction in South
African Primary Schools: A Fixed Effects Approach” (2016) 50 Economics of Education Review 75.
98 Kamwangamalu above n 94 at 109.
99 Id at 112. As Taylor and Von Vintel above n 97 at 76 observe, the choice of language of instruction in South
African schools is left to School Governing Bodies but the prevailing practice, which is encouraged by national
and provincial departments of education, is that most schools in which the majority of pupils are not English- or
Afrikaans-speaking opt to use mother-tongue tuition in grades 1-3, and then transition to English as the language
of instruction in grade 4. Spaull above n 97 at 5 shows that while roughly one third of students learn in English
or Afrikaans in grades 1-3, this figure increases dramatically to 99% in grade 4.
FRONEMAN J
41
language is ensured and, at the
same time, demand equal
favour for their vernacular. In
the sardonic words of the
Tunisian general secretary of
secondary public education,
‘We do not cease to repeat
‘Arabization, Arabization,’ all
the while sending our children
to the [Fren ch private school
system].”100
And:

“[T]he behaviour of the elite
speaks more loudly than their
tiresome demonstrations of the
alleged cognitive and
intellectual benefits of early
mother-tongue education. The
duplicity of language planners
has caused the elite who are not
involved in the language
industry to be sceptical,
ambivalent, apathetic, or even
hostile to the use of African
languages in education. This,
in turn, has hardened the
resolve of parents against
mother-tongue education in
many French -speaking
countries.”101
ensured and, at the same time,
demand equal favour for their
vernacular. In the sardonic
words of the Tunisian general
secretary of secondary public
education, ‘We do not cease to
repeat ‘Arabization,
Arabization,’ all the while
sending our children to the
[French private school
system].”100
En:

“[T]he behaviour of the elite
speaks more loudly than their
tiresome demonstrations of the
alleged cognitive and intellectual
benefits of early mother tongue
education. The duplicity of
language planners has caused the
elite who are not involved in the
language industry to be
sceptical, ambivalent, apathetic,
or even hostile to the use of
African languages in educat ion.
This, in turn, has hardened the
resolve of parents against mother
tongue education in many
French-speaking countries.”101


100 Laitin Language Repertoire and State Construction in Africa (Cambridge University Press, Cambridge 1992)
at 69, as cited in Kamwangamalu above n 94 at 139.
101 Koffi Paradigm Shift in Language Planning and Policy – Game Theoretic Solutions (De Gruyter Mouton,
Boston 2012) at 13, as cited in Kamwangamalu above n 94 at 139. In Ermelo above n 15 at para 50 ,
Moseneke DCJ referred to the “collateral irony” that learners—
FRONEMAN J
42

[84] In South Africa, there is a further
reason for the turn away from
mother-tongue education. The apartheid
system “used promotion of the mother -
tongue principle, specifically the
advancement of the indigenous
languages as subject and medium of
instruction, as a central instrument of the
policy of divide and rule ”.102 And the
1976 Soweto school uprisings still
resonate deeply in our national psyche.

In Suid-Afrika is daar ‘n verdere rede om
die rug te draai op moedertaalonderrig.
Die apartheidstelsel “used promotion of
the mother tongue principle, specifically
the advancement of the indigenous
languages as subject and medium of
instruction, as a central instrument of the
policy of divide and rule”.102 En die 1976
Soweto skoolopstande raak steeds diep
aan ons nasionale bewussyn.

[85] So to change the perception of
mother-tongue education in this country
to one cleansed of the stigma of
apartheid will be a difficult task. But if
we are ever to get past name -calling,
and, indeed, past the past, one must
become able to assess current
inequalities anew. There is a dire
inequality in the quality of education
received by less -resourced and
marginalised people in rural areas and
less-resourced urban townships. Many
Om ontslae te raak van die stigma van
apartheid in die persepsie van
moedertaalonderrig in ons land sal ‘n
gedugte taak wees. Maar as ons ooit
verby moddergooi wil kom, inderdaad
verby ons verlede wil kom, is dit
noodsaaklik om huidige ongelykhede met
nuwe oë te bekyk. Daar is ‘n gruwelike
ongelykheid in die graad van opvoeding
wat onderbefondse en uitgeslote mense in
landelike en minder gegoede stedelike
woonbuurte ontvang. Daar is baie wat

“whose mother tongue is not English, but rather one of our indigenous languages, together with
their parents have made a choice to be taught in a language other than their mother tongue. This
occurs even though it is now well settled that, especially in the early years of formal teaching,
mother tongue instruction is the foremost and the most effective medium of imparting
education.”
102 Barkhuizen and Gough “Language Curriculum Development in South Africa: What Place for English?” (1996)
30 TESOL Quarterly 453-4. See also De Klerk “Mother -Tongue Education in South Africa: The Weight of
History” (2002) 154 International Journal of the Sociology of Language 29.
FRONEMAN J
43
contend that initial lengthier
mother-tongue multilingual education
would leave them better off, but that this
is denied them.103 They are thus obliged
to make do with English language
instruction from a very early stage in
their education.

aanvoer dat langer aanvanklike
moedertaalonderrig hul benarde posisie
sal verbeter, maar dit is steeds hul nie
beskore nie. 103 Hulle moet dus genoeë
daarmee neem om in Engels taalonderrig
te ontvang vanaf ‘n uiters vroeë stadium.

[86] It is a hard and uncomfortable
truth, but the English education young
people in this position receive is
generally of a lower standard than what
more privileged children in private high-
fee schools and better -resourced urban
public schools receive. 104 And because
of their marginalisation they carry less
political clout to alleviate their situation.
So the cycle of marginalisation
continues, and is reinforced. For them,
the “choice” of Engli sh as medium of
instruction at all levels, from primary to
tertiary education, is not free but forced
and the outcome bleak. Diminishing the
Afrikaans offering at one of the two
universities that still provides it will be
cold comfort.

Dit is ‘n harde e n ongenaakbare
werklikheid, maar die Engelse opvoeding
wat jong kinders in hierdie posisie
ontvang is in die algemeen van ‘n
swakker gehalte as wat meer bevoorregte
kinders in onafhanklike privaatskole en
beter toegeruste stedelike openbare skole
ontvang.104 En as gevolg van hul
uitsluiting verminder hul direkte politieke
mag om die toedrag van sake te verander.
So gaan die siklus van marginalisering
dus voort en w ord dit al hoe dieper
gevestig. Vir hulle is die ‘keuse’ van
Engels as medium van onderrig nie
vrywillig nie, maar geforseerd, en die
vooruitsigte skraal. Verskraling van die
Afrikaanse aanbieding by een van die
twee universiteite waar dit nog aangebied
word, sal bitter min vir hulle help.


103 See Brock-Utne “Language of Instruction and Student Performance: New Insights from Research in Tanzania
and South Africa” (2007) 53 International Review of Education 509 at 526.
104 Spaull above n 89 at 438.
FRONEMAN J
44
[87] What is lost when one’s language
is lost? Let others speak.

Ngũgĩ wa Thiong’o:

“Language as communication
and as culture are then products
of each other. Communication
creates culture: culture is a
means of communication.
Language carries culture, and
culture carries, particularly
through orature and literature,
the entire body of values by
which we come to perceive
ourselves and our place in the
world. How people perceive
themselves and affects how they
look at their culture, at their
places politics and at the social
production of wealth, at their
entire relationship to nature and
to other beings. Language is thus
inseparable from ourselves as a
community of human beings
with a specific form and
character, a specific history, a
specific relationship to the
world.”105

Breyten Breytenbach:

Wat verloor ons as ‘n t aal vergaan? Laat
andere praat.

Ngũgĩ wa Thiong’o:

“Language as communication
and as culture are then products
of each other. Communication
creates culture: culture is a
means of communication.
Language carries culture, and
culture carries, particularly
through orature and literature,
the entire body of values by
which we come to perce ive
ourselves and our place in the
world. How people perceive
themselves and affects how they
look at their culture, at their
places politics and at the social
production of wealth, at their
entire relationship to nature and
to other beings. Language is
thus inseparable from ourselves
as a community of human beings
with a specific form and
character, a specific history, a
specific relationship to the
world.”105

Breyten Breytenbach:


105 Ngũgĩ wa Thiong’o Decolonising the Mind: The Politics of Langua ge in African Literature (James Currey,
London 1986) at 16.
FRONEMAN J
45
“Taal is mens en mens is taal.
Afrikaans is die lewende en
veranderende en
andersmakende uitvloeisel van
uiteenlopende en by tye
botsende geskiedenisse.
Hierdie diverse oorspronge
gekenmerk deur aanpass ing,
verowering, onderdrukking,
oorlewing, weerstand en
omvorming – afkomstig uit
Europese dialekte, Maleis,
Portugees, seemanstaal, Khoi
tale, Arabiese Afrikaans, die
Koran en die Bybel, die howe
en kerke en kombuise en
wingerde en fabrieke – het
gemaak d at Afrikaans ‘n
unieke hibridisering vergestalt
as Kreoolse taal wat by uitstek
die verwoording is van die
komplekse wêreld waarin ons
beweeg.”106

“Taal is mens en mens is taal.
Afrikaans is die lewende en
veranderende en andersmakende
uitvloeisel van uiteenlopende en
by tye botsende geskiedenisse.
Hierdie diverse oorspronge
gekenmerk deur aanpassing,
verowering, onderdrukking,
oorlewing, weerstand en
omvorming – afkomstig uit
Europese dialekte, Maleis,
Portugees, seema nstaal, Khoi
tale, Arabiese Afrikaans, die
Koran en die Bybel, die howe en
kerke en kombuise en wingerde
en fabrieke – het gemaak dat
Afrikaans ‘n unieke
hibridisering vergestalt as
Kreoolse taal wat by uitstek die
verwoording is van die
komplekse wêreld w aarin ons
beweeg.”106

[88] Without your own language,
culture is lost, a sense of self is lost. And
once that happens, diversity is lost. We
will lose the belief set out in the
Sonder ‘n eie taal is deel van ons kultuur
verlore, ons gewaarwording van onsself
vernietig. En as dit gebeur, word
diversiteit verloor. Ons verloor dan die

106 Breyten Breytenbach’s Supporting and Expert Affidavit in this matter, contained in volume 12 of the Afrikaans
record, page 1387 at para 8. The passage can be translated as follows:
“Language is humanity and humanity is language. Afrikaans is the living and changing and
change-making outcome of diverging and at times conflicting histories. These diverse origins
characterised by adaptation, conquest, subjugation, oppression, survival, resistance ,
transformation – descended from European dialects, Malay, Portuguese, seafarer language,
Khoi languages, Arabic Afrikaans, the Qur’an and the Bible, the courts and churches and
kitchens and hospitals and vineyards and factories of our country – have made Afrikaans a
unique hybridisation that finds unity as a Creole language which is the verbalisation of the
complex world in which we move.”
FRONEMAN J
46
Preamble of the Constitution “that South
Africa belongs to all who live in it,
united in our diversity”.


geloof verwoord in die aanhef tot die
Grondwet dat Suid-Afrika aan almal wat
hier leef behoort, verenig in ons
diversiteit.

[89] It really is not obscure. It is about
being comfortable in one’s own skin.
Anywhere and everywhere. Amongst
your family and friends, talking the
language you love. Going to a shop and
expecting courtesy if you hope to be
served in your language. And if that
cannot be, to be courteous and friendly
in explaining why you wanted it in the
first place. And if someone else talks to
you in a language with which you are
unfamiliar, to apologise and say you’ll
try to do better next time.

Dit is regtig eenvoudig. Dis om gemaklik
met jou eie self te wees. Enige plek en
orals. Om tussen familie en vriende die
taal te praat wat ons liefhet. Om winkel
toe te gaan en beskaaf dheid te verwag as
jy hoop om in jou taal bedien te word. En
as dit nie moontlik is nie, om beskaafd en
vriendelik te verduidelik waarom jy
daarvoor gehoop het. En as iemand met
jou praat in ‘n taal praat wat jy nie magtig
is nie, om verskoning te maak e n te sê jy
hoop om volgende keer beter te kan doen.

[90] But also, and as importantly, in
the public life of our country , t here
should be no need to apologise or feel
embarrassed when you speak or write in
your own language, an official language
of our countr y. All of us must learn to
do it in a way that minimises the
exclusion of others, but it should not
mean that we are silenced from speaking
it, writing, using it, as long as we make
sure, to the best of our abilities, that we
include others when we do so.
Net so belangrik, ook so in die openbare
lewe van ons land. Daar behoort geen
rede te wees vir enigeen om verskoning te
maak of ongemaklik te voel as jy praat of
skryf in jou eie taal, ‘n amptelike taal van
ons land, nie. Ons moet almal leer om dit
te doen op ‘n manier wat die uitsluiting
van andere verminder, maa r dit beteken
nie ons word die swye in ons praat, ons
skrywe, ons gebruik daarvan, opgelê nie.
Solank ons seker maak, so goed as wat
ons kan, dat ons nie andere uitsluit
FRONEMAN J
47
Otherwise it becomes an exercise of
power.107

wanneer ons dit doen nie. Want dan word
dit uitoefening van mag.107

[91] Successful mot her-tongue or
vernacular language education is not
easily attained, but it can be done. It has
been done in some countries in Asia,
Europe and in North America in
Canada.108 In Africa , the support of
Amharic in Ethiopia, kiSwahili in
Tanzania and Somali in Somalia count
as examples, but, deeply ironically, the
“clear-cut and strongest case of
successful vernacular language
education in Africa is Afrikaans in South
Africa, under the apar theid regime.” 109
This came about from the language
loyalty of its speakers and from the
massive political and material support it
received from the state. 110 That
translated into its increased use in the
economy and other public institutions,
including universities. It became one of
the few smaller world languages to be
Suksesvolle moeder - of huistaal
opvoeding en onderrig kan gedoen word.
Lande in Asië, Europa en in Kanada in
Noord-Amerika het dit bewys. 108 Die
ondersteuning van Amharies in Ethiopië,
kiSwahili in Tanzanië en Somalies in
Somalië is toonbeelde daarvan in Afrika.
Ironies egter, is die “clear -cut and
strongest case of successful vernacular
language education in Africa . . .
Afrikaans in Sout h Africa, under the
apartheid regime.”109 Faktore wat daartoe
gelei het was die lojaliteit van die taal se
sprekers en massiewe politiese en
materiële staatshulp.110 Dit is omskep in
die toenemende gebruik daarvan in die
ekonomie en ander openbare instel lings,
insluitende universiteite. Dit is een van
die min kleiner wêre ldtale wat ontwikkel
het tot ‘n erkende akademiese taal.


107 At the 1967 National Union of South African Students (NUSAS) conference at Rhodes University, Steve Biko
stood up to deliver his regional report in isiXhosa to drive home the point about Black students’ alienation from
the NUSAS agenda. The incident was the start of a separate black consciousness student movement, the South
African Students Organisation (SASO). See S outh African History Online “National Union of South African
Students (NUSAS) available at https://www.sahistory.org.za/people/stephen-bantu-biko.
108 Kamwangamalu above n 94 at 197-202.
109 Id at 197.
110 Id.
FRONEMAN J
48
developed and then used as an academic
language.

[92] An example is law. Textbooks
were written in Afrikaans by Afrikaans
legal academics that played an important
part in the devel opment of the law. 111
Before 1947, only a few Appellate
Division judgments were written in
Afrikaans.112 Between 1947 to 1994 a
greater number of judgments were
written in Afrikaans particularly if it was
the language of the parties. 113 Since
1994, progressiv ely fewer judgments
have been written in Afrikaans. In this
Court, three judgments have been
written in Afrikaans and simultaneously
translated into English. 114 Maybe this
one will be the last. That will be a sad
ending and I hope it does not happen.

‘n Voorbeeld daarvan is Afrikaans se
ontwikkeling as ’ n regstaal. Handboeke
is in Afrikaans dear Afrikaaanse
akademici geskryf, met ‘n groot en
belangrike invloed op die ontwikkeling
van ons reg.111 Voor 1947 is slegs ‘n paar
Appèlhof uitspra ke in Afrik aans
geskryf.112 Vanaf 1947 tot 1994 is veel
meer uitsprake in Afrikaans geskryf, veral
waar dit die litigante se moedertaal
was.113 Sedert 1994 al hoe minder. In
hierdie Hof is drie gepubliseerde
uitsprake in Afrikaans geskryf en
terselfdertyd in Engels vertaal. 114
Miskien is hierdie die laaste een. Dit sal
‘n kwade dag wees. Ek hoop dit sal nie
gebeur nie.

[93] As far as I am aware, not a single
judgment of this Court has been written
in any of the other official indigenous
African languages.

Sover ek weet is daar nog nie ‘n uitspraak
in enige van die ander inheemse Afrika
tale in hierdie Hof geskryf nie.



111 See, for example, a reflection on the contribution of JC de Wet to South African jurisprudence in Du Plessis
and Lubbe (eds) A Man of Principle: The Life and Legacy of JC de Wet (Juta, Cape Town 2013).
112 Harms “Law and Language in a Multilingual Society” (2012) 15 Potchefstroom Electronic Law Journal 21 at
25.
113 Id.
114 Apart from this judgment, see AfriForum CC above n 25; Daniels v Scribante [2017] ZACC 13; 2017 (4) SA
341 (CC); 2017 (8) BCLR 949 (CC); and Gauteng Provincial Legislature above n 7.
FRONEMAN J
49
[94] The point of this is that the
Constitution enables each one of us to be
proud of our language. We need not
destroy one language to advance others.
Yes, that means, for white Afrikaans -
speakers, that we must acknowledge and
be sensitive to the fact that Afrikaans
was used as a means of power and
oppression before we high -handedly
complain of how we are treated now.
But that does not disqua lify us, and
certainly not brown and black
Afrikaans-speakers, from being proud of
our language. A long way lies ahead to
gain widespread acceptance of
Afrikaans, as the verbalisation, or
embodiment, of the complex world we
live in (“die verwoording . . . van die
komplekse wêreld waarin ons
beweeg”),115 but it is already starting to
happen.

Die Grondwet bemagtig elkeen van ons
om trots te wees op ons taal. Ons hoef nie
een taal te vernietig om die ander te
bevorder nie. Dit beteken wel ja, vir wit
Afrikaanssprekendes, dat ons sensitief
moet handel met die feit dat Afrikaans as
magsintrument in onderdrukking gebruik
is. Dit moet erken word voordat ons te
gou begin kla oor hoe ons nou behandel
word. Maar dit keer nie dat ons, en beslis
nie bruin en swart Afrikaanssprekendes,
nie mag trots wees op ons taal nie. Daar
lê ‘n lang pad voor voordat wye
aanvaarding gevind sal word dat
Afrikaans “die verwoording is van die
komplekse wêreld waarin ons
beweeg”,115 maar dit begin reeds gebeur.

[95] And perhaps more importantly, it
means that more assertion by our fellow
South Africans whose home languages
are the other indigenous, African,
languages should be welcomed when
they assert their own right under the
Constitution to use their languages
Dit beteken ook, en miskien meer
belangriker, dat ons mede Suid -
Afrikaners wie se huistale die ander
inheemse Afrika tale is, hul eie reg onder
die Grondwet meer behoort te gebruik.
Waar ookal, in enige plek en orals. As dit
wit mense wat nooit ‘n poging aangewend

115 See above at [88].
FRONEMAN J
50
anywhere and everywhere. If that
causes white people who have never
made the effort to understand any of
those languages uncomfortable, that
reflects on their own poverty. If it
causes indigenous African language -
speakers increasingly to assert the
inherent value of their own, the
Constitution promises its support.

het om enige van daardie tale te verstaan
nie ongemaklik maak, is dit hulle verlies.
As dit and er inheemse Afrika -
taalsprekers sal aanmoedig om die
inherente waarde van hul eie taal te
bevorder, is dit ook ons Grondwet se
belofte.

[96] It is often stated that without legal
back-up minority languages will wither
away and die. 116 But that need not be
inevitable. Imagine a Stellenbosch
University where the current emotional
and often odious public oppositional
discourse is displaced. Imagine a
Stellenbosch University where there is a
community working together to ensure
that the university alumni and othe r
sympathetic supporters raise awareness
of the plight o f less-resourced siXhosa-
and black and brown Afrikaans -
speaking communities that need access
to its academic excellence. And then do
something “reasonably practical” about
it, by raising funds for t he progressive
institutionalisation of isiXhosa,
Dit word dikwels beweer dat sonder
geregtelike ondersteuning minder -
heidstale uiteindelik sal verdwyn. 116
Maar dit behoort nie onvermydelik so te
wees nie. Laat die verbeelding ‘n
oomblik loop. Verbeel ’ n Stellenbosch
waar die huidige emosionele en dikwels
onsmaaklike openbare strydige debat
verplaas word deur ‘n gemeenskap wat
saamwerk. Alumni en ande r
welwillendes kom bymekaar om ’ n
gewaarwording aan te wakker wat klem lê
op die nood van minder toegeruste
siXhosa- en bruin en swart
Afrikaanssprekende gemeenskappe om
toegang te kry tot die universiteit se
akademiese uitnemendheid. En dat iets
“redelik prakti es” daaromtrent gedoen

116 Smit “‘Collateral Irony’ and ‘I nsular Construction’: Justifying Single -Medium Schools, Equal Access and
Quality Education” (2011) 27 SAJHR 398 at 416, citing Skutnabb-Kangas Linguistic Genocide in Education - or
Worldwide Diversity and Human Rights? (Routledge, Abingdon 2000). But compare Bishop above n 81 at 86.
FRONEMAN J
51
Afrikaans or English as their choice of
medium of instruction on an equal
basis.117

word, naamlik befondsing word ge -
inisieer om die progressiewe
institusionalisering van isiXhosa,
Afrikaans en Engels as gelyke taalkeuses
by die universiteit te verwesenlik.117

[97] And imagine a Constitutional
Court where judgments are w ritten not
exclusively in English, but in a variety
of the indigenous official languages,
with simultaneous translations in
English in the column next to it, as in the
Canadian law reports. Would that not be
an occasion for joyous celebration at
first, before we embrace it, mundanely,
as the accepted norm?

Verbeel ‘n Grondwetlike Hof waar
uitsprake nie uitsluitlik in Engels geskryf
word nie, maar in ‘n verskeidenheid van
ander inheemse tale, met gelyktydige
vertalings in Engels in die aangrensende
kolom, soos in die Kanadese hofverslae.
’n Geleentheid vir aanvanklike
feesviering, voordat ons dit later
doodgewoon aanvaar as die norm.


117 At school level, an Afrikaans education initiative called MOS (for the Afrikaans equivalent of “Mother Tongue
in Independent Schools” ) has been started. It is the product of a long process in which all the organisations
involved in Afrikaans education have participated. As one of its progenitors, Theuns Eloff, explains in his
comment “Can Mother -Tongue Education in SA Schools Become a Reality?” Politicsweb (14 August 2019),
available at https://www.politicsweb.co.za/comment/can-mothertongue-education-in-south-african-school:
“The word ‘mos’ also refers to the plant that grows almost everywhere and needs little moisture
to thrive; and then also to the unique Afrikaans word used as a confirmation of the obvious: it
is ‘mos’ beautiful! . . . The MOS Initiative . . . will create a network of sustainable, independent
Afrikaans schools that will operate across South Africa - open to all, community -oriented,
affordable and with high standards and innovative learning . . . to ensure that Afrikaans-speaking
learners are well equipped for their future - in line with international research - consideration is
being given to making English first language and another African language compulsory in MOS
schools.
It will promote multilingualism and equip learners to play an active role in the broader South
African community. Afrikaans learners who are fluent in another African language and can
speak fluently will also help overcome the stigma of Afrikaans schools being racist.
It will take a lot of time and effort for this ambitious project to succeed, but there is consensus
among leaders in the Afrikaans education arena of the urgency to make a start now.”

FRONEMAN J
52
[98] Is that “reasonably impractical”?
I do not think so. To say it inevitably is,
will be to give up on part of our
constitutional dream. We need not let it
happen.

Is dit “redelik onprakties”? Ek dink nie
so nie. Om te aanvaar dit is onvermydelik
so is om deel van ons Grondwetlike
droom prys te gee. Ons hoef dit nie te laat
gebeur nie.


















For the Applicants:


For Respondents:



J Heunis SC and K Pillay instructed by
West & Rossouw Attorneys

J Muller SC and N de Jager instructed
by Cluver Markotter Inc