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Constitutional Court’s Afrikaans ruling in Support of Afriforum: It’s About the Process Not Necessarily the Policy

Sep 25, 2021

Ebrahim Deen

The constitutional court’s September 22 ruling upholding a Supreme Court of Appeal (SCA) decision that the University of South Africa’s 2016 language policy was unconstitutional, is substantively different to other decisions in support of the University of the Free state (2017) and Stellenbosch University (2019). The decision, which came after a 5-year battle with the generally right-wing Afrikaner Lobby Group Afriforum, was a result of a 2016 decision adopted by the university to demote Afrikaans as a dual medium of education together with English, in favour of promoting the country’s other official languages, many of whom remain severely underutilised in educational settings and which are vastly under resourced. UNISA has resolved to comply with the decision, although the implementation has been delayed until 2023.

While rigorous, the decision is likely to accelerate negative opinions of the apex court amongst some, especially since it has in recent years ruled against former president Jacob Zuma and Public Protector Busisiwe Mkhwebane. The rigorousness and unanimity of the decision has meant that the Economic Freedom Fighters were forced to call for UNISA to ‘retrace’ its steps and follow proper policies and procedures in developing another, similar policy, instead of a direct criticism of the ruling itself. This does show a maturity of the Economic Freedom Fighters, especially in a local government election context.

At the heart of the court’s decision was section 29 (2) of the South African constitution, which stipulates that learners have the right to public education in their mother tongue. UNISA sought to justifiably argue that the prioritisation of Afrikaans was impeding the use of other languages, and that demand for Afrikaans was limited, while Afriforum argued that this contravened the rights of around 20 000 UNISA students, who were being provided tuition in Afrikaans. Afriforum also argued that English tuition could be used to cross-subsidise that of Afrikaans, and that only 300 courses out of over 2500 were taught in the language. The Supreme Court of Appeal held that although Afrikaans was being prioritised at the expense of other languages, the state couldn’t not ‘negatively’ contravene section 29 (2), that is that it could not takeaway what was already in existence. The Constitutional Court’s decision was slightly different in that it ruled that section 29 (2) should be read with the qualifications of equity, practicability and redress. The court found that UNISA’s decision failed to muster constitutional validity in light of its failure to focus on practicality and procedure. The court stated that There was no real arguments and evidence provided as to how Afrikaans was impeding the upliftment of other languages, especially in relation to cost, implementation and demand. It was stinging in that it ruled that UNISA’s decision mainly only focused on redress, at the expense of the other two sub clauses, and that the procedures followed in informing the decision were limited.

This is significantly different to the two decisions the court passed in support of the University of the Free state (2017) and Stellenbosch University (2019), which both sought to move away from dual language instructions toward the prioritisation of English. The 2017 UFS decision was partly a result of the court’s finding that separate Afrikaans classes caused unintended segregation, which mirrored the past apartheid system. Further, in the Stellenbosch decision the court argued that instant English translation impeded the abilities and confidence of non-Afrikaans speakers, and more importantly that most registered Afrikaans speakers at the time were adequately equipped to understand instructions in English. The court ruled that different to both, UNISA did not have in-person classes, limiting the applicability of these precedents.

South Africa’s history of apartheid had seen Afrikaans prioritised at the expense of other languages, and it is now the second largest second language spoken by the country’s inhabitants, even amongst more people when compared to English speakers. Further, out of the countries around 8500 single medium schools, Afrikaans schools comprise around 1200, more than ten times larger than isizulu, alluding to the impact of apartheid. Afrikaans continues to be funded at a primary and secondary level at the expense of other language schools. Together with the United Nations Children’s Fund, South Africa has, since 2020, been implementing a system wherein students from some schools are taught Mathematics, Natural Sciences and Technologies in their mother tongues, even at higher grades than the foundation phase. This will likely begin the process of decolonising the country’s educational system, however for the real impact to be felt, this will take decades and require much more effort, funding and the construction of institutional capacity.

The Constitutional Court’s decision was also noteworthy in that it reified the significance of Afrikaans as no longer the language of White people, alluding to the fact that most first-language Afrikaans speakers in contemporary times are non-white, and pointing out some of its roots as a language developed by Malay slaves imprisoned in the cape; the first real Afrikaans text was written in Arabic Script. “We still have to recognise the multi-faceted nature of the Afrikaans speaking community, the numerical dominance of its black speakers, and the need to advance Afrikaans in a multilingual, all‑inclusive antiracist environment, as an example and as part of the development and intellectualisation of African languages. We also have to recognise that Afrikaans is at the core of many fellow South Africans’ sense of identity, and they are not necessarily white… It is a language that was once spoken by peasants, the urban proletariat, whatever their ethnic background, and even the middle class of civil servants, traders and teachers …

“Injustice is being done to Afrikaans through the contorted hegemonic white history that has been inculcated by Afrikaner Christian national education, propaganda and the media and shamefully overlooks its equally important black history.“

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