Litnet

Recent times have seen a slew of litigation regarding language policies in both basic and higher education domains. Most recently, the cases of Overvaal and the constitutional court judgment concerning the UFS language policy have dominated the headlines, where the language question was placed on the national agenda. Language was seen as a problem. Disgruntled parents, the Gauteng department of basic education and the judiciary concluded that language divided students on grounds of race – with the exception of the court in the Overvaal case.

Section 29(2) of the Constitution states:

that 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;
c. and the need to redress the results of past racially discriminatory laws and practices.

The Census 2011 illustrated that, nationally, only 9,6% of the population speaks English as their mother tongue. Provincially, the Census 2011 showed that English was not spoken by the majority of people in any of the nine provinces. If one were then to apply these language statistics to the three qualifying criteria (a)–(c), it would, in our opinion, be justified to be taught bilingually. This would mean that students would be able to learn content subjects in their language of choice, ie their mother tongue, and be taught English as a subject to acquire good English skills. The obsession with seeing language as a problem rather than a resource results in English-only policies. The first major dilemma is that parents, legal guardians and even students themselves wish to be taught in English, exercising their Section 29(2) language of choice right. This was seen with the Overvaal case, where parents and learners wanted to be taught in English. Why would you not advocate to be taught in your mother tongue, an African language? This irony leads one to Neville Alexander’s parting sentiments in his last work, Thoughts on the new South Africa, where he explained that the language question has never been a national priority, where the status of African languages is seen as a positive attribute; instead, what has been sold to the nation is that English-only is the way forward. We are by no means undermining the important global role of English, but this does not mean you should choose English as medium of instruction at the expense of your mother tongue. There is no reason why you cannot acquire linguistic competence in English, while learning in your mother tongue.

We must fully acknowledge that Afrikaans was used as a tool to divide the nation during apartheid. However, the National Party government at that time discriminated against black South Africans. Afrikaans must not be blamed for this, but rather the people who initiated, implemented and controlled those racist policies. In the current English versus Afrikaans battle that is playing out in our courts, there is a lack of acknowledgement that Afrikaans is spoken not only by white South Africans, but also by coloured South Africans. The Census 2011 shows that it is the third largest language, spoken by 13,5% of the population.

A further dilemma is the lack of political buy-in and promotion of African languages. It was anticipated that during the transition from apartheid to democracy, in the period from 1990 onwards, the leadership would resume the language debate, with the purpose of revitalising the African languages within mainstream society in assuming a rightful space alongside English. The intent by the National Party during negotiations was ever apparent as that of ensuring that Afrikaans maintained its position as an official language. In contrast, the African National Congress did not prioritise the language discussion and, more importantly, failed to take the opportunity to illustrate the leadership’s intent to reclaim what the majority of South Africans had lost – their right to participate fully in all facets of society using African languages. The language question, in all sincerity, was not accorded sufficient time and space or attention, instead playing second fiddle to the removal of symbols representing apartheid.

We are still caught in this historical void.

In the case of AfriForum and another v Chairperson of the council of the University of Pretoria and others (2017), an application was brought by applicants AfriForum and Solidarity against the chairman of the council of the University of Pretoria (UP) and others, as well as the minister of higher education, being cited as a fourth respondent.

The facts giving rise to the application were as follows: since 1993, UP had had a bilingual language policy in place. The policy advanced English and Afrikaans as the languages of instruction and communication, and recognised Sepedi as the third language of communication. In 2003, the bilingual language policy was reaffirmed. In 2016, the senate and council of UP adopted a new monolingual language policy, where English would be the sole language of teaching and learning. The development and advancement of Afrikaans and Sepedi would be promoted under the new policy. Based on the adoption of the monolingual language policy, the applicants sought to review the decisions and have them set aside.

Kollapen J stated that the primary issue to be determined was whether the decision by UP was reasonably practicable. Part of determining the reasonable practicability of the decision was to take into account factors relevant to equity, practicability and historical redress. According to Kollapen J, the approach was two-pronged, with competing and interconnected constitutional and administrative issues. The constitutional issue, according to Kollapen J, hinged on the standard of reasonableness. Kollapen J held that the Section 29(2) right could be diminished with proper justification. In advancing this view, the dictum from the Gauteng Education Bill case was relied upon, where Kriegler J had held that the concept of reasonable practicability is elastic and thus allows for a number of factors to be considered. In disposing of the constitutional contentions of the alleged limitations of Sections 29(2) and 9, Kollapen J held that the discrimination was fair, as the English-only policy disadvantaged all students equally. In applying these factors to the case at hand, Kollapen J held that the poll conducted in 2010 by UP constituted a high level of engagement and thoroughness. The poll, in addition to research done by UP, illustrated that there was a steady decline in home language Afrikaans speakers, amounting to 25,1% of the student population. As a result of this reasoning, the application was accordingly dismissed.

The second case involved an application being brought by AfriForum against the chairman of the University of the Free State’s (UFS) council and others. The facts giving rise to the application concerned the decision by UFS to change the language of instruction to English only. Prior to this decision in 2016, a parallel medium of instruction language policy had been in place since 1993, and had been reaffirmed in 2003. Under the new policy, Afrikaans would be available as the language of instruction only in particular courses, such as teacher education and theology. UFS argued that the language policy was adopted for transformational and academic reasons and the entire language policy project was aimed at achieving integration.

Hendricks J was guided by the reasoning in the Ermelo (2010) case, where Moseneke DCJ, as he was then, stated the following:

[I]t is an injunction on the state to consider all reasonable educational alternatives, which are not limited to, but include, single medium institutions. In resorting to an option, such as single or parallel/dual medium instruction, the state must take into account what is fair and feasible and satisfies the need to remedy the results of past racially discriminatory laws and practices. When a person already enjoys the benefit of being taught in an official language of choice, the state bears the negative duty not to take away or diminish the right without appropriate justification.

Present in the excerpt is the element of reasonableness, which needs to be considered on a case by case basis. In applying this to the matter at hand, Hendricks J reasoned that this would have required UFS to adopt reasonable measures to fulfil current and prospective students’ rights to receive education in both English and Afrikaans. Furthermore, for a single medium to be preferred to another reasonably practicable institutional arrangement, such as dual medium education, it must be demonstrated that it is more likely to advance or satisfy the listed criteria of equity, practicability and historical redress.

Equity, according to the application by Hendricks J, comprised two parts. The first part was an academic assessment, where the vast majority of students (black, mother tongue African language speakers) would not benefit from the new language policy, given that they were neither English nor Afrikaans mother tongue speakers. Secondly, the new language policy, by disposing of Afrikaans, violated Afrikaans speakers’ right to be taught in their language of choice, as entrenched in Section 29(2) of the Constitution.

The second criterion, that of practicability, was disposed of with minimal engagement. Hendricks J explained that the facts before him did not illustrate that it was impracticable to have a dual medium language of instruction policy.

The redress criterion was inserted to ensure that language was not a barrier in accessing education, especially for black, Indian and coloured students. On this basis, the new language policy does not favour “new over old”. Substantiating this line of reasoning, Hendricks J held that the old policy favoured multilingualism; that Afrikaans alone may be a barrier to many black students, but that English may be a barrier to coloured students.

Hendricks J held that by abandoning dual medium English and Afrikaans education, the decision to adopt the new language policy was inconsistent with the ministerial policy designed to promote multilingualism and enhance equity and access in higher education institutions through the retention and strengthening of Afrikaans as a language of scholarship and science. The belief of the decision makers that integration and transformation would justify their decision, without their taking into account factors universally accepted to form part of the reasonable practicability standard in Section 29(2) of the Constitution, constituted a material error of law. Hendricks J accordingly ordered that the decision be reviewed and set aside.

AfriForum then applied to the constitutional court for leave to appeal. Leave to appeal was not granted by the majority. The reasons for the refusal to grant leave to appeal were a result of the reasoning in the judgment advanced in the proceeding paragraphs below. Mogoeng CJ, writing the judgment of the majority, stated that the appeal was squarely premised on grounds of legality.

According to Mogoeng CJ, the appeal gave rise to two key issues to be determined: firstly, whether UFS acted consistently with the provisions of Section 29(2) of the Constitution, and secondly, whether UFS, when adopting the new language policy, paid adequate attention to the ministerial language policy concerning language of instruction. In regard to the first issue, concerning the language right in Section 29(2), Mogoeng CJ reasoned that the equity test emerging from the provision needed to be satisfied. Simply put, it would be equitable to maintain Afrikaans as a medium of instruction, if the right in Section 29(2) were exercised in a manner that was not inconsistent with any other provision and did not undermine any “constitutional aspiration or value”. Moreover, the exercise of the right to be taught in a language of choice must not “... pose a threat to racial harmony or inadvertently nurture racial supremacy”.

Mogoeng CJ stated that the primary question arising was whether Afrikaans “had a comfortable co-existence with our collective aspiration to heal the divisions of the past or [had] impeded the prospects of our unity in our diversity”. In answering these questions in relation to the facts, Mogoeng CJ found that learning was racialised. White students were attending the lectures taught in Afrikaans, while black students were attending lectures conducted in English.

Moving swiftly to the second issue, that concerning the ministerial language policy framework, Mogoeng CJ held that UFS had acted in accordance with the framework by ensuring that a language of instruction not be employed where it created racial segregation and did not heed the internal modifiers in the Section 29(2) right for equity, practicability and the need to redress past discrimination. The majority thus held that the adoption of the language policy was lawful and valid, and leave to appeal was thus denied.

Although the majority ruled that leave to appeal be denied, Froneman J dissented, with Cameron J and Pretorius AJ concurring in the dissenting judgment. Commencing with the dissenting judgment, Froneman J stated that it would have been in the interests of justice to have heard the matter orally and thus grant leave to appeal.

It was explained that Mogoeng CJ, similarly to the Supreme Court of Appeal, who had heard the case prior to this, denied speakers of an official language (Afrikaans) the ability to exercise their right to access education in their mother tongue. Because of this, the “factual and normative” boundaries within which the Constitution will permit the implementation of the Section 29(2) right should have been explained; this, however, did not occur.

The dissenting judgment advanced that one primary question for determination arises, namely: what circumstances would justify prevention of a person receiving education in a language of choice, as prescribed in Section 29(2) of the Constitution? This, according to Froneman J, is two-pronged, where a “proper” interpretation of Section 29(2) of the Constitution should be advanced, as well as the role of the ministerial language policy in formulating language policies. With regard to the majority judgment, there was no engagement on the parameters of the right in Section 29(2) of the Constitution; instead, the judgment focused primarily on the use of Afrikaans as a racist tool, as was the case during apartheid. What the main judgment fails to do is state that other official languages (African languages) should be imposed on Afrikaans and English speakers, to ensure parity of esteem. To this effect, Mogoeng CJ made no reference to the state’s obligation to advance the other official languages. Froneman J continued by explaining that it was “ironic” that the majority harp on the Afrikaans “historical oppression” in favour of English, a language with a longer history of colonial oppression.

Froneman J questioned whether discrimination would be found if an African language were used as a medium of instruction, as the majority judgment stated that the exercise of official languages other than English results in exclusion and discrimination, fostering segregation. Froneman J reasoned further that by granting leave to appeal, students, affected persons and experts could have provided their input on Afrikaans and the other official languages as mediums of instruction.

With regard to the second issue, that of the ministerial language policy, Froneman J held that there was no evidence presented to inform a decision by the majority as noted in Mogoeng CJ’s judgment, advanced above, that students receiving instruction in a language of choice (Afrikaans, in this case) were guilty of racial discrimination, and thus did not justify the finding that the Section 29(2) right can be limited on grounds of entrenching racism and segregation; furthermore, that the ministerial language policy states that the current situation of English and Afrikaans as mediums of instruction should only be endured until the African languages have been developed enough to be used as mediums of instruction at higher education institutions. This, according to Froneman J, was in concurrence with the objectives of the ministerial policy, which recognises the constitutional imperative for African languages to be promoted and advanced in reversing the past historical marginalisation.

In conclusion, Froneman J held that the majority judgment’s reasoning and order “... does not bode well for the establishment and nurturing of languages other than Afrikaans and English as languages of higher learning”. The constitutional court’s constitutional duty is to create space for other official languages. That is what true unity in diversity entails. On this note, Froneman J held that he would have granted leave to appeal.

In summation, firstly, what emerges from the cases above is that it is clear, from these cases, that university management structures are propelling English-only language policies under the guise of transformation, which, to our minds, is the complete opposite of what a university transformational agenda should be enabling. Alexander stated that as a result of English, enjoying a hegemonic position globally would not guarantee educational equity at tertiary level if it were the language of instruction. In fact, the scales would be tipped in favour of the already privileged mother tongue speakers and proficient second language speakers of English. Thus the vast majority would remain disadvantaged, as Hendricks J correctly pointed out in the UFS judgment.

Alexander further stated:

An Afrikaans-dominant or a Zulu-dominant university does not have to be an ethnic university. Just because an entire university community is Zulu-speaking, they cannot be said to be ethnicist or even racist. The language of tuition does not determine whether or not a course or a university is racist or tribalist. It is what is taught that is decisive.

The majority in the constitutional court, as well as Kollapen J in the UP case, are clearly in conflict as to whether African languages will have any relevance in the knowledge age, either as vehicles to impart knowledge, or for being used in any way within educational settings or within discipline-specific settings. The transformative power of language within knowledge societies such as ours is then called into question, where a dangerous precedent of monolingualism has been set. One can only wonder what the implications of this case law will be in the modern knowledge age, where multilingualism is seen not as a resource, but as problematic and erroneously linked to issues of racism. The implications for African languages are not considered at all, and the knee-jerk reaction to Afrikaans as an exclusionary language means that all languages (with the exception of English) are to be demoted from the academic and intellectual space.

The Unisa case, which is in the process of being heard and where judgment has been reserved, will be the first case that will determine the Section 29(2) right in its purest form. The other cases have been based on demographics, and even though these show that the majority of students attending class are not English speakers, the cases have gone in favour of English. Unisa is a correspondence university and, therefore, there will be no racial divisions in class, as it is largely an online educational forum.

The 2017 new revised language policy for higher education favours multilingualism and should be applauded. However, the judiciary seems completely oblivious to this revised policy, and the judgments are at odds with higher education, where multilingualism is seen as a resource. It is, again, a process of the forked tongue of multilingualism, where administrators in Pretoria in the department of higher education and training are in favour of multiple languages for learning and cognition, whereas individual university administrators hide behind the judicial decisions favouring monolingualism. How does an English-only policy foster transformation? On what grounds does it allow for greater access to universities, when a large portion of South Africans do not have equal access to this language? Many students will attest to the fact that they think in their mother tongue, and then they have to translate back into English before even beginning to attempt to answer a question in class. By then, the class is over …