On 29 December 2017 the Constitutional Court handed down judgment in an application by AfriForum and Solidarity for leave to appeal against a judgment of the Supreme Court of Appeal (SCA). The issues to be resolved were whether the adoption of the language policy that discontinues the use of Afrikaans as a primary medium of instruction by the University of the Free State is constitutionally valid and whether the university’s policy is consistent with the Ministerial Language Policy Framework.
Leave to appeal was refused. According to the official media summary provided by die Constitutional Court, the majority judgment written by Chief Justice Mogoeng Mogoeng (concurred in by ADCJ Nkabinde, J Jafta, J Khampepe, J Madlanga, J Mhlantla, AJ Mojapelo and J Zondo), holds that it would be unreasonable to hold slavishly on to a language policy that has proved to be the practical antithesis of fairness, feasibility, inclusivity and the remedial action necessary to shake racism and its tendencies out of their comfort zone. The University’s language policy was determined “subject to” and is thus consistent with the ministerial policy framework and the Constitution of the Republic – its adoption is lawful and valid. For these reasons, the application for leave to appeal was dismissed.
In a dissenting judgment, J Froneman (J Cameron and AJ Pretorius concurring) took the view that the Court ought to have set this matter down for hearing. He considered that such an approach would have enhanced the legitimacy of the outcome and better reflected the Court’s practice. He also would have granted leave to appeal on the basis that the applicants’ case bore prospects of success and, in any event, concerns “unfinished business” under the Constitution.
The dissenting judgment stresses the broader context in which this matter arose and points out that the Court has never held that the mere exercising of a constitutionally protected language right can amount to unfair racial discrimination that would necessarily justify taking away that right.
In his judgment, Froneman draws attention to unclear factual issues and expresses regret that these had not been fully ventilated. He also expressed regret that other institutions and organisations had not been given an opportunity to make submissions.
Froneman closed his judgment by noting that on the papers as they stood he would have reserved costs and referred this matter back to the High Court so that additional evidence could be taken. He expressed his hope that the outcome in this matter would not undermine the development of languages other than Afrikaans and English as languages of higher learning. In a passage written in Afrikaans, Froneman expressed doubt about the effectiveness of the applicants’ conduct and, noting the diverse history of Afrikaans, called on young people to lead a “Derde Taalbeweging” (Third Language Movement) for an inclusive Afrikaans stripped of racial and other prejudices.
Mogoeng Mogoeng (majority): paragraphs  to 
Johan Froneman (dissenting): paragraphs  to