The Supreme Court of Appeal (SCA) has ruled that the University of South Africa’s (UNISA) decision to abolish education in Afrikaans was “unlawful and unconstitutional”. The ruling was made on the evening of Tuesday, June 30.
The language policy had come into effect in 2016, and the appeal was brought forward by AfriForum, a South African non-governmental organisation which focuses on the interests of Afrikaners, after the 2018 High Court ruling that favoured UNISA’s English-only language policy.
“The issues on appeal were whether (a) the impugned decisions contravened s 29(2) of the Constitution; (b) the Senate did not follow its rules in the conduct of its meeting, in breach of the principle of legality; and (c) UNISA failed to consult the persons who would be most affected by the new language policy, in breach of procedural rationality,” the SCA said in a summary of its judgement.
“The Supreme Court of Appeal made the following findings: UNISA did not properly comprehend the implications of the constitutional right to receive education in the official language of one’s choice, the constitutional parameters within which its powers had to be exercised, and the precise ambit of responsibility which s 29(2) imposed upon it, when it reviewed its language policy and adopted a new one.
“The considerations upon which it relied to prove that it was not reasonably practicable to continue with dual medium tuition such as affordability and the cost-saving that could arise from the change, which could free funds for the development of the other official languages as languages of learning and tuition at the university, were not discussed in the meetings at which it was resolved to adopt the new language policy,” the SCA said.
“UNISA further failed to prove the resource constraints it alleged and that it was not reasonably practicable from a commercial standpoint to continue to offer tuition in Afrikaans. Whilst the rationale for the new language policy, namely that the demand for Afrikaans was decreasing, was indisputable, the evidence showed that a significant number of students still wanted it but their actual numbers were not placed before the Senate and Council when these bodies decided to discontinue Afrikaans as one of UNISA’s languages of learning and tuition.
“UNISA’s position was distinguishable from the other recent language policy cases involving the Universities of Stellenbosch and the Free State in which those policies were set aside for unlawfulness to protect racial harmony and prevent racial supremacy threatened by racially segregated classes and the exclusion of non-Afrikaans speaking students from campus life by the use of Afrikaans. And those universities, unlike UNISA, had conducted thorough and proper investigations and executed their mandate in reviewing their language policies meticulously.”
UNISA must now publish a list of modules for the courses that were on offer from April 28, 2016 (when the English-only rule came into place) and allow students to study them with an Afrikaans medium option until the language policy has been legally amended.
Speaking to News24, AfriForum spokesperson Henk Maree said that the appeal was essential as UNISA operates under “unique circumstances”. As there are no classes, AfriForum believes that this cannot segregate students as it would in a normal university lecture hall.