UFS langauge policy led to racial tension
But the ConCourt’s minority judgment said the court had ignored the dominance of English
The dual-medium language policy in use at the University of Free State (UFS) until 2016 resulted in racial segregation and caused racial tensions at the institution, the Constitutional Court said in a judgment last week.
The policy was introduced in 2003 but, two years into it, the then vicechancellor, Professor Frederick Fourie, said it had had the “undesirable consequence of having separate lecture rooms for white and black students”.
Students and staff also complained that it intensified racial tensions.
The university commissioned an investigation to look into the claims and the continued use of Afrikaans as a parallel medium of instruction.
The findings confirmed that the policy caused racial divisions, worked against the university’s integration commitments and that Afrikaner students preferred being taught in English because it gave them a global advantage.
This led the university’s highest decision-making body, the council, to decide that English would become the primary medium of instruction, Chief Justice Mogoeng Mogoeng said in his majority judgment.
AfriForum brought the case against the UFS, and the Constitutional Court refused AfriForum leave to appeal a judgment by the Supreme Court of Appeal, which favoured the university’s new language policy as adopted in March 2016.
AfriForum and Solidarity objected to the new policy and argued that most white and some black Afrikaans-speaking students preferred to be taught in Afrikaans.
But Mogoeng’s judgment stated that Afrikaans had been used for a long time as an oppressive language and was “associated with dominion or power”.
Opening his judgment, Mogoeng read: “Whenever we seek to resolve disputes that have the potential to divide our people along racial lines or exacerbate pre-existing divisions, a proper context would always be essential. This is such a case. It raises a real but unarticulated question [about] whether Afrikaans has been ‘downgraded’ from the status of a major medium of instruction for genuine and constitutionally sound reasons, or in the furtherance of some historical and insensitive scoresettling agenda.”
He said the demand for “radical transformation” applied “with equal force to those of our universities where Afrikaans was the sole medium of instruction. They were exceedingly well resourced for the exclusive or primary benefit of white Afrikaner students.
“And their inseparable and almost destiny-defining mandate was to develop the Afrikaans language very well ... Sadly, all African universities and languages were deliberately starved of resources and capacities critical for a similar developmental agenda.”
Though Mogoeng acknowledged that all South Africans have the constitutional right to be taught in their preferred official language at public institutions of learning, he said “this right is not unqualified”.
South Africa was still “transitioning from an era of unrivalled racism and inequality that entailed the deliberate substandardisation of the quality of education for black people, to nonracialism, equity and highquality education for all”, he said.
The right to be instructed in an official language of choice could not be given effect to if it undermined equitable access, preserved exclusivity or perpetuated racial supremacy, he said.
Mogoeng said the continued use of Afrikaans would result in “white supremacy not being redressed but kept alive and well”.
However, Justice Johan Froneman wrote a minority judgment, holding that it would have been in the interest of justice for the Constitutional Court to grant leave to appeal in the case after an oral hearing because there were facts that he believed were missing from the argument.
“The main judgment’s emphasis on the institutional privileges that Afrikaans enjoyed — and, it must be said, still enjoys — exhibits no appreciation of the irony that the language favoured by the university, English, has long been equally, if not more, privileged.
“And in that failure it loses the perspective that Afrikaans’s struggles for recognition was in the first place a struggle against the dominance of English — a struggle that it shares with other official languages,” Froneman wrote.
He referred to a journal article by former Constitutional Court Judge Albie Sachs in 1997 that said: “In a sense, all language rights are rights against English, which in the modem world is such a powerful language that it needs no protection at all and tends to resist being slotted into any system of rights.”
Froneman said there was no evidence that students being taught in Afrikaans were guilty of racial discrimination.
“Any unfair discrimination was instead that of the university in its provision of instruction to different language groups and control of other activities on campus. It is thus for the university to provide a factual and normative justification for depriving innocent users of an official language of the right to receive education in that language.
‘There are factual issues that are neither clear to me nor addressed in the main judgment. For example, if there were individual students or members of staff who were themselves guilty of racial discrimination, whether in the delivery and receipt of Afrikaans instruction or otherwise, why was it impracticable to discipline them?
“What exactly made it impossible to eradicate the racial discrimination? Did it have anything to do with reaction to the continued use of Afrikaans in lectures by those who preferred another language? If so, was the reasonableness of that reaction assessed? Was an attempt made to address it by other measures?”
Froneman added that Afrikaans as a language of instruction was also contested at the universities of Pretoria and Stellenbosch and that it would have been in the interest of justice to have allowed those institutions to have a say in the UFS case.
The same applied to other organisations — not just AfriForum and Solidarity — that aspire to a more inclusive approach to Afrikaans.
“White Afrikaans-speakers are becoming a minority of Afrikaansspeaking users, and there is now a greater awareness of those Afrikaansspeakers whose role in the origin and history of the language has been shamefully marginalised.” It was vital that their voices be heard, he said.
“It would be presumptuous of me, as a white Afrikaans-speaker, to attempt to speak on their behalf but I would have valued their input. It might be very well that many or most support the university decision but either way their contribution would have enhanced the legitimacy of the outcome in this matter,” Froneman said.
In 2016, the University of Pretoria made English its primary medium of instruction and Stellenbosch introduced a multilingual language policy, giving equal status to English and Afrikaans as mediums of instruction.
The president of the convocation of Stellenbosch University, six others and the organisation Gelyke Kanse, took the university to court to demand that the new policy be reviewed and for Afrikaans to be used as a primary language of instruction.
They argued that the policy infringed the rights of Afrikaansspeaking students, but the Western Cape high court dismissed the application in October.
The continued use of Afrikaans would result in “white supremacy not being redressed but kept alive and well”