Objectivity and justifiability, not politics, must be the law’s guiding lights

DID the University of the Free State (UFS) fail to respond to Afrikaans students’ section 29(2) constitutional right? This was after it replaced its dual-medium language policy with a single-medium policy. This was a key issue in the Supreme Court of Appeal (SCA) judgment of the University of the Free State v AfriForum (SCA judgment). The UFS decision was based on “a commitment to transformation” and was upheld by the SCA. AfriForum is currently seeking leave to appeal to the Constitutional Court.

In a first for the Constitutional Court, it will be vital to clarify the meaning of the internal qualifiers of section 29(2) in the context of higher education.

Section 29(2) guarantees everyone the right to receive education at a public higher education institution, in the language of their choice provided doing so is “reasonably practicable”.

Furthermore, the state has to consider “all reasonable educational alternatives, including single-medium institutions”, to give “effective access to, and implementation of, this right” by “taking into account equity, practicability and the need to redress the results of past racially discriminatory laws and practices”.

The crux concerns the “reasonably practicable” qualifier in section 29(2).

If the Constitutional Court agrees with the Free State High Court, the “reasonably practicable” qualifier would be interpreted to relate to logistical considerations to determine if it is possible in the circumstances to provide instruction in a preferred language.

If it is “reasonably practicable”, the state will be required to weigh “all reasonable educational alternatives” to see how it can achieve this, taking into account equity, practicability and historical redress.

The high court found that Afrikaans instruction is “reasonably practicable” as there are no resource constraints and that the dual-medium language policy gave better effect to equity, practicability and historical redress.

The SCA held that the “reasonably practicable” qualifier is a “context-sensitive assessment”, therefore any factor can be considered, including normative considerations. Following this, considerations such as “non-racialism” and “desegregation” were introduced in the assessment of “reasonably practicable”. On this approach, the SCA held that the dual-medium language policy might be practical, but not reasonable, as it offends other constitutional norms.

It was, however, not clearly stated in which way and how the singlemedium language policy would give better effect to equity, practicability and historical redress.

The question should not be which approach was correct, but rather whether the approach adopted delivers an “objective and justifiable denial to the right”.

This would be in line with Justice Kriegler’s opinion in Ex parte Gauteng Provincial Legislature: In re Dispute Concerning the Constitutionality of Certain Provisions of the Gauteng School Education Bill of 1995, when the “reasonably practicable” qualifier to the predecessor of section 29(2) in the interim constitution was discussed.

Considering the need for an objective and justifiable outcome, the high court’s approach satisfies the requirement of “reasonably practicable” better than that of the SCA. If one considers jurisprudence and policy on section 29(2) in the context of basic education, there is support that the “reasonably practicable” qualifier relates to logistical considerations.

First, the Norms and Standards for Language Policy (Norms and Standards), published in terms of the South African Schools Act, states that it is “reasonably practicable” to provide education in a particular language if “at least 40 Grade 1 to 6 learners or 35 Grade 7 to 12 learners request it in a particular school”.

The authors Woolman and Fleisch, in analysing the judgment of the Minister of Education, Western Cape and Others v Governing Body, Mikro Primary School and Another, also suggest that the “reasonably practicable” qualifier relates to a sufficient number of learners requesting a preferred language where there is no adequate alternative school to provide such instruction.

The justification for instruction in a preferred language does not end once it is shown to be “reasonably practicable”. The state is obliged to show objectively why a specific educational option is more likely to advance equity, practicability and historical redress.

Again, Woolman and Fleisch emphasise that there might be instances where even a single-medium option satisfies the listed criteria and that the “state cannot simply invoke an overriding commitment to ‘transformation’ as a cause for dismantling single-medium institutions”.

The reasonably practicable and considering all reasonable educational alternatives parts of section 29(2) cannot be separated, as this is contrary to a purposive interpretation of the constitution. However, it does not mean the two parts cannot refer to different types of considerations. In the Head of the Department, Mpumalanga Department of Education and Another v Hoërskool Ermelo and Another (Ermelo matter), Justice Moseneke emphasised that section 29(2) is “made up of two distinct but mutually reinforcing parts”. The Ermelo matter also followed a logistical approach to the “reasonably practicable” qualifier in that factors such as “availability and accessibility to schools” and “enrolment levels” were considered in the context. A “context-sensitive understanding”, as referred to in the Ermelo matter, cannot be interpreted to justify that any normative factor can be considered in the “reasonably practicable” assessment, which eliminates the need for the state to justify why one language policy would better address equity, practicability and redress.

The high court’s approach appears to deliver a more “objective and justifiable” outcome. The SCA approach, on the other hand, is difficult to evaluate, as an ideological and intangible concept such as “transformation” overshadows the “reasonably practicable” enquiry.

Section 29(2) is sensitive to the society in which the right is to be exercised, and provides a consideration of listed constitutional criteria that would justify the denial of a specific language policy. It must, however, be objectively shown to be the case. Objectivity and justifiability should be the guiding principles.

Christine Botha is a legal officer at the Centre for Constitutional Rights.