“The official languages of the Republic are Sepedi, Sesotho, Setswana, siSwati, Tshivenda, Xitsonga, Afrikaans, English, isiNdebele, isiXhosa and isiZulu.”

Section 3 (10) of the 1993 (Interim) Constitution(f)  required “the non-diminution of rights relating to language and the status of languages existing at the commencement of this Constitution.”

In February 2017, the Deaf Federation of South Africa (“Deafsa”) requested Parliament’s constitutional review committee to review sections 6 (1) and 6(5)(a) of the Constitution to include South African Sign Language (“SASL”) as the twelfth official language of South Africa. Deafsa stated that they represented around one million deaf and hard hearing people in South Africa for whom sign language was a first language. According to Stats SA data (2011) relied on by Deafsa there are 45 deaf schools and 18600 learners in South Africa that use sign language as a language of learning and teaching. Parliament’s constitutional review committee recommended that formalities should be made by Parliament to ensure amendment of the Constitution in this regard.

“Recognising the historically diminished use and status of the indigenous languages of our people, the state must take practical and positive measures to elevate the status and advance the use of these languages.”

·       In terms of section 27(2) of the Higher Education Act university councils, with the concurrence of their senates, “must determine the language policy of a public higher education institution and must publish and make it available on request.”

·       The hope was that universities would promote the indigenous languages as languages of tuition.  A 2005 study indicated that South African universities had tried to conform with the Act but “in most cases this was only window dressing. Their institutional language policies fail to fit the government language policies and to develop the use and status of indigenous languages for the South African higher education system.”[2]

·       The 2003 Ministerial Report on the Development of Indigenous Languages as Mediums of Instruction in Higher Education (the Ndebele Report) emphasized

o   “ the disadvantages experienced by speakers of indigenous African languages when they enter university”;

o   “what is prevalent at South African universities is not nearly adequate to bring indigenous African languages to the fore and to have them used fully as mediums of instruction or to support tuition presently given largely in English…”

o   that “for the (indigenous African) languages to grow, they need extensive literacy, expansion of vocabulary, development of scientific terms), etc. and teaching and learning by both their speakers and speakers of other languages because languages grow as they are used and they are used more as they grow.”

·       The 2014 Report on the Use of African Languages as Mediums of Instruction in Higher Education observed that

o   over 10 years after the Ndebele Report was published, “development of languages in SA HE is nowhere near what was envisaged in its recommendations”.

o   “South Africa is experiencing regression rather than progress. Instead of multilingualism, monolingualism which favours English, is becoming a norm, with indigenous African languages being marginalized.”[3]

o   although 19 of South Africa’s 23 universities had adopted indigenous African languages as “official languages” this status meant little in practice and did not involve tuition in these languages;

o   there was “little teacher-training in African languages, i.e. teacher-training does not provide student-teachers with pedagogical knowledge and skills of teaching African languages as home or additional languages.”

·       Most universities offered indigenous languages courses: 10 in isiZulu; 7 in Setswana; 7 in Sepedi; 6 in IsiXhosa;  5 in Sesotho;  4 Tshivenda; 3 Xitsonga; 2 SiSwati and 1 IsiNdbele –  but the number of students who were interested in taking these courses was declining.

Mother Tongue Education

·       According to the 2001 UNESCO Universal Declaration on Cultural Diversity   “All  persons  have  therefore  the  right  to express  themselves  and  to  create  and  disseminate  their work  in  the  language  of  their  choice,  and  particularly  in their  mother  tongue;  all  persons  are  entitled  to  quality education  and  training  that  fully  respect  their  cultural identity;  and  all  persons  have  the  right  to  participate  in the cultural life of their choice and conduct their own cultural  practices,  subject  to  respect  for  human  rights  and fundamental freedoms.”

·      The 2016 UNESCO International Conference on Language and Education in Bangkok declared that Mother Tongue Based Multilingual Education was essential to achieve the UN’s Sustainable Development Goal 4 to “Ensure Inclusive and Equitable Quality Education and Promote Lifelong Learning Opportunities for All”.

o   It found that “early childhood is the most important developmental phase of any human being.  Children at this stage learn best in a language they already know.  By providing learning opportunities in the languages that children use at home we are also investing in individuals’ future development opportunities.”

o   “Learning in a learner’s home language provides a solid foundation on which other languages and skills can be successfully built.”

o   “Peace, social cohesion and global citizenship are only possible when people are confident in their own identity and have opportunities to participate in finding solutions to their own problems. Policies and practices that embrace cultural and linguistic diversity are essential for healthy and sustainable social systems and ecosystems, and incorporating local knowledge systems with innovative approaches through strong partnerships leads to more effective care for our world.”

·      Research in Mali between 1984 and 2000 showed that learners who received education in their mother tongue had a 32% higher pass rate than those who were taught in French.

·      According to the World Bank in 2005 although teaching in only the official language costs 8% a year less than mother tongue education, the total cost of getting a learner through a six-year cycle without mother tongue education, is about 27% more, mainly due to repetition and high fallout rates.

·       Despite this, the default position in South Africa remains that education is offered in English to the vast majority of non-English home speakers after only three years of mother tongue education.

·       The Department of Basic Education (“DBE”), is attempting strengthen marginalised African languages by introducing the draft Incremental Introduction of African Languages Policy in 2013 (“IIAL”). The IAAL targets all schools that are not currently offering a previously marginalised official African language and is aimed at ensuring that all non-African language speakers speak an African language.

·       The policy was piloted in Grade 1 and 2 in 264 schools in 2014 and in 973 schools in 2017 across all provinces. This represents 27% of public schools that have been earmarked for the IIAL programme.

·       The DBE has proposed that all schools should implement the IIAL in Grade 1, from 2018.

·       The IIAL has encountered some problems arising from

o   the lack of willing and competent teachers to teach African languages; and

o   a misconception African languages have very little practical value.

In Gelyke Kanse and others v The Chairman of the Senate of the Stellenbosch University and others  Gelyke Kanse argued  that section 6(2) of the Constitution places a constitutional obligation on the University of Stellenbosch, as an organ of State to take “practical and positive measures” to ensure that the Afrikaans language was advanced and not to diminish its use.

The Court dismissed this argument on the basis that the Afrikaans language – which received much state support during apartheid – did not qualify as an “indigenous language” and could not rely on section 6 (2) of the Constitution.

However, in Gelyke Kanse and Others v Chairperson of the Senate of the University of Stellenbosch[4]  Chief Justice Mogoeng observed that

“With all that done and dusted, it needs be said that Afrikaans is indeed an African language, our historic pride to be treasured by all citizens.  Its existence precedes colonialism.  And its subsequent development with the appropriately enriching infusion of terms from Dutch or any other European language and the unjust attempt to impose it on others, do not at all affect its original African DNA.”

In the same judgment Cameron J also noted that “… Gelyke Kanse rightly insisted on Afrikaans’s indigeneity^[60] and that it was entitled anyhow under section 6(4) to “parity of esteem” as an official language, and hence that it “must be treated equitably”.

“The national government and provincial governments may use any particular official languages for the purposes of government, taking into account usage, practicality, expense, regional circumstances and the balance of the needs and preferences of the population as a whole or in the province concerned; but the national government and each provincial government must use at least two official languages.”

“Municipalities must take into account the language usage and preferences of their residents.”

·       In March 2017, the Heads of the Courts released a notice to all attorneys that English would be the only official language of record for all courts in the Republic. Prior to this decision Afrikaans and English were the official languages of court records.

·       PANSALB urgently called for radical legislative intervention to ensure retention of multilingualism by the judiciary.  It pointed out that the proposed policy contravened the Use of Official Languages Act and the Department of Justice and Constitutional Development’s 2016 language policy.  It added that multilingualism should be a requirement for newly appointed judges and that South Africans involved in court proceedings should have the right to be heard in the language of their choice.

·       Chief Justice Mogoeng subsequently confirmed that English would be the sole official language of use for court records – despite the clear requirement in Section 6 of the Constitution. He defended the decision by saying not all judges understood all 11 official languages[5].

·       In September 2017 The lobby group, Afriforum asked the Chief Justice for the reasons for his decision and on what authority the decision was taken.

·       The lobby group argued that the Chief Justice did not have the authority in terms of subsection 8(3)(b) and 8 (6) of the Superior Courts Act 10 of 2013, to determine the language of record in South African High Courts, regardless of whether or not he was supported by the Heads of Courts.

·       AfriForum insisted that the decision was inconsistent not only with Section 6, but also undermined the right of access to courts of section 34 of the Constitution as it will prolong trials for civil litigants who require the involvement of translators. Have there been any further developments?

·       AfriForum also complained of the lack of public participation in the decision and pointed out that only 9,6 % of the population speaks English as their mother tongue

“The national government and provincial governments, by legislative and other measures, must regulate and monitor their use of official languages.”

·       The result was the adoption of the Use of Official Languages Act, No 12 of 2012 (UOLA).  In terms of the Act all national departments, public entities and public enterprises were required to

o   establish ‘Language Units’ whose task it would be to develop, adopt, implement and monitor a language policy the entity concerned.

o   language policies were required to comply with section 6(3) (a) of the Constitution and had to identify at least three official languages for use by the department or national entity.

o   Departments and national entities were required to report to the Minister of Arts and Culture and to PANSALB on their compliance with the Act.

·       Not a single national department – and only a handful of national entities – had complied with the Act by the deadline of 2 November 2014.  The Minister of Arts and Culture accordingly extended the deadline to 2 May 2015 – by when only two departments had submitted language policies.

·       On 2 October 2016, the Deputy Minister Ms Rejoice Mabudafhasi, reported that by that date 15 national departments had gazetted language policies while another 10 have draft policies.  30 national public entities and enterprises had gazetted their policies and another 11 have draft policies.

·       On 25 May 2018, in reply to a parliamentary question by Mr WW Wessels of the Freedom Front Plus as to“whether all national departments are complying with the implementation of the UOLA ?…”  the Minister of Arts and Culture replied that

“No, many national departments still experience capacity problems with elementary stages of complying with the Act.  For example, most of them do not have language policies and those that have are experiencing implementation challenges….”

·       In reply to a further question as to whether all provinces had adopted and effectively implemented language policies in accordance with their Provincial Language Acts, the Minister replied that some provinces had adopted and  implemented such acts – while others were “still struggling”.  The Western Cape had reported that its Provincial Languages Act “is fully implemented by all provincial government departments…”

·       There is no indication that the Department of Arts and Culture has submitted annual reports to the National Assembly in terms of s.10 of the UOLA, in terms of which

“the Minister must, on an annual basis, table a report in the National Assembly on the status and use of official languages by national government for government purposes and on any exemption granted to a national public entity and a national public enterprise in terms of section 12.”

“Without detracting from the provisions of subsection (2), all official languages must enjoy parity of esteem and must be treated equitably.”

·       The following comments of Chief Justice Mogoeng Mogoeng in his refusal to grant AfriForum leave to appeal against the SCA judgment in its case against the University of the Free State[6], raise serious questions regarding the degree to which Afrikaans enjoys ‘parity of esteem’ in the eyes of the CC.  On the contrary, the Chief Justice seems to indicate that the language is indelibly tainted by its association with former governments:

“The level of development attained by the Afrikaans language is in demonstrable ways connected to aspects of history of colonial-settler domination and particularly in its latter phases to the dominant position of a sector of the Afrikaans‑speaking communities in the apartheid order. Afrikaans became the language most closely associated with the formalisation and execution of apartheid. To a great proportion of South Africans it probably calls up first and foremost associations of discrimination, oppression and systematic humiliation of others.  These associations understandably often affect the approaches people take to the role and future of Afrikaans. That history of association with racism and racially based practices is often one that Afrikaans-speaking communities will have to confront and deal with.”

·       The Chief Justice’s comments are based on the premise that languages can be the bearers of historic guilt.  They also ignore the fact that 60% of Afrikaans speakers are not white and were also the victims of apartheid.

“A Pan South African Language Board established by national legislation must—

(a) promote, and create conditions for, the development and use of— (i) all official languages; (ii) the Khoi, Nama and San languages; and (iii) sign language; and

(b) promote and ensure respect for— (i) all languages commonly used by communities in South Africa, including German, Greek, Gujarati, Hindi, Portuguese, Tamil, Telegu and Urdu; and (ii) Arabic, Hebrew, Sanskrit and other languages used for religious purposes in South Africa.

·       When the PASALB Chairperson challenged the Minister’s decision to dissolve the Board, the North Gauteng High Court found[7] that of the Chairperson had intentionally misled the Court.  The application was dismissed with costs to be paid on a punitive scale by the attorneys of the applicants.

·       According to its Annual report for 2016-17, PANSALB received 26 complaints regarding language rights violations, only five of which were resolved.  No detail was provided on the language complaints and how the five cases were resolved.

·       No detail was provided with respect to the compliance of state entities regarding their obligations in terms of the Use of Official Languages Act of 2012.

·       PANSALB vigorously rejected the March 2017 decision of the Heads of Court that English would be the only official language of record for all courts in the Republic. It urgently called for radical legislative intervention to ensure retention of multilingualism by the judiciary.  It pointed out that the proposed policy contravened the Use of Official Languages Act and the Department of Justice and Constitutional Development’s 2016 language.  It added that multilingualism should be a requirement for newly appointed judges and that South Africans have the right to be heard in the language of their choice.

·       According to PANSALB’s 2017-18 Annual Report none of the organization’s 20 Senior Managers and Language Managers came from minority communities.

·       In March, 2019, the Minister of Arts and Culture appointed a new PANSALB Board.

“(1) Everyone has the right to freedom of conscience, religion, thought, belief and opinion.

 (3) (a) This section does not prevent legislation recognising— (i) marriages concluded under any tradition, or a system of religious, personal or family law; or (ii) systems of personal and family law under any tradition, or adhered to by persons professing a particular religion. (b) Recognition in terms of paragraph (a) must be consistent with this section and the other provisions of the Constitution.”

Religion remains a powerful source and force of identity and cultural expression the world over and this is no different in South Africa, where despite being a largely Christian country, the religious freedoms of all are guaranteed in the Constitution. Freedom of conscience, religion, belief and opinion are guaranteed by S 15 of the Constitution.  (Please see Annexure  B on the religions to which South Africans are affiliated)

Perhaps references to the corporal punishment cases and to the current case of the Moslem woman in the SADF who wants to wear a hijab –

Constitutional foundations for freedom of choice have been amplified over the  years by legislation that has responded to the interest of groups who felt discriminated against.  This includes the Civil Union Act, which came into effect in November 2006. The legalization of same-sex marriages and the legal designation of religious marriage offices without religious restriction, was significant in promoting the principle of non-discrimination.

n 2007, the South African Pagan Rights Alliance and the Traditional Healers Organization made submission to the South African Law Reform Commission to review the constitutionality of the Witchcraft Suppression Act of 1957 which criminalized knowledge and practice of witchcraft in addition to accusations against others of practicing such. The SA Law Commission reviewed submissions from interested parties and agreed that by making it illegal to identify as a witch, the Suppression of Witchcraft Suppression Act of 1957 was in violation of the constitutional right to freedom of religion guaranteed in S 15. The Minister of Justice and Constitutional Development subsequently approved a review project by the SALRC to review witchcraft legislation in March 2010.

In its issue paper released in February 2016, the SALRC recommended, in sum that the Witchcraft Suppression Act be declared unconstitutional and that witchcraft as a religious belief system and or religion be legally permissible.

In 2016/2017 the CRL Rights Commission examined the Commercialisation of Religion & Abuse of People’s Belief System to investigate “the commercialisation of religion and the abuse of people’s belief systems in terms of when these institutions are being run, how are they being run, where is their funding going into, who collects how much and what do they do with the money, where does the money eventually go to, what are the governing principles that are there”.

The report elicited widespread criticism in the parliamentary portfolio Committee on Cooperative Governance and Traditional Affairs in October 2017. The CRL Commission’s approach was criticized for being disproportionate and unnecessary because abuses could be addressed under existing laws.  This was inconsistent with the constitutional guarantee in respect of freedom of religion and the duty of the state to create an enabling environment for religious freedom.

“Religious observances may be conducted at state or state-aided institutions, provided that— (a) those observances follow rules made by the appropriate public authorities; (b) they are conducted on an equitable basis; and (c) attendance at them is free and voluntary.”

The Basic Education Laws Amendment Bill requires that public schools must take into account the diverse cultural beliefs and religious observances of the learners at the school and makes provision for an exemption clause, making it possible to exempt learners, upon application, from complying with the code of conduct or certain provisions thereof, on just cause shown.

“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; and (c) the need to redress the results of past racially discriminatory laws and practices.”

Despite the internationally acknowledged importance of receiving the first six years of schooling in the child’s mother tongue, little progress has been made in achieving this in South Africa.  Most black children receive the first three years of their education in their mother tongue but shift in the fourth year of school to English – often as a result of

·       the lack of standardization in some of the languages involved;

·       lack of school books and reading material in indigenous languages;

·       lack of teachers trained to teach in indigenous languages; and

·       the general preference of most School Governing Bodies to switch as early as possible to English – which is seen as the aspirational language.

Despite its pedagogical advantages there seems to be little demand among black South Africans for mother tongue education either at school or university levels. English appears, overwhelmingly, to be the language of choice for most black South Africans, Asians and whites English-speakers.

It is only the Afrikaans-speaking communities that had developed schools and universities capable of teaching in a language other than English.  It is accordingly they who are most concerned about preserving their right under section 29 (2) to education in the language of their choice (Afrikaans).

This right is under extreme pressure – both at higher education and in schools.

Afrikaans is now used as a medium of education at 10% of South Africa’s 25 000 schools – with 5% providing Afrikaans on a single medium basis.  However, it is clear that the ANC is ideologically opposed to the continuation of single-medium Afrikaans schools.  Panyaza Lesufi, the Gauteng MEC for Education recently said that “economically and educationally the country cannot afford single-medium schools (i.e. Afrikaans schools)”.

·       The Education Laws Amendment Bill

The new Education Laws Amendment Bill makes provision, inter alia, for the Head of the provincial education department to overrule the language policies adopted by School Governing Bodies.   The Bill fails to set out the determinative factors according to which the HoD will approve the language policies. It can be expected that single medium Afrikaans schools will experience increasing pressure to become dual medium Afrikaans/English schools.

There are doubts that Afrikaans can in the long run be maintained as a language of education in a dual medium environment because of the well-know tendency for dominant languages eventually to eclipse regional languages in such situations.

·       Afrikaans at University Level

Neither are prospects for Afrikaans at university level much better.  Afrikaans is being, or has been, eclipsed at the six universities at which it was formerly the only – or dominant – medium of tuition.

In terms of section 27 (2) of the Higher Education Act, the Council of Public Higher Education institutions, in concurrence with the Senate of the relevant institution, must determine the institution’s language policy.  The policy must, however, also comply with the Language Policy for Higher Education, which the Minister of Higher Education published in November 2002 (LPHE).

The LPHE recognises Afrikaans as a national resource and supports its retention as a medium of academic expression.  However, it was opposed to the idea of single-medium Afrikaans universities:

“The notion of Afrikaans universities runs counter to the end goal of a transformed higher education system, which as indicated in the National Plan for Higher Education (NPHE), is the creation of higher education institutions whose identity and cultural orientation is neither black nor white, English or Afrikaans-speaking, but unabashedly and unashamedly South African.”[8]

·       The LPHE requirement for the retention of Afrikaans as a medium of academic expression was dealt with by the SCA in 2017 in University of the Free State v Afriforum and Solidarity [2017] ZASCA 32 (“UFS judgement”). This followed the university’s decision in 2016 to abandon its 2003 dual-medium language policy which recognised both English and Afrikaans as mediums of instructions.  Instead, the university adopted a single medium language policy, which recognised English as the primary language of instruction at all faculties except for Theology and Education.  In its judgement the SCA virtually negated the right to education in the language of choice by subordinating it to 29(2)’s requirements for “equity, practicability and the need to redress the results of past racially discriminatory laws and practices.”

“The legal standard of reasonableness, which of necessity involves consideration of constitutional norms, including equity, redress, desegregation and non-racialism.  The factual criterion is practicability, which is concerned with resource constraints and the feasibility of adopting a particular language policy.

It follows in my view, that even if a language policy is practical because there are no resource constraints to its implementation, it may not be reasonable to implement because it offends constitutional norms.  The policy would therefore not meet the reasonably practicable standard.”[9]

·       In Gelyke Kanse  and others v The Chairman of the Senate of the Stellenbosch University and others [ 2017] JZAWCHC  119 – which dealt with the decision of the University of Stellenbosch to adopt English as the university’s primary language, the Western Cape High Court endorsed the SCA’s normative approach to the meaning of “reasonably practicable”. The Court held the fact that Afrikaans-speaking students enjoyed more rights previously did not entitle them to retain those rights where it is not reasonable for them to do so.

·       The hopes of those who wished to retain the right to education in the language of choice were dealt a further blow by the refusal of the Constitutional Court in December 2017 to grant AfriForum and Solidarity leave to appeal against the SCA judgement in University of the Free State v Afriforum and Solidarity.

·       The CC endorsed the SCA’s normative approach to the concept of “reasonably practicable” and accepted, without further examination, the university’s arguments for the adoption of its new language policy – in particular, that the retention of Afrikaans inevitably led to discrimination.  The Chief Justice’s view that “Afrikaans as a medium of instruction has unwittingly become an instrument of racial or cultural division and discrimination” also has ominous implications for the future of Afrikaans single medium schools.

·       The Chief Justice showed clear hostility toward Afrikaans as a language, ignoring the fact that 60% of Afrikaans speakers were also “victims of apartheid”:

“The level of development attained by the Afrikaans language is in demonstrable ways connected to aspects of history of colonial-settler domination and particularly in its latter phases to the dominant position of a sector of the Afrikaans‑speaking communities in the apartheid order. Afrikaans became the language most closely associated with the formalisation and execution of apartheid. To a great proportion of South Africans it probably calls up first and foremost associations of discrimination, oppression and systematic humiliation of others.  These associations understandably often affect the approaches people take to the role and future of Afrikaans. That history of association with racism and racially based practices is often one that Afrikaans-speaking communities will have to confront and deal with.”

Gelyke Kanse (GK) appealed directly to the Constitutional Court to set aside the Western Cape High Court’s above-mentioned judgement in Gelyke Kanse  and others v The Chairman of the Senate of the Stellenbosch University and others [ 2017] – and in effect to find that the University’s 2016 Language Policy was unconstitutional.

The judgement, noted that, unlike the situation at the University of the Free State, Stellenbosch University “had by no means abolished Afrikaans.”   It also noted that, also unlike the situation at UFS, “some students seeking tuition in Afrikaans are brown.”

“Here, unlike at the University of the Free State, the University by no means abolished Afrikaans.  Also dissimilar is that some students seeking tuition in Afrikaans are brown.  This means that racial segregation of the kind at issue in AfriForum CC is not a feature.  Nevertheless, the University’s evidence indicates that dual medium classes with interpreting from Afrikaans to English peripheralise and stigmatise black students not conversant in Afrikaans.  That, together with the non-prohibitive but significant cost of upscaling to full parallelism means that sustaining the 2014 Language Policy was not reasonably practicable for the University.”

The Court accepted, without hearing any other testimony, the University’s assessment that the provision of parallel medium tuition would amount to R640 million in infrastructure and R78 million per annum thereafter and would necessitate a 20% increase in fees.   It concluded that such costs breached the “reasonable practicability” requirement in section 29(2) and dismissed GK’s application.

In his concurring judgement, Froneman J expressed concern over the impact of the judgement on the Coloured community:

“The evidence before us shows that Afrikaans is the home language of a significant proportion of brown people in the Western Cape (and also the Northern Cape).  It also shows that they are predominantly working-class people and that many of them are not proficient in English.  Statistically they are the smallest of all population groups proceeding to tertiary education.  Poverty means that it is more difficult for them than for most even to aspire to tertiary education.  And if they do get that far, they have only one university to go to in the Western Cape where Afrikaans may be chosen as a medium of instruction.’  Now, when they arrive at Stellenbosch, they will find that their choice of medium of instruction is not as comprehensive as those more privileged students who choose English.  The grim message that seems to be sent to this segment of extremely marginalised brown people, is that, if they are be accommodated, they need to grow out of poverty and learn English fast.

“There is something deeply disturbing and wrong about this.  What are the comparative numbers of this segment of brown people in contradistinction to those black Africans who felt or were excluded by the application of dual medium instruction at Stellenbosch University?” 

Froneman J also referred to the centrality of language as a bearer of culture and human identity:

“Without your own language, culture is lost, a sense of self is lost.  And once that happens, diversity is lost.  We will lose the belief set out in the Preamble of the Constitution ‘that South Africa belongs to all who live in it, united in our diversity’”.[11]

“Everyone has the right to establish and maintain, at their own expense, independent educational institutions that— (a) do not discriminate on the basis of race; (b) are registered with the state; and (c) maintain standards that are not inferior to standards at comparable public educational institutions. Chapter 2: Bill of Rights 13 (4) Subsection (3) does not preclude state subsidies for independent educational institutions.”

However, in November, 2014, in response to the establishment of ‘Akademia’, a private Afrikaans medium university by Solidarity, Minister Blade Nzimande said that there was no place for a private university in which Afrikaans is the only language.  He said that such an Afrikaans university would be exclusive by shutting out other students.”[12]

“Everyone has the right to use the language and to participate in the cultural life of their choice, but no one exercising these rights may do so in a manner inconsistent with any provision of the Bill of Rights.”

·       The decision of Chief Justice and the Heads of Court, in March 2017, to make English the only official language of record for all courts in the Republic diminished the right of Afrikaans-speakers to use the language of their choice in the courts (See paragraph 6 (3) above.) Chief Justice Mogoeng subsequently confirmed that English would be the sole official language of use for court records – despite the clear requirement in Section 6 of the Constitution.

·       The Financial Services Board announced on 18 October 2015 that Board examinations would no longer be held in Afrikaans.  This was because of a precipitous decline in the number of candidates wishing to write the exams in Afrikaans from 1707 in 2012 to only 20 in 2015.

·       The SABC broadcasts services radio and TV services which cater to the needs of all South Africa’s 11 language groups as well as the diversity of the country’s cultures.  In addition to the SABC, there are numerous private and community TV and radio broadcasters to provide services in the principal languages.

·       The English-speaking and Afrikaans communities are richly served by print media, magazines, periodicals and books.

·       In contradistinction to this there are relatively few newspapers, magazines and books in indigenous African languages.

·       Afrikaans media, music, culture, theatre and publishing are flourishing with significant cultural events such as Oppiekoppie and the Karoo-Nasionale-Kunstefees.  English language theatre and literature is highlighted every year at the Grahamstown Festival.

·       There are numerous excellent theatres, philharmonic orchestras, operas, ballets and art galleries in South Africa’s major cities.

31((1)(a)

Language

“Everyone has the right to use the language … of their choice, but no one exercising these rights may do so in a manner inconsistent with any provision of the Bill of Rights.”

“Persons belonging to a …. linguistic community may not be denied the right, with other members of that community— (a) to … use their language; and (b) to form, join and maintain …eligious and linguistic associations and other organs of civil society. (2) The rights in subsection (1) may not be exercised in a manner inconsistent with any provision of the Bill of Rights.”

·       The decision of Chief Justice and the Heads of Court, in March 2017, to make English the only official language of record for all courts in the Republic diminished the right of Afrikaans-speakers to use the language of their choice in the courts (See paragraph 6 (3) above.) Chief Justice Mogoeng subsequently confirmed that English would be the sole official language of use for court records – despite the clear requirement in Section 6 of the Constitution.

·       The Financial Services Board announced on 18 October 2015 that Board examinations would no longer be held in Afrikaans.  This was because of a precipitous decline in the number of candidates wishing to write the exams in Afrikaans from 1707 in 2012 to only 20 in 2015.

The SABC broadcasts services radio and TV services which cater to the needs of all South Africa’s 11 language groups as well as the diversity of the country’s cultures.  In addition to the SABC, there are numerous private and

Ngũgĩ wa Thiong’o:

 “Language as communication and as culture are then products of each other.  Communication creates culture: culture is a means of communication.  Language carries culture, and culture carries, particularly through orature and literature, the entire body of values by which we come to perceive ourselves and our place in the world.  How people perceive themselves and affects how they look at their culture, at their places politics and at the social production of wealth, at their entire relationship to nature and to other beings.  Language is thus inseparable from ourselves as a community of human beings with a specific form and character, a specific history, a specific relationship to the world.”

 Breyten Breytenbach:

 “Taal is mens en mens is taal.  Afrikaans is die lewende en veranderende en andersmakende uitvloeisel van uiteenlopende en by tye botsende geskiedenisse.  Hierdie diverse oorspronge gekenmerk deur aanpassing, verowering, onderdrukking, oorlewing, weerstand en omvorming – afkomstig uit Europese dialekte, Maleis, Portugees, seemanstaal, Khoi tale, Arabiese Afrikaans, die Koran en die Bybel, die howe en kerke en kombuise en wingerde en fabrieke – het gemaak dat Afrikaans ‘n unieke hibridisering vergestalt as Kreoolse taal wat by uitstek die verwoording is van die komplekse wêreld waarin ons beweeg.”

However, as is pointed out in section 6 (b), (c) and (d) above the right of South Africans of all language groups – except those with English as their home language – to use their own language in communication with the courts, government departments and SOEs is limited by the degree to which these state institutions fail to carry out their responsibilities in terms of the Use of Official Languages Act.

The ability of South Africans to use their languages of choice in public education institutions is similarly limited by the failure of government and education institutions to provide education in the language of their choice in terms of section 29 (2) of the Constitution.  (Please see section 29(2) above).

The ability of South Africans – except those with English as their home language – to use their own language in their places of employment and in commercial transactions is, in the same way, limited by the almost universal use of English in the business sector – to the exclusion of all other official languages.

A 2010 study by Dorrit Posel and Jochen Zeller of the University of KwaZulu-Natal[14] on the self-assessed proficiency of South Africans from different population groups in their own language and in English revealed the following:

From this is emerges that self-assessed ability in the home language is predictably and significantly higher in all population groups (except the English-speaking Indian community) than proficiency in English.  It also emerges that approximately 32% of black South Africans and 27% of Coloureds do not read and write English well or not at all.

The increasingly unilingual environment in government, education and business present these South Africans with serious disadvantages in important aspects of their daily lives and may negatively affect their equal access to some of the rights in the Bill of Rights.  This also is true to a lesser extent for the approximately 25% of Black South Africans and Coloureds whose command of English is only “fair”.

31(1) (a)

Culture

“Everyone has the right to use the language and to participate in the cultural life of their choice, but no one exercising these rights may do so in a manner inconsistent with any provision of the Bill of Rights.”

“Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community— (a) to enjoy their culture, practise their religion and use their language; and (b) to form, join and maintain cultural, religious and linguistic associations and other organs of civil society. (2) The rights in subsection (1) may not be exercised in a manner inconsistent with any provision of the Bill of Rights.”

There are disturbing indications that the current debate on “whiteness” and “colonialism” is closing down the cultural space of white Afrikaans and English-speaking South Africans:

·       Rhodes must Fall and the Destruction of symbols of Afrikaans and British Culture.

A central element of The Rhodes Must Fall movement is the rejection of Eurocentric culture – i.e. the culture of the European-descended minorities in South Africa).  It describes itself as “a collective of students and staff members mobilising for direct action against the reality of institutional racism at the University of Cape Town.”  It sees the fall of Rhodes “as symbolic for the inevitable fall of white supremacy and privilege on the campus..”

 “The current (UCT) curriculum dehumanizes black students.”  “We study all these dead white men who presided over our oppression… Our own thinking as Africans has been undermined.  We must have our own education from our own continent.  We cannot be decolonized by white people who colonized us.  Eurocentrism does not serve our interests culturally, socially, economically…. For decolonized education to be introduced, the existing system must be overthrown and the people it is designed to serve must define it themselves.” Rhodes-Must-Fall activist, Athabile Nonxuba

In the course of the protests – which spread to universities throughout South Africa – students occupied university offices; chanted “One Settler, One Bullet” and attacked and or destroyed symbols of “white culture”, including the statue of Cecil John Rhodes and Jan Smuts and burned paintings, mostly of white people.

·       The Helen Zille Colonialism Controversy

Following a visit to Singapore in 2017 Western Cape premier Helen Zille tweeted “For those claiming legacy of colonialism was ONLY negative, think of our independent judiciary, transport infrastructure, piped water etc.” The tweet elicited an avalanche of furious criticism – much of it from her own party:  Phumzile Van Damme, DA spokesperson, insisted that “Colonialism was a crime against humanity.  There isn’t a single aspect of it that can be said to be positive or beneficial to Africans.”

·       Prof Njabulo Ndbele

In October 2016 leading intellectual and Vice-Chancellor of the University of Johannesburg, Prof Njabulo Ndbele, stated bluntly that the time had come “to recognise that the norm of human presence in South Africa is ‘black’. That recognition is central to understanding where real agency for shaping the future of South Africa is overwhelmingly located, and that ‘blackness’ becomes so normal it ceases to exist.”   He speculated on the need for whites to abandon their cultural identities and asked what was expected of them: “is it remorse, guilt, identification as Africans, adopting Bafana Bafana, moving from white suburbs to the townships, giving away a portion of their wealth in some way (whose accumulation is fundamentally questionable historically on moral and ethical grounds), adopting African names, learning African languages, transferring their skills?”[15]

·       City of Tshwane Metropolitan Municipality v AfriForum

This approach was also evident in the 2016 judgement of the Constitutional Court in City of Tshwane Metropolitan Municipality v AfriForum regarding the renaming of streets in Pretoria.  The judgment has far-reaching implications for the rights of white South Africans in terms of sections 30 and 31 and raises serious questions regarding South Africa’s future as a society that honours the diversity of all its communities.  As Judges Cameron and Froneman observed in their dissenting judgment, “the implication that may be drawn from the first judgment is that any reliance by white South Africans, particularly white Afrikaner people, on a cultural tradition founded in history, finds no recognition in the Constitution, because that history is inevitably rooted in oppression”.

In his separate judgement, Judge Jafta, asked “How the unquestionably transformative Constitution can be expected to recognise cultural traditions rooted in the racist past? The answer must be, if there is such expectation, that it is misplaced.” He added that “racist and oppressive cultural traditions have no place in our constitutional order, even though they may exist in history. In contrast, such traditions belong in the dustbins of history where they ought to be buried.” “This” he concluded, “is a clear indication that any claim to the enjoyment of culture may not include an entitlement to racist and oppressive cultural traditions of the colonial and apartheid era.”

Since, virtually everything that whites did before 1994 could in one way or another be associated with “the colonial and cultural traditions of the colonial and apartheid era” the effect of this would be to deprive white South Africans of most of their culture and history with far-reaching implications for their right to human dignity and equality;[16]

·       The Accommodation of Minority Cultures in the National Symbols and the National Identity

Despite the inclusionary nature of the South African Constitution and the acknowledgement that “South Africa belongs to all who live in it, united in our diversity”, there is very little effort on the part of the national government to accommodate minorities in national symbols and in the national identity (with the exception of the national flag and the national anthem).  Heroes from minority cultures – and historic commemorations important to minorities – receive little or no recognition in national festivals or ceremonies.

On the contrary, the history and identity of the white minorities are routinely denigrated by national leaders as manifestations of ‘colonialism’ and no ‘respect is shown to those who have worked to build and develop our country’ as required in the Preamble to the Constitution. All this is based on an entirely one-sided – and routinely repeated – analysis of South Africa’s complex history.

“ (1) Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community—

(a) to enjoy their culture, practise their religion and use their language….

“(2) The rights in subsection (1) may not be exercised in a manner inconsistent with any provision of the Bill of Rights.

(1) Persons belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community—

…. (b) to form, join and maintain cultural, religious and linguistic associations and other organs of civil society

“(2) The rights in subsection (1) may not be exercised in a manner inconsistent with any provision of the Bill of Rights.

(1)a

(1) The primary objects of the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities are—

(a) to promote respect for the rights of cultural, religious and linguistic communities;

(b) to promote and develop peace, friendship, humanity, tolerance and national unity among cultural, religious and linguistic communities, on the basis of equality, non-discrimination and free association; and

(c) to recommend the establishment or recognition, in accordance with national legislation, of a cultural or other council or councils for a community or communities in South Africa.

(2) The Commission has the power, as regulated by national legislation, necessary to achieve its primary objects, including the power to monitor, investigate, research, educate, lobby, advise and report on issues concerning the rights of cultural, religious and linguistic communities.

(3) The Commission may report any matter which falls within its powers and functions to the South African Human Rights Commission for investigation.

(4) The Commission has the additional powers and functions prescribed by national legislation.

Although the CRLC has been active in the following areas it has never been regarded by threatened minorities as their champion – but rather as another exponent of views and programmes of the majority.

It has done little to address the concerns of cultural and language minorities regarding threats to their languages and cultures.  Neither has it been able to “recommend the establishment or recognition, in accordance with national legislation, of a cultural or other council or councils for a community or for communities in South Africa”.

·       Deaths caused by traditional initiation rituals

In June 2014 the CDL Commission released a report on public hearings on initiation schools in South  Africa.  There had been a spate of deaths during initiation ceremonies, with 401 and 18 deaths in respectively in the Eastern Cape and Limpopo Provinces from 2008-2013, while 67 initiates died in Mpumalanga from 2008-2014. The report acknowledges initiation ceremonies such as Ulwaluka, Koma and Lebello are important rights of passage and confer certain privileges and responsibilities but they must be carried out with respect to the law. It was suggested that bodies such as COGTA, SAPS, Department of Social Development and Department of Health need to get involved to remedy the situation.

·       The Commercialisation of Religion

Between October 2015-March 2016 CRLC undertook a fact-finding mission across 9 South African to address concerns over the commercialization of religious activities and institutions.  In October 2017, 18 religious groups made presentations to Parliament about the CRLC’s report in this regard. Most of the groups agreed that the issues being raised by the CRLC are serious but believed that it was unconstitutional and beyond the mandate of the CRLC to try to control religious affairs. They insisted the CRLC was supposed to act in a capacity to monitor, protect and promote religious rights and should not try to regulate religious affairs in the same way countries like China, Russia and India do. There was also a complaint of Christian bias in the consultations and that enough structures were already operating to address the issues mentioned in the report.

·       Endorsement of the South African Charter of Religious Rights and Freedoms.

In April 2016 the CRLC endorsed the South African Charter of Religious Rights and Freedoms.[17]

·       The Hairstyles of Black Schoolchildren

In September 2016 the CRLC condemned the treatment which black pupils were receiving as a result of school codes of conduct which did not take into account their language, cultural identity, hair and beliefs.

“The right of the South African people as a whole to self-determination, as manifested in this Constitution, does not preclude, within the framework of this right, recognition of the notion of the right of self-determination of any community sharing a common cultural and language heritage, within a territorial entity in the Republic or in any other way, determined by national legislation.”

The following provision was included at the last minute in the 1993 Interim Constitution as one of the immutable principles (No XXXIV) that would frame the final Constitution:

“1. This Schedule and the recognition therein of the right of the South African people as a whole to self-determination, shall not be construed as precluding, within the framework of the said right, constitutional provision for a notion of the right to self-determination by any community sharing a common cultural and language heritage, whether in a territorial entity within the Republic or in any other recognised way.

2. The Constitution may give expression to any particular form of self- determination provided there is substantial proven support within the community concerned for such a form of self-determination. 3. If a territorial entity referred to in paragraph 1 is established in terms of this Constitution before the new constitutional text is adopted, the new Constitution shall entrench the continuation of such territorial entity, including its structures, powers and functions.”

In fact, the ANC never had any intention of giving any recognition to this provision of the Constitution.  It admits that it cynically manipulated the negotiations and presented positions and offers that it had no intention of fulfilling:

“Among the tactical options the ANC was compelled to consider was that of accommodating the demand for a Volks chamber on the part of the White ultra-right. I submit that it would be utterly wrong to interpret this as some form of recognition of the right to self-determination on the part of the Afrikaners.

“ Firstly this would violate every precept of international law as it has evolved since 1945, and would also run counter to the ANC’s own conception of self- determination.

How then do we view our acceptance of the Volks chamber?

“The example of the Volks chamber serves to highlight a concession that is most glaringly inconsistent with both the democratic foundations of the South African constitution and the tradition to which the ANC has always adhered. There are a number of others, perhaps less jarring, which had to be made at the time as a means of smoothing the transition. It is however of paramount importance that we assess whether these were temporary arrangements which should not be allowed to congeal into a status quo or were regarded as options that could become permanent.[18]

The existence of Orania, geographically located near the Gariep Dam could be construed as a form of self-determination. Essentially, it is a farm on which a number of Afrikaners built a town and are living according to their own cultural values. It is generally tolerated (also by the ANC government), but mainstream of Afrikaners have no wish or intention to live there.

THE PROMOTION AND PROTECTION OF MINORITY CULTURAL, RELIGIOUS AND LINGUISTIC RIGHTS IN INTERNATIONAL CONVENTIONS AND IN THE SOUTH AFRICAN CONSTITUTION

CULTURAL, RELIGIOUS AND LINGUISTIC

RIGHTS

1946

1966

1966

1992

1992

1992

1996

EQUALITY AND NON-DISCRIMINATION

Art. 15.2

3

Prohibition of Hate Speech

Art. 15.2

CULTURE, RELIGION AND LANGUAGE

Art. 13

Section 30

7

Freedom of religion

Art 18

Art 8

Art 2.2

Section 15

EDUCATION

Art. 14.3

POLITICAL PARTICIPATION

12

Right to Autonomy/Self-Determination

Art. 4

Art. 5

Art. 20

Section 235

Art. 19

PUBLIC ADMINISTRATION