Issued by the FW de Klerk Foundation on 23/01/2024

The recent decision by the Legal Practice Council (“LPC”) to conduct all exams for candidate attorneys and pupil advocates exclusively in English has sparked significant controversy and discontent among various stakeholders. This move, ostensibly aimed at achieving uniformity and addressing “perceived advantages” to Afrikaans-speaking candidates, raises profound constitutional concerns, particularly in the context of educational and language rights.

This decision, seen alongside the ongoing legislative developments encapsulated in the Basic Education Laws Amendment Bill (“BELA Bill”), becomes a critical aspect of the evolving language and education landscape in South Africa. The BELA Bill proposes substantial changes to the South African Schools Act (“SASA”) and the Educators Employment Act, aiming to transform the education sector. The correlation between the LPC’s “English only” decision and the BELA Bill underscores the deepening challenges facing linguistic and cultural diversity in South Africa.

Section 29(2) of the Constitution guarantees the right to education in the official language of choice in public educational institutions. Section 6(2) imposes a duty on the State to take practical and positive measures to elevate the status and advance the use of indigenous languages. The removal of Afrikaans examinations at the LPC may be seen as a direct infringement on these rights, especially for those whose mother tongue is Afrikaans. As opposed to elevating the status and advancing indigenous languages, by offering exams in more official languages, the LPC’s decision clamps down on them.

The constitutional concerns are not confined to language and educational rights alone. The decision also invokes broader issues related to equality, as contemplated in section 9 of the Constitution. The perception that Afrikaans-speaking candidates have an unfair advantage, which ostensibly underpins the LPC’s decision, raises questions about the principles of inclusivity and equal opportunity. It is evident that the LPC’s decision may perpetuate inequality, as some candidates may face additional challenges due to the language medium.

In reinforcing these constitutional concerns, it is imperative to acknowledge the erosion of Afrikaans at both basic education and tertiary education levels. In a 2019 case, the LPC was compelled to reverse a similar decision, exemplifying the ongoing challenges to language rights. The 2023 FW de Klerk Foundation CRL Report Card highlights the threats posed to cultural, religious, and language rights in South Africa, further underscoring the urgency of addressing these issues comprehensively.

The ethos should be to unlock the economic, educational, socio-cultural, and many other possibilities embedded in our indigenous languages, rather than to stifle it. The possibilities encompass deepening intellectual thought, unlocking creative and innovative thinking, and job creation through the establishment of new businesses especially in the context of the cultural economy and trendy educational material. The possibilities are endless.

In conclusion, the LPC’s decision to scrap Afrikaans examinations, as opposed to expanding the selection of official languages the examinations are offered in, raises grave constitutional concerns. The erosion of language rights, the potential discrimination against Afrikaans-speaking candidates, and the broader implications for the diverse linguistic landscape of South Africa, underscore the need for a comprehensive and constitutionally sound approach to education and language policies. As the constitutional dialogue unfolds, it is imperative to uphold the principles of inclusivity, equality, and linguistic diversity embedded in the foundational document of South Africa – its Constitution.