Just before the end of 2017, and while South Africa almost came to a halt during the Christmas holidays, an extremely important ruling almost passed unnoticed. Chief Justice Mogoeng delivered the majority ruling in Afriforum's leave to appeal in the case on the University of the Free State's language policy. He did so without having heard any oral arguments and dealt simply with the documents before the court. He and seven (black South African) judges denied the leave to appeal, and Judge Froneman and two other (white South African) judges differed in a minority ruling.
The question was whether the new English only language policy of the UFS was contrary to section 29(2) of the Constitution and the Ministry of Higher Education's language policy. Chief Justice Mogoeng with the majority ruled that the decision of the UFS was correct and in line with both the Constitution and the ministerial language policy.
The essence is not about the UFS and its language policy. One could argue that, given the changing demographics of that university, Afrikaans would not have a chance of survival on the medium and long term anyway. It is rather about what in law is referred to as "precedent". What is the impact of this judgment on the only two other public universities that still have limited use of Afrikaans, and on the 2500 schools that still use Afrikaans as language of tuition? But before we look at the impact of this in a second article, we first have to consider the Court's ruling in detail.
The core argument in the majority ruling is that the acceptance of the UFS's argument that the parallel use of Afrikaans by the UFS is discriminatory, and therefore unconstitutional. In this regard, Chief Justice Mogoeng said that in South Africa's transitional phase from racism and inequality to non-racialism, equality and high quality higher education, access should be given to the right to education in the official language of your choice, but without undermining equitable access, preserving exclusivity or perpetuating racial supremacy. It would be unreasonable to give some people unrestricted access to and success in education at the expense of others, as a direct consequence of a "blind pursuit" of the right to education in the language of one's choice, especially where everyone can receive proper education in one communal language (English, by implication). Inequitable access and the (even unintentional) entrenchment or fuelling racial disharmony will be justification for taking this right to mother tongue education away. Then that right no longer passes the test of "reasonably practical".
The problem with this argument is that it is not based on empirical evidence before the Court, but on written allegations of the UFS's management - and of course the so-called "context" provided by the Chief Justice himself. Justice Froneman in the minority ruling uses the following strong words about it: “I am not aware that this Court has yet concluded that the mere exercise of a constitutionally-protected language right can amount to unfair racial discrimination that would necessarily justify taking away that right. This is a novel and important issue”.
The minority ruling states that the majority ruling has enormous implications outside of the UFS campus, as it "sanctions an approach that deprives speakers of one of our official languages of the constitutional right to receive education in the language of their choice. This is not an issue that has been dealt with authoritatively by this Court before."
It is said that someone that is aware of his subjectivity, can have the highest degree of objectivity. This is apparently not applicable to the majority ruling. Probably to defend himself against criticism about subjectivity, the Chief Justice states that judges should not be biased towards Afrikaans based on its historical role. But then he continues to do exactly that - in an almost complacent manner. It reminds one of Marx and Engels that said that the ideology of the rulers becomes the ideas of society. The majority's ideology is very clear here. The "context" given by the ruling is a barely hidden manner to bring the radical transformation ideology into play. Chief Justice Mogoeng even uses the words radical transformation as a constitutional imperative. He selectively quotes from the Gerwel report and the ministerial language policy, but conveniently does not mention that in 2001, Gerwel recommended that two universities become the guardians of Afrikaans, and that the ministerial policy unequivocally states that the use of Afrikaans as a national asset must not be abolished and can be retained by various options. This fact was also pointed out by the minority ruling.
With parts of the Chief Justice's ruling, it is impossible to distinguish between his words and statements from the UFS's management, as he quotes them in agreement. For example, the Chief Justice says:
Now, unlike then, united in their diversity, the University community has overwhelmingly decided in favour of English as the sole medium of instruction. Afrikaans is being phased out as a medium of instruction to advance a constitutionally-inspired transformational agenda. The aim is to deracialise classes, foster unity and reconciliation and to defuse observable racial tensions, but certainly not to impose any of the home languages of those in government on Afrikaners or others.
This statement was made even before he considered and judged the merits of the case, as part of the "context”.
And later, when the concept of "reasonably practicable" is discussed, he says:
It will be unreasonable to slavishly hold onto a language policy that has proved to be the practical antithesis of fairness‚ feasibility‚ inclusivity and the remedial action necessary to shake racism and its tendencies out of their comfort zone.
It almost sounds as if it is the Reitz Four that are o trial, and not the language policy of the UFS.
Of course, one has to accept the majority ruling. This is what respect for the law and the judiciary requires. However, it does not mean that one must agree with it or to let it pass unchallenged. There is, in addition to the subjectivity, some fallacious arguments underlying the majority judgment - which in a number of cases are also pointed out by the minority ruling.
The first gross faulty argument is that Afrikaans is a white Afrikaner language. Neither the census of 2011 nor the language realities in the Western, Northern and Eastern Cape support this myth. The majority of Afrikaans speakers (more than 60%) are not white. To punish Afrikaans is to penalize formerly disadvantaged people politically and linguistically - and there are thousands of young coloured people who do not only want to study in Afrikaans, but also are unable to reach their full potential in English.
The second faulty argument is that the majority ruling did not at all take into account the intention of the authors of the Interim Constitution in 1994 and the final Constitution in 1996 with the highly artificial interpretation of section 29 (2). This article was an inherent part of the political compromise and reconciliation process. To throw it in the trash can of history through an argument of changing circumstances, goes directly against the intent of the Constitutional Assembly. Just ask the new president of the ANC - he was the chairman.
In addition to this is the fact that the majority ruling violates several linguistic rules by its interpretation of "reasonably practicable" in section 29 (2). "Reasonably" is and remains an adjective that qualifies the adverb "practicable". These are not two concepts, of which the first is normative and overshadows the former. How the Supreme Court of Appeal and the majority ruling could make this interpretation, can only be explained by the presence of ideological thinking that apparently aims to show Afrikaans the public education door at all costs.
A third faulty argument is that enforcing English (the colonial repressive language par excellence) is the only way to achieve reconciliation and cohesion at university campuses. The minority ruling shows that the majority missed the irony that the UFS's chosen language, English, has been favoured for a long time (if not more) than Afrikaans. Judge Froneman quotes former judge Albie Sachs and points out that because of the power and omnipresence of English "all language rights are rights against English". The confirmation of the English only language policy of the UFS, is an injustice to all languages apart from English. The minority ruling itself states that the majority ruling did not even mention the state's constitutional obligation to promote other official languages. Judge Froneman rightly pointed out that there is a complete lack of recognition in the majority ruling that Afrikaans remains a minority language, and that there are sufficient international sources that support the view that minority languages are entitled to special protection measures.
A fourth error is that the majority judgement accepts the good faith of the UFS without hesitation. The argument is that if there were a reasonable alternative to respect the constitutional rights of Afrikaans speaking students, the university would have implemented it. Even the argument that Afrikaans was causing racial tension and that (all) Afrikaans students caused it, was accepted. The majority ruling does not see the hypocrisy of the UFS that the evil Afrikaans will still be used in theology and education, because of what is called "market demand". This is rather praised as an example of the UFS's flexibility and its commitment to (at least) maintaining constitutional norms. It is clear, however, that the UFS in these two faculties has merely kept Afrikaans to make sure they do not lose the majority of Afrikaans students who study in it. Money has the last word, not the highly lauded and constitutionally driven transformation.
The fifth error is that the majority ruling completely misses the internationally proven importance of mother tongue education. The Chief Justice, in his uncritical acceptance of the UFS management's arguments, concludes that Afrikaans "has fallen into relative disuse" because Afrikaans students largely prefer English. No empirical evidence has been offered to support this, a fact that the minority decision also points out. South Africa's failing education system is continuous proof that mother tongue education should not be so easily discarded.
Finally, it is more than interesting and very significant that the verdict of chief justice Mogoeng was supported by seven fellow black judges and that the minority ruling of Judge Froneman was supported by two white judges (two of whom are Afrikaans speakers). One does not want to pit the honourable judges against each other, but if such developed and intelligent jurists can not even agree on the emotive issue of language in section 29 (2), how can Chief Justice Mogoeng expect that by getting rid of one language at a university, reconciliation, racial harmony and nation building will follow? This is a fundamental error often encountered in arguments around nation building.
The majority judgment regards Afrikaans subjectively as the main problem for access and quality in higher education. It is viewed as the language of domination and oppression and alienation and inaccessibility. The Court can, however, prepare itself for another case, not long from now. The student applicants will complain about alienation and domination and lack of accessibility. It will not come from one of the evil historically-Afrikaans universities. The university will be that Cape Town, the students will be black and the language that alienates and dominates is English...
Theuns Eloff is Executive Director of the FW de Klerk Foundation. This article first appeared in Afrikaans on Netwerk24