On 10 November 2017, the Centre for Constitutional Rights (the Centre) added its voice of opposition to the Draft Basic Education Laws Amendment Bill (the Bill), which amends the South African Schools Act of 1996 (Schools Act).

The Centre’s submission was restricted to the amendments pertaining to admission and language policies of public schools. A public school’s School Governing Body (SGB) currently has the exclusive power to determine these two policies. Essentially the amendments propose that these two policies must be approved by the Head of the Provincial Education Department (HoD), based on certain undefined factors. Additionally, the HoD may also “direct” a public school to adopt an additional language of instruction if “practicable”.

1. 1. The Centre for Constitutional Rights (CFCR) is a unit of the FW de Klerk Foundation – a non-profit organisation dedicated to upholding the Constitution of the Republic of South Africa, 1996 (the Constitution). To this end, the CFCR seeks to promote the Constitution and the values, rights and principles enshrined in the Constitution; to monitor developments including legislation and policy that may affect the Constitution or those values, rights and principles; to inform people and organisations of their constitutional rights and to assist them in claiming their rights. The CFCR does so in the interest of everyone in South Africa.
   2. Accordingly, the CFCR endeavours to contribute positively to the promotion and protection of our constitutional democracy. This includes the achievement of real and substantive equality and equitable access to land and other resources, but with due regard for those rights concerning property and administrative action that is lawful, reasonable and procedurally fair, as provided for in the Constitution.
      

In June, the South Gauteng High Court (the High Court) ruled in favour of the Organisasie vir Godsdienste-Onderrig en Demokrasie (OGOD) in a matter concerning the promotion of religion in South African public Schools. The premise of the application was that there is a bias in favour of the Christian faith in public schools, and that this bias is in contravention of the Constitution. The High Court found that public schools, as state institutions, cannot promote a single religion to the exclusion of others.

Did the University of the Free State (UFS) fail to respond to Afrikaans students’ section 29(2) constitutional right? This, 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.

This is the second article in a series of four analysing the recent Supreme Court of Appeal judgment in the matter of University of the Free State v Afriforum and Another (SCA judgment).

A crucial finding made in the SCA judgment related to the reviewability of the University of the Free State’s decision (UFS decision) to replace its dual-medium language policy with a single-medium language policy. The SCA held that the UFS’s decision was not “administrative action” as defined in the Promotion of Administrative Justice Act of 2000 (PAJA) and therefore only the rationality of the decision could be reviewed by the Court. The aforesaid finding, given the provisions of section 29(2) of the Constitution, is the key issue to be decided in Afriforum’s appeal to the Constitutional Court.