As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
The recent Constitutional Court judgment invalidating a decision by Unisa to discontinue Afrikaans as a language of learning and teaching at the institution surprised many of us. But on closer inspection, the judgment is not as impactful as it may appear. Moreover, the judgment raises important questions about the duty of universities to offer more courses in indigenous African languages, and the duty of the government to fund this.
The South African Constitution recognises Sepedi, Sesotho, Setswana, siSwati, Tshivenda, Xitsonga, Afrikaans, English, isiNdebele, isiXhosa and isiZulu as South Africa’s official languages. Recognising the historically diminished use and status of the indigenous languages of South Africa because of colonialism and apartheid, section 6(2) of the Constitution imposes a duty on the state to “take practical and positive measures to elevate the status and advance the use of these languages” to ensure, in accordance with section 6(4), that all official languages “enjoy parity of esteem” and are treated equitably.
It would be difficult to argue that the state is fulfilling its obligations in this regard and that all official languages currently enjoy “parity of esteem”, or that they are all treated equitably by the state and state institutions. (Incidentally, the term “parity of esteem” was a core concept in the Northern Ireland peace process, from where it found its way into section 6 of the South African Constitution, as the late Prof Kader Asmal kept reminding me back in 2007 when I worked as a legal adviser to the ad hoc Committee on Chapter 9 institutions, which was chaired by Prof Asmal.)
English is firmly entrenched as the lingua franca of South Africa, with almost all legislation, official government documents, court judgments and government press statements currently only available in English. Because Afrikaner Nationalists aggressively promoted Afrikaans after the National Party came to power in 1948 (and invested huge resources into the development of the language), Afrikaans enjoyed a special status when apartheid formally ended in 1994.
Although the status of Afrikaans has diminished since, it still enjoys a higher status and special privileges not accorded to other indigenous South African languages. Conversely, and as a direct result of colonialism and apartheid, indigenous African languages remain marginalised, with not enough being done to support and strengthen their use in the public sphere.
The latter is one of the reasons I have largely been in agreement with the reasoning of recent Constitutional Court judgments dismissing challenges to the downscaling of Afrikaans at various universities. For example, in AfriForum and Another v University of the Free State, the court dismissed the claim that the University of the Free State policy that phases out Afrikaans as a co-equal medium of instruction with English was unconstitutional. Similarly, in Gelyke Kanse v Chairperson of the Senate of the University of Stellenbosch, the court dismissed a challenge to the constitutionality of the University of Stellenbosch language policy that diminished the status of Afrikaans at that university.
These judgments acknowledge that the use of Afrikaans as the primary or parallel medium of instruction at these institutions had racial overtones, excluded or marginalised black students, and (in the University of the Free State case) perpetuated racial segregation and racism. Given the reasoning in these judgments, I expected AfriForum to lose its case when it challenged the decision by Unisa to discontinue Afrikaans as a language of learning and teaching. AfriForum did lose in the high court, which held that considerations of equity, practicability and the need to redress the results of past racially discriminatory practices, permitted Unisa to discontinue the use of Afrikaans as a language of teaching and learning.
But the judgment was overturned on appeal to the Supreme Court of Appeal (SCA), and in Chairperson of the Council of Unisa v AfriForum, the Constitutional Court (in a unanimous judgment penned by Justice Madjiet) largely endorsed the SCA judgment. The case centred on the application of section 29(2) of the Constitution, which entrenches “a qualified right to be taught in a preferred official language at a public institution of learning” if this is reasonable and practicable. In terms of this section, an institution would not be required to continue offering instruction in, say, Afrikaans, if it would be too costly to do so. Moreover, where the use of more than one language would disadvantage some students, hamper the redress of past discrimination or perpetuate racial exclusion, such an institution would not be justified to continue with the use of Afrikaans.
The Constitutional Court suggested that this case was distinguishable from the Free State and Stellenbosch cases because Unisa was a distance learning institution where the use of Afrikaans was not likely to marginalise or stigmatise black students or lead to racial segregation. But the case was really lost because Unisa had completely mismanaged the process of changing the language policy and had failed to provide any facts to the court to justify the decision it took. It wrongly argued that it was not bound by section 29(2) of the Constitution and seemed to have assumed that the court would side with it without it having to show why it was not reasonably practicable to continue offering some courses in Afrikaans.
But this may have been a pyrrhic victory for AfriForum as the Constitutional Court in effect gave Unisa another chance to fix the mess it had itself created, by referring the matter back to the university for reconsideration. The court held that when reconsidering the matter, Unisa “may insist on a language policy that jettisons Afrikaans as a language of teaching and learning, after complying with all the constitutional and legal precepts, or [may] decide to properly reinstate the status quo as it prevailed in 2016 before the impugned language policy was adopted”. The judgment may therefore not have any practical effect, as it may well result in Afrikaans being discontinued again.
For me, the most interesting aspect of the case relates to the argument advanced by Unisa that the phasing out of Afrikaans was necessary to institute measures to enhance the status of indigenous African languages at the university. Unisa’s challenged language policy stated in this regard: “Where there is capacity, a selected number of modules and programmes will progressively be offered in more than one official South African language in order to support relevant national policies.” Unisa argued that whereas the previous language policy entrenched English and Afrikaans, “whilst paying lip service to developing other African languages”, the new language policy enabled Unisa to offer courses in African languages as well as in Afrikaans.
When I first read this, it looked like a winning argument to me, as section 29(2) of the Constitution states that the “the need to redress the results of past racially discriminatory laws and practices” is one of the factors to be taken into account when deciding whether the language policy of the university is reasonable and thus constitutionally compliant.
I would argue that the introduction of courses conducted (partly or fully) in indigenous African languages would be an important step to address the effects of past and ongoing racial discrimination at a university, and that a university that chooses to spend its money on this, rather than on the retention of courses taught in Afrikaans, would be acting reasonably and would thus be constitutionally justified to do so. (The same would be true of a university that offers some courses in several indigenous languages, including in Afrikaans.)
I believe that offering at least some courses at higher education institutions in indigenous African languages would have many benefits, all directly or indirectly related to racial redress and a reckoning with our colonial past.
There is ample evidence that most students will benefit from being taught (at least some) material in their indigenous mother tongue, as one tends to learn better and faster in a language one is intimately familiar with. Indigenous mother tongue education also reduces feelings of marginalisation by students and fosters a sense of belonging. This is especially important in anti-black environments (whether the dominant language in that environment is Afrikaans or English) in which students who are not English or Afrikaans first-language speakers are often wrongly made to feel that their proficiency in English serves as a measurement of their intellectual abilities.
Moreover, if universities offered some courses or parts of courses in indigenous African languages, it would promote redress in the sense that proficiency in an indigenous language would become a prerequisite for specific teaching positions, thus disqualifying many white applicants. It would send a message to white South Africans who are not proficient in that particular indigenous language, that they are just not good enough for a position because they lack the basic skills to do the job.
This is not insignificant, as the concept of “merit” is partly constructed in the image of economically and socially dominant groups in society. (Which is why some people still believe that proficiency in English, as well as the “right” English accent, speaks to the abilities of an individual if that individual is not white.) However, where “merit” is partly determined by whether one is proficient in an indigenous African language, it may therefore disturb deeply entrenched beliefs about the cultural supremacy of mother-tongue English speakers and white South Africans more broadly.
An institution that does not merely pay lip service to multilingualism, but commits substantial resources to develop indigenous African language teaching and learning, would also be better placed to justify the use of Afrikaans in selected courses. In such an institution, Afrikaans would stop having a privileged status, but would become only one of the indigenous languages in which selected courses are offered.
To be fair to the Constitutional Court, it must be noted that it rejected Unisa’s argument that it was ditching Afrikaans to allow it to offer more courses in indigenous South African languages, because Unisa failed to provide any evidence that the discontinuation of the one (Afrikaans tuition) is essential for the enablement of offering tuition in the other official languages, other than English. There is also nothing in the judgment to indicate whether Unisa had in fact introduced more offerings in indigenous South African languages since it dropped Afrikaans.
Given the hegemonic nature of English as an academic language, it is inevitable that South African universities of substance will continue to offer a majority of their courses (and probably all postgraduate courses) in English. Being able to engage effectively with one’s discipline in English remains a core skill that students need to acquire to flourish in the globalised world (the less said about globalisation the better) and universities would be failing students if they did not impart this skill to students. But this skill is more easily acquired in a multilingual environment in which students are able to engage with ideas in both English and in their mother tongue.
Opponents of multilingualism in education often argue that it is not practical to do so, and that it would require resources universities do not have. The latter is true, as far as it goes, because there appears to be no political will in South Africa to invest adequate resources in the promotion of indigenous language education. What needs to be asked is why our government has not made such resources available and why this has not yet become a major political issue.BACK TO TOP