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.
Earlier this week the Democratic Alliance (DA) criticised the announcement by the Vice Chancellor of the University of Stellenbosch (now partly retracted) that from next year “all learning at Stellenbosch University will be facilitated in English, and substantial academic support will be provided in other South African languages, according to students’ needs”. Those who sprang to the defence of the DA trotted out several arguments in defence of the existing language policy at Stellenbosch. However, none of these arguments are valid.
“Choices” about the use of languages are highly political. “Decisions” by citizens about which languages to use (and in which contexts to use those languages), are not innocent choices made by free-floating individuals with no connection to the political and economic realities of a country. In fact, these “choices” are often not choices at all, but are forced on individuals.
While a first language Afrikaans lecturer teaching at Stellenbosch University may, for the moment, still have a real choice to speak Afrikaans to colleagues and students, a first language isiXhosa lecturer teaching at Stellenbosch University will not have that choice. He or she will be forced to speak either Afrikaans or English. This power to really choose your language of communication is probably invisible to most first language English speakers (and to quite a few first language Afrikaans speakers too) because where the power is so total it often becomes invisible to those who wield it.
The fact that most of us use English as a lingua franca in South Africa cannot be divorced from the colonial history of this country and from the relative economic, social and political power of the English colonisers in South Africa and of the geopolitical dominance of countries where some form of English is spoken.
I am writing this article in English (and not, say, in Afrikaans, isiXhosa or isiZulu) because South Africa was colonised by the British and because English is the main language used by the citizens of the dominant powers of the 19th century (the United Kingdom) and the 20th century (the United States of America).
Of course, if I had written this article in 1970 I might well have done so in Afrikaans (my home language) because the Afrikaner Nationalists of the apartheid regime used their economic and political power (and the social status bestowed by this power), aggressively to impose Afrikaans on the people of South Africa. Those whose memories are not impaired by their privilege will recall that it was exactly an extreme attempt to impose the use of Afrikaans on schoolchildren which sparked the Soweto uprising of 1976.
Those of us who grew up with the (sometimes sweet and sometimes bitter) taste of Afrikaans in our mouths, who love Afrikaans in our own complicated and heart-breaking way despite the knowledge that it was the language in which Steve Biko and many others were tortured, are all too aware of the political nature of language. Sadly, this knowledge has not led all white Afrikaans speakers to reflect on the ways in which our language was used to brutalise others. Neither has it instilled much humility in the majority of white people who speak Afrikaans.
The debate about whether Stellenbosch University should be allowed to continue using Afrikaans as the dominant medium of instruction when this excludes many students and thus reinforces racial discrimination at the University, is therefore a highly political debate. It is a debate about power and dominance; about who counts and who is rendered invisible, about whether a national asset like the University of Stellenbosch – partly funded by public money – should be allowed to advance the interests of a small but economically privileged group or whether it should serve the needs of all South Africans.
When the DA invokes the (qualified) constitutional right to be taught in the official language of your choice to defend the status quo at Stellenbosch, it is deploying the discourse of rights, not to protect the rights of everyone, but rather to protect the political and economic interests and the social status of a group who happens to have been the main beneficiaries of apartheid exploitation and oppression. This position is not pro-human rights: instead it is anti-human rights as it argues in favour of a policy that discriminates against the vast majority of South Africans on the basis of their race.
Recall that currently Stellenbosch University provides for Afrikaans and English to be “applied in various usage configurations”, which allows for the exclusive use of Afrikaans in some lectures “where resources for multilingual presentation of a course are not available”.
This means if you cannot speak Afrikaans, you may not be able to study at Stellenbosch because you run the risk of having to take a course exclusively offered in Afrikaans. All students who access Higher Education in South Africa have a basic competence in English. The majority of black students do not have such competence in Afrikaans. This means the policy excludes a majority of black students and thus discriminates against black people on the basis of race.
Section 29(2) of the Constitution only provides a qualified right to be taught in your home language. It can only be done “where that education is reasonably practicable”. It could never be reasonably practicable to do so where the policy discriminates against others on the basis of race.
This is made clear by section 29(2) which states that when deciding on whether it would be reasonably practical to maintain a University for Afrikaans speakers, it would require us to take account of “the need to redress the results of past racially discriminatory laws and practices”. As any policy that disqualifies the majority of black students from accessing the University will impede redress and not promote it, I cannot imagine that the Constitutional Court will ever agree that Afrikaans speakers have an absolute right to be taught in Afrikaans at a publically funded University to the exclusion of others.
Of course, a policy that allows every single student to be taught in English, while also attempting to cater for those who wish to be taught in Afrikaans or isiXhosa (in the Western Cape), would not suffer from the same constitutional defects as it would not discriminate against the majority of people on the basis of race. It would be for an individual University to decide whether it wishes to divert its scarce resources into the creation of additional opportunities also to be taught in Afrikaans or isiXhosa
DA supporters of the current discriminatory language policy at Stellenbosch University do not only argue in favour of their position on the clearly misguided assumption that the right to be taught in Afrikaans at Stellenbosch to the exclusion of black students is constitutionally enshrined. Some also argue that because almost 50% of people who live in the Western Cape speak Afrikaans Stellenbosch University should have the right to cater to students who speak Afrikaans to the exclusion of those who do not speak the language.
This argument fails to recognise that higher education is not a provincial competence over which the provincial government has any say. The Constitution explicitly reserves this power for the national government in recognition of the fact that – unlike primary education – higher education is a matter of national concern that speaks to the needs of the country as a whole – not the needs of a particular community concentrated in one province, region or suburb. Universities are therefore national assets and provide access to opportunities to students from across the country.
While there are hundreds of schools in each province, there are only 25 Universities in the country. Places at Universities – especially good Universities – are limited and highly sought after. For this reason, many students attend a University in a province where they do not live. After they graduate they are free to take up a job anywhere in the country. To allow a University to impose a language policy that would exclude the vast majority of students in the country would therefore create special privileged access for an already privileged minority to a national asset.
Some DA members also say a policy that allows for the exclusive use of Afrikaans in some classes at Stellenbosch would promote diversity as it would allow students to be taught not only in English but also in Afrikaans.
Of course, the opposite is true. The current language policy has made Stellenbosch University the least diverse University in South Africa. If you believe that the creation of “separate but equal” facilities promotes diversity (as the apartheid state did) then the current Stellenbosch model will be to your liking. But if you recognise that this kind of language apartheid (used to enforce a degree of racial apartheid) is not only morally reprehensible but also inhibits the creation of a more diverse student body, you cannot defend the current model.
True diversity requires the creation of a University in which the student body is truly diverse in terms of race, sex, sexual orientation, language and culture, a University in which no student feels alienated or marginalised because she is a woman, or a lesbian or black or a Xhosa speaker. Such a diverse institution will be one that provides a better quality education and will produce better, more well-adjusted and less intolerant, graduates.
This is so because it would create a learning environment in which students will learn from one another. Currently students studying at the University of Stellenbosch are at a distinct disadvantage because the overwhelming majority of students are still white and speak either Afrikaans or English. This impoverished and insipid university experience robs all students of a properly rich and stimulating education.
Stellenbosch University is faced with a stark choice. It can choose to retain the current discriminatory language policy while its reputation steadily erodes and the quality of its degrees deteriorates. Or it can choose to abolish the discriminatory language policy, providing its ever more diverse body of students with a more intellectually challenging and exhilarating learning experience.
Hopefully the University management will not be swayed by the arguments advanced those who support a “separate but equal” educational experience for Afrikaans students at Stellenbosch.BACK TO TOP