Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
18 May 2013

Oh Shucks, there’s a Zulu in my curriculum

The University of KwaZulu-Natal has announced that it will make isiZulu language classes compulsory for all first-year students from next year. This modest step, aimed at promoting multilingualism in South Africa, has been sharply criticised. Some have compared it to the introduction of Afrikaans as the medium of instruction in schools in 1976 (a move that that led to the Soweto uprising) while others have argued that the move is unconstitutional. It is nothing of the sort.

The University of KwaZulu-Natal introduced the compulsory isiZulu classes to promote “nation-building” and to bring “diverse languages together”. isiZulu is among the most widely spoken official languages in South Africa and is the mother tongue for about 23% of the population.

Section 6 of the Constitution recognizes 11 official languages in South Africa and requires that “all official languages must enjoy parity of esteem and must be treated equitably”. (The late Kader Asmal was particularly proud of the inclusion of the phrase “parity of esteem” in section 6 as he borrowed this phrase from the Irish Constitution.)

This does not mean that the Constitution requires all languages to be treated in exactly the same manner in South Africa. It only requires that languages must be treated fairly, depending on how widespread the usage of a particular language is in a province and taking into account other considerations of practicality and expense. Just like Afrikaans could be treated less favourably in Limpopo and KwaZulu-Natal than in the Western Cape, so isiXhosa could be treated less favourably in Mpumalanga and Free State than in the Eastern Cape.

Despite these constitutional provisions, we all know that in South Africa  – for many elites, at least – English is more equal than other official languages. English is also the only language in which many white South Africans are conversant. Because English is a language spoken by the leaders of economically and military dominant nations like the United States, monolingual English speakers who have never travelled to South America, parts of Europe (like Spain) or China could go through life laboring under the bizarre misconception that all clever and educated people speak English.

Despite the fact that section 6 of the Constitution recognizes the “historically diminished use and status of the indigenous languages” (other than Afrikaans) due to the effects of colonialism and apartheid, and requires the state to “take practical and positive measures to elevate the status and advance the use of these languages”, little has actually been done by the South African state to promote multilingualism in society.

I think it a brilliant idea for a University to require all first year students to study the dominant neglected indigenous language of the region in which the university is situated (in other words, not Afrikaans or English, the two languages officially promoted and advanced during apartheid and the two languages still most economically dominant in South Africa). It is a pity that all other South African Universities won’t follow suit and that, say, the University of Cape Town is not going to require all first year students to study isiXhosa.

By officially requiring first year students to study a neglected indigenous language, a University would signal its willingness to engage in a practical manner with the cultural diversity of its surroundings. The move would help to promote an awareness of multilingualism among those South Africans who go through life only speaking English. It would also promote understanding and respect for diverse cultures, because language and culture is so closely connected.

Of course, there is nothing in the Constitution that prohibits a University from requiring students to take a specific course. Just as a University can force all students to take a course in English, in Media Studies or in Mathematics, so it can force all students to take a course in isiZulu. Students who do not like taking that compulsory course can always choose to study at another University.

For obvious reasons of fairness, I would not support a move by a University to force students to take one of the languages unfairly advantaged by apartheid (in other words, Afrikaans and English), but even if a University did require study of such a language, this would not be unconstitutional. It would just be politically untenable and unfair.

The move by the University of KwaZulu-Natal is not that different from the decision by the University of the Free State that all first year students be required to pass a course that engages critically with both local and global issues. The Free State course – another brilliant idea that is sadly not being followed by other Universities – is aimed at promoting diversity literacy among students and to promote social cohesion amongst students. Students who wish not to take such a course can, of course, choose to register, say, at Walter Sisulu University where taking such a course is not required.

Of course, the situation is slightly different when a University does not only require all students to take a particular language course, but when it decides to make a particular language (not widely spoken by potential students) the medium of instruction. If the University of KwaZulu-Natal required half of all lectures to be taught in isiZulu, interesting legal and moral questions would arise. Such a move would exclude most white students from attending the University and could arguably be seen as unfairly discriminating against those excluded students on the basis of race.

The issue would be complicated by the fact that isiZulu is a language diminished by apartheid and by the fact that white people are generally still reaping the benefits of apartheid, making it more difficult for white people to convince a court that an exclusionary policy unfairly discriminated against them. I am therefore in two minds about whether the compulsory use of isiZulu as a language of instruction at the University of KwaZulu-Natal would be found to be unconstitutional or not. (It would probably be academically unwise, because it would preclude many good students from attending that University.)

The situation is more problematic at an institution like Stellenbosch, where an insistence on the exclusive use of Afrikaans as a medium of instruction in certain classes would unfairly discriminate against many black South Africans. As Afrikaans was given preferential treatment by the apartheid state and as many black South Africans are not conversant in it, the exclusive use of Afrikaans as a medium of instruction would unfairly rob many black South Africans of the opportunity to be taught at one of South Africa’s primary higher education institutions (subsidized by taxpayers money).

That is why the move by the University of Stellenboch away from the exclusive use of Afrikaans as a medium of instruction is not only fair but probably also constitutionally required. The move is also good for the University, as it would allow the University to draw from a wider pool of excellent students (including excellent black students), thus increasing the quality of students attending that institution.

Be that as it may, I am surprised that all South African Universities are not promoting previously diminished indigenous languages through their various admissions policies. Why not award extra admissions points to all University applicants who can speak a diminished indigenous language like isiXhosa, isiZulu, Sepedi, Sesotho, Setswana, siSwati, Tshivenda, Xitsonga and isiNdebele as part of the affirmative action admissions policy of a University?

If Universities were to signal to potential students that they would gain easier access to that University if they spoke languages other than Afrikaans and English, many parents would insist that the school their children attend offer a wider range of indigenous South African languages and many pupils will then take such languages. This would promote wider multilingualism (and with it, social cohesion) in society – especially amongst the educated elite.

It seems to me that many of us who grew up white in apartheid South Africa, were deprived of an important tool for navigating our world when we were taught only in Afrikaans and English. We are lesser human beings for being unable to speak other indigenous South African languages or for being able to speak it only very badly. The move by the University of KwaZulu-Natal would ensure that the same damage is not inflicted on a new generation of white students.

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