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.
In the now well-known Luister documentary several black students from the University of Stellenbosch speak about the alienation and disadvantage they experience because of the predominant use of Afrikaans as the language of instruction in certain lectures at the University. This raises the question of whether Afrikaans students have a constitutional right to be taught in their mother tongue at Stellenbosch or whether the University should move away from its “Afrikaans-first” multilingual language policy. Can one argue, as some do, that students have a “choice” to study elsewhere and should not complain when they are disadvantaged by the language policy at Stellenbosch?
I was a student at Stellenbosch University at a time when the University was more than 90% white, its language of instruction exclusively Afrikaans, its residence culture authoritarian and oppressive, and its management (needless to say) closely aligned with the racist state.
It was the era when President PW Botha served as the chancellor of the University (as all National Party leaders automatically did), despite the fact that he had never obtained a university degree. On a memorable occasion the Vice Chancellor summoned me to his office and, spitting and fuming with rage, threatened to expel me from the University because I had written a column for the student newspaper in which I had called PW Botha “a clown in a circus”.
Although this is not always readily apparent when you visit Stellenbosch today, I assume much has changed for the better since the time when I was a student there. However attempts to transform the institution – both in terms of its demographic make-up and its culture – have been hampered by its language policy.
Last year, in an attempt to square this circle, the University adopted a language policy that is strikingly vague. The policy states that “Afrikaans and English are applied in various usage configurations” at the University and that “[p]arallel medium teaching and real-time educational interpretation are used as preferred options where practically feasible and affordable”.
But the plan adopted by the University to give effect to the policy provides not only for real-time interpretation of lectures but also for teaching in both Afrikaans and English in the same lecture or for exclusively Afrikaans lectures where resources for multilingual presentation of a course are not available.
Some black students at Stellenbosch argue that this policy, in effect, discriminates against them because the interpretation service provided is often of a poor quality. Even when the interpretation is adequate something is invariably lost when you have to rely on a translator whispering into your ear.
Moreover, it is argued that the “Afrikaans-first” multilingual approach also creates an atmosphere in which black students are deliberately or inadvertently “Othered” and made to feel unwelcome because they cannot speak the language of those who belong to the dominant culture at the University. This “Othering” is exacerbated by direct or indirect forms of racism. This, so the argument goes, is partly why Stellenbosch is the University in South Africa with the lowest number of black African students.
Those who support the retention of Afrikaans as the default language of instruction in a multilingual environment at Stellenbosch often invoke section 29(2) of the Constitution and argue that mother tongue education is a human right guaranteed by the Constitution. However, section 29(2) does not guarantee an absolute right to mother tongue education for everyone at state sponsored educational institutions. Instead, the section states that everyone has the right to receive education in the official language of their choice only:
where that education is reasonably practicable. In order to ensure the effective access to, and implementation of, this right, the state must consider all reasonable educational alternatives, including single medium institutions, taking into account equity; practicability; and the need to redress the results of past racially discriminatory laws and practices.
The Constitutional Court provided some guidance on the meaning of this section as it relates to schools in the case of Head of Department: Mpumalanga Department of Education and Another v Hoërskool Ermelo and Another. Deputy Chief Justice Moseneke pointed out in this judgment that while the section “places an obvious premium on receiving education in a public school in a language of choice” that right is qualified.
Justice Moseneke pointed out that the choice to be taught in Afrikaans would only be available when it would be “reasonably practicable” to provide that option to learners. In determining what would be reasonable the specific context within which the determination is being made would be crucial. That context would include the history of racial discrimination and exploitation which allowed Stellenbosch to become one of the most highly regarded and well-funded institutions of higher learning in South Africa.
However, Justice Moseneke also noted that when a learner already enjoys the benefit of being taught in an official language of choice at a particular school the state would bear the duty not to take away or diminish the right “without appropriate justification”.
In the debate about the language of instruction at Stellenbosch University the essential question would therefore probably be whether there is an appropriate justification for moving away from the present approach that favours multilingualism with Afrikaans as the default language of instruction.
It would probably be possible for the state to show that it had an appropriate justification for diminishing the rights of the privileged language group (Afrikaans) if it could show that this was fair in the context and was necessary to satisfy the need to remedy the results of past racially discriminatory laws and practices. In other words, one should ask whether it is fair and reasonable to require the University to move away from a language policy that, in fact, made it more difficult for black students to succeed at the University and in fact discouraged many talented black students from applying for admission to the University.
What would matter is not whether there was proof of an actual intention to exclude or discriminate against black students. What would matter is whether the policy had a discriminatory effect on some students or in fact discouraged some potential students from attending the University.
The counter-argument raised by some of the defenders of the status quo at Stellenbosch is that the vast majority of Universities in South Africa do accommodate students who wish to study in English and that students who feel excluded by the language policy at Stellenbosch therefore have a “choice” to study at one of these institutions.
But this argument would not hold water if the “choice” open to black students who cannot speak Afrikaans is the choice between obtaining a better quality education at Stellenbosch or an inferior quality education at another University elsewhere.
In this regard it is important to note that Stellenbosch is partly funded by public funds. Public funds must be used appropriately, given the constitutional obligation of the government to address the effects of past and ongoing forms of discrimination. It would not be easy to justify the use of public funds to advance the narrow financial and political interests of a group when many of its members continue to enjoy the benefits of apartheid privilege.
It is also relevant that not all Universities in South Africa provide students with the same quality of education. Stellenbosch is arguably one of the best Universities in South Africa. Access to the University is highly sought after and is therefore limited. If its language policy has the effect of limiting the number of black students studying there, it denies some black students who cannot speak Afrikaans a benefit that is provided to students who can speak Afrikaans.
In any event, the notion that impermissible discrimination occurs even where students have a “choice” to attend another education facility, is not unique to South Africa. In United States v Virginia the US Supreme Court ruled that the state of Virginia impermissibly discriminated against women when it maintained a male only military academy and provided female students with the “choice” of attending a women only academy nearby.
In this judgment, Justice Ginsberg noted that the women only academy did not provide female students with the same quality of education than the male institution and thus denied women an “extraordinary educational opportunity” in a discriminatory manner. The court compared the quality of the academic staff, the range of courses on offer, the quality of the facilities, and the number of graduates who obtained PhDs of the male only and women only schools and concluded that the latter institution was not the equal of the former.
Moreover, the court argued that the women excluded from the male only school are being denied the many benefits associated with having a degree from an institution with an excellent reputation. This included the benefits associated with becoming an alumnus of the school and with benefiting from the informal alumni networks associated with a highly valued and influential institution.
I would therefore argue that any language policy that made it more difficult for non-Afrikaans speaking black students to study at Stellenbosch would be discriminatory. Such a policy would not be reasonable and Afrikaans students would not have a right to have it maintained.
Conversely, while changing the policy to address its exclusionary effect may diminish the right of Afrikaans students to be taught in their mother tongue, it would not be too difficult to justify this by demonstrating that the change was aimed at addressing the effects of past racial discrimination at Stellenbosch, and at eliminating existing racial discrimination in the institution in order to provide students of all races with a wider choice of educational opportunities in South Africa.
Ultimately this about correcting the wrongs of the apartheid past and creating a more fair and equal society – although many defenders of the status quo will deny this.BACK TO TOP