CONSTITUTIONAL COURT of SOUTH AFRICA Case CCT 311/17 in the Matter Between: GELYKE KANSE First Applicant DANIËL JOHANNES ROSSOU
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CONSTITUTIONAL COURT OF SOUTH AFRICA Case CCT 311/17 In the matter between: GELYKE KANSE First Applicant DANIËL JOHANNES ROSSOUW Second Applicant PRESIDENT OF THE CONVOCATION OF THE UNIVERSITY OF STELLENBOSCH Third Applicant BERNARDUS LAMBERTUS PIETERS Fourth Applicant MORTIMER BESTER Fifth Applicant JAKOBUS PETRUS ROUX Sixth Applicant FRANCOIS HENNING Seventh Applicant ASHWIN MALOY Eighth Applicant RODERICK EMILE LEONARD Ninth Applicant and CHAIRPERSON OF THE SENATE OF THE UNIVERSITY OF STELLENBOSCH First Respondent CHAIRPERSON OF THE COUNCIL OF THE UNIVERSITY OF STELLENBOSCH Second Respondent UNIVERSITY OF STELLENBOSCH Third Respondent Neutral citation: Gelyke Kanse and Others v Chairperson of the Senate of the University of Stellenbosch and Others [2019] ZACC 38 Coram: Mogoeng CJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mathopo AJ, Mhlantla J, Theron J, Victor AJ Judgments: Cameron J (unanimous): [1] to [51] Mogoeng CJ (concurring): [52] to [63] Froneman J (concurring): [64] to [98] Heard on: 8 August 2019 Decided on: 10 October 2019 Summary: Section 29(2) of the Constitution — “reasonably practicable” — constitutionality of the language policy of the University of Stellenbosch — Afrikaans as a medium of instruction – access to higher education Section 6 of the Constitution — protection and promotion of indigenous minority languages — diminished use and status ORDER On direct appeal from the High Court of South Africa, Western Cape Division, Cape Town: 1. Leave to appeal is granted. 2. The appeal is dismissed, with no order as to costs in this Court. 3. The costs orders in the High Court are set aside. 4. In their place is substituted: “There is no order as to costs.” 2 JUDGMENT CAMERON J (Mogoeng CJ, Froneman J, Jafta J, Khampepe J, Madlanga J, Mathopo AJ, Mhlantla J, Theron J and Victor AJ concurring): Introduction [1] At issue is the 2016 Language Policy (2016 Language Policy) of Stellenbosch University, the third respondent. The applicants challenge it. They are a voluntary association committed to equal chances for Afrikaans and all indigenous languages, together with six brown1 and white students of the University who wish to receive tuition in Afrikaans. I refer to them collectively as Gelyke Kanse.2 In proceedings in the High Court of South Africa, Western Cape Division, Cape Town (High Court) they sought to set aside the 2016 Language Policy and reinstate its predecessor, the University’s 2014 Language Policy (2014 Language Policy). The High Court rebuffed their challenge.3 They now seek leave to appeal against its finding. Background [2] In 2014, the University, after a twelve-year break,4 adopted a new language policy — the 2014 Language Policy.5 That Policy stipulated Afrikaans as well as English as the University’s languages of learning and instruction. It committed the 1 Gelyke Kanse itself, and the individual applicants concerned, used the term “brown Afrikaners” or “brown people” for persons sometimes referred to in South Africa as “coloured people” or “kleurlinge”. 2 “Gelyke Kanse” can be translated as “even chances”, “fair chances” or “equal opportunities”. 3 Kanse v The President of the Convocation of the Stellenbosch University 2017 JDR 1687 (WCC) (Dlodlo J and Savage J concurring) (High Court judgment) at paras 86 and 170. 4 The 2002 Language Policy emphasised single-medium Afrikaans tuition. Afrikaans was specified as the “default” option in the “hierarchy of language options” – but the Policy also provided for parallel medium teaching and, in exceptional cases, single-medium English tuition. There was also a “bilingual option” (T-Option). This envisaged teaching in both English and Afrikaans in the same class, but with not less than 50% Afrikaans being used. 5 In terms of section 27(2) of the Higher Education Act 101 of 1997 (the Act), in accordance with the Ministerial Language Policy for Higher Education of 2002 (LPHE). 3 CAMERON J institution to purposeful extension of the academic application of both languages. As the preferred options, where practically feasible and affordable, the 2014 Language Policy offered parallel medium teaching of undergraduate courses, in English and Afrikaans, with interpreting. In practice, this was mostly from Afrikaans to English. Postgraduate learning was in both English and Afrikaans, with significant use of English. The 2014 Language Policy envisaged promotion of isiXhosa as an emerging academic language, where feasible and affordable. [3] Under the 2014 Language Policy, at undergraduate level, a student wanting tuition in Afrikaans could obtain it in all courses and classes, while one seeking English tuition could not always do so: some classes, at least, would be in Afrikaans. In those cases, interpreting within the lecture aimed to bring non-Afrikaans-speakers up to speed in English. [4] After the Fees Must Fall and Open Stellenbosch upheavals on its campus during 2015, the University thought again. It appointed a working group to re-examine its language policy.6 After an arduous process the working group recommended a reformulation. This resulted in the 2016 Language Policy, which came into effect on 1 January 2017 and is at issue here. The 2016 Language Policy creates three language specifications – parallel, dual and single medium. Parallel medium – involving equal tuition in both English and Afrikaans – is used “where reasonably practicable and pedagogically sound”. Where not, classes are in dual medium. This means, in effect, teaching in English, with Afrikaans translation (as opposed to real-time interpreting), though questions and answers are conducted in Afrikaans. [5] The major change from the 2014 Language Policy was that the University now committed itself to a one hundred percent English offering of all classes. This means that students not conversant in Afrikaans can receive all their tuition in English. But while English tuition increased, there was no concordant increase in Afrikaans. This 6 The working group was chaired by Professor Antoinette van der Merwe. 4 CAMERON J means that Afrikaans students inevitably receive at least some tuition in English. Despite this fact, under the 2016 Language Policy, Afrikaans is still offered on large scale at undergraduate level. And, more pointedly, all first-year lectures continue to be offered in Afrikaans. [6] Although the University disputed that the 2016 Language Policy “invariably” reduces Afrikaans tuition – claiming “it merely reconfigures it” – this is not so. The 2016 Language Policy effectively gives preference to English in circumstances the Policy specifies. It does so in order to advance the University’s goals of equal access, multilingualism and integration. The 2016 Language Policy does maintain and preserve Afrikaans, but – crucially – this is now subject to demand and to available resources. [7] The practical effect is that, while undergraduate classes are still generally offered in Afrikaans, Afrikaans has lost its position of primacy. Instead it is placed on a sandy footing where the deluge of English predominance, both local and global, could well destabilise and eventually topple it. [8] This is what the applicants foresee and what they fear and what they seek to forestall in these proceedings by reinstating the 2014 Language Policy.7 In doing so, they invoke the precious right of mother tongue education, which is specifically enshrined in section 29(2) of the Bill of Rights.8 Gelyke Kanse’s argument goes more 7 In Ex parte Gauteng Provincial Legislature: In re Dispute Concerning the Constitutionality of Certain Provisions of the Gauteng School Education Bill of 1995 [1996] ZACC 4; 1996 (3) SA 165 (CC); 1996 (4) BCLR 537 (CC) (Gauteng Provincial Legislature), Sachs J at para 48 sought to articulate ways in which retention of Afrikaans would not collide with equity. He appeared to note that— “there exists amongst a considerable number of people in this country a genuinely-held, subjective fear that democratic transformation will lead to the down-grading, suppression and ultimate destruction of the Afrikaans language and the marginalisation and ultimate disintegration of the Afrikaans-speaking community as a vital group in South African society.” This may still be so 25 years after democracy. 8 Section 29(2) provides: “Everyone has the right to receive education in the official language or languages of their choice in public educational institutions 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— (a) equity; 5 CAMERON J widely, even. It invokes the value to us as human beings, as constitutive of our self-conception and elemental to our functioning as social beings, of the language or languages with which we grew up: “It is undoubtedly true that a mother tongue is not merely a linguistic system which can, with impunity, be replaced by another language. A child’s mother tongue is the language which allows [them] to impose a structure on the universe. It is associated with [their] thought processes, [their] sense of identity and [their] solidarity with [their] family and environment. As [they] mature, [their] mother tongue may become a symbol of regional or national pride, a means of gaining access to knowledge and wisdom. And it will usually be associated with feelings of warmth, intimacy, spontaneity.”9 High Court [9] The High Court judgment is detailed and comprehensive