IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

CCT Case No: 311/17 WCHC Case No: 17501/2016

In the matter between:

GELYKE KANSE First Applicant DANIËL JOHANNES ROSSOUW Second Applicant THE 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 THE CHAIRMAN OF THE SENATE OF THE UNIVERSITY OF STELLENBOSCH First Respondent THE CHAIRMAN OF THE COUNCIL OF THE UNIVERSITY OF STELLENBOSCH Second Respondent THE UNIVERSITY OF STELLENBOSCH Third Respondent ______

WRITTEN SUBMISSIONS ON BEHALF OF THE APPLICANTS

"… the building blocks of this nation are all our languages working together, our unique idiomatic expressions that reveal the inner meanings of our experiences. These are the foundations on which our common dream of nationhood should be built…The nurturing of this reality depends on our willingness to learn the languages of others, so that we in practice accord all our languages the same respect. In sharing one’s language with another, one does not lose possession of one’s words, but agrees to share these words so as to enrich the lives of others. For it is when the borderline between one language and another is erased, when the social barriers between the speaker of one language and

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another are broken, that a bridge is built, connecting what were previously two separate sites into one big space for human interaction, and, out of this, a new world emerges and a new nation is born."1

CONTENTS

I INTRODUCTION ..……………………………………………………………………….. 3 II THE LANGUAGE POLICY ...…………………………………………………………… 7 The 2014 Policy ……………………………………………………………………….…… 7 The NLP ………………………………………………………………………………….... 8 III THE CONSTITUTIONAL THRESHOLD THAT SU'S LANGUAGE POLICY MUST COMPLY WITH ...……………………………………………………………… 14 IV THE EVIDENCE AGAINST WHICH THE SECTION 29(2) THRESHOLD MUST BE ASSESSED .………………………………………………………………….. 20 The choice of first language in the national and provincial context ………………….. 22 The SU context ………………………………………………………………………….... 27 Language of instruction within the national tertiary education landscape ………….. 29 The demand for Afrikaans at SU ……………………………………………………….. 31 The historic position in respect of language of instruction at tertiary institutions ..… 32 The NLP was not adopted because the previous position undermined any constitutionally protected value, right or aspiration ………………………………...… 35 The NLP was not adopted because the previous position was unaffordable nor was full parallel medium considered unaffordable …………………………………………...... 38 There was no question of segregation …………………………………………………... 39 The NLP amounts to a retrogressive measure for first language Afrikaans-speaking students which SU has failed to justify ……………………………………………….… 39 The domino effect of the erosion of Afrikaans at tertiary institutions ……………….. 40 V IRRATIONALITY AND SUCCUMBING TO THE DICTATES OF AN OUTSIDE PARTY ………………………………………………………………………. 42 VI SOME REMAINING ERRORS OF THE COURT OF FIRST INSTANCE ………... 46 VII CONCLUSION ……………………………………………………………………...…… 50

1 President Thabo Mbeki, 27 August 1999, quoted in the Language Policy for Higher Education (2002).

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I INTRODUCTION

1. Gelyke Kanse brings this application on behalf of hundreds of thousands of South Africans

who cannot receive tertiary education in their indigenous mother tongue and, in particular,

the Brown Afrikaans-speaking people of the Western and Northern Cape Provinces.2 It is

joined by six student applicants of whom three are Brown.

2. The central issue underlying this application is the constitutionality of the new language

policy at Stellenbosch University ("SU") which was approved by the SU Council on 22 June

2016 (the "NLP"). A second line of attack postulates the irrationality of the adoption of the

NLP.

3. In what follows we expand on these and other features of the applicants’ case without

specifically traversing all the individual grounds of appeal, which we adhere to, set out in

the founding affidavit in support of the application for leave to appeal.

4. If one considers that –

4.1. section 29(2) of the Constitution of the Republic of South Africa (the

"Constitution") bestows on every one a qualified right to receive education in the

official language of their choice at public educational institutions;

4.2. high judicial authority says this means that meaningful numbers of language-

speakers have an enforceable right against the State to instruction in the language

of their community as long as it is reasonably practicable;

2 FA record page 13, par 19.2.

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4.3. section 6(2) of the Constitution recognises the historically diminished use and

status of the indigenous languages of the people and orders the State to take

practical and positive measures to elevate their status and advance their use;

4.4. section 6(4) provides that the national and provincial governments must regulate

and monitor the use of official languages and also provides that all official

languages must enjoy parity of esteem and be treated equally;

4.5. universities are organs of State;

4.6. section 27(2) of the Higher Education Act, No. 1 of 1997 (the "Act"), provides that

the Councils of Universities have to adopt language policies subject to the

ministerial Language Policy for Higher Education ("LPHE");

4.7. the current LPHE is designed to promote multi-lingualism and to enhance equity

and access in higher education through, inter alia –

4.7.1. the development, in the medium to long term, of indigenous South African

languages as mediums of instruction in higher education, alongside

English and Afrikaans; and

4.7.2. the retention and strengthening of Afrikaans as a language of scholarship

and science;

4.8. the revised draft ministerial Language Policy for High Education 2017

acknowledges in its Preamble that "there has been little progress made in exploring

and exploiting the potential role of indigenous African languages in facilitating

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access and success as well as intellectualisation of these languages in Higher

Education";

4.9. and seeks to promote parity of esteem of indigenous official African languages,

including Afrikaans, in the higher education system of South Africa;

4.10. Zulu is the indigenous language which is the mother tongue of the largest group of

South Africans followed by Xhosa, Afrikaans and, only then, English, and contrast this with the fact that –

(a) of 26 South African Universities, not one uses an indigenous language other than

Afrikaans as a language of instruction;

(b) it is only at the Potchefstroom Campus of the North West University where one can

still obtain a degree in Afrikaans which, at that campus only, enjoys equal standing

with English as a language of instruction;

(c) of 4 Universities in the Western Cape Province, three use English as the exclusive

language of instruction and Stellenbosch University ("SU") uses it progressively

predominantly;

(d) the Council of SU rejected a motion calling for the equality of Afrikaans and

English as languages of instruction and a meaningful commitment to the

development of Xhosa as a language of instruction;

(e) the majority language in the Western Cape Province is Afrikaans, followed by

Xhosa and only then English;

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(f) Brown people are the largest population group in the Western Cape;

(g) the majority of them speak Afrikaans and many of them, particularly those from the

rural areas can only receive tertiary education in that language;

(h) they are by far the most under-represented group at tertiary education institutions

and the drop out figure is by far the highest;

(i) the White English-speaking component of the SU student corps is the largest

English-speaking component by a significant margin,

it is clear that the statutory and policy provisions referred to at the outset are in danger of

becoming obsolete.

5. Subsequent to this Court’s Directions of 1 March 2018, we filed Written Submissions and

Supplementary Written Submissions in relation to the issues mentioned therein (the

"Previous Written Submissions").

6. We do not repeat what was stated in our Previous Written Submissions here, save to the

extent that it bears relevance to a particular line of argument which we develop. We

accordingly address only the following issues in these Submissions:

6.1. In Part II, we provide an overview of the relevant aspects of the NLP as well as its

predecessor, the 2014 Policy, the content of which we submit is relevant for the

purposes of determining this matter.

6.2. In Part III, we address the constitutional threshold that SU must comply with in

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terms of its NLP.

6.3. In Part IV, we address the factual context against which the subject challenge falls

to be determined.

6.4. In Part V, we show that the adoption of the NLP was the result of the dictates of

the Open Stellenbosch collective ("Open Stellenbosch") and irrational.

6.5. In Part VI, we address the basis on which we submit that the Court of first instance

erred when its findings and Orders are assessed against the appropriate test to be

applied and the facts with reference to which the matter falls to be determined.

II THE LANGUAGE POLICY

The 2014 Policy

7. Prior to the adoption of the NLP, language at SU was governed by the 2014 Policy of which

the following aspects deserve emphasis:

7.1. First, notwithstanding SU having historically been an Afrikaans university, it

sought to advance the use of English and Afrikaans equally in relation to their

academic application.

7.2. Second, it expressed a preference for parallel-medium teaching and real time

educational interpreting where practically feasible and affordable; thereby

incorporating the constitutional imperative of practicability into the 2014 Policy.

7.3. Third, it provided for the use of both English and Afrikaans in respect of post-

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graduate learning and teaching, recognising that there would be a significant

utilisation of English as an international academic language.

The NLP

8. The NLP makes provision for three language of instruction modes, namely parallel medium,

dual medium and single medium. Since paragraphs 1 to 6 pay mere lip service to, in

particular, section 29(2) of the Constitution, the operative provisions are in paragraph 7. In

what follows we focus on that paragraph.

9. The following aspects of the NLP are clear from its plain wording:

9.1. The language of instruction in undergraduate classes is, in the first instance,

dependent on the proficiency of the assigned lecturer and, in particular, whether

he/she is proficient to teach only in Afrikaans or English. The effect of this is that

if there are no assigned lecturers who are proficient to teach in Afrikaans, it follows

that no undergraduate classes will be in Afrikaans. At this level, the NLP has

nothing to do with the needs, demands or indeed interests of the students; the

language of assignment is based solely and exclusively on what language the

lecturer is proficient in. In such circumstances, the only recourse to the student is

the simultaneous interpreting which occurs under differential circumstances

depending on whether the lecture is taught in English or Afrikaans. By 2015, 21%

of the permanent academic staff members could not teach in Afrikaans whereas

only 1% could not teach in English.3

9.2. Even if a lecturer of an undergraduate class is able to teach in English and

3 Annexure "DR12" to the FA, record page 1284.

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Afrikaans, there will be more than one class only if it is reasonably practicable and

pedagogically sound to do so. The NLP provides no guidance whatsoever as to

how either of these criteria has to be assessed. The consequence of this is that

notwithstanding the proficiency of a lecturer to teach in Afrikaans, or the demand

of a class to be taught in Afrikaans, lectures may still (and do) occur in English

only.

9.3. The effect of the NLP is that parallel medium instruction is no longer a preference

for SU and, in single classes, all lectures have to be in English with only

summaries in Afrikaans.

9.4. Paragraph 7.1.2 provides that undergraduate modules are offered by any of the

measures set out in paragraphs 7.1.3, 7.1.4 and 7.1.5.

9.5. In the light of the unlimited scope for deviating from the prescribed Afrikaans

offer, which is, in any event, less than the prescribed English offer, the provision in

paragraph 7.1 that Afrikaans and English are SU’s languages of learning and

teaching, is meaningless.

9.6. Paragraph 7.1.3 provides for an undergraduate module involving separate lectures

in Afrikaans and English where it is reasonably practicable and pedagogically

sound to have more than one class group coupled with learning opportunities such

as group work, assignments, tutorials and practicals involving students from both

language groups to promote integration within programs.

9.7. The two significant features of this provision are that –

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9.7.1. firstly, there are no guidelines to inform the application of the

"reasonably practicable" and "pedagogically sound" criteria; and

9.7.2. these concepts are uncertain and vague, generalised and overbroad and

leave SU considerable scope to not have separate lectures in Afrikaans

and English, the only feature of the policy that actually provides for

equality between the two languages.

9.8. Paragraph 7.1.4 provides for a second category of measures by which

undergraduate modules are offered. It provides that for undergraduate modules

where both Afrikaans and English are used in the same class group, the

combination of facilitated learning opportunities will see –

9.8.1. during each lecture, all information conveyed at least in English and

summaries or emphasis on content also given in Afrikaans with questions

in either language having to be answered in that language;

9.8.2. students being supported in Afrikaans and English during a combination

of "appropriate, facilitated learning opportunities";

9.8.3. for first year modules, SU making simultaneous interpreting available

during each lecture and during second and subsequent years of study upon

request by a faculty if the needs of the students warrant the service and SU

has the resources to provide it; provided that if two weeks pass with no

students making use of the interpreting service, it may be discontinued.

9.9. By far the most lectures will fall in this category it being abundantly clear that it

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will be a 100% English offering with little or no Afrikaans offering.

9.10. Again there are no guidelines to inform the requirements of summaries and

emphasis and significant leeway is provided for by the availability of the resources

qualification, an aspect of the matter about which the SU itself takes the decisions.

Nothing is measured against objective criteria and the scope for deviation as real as

the scope for recourse is non-existent.

9.11. The uninformed choices that will have to be made for purposes of paragraph 7.1.3

will be made by lecturers, many of whom will prefer, as a result of the larger

workload which parallel medium classes require, to avoid duplicating classes.

9.12. In any event, lecturers have been abandoning summaries and emphasis in

Afrikaans on a grand scale across the board since the implementation of the policy

as evidenced by the supplementary affidavits of the student applicants and those of

Mr Frederik van Dyk and Mr Tobias Alberts.4

9.13. Paragraph 7.1.4.1 devalues the Afrikaans offer significantly. Paragraph 7.1.4.2 is

so vague and so devoid of guidelines or criteria which have to inform the decision-

making process, that it is completely meaningless.

9.14. Paragraph 7.1.4.3 effectively means interpreting will be available in first year

modules and exclusively from English to Afrikaans, notwithstanding the fact that

the RMT claimed that one of the objections to interpreting from Afrikaans to

English in terms of the 2014 Policy was that users of the interpreting services were

4 Application for leave to appeal: page 68, par 150 and page 550.

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embarrassed thereby.5 The availability of interpreting in the second and third years

of study is similarly made dependent on vague criteria without any definitive

guidelines, a fact which will facilitate random and arbitrary departures and render

oversight and compliance virtually impossible.

9.15. Paragraph 7.1.5, which provides the third category of measures for offering

undergraduate modules, further benefits English.

9.16. In the following instances lectures will be offered in one language only:

9.16.1. Where the nature of the subject-matter of the module justifies doing so, for

example when a module is the language itself.

9.16.2. When the assigned lecturer is proficient to teach only in English or

Afrikaans.

9.16.3. Where all the students in a class group have been invited to vote by means

of a secret ballot and those who have voted unanimously agree to the

module being presented in English only or Afrikaans only, provided that

the relevant lecturers and teaching assistants have the necessary language

proficiency and agree to do so.

9.17. The first category is not informed by any objective criteria and clearly capable of

abuse.

9.18. Paragraph 7.1.5.1 makes provision for an almost unfettered discretion without

providing any real guidelines or criteria with reference to which recourse to that

5 Application for leave to appeal: page 68, par 148.

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paragraph may be assessed.

9.19. Paragraph 7.1.5.2 discriminates directly against Afrikaans-speaking students,

mostly because virtually all Afrikaans-speaking lecturers are able to also lecture in

English whereas many English-speaking lecturers cannot lecture in Afrikaans as

well.

9.20. Paragraph 7.1.5.3 also discriminates against Afrikaans-speaking students in as

much as it capitalises on the fact that many of them are sufficiently proficient in

English to receive an education in that language whereas the same is not true of

English-speaking students, also because by 2015 already 21% of the permanent

teaching staff could only lecture in English compared to the 1% who could only

lecture in Afrikaans.

9.21. The way in which paragraph 7.1.2 has been formulated renders it capable of the

construction that there is unlimited freedom of choice in respect of the measures

enumerated in paragraphs 7.1.3, 7.1.4 and 7.1.5. This means that even when it is, as

contemplated in paragraph 7.1.3, reasonably practicable and pedagogically sound

to have more than one class group, there does not necessarily have to be parallel

lectures in English and Afrikaans since an election can still be made for paragraph

7.1.4’s dual medium where all information has to be conveyed at least in English,

or paragraph 7.1.5’s single language option only, i.e. where the lecturer can only

speak that language.

9.22. Paragraphs 7.4.1.1 and 7.4.1.2 illustrate the bias against the Afrikaans graphically:

"7.4.1.1 The English offering is revised upwards so as to achieve full

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accessibility to SU for academically deserving prospective and

current students who prefer to study in English.

7.4.1.2 The Afrikaans offering is managed so as to sustain access to SU for

students who prefer to study in Afrikaans and to further develop

Afrikaans as a language of tuition where reasonably practicable."

9.23. The "protection" that Afrikaans derives from paragraph 7.4.1.2 is meaningless.

Apart from the fact that it is rendered subject to the "reasonably practicable"

criterion, it is inconsistent with the Council’s position formulated at the Special

Council Meeting of 21 May 2016 – which was adopted instead of the motion

calling for equality for Afrikaans and English as languages of instruction and a

meaningful commitment to the development of Xhosa – which calls for the English

offer to be extended so that no admitted student is excluded and that it be ensured

that the Afrikaans offer is not reduced and that Afrikaans as a language of

instruction be further developed, not further developed where reasonably

practicable.

10. The stark change from the 2014 Policy to the NLP raises the fundamental question of

whether it can be justified in South Africa’s current context, when tested and analysed

against the constitutional prescripts. We submit not.

III THE CONSTITUTIONAL THRESHOLD THAT SU’S LANGUAGE POLICY

MUST COMPLY WITH

11. In our Previous Written Submissions, in addressing the first question posed by this Court,

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viz, whether the tests of "reasonable practicability" and "appropriate justification" are one

and the same test or two different tests, we addressed in some detail the case-law of this

Court in relation to the reasonably practicable test. We highlight certain aspects in what

follows.

12. In Ex parte Gauteng Provincial Legislature: In re Dispute Concerning the

Constitutionality of Certain Provisions of the Gauteng School Education Bill of 1995,6

though in the context of the predecessor to section 29 of the Constitution,7 Justice Kriegler

emphasised that the standard of reasonable practicability is objectively justiciable, which

means that arbitrary governmental action can be restrained by the Courts. He concluded that

meaningful numbers of language-speakers have an enforceable right against the government

to instruction in the language of their community as long as it is reasonably practicable.

13. In Minister of Education, Western Cape v Governing Body, Mikro Primary School,8

the SCA held:

13.1. The right of everyone to receive education in the official language or languages of

their choice in public educational institutions where that education is reasonably

practicable is a right against the State.9

13.2. The Constitution recognises that there may be various reasonable educational

alternatives available to the State to give effect to this right and has left it to the

6 1996 (3) SA 165 (CC) at par 41. 7 Section 32 of the Interim Constitution provided: "Education Every person shall have the right - (a) to basic education and to equal access to educational institutions; (b) to instruction in the language of his or her choice where this is reasonably practicable; and (c) to establish, where practicable, educational institutions based on a common culture, language or religion, provided that there shall be no discrimination on the ground of race." 8 2006 (1) SA 1 (SCA). 9 At par 31.

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State to decide how best to do so. In order to ensure the effective access to, and

implementation of, this right, the State must in terms of the provision consider all

reasonable educational alternatives, including single medium institutions. 10

13.3. Section 29(2), therefore, empowers the State to ensure the effective

implementation of the right by providing single-medium educational institutions.

This is a clear indication that, in terms of section 29(2), everyone has a right to be

educated in an official language of his or her choice at a public educational

institution to be provided by the State if reasonably practicable, but not the right to

be so instructed at each and every public educational institution, subject only to it

being reasonably practicable to do so. 11

14. In Head of Department, Mpumalanga Department of Education v Hoërskool Ermelo,12

this Court found as follows in relation to section 29 of the Constitution:

14.1. An important consideration will always be whether the State has taken reasonable

and positive measures to make the right to basic education increasingly available

and accessible to everyone in a language of choice.13

14.2. It follows that when a learner already enjoys the benefit of being taught in an

official language of choice the State bears the negative duty not to take away or

diminish the right without appropriate justification.14

14.3. In resorting to an option such as a single or parallel or dual medium of instruction,

10 At par 31. 11 At par 31. 12 2010 (2) SA 415 (CC) 13 At par 52. 14 At par 52.

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the State must take into account what is fair, feasible and satisfies the need to

remedy the results of past racially discriminatory laws and practices.15

15. As with the case of Afriforum and Another v University of The Free State,16 this case

also turns, to a large extent, on section 29(2) of the Constitution in the context of tertiary

education and the relevant evidence.

16. In Afriforum, this Court interpreted the words "reasonably practicable" in the context of

section 29(2) of the Constitution.17 The following aspects of this Court’s analysis establish

the test against which this matter falls to be determined:

16.1. First, it would be unreasonable to slavishly hold on to a language policy that has

proved to be the practical antithesis of fairness, feasibility, inclusivity and the

remedial action necessary to shake racism and its tendencies out of their comfort

zone.18

16.2. Second, that in realising the right to education, the need for "reasonable measures"

to be taken to make education "progressively available and accessible", and the

impermissibility of racial discrimination, intended or otherwise, in all educational

institutions are key; reasonable practicability must be given meaning with due

15 At par 53. 16 2018 (2) SA 185 (CC) 17 Section 29 of the Constitution provides as follows: "(1) Everyone has the right– (a) to a basic education, including adult basic education; and (b) to further education, which the State, through reasonable measures, must make progressively available and accessible. (2) 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; (b) practicability; and (c) the need to redress the results of past racially discriminatory laws and practices." 18 At par 46.

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regard to these prescripts.19 Whatever model is chosen must be informed by,

among others, the constitutional obligation to make education accessible to all so

as to free the potential of all persons and to give effect to the constitutional values.

That is why section 29(2) requires "(a) equity; (b) practicability; and (c) the need

to redress the results of past racially discriminatory laws and practices," to feature

prominently in exploring the possibility of offering education in an official

language of choice. These criteria relate to equality, responsiveness and non-

racialism; all reasonable educational alternatives must be investigated within this

context.20

16.3. Third, effective access to the right to be instructed in an official language of choice

must be given effect to, but without undermining equitable access, preserving

exclusivity or perpetuating racial supremacy. It would be unreasonable to wittingly

or inadvertently allow some people to have unimpeded access to education and

success at the expense of others as a direct consequence of a blind pursuit of the

enjoyment of the right to education in a language of choice.21

16.4. Fourth, reasonableness within the context of section 29(2) demands that equity,

practicability and the critical need to undo the damage caused by racial

discrimination, should also be the intrinsic features of the decision-making process

relating to effective access to education in a language of choice.22

16.5. Fifth, at a conceptual level, dual medium institutions might well exist without

necessarily nurturing or perpetuating unfair advantage or racial discrimination and

19 At par 46. 20 At par 48. 21 At par 49. 22 At par 50.

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its exceedingly harmful tendencies. When that is so, then the right to be taught in a

language of choice could be effectively accessible and implemented.23

16.6. Sixth, where the enjoyment of the right to be instructed in an official language of

choice is achievable without undermining any constitutional aspiration or value,

the equity test might well have been met. The challenge could, however, arise

when scarce resources are deployed to cater for a negligible number of students,

affording them close, personal and very advantageous attention while other

students are crowded into lecture rooms. Where access, integration and racial

harmony are imperilled by giving effect to the right to be educated in an official

language of choice, the criterion of reasonable practicability would not have been

met.24

16.7. Finally, reasonable practicability therefore requires not only that the practicability

test be met, but also that considerations of reasonableness that extend to equity and

the need to cure the ills of South Africa’s shameful apartheid past, be appropriately

accommodated; this is achievable only if the exercise of the right to be taught in a

language of choice does not pose a threat to racial harmony or inadvertently

nurture racial supremacy.25

17. We understand this Court’s judgment in Afriforum to mean:

17.1. First, that section 29(2) of the Constitution must be given effect to and cannot be

denuded of its plain meaning. We submit that section 29(2) of the Constitution can

never be interpreted to mean that any institution which gives preference to a

23 At par 51. 24 At par 53. 25 At par 53.

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"historically privileged" language will always fall foul of section 29(2);

particularly not if one bears in mind that English is the only language that has

enjoyed that status for as long as there has been institutions of tertiary education in

South Africa.

17.2. Second, that where the right to be instructed in an official language of choice is

achievable without undermining any constitutional aspiration or value, then, in

terms of the equity test, the right must be given effect to. In this regard, we submit

that it is an evidential based approach as to whether any constitutional imperative

will be undermined when giving effect to a right to instruction in an official

language of choice.

17.3. Third, that one acceptable way of giving effect to section 29(2) is by way of

parallel medium instruction, at least at a conceptual level, a possibility entirely

consistent with the LPHE as we shall show.

IV THE EVIDENCE AGAINST WHICH THE SECTION 29(2) THRESHOLD

MUST BE ASSESSED

18. This Court has long recognised that rights must be interpreted in their context and that this

requires two types of context, namely: (a) rights must be understood in their textual setting

which requires a consideration of Chapter 2 and the Constitution as a whole; and (b) on the

other hand, rights must also be understood in their social and historical context.26

19. More recently, in Head of Department: Mpumalanga Department of Education and

26 Government of the Republic of South Africa and Others v Grootboom and Others 2001 (1) SA 46 (CC) at par 22 to 25.

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Another v Hoërskool Ermelo and Another,27 this Court emphasised:

19.1. When it is reasonably practicable to receive tuition in a language of one's choice

will depend on all the relevant circumstances of each particular case.

19.2. The reasonableness standard built into section 29(2) imposes a context sensitive

understanding of each claim for education in a language of choice.

20. We submit that the following considerations are relevant to the assessment of the NLP

against the prescripts of section 29(2) of the Constitution:

20.1. First, the extent to which English and Afrikaans are used as first languages in the

national and provincial context.

20.2. Second, language of instruction in the context of SU.

20.3. Third, language of instruction within the national tertiary education landscape.

20.4. Fourth, the demand for Afrikaans at SU.

20.5. Fifth, the historic position in respect of language of instruction at universities.

20.6. Sixth, the NLP was not adopted because the previous state of affairs undermined

any constitutionally protected value, right or aspiration.

20.7. Seventh, the NLP was not adopted because the previous position was unaffordable,

nor was full parallel medium considered unaffordable.

27 [2009] ZACC 32; 2010 (2) SA 415 (CC); 2010 (3) BCLR 177 (CC) at par 52 and 53.

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20.8. Eighth, it was not considered that parallel medium would lead to segregation

because it obviously will not.

20.9. Ninth, the NLP constitutes a retrogressive measure which SU has failed to fully

justify.

20.10. Tenth, the erosion of Afrikaans at tertiary institutions has a domino effect on the

broader place of the language in South African society.

The choice of first language in the national and provincial context

21. Context, in the present matter, we submit, requires an assessment of the language demands

in South Africa. In this regard, we submit that the Court of first instance erred in finding that

the analysis of the present challenges only "stretches to the boundaries of the University

itself" and that "deeper issues about ‘majoritarian hegemony’" must be dealt with through

an attack on the State’s policy.28 (Ironically the Applicants invoked the State’s policy and

claimed then, as they do now, that the NLP’s adoption was also fatally inconsistent with the

LPHE.) We submit that language in the broader South African context is an indispensable

aspect to this Court’s analysis of the issues. Of paramount importance in this regard are the

following:

21.1. There are three English Universities in close proximity to SU, none of which cater

for the 49.7% of the inhabitants of the Western Cape who have Afrikaans as their

home language.29 As evidenced by the confirmatory affidavits deposed to by the

Student Applicants and our assessment of the NLP hereinabove, the SU no longer

28 Application for leave to appeal: Annexure "DR7", page 253, par 65. 29 FA record page 306, par 527.

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caters for them either.30

21.2. Of all the Western Cape inhabitants, the majority (49.4%) are Brown people,31

many of whom come from rural areas with a very limited command of English and

are not empowered to obtain a tertiary education in any language other than

Afrikaans.

21.3. In the mid-1980’s large numbers of Black (African) students started flocking to the

University of the Western Cape ("UWC"), established for Brown people in terms

of the apartheid policy. That put the management under huge pressure to replace

Afrikaans with English as medium of instruction. The Gelyke Kanse submission32

to the Language Review Working Group (the "WG") (to which we refer

hereinbelow in paragraph 52.8) quotes the Vice Chancellor at the time, Professor

Jaap Durand, as saying the following about these events: "Our experience at UWC

was that when we allowed black students, although it clashed with government

policy, they began to flock in large numbers to UWC. As a result, we were

compelled to make English the primary medium of instruction. The result was that

the academic performance of our brown students declined markedly. Their limited

command of English was a serious handicap."

21.4. Presently the Brown community has the lowest participation rate in university education, partly because of the low income of their parents and partly because of the tendency of parents to choose English as a medium of instruction even if the

30 FA record pages 4085-4121; and the supplementary affidavits of Frederik Rudolph van Dyk and Tobias Vivian Alberts. 31 FA record page 306, par 528. 32 21 April 2016, page 6; FA record page 439.

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21.5. home language is Afrikaans. In 2013 the Council for Higher Education

commissioned a study to establish the success rate of the different population

groups in studying for Bachelor’s degrees during the period 1970 to 2010. The

percentage of Brown students who were awarded Bachelor’s degrees dropped from

10% in 1970 to 6% in 2010.33

22. The extent of Afrikaans as a home language to the people of South Africa is apparent from

the most recent Census figures (being 2011).

23. According to the 2011 Census, the land and population break-down by province is as

follows:

Table 1

PROVINCE LAND AREA IN POPULATION35 SQUARE KILOMETRES34 Western Cape 129 462 5 822 734 Eastern Cape 168 966 6 526 053 Northern Cape 372 889 1 145 861 Free State 129 825 2 745 590 KwaZulu Natal 94 361 10 267 300 North West 104 882 3 509 953 Gauteng 18 178 12 272 263 Mpumalanga 76 495 4 039 939 Limpopo 125 754 5 404 868 TOTAL 1 220 813 51 770 560

33 Vital Stats Public Higher Education, Council for Higher Education (CHE) South Africa. 34 Available at: http://www.statssa.gov.za/census/census_2011/census_products/Census_2011_Census_in_brief.pdf at page 9. 35 Available at: http://www.statssa.gov.za/census/census_2011/census_products/Census_2011_Census_in_brief.pdf at page 18.

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24. According to the 2011 Census, first language breakdown by Province (on a percentage

basis) is as follows:36

Table 2

Language WC EC NC FS KZN NW GP MP LP SA Afrikaans 49.7 10.6 53.8 12.7 1.6 9 12.4 7.2 2.6 13.5 English 20.2 5.6 3.4 2.9 13.2 3.5 13.3 3.1 1.5 9.6 IsiNdebele 0.3 0.2 0.5 0.4 1.1 1.3 3.2 10.1 2.0 2.1 IsiXhosa 24.7 78.8 5.3 7.5 3.4 5.5 6.6 1.2 0.4 16.0 IsiZulu 0.4 0.5 0.8 4.4 77.8 2.5 19.8 24.1 1.2 22.7 Sepedi 0.1 0.2 0.2 0.3 0.2 2.4 10.6 9.3 52.9 9.1 Sesotho 1.1 2.5 1.3 64.2 0.8 5.8 11.6 3.5 1.5 7.6 Setswana 0.4 0.2 33.1 5.2 0.5 63.4 9.1 1.8 2.1 8.0 Sign Lang 0.4 0.7 0.3 1.2 0.5 0.4 0.4 0.2 0.2 0.5 SiSwati 0.1 0 0.1 0.1 0.1 0.3 1.1 27.7 0.5 2.5 TshiVenda 0.1 0.1 0.1 0.1 0 0.5 2.3 0.3 16.7 2.4 Xitsonga 0.2 0.0 0.1 0.3 0.1 3.7 6.6 10.4 17.0 4.5 Other 2.2 0.6 1.1 0.6 0.8 1.8 3.1 1.0 1.6 1.6

25. Despite a common misconception that Afrikaans is spoken as a first language mainly by

historically privileged persons, who identify as White persons in South Africa, this is

manifestly not the case. According to the 2011 Census, the first language break-down by

race (on a percentage basis) is as follows:37

36 Available at: http://www.statssa.gov.za/census/census_2011/census_products/Census_2011_Census_in_brief.pdf at page 25; Table 2.6. 37 Available at: http://www.statssa.gov.za/census/census_2011/census_products/Census_2011_Census_in_brief.pdf at page 27; Table 2.8.

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Table 3

Language Black Coloured Indian/ White Other South African Asian African Afrikaans 1.5 75.8 4.6 60.8 15.2 13.5 English 2.9 20.8 86.1 35.9 29.5 9.6 IsiNdebele 2.6 0.2 0.8 0.2 2.1 2.1 IsiXhosa 20.1 0.6. 0.4 0.3 1.9 16 IsiZulu 28.5 0.5 1.3 0.4 4.1 22.7 Sepedi 11.4 0.1 0.2 0.1 0.6 9.1 Sesotho 9.4 0.5 0.4 0.4 1.7 7.6 Setswana 9.9 0.9 0.4 0.4 2.4 8.0 Sign Lang 0.5 0.3 0.3 0.2 0.2 0.5 SiSwati 3.2 0.1 0.1 0.1 0.5 2.5 TshiVenda 3.0 0.1 0.1 0.1 0.5 2.4 Xitsonga 5.6 0 0.2 0.1 3.9 4.5 Other 1.5 0.1 5.1 1.1 37.4 1.6

26. What is clearly apparent from the above tables are the following:

26.1. First, Afrikaans is by far the most widely spoken first language in the Western

Cape and Northern Cape (as appears from Table 2).

26.2. Second, in the Western Cape, Afrikaans is the first language of more than double

the number of persons who have English as their first language (49.7% as

compared to 20.2%) (as appears from Table 2).

26.3. Third, nationally, Afrikaans is the third highest first language spoken by the people

of South Africa (as appears from Table 2).

26.4. Fourth, in the Western Cape, the second highest first language is that of Xhosa

whereas English accounts for the third highest first language (as appears from

Table 2).

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26.5. Fifth, the highest number of Afrikaans first language persons in the Western Cape

come from the Brown community (as appears from Table 3).

27. Despite the above statistics, we emphasise that there is only one of the country’s 37

university campuses (the Potchefstroom campus of North West University) and 26

universities where Afrikaans is used as a language of instruction in all courses. There can be

no dispute that this statistic is marginal when considered against –

27.1. the number of persons who have Afrikaans as their first language, which by far

outweighs English.

27.2. the number of universities historically that used Afrikaans as a medium of

instruction.

27.3. the number of persons of the Brown community who have Afrikaans as their first

language.

The SU context

28. Also relevant to context, is the context at SU, the following features of which warrant

highlighting:

28.1. First, that Afrikaans was traditionally the language of instruction at the SU.38

Given its geographic location in a province which is predominantly Afrikaans and

of which the largest population group, the Brown community, is predominantly

Afrikaans, the SU was at the beginning of the 1990's generally regarded as the

38 FA record page 25, par 46.2.

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institution best placed to remain a predominantly Afrikaans medium institution

following the commencement of the new constitutional dispensation; and that it

would make a contribution towards the preservation and development of Afrikaans

as a language of science and learning.39

28.2. Second, since 1994 the SU has become home to an ever-increasing number of

mainly White students, whose mother-tongue was not Afrikaans.40

28.3. Third, during the 20 years after 1995, the number of Afrikaans-speaking students at

the SU moved in a band between 11 000 and 13 300. 41 During the same period the

number of non-Afrikaans-speaking and overall number of students tripled. In 2007

there were 2914 undergraduate White English-speaking students at Stellenbosch.

By 2017 this number had increased to 5458. In the same period the number of

undergraduate White Afrikaans-speaking students declined from 8152 to 6926,

whereas the number of Brown Afrikaans-speaking students remained almost the

same, 1449 in 2007 and 1433 in 2017. In 2017 there were 851 English-speaking

Black (African) undergraduate students at the SU, of a total of 2390, 1515 of which

spoke an official language other than English or Afrikaans.

28.4. Fourth, the increase in non-Afrikaans students was the result of the fact that White

English-speaking students streamed to the campus; in certain faculties students

began to use English more and more; SU started appointing lecturers who could

not speak Afrikaans; and unlike the position in the past, it was not expected of

them to become proficient in Afrikaans. In the result, in 2015 there were already

39 FA record page 25, par 46.3. 40 FA record page 26, par 46.4. 41 FA record page 27, par 46.8.

Page 29

202 (21%) of the SU's permanent lecturing personnel component who could only

lecture in English whereas only 8 Afrikaans-speaking lecturers could not also teach

in English.42

28.5. Fifth, as a result of this influx of White English-speaking students, the offering of

single-medium Afrikaans classes decreased to 55% in 2009 and to 12% four years

later, whereas dual-medium increased to 58%.43

29. One of the most important reasons for the phasing out of Afrikaans at the SU was, therefore,

the phenomenal growth of the number of White English-speaking students and the

appointment of lecturers who were not prepared or able to lecture in Afrikaans. That the

anglicisation of the SU had little to do with transformation is evident, for example, by the

fact that 85% of the English-speaking students who entered the SU between 1995 and 2015

were White.44

30. We submit that this context too is indispensable to the proper adjudication of the subject

challenge, but that the Court of first instance, ignored (erroneously, we submit) this aspect

of the challenge, relegating the concerns raised by the applicants as one pertaining to the

implementation of the NLP.45

Language of instruction within the national tertiary education landscape

31. The historic position prior to the adoption of the new constitutional dispensation was this:

31.1. Eight of the 26 Universities in South Africa had either Afrikaans as their only

42 FA record page 28, par 46.11; Annexure DR124, page 1284. 43 FA record page 30, par 46.20. 44 Application for leave to appeal: FA record page 20, par 16. 45 At par 69 and 70.

Page 30

language of instruction or as a primary language of instruction together with

English. These Universities were: the University of the Western Cape; SU; the

University of Port Elizabeth (now Nelson Mandela Metropolitan University); the

Free State University; the Potchefstroom University for Christian Higher Education

(now the North West University); UNISA; the Rand Afrikaans University (now

Johannesburg); and the University of Pretoria.46

31.2. The increasing number of Black students at the UWC resulted in it substituting

English for Afrikaans and by 1990 Afrikaans was no longer a formal language of

instruction.47

31.3. The same thing occurred at the Nelson Mandela Metropolitan University and the

Rand Afrikaans University.48

31.4. On 11 March 2016, the Free State University adopted a new language policy which

saw English become the primary language of instruction. 49

31.5. On 28 April 2016, UNISA adopted a new language policy in terms of which

English became the only language of instruction of that tertiary institution

notwithstanding the fact that approximately 24 000 Afrikaans-speaking students

are enrolled at that university. 50

31.6. On 22 June 2016, English became the primary language of instruction at the

University of Pretoria, while Afrikaans and Sepedi were assigned only symbolic

46 Application for leave to appeal: FA record page 60, par 119. 47 Application for leave to appeal: FA record page 61, par 121. 48 Application for leave to appeal: FA record page 61, par 122. 49 Application for leave to appeal: FA record page 62, par 128. 50 Application for leave to appeal: FA record page 62, par 127. This figure has risen to 30 000.

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roles. 51

31.7. The result of the aforegoing is that, with the notable exceptions of SU (before the

adoption of the NLP) and North West Universities, all historically Afrikaans

Universities no longer use Afrikaans as a primary medium of instruction at all.

32. Of the 26 Universities in South Africa (including the eight which previously used Afrikaans

as a primary medium of instruction), there is presently only one (North West University)

which adheres to a language policy that makes provision for English and Afrikaans as the

primary languages of instruction. 52

33. We submit that in failing to have regard to this aspect of the case too, the Court of first

instance erred. Evidence of this nature is, in our respectful submission, highly relevant to

both the reasonably practicable test and the the appropriate justification test.

The demand for Afrikaans at SU

34. We submit that there are at least four factors which demonstrate the demand for a more

equitable focus on Afrikaans at SU. These are:

34.1. First, nationally there is only one university which makes provision for English and

Afrikaans as the primary languages of instruction and only at one campus.

34.2. Second, of the four Universities in the Western Cape, three are entirely English-

51 Application for leave to appeal: FA record page 63, par 122 and par 124. 52 Application for leave to appeal: FA record page 64, par 135.

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speaking.53

34.3. Third, the downscaling of Afrikaans at SU is not in order to accommodate the

language needs of Black people; it is primarily in order to accommodate the needs

of White English-speaking students. This is because in recent years SU has drawn

significantly more White English-speaking students than it has Black students who

would prefer to be educated in English.54 Since 1994, SU has become home to an

ever increasing number of mainly White students whose mother tongue was not

Afrikaans.55 As stated, during 20 years after 1995, the number of Afrikaans-

speaking students at the SU moved in a band between 11 000 and 13 300; whereas

during the same period the number of non-Afrikaans-speaking students tripled.56

34.4. Finally, the pool from which universities draw their students is remarkably small.57

A total of 2434 public schools (out of a total of 23 905 public schools countrywide)

use Afrikaans as a medium of education. The Afrikaans medium schools educate

about 900 000 Afrikaans-speaking learners.58 The participation of Brown

Afrikaans-speaking students in tertiary education is the lowest of all population

groups in the country.

The historic position in respect of language of instruction at tertiary institutions

35. After the commencement of the new constitutional regime and speaking at SU, where he

received an honorary doctorate, President Nelson Mandela said:

53 Application for leave to appeal: FA record page 64, par 135. 54 Application for leave to appeal: FA record page 63, par 133. 55 Application for leave to appeal: FA record page 18, par 10. 56 Application for leave to appeal: FA record page 18, par 11. 57 Application for leave to appeal: FA record page 56, par 102. 58 Application for leave to appeal: FA record page 56, par 104 and par 105.

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"It surely must be possible in a system of more than 20 universities to come to an agreement that there would be at least one university whose main task would be to promote the sustained development of Afrikaans as an academic medium."

36. The following relevant aspects of the historic position warrant reference:59

36.1. In 2001, Prof Kader Asmal (then Minister of Higher Education) appointed

Professor G J Gerwel to convene an informal committee to provide him with

advice specifically with regard to Afrikaans. In particular, the committee was

requested to advise on ways in which Afrikaans "can be assured of continued long

term maintenance, growth and development as a language of science and

scholarship in the higher education system without non-Afrikaans speakers being

unfairly denied access within the system, or the use and development of the

language as a medium of instruction wittingly or unwittingly becoming the basis

for racial, ethnic or cultural division and discrimination".

36.2. According to the LPHE, the reason for this focus on Afrikaans was that apart from

English, Afrikaans is the only other South African language employed as a medium

of instruction and official communication in institutions of higher education.

36.3. In January 2002, the Gerwel Committee submitted its advice to the Minister. In

addition, the Ministry considered the views expressed by a number of different

constituencies, including those of the Vice-Chancellors of the Historically

Afrikaans Institutions.

36.4. The Ministry acknowledged that Afrikaans as a language of scholarship and

59 The Language Policy for Higher Education (November 2002), accessed on: http://www.dhet.gov.za/Management%20Support/Language%20Policy%20for%20Higher%20Education.pdf; Annexure "DR12" to the FA, record page 1296.

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science is a national resource. It, therefore, fully supported the retention of

Afrikaans as a medium of academic expression and communication in higher

education and was committed to ensuring that the capacity of Afrikaans to function

as such a medium is not eroded. In this regard, the Ministry endorsed the views of

the then President, Mr Nelson Mandela, as expressed in his speech to the

University of Stellenbosch in 1996 that:

"The real issues is (sic) not the extermination or preservation of Afrikaans as an academic medium. Rather, the question is this: Amongst ourselves, how are we to negotiate a dispensation for the South African university system that meets the following three criteria? Firstly, that a milieu should be created and maintained for Afrikaans to continue growing as a language of scholarship and science. At the same time, that non-speakers of Afrikaans should not be unjustly deprived of access within the system. And moreover, that the use and development of no single language medium should - either intentionally or unintentionally - be made the basis for the furtherance of racial, ethnic or narrowly cultural separation".

25 October 1996

36.5. The Ministry did not believe, however, that the sustainability of Afrikaans in

higher education necessarily required the designation of SU and the Potchefstroom

University for Christian Higher Education (as it then was) as "custodians" of the

academic use of the Afrikaans language, as proposed by the Gerwel Committee.60

36.6. In this regard, the Ministry agreed with the Rectors of the Historically Afrikaans

Universities that the sustained development of Afrikaans should not be the

responsibility of only some of the universities. The concern was that the

designation of one or more institutions in this manner could have the unintended

consequence of concentrating Afrikaans-speaking students in some institutions and

in so doing setting back the transformation agendas of institutions that have

60 Par 15.4.1.

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embraced parallel or dual medium approaches as a means of promoting diversity.61

36.7. Instead, the Ministry was of the view that the sustainability of Afrikaans as a

medium of academic expression and communication could be ensured through a

range of strategies, including the adoption of parallel and dual language medium

options, which would on the one hand cater for the needs of Afrikaans language

speakers and, on the other, ensure that language of instruction is not a barrier to

access and success. In this regard, the Ministry expressed the intention to, in

consultation with the historically Afrikaans medium institutions, examine the

feasibility of different strategies, including the use of Afrikaans as a primary but

not a sole medium of instruction.62 We submit that the NLP is the antithesis of

this.

The NLP was not adopted because the previous position undermined any constitutionally protected value, right or aspiration

37. As already explained, the very first basis on which language of instruction is to be

determined is that of the language proficiency of the lecturers. As already submitted, this

has nothing to do with the needs of the students; instead, it depends entirely on the lecturers.

38. The consequence of this is a far-reaching one in the context of the present debate inasmuch

as it means that SU accepts (as it must) that if a lecturer is proficient in Afrikaans only, that

is the sole determinant of whether or not a lecture is taught in Afrikaans. In light of this, it

is not open to SU to contend that lecturing in Afrikaans undermines any constitutionally

61 Page 1308 of Annexure "DR126" to the FA, record page 1296. 62 At page 1309.

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protected value, right or aspiration.

39. As already explained, the second basis on which language of instruction is to be determined

is that even if a lecturer of an undergraduate class is proficient to teach in English and

Afrikaans, there will be more than one class only if it is reasonably practicable and

pedagogically sound to do so. It is difficult to understand the basis for this for at least two

reasons:

39.1. First, the provision is so vague that it is difficult to understand its meaning or

import. While the Constitution imposes a threshold of reasonable practicability, it

is unclear as to what the additional requirement of "pedagogically sound" seeks to

convey. On its plain wording, the term "pedagogic" refers to, inter alia,

"educational", "scholastic" or "academic". How that relates to the requirement of

reasonable practicability is left unstated in the NLP.

39.2. Second, clearly SU intends that a threshold of something more than reasonable

practicability is intended in respect of this category. In light of the plain wording of

section 29(2) of the Constitution, we submit that there is no basis for this additional

criterion in that it is not founded in section 29(2) of the Constitution.

40. Notwithstanding the aforegoing, the Court of first instance made the following findings, in

respect of which we submit it erred:

40.1. During 2015 and the first half of 2016 it became clear that the 2014 Policy

(although it was not its purpose) excluded students who were proficient in English

but not proficient in Afrikaans. The majority of those students excluded were Black

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(African) students.63

40.2. As a result of their poor Afrikaans, the majority of Black (African) students could

not fully understand the lectures presented in the A or T specifications; they felt

stigmatised by the real-time interpretation, which was almost solely used for

translating the lectures they could not understand; and, they felt excluded from

other aspects of campus life, like residence meetings and official SU events which

took place in Afrikaans, without interpretation.64

41. Notwithstanding the Court of first instance having found that the 2014 Policy had the

unintended consequence of excluding Black (African) students from full and equitable

access to SU, elsewhere in its judgment, the Court accepted that this "exclusion" "resulted

from a combination of the linguistic and racial demographics of SU’s student body, and the

manner in which that policy was implemented". Simply put, the Court of first instance

accepted that the exclusion was the result of: (a) linguistic and racial demographics; and (b)

the manner of implementation of the 2014 Policy; both these reasons, we submit, are

entirely distinct from such a consequence having ensued from the 2014 Policy.

42. Notwithstanding the Court of first instance having recognised the legal principle (as

endorsed by this Court) that "what happens in practice may therefore point to a flaw in the

application of the law but it does not establish a constitutional defect in it", it failed to apply

the principle in respect of its own reasoning on this score.65

63 Application for leave to appeal, Annexure "DR1", page 253, par 50. 64 At par 50. 65 Page 270, par 69. See too: S v Jordan and Others (Sex Workers Education and Advocacy Task Force and Others as Amici Curiae) [2002] ZACC 22; 2002 (6) SA 642 (CC); Minister of Public Works and Others v Kyalami Ridge Environmental Association and Others (Mukhwevho Intervening) [2001] ZACC 19; 2001 (3) SA 1151 (CC); South African Police Service v Solidarity obo Barnard 2014 (6) SA 123 (CC).

Page 38

43. There is a final reason as to why the 2014 Policy, on its plain terms, could not have had the

effect of excluding Black (African) students – this is because, in terms of the 2014 Policy –

43.1. Afrikaans and English were identified as SU’s languages of learning and teaching,

and SU was committed to purposefully extending the academic application of both

languages; and

43.2. parallel-medium teaching and real time educational interpreting were used as

preferred options only where practically feasible and affordable.

44. It follows, we submit, that where dual medium instruction resulted in exclusion of Black

(African) students, it could not have been practically feasible and therefore not sanctioned

by the 2014 Policy. Accordingly, the consequence of exclusion complained of (if correct),

could have been catered for through a proper application of the 2014 Policy.

The NLP was not adopted because the previous position was unaffordable nor was full parallel medium considered unaffordable

45. Although an attempt was made, for the first time, in the Respondents’ Answering Affidavit

before the Court a quo to suggest that considerations of cost played a role in the adoption of

the NLP as also in the decision not to accord equal status to English and Afrikaans as

primary languages of instruction, it is submitted that it has been conclusively shown in the

Replying Affidavit before the Court a quo as also in the Founding Affidavit in the

application for leave to appeal directly to this Court, that such was not the case.66

66 Annexures A to C to the Previous Written Submissions dated 22 March 2018.

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There was no question of segregation

46. The Senate and Council’s record of proceedings conclusively show that there was no

question of the possibility of segregation, unintentional or otherwise, being a motivation for

declining the parallel medium option and opting for the English dominance option. That is

hardly surprising considering the fact that a significant number of Black students (the

Brown component) prefer to attend classes in Afrikaans.

47. Nor could there have been, considering that there are significant numbers of White and

Black English and Afrikaans-speaking students at SU.

The NLP amounts to a retrogressive measure for first language Afrikaans-speaking students which SU has failed to justify

48. In AfriForum, this Court held that even where "a learner already enjoys the benefit of

being taught in an official language of choice" (as was the case at SU in the past),

inequitable access and the unintended entrenchment or fuelling of racial disharmony would

be the "appropriate justification" for taking away or diminishing the already existing

enjoyment of the right to be taught in one’s mother tongue.

49. In the present instance, the question of inequitable access and the fuelling of racial

disharmony do not arise, for reasons addressed under the preceding subheading. In this

regard, we emphasise that in terms of the 2014 Policy, parallel-medium teaching and real

time educational interpreting were used as preferred options only where practically feasible

and affordable.

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The domino effect of the erosion of Afrikaans at tertiary institutions

50. In our Previous Written Submissions, we addressed the question of whether public

Universities have obligations in relation to the advancement of all official languages as

contemplated under section 6 of the Constitution.67

51. In addition to the submissions made therein, we advance the following further contentions:

51.1. The erosion of Afrikaans as a language of instruction at tertiary institutions does

not, in our respectful submission have an impact only on the language of

instruction at the tertiary institution in question. Rather, in our submission, it

impacts on the proper place of that language within the national landscape on

multiple levels.

51.2. Simply put, if speakers of Afrikaans are likely to face an impediment at the level

of tertiary educational facilities on account of their home language, they are more

67 Section 6 of the Constitution provides as follows: "6 Languages (1) The official languages of the Republic are Sepedi, Sesotho, Setswana, siSwati, Tshivenda, Xitsonga, Afrikaans, English, isiNdebele, isiXhosa and isiZulu. (2) Recognising the historically diminished use and status of the indigenous languages of our people, the state must take practical and positive measures to elevate the status and advance the use of these languages. (3) (a) The national government and provincial governments may use any particular official languages for the purposes of government, taking into account usage, practicality, expense, regional circumstances and the balance of the needs and preferences of the population as a whole or in the province concerned; but the national government and each provincial government must use at least two official languages. (b) Municipalities must take into account the language usage and preferences of their residents. (4) The national government and provincial governments, by legislative and other measures, must regulate and monitor their use of official languages. Without detracting from the provisions of subsection (2), all official languages must enjoy parity of esteem and must be treated equitably. (5) A Pan South African Language Board established by national legislation must- (a) promote, and create conditions for, the development and use of- (i) all official languages;…."

Page 41

likely to develop a proficiency in relation to the dominant language at tertiary

institutions (English in this case) to the detriment and disadvantage of the

development of Afrikaans.

51.3. So too, there would be little incentive for individuals or universities to embark on

the "sustained development of Afrikaans as an academic medium", if ultimately, its

place and relevance at tertiary institutions is being eroded.

51.4. Some may argue that the resultant position is no different from that of other

indigenous languages, none of which is afforded the status of a language of

instruction at tertiary institutions. It is evident that there is no substance to this

submission if regard is had to the fact that there is a very specific imperative on the

State to elevate their status and advance their use as contemplated by section 6(2)

of the Constitution; this, as the provision recognises, is on account of their historic

diminished use and status. The LPHE contains a similar requirement.

51.5. To neglect to discharge this duty would be as irresponsible as allowing the erosion

of the use of Afrikaans, or even taking measures to erode the use of Afrikaans, as a

language of instruction at tertiary institutions; and to advance, in its stead, the use

of English at those institutions.

51.6. Such a course, we submit, ought not to pass constitutional muster for the

inevitabilities that lie with it, namely, the erosion of Afrikaans with the

concomitant elevation of English, and without promoting any advancement of

other indigenous languages.

51.7. In addition, we submit that the gradual erosion of Afrikaans (on the basis that we

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have contended) amounts to unfair discrimination in terms of section 9 of the

Constitution. It warrants emphasis that language is a listed, prohibited ground of

discrimination under section 9 of the Constitution, as a result of which it is

automatically presumed to be unfair, which SU bears the obligation of rebutting.

Based on what we have stated, we submit that SU has manifestly failed to rebut

the presumption. The result, we submit, is that the NLP constitutes unfair

discrimination on the ground of language against Afrikaans-speaking persons.

V IRRATIONALITY AND SUCCUMBING TO THE DICTATES OF AN

OUTSIDE PARTY

52. Having taken cognisance of the Appellate Division's position68 (endorsed in Zondo J’s

judgment in Solidarity and Others v Department of Correctional Services and Others69)

that whether conduct is rational or not involves a value judgment and is not a question of

fact, we submit that the objective facts which we enumerate at the outset, and those which

follow, inform such a value judgment:

52.1. In 2015, Open Stellenbosch (which comprised approximately forty members of

whom not all were students and not all of those who were, were SU students)70

insisted that Afrikaans be abolished.

52.2. This was presented by the Rector’s Management Team (the "RMT") as the reason

for the acceleration of initiatives which it claimed were necessary to prevent

68 Media Workers Association of South Africa & Others v Press Corporation of South Africa Ltd ("Perskor") 1992 (4) SA 791 (A) at 796E-J. 69 2016 (5) SA 594 (CC) at par 88. 70 FA record page 65, par 61.3.

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language from being a barrier to access or student success.71

52.3. Following talks with Open Stellenbosch in 2015, the RMT attempted to amend the

2014 Policy unilaterally when it wrote to the Senate on 12 November 2015 and

issued a statement on the same day which revealed that there was consensus

between Open Stellenbosch and the RMT regarding the "principles of language

implementation".72

52.4. It was clear that the RMT intended that the statement on language policy should be

implemented in the 2016 academic year.73

52.5. The significance of the Open Stellenbosch input is evidenced by the following

statement: "It should be noted that the attached statement was discussed with Open

Stellenbosch (OS), and consensus has been reached on the principles, as points of

departure, related to language implementation expressed by the RMT (the Rector’s

Management Team)."74

52.6. Apart from the fact that the statement acknowledges "the distinctive contribution of

the Open Stellenbosch collective", management supported a number of principles

as points of departure including that all learning at SU would be facilitated in

English and in smaller class groups all information would be conveyed in English,

"principles" which have since become features of the NLP.75

52.7. Open Stellenbosch inter alia insisted that –

71 Application for leave to appeal: FA record page 20, par 18. 72 Application for leave to appeal: FA record page 29, par 19. 73 Application for leave to appeal: FA record page 21, par 21. 74 Application for leave to appeal: FA record page 22, par 22. 75 Application for leave to appeal: FA record page 23, par 26.1 and 26.3.

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52.7.1. in January 2016 all classes had to be available in English;

52.7.2. the interpreters and interpreting services had to be abolished;

52.7.3. Afrikaans could not be a qualification for employment or appointment to

leadership positions.76

52.8. Significantly, by 2016 the anglicisation of the SU had advanced so far that

Professor Antoinette van der Merwe, later the Chair of the WG, told the

Parliamentary Portfolio Committee that Afrikaans was no longer a prerequisite for

the appointment of SU personnel.77

52.9. Although the Council initially attempted to stem the tide, by 10 March 2016 the

Chairman of the Council had to concede under oath that there had been deviations

from language specifications in favour of English in 268 modules in 7 faculties.78

It was clear that the Open Stellenbosch position had prevailed as evidenced by the

acknowledgement in the statement of 12 November 2015 of "the distinctive

contribution of the Open Stellenbosch collective".79

52.10. Shortly before the matter was due to be heard in the Court a quo, a Council

Member against whom disciplinary measures had been instituted for public

statements made after the adoption of the NLP, Mr Johan Theron, revealed in his

statement of defence inter alia that –

52.10.1. the Rector had on occasion told him that he foresaw that the SU would

76 Application for leave to appeal: FA record page 24, par 29.5. 77 Application for leave to appeal: FA record page 20, par 17. 78 Application for leave to appeal: FA record page 21, par 20. 79 Application for leave to appeal: FA record page 23, par 26.

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become an English university;

52.10.2. the Vice-Rector had reported to Council that in the days immediately

prior to 12 November 2015, the RMT again engaged in talks with Open

Stellenbosch;80 and

52.10.3. the Chairman of the Council had accused the RMT of deceiving him

and the Council.81

52.11. Significantly these developments were also inconsistent with what the Student

Representative Council wanted. It wanted parallel medium education with a more

significant focus on parallel medium and a smaller one on translation; the US to be

a fully parallel medium institution by 2020; and, giving Afrikaans and English

equal status as languages of instruction.82 This is exactly the Applicants’ position.

52.12. Having had to concede, in the Chairman of the Council’s affidavit referred to

hereinabove, that the deviations from the 2014 Policy were unlawful, the RMT

appointed the WG to review the 2014 Policy,83 notwithstanding the fact that on 9

September 2015 the Task Team which had to investigate the problematic aspects

which have been raised by Open Stellenbosch and the SRC with the view to

reviewing the 2014 Policy, recommended a commitment to the equal use of

Afrikaans and English as languages of instruction.84 Again, this is consistent with

the Applicants’ position.

80 This should have been disclosed in the rule 53 Record of Proceedings. 81 Application for leave to appeal: FA record page 25, par 30.3. 82 FA record page 75, par 80 and 81; Annexure "DR25", page 664. 83 FA record, page 99, par 134 and page 101, par 135.5. 84 FA record, page 107, par 151 and par 152.

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52.13. On 21 September 2015 the RMT announced that it had adopted these Task Team

recommendations and that they would be submitted to the Council and Senate at

their scheduled meetings.85 This never happened.

52.14. According to the Task Team’s report the recommendations were aimed at ensuring

fair access for everyone and giving the assurance that Afrikaans and English would

have equal status as languages of admission and instruction at the SU.86

52.15. The WG was appointed by the RMT and became its master’s voice. Even in its

Proposed Language Approach of the SU of 24 February 2016 it committed itself to

an approach which, unsurprisingly, eventually found expression in the NLP and

proposed, inter alia, that for smaller class groups which cannot be divided, a dual

language approach be followed in which the major portion of the lecture would be

presented in English with emphasis or summaries in Afrikaans if the lecturer is able

to lecture in both languages.87

52.16. This indicates that the WG slavishly followed the RMT’s statement of

12 November 2015 and did not heed any of the many public comments which

called for equal status for Afrikaans and English as primary languages of

instruction.88

VI SOME REMAINING ERRORS OF THE COURT OF FIRST INSTANCE

53. We submit that the Court of first instance erred in a number of further material respects

85 FA record, page 108, par 153. 86 FA record, page 109, par 154. 87 FA record, page 114, par 172 and par 173. 88 FA record, page 116, par 175.

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which ultimately tainted its resultant order. In particular:

53.1. It erred in finding that the 2016 Policy "does not reduce the Afrikaans offering".89

The Court of first instance also found that the 2016 Policy "does at the same time

adopt a preference for English in certain circumstances in order to advance SU’s

multiple goals, namely, equal access, multilingualism, integration, and preserving

Afrikaans, all within available resources".90 We have already provided an

overview of both the 2014 Policy and the NLP. We submit that it is clear that the

NLP in fact reduces the Afrikaans offering. The reality subsequent to its

commencement confirms this. Even though the SU itself tried to minimise the

effect of the reduction of the Afrikaans offering it, at least, admitted that there

would be such a reduction.91

53.2. After engaging in a detailed analysis of the NLP, the Court concluded that, save for

certain identified instances "it would appear, English and Afrikaans are treated

identically".92 The Court immediately qualified this statement by stating: "While

English enjoys preference, it can safely be mentioned that the impact on Afrikaans

speakers is extremely limited." According to the reasoning of the Court of first

instance, this is so because: "(a) in the first year of study there is no difference at

all. All lectures are given simultaneous translation, students will have equal

access; (b) the limitations are all linked directly to what is reasonably practicable.

Whether SU will offer a module in parallel medium, and whether it will offer

simultaneous translation in dual-medium or English lectures in later years of study

89 Application for leave to appeal, annexure "DR1", page 255, par 53. The SU admitted on numerous occasions in its answering affidavit that it reduces the Afrikaans offering. 90 Page 244, par 53. 91 RA record page 3733, par 3. 92 Page 261, par 60.

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is expressly made subject to what is ‘reasonably practicable’, or to the needs of

students and SU’s resources; (c) the slight preference only applies to lectures and,

to a limited degree, materials. For pedagogical reasons, SU intends – like other

universities across the world – to move away from the lecture being the sole focus

of learning and teaching. Other facilitated learning opportunities will become

increasingly central to the learning process. Those will be equally available in

English and Afrikaans and increasingly in IsiXhosa; (d) the Policy creates an

accountability mechanism to ensure that Afrikaans teaching is not reduced

significantly from pre-2016 Policy level and in increased (sic) where this is

possible. Paragraph 7.4.1.2 of the Policy reads: ‘The Afrikaans offering is

managed so as to sustain access to SU for students who prefer to study in

Afrikaans and to further develop Afrikaans as a language of tuition where

reasonably practicable’. The Senate is obligated in terms of paragraph 7.4.3 to

approve all language plans and so can send a plan back to the faculty for

reconsideration if it fails to meet this requirement. The import of this provision is

that: (i) the Afrikaans offering cannot be reduced materially as that would not

‘sustain access’ for Afrikaans students; and the Afrikaans offering should be

increased to the extent that is logistically and financially practicable."93 In having

analysed the Policy in these terms, we submit that the Court erred in that it: (a)

ignored almost entirely that the starting point of the exercise in the NLP is the

lecturer’s proficiency in a language; (b) it conflated simultaneous translation with

actual language of instruction; (c) it attached weight to the so-called

"accountability mechanism" but failed to recognise that the language plans referred

to, operate within the confines of the Policy.

93 Page 261, par 60.

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53.3. It also erred in finding that much of the Applicants’ complaints and concerns were

based on the implementation of the Policy as opposed to the Policy itself.94

According to the Court, a reduction in Afrikaans is certainly not the intention of the

Policy nor a consequence of implementing the Policy.95 We submit that in reaching

these conclusions, the Court of first instance failed to have regard to the evidence,

particularly in relation to what has actually been happening in the lecture rooms

since the commencement of the NLP and also the high numbers of lecturers who

are not proficient in teaching in Afrikaans. The facts in this regard are entirely

consistent with what the Applicants predicted would be the likely outcome of the

NLP.

53.4. It erred in finding that the subject challenge fell to be determined in isolation of the

broader context of the language policies of all Universities in South Africa.96

53.5. It erred in finding that an apparent difficulty for the Applicants is that they do not

provide any reasonable basis as to how the NLP should be amended to prevent

exclusion while providing for more Afrikaans tuition.97 We respectfully submit that

in alleging an unconstitutionality, it is not for the applicant to identify the means by

which to remedy the alleged unconstitutionality. However, the Applicants have

clearly expressed a preference for equal status to English and Afrikaans as primary

languages of instruction and a meaningful commitment to the development of

Xhosa as a language of tertiary education.

53.6. It erred by applying the incorrect test, viz, that of appropriate justification as

94 Page 262, par 61. 95 Page 262, par 61. 96 Page 268, par 65. 97 Page 294, par 91.

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opposed to reasonable practicability. We addressed this issue comprehensively in

our Previous Written Submissions.

53.7. Finally, it erred in granting a costs order against the Applicants for reasons fully

addressed in our Previous Written Submissions, an error since conceded by the

Respondents.

VII CONCLUSION

54. For reasons addressed in these Submissions and in our Previous Written Submissions, we

ask that the Order of the Court of first instance be set aside and replaced with the Order

sought in the Applicants’ Notice of Motion.

JAN HEUNIS SC KARRISHA PILLAY Counsel for the Applicants

Chambers, Cape Town 18 July 2018

IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA HELD AT BRAAMFONTEIN

CCT Case No: 311/2017 WCHC Case No: 17501/2016

In the matter between:

GELYKE KANSE 1st Applicant DANIëL JOHANNES ROSSOUW 2nd Applicant THE PRESIDENT OF THE CONVOCATION OF THE UNIVERSITY OF STELLENBOSCH 3rd Applicant BERNARDUS LAMBERTUS PIETERS 4th Applicant MORTIMER BESTER 5th Applicant JAKOBUS PETRUS ROUX 6th Applicant FRANCOIS HENNING 7th Applicant ASHWIN MALOY 8th Applicant RODERICK EMILE LEONARD 9th Applicant and

THE CHAIRMAN OF THE SENATE OF THE UNIVERSITY OF STELLENBOSCH 1st Respondent THE CHAIRMAN OF THE COUNCIL OF THE UNIVERSITY OF STELLENBOSCH 2nd Respondent THE UNIVERSITY OF STELLENBOSCH 3rd Respondent

______

THE APPLICANTS' RESPONSE TO THE CHIEF JUSTICE'S DIRECTIONS OF 31 AUGUST 2018 ______

1. This document responds to the Chief Justice's directions of 31 August 2018

(received on 3 September 2018) that parties seeking to rely in argument on Page 2

specific portions of the record, are invited to furnish the Registrar with

English translations of those portions by 15h00 on Friday, 7 September

2018.

2. Since there was insufficient time to identify and translate portions of the

record we resolved to provide the Court with an English synopsis which

draws on the record, i.e. the founding, answering and replying affidavits and

annexures, which underpins the Applicants' argument instead of providing

the Court with freestanding translated parts of the record.

3. This was as much as we were capable of in the limited time at our disposal

and if this methodology, which, we submit, facilitates a better understanding

of the Applicants' case, is not acceptable to the Court, we would simply ask

that everything herein be discarded with the exception of paragraphs 155

and 160 which mainly consist of translations of annexures "B" and "C" to the

Applicants' written submissions in response to the Chief Justice's directions

of 1 March 2018.1

4. On the Respondents' own version the emphasis in the 2014 language policy

was more on the judicious application of Afrikaans and English in a more

equal partnership. The emphasis shifted from Afrikaans in a multilingual

context to a multilingual context which also provided for Afrikaans.2

5. It extended the multilingual context of the SU's language policies and put the

emphasis on the role of multilingualism and diversification of the SU in order

to make it more inclusive. It also provided that the English offer had to be

1 Pp.51-80. 2 AA: Record of appeal Vol 14, p.1898, para 65. Page 3

increased to make optimal provision for study and teaching for all South

Africans at the SU. The policy recognised language diversity and promoted

access for personnel and students.3

6. The 2014 policy provided that Afrikaans and English were the languages of

learning and instruction at the SU and that the University was dedicated to

extend the academic application of both.4

7. It specified official bilingualism for the SU by providing that the institutional

languages were Afrikaans and English.5

8. The Applicants claim that although Afrikaans and English were notionally

placed on an equal footing, the so-called T-option classes in which English

dominated, became the new norm and the campus veered towards that

language.6

9. They also claim that the most important reason for this was not

transformation, which should also have seen concerted efforts to empower

brown students to attend the University in increasing numbers, but the

phenomenal growth of historically white English-speaking students and the

appointment of lecturers who were unable to lecture in Afrikaans.7

10. The Anglicisation of the University had very little to do with transformation, as

evidenced by the fact that 80% of the English-speaking students who

enrolled at the university between 1995 and 2015 were white.

3 Record of appeal Vol 14, p.1899, para 66.1. 4 Record of appeal Vol 14, p.1901, para 66.6 5 Record of appeal Vol 14, p.190, para 66.3. 6 FA: Record of appeal Vol 1, p.31, para 46.23. 7 FA: Record of appeal Vol 1, p.63, para 58. Page 4

11. It is an important fact that when matters came to a head during the second

half of 2015, the Task Team that had been appointed in May 2015 was in the

process of investigating the problems with the implementation of the

language policy that had been raised by Open Stellenbosch and the SRC

with a view to making proposals as to how best to address those problems.8

12. This occurred after Open Stellenbosch and the SRC handed two memoranda

to management on 13 and 14 May 2015 respectively.9

13. Significantly, in its memorandum10 the SRC recommended, in light of the

growing concern about the SU's language policy, that all classes be taught in

parallel medium as stipulated in section 7(c) with a greater focus on parallel

medium and a lesser focus on real-time interpretation in classes. This it

presented as a long term solution which it would have liked to have seen

accelerated. The aim at that stage was 75%/75% by 2020, but the SRC

wanted it to be fully parallel by 2020 with clear interim strategic targets set in

place.11

14. In the answering affidavit the Second Respondent, Mr George Steyn, says

that it became apparent early in the 2015 academic year that the application

of the 2014 language policy did not result in satisfactory access for students

who did not understand Afrikaans and that during April 2015 some students

on campus started protesting over problems for non-Afrikaans-speaking

students in regard to the 2014 language policy.12

8 FA: Record of appeal Vol 1, p.107, para 150. 9 FA: Record of appeal Vol 1, p.107, para 149. 10 Annexure "DR25" to the FA, Record Vol 6, p.664. 11 Record of appeal Vol 6, p.666. FA, Record Vol 1, p.75, paras 80 and 81. 12 Record of appeal Vol 14, p.1902, para 68. Page 5

15. The unhappiness among students over the 2014 language policy ultimately

led to Open Stellenbosch and the SRC handing the two memoranda to the

Rector's Management Team ("management") on 13 and 14 May 2015

respectively concerning the problematic aspects of the implementation of the

2014 language policy.13

16. This led to the appointment of the Task Team referred to hereinabove (to be

distinguished from the Working Group which was appointed in 2016) to

investigate the matter and to make proposals in regard thereto.14

17. On 20 August 2015 a documentary video entitled "Luister/Listen" which

included interviews with SU students and a lecturer was released on social

media platforms. Significantly Mr Steyn claims that in the video the

participants share their experience that the language policy benefited

Afrikaans-speaking students and that students who did not speak Afrikaans

did not have comprehensively satisfactory access to education at the SU.15

This video is comprehensively dealt with in the replying affidavit.16

18. This led to a flurry of activity. On 28 August 2015 the Senate adopted a

motion in which it recognised the complexity of the situation and the

relationship between the language policy and transformation.17

19. On 4 September 2015 the Vice-Rector, Prof Arnold Schoonwinkel, sent a

memorandum to the Deans requesting them to complete a list about the

13 Record of appeal Vol 14, p.1904, para 71. 14 Record of appeal Vol 14, p.1904, para 72. 15 Record of appeal Vol 14, p.1905, para 74. 16 Record of appeal Vol 32, p.3765, para 52. 17 Record of appeal Vol 14, p.1905, para 75. Page 6

language capabilities of the teaching personnel in their faculties.18

20. On 9 September 2015 the Task Team finalised their report, including their

proposals regarding reviewing the language policy and formulating an

implementation plan.19

21. The Open Stellenbosch memorandum is annexure "GMS10" to the AA20 and

the SRC memorandum is annexure "GMS11".21

22. In its memorandum Open Stellenbosch inter alia demanded that by January

2016 –

22.1 all classes had to be available in English;

22.2 the use of translators and translation-devices had to be discontinued;

22.3 Afrikaans could not be a requirement for employment or appointment

to leadership positions; and

22.4 the SU had to stop using Xhosa as a front for multilingualism when it

had clearly invested minimal resources in its development on

campus, alternatively significant investment had to be directed at

developing Xhosa on campus.22

23. That the SU language policy was the primary focus of the Open Stellenbosch

campaign was confirmed in the affidavit in the first (AfriForum Youth)

18 Record of appeal Vol 14, p.1906, para 76. 19 Record of appeal Vol 14, p.1906, para 77. 20 AA: Record of appeal Vol 21, p.2523. 21 AA: Record of appeal Vol 21, p.2535. 22 Record of appeal Vol 21, p.2525. Page 7

application deposed to by Mr Philemon Mogale.23 According to paragraph 40

of his affidavit,24 Open Stellenbosch adopted a set of demands, some of

which were the following:

23.1 By January 2015 all classes had to be available in English. The use

of translators and translation devices had to be discontinued. All

official and unofficial communications from management, faculties

and university departments had to be available in English.

23.2 Afrikaans could no longer be a requirement for employment or

appointments to leadership positions.

24. By contrast:

24.1 The SRC set in motion a qualitative consultative process where all

leadership bodies resorting under it were employed to discuss the

relevant issues with their constituents at grassroots level.

24.2 These included all residences and private student organisations

represented by the Prim Committee, all societies as represented by

the Societies Council and all faculty committees represented by the

Academic Affairs Council.

24.3 Representatives of these constituencies then reported back on their

internal discussions.

24.4 All reports were recorded and afforded equal weight and importance.

24.5 Students were also encouraged to mail their concerns and

23 Annexure "DR28" to the FA: Record of appeal Vol 7, p.687, para 35. 24 Record of appeal Vol 7, p.689. Page 8

suggestions regarding the language policy to the official SRC

website where valuable responses were received.

24.6 It could confidently say that a comprehensive dataset had been

compiled over three weeks which should lend credibility to the SRC's

recommendations.

24.7 The recommendations were based on students' needs and

experiences and addressed the long term language strategy as well

as interim measures to be taken.25

25. In the event the SRC recommended that –

25.1 all classes be taught in parallel medium with greater focus on parallel

medium and less focus on real-time interpretation in classes as a

long term solution which it would like to see accelerated;

25.2 that full parallel medium by 2020 should be substituted for the

current aim of 75%/75% with clear interim strategic targets set in

place;

25.3 there could be exceptions for modules where it is preferable to have

a T-option, but it would have to be implemented in such a way that

students understand all content discussed during a lecture, as

opposed to only 50% covered in their language of choice;26

25.4 the language policy should be rewritten to explicitly afford both

Afrikaans and English equal status;

25 Annexure "GMS11" to the AA: Record of appeal Vol 21, p.2536. 26 Record of appeal Vol 21, p.2537 Page 9

25.5 since a large part of the language problem lies in the application of

the language policy and plan, it should be addressed immediately by

implementing a structure by which lecturers are held accountable, a

proposal of particular importance in the T-option module context as

numerous constituencies complained about lecturers ending up

lecturing only in one language in which regard practical suggestions

were made;

25.6 the class representative structure system be restructured and class

representatives be sensitised to play a more active role in

representing the academic needs of students;

25.7 a simple and accessible mechanism was needed to keep lecturers

accountable;

25.8 translation services had to be made less cumbersome; and

25.9 recruitment officers had to be expressly instructed to explain the

language proposition of the SU in a non-misleading way when

interacting with potential students thus allowing them to make an

informed decision when considering different universities.27

26. The Task Team responded to these memoranda in their report of 9

September 2015.28

27. It recommended that –

27.1 the policy be amended to demonstrate the equal commitment to the

27 Record of appeal Vol 21, p.2537. 28 AA: Record of appeal Vol 14, p.1906, para 77; Annexure "GS1" to annexure "DR57" to the FA: Record of appeal Vol 8, p.788. Page 10

use of Afrikaans and English;

27.2 in this regard the policy should be clear about affording equal status

to Afrikaans and English as languages applied in learning and

teaching at the SU and the advancement of both languages as

academic languages and of Xhosa where feasible;

27.3 it should confirm the SU's commitment to the development of Xhosa

as an academic language;

27.4 modules with high enrolments should be considered for conversion

to parallel medium teaching in 2016, especially where classes were

offered in multiple groups already;

27.5 longer term strategies should be formulated in partnership with

faculties to increase the multilingual offer above 75% Afrikaans and

75% English;

27.6 an implementation plan and good practice guidelines should be

compiled for the T-option (dual medium) in collaboration with the

language centre;

27.7 it had to be ensured that the recruitment message matches the

students' language reality on the campus.29

28. The Task Team's report records that since 2002 the language policy of the

SU had been developed and devised in accordance with the Ministerial

Language Policy for Higher Education ("LPHE") which provides guidance in

29 Record of appeal Vol 8, p.789. Page 11

the context of a strongly multilingual society and the provisions for

multilingualism contained in the Constitution and the South African Use of

Official Languages Act, 2012.

29. According to it some of the most important issues in the LPHE that are also

accommodated in the SU language policy with reference to the relevant

paragraphs of the LPHE were:

29.1 A general acceptance of English and Afrikaans as established

languages of instruction and the need to develop other languages for

this purpose (LPHE para 15).

29.2 The position of Afrikaans as a language of scholarship and science

and a national resource (LPHE para 15.5) while acknowledging the

challenges of the use of Afrikaans, but also the solution (at least in

part) to these challenges, namely that a range of strategies be

employed to cater for the needs of students from different language

communities, including the Afrikaans language community

(specifically LPHE para 15.4.4). This very provision is described as

the cornerstone for the diversified approach in the SU language

policy and language plan.

29.3 It claims that the SU language policy and language plan were fully in

agreement with the summary of the LPHE (LPHE para 21).30

30. We would note in passing that Dr Antoinette van der Merwe, who was the

convenor of the Task Team, later became the Chair of the Working Group

30 Annexure "GS1" to annexure "DR57" to the FA: Record of appeal Vol 8, p.790-791. Page 12

and that Prof Arnold Schoonwinkel, the Vice-Rector, also served on the Task

Team.

31. The report specifically mentions that the Task Team had taken note of the

political/ideological nature of the Open Stellenbosch language debate and

had decided to not become involved in the debate themselves.31

32. Significantly, as is apparent under the heading "Policy suggestions",32 the

Task Team adopted mainly the SRC's recommendations and not those of

Open Stellenbosch.

33. The Task Team's recommendations were provided to Open Stellenbosch

under cover of a letter from Prof Schoonwinkel.33

34. On 28 September 2015 the First Respondent (Rector) himself reported to the

Council that the policy which the Council had approved at the end of 2014

gave expression to the SU's approach to multilingualism because it involved

a dynamic interaction between languages and not only co-existence of two

languages next to each other.34

35. Management was of the view that the language policy complied with the

requirements of equity, applicability and the need for redress provided for in

section 29(2) of the Constitution and that was consistent with the values of

the LPHE.

36. Having emphasised that the retention of Afrikaans as a language of

31 Record of appeal Vol 8, p.791. 32 Record of appeal Vol 8, p.792. 33 Record of appeal Vol 7, p.692, paras 46 and 47. 34 Annexure "GMS17" to the FA: Record of appeal Vol 21, p.2581; AA: Record of appeal Vol 14, p.1907, para 79. Page 13

instruction should not be regarded as adherence to a political ideology or

mechanism of exclusion, he said that the Task Team was investigating

actions to implement the language policy and as to how the multilingual offer

could be extended through parallel medium education as also how the T-

option could be supplemented or converted to full parallel medium where

possible.35

37. On 15 October 2015 the SU's Institutional Forum, established in terms of

section 31 of the Higher Education Act and of which the main function is to

advise the Council, made certain proposals of its own regarding the Task

Team's proposed amendments to the language policy motivating their

proposal with reference to section 6(4) of the Constitution and section 2 of

the Use of Official Languages Act, No. 12 of 2012, which identifies as one of

its objects the promotion of parity of esteem and equitable treatment of the

official languages of the Republic.36

38. Paragraph 1.1.3, of which a loose translation follows, is particularly

illuminating:

"By virtue of the provisions of section 29(2) of the Constitution, the SU has a

deep moral duty towards the Afrikaans-speaking population of the Western

Cape, the Northern Cape and the southern part of Namibia to guarantee a

continued Afrikaans offer. Approximately 50% of the population of the

Western Cape has Afrikaans as a first language, approximately 60% of the

population of the Northern Cape are Afrikaans-speaking and between 35 and

35 Record of appeal Vol 21, p.2582. 36 AA: Record of appeal Vol 14, p.1908, para 80; annexure "GMS18" to the FA: Record of appeal Vol 21, p.2583. Page 14

60% of the population of the southern parts of Namibia are Afrikaans-

speaking. In view of the fact that many of these people come from areas

where English is hardly used, they are not well equipped to function

effectively in an English academic environment." 37

39. Paragraph 1.1.4 reads as follows:

"If the status of Afrikaans and English are not pertinently guaranteed as

languages of equal rank, the danger exists that the SU would gradually

become unilingual English, which would be a huge injustice to the Afrikaans-

speaking component of the population of the south western part of the

continent." 38

40. In paragraph 7.7 of his affidavit in the second (AfriForum Youth) application,

Mr Steyn relates that between 19 to 23 October 2015 there were Fees Must

Fall actions on the SU campus which disrupted classes to such an extent

that the semester had to be lengthened by one week and exams postponed

by one.39

41. Thus, in October 2015 attention to orderly progress in regard to the language

issues became diverted during the ensuing weeks by serious unrest both

nationally and at Stellenbosch. Although much of the unrest had to do with

fees, management claimed to have had grounds, which it thought were

justifiable, that it would extend, at Stellenbosch, to the matter of language in

the context of transformation.

37 Annexure "GMS18" to the FA: Record of appeal Vol 21, p. 2583. 38 Annexure "GMS18" to the FA: Record of appeal Vol 21, p.2583. 39 Record of appeal Vol 8, p.770, para 7.7. Page 15

42. In this regard Judge Howie, who was later appointed by Council to

investigate large scale deviations (in 2016) from the 2014 language policy,

quoted from the Vice-Rector's evidence according to which, while the

language question was being attended to, there was widespread campus

unrest a few days before the 12 November 2015 statement (with which we

shall shortly deal) which was clearly inspired by what was styled as a

significant risk that language might become the unrest target at Stellenbosch

in the same way that memorials to Cecil Rhodes had been at UCT.40

43. On 11 November 2015 management met with the Deans41 and introduced to

them a document styled "Statement by Rector's management team on the

language policy and the implementation of language at the institution".42 This

occurred one day after management was asked at a meeting of the Council's

Exco whether there was anything to report on language matters, only to be

told that there was not but would be in March 2016.

44. On 12 November 2015 members of the Senate were invited to a meeting

where the statement was discussed and on the same day it was published.43

45. Significantly paragraph 81 of the answering affidavit44 simply repeats

paragraph 7.7 of the affidavit deposed to by Mr Steyn in the second

(AfriForum) application,45 to wit that during the period 19 to 23 October 2015

there were several Fees Must Fall protest actions on the SU campus which

40 Annexure "DR68" to the FA: Record of appeal Vol 9, p.970, para 7. 41 AA: Record of appeal Vol 14, p.1909, para 83; Annexure "DR18" to the FA: Record of appeal Vol 6, p.654 and with an English version as annexure "GS2" to annexure "DR57" to the FA: Record of appeal Vol 8, p.802. 42 Record of appeal Vol 8,p.770, para 7.8; Annexure "GMS15" to the AA: Record of appeal Vol 21, p.2552. 43 Record of appeal Vol 8, p.771, para 7.9 and 7.10. 44 AA: Record of appeal Vol 14, p.1908. 45 Annexure "DR57" to the FA: Record of appeal Vol 8, p.770. Page 16

disrupted classes to such an extent that the semester had to be extended by

one week and the year-end exams postponed by one week.

46. The next paragraph46 refers to the fact that the Council Exco met on 10

November 2015, and noted the notifications and recommendation in respect

of the language policy emanating from the Institutional Forum referred to

hereinabove as also the communications from management that further

consultation processes would have to take place before a final draft

language policy could be submitted to the Council on a later occasion.47

47. Although the 12 November 2015 statement refers to the fact that language

task teams had been considering various options for, among others, best

practice in language implementation in 2016, those recommendations were

simply abandoned. The following appears in the first paragraph:

"The following principles, as points of departure related to the Language

Policy and language implementation, are supported by the Rector's

Management Team. In this regard, we would like to acknowledge the

distinctive contribution of the Open Stellenbosch collective in the most recent

discussions to ensure that language implementation does not form a barrier

in the way of access to learning opportunities of Stellenbosch University or

the successful completion of academic programmes." 48

48. The first sentence of the third paragraph reads as follows:

"Since English is the common language in South Africa, all learning at

46 Record of appeal Vol 14, p.1909. 47 Record of appeal Vol 14, p.1909, para 82. 48 Annexure "GS2": Record of appeal Vol 8, p.802. Page 17

Stellenbosch University will be facilitated in English, and substantial

academic support will be provided in other South African languages,

according to students' needs."

49. The first sentence of the fourth paragraph reads as follows:

"For modules with large enrolment numbers, which are divided for

pedagogical reasons or because of the size limits of available lecture

venues, the university shall keep on expanding parallel medium instruction in

lectures. In smaller class groups all information will be conveyed in English."

50. The first sentence of the penultimate paragraphs reads as follows:

"The primary language of communication and administration at Stellenbosch

University will be English, with Afrikaans and isiXhosa as additional

languages." 49

51. Having referred to the intention to put the above principles as points of

departure to the Council at its 30 November 2015 meeting and

communicating and consulting with the Senate, the penultimate sentence

reads as follows:

"In the meantime, the points of departure of this document will be applied as

from January 2016." 50

52. This statement not only caused a public furore51 but, despite Council

attempts to stem the tide,52 it opened the floodgates to such an extent53 that

49 Annexure "GS2": Record of appeal Vol 8, p.803. 50 Annexure "GS2": Record of appeal Vol 8, p.803. 51 FA, Record Vol1 p.70, para 68; FA, Record Vol 1, p.81, para 94. 52 FA, Record Vol 1, p.72, para 72; FA, Record Vol 1, p.73, para 73. Page 18

on 10 March 2016 and in the context of a second High Court application that

had been instituted to compel the SU to adhere to its language policy Mr

Steyn deposed to an affidavit in which he admitted that since the

commencement of the academic year on 1 February 2016 seven faculties

deviated from the language specifications as published in the 2016 yearbook

in 268 modules.54

53. The only explanation which Mr Steyn himself offered for the position adopted

in the statement by the Rector's management team of 12 November 2015

would appear to be the disruption of the campus by Fees Must Fall.55

54. He also acknowledged that a Council decision of 20 February 2016,

proposed by Vice-Rector Schoonwinkel and which was designed to

legitimise the unlawful deviations from the language policy, was legally

assailable because it amounted to an unlawful amendment in practice of the

existing language policy.56

55. That the Council itself was of the view that the university was deviating from

its existing language policy is evident from the motion which it adopted on 20

February 2016 according to which an independent person (Judge Howie)

had to be appointed to investigate the recent process in respect of language

implementation and to make further findings as to how deviations from the

process originated and to make recommendations as to how to deal with it in

the future.57

53 FA p.80, para 91. 54 FA, Record Vol 1, p.106, para 146.2. 55 Annexure "DR57" to the AA: Record of appeal Vol 8, p.770, para 7.8. 56 FA, Record Vol 1, p.105, para 146.1; p.103, para 142; p.124, para 200. 57 FA, Record Vol 1, p.102, para 138. Page 19

56. When the Rector wrote the letter to the Senate on 12 November 2015 to

which the statement was attached in which management effectively

announced a new language policy, it realised that it would have a significant

impact on personnel and students alike in 2016.58

57. It was clear that management's point of departure was that its policies should

be implemented without delay.

58. The statement was discussed with Open Stellenbosch and consensus was

reached regarding the principles for language implementation which

management expressed in the statement.59

59. Barely two months after the management report to the Council of 28

September 2015 referred to hereinabove, on 30 November 2015, the Rector

informed the Council in his management report of that date,60 after having

referred to the protest actions on the campus and elsewhere, that they had

found that the practical outcomes of the language policy were inconsistent

with their vision for inclusivity.61

60. Nowhere was any attempt made to explain what caused the shift. It is clear,

however, that student unrest caused it.

61. According to his report, the statement of 12 November 2015 was a synthesis

of insights since May 2015, composed from the lived experiences of inputs

regarding language implementation from the student community. It describes

58 FA, Record Vol 1, p.66, para 61.4. 59 FA, Record Vol 1, p.66, para 61.5; annexure "DR18" to the FA, Record Vol 6, p.654. 60 Annexure "GMS21" to the AA: Record of appeal Vol 21, p.2603. 61 Record of appeal Vol 21, p.2610; AA: Record of appeal Vol 14, p.1914, para 91.1. Page 20

the tone and points of departure for the road ahead.62

62. That statement63 amounted to a complete capitulation to Open Stellenbosch.

63. The SU admits that Open Stellenbosch definitely had an influence on the

review of the language policy, but claims that this was not inappropriate and

it did not result in the exclusion of other persons or groups who wanted to

influence the process.64

64. In the answering affidavit it is claimed that following the submissions made

by Open Stellenbosch and the SRC during May 2015, and the appointment

of the Task Team to investigate the matter and to make proposals,

management also engaged with various student groups regarding the 2014

language policy and plan and the implementation thereof, including Open

Stellenbosch.65

65. On 9 September 2015 the Task Team made its report and made its

recommendations.66 Thereafter, according to Mr Steyn, the SU did not give

Open Stellenbosch further opportunity, whether by itself or with other

selected organisations, to make inputs regarding the language question or

the language policy review process.67

66. This is demonstrably untrue because, according to written questions that

were put to management and responded to by Prof Schoonwinkel,68 which

62 AA: Record of appeal Vol 14, p.1915, para 99.4; annexure "GMS21" to the AA: Record of appeal Vol 21, p.2610. 63 Annexure "GS2" to annexure "DR57" to the FA: Record of appeal Vol 8, p.802. 64 Record of appeal Vol 16, p.2068, para 346. 65 Record of appeal Vol 16, p.2069, para 347.3. 66 Record of appeal Vol 16, p.2070, para 347.4. 67 Record of appeal Vol 16, p.2070, para 347.5. 68 Annexure "F" to Mr Johan Theron's statement of defence, Vol 38, p.4465. Page 21

should have been included in the rule 53 record, members of management

consulted with Open Stellenbosch on 29 September 2015, 2 November 2015

and 6 November 2015. Significantly he also disclosed that the first draft of

the 12 November 2015 statement was prepared on 3 November 2015.69

67. Prof Schoonwinkel also disclosed, in response to a question as to the date

on which the statement was discussed with Open Stellenbosch, as follows:

"A few occasions between 4 and 12 November 2015, with two OS

representatives." 70

These facts were clearly not conveyed to Judge Howie, as will become

apparent when we refer to his report hereinbelow.

68. Prof Schoonwinkel responded as follows to questions why management did

not wait until the 30 November 2015 Council meeting to discuss the contents

of the statement with Council:

"No policy changes were announced, only proposals regarding

implementation on operational level."

And

"No policy changes were announced, nonetheless, the Rector contacted the

Council Chair before making the announcement public." 71

69. The SU claims72 that there is no proof that to the extent that Open

Stellenbosch influenced the SU, it happened otherwise than through the

69 Record of appeal Vol 38, p.4466. 70 Record of appeal Vol 38, p.4466. 71 Record of appeal Vol 38, p.4464. 72 AA: Record of appeal Vol 16, p.2088. Page 22

power of its argument.

70. The SU has not conveyed those arguments to the Court to allow them to be

assessed. What we do know, however, is that –

70.1 notwithstanding the fact that the Task Team had adopted the SRC's

recommendations and not that of Open Stellenbosch, management

eventually conceded to Open Stellenbosch's demands;

70.2 Judge Howie found that management had adopted the statement of

12 November 2015 as a result of the October 2015 student unrest;

70.3 before the adoption of that statement, management had been in

constant touch with Open Stellenbosch or representatives of Open

Stellenbosch, a fact not disclosed in the answering affidavit;

70.4 when it was proposed in Council that it should adopt as its in-

principle position equality for Afrikaans and English as languages of

instruction, the Chairman said that if that were to happen the US

would burn.

71. Mr Steyn himself provides the proof that Open Stellenbosch members were

involved in the unrest by disclosing that the SU had successfully applied for

an interim interdict to restore the Wilcox building which the Respondents

(including two Open Stellenbosch members) had occupied to the SU and to

vacate the building. The SU also got interdictory relief against the

Respondents in the following terms:

"5.1 Interdicting and restraining the Respondents from re-occupying the Page 23

said building, or from entering or occupying any other building of the

Applicant without lawful right to do so;

5.2 Disrupting or otherwise interfering unlawfully in any way with the

normal activities of the Applicant, including but not limited to:

5.2.1 The administration of the Applicant;

5.2.2 All lectures, tutorials, practical periods, official meetings and

official events, including sporting and cultural events, on all

campuses;

5.2.3 The work of all libraries;

5.2.4 Graduation ceremonies; and

5.2.5 Examinations and tests;

5.3 Barricading or obstructing any entrances to campuses or buildings of

the Applicant;

5.4 Barricading or obstructing any streets leading to campuses or

buildings of the Applicant;

5.5 Damaging any buildings or other property of the Applicant;

5.6 Damaging any other property, including motor vehicles, present on

any of the Applicant's campuses, including its Stellenbosch and

Tygerberg campuses;

5.7 Assaulting, intimidating, threatening, harassing, harming or detaining

or attempting to detain: Page 24

5.7.1 Any employee of the Applicant;

5.7.2 Any students of the Applicant; and

5.7.3 Any persons present on any of the Applicant's campuses,

including its Stellenbosch and Tygerberg campuses;

5.8 Inciting persons to re-occupy the said building, or to enter or occupy

any other building of the Applicant without lawful right to do so, or to

commit any of the acts described in paragraphs 5.2 to 5.7 above;" 73

72. When the Rector made a management report to the Council on 30

November 2015,74 he commenced by saying that higher education in South

Africa will never be the same after the week of 19-23 October 2015.

73. It had to be accepted that the SU and other institutions of higher education

now have to deal with a new norm which will include, for example, protest

action.

74. The SU recognises the right of students to participate in protest as long as it

does not disrupt academic and administrative activities and does not cause

damage to university property or interfere with the rights of students to

study.75

75. On 22 October 2015 management agreed to abandon the interdict. In the run

up to the 12 November statement, management met with Deans, the SRC

73 AA: Record of appeal Vol 16, p.2094, para 385.2; annexure "GMS61" to the AA: Record of appeal Vol 30, p.3423. 74 Annexure "GMS21" to the AA: Record of appeal Vol 21, p.2603. 75 Annexure "GMS21" to the AA: Record of appeal Vol 21, p.2605. Page 25

and Open Stellenbosch.76

76. On 23 October 2015 the Rector apologised to students for the pain and

trauma which were caused when students who occupied a university building

were removed.77 He was referring to protesting students who had occupied

the Admin B building and the students who were removed with force were

the ones who declined to heed the court order which was read to them by the

Sheriff of the Court.

77. Internal disciplinary steps were also taken against 11 of the Respondents as

a consequence of which some of them were suspended.78

78. These examples, so Mr Steyn claims, show that the SU were not unnerved

by violence and disruption or threats of violence and disruption.79

79. The claim in paragraph 450.3,80 that it was clear that the protest against the

increase in English, came from people and groups who wanted to keep the

SU an Afrikaans university, is incorrect as evidenced by the Gelyke Kanse

memorandum to the Working Group.81 The claim that public criticism chiefly

came from the ranks of persons who were members or supporters of Gelyke

Kanse and AfriForum or AfriForum Youth,82 is also not correct.

80. Mr Steyn repeatedly says that there are huge differences between the new

language policy and the proposal which management made in November

76 Annexure "GMS21" to the AA: Record of appeal Vol21, p.2610. 77 Annexure "GMS21" to the AA: Record of appeal Vol 21, p.2606. 78 AA: Record of appeal Vol 16, p.2094, para 385.3. 79 AA: Record of appeal Vol 16, p.2094, para 386. 80 AA: Record of appeal Vol 16, p.2114. 81 Annexure "DR4" to the FA: Record of appeal Vol 1, p.437. 82 AA: Record of appeal Vol 17, p.2157, para 596. Page 26

2015.83 As far as critical substance is concerned, that is also not correct.

81. In paragraph 577,84 he says that it is not true that Open Stellenbosch had an

opportunity to make inputs before the draft policy was tabled and that the

only opportunity which Open Stellenbosch had before the commencement of

the process of review was during the investigation of the Task Team

between May and September 2015. We have already shown why this is

incorrect.

82. In paragraph 647.1,85 Mr Steyn says that Judge Howie did take the events of

10 November 2015 up with Vice-Rector Schoonwinkel.

83. The Howie report in fact confirmed that management had succumbed to

pressure. Paragraphs 35 and 36 thereof read as follows:

'[35] I have dealt with the factual disputes for the reasons stated but I

must stress that those disputes are peripheral to the main question

which I have been asked. That question is: How did the deviations

from the Yearbook come about?

[36] The answer is not hard to find. As 2015 unfolded, complaints were

increasingly voiced by students not proficient in Afrikaans that tuition

in Afrikaans excluded them from access to learning and from

prospects of academic success. This created a language issue

which festered in the uneasy atmosphere of the national and

regional campus unrest. The issue was one that troubled the staff

83 AA: Record of appeal Vol 17, p.2145, para 571. 84 AA: Record of appeal Vol 17, p.2146. 85 AA: Record of appeal Vol 17, p.2175. Page 27

and management extensively. A solution was required and the

unstable climate prompted management to reach a decision sooner

rather than later. The proposed solution was contained in the RMT

decision of 12 November. " 86

84. In fact, Judge Howie himself mentions that as regards the language policy

the Task Team recommended various measures and good practice

guidelines to improve the implementation of parallel medium teaching and a

dual medium T-option.87

85. In an attempt to meet what it saw as the twin difficulties of the exclusionary

effect of language and the unstable campus climate, management decided

upon changes to language implementation which would publicly be declared

to the university community by way of a media statement, i.e. that of 12

November 2015.88

86. At a meeting of the Council's Executive Committee of 10 November 2015,

the question was asked whether management had anything to say about the

language issue. The Vice-Chairman of the Council recalled that the Vice-

Rector had said that there was nothing at that stage and that they would only

be ready to discuss the Policy and the Plan in March 2016.89

87. In this regard Judge Howie concluded that he doubted that there was a

responsibility to disclose what was not finally thought through and still subject

to change on the back of the Vice-Rector's say-so "that apart from the fact

86 Annexure "DR68" to the FA: Record of appeal Vol 9, p.985. 87 Annexure "DR68" to the FA: Record of appeal Vol 9, p.970, para 6. 88 Annexure "DR68" to the FA: Record of appeal Vol 9, p.971, para 9. 89 Annexure "DR68" to the FA: Record of appeal Vol 9, p.972, para 10. Page 28

that language was not an agenda item, the essence of the contemplated

changes were not considered materially in conflict with the Policy and the

media statement was at that point in any event still in embryo".90

88. However, as Judge Howie pointed out, a draft of the proposed media

statement was available for discussion the next morning and ready for the

Rector to inform Mr Steyn about it later in the day. Yet, although he

concedes that it is arguable that the essence of the decision must have been

capable of disclosure the previous day, Judge Howie concludes that one

cannot draw that inference if the decision was not yet ready for final

formulation. Then he says the following:

"I doubt that there was a responsibility to disclose what was not finally

thought through and was still subject to change. In any case, before the

decision, when finalised and declared, had inevitably to go to the Council I do

not think that it can be found that its non-mention to the Exco constituted

culpable non-disclosure." 91

89. As indicated hereinabove, he does not seem to have been privy to the

information regarding the involvement of Open Stellenbosch disclosed to

Council by Prof Schoonwinkel and referred to hereinabove.

90. In the event the Council's Exco had to call an emergency meeting for

Sunday, 15 November 2015, and the Council had to reiterate the

commitment to Afrikaans as a language of instruction on 30 November 2015.

91. Judge Howie's conclusion overlooks, of course, what he himself draws

90 Annexure "DR68" to the FA: Record of appeal Vol 9, p.982, para 31. 91 FA: Record of appeal Vol 2, p.160, para 281. Page 29

attention to, i.e. that in response to a question to the Vice-Rector as to

whether or not management had anything to say regarding the language

issue, the Vice-Rector responded by saying that they would only be ready to

discuss the policy in March 2016.92 There is no attempt to explain why the

Vice-Rector did not disclose to the Council Exco that management was, at

that time, in the process of drafting the statement in conjunction with Open

Stellenbosch.

92. That management's fear later influenced the other Council members and, in

particular, also Mr Steyn, is evident from the latter's statement at the 21 May

2016 special meeting at which the Council's in-principle points of departure

were formulated, that if the Council were to commit to equality for English

and Afrikaans as languages of instruction, the campus would burn. This was

prefaced by a statement that it was probably not for him to threaten from the

Chair, but that that was his comment.93

93. In his affidavit in the second application Mr Steyn mentioned that he

understood from management that the process of drafting a new language

policy was commenced with early in February 2016, but not even at a special

council meeting which he convened for 20 February 2016 on 9 February

2016 was the Council requested to approve the management review process

which commenced on the very same day on which he convened the 20

February meeting, i.e. 9 February 2016.94

94. It is clear that the second court application resulted in management's

92 FA: Record of appeal Vol 2, p.160, para 283. 93 FA: Record of appeal Vol 2, p.179, para 325. 94 FA, Record Vol 1, p.110, para 159 and 160. Page 30

decision to review the language policy and that it was aimed at legitimising

the de facto position as well as management's 12 November 2015 attempt to

usurp the functions and powers of the Senate and the Council. On the very

day that SU gave undertakings which caused the first application to be

withdrawn, i.e. 12 February 2016, management published an official

communication in which it made public that the language review process had

commenced.95

95. Management also agreed that a formal policy review process had to begin on

9 February 2016, four days after the first urgent application was lodged.96

96. The Vice-Rector, Prof Schoonwinkel, tabled a draft proposal for the language

policy and plan, the names for the Working Group and the time line at a

management meeting on 16 February 2016.97

97. Although the Working Group claimed to have had regard to the comments of

external interested parties as conveyed to it during the public consultation

process,98 it is noteworthy that, despite being asked on a number of

occasions, it (Prof Schoonwinkel and the Chair, Dr van der Merwe) was

never able to indicate whether and to what extent the public comment, more

than 80% of which called for exactly what the SRC and Gelyke Kanse had

proposed, influenced any drafts of the policy.

98. Unlike the Free State University, the Working Group process did not

commence with the approval of the Council. Also, the record of proceedings

95 FA: Record of appeal Vol 1, p.113, para 166. 96 AA: Record of appeal Vol 14, p.1922, para 103; AA: Record of appeal Vol 15, p.1930. 97 Annexure "GMS26" to the AA: Record of appeal Vol 22, p.2626; AA: Record of appeal Vol 15, p.1925, para 112. 98 AA: Record of appeal Vol 15, p.1928, para 117. Page 31

shows that the Working Group met on 3 March 2016 already with a pre-

existing mandate to bring the then existing language policy, as we have said,

in line with what was described as "the language approach", which could

only have been the language approach of management as reflected in the 12

November 2015 statement.99

99. The Working Group was its master's voice. Even in its Proposed Language

Approach of the SU of 24 February 2016, it committed itself to an approach

which unsurprisingly found expression in the new language policy, which

postulated inter alia that for smaller class groups which cannot be divided, a

dual language approach was proposed in which the major portion of the

lecture would be presented in English with emphasis or summaries in

Afrikaans if the lecturer is able to lecture in both languages.100

100. If this point of departure is compared to management's statement of 12

November 2015, it is clear that the Working Group slavishly followed that

statement and did not heed any of the many comments which called for

equal status for Afrikaans and English as primary languages of instruction.101

101. We pause to point out that it will be recalled that in the AfriForum v Free

State University case the Supreme Court of Appeal was impressed by the

fact that –

101.1 the Free State University Language Committee was balanced and

representative;102

99 Record of appeal Vol 1, p.114, para 169. 100 Record of appeal p.114, paras 172 and 173. 101 FA: Record of appeal p.116, para 175. 102 P.287, para 7. Page 32

101.2 there had been an open process of consultation and no

preconceived agenda regarding the desired outcome;103 and

101.3 the final report contained a qualitative analysis of the arguments for

and against the draft language policy.104

102. The SU Working Group ticked none of these boxes. Apart from the student

representatives it comprised in its entirety of SU employees. As we have

indicated, there was a preconceived agenda regarding the desired outcome.

The reports to Council were anything but qualitative analyses of arguments

for and against the draft policy. By way of example we refer in this regard to

the three page progress report of 18 April 2016 presented by the Vice-Rector

to Council105 and the Working Group's final report to Council.106

103. Significantly neither Prof Schoonwinkel nor the Chair of the Working Group

were able to indicate how the significant volume of commentary (514

comments comprising more than a 1000 pages) was accommodated, if at all,

in the second draft107 and nowhere in the answering papers is there an

attempt at showing what the main features of the comment were, nor how, if

at all, it influenced the draft policy.

104. This is unsurprising since the bulk of the commentary was in favour of

equality between Afrikaans and English as primary languages of instruction

and this did not feature in any of the draft policies.108

103 P.287, para 8. 104 P.287, para 9. 105 Annexure "DR67" to the FA: Record of appeal Vol 9, p.964. 106 Annexure "DR74" to the FA: Record of appeal Vol 10, p.1014. 107 FA: Record of appeal Vol 2, p.139, para 230. 108 FA: Record of appeal Vol 2, p.140, para 231. Page 33

105. If regard is had to the Open Stellenbosch memorandum and the most

important features of the 12 November 2015 statement, it is clear that Open

Stellenbosch had won the day. Even at that stage, and before the Working

Group considered the public comments, it committed itself to English being

the main language of instruction with summaries in Afrikaans and that only if

the lecturers are able to lecture in Afrikaans.109

106. Notwithstanding the SU's striking out applications, what the public thinks

about events at the US is clearly a matter of concern to it. This is, for

example, evidenced by the following remark of the Chairperson at the

specially convened council meeting of 20 February 2016:

"These decisions (of the Engineering and Law Faculties regarding language

of instruction) caused a considerable debate amongst the public, including

former Maties and reached multiple headlines in the media. SU's

management, among others portrayed as being ignorant to Council's

decisions. According to my knowledge deviation from the language policy

also occurs in other faculties and deans are unsure how they should

implement or execute this policy accepted via the motion taken by Council on

30 November last year." 110

107. An example of the superficiality of the reports that were made to the Council

is that by Prof Schoonwinkel of 5 May 2016 in which he merely says:

"Once all the feedback was received on 22 April 2016, all the feedback and

comments were again made available to the work group members. On 3 May

109 FA, Record of appeal, p.115, para 173. 110 Annexure "GMS28" to the AA: Record of appeal Vol 22, p.2634. Page 34

2016 the work group discussed which of the feedback could be incorporated

in the second draft of the concept policy." 111

108. On 27 November 2015 Adv Andrew Breitenbach SC and Adv Michael Bishop

rendered a legal opinion and a supplementary legal opinion.112

109. In the main opinion counsel mentioned that they "have specifically been

asked to ignore a recent proposal by SU management to move to a 100%

English offering".113

110. According to the supplementary opinion, they were instructed that

management had proposed introducing a new language specification known

as the M-specification which will operate as follows:

110.1 The body of every lecture will be in English.

110.2 The introduction and the conclusion will be in Afrikaans.

110.3 Students will be able to ask questions in either language and be

answered in that language.

110.4 There will be real time interpreting throughout the lecture.114

111. In paragraph 5115 it is said that management's proposal was to introduce the

M-specification on a trial basis during the first semester of 2016.

112. This is another indication that management had made up its mind to

111 Annexure "GMS39" to the AA: Record of appeal Vol 25, p.2986. 112 AA: Record of appeal Vol 14, p.1913; annexure "GS4" to annexure "DR57" to the FA: Record of appeal Vol 8, p.807; annexure "GS5" to the FA: Record of appeal Vol 9, p.891. 113 Annexure "GS4" to annexure "DR37" to the FA: Record of appeal Vol 8, p.809, para 3.2. 114 Annexure "GS5" to annexure "DR37" to the FA: Record of appeal Vol 9, p.892, para 4. 115 Record of appeal Vol 9, p.893. Page 35

implement its 12 November 2015 "language policy" in 2016.

113. At the commencement of the Council meeting of 21 May 2016 at which it

was supposed to formulate its in-principle points of departure for purposes of

the formulation of the new language policy, Adv Breitenbach was asked to

set out the constitutional principles which would apply to the process of

formulating the new policy.116

114. The answering affidavit does not mention it, but the Council unanimously

adopted two motions: one to thank Adv Breitenbach and a second one

according to which the Council had noted Adv Breitenbach's presentation

and accepted it as a guiding document.117

115. It was noted that the implication was that the document would be presented

to the Working Group.

116. According to Adv Breitenbach's memorandum, he and Adv Michael Bishop

had provided two written opinions and a memorandum to the SU relating to

its then current language policy and plan. Having considered three

constitutional challenges thereto, they concluded that, provided the Task

Team's (not the Working Group's) amendments were implemented, the

policy and plan would probably withstand constitutional challenge.118

117. Significantly Adv Breitenbach advised that the SU could not take away or

diminish the right of Afrikaans-speakers to receive education in Afrikaans in

order to increase the English offering, unless there was appropriate

116 AA: Record of appeal Vol 15, p.1965, para 176.1; annexure "GMS44" to the AA: Record of appeal Vol 26, p.3024. 117 Record of appeal Vol 15, p.1967. 118 Annexure "GMS44" to the AA: Record of appeal Vol 26, p.3029. Page 36

justification for doing so.119

118. In his view the finances had to be found to move to full parallel medium

teaching and/or real-time interpreting into English of all modules taught

wholly or partially in Afrikaans for as long as the SU was committed to

fostering multilingualism including learning and teaching in Afrikaans and

English.120

119. According to him, a significant decrease in the SU's Afrikaans lecture offer at

that juncture would be hard to justify.121 In this regard he pointed out that

there are few other options for Afrikaans learning in South Africa and none in

the Western Cape. The people of the Western Cape have a legitimate

expectation that the SU will cater primarily (though not exclusively) to

students from the Province. There is also legitimate concern that diminishing

the Afrikaans lecture offering so as to increase the English lecture offering

would adversely and irreversibly affect the role of Afrikaans at the SU and, as

a result, in higher education in South Africa generally.122

120. The SU should adopt a quantitative rather than a qualitative approach to the

assessment of its English and Afrikaans offerings and its measure of the

quantities of offering should be as simple and as clear as possible. Although

he accepted that the real issue was the extent to which students can access

the totality of the information which comprises the SU's learning and teaching

offering, given the importance of lecturing at the SU lecturing times in

Afrikaans and English would, for now, be a sufficiently reliable indicator of

119 Annexure "GMS44" to the AA: Record of appeal Vol 26, p.3040, para 8.11. 120 AA: Record of appeal Vol 26, p.3041, para 18.13. 121 Record of appeal Vol 26, p.3042, para 18.15. 122 Record of appeal Vol 26, p.3042, para 18.15. Page 37

the offerings in Afrikaans and English relative to one another.123

121. The line that he took was unsurprising in the light of the figures which he

himself mentioned as also the following considerations.

121.1 There are 1460 public schools in the Western Cape of which at least

560 offer Afrikaans either in a single medium or dual and parallel

medium contexts. In the Northern and Eastern Cape the number of

schools which have Afrikaans as a medium of instruction are 245

and 336 respectively. These provinces are, as is the case with the

Western Cape, feeder areas or potential feeder areas of the SU.124

121.2 In its comments on the draft policy, the Federation of Governing

Bodies of South African Schools (FEDSAS) whose members are

unanimously in support of the retention of Afrikaans as a full and

equal language of instruction at the SU, offers two statements which

go to the heart of this matter:

121.2.1 For many what happens at the tertiary level of education is

not particularly problematic because their background and

that of their children makes it easy for them to adapt. It is a

significant group whose children can adapt equally easily,

but for whom Afrikaans is more than just a medium of

education, it is a matter of the heart of faith and of principle.

They feel differently about the role which their mother-

tongue has to play in their children's education. Then there

123 Record of appeal Vol 26, p.3044, para 20. 124 FA: Record of appeal Vol 2, p.167, para 305. Page 38

is the vast majority for whom the recent changes at tertiary

level means the death knell for further study after school.

121.2.2 The full spectrum of African languages at our disposal

should be embraced by promoting the study of an

indigenous African language, besides Afrikaans and

English, at school. It is an astonishing fact that learners in

our schools can learn French, German, Italian and even

Mandarin, whereas our children cannot even conduct a

basic conversation with co-citizens of our country. This is

not politically correct and definitely not to the benefit of the

country.

121.3 According to the 2011 National Census, Afrikaans was the home

language of 6 855 000 people in South Africa (13,5% of the total

population) which made it the third most used language in South

Africa after Zulu (11,5 million home language speakers) and Xhosa

(8,1 million home language speakers). Compared to this 4,8 million

people were English home language speakers.125

121.4 In that year 50,2% of the Afrikaans-speaking South Africans were

brown, 39,5% white and 8,8% black.126

121.5 In 2013 the South African Institute for Race Relations said that of the

6,9 million South Africans whose home language was Afrikaans, 2,7

million were white and the rest brown, black and Indian people.

125 FA: Record of appeal Vol 3, p.305, para 524. 126 FA: Record of appeal Vol 3, p.305, para 525. Page 39

121.6 In reality, Afrikaans is the first language of 75,8% brown people and

60,8% white people.127

121.7 Afrikaans is the majority language in the Western half of South

Africa, i.e. it is the first language of 53,8% of the population of the

Northern Cape with Setswana second with 33,1% as also the first

language of 49,7% of the Western Cape population with Xhosa

second with 24,7%.128

121.8 In the Western Cape, the seat of the SU, with a population of 6,2

million people, Afrikaans is the home language of 49,7% of the

inhabitants and English that of only 20,2%.

121.9 Although brown people represent 49,4% of the Western Cape

population, their participation level at tertiary education is only 15%

compared to 17% of black people and 55% of white people.

121.10 According to Statistics South Africa's 2015 half-yearly population

estimate, the number of Afrikaans first language speakers had grown

to 7 419 182 of whom 2 756 672 are white and 3 663 338 are

brown.129

121.11 Of the grand total, more than 3 million live in the Western Cape.130

121.12 Of the 23 905 public schools countrywide, 2 434 use Afrikaans as a

medium of instruction. Of those 276 are in the Northern Cape, 343 in

127 FA: Record of appeal Vol 3, p.305, para 525. 128 FA: Record of appeal Vol 3, p.306, para 526. 129 FA: Record of appeal Vol 3, p.307, para 530. 130 FA: Record of appeal Vol 3, p.307, para 531. Page 40

the Eastern Cape and 1 309 in the Western Cape.131

121.13 The 2 434 schools educate almost 900 000 Afrikaans-speaking

learners.

121.14 In 2015, 53 799 learners who had Afrikaans first language as a

subject completed the National Senior Certificate examination. Of

them, 52 366 obtained more than 40%. Of the Afrikaans-speaking

students who wrote the National Senior Certificate examination in

2015, 28 445 passed with university exemption.132

121.15 There are 26 universities in South Africa.133

121.16 Between 2000 and 2014 student numbers increased by 69,8%.134

121.17 In the case of the two universities with the most Afrikaans-speaking

students, i.e. the University of Pretoria and the SU, the number of

Afrikaans-speaking students remained stable, but percentage wise it

decreased significantly as a result of the significant growth in the

number of, in the case of the University of Pretoria, black students

which preferred English as their language of instruction and, in the

case of the SU, white English-speaking students.135

122. In a nutshell, as far as the new SU language policy is concerned, it provides,

on the one hand, that English has to be used consistently whereas, on the

other, there is unlimited opportunity for arbitrary reduction of the Afrikaans

131 FA: Record of appeal Vol 3, p.309, para 534. 132 FA: Record of appeal Vol 3, p.309, para 536; p.310, para 537. 133 FA: Record of appeal Vol 3, p.316, para 550. 134 FA: Record of appeal Vol 3, p.316, para 552. 135 FA: Record of appeal Vol 3, p.317, para 557. Page 41

offer which is, in any event, by definition less than the English offer.

123. Not only can, in practice, the non-exclusive list of criteria with reference to

which the Afrikaans offer can be departed from, be added to arbitrarily, but

the yardstick for deviations has also not be quantified. This leaves scope for

virtually unlimited discretionary deviations of the Afrikaans offer which, in any

event, is less than the continuous or uninterrupted English offer. No such

possibility exists in respect of the English offer.136

124. Students who prefer to be educated in Afrikaans will therefore not only not

have any guarantees regarding the extent of the Afrikaans offer, but they will

not even be able to determine with a reasonable measure of certainty what

the extent of the Afrikaans offer is likely to be in any given academic year nor

whether there will be such an Afrikaans offer at all.137

125. To make matters worse, the last principle in paragraph 6.9 of the new

language policy determines that the implementation thereof must adapt to

the changing language demography and language preferences of students

and lecturers. Management can therefore literally determine and amend the

content of the new language policy through the admissions and employment

policies, thereby effectively acquiring decision-making authority in respect of

a matter which falls within the area of jurisdiction of the Council.138

126. We would emphasise that in the founding affidavit the position was taken that

it was clearly the intention to clothe the de facto situation, characterised by

English dominance and admitted by Mr Steyn in his affidavit in the second

136 FA: Record of appeal Vol 3, p.339, para 624.7. 137 FA: Record of appeal Vol 3, p.340, para 624.8. 138 FA: Record of appeal Vol 3, p.340, para 624.10. Page 42

application, with de jure status, i.e. to elevate it to the primary language of

instruction at the SU and to make the Afrikaans offer dependent upon the

mercy of management and lecturers without a fixed or determinable content

and with enough scope for deviation to authorise the total abandonment of

Afrikaans as a language of instruction.139

127. By the time that the replying affidavits in this matter had to be filed in the

Court a quo, the 2016 academic year was well advanced and it was

therefore possible, although the Court a quo declined to have regard thereto,

to put evidence before it as to the diminution of the Afrikaans offer in

practice, a development consistent with what was forecast in the founding

affidavit.

128. In paragraph 757,140 Mr Steyn says that it is premature for Mr Rossouw to

allege that the language policy's provision for the promotion of Afrikaans is

cosmetic before the implementation of the policy.

129. Mr Steyn claims, despite having repeatedly said that the 2016 language

policy will not cause a significant reduction of the Afrikaans offer, that the

policy does not reduce the Afrikaans offer and that the SU will continue to

use Afrikaans as an academic language and a language of science and that

it is not the intention to phase it out as a language of instruction.141

130. However, incorporated in this application is, for example, a supporting

affidavit in the first application deposed to by Mortimer Bester, a brown

139 FA: Record of appeal Vol 3, p.358, para 627. 140 AA: Record of appeal Vol 17, p.2222. 141 AA: Record of appeal Vol 18, p.2260, paras 852.4 and 852.5. See also para 852.7. Page 43

student who matriculated in Knysna whose mother-tongue is Afrikaans.142 He

came to the SU because he would be able to study in Afrikaans. Since the

inception of the 2016 academic year all their lectures were only in English

and he became lost because he couldn't follow the lecturer. It took him hours

every day to translate the lectures subsequently into Afrikaans and he was

finding it difficult to keep up. He considered it to be a great injustice that the

SU had converted to exclusively English lectures. Similar affidavits were filed

by Francois Henning,143 Paul Smit,144 and Jacobus Petrus Roux.145

131. The Court is also referred to the supporting affidavit of Ashwin Maloy,146 a

brown student who was struggling to keep up as a consequence of the fact

that the lectures were all in English, who predicted147 that this state of affairs

was going to be continued in terms of the new language policy.

132. A free translation of paragraph 9 of his affidavit148 reads as follows:

"This state of affairs is aggravated by the fact that the SU's decision

regarding a new language policy was taken notwithstanding the rights and

expectations of Afrikaans-speaking students from my community who have

been greatly disadvantaged historically."

133. We also refer to the supporting affidavit of Roderick Emile Leonard,149

another brown student who decided to study at the SU because he could do

so in Afrikaans and who was disqualified as a candidate for the 2016/2017

142 Annexure "DR45" to the FA: Record of appeal Vol 7, p.731. 143 Annexure "DR47" to the FA: Record of appeal Vol 7, p.738. 144 Annexure "DR48" to the FA: Record of appeal Vol 7, p.741. 145 Annexure "DR49" to the FA: Record of appeal Vol 7, p.746. 146 Record of appeal Vol 11, p.1372. 147 In paragraph 8, p.1374. 148 Id. 149 Record of appeal Vol 11, p.1377. Page 44

SRC elections because of the fact that he was struggling to keep up

academically as a consequence of the fact that his lectures were in English

and membership of the SRC would cause additional pressure on his

academic responsibilities.

134. He pertinently states150 that the new language policy is inconsistent with his

constitutional and other rights to which reference is made in the founding

affidavit, in particular the rights which derives from sections 6(2), 6(4), 9, 10,

29(2), 30 and 31 of the Constitution as also those which derive from the

LPHE, read with section 27(2) of the Higher Education Act. According to him,

his people were effectively denied the opportunity to study in Afrikaans at the

SU and continue to have the wrong end of the stick.151

135. The Court is also referred to the affidavits by Petrus Johannes Hendrik

Burger,152 Bernardus Lambertus Pieters,153 Francois Henning,154 Julian

Mackay,155 Frederik Rudolph van Dyk,156 Tobias Vivian Alberts,157 Jenise

Janse van Rensburg158 and Hendrik Jacobus Deacon159 which provide

ample proof of the fact that the predictions in the founding affidavit, based on

the content of the new language policy, regarding the diminished use of

Afrikaans at the SU, materialised in practice.

136. Marie Heese says the following in paragraph 58:

150 Record of appeal Vol 11, p.1380, para 12. 151 Record of appeal Vol 11, p.1381, para 14. 152 Record of appeal Vol 35, p.4085. 153 Record of appeal Vol 35, p.4099. 154 Record of appeal Vol 35, p.4104. 155 Record of appeal Vol 35, p.4110. 156 Record of appeal Vol 35, p.4115. 157 Record of appeal Vol 36, p.4138. 158 Record of appeal Vol 36, p.4158. 159 Record of appeal Vol 36, p.4161. Page 45

"There are 26 universities at which English is the only or the main medium of

instruction in this country. Yet, should a small group of students arrive in a

class at UCT claiming not to be able to breathe because they only hear

English, what would be the outcome? Is it not acknowledged that English

may equally exclude students from tertiary study, contrary to the letter and

spirit of the Constitution which refers to the right to education in the official

language of one's choice, including at tertiary level. It deserves mention that

nobody is demanding that a new university should be built for the benefit of

Afrikaans students. The US is a university that has always been capable of

teaching in Afrikaans. Why would it suddenly not be practicable to maintain

an Afrikaans stream?" 160

137. In his answering affidavit Mr Steyn refers to the SU's Strategic Framework for

the Turn of the Century and Beyond of 20 March 2000161 which, according to

him, still is one of the most important direction-giving institutional documents

of the SU.162

138. The introduction to paragraph 11.1 and paragraph 11.1.3 itself, to which Mr

Steyn refers in paragraph 25.2 of his answering affidavit,163 read as follows:

"University positions itself as a language-friendly university, with a

responsive and flexible approach to language of instruction, and with

Afrikaans as its point of departure. In this regard, the following perspectives

are worthy of note:

160 Record of appeal Vol 13, p.1689. 161 Annexure "GMS2" to the AA: Record of appeal Vol 19, p.2295. 162 AA: Record of appeal Vol 4, p.1869, para 25. 163 Record of appeal Vol 4, p.1870. Page 46

11.1.1 …

11.1.2 …

11.1.3 Although the University understands and conducts itself as

unquestionably a national institution, it remains aware at the time of

its obligation to the social needs and realities (and, particularly in this

case, the language needs and language realities) of the area where

its students come from and which it serves." 164

139. Significantly paragraph 11.1.4165 provides that this position, the SU's

awareness of its obligation to the social needs and realities of the area where

its students come from and which it serves, entails that Afrikaans is the

primary language of instruction at the university. It reads as follows:

"This positioning, which entails that Afrikaans is the primary language of

instruction at the University, also implies the following:

11.1.4.1 any person who has the requisite intellectual capacity and intends

to study or work at the University must, within reasonable limits, be

enabled to do so;

11.1.4.2 a pragmatic, flexible approach to language of instruction must be

followed at the University, taking into account (i) students'

preferences, (ii) the numbers of students involved, (iii) the cost of

alternatives, (iv) the logistic implications of alternatives, (v) market

needs, (vi) the question of scarcity or uniqueness, in a regional or

164 Annexure "GS3" to the AA: Record of appeal Vol 19, p.2313. 165 Record of appeal Vol 19, p.2313. Steyn's affidavit AA: Record of appeal Vol 14, p.1871. Page 47

national context, of the instructional programmes concerned, and

(vii) the University's vision, commitments and values;

11.1.4.3 the range of supplemental programmes at the University in

Afrikaans and other (especially English and Xhosa) language

proficiency must be expanded more swiftly; and

11.1.4.4 support services in other languages, especially Xhosa, should be

developed."

140. On the back of statements by Prof Anton van Niekerk, himself an anti-

Afrikaans activist, Mr Steyn says that the US management and its supporters

continued to point out that the continued existence of Afrikaans was not at

stake and that there was still a significant Afrikaans offer. Furthermore that it

cannot be expected of the university to save the language. If a language is

threatened, the people who speak it must assume responsibility to do

something about it - in other words to speak and write it.166

141. This statement misses the point that it has to do with the status of Afrikaans

as a scientific and academic language which can only be secured if it is a

language of instruction at a tertiary institution of education.

142. At the Council meeting of 21 May 2016, which was convened to give it an

opportunity to formulate its in-principle positions for the new language

policies, Mr Steyn said that he was concerned about the physical security of

the campus because when Open Stellenbosch came to them the previous

year it wasn't about the status of too much or too little Afrikaans, it was about

166 AA: Record of appeal Vol 14, p.1889, para 54. Page 48

please help us to have our classes in English.167 This was, however, entirely

at odds with what Open Stellenbosch itself had said in the context of the first

court application as also its memorandum referred to hereinabove.

143. At that same meeting and responding to a proposal that Afrikaans and

English should have equal status as primary languages of instruction, Mr

Steyn said that if that were to happen the campus would burn.

144. On 31 May 2016 the Council Exco resolved that the final draft policy did not

fully reflect the policy principles (for example quantification and monitoring)

set by the Council at its meeting of 21 May 2016.

145. The unique multilingual offer at the SU which is regarded as an asset which

should not be diluted was not reflected in the policy since nowhere is there

pertinent provision for the expansion or even the maintenance of the

Afrikaans offer.168

146. It is significant that, notwithstanding the fact that the Council Exco advised it

that the final draft language policy did not comply with Council's in-principle

points of departure as formulated as its special meeting of 21 May 2016, the

draft was adopted as the language policy of the University without the

Chairman being prepared to entertain amendments to it.

147. Ironically the Senate as also the Institutional Forum proposed amendments,

which were accepted, to the final draft, but, as we have indicated, the

Council was not allowed to do so.169

167 FA: Record of appeal Vol 2, p.187, lines 15-18. 168 AA: Record of appeal Vol 15, p.1970, para 179. 169 AA: Record of appeal Vol 15, p.1973, para 184. Page 49

148. Although Mr Steyn denies that he declined to entertain amendments to the

draft language policy at the Council meeting of 22 June 2016, he says the

following in paragraph 737.2:170

"Prof van der Walt and I were ad idem (at a meeting with the Registrar before

the council meeting commenced) that the matter before Council (i.e. the draft

language policy) was a proposal by the Senate to the effect that the Council

should adopt the policy which the Senate had adopted on 9 June 2016). As

such it should be discussed in unamended form to determine whether or not

the Council accepted the Senate's proposal or not. Only if the Senate's

proposal were not accepted or adopted by Council would he allow

amendments which would have rendered the Senate's proposal acceptable

to Council."

149. This is a clear indication that Mr Steyn was not going to entertain

amendments to the draft policy.

150. He also says that it is correct that the policy does not require percentages for

modules in parallel medium, dual medium or single medium and that this was

a deliberate policy choice by the Senate which the Council accepted at its

meeting of 22 June 2016 although it was inconsistent with its earlier decision

of 21 May 2016. The explanation for this is simple: he did not want to

entertain amendments to the draft language policy.171

151. It will be recalled that Prof P W van der Walt, the Vice-Chair of the Council,

expressed concern at the Senate meeting, of which he is also a member,

170 AA: Record of appeal Vol 17, p.2213. 171 AA: Record of appeal Vol 16, p.2047, para 323.2. Page 50

that if the Council did not approve the policy by 22 June 2016, it would not be

capable of implementation at the commencement of the 2017 academic

year.

152. As it turns out, he told Mr Steyn at the meeting with the Registrar referred to

hereinabove that if during the Council meeting he should decide that the

debate had continued for long enough, he was going to exercise his right to

propose that the Council should vote on the Senate's proposal.172

153. In paragraph 742,173 Mr Steyn says that the SU is definitely not capable of

affording parallel medium classes immediately. However, he personally shot

down a proposal that the Council should make a commitment to full parallel

medium to be implemented over time.

154. The procedural shortcomings of the Council meeting of 22 June 2016 at

which the new language policy was adopted, are in and of themselves fatal

to the adoption thereof by the Council.174 This is perhaps best illustrated by

the fact that Mr Steyn went so far as to refer to the Council member who

resigned following the adoption of the new language policy, the Rector of

Paul Roos Gymnasium, and the six others who left the meeting after the

premature closing of the debate regarding the new language policy on 22

June 2016 as "the enemies".175

155. In the answering affidavit,176 Mr Steyn raises a novel consideration

concerning the SU's inability to deliver tertiary education in Afrikaans.

172 AA: Record of appeal Vol 17, p.2213, para 737.3. 173 AA: Record of appeal Vol 17, p.2216. 174 FA: Record of appeal Vol 2, p.209, para 391 to Vol 3, p.241, para 429. 175 FA: Record of appeal Vol 2, p.180, para 327. 176 Record of appeal Vol 15, p.1985, paras 210 et seq. Page 51

Paragraphs 210 to 216,177 freely translated, read as follows:

"210. The SU has consistently assumed that it is reasonably practicable to

deliver teaching at SU in Afrikaans. This is evident from all the

documents submitted by the SU management to the Council and the

Senate. The 2016 language policy still requires teaching in

Afrikaans. See the summary of the policy provisions regarding the

use of Afrikaans at SU in paragraphs 14 and 15 of Adv Breitenbach

SC's memorandum of 17 June 2016 (annexure "GMS49") and

paragraphs 288 and 289 hereunder.

211. However, the question that had to be answered was whether it was

possible to eliminate obstacles to English speakers (and especially

black South Africans who can speak English but cannot speak

Afrikaans sufficiently fluently) without reducing the existing Afrikaans

offer.

212. In order to answer that question, SU, amongst others, requested a

detailed study regarding the cost of a full parallel medium education

system. It appeared that it would amount to an estimated R640

million in infrastructure and an additional R78 million per year in

additional personnel costs. To afford these amounts with an increase

in student fees only would cost an additional R8 100,00 per student

per year – that is, a 20% increase in student fees, which currently

amount to approximately R40 000,00 per year. A copy of the report

177 Which have also been annexed to the Applicants' response to the Chief Justice's directions of 1 March 2018 as annexure "B", p.51. Page 52

is attached and marked "GMS57".178 Real time interpretation of all

classes is also expensive. Although the number of interpreting

services increased significantly in the 2016 language policy, it is not

possible to offer interpretation in 100% of the modules where it is

required.

213. The SU therefore realised that it would be difficult and currently not

possible to ensure that the teaching offer is 100% available in both

English and Afrikaans.

214. To ensure that language does not prevent access to black students,

it was decided to make a 100% teaching offer available in English.

See the summary of the policy provisions regarding the use of

English at SU in paragraphs 14 and 16 of Adv Breitenbach SC's

memorandum of 17 June 2016 (annexure "GMS49") and in

paragraphs 288 and 290 hereinbelow.

215. It was furthermore decided to manage the existing Afrikaans offer in

future to maintain access for students who choose to study in

Afrikaans, and to further develop Afrikaans as a language of

instruction where reasonably attainable. See paragraph 7.4.1.2 of

the 2016 Language Policy.

216. The policy provisions in the 2016 Language Policy therefore promote

the use of English to a greater (but yet limited) degree than the use

of Afrikaans. See the summary of the policy provisions that it brings

in paragraph 18 of Adv Breitenbach SC's memorandum of 17 June

178 Annexure "A" to the aforesaid written submissions, p.49. Page 53

2018 (annexure "GMS49") and in paragraph 292 below. See also

the justification of the policy's limited, greater promotion of English in

paragraphs 4, 5 and 19 to 24 of that memorandum and paragraphs

293 to 296 below."

156. The "study" is annexure "GMS57".179 It refers to itself as a memorandum.

There are numerous problems with this memorandum.

156.1 First, it never served before the Senate, the Institutional Forum or the

Council.

156.2 Next, it is styled "Memorandum in support of the Stellenbosch

University submission in terms of the Language Policy (2015)". (Our

emphasis.)

156.3 The cost of parallel medium was never a consideration referred to in

the Senate, the Institutional Forum or the Council.

156.4 In fact, it was said in the Council when the equal status proposal was

being debated that if costs were a factor Council should be told

because then the Minister could be approached and the Convocation

could be approached.

157. Neither the Senate nor the Institutional Forum nor the Council came to a

conclusion that it would be difficult, and not achievable, to see to it that a

100% offer be made available in both English and Afrikaans. It also negates

the proposal that a commitment, over time, should be made to the

achievement of such an offer. This, in turn, is followed by the statement in

179 AA: Record of appeal Vol 27, p.3124. Page 54

paragraph 216180 that the policy provisions in the 2016 language policy

therefore advance the use of English to a greater (but still limited) degree

than the use of Afrikaans. It cannot possibly be that the promotion of English

to a 100% offer is "limited".

158. In paragraph 293.1,181 Mr Steyn effectively says that if the SU were

financially able to provide parallel medium or real-time translation in

Afrikaans in each module, it would have done so. However, it does not have

the necessary resources to do so. This was never a consideration as

evidenced by the fact that it was pertinently said in Council that if the goal of

full parallel medium education was too expensive, management should say

so because then the Council would have to look to alternative funding.

Management did not respond to this.

159. In paragraph 853,182 Mr Steyn again says that the SU is definitely not

capable of affording parallel medium classes immediately and that he had

already on a number of occasions dealt with the role which limited resources

played in the formulation of the 2016 language policy.183

160. Paragraphs 210 to 216 of the Respondents' answering affidavit was

responded to in paragraphs 123 to 125 of the replying affidavit,184 a copy of

which is also annexure "C" to the Applicants' response to the Chief Justice's

directions of 1 March 2018.185

"123. Ad paragraph 210

180 AA: Record of appeal Vol 15, p.1986. 181 FA: Record of appeal Vol 16, p.2028. 182 AA: Record of appeal Vol 18, p.2261. 183 See also paragraphs 210-216, 253-254, 285-287 and 293-296. 184 RA: Record of appeal Vol 33, p.3836-3848. 185 P.53. Page 55

123.1 There is no doubt that it is reasonably practicable to deliver

teaching at the SU in Afrikaans.

123.2 I do not know why the Court is being referred to counsel's

opinion for the statement that the new language policy still

requires teaching in Afrikaans.

123.3 The Applicants' case is that in terms of the new language

policy Afrikaans will lose its status as a primary language of

instruction at the SU and that the language policy will

inevitably result in Afrikaans being used progressively less as

a language of instruction. As indicated in the supporting

affidavits filed herewith, it has already happened despite the

deponent's naïve assurances that the new language policy

will not lead to a 'noemenswaardige' (nothing to speak of)

reduction in the Afrikaans teaching offer.

124. Ad paragraph 211

124.1 The end result of the matter is that the then existing offer in

Afrikaans was indeed reduced as a result of the new

language policy and, as appears from some of the supporting

affidavits, that language policy now is a barrier to especially

brown students who speak Afrikaans but are not sufficiently

proficient in English.

124.2 In addition, the existing Afrikaans offer became reduced

notwithstanding the fact that the Council's in-principle point of Page 56

departure was that the Afrikaans offer may not be reduced.

125. Ad paragraphs 212 to 216

125.1 On the basis of the content of these paragraphs alone, the

application against the First to Third Respondents should

succeed.

125.2 The study referred to in paragraph 212 is not a complete

study and it also raises more questions than it provides

answers. For example:

125.2.1 It is not clear who requested the memorandum and

who drafted it.

125.2.2 The information that was made available to the

person who drafted it, has not been furnished and

cannot be verified.

125.2.3 The terms 'current spending' and 'budget' are used

interchangeably while not necessarily having the

same meaning.

125.2.4 The memorandum also does not say what

percentage of the R29 million budgeted for language

implementation support is used for each of the four

components referred to. It is also not at all clear why

the R11 million for the language centre is included in

the amount that the SU budgets for 'language Page 57

implementation'.

125.2.6 The memorandum does not say to what extent the

amount spent by the faculties on 'additional support'

has to do with 'language implementation'.

125.2.7 It only vaguely states in paragraph 2.1.2 that real

time interpretation of all classes are also expenses

but does not provide any detail at all as it does not

provide any detail as to what extent the number of

interpreting services, which will increase significantly

by reason of the 2016 language policy, will indeed

increase.

125.2.8 The SU has access to billions of Rand in reserves

and it is not clear why these costs would, for

example, have to be funded from increased student

fees.

125.2.9 The memorandum does not distinguish between

once off and running expenses.

125.2.10 It is anything but a complete study and resembles

something which had been prepared in a hurry to

support a particular point of view.

125.3 The fundamental mistake in the deponent's point of departure

is, of course, the fact that he offers the estimated costs as

expenditure that will have to be incurred to provide education Page 58

in Afrikaans whereas, given the history of the matter and the

content of the 2014 policy which will be replaced by the new

language policy, that it is a larger English offer that has to be

financed under the new policy.

125.4 The deponent does not say why it would not be possible to

offer interpretation in 100% of the modules where it is

required saying in effect that, given the new language policy's

aim to achieve a 100% English offer, there will be modules

where translation into Afrikaans will be necessary, but not

possible.

125.5 The most important point about annexure "GMS57" is,

however, that it did not serve before the Institutional Forum,

not before the Senate, and not before the Council and that the

costs of equal treatment between Afrikaans and English as

primary languages of instruction was not advanced as a

reason why the new language policy had to be adopted.

125.6 The memorandum cannot even withstand superficial analysis.

125.6.1 It is not based on the 94 322 students currently

enrolled in 594 under graduate modules with 2 256

lectures. It is based on 94 322 entries in 594 under

graduate modules for which 2 256 lectures are

required. This appears from the fact that the total

number of under graduate students is 19 582, that is

almost five times less than the 94 322 mentioned in Page 59

the memorandum.

125.6.2 No indication is given of the hourly rate or the basis

for calculation of the costs for translations. Without it

the figures cannot be verified and no other obviously

dubious assumptions can be checked. There is also

no mention of the possible cutting of costs which

may be less important.

125.6.3 Not all faculties or subject modules require

interpretation from English to Afrikaans or vice versa,

for example, such as when the languages are

offered as subjects.

125.6.4 By dividing larger classes parallel medium education

can be provided as, for example, in the Engineering

Faculty where the first-year group of approximately

6 000 students is divided into three groups of

approximately 200 each. One of these groups is

taught in Afrikaans and the other two in English

without any additional lecturing staff being required.

The same could be applied in other faculties,

especially those where the T option was offered on a

large scale.

125.6.5 A class of, for example, 200 can easily be divided

into at least 2 (which do not necessarily have to be of

the same size, for example into a distribution of 150 Page 60

and 50).

125.6.6 A class of 200 has approximately one full-time

equivalent student/senior lecturer equivalent ratio of

40:1 for Social Sciences and 20:1 for the Natural

Sciences, a demand on 5 or 10 students

respectively. No additional staff is required when

such large class groups are subdivided to enable

parallel-medium education; it is already available and

would be capable to be used for parallel medium

education.

125.6.7 Currently only one lecturer is used to teach larger

groups, i.e. frequently larger than 200 and

sometimes as large as 400, a fact which is obscured

by the memorandum since it presupposes that

additional personnel will be required. Additional

personnel will only be required for smaller modules.

125.6.8 With regard to lecture hall occupation, lecture halls

are in practice full in the mornings and laboratories

are usually empty, whereas laboratories are

occupied in the afternoons and lecture rooms mostly

empty. By introducing double sessions, in other

words by presenting laboratory sessions in the

mornings and lectures also in the afternoons, the

room occupancy problem can be significantly Page 61

alleviated. No such investigation was done for

purposes of the memorandum. It is clear that the

memorandum seeks to achieve a set goal, namely to

show the impossibility of parallel medium teaching

solely on the basis of staff and lecture room

availability, something in which it fails dismally.

125.6.9 There is no basis according to which the figures with

which the memorandum comes up can be assessed.

For example, it does not indicate which teaching

methods are referred to and what technology is

involved. Are these old style lectures in front of a

class or was consideration given to tutorial-type

teaching situations supported by IT and senior

students and teaching assistants. In this regard,

consideration could be given to different teaching

methods and the use of, for example, learning

centres.

125.7 Accordingly, where it is said in paragraph 213 that the SU

therefore realised that it would be difficult and at present

impossible to ensure the availability of a teaching offer of

100% in both English and Afrikaans, that knowledge can only

be attributed to management and not to the Institutional

Forum, the Senate and the Council, and it could, of course,

only have been management, or even only the Vice-Rector: Page 62

Learning and Teaching, who requested the detailed study.

125.8 During the special council meeting of 21 May 2016 which was

convened with the specific purpose to provide the Council

with an opportunity to formulate its in-principle points of

departure, Adv Heunis inter alia said that –

125.8.1 as an organ of state, the SU has a responsibility to

comply with the Ministerial Policy and if the Council

commits itself to an in-principle point of departure as

regards the equal status of Afrikaans and English, to

be presented on a parallel medium basis, the SU

would comply with that policy provided it also makes

a commitment to Xhosa;

125.8.2 such a point of departure will require funds, but if the

obligation were taken up a strong case could be

presented to the Minister that the SU has to be

subsidised because it would be a unique university in

South Africa and the execution of the Ministerial

Policy would necessitate funding;

125.8.3 the Convocation, of which he is the President, would

make an extraordinary effort to help the SU to

acquire the means to finance the proposal regarding

equal status. (Transcript of the proceedings of the

Special Council Meeting of 21 May 2016, pp.135-

136.) Page 63

125.9 There was no reaction to these proposals and there is no

reference thereto in the 'detailed study'.

125.10 If paragraphs 214 and 215 are read together, it is clear that –

125.10.1 Afrikaans and English will not have equal status as

languages of instruction in the future;

125.10.2 the new language policy provides for a 100%

English offering; and

125.10.3 the Council's basic premise that the Afrikaans offer

should not be reduced, has not been complied with.

125.11 The deponent says that to ensure that language does not

prevent access for black students, it was decided to make

the instruction offer 100% available in English.

125.12 What the Applicants ask for is a language policy that does

not prevent access to anyone who wishes to receive English

or Afrikaans tuition. What the new language policy now

achieves is that access to Afrikaans speakers who cannot or

do not want to be taught in English, is prevented.

125.13 How the deponent, having said in paragraph 214 that it was

decided to make the instruction offer 100% available in

English, can say in paragraph 216 that the policy provisions

in the new language policy consequently increases the use

of English to a larger (but still limited) degree than the use of Page 64

Afrikaans, is beyond understanding.

125.14 Significantly the deponent invokes an advocate's

memorandum for the justification of 'the policy's limited

greater promotion of English'. I deny that there is valid

justification for this and Adv Breitenbach's opinions will be

dealt with further, to the extent that it may be necessary,

during argument.

125.15 The deponent's 'limited advancement of English' reminds of

his assurances that there will not be a 'significant' reduction

in the Afrikaans offer, all euphemisms which, in reality,

proclaimed falsehoods about the content of the new

language policy and is particularly out of tune with the reality

which is the result of the commencement of the new

language policy as it appears from some of the supporting

affidavits which will be filed herewith."

161. Significantly the Task Team (not the Working Group) proposals of 9

September 2015, which called for equality between Afrikaans and English as

primary languages of instruction, were clearly not considered to be

unaffordable and, equally importantly, would not have resulted in the

diminution of the Afrikaans offer and would have seen an increased English

offer.

162. There is no authority on the record for the statement in paragraph 249,186

that although the SU cannot with certainty link language exclusion to

186 AA: Record of appeal Vol 15, p.2001. Page 65

diminished academic achievement, it would appear to have been one of the

factors which contributed to the fact that black students fared worse than

their white counterparts and left the US in greater numbers. However, this

phenomenon is accounted for by the UCT study that shows that because

black students are not being educated in their mother-tongue at primary and

secondary levels, they are 5 years behind their white counterparts when they

get to university. None of the considerations which feature in the answering

affidavit was raised in any of the decision-making organs.

163. Mr Steyn claims that Afrikaans-speaking students would not be significantly

detrimentally affected by the 2016 language policy. Broadly put, the effect of

the policy is to offer a 100% English offer and to manage the existing

Afrikaans offer to provide access for students who prefer to study in

Afrikaans and to retain it and to develop Afrikaans as a language of

instruction further where reasonably achievable.187

164. Not only is this demonstrably false when one compares the new policy with

the 2014 policy which on his own showing provided for equality for the two

languages, but the proof of the pudding is in the eating. To say that the

Applicants cannot invoke what is happening in practice because that would

be presenting new material in reply when they have predicted what is now

happening in practice all along, does a grave injustice to the cause that this

litigation seeks to vindicate.

165. This is coupled with ad nauseam repetition of statements such as the 2016

language policy should not lead to any worthy of mention reduction

187 AA: Record of appeal Vol 15, p.2002, para 251. Page 66

("noemenswaardige vermindering") in the use of Afrikaans at the SU.188

166. On the Respondents' own showing the 2014 language policy and plan was a

remarkable move away from the SU's past. For the first time it gave formal

equal status to English and Afrikaans as languages of instruction at the

SU.189

167. On the Respondents' own showing the problem was not the policy but the

implementation thereof.190

168. Much is made of the fact that the Applicants have an unjustified fear that

management and faculties are prejudiced against Afrikaans.191 This claim

explains why the SU does not want the Courts to have recourse to Council

member Johan Theron's statement of defence where he shows exactly this

prejudice.

169. The Respondents make an error of reasoning when they say it is

incompetent for the Applicants to attack the policy because of the mere

possibility that it may be unlawfully implemented. The point is that when

lawfully implemented it will reduce the Afrikaans offering significantly and this

has now been shown to be the case in practice.192

J C HEUNIS S.C. K PILLAY Applicants' Counsel Chambers, Cape Town 7 September 2018

188 AA: Record of appeal Vol 15, p.2002, para 253. 189 AA: Record of appeal Vol 15, p.2014, para 279. 190 AA: Record of appeal Vol 15, p.2015, para 281.2. 191 AA: Record of appeal Vol 16, p.2045, para 323.1. 192 Record of appeal Vol 16, p.2045, para 322.2. IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

Case No: CCT 311/17 WCHC Case No: 17501/2016

In the matter between:

GELYKE KANSE First Applicant DANIëL JOHANNES ROSSOUW Second Applicant THE 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 THE CHAIRMAN OF THE SENATE OF THE UNIVERSITY OF STELLENBOSCH First Respondent THE CHAIRMAN OF THE COUNCIL OF THE UNIVERSITY OF STELLENBOSCH Second Respondent THE UNIVERSITY OF STELLENBOSCH Third Respondent ______

APPLICANTS' ADDENDUM TO THEIR WRITTEN SUBMISSIONS IN RESPONSE TO THE CHIEF JUSTICE'S DIRECTIONS OF 1 MARCH 2018

______1. Upon reflection, we are of the view that there is an aspect of our written

submissions in this matter in response to the Chief Justice's directions of 1

March 2018 which calls for a more nuanced approach.

2. It concerns the question whether public universities have obligations in

relation to the advancement of all official languages in the Constitution

under section 6 thereof.

3. In paragraph 22 of our submissions,1 we say the following:

"We accept that Afrikaans is not an indigenous language as contemplated by section 6(2) of the Constitution; the reason for this is most plainly apparent from the dictum of Moseneke DJP as he then was in Ermelo where he referred to certain languages that 'languished in obscurity and under-development'."

4. This is the necessary outcome of the introductory part of section 6(2) which

provides as follows:

"Recognising the historically diminished use and status of the indigenous languages of our people, the state must take practical and positive measures to elevate the status and advance the use of these languages."

5. Although Afrikaans has a past history of diminished status, that certainly did

not obtain when the Constitution commenced, not least because of the

efforts of the apartheid government to promote the language, a fact which, in

1 Page 36.

2 | P a g e

recent times, has, somewhat illogically, redounded to the language's

detriment.

6. However, this does not mean that Afrikaans is not an indigenous language.

In this regard we refer to what Sachs J said in the Ex parte Gauteng

Provincial Legislature: In re Dispute Concerning the Constitutionality of

Certain Provisions of the Gauteng School Education Bill of 1995:2

"The fourth assumption is that the Afrikaans language is one of the cultural treasures of South African national life, widely spoken and deeply implanted, the vehicle of outstanding literature, the bearer of a rich scientific and legal vocabulary and possibly the most creole or 'rainbow' of all South African tongues. Its protection and development is therefore the concern not only of its speakers but of the whole South African nation. In approaching the question of the future of the Afrikaans language, then, the issue should not be regarded as simply one of satisfying the self-centred wishes, legitimate or otherwise, of a particular group, but as a question of promoting the rich development of an integral part of the variegated South African national character contemplated by the Constitution. Stripped of its association with race and political dominance, cultural diversity becomes an enriching force which merits constitutional protection, thereby enabling the specific contribution of each to become part of the patrimony of the whole."

7. This passage was echoed and embraced by Moseneke DCJ in Head of

Department, Mpumalanga Department of Education and Another v

2 1996 (3) SA 165 (CC) at par 49.

3 | P a g e

Hoërskool Ermelo and Another.3

8. The implicit distinction in section 6(2)(b) of the Constitution between

historically diminished indigenous languages and Afrikaans, the

"privileged" indigenous language, is echoed in paragraph 1 of the current

Language Policy for Higher Education ("LPHE") where the following is

said:

"The existence of different languages was recognised and perversely celebrated to legitimise the policy of 'separate development' that formed the cornerstone of apartheid. However, in practice, all our languages were not accorded equal status. The policy of 'separate development' resulted in the privileging of English and Afrikaans as the official languages of the apartheid state and the marginalisation and under-development of African and other languages."

9. Paragraph 3 of the LPHE contains the following:

"The role of all our languages 'working together' to build a common sense of nationhood is consistent with the values of 'democracy, social justice and fundamental rights', which are enshrined in the Constitution. The Constitution, in line with its founding provisions of non-racialism, non- sexism, human dignity and equity, not only accords equal status to all our languages, but recognises that given the marginalisation of indigenous languages in the past, the state 'must take practical and positive measures to elevate the status and advance the use of these languages' (Section 6 (2)

3 2010 (2) SA 415 (CC) at par 48.

4 | P a g e

of the Constitution)."

10. Paragraph 5 deals with the status quo and says that "(l)anguage has been

and continues to be a barrier to access and success in higher education;

both in the sense that African and other languages have not been developed

as academic/scientific languages and insofar as the majority of students

entering higher education are not fully proficient in English and Afrikaans".

11. Paragraph 6 articulates the goal as follows:

"The challenge facing higher education is to ensure the simultaneous development of a multilingual environment in which all our languages are developed as academic/scientific languages, while at the same time ensuring that the existing languages of instruction do not serve as a barrier to access and success. The policy framework outlined below attempts to address this challenge."

12. The relevant features of the policy framework-

12.1. postulate the retention of Afrikaans as a medium of academic

expression and communication in higher education and is committed

to ensuring that the capacity of Afrikaans to function as such is not

eroded;4

12.2. stipulate that the sustainability of Afrikaans as a medium of

4 Par 15.4.

5 | P a g e

academic expression and communication can be ensured through a

range of strategies, including the adoption of parallel and dual

language medium options, which would, on the one hand, cater for

the needs of Afrikaans language speakers and, on the other, ensure

that language of instruction is not a barrier to access and success;5

12.3. call for the promotion of multilingualism and the enhancement of

equity and access in higher education through the development, in

the medium to long term, of South African languages as mediums of

instruction in higher education, alongside English and Afrikaans;6

and

12.4. the retention and strengthening of Afrikaans as a language of

scholarship and science.7

13. The revised draft Language Policy for Higher Education 2017,8

acknowledges in its Preamble that "there has been little progress made in

exploring and exploiting the potential role of indigenous African languages

in facilitating access and success as well as the intellectualisation of these

languages in higher education", a goal which the First Applicant explicitly

embraces in its constitution.

5 Par 15.4.4. 6 Par 21. 7 Par 21. 8 Published in Government Gazette No. 41463 of 23 February 2018, Government Notice No. 147.

6 | P a g e

14. The policy seeks to promote parity of esteem of indigenous official

languages in the higher education system of South Africa and defines

indigenous languages as languages that are native to a region or country and

spoken by indigenous people. Significantly indigenous official African

languages of South Africa as referred to in the Constitution of the Republic

of South Africa are defined as inclusive of Afrikaans and the concept

official African languages is similarly defined as inclusive of Afrikaans.

15. What is as clear as daylight, is that what would be entirely inconsistent with

the overall approach of the Constitution, the current LPHE and the proposed

new Language Policy for Higher Education 2017, would be the decline of

Afrikaans' status as an academic language, a scientific language and a

language of tertiary education. In this regard the Court can take judicial

notice of the widely reported fears that Afrikaans is now also under threat at

the Potchefstroom Campus of the NWU, the last place in the world where

one can still obtain a university degree in Afrikaans.

JAN HEUNIS SC KARRISHA PILLAY Counsel for the Applicants 27 March 2018 Chambers, Cape Town

7 | P a g e

IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

Case No: CCT 311/17 WCHC Case No: 17501/2016

In the matter between:

GELYKE KANSE First Applicant DANIëL JOHANNES ROSSOUW Second Applicant THE 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 THE CHAIRMAN OF THE SENATE OF THE UNIVERSITY OF STELLENBOSCH First Respondent THE CHAIRMAN OF THE COUNCIL OF THE UNIVERSITY OF STELLENBOSCH Second Respondent THE UNIVERSITY OF STELLENBOSCH Third Respondent ______

WRITTEN SUBMISSIONS ON BEHALF OF THE APPLICANTS IN RESPONSE TO THE CHIEF JUSTICE'S DIRECTIONS OF 1 MARCH 2018

______

CONTENTS

INTRODUCTION ...... 3

THE TEST OF "REASONABLY PRACTICABLE" AND THAT OF "APPROPRIATE JUSTIFICATION" ...... 6

WHETHER, PRACTICALLY, THE APPLICATION OF EITHER THE "REASONABLY PRACTICABLE" TEST OR THE "APPROPRIATE JUSTIFICATION" TEST WOULD MAKE ANY DIFFERENCE TO THE OUTCOME OF THIS MATTER?...... 16

WHETHER PUBLIC UNIVERSITIES HAVE OBLIGATIONS IN RELATION TO THE ADVANCEMENT OF ALL OFFICIAL LANGUAGES IN THE CONSTITUTION UNDER SECTION 6 OF THE CONSTITUTION? ...... 31

WHAT IMPLICATIONS THIS COURT’S DECISION IN AFRIFORUM HAVE ON THE QUESTIONS RAISED IN THIS APPLICATION ...... 37

IS BIOWATCH APPLICABLE IN THIS MATTER AND, IF SO, IS THE COSTS ORDER GRANTED BY THE HIGH COURT IN ACCORDANCE WITH BIOWATCH? ...... 41

CONCLUSION ...... 45

2 | P a g e

INTRODUCTION

1. At the heart of this application lies the constitutionality of the new language

policy ("NLP") adopted by Stellenbosch University ("SU") in 2016. We

submit that the NLP is unconstitutional because it is inconsistent with

section 29 of the Constitution.

2. The detailed facts giving rise to this application are addressed in the

voluminous affidavits that have been filed and are not repeated in any detail

in these submissions, save for emphasising the following:

2.1. The position at SU (a) was initially one of single medium Afrikaans

instruction; (b) thereafter of dual and parallel medium English and

Afrikaans instruction; and (c) currently of predominantly English

medium instruction to the virtual exclusion of Afrikaans.

2.2. Under the 2014 Language Policy and Plan ("2014 LPP"): (a)

Afrikaans and English were SU’s languages of learning and teaching

– it was committed to purposefully extending the academic

application of both; (b) Afrikaans and English would be employed in

various usage configurations, which were spelled out in more detail

in the 2014 LPP; (c) parallel-medium teaching and real-time

educational interpreting were the preferred options where practically

3 | P a g e

feasible and affordable; (d) postgraduate learning would happen in

both languages, with significant utilisation of English; (e)

documentation of prime importance had to be available in Afrikaans

and English; (f) Afrikaans and/or English and, where feasible,

isiXhosa had to be used by SU for external communication.

2.3. The NLP creates three language specifications, namely, parallel

medium, dual medium and single medium:

2.3.1. Parallel medium is employed where it is reasonably

practicable and pedagogically sound.

2.3.2. Where parallel classes are not possible or appropriate,

classes are taught in dual medium meaning that: all

material is conveyed in English; summaries or emphasis of

content is provided in Afrikaans; and questions are

answered in the language in which they are asked.

Additionally, all first year dual medium classes are

supported by simultaneous translation; and lectures in later

years will be translated if there is a request by the faculty,

the needs of students warrant it, and SU has the resources

to provide it.

4 | P a g e

2.3.3. Single medium classes are offered in only three limited

circumstances: (a) where the subject matter justifies it; (b)

where the lecturer is only proficient in one language; or (c)

where the students unanimously vote by secret ballot to be

taught in a single language. Where the lecture is single

medium because of the lecturer’s proficiency: (a) SU will

always provide simultaneous translation from Afrikaans to

English; and (b) it will provide simultaneous translation

from English to Afrikaans for all first year modules; and in

second and third year modules if there is a request by the

faculty, the needs of students warrant it, and SU has the

resources to provide it.

3. The consequence of the aforegoing is that until the adoption of the NLP,

Afrikaans-speaking students at SU had the right and option of being taught

in Afrikaans. They no longer have that right and, in practice, Afrikaans is

hardly being used as a language of instruction.

4. Pursuant to the Applicants’ application for leave to appeal to this Court,

Directions were issued by the Chief Justice on 1 March 2018. In line with

those Directions, these Written Submissions address the following issues in

turn:

5 | P a g e

4.1. Whether the test of "reasonably practicable" and that of

"appropriate justification" referred to in the High Court judgment

are one and the same or two separate tests.

4.2. Whether, practically, the application of either the "reasonably

practicable" test or the "appropriate justification" test would make

any difference to the outcome of this matter.

4.3. Whether public universities have obligations in relation to the

advancement of all official languages in the Constitution under

section 6 of the Constitution.

4.4. What implications this Court’s decision in AfriForum and Another

v University of the Free State 2018 (2) SA 185 (CC) have on the

questions raised in this application.

4.5. Whether, in regard to costs, Biowatch Trust v Registrar Genetic

Resources and Others 2009 (6) SA 232 (CC) is applicable in this

matter and, if so, whether the costs order granted by the High Court

is in accordance with Biowatch.

THE TEST OF "REASONABLY PRACTICABLE" AND THAT OF "APPROPRIATE JUSTIFICATION"

5. Section 29 of the Constitution lies at the heart of this challenge; it is also

6 | P a g e

fundamental to the first issue identified in the Directions. Given its centrality

to the subject challenge, we quote the provision in full:

"(1) Everyone has the right–

(a) to a basic education, including adult basic education; and

(b) to further education, which the State, through reasonable measures, must make progressively available and accessible.

(2) 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;

(b) practicability; and

(c) the need to redress the results of past racially discriminatory laws and practices." (Our emphasis.)

6. It must be emphasised that the test prescribed by section 29 of the

Constitution is that of "reasonable practicability". It follows that in

determining the challenge instituted by the Applicants, a Court has to apply

the test of reasonable practicability. Indeed, the Court of first instance

recognised that section 29(2) of the Constitution is at the heart of the

7 | P a g e

Applicants’ attack;1 it must follow from this acknowledgement, we submit,

that a Court is duty-bound to apply the test of reasonable practicability.

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 (3) SA 165 (CC) at par 41, though in the

context of the predecessor to section 29 of the Constitution,2 Justice Kriegler

stated: "The standard of reasonable practicability is elastic - as it

necessarily has to be in order to leave room for a wide range of

circumstances. It is, however, objectively justiciable, which means that

arbitrary governmental action can be restrained by the Courts. Accordingly,

meaningful numbers of language-speakers have an enforceable right against

the government to instruction in the language of their community as long as

it is reasonable (sic) practicable."

8. In Minister of Education, Western Cape v Governing Body, Mikro

Primary School 2006 (1) SA 1 (SCA), the SCA held:

8.1. The right of everyone to receive education in the official language or

1 Judgment; par 62 and 72. 2 Section 32 of the Interim Constitution provided: "Education Every person shall have the right - (a) to basic education and to equal access to educational institutions; (b) to instruction in the language of his or her choice where this is reasonably practicable; and (c) to establish, where practicable, educational institutions based on a common culture, language or religion, provided that there shall be no discrimination on the ground of race."

8 | P a g e

languages of their choice in public educational institutions where

that education is reasonably practicable is a right against the State.3

8.2. The Constitution recognises that there may be various reasonable

educational alternatives available to the State to give effect to this

right and has left it to the State to decide how best to do so. In order

to ensure the effective access to, and implementation of, this right,

the State must in terms of the provision consider all reasonable

educational alternatives, including single medium institutions.4

8.3. Section 29(2), therefore, empowers the State to ensure the effective

implementation of the right by providing single-medium educational

institutions. This is a clear indication that, in terms of section 29(2),

everyone has a right to be educated in an official language of his or

her choice at a public educational institution to be provided by the

State if reasonably practicable, but not the right to be so instructed at

each and every public educational institution subject only to it being

reasonably practicable to do so.5

9. In Head of Department, Mpumalanga Department of Education v

Hoërskool Ermelo 2010 (2) SA 415 (CC) this Court pronounced as follows

in respect of section 29 of the Constitution:

3 At par 31. 4 At par 31. 5 At par 31.

9 | P a g e

9.1. The right to receive education in a public school in a language of

choice is internally modified because the choice is available only

when it is "reasonably practicable".6

9.2. When it is reasonably practicable to receive tuition in a language of

one's choice will depend on all the relevant circumstances of each

particular case. These would include the availability of and

accessibility to public schools, their enrolment levels, the medium of

instruction of the school that its governing body has adopted, the

language choices that learners and their parents make, and the

curriculum options offered.7

9.3. An important consideration will always be whether the State has

taken reasonable and positive measures to make the right to basic

education increasingly available and accessible to everyone in a

language of choice.8

9.4. It follows that when a learner already enjoys the benefit of being

taught in an official language of choice the State bears the negative

duty not to take away or diminish the right without appropriate

6 At par 52. 7 At par 52. 8 At par 52.

10 | P a g e

justification.9

9.5. In resorting to an option such as a single or parallel or dual medium

of instruction, the State must take into account what is fair, feasible

and satisfies the need to remedy the results of past racially

discriminatory laws and practices.10

10. In Afriforum, which was the first case to have been determined by this

Court in respect of language policies at universities, the Court addressed the

test of "reasonable practicability" in some detail. We distil from that

judgment, the following key elements of the test:

10.1. It would be unreasonable to slavishly hold on to a language policy

that has proved to be the practical antithesis of fairness, feasibility,

inclusivity and the remedial action necessary to shake racism and its

tendencies out of their comfort zone.11

10.2. Section 29(2) requires "(a) equity; (b) practicability; and (c) the

need to redress the results of past racially discriminatory laws and

practices", to feature prominently in exploring the possibility of

offering education in an official language of choice. They relate to

equality, responsiveness and non-racialism; all reasonable

9 At par 52. 10 At par 53. 11 At par 46.

11 | P a g e

educational alternatives must be investigated within this context and

with this purpose high on the list of instructive factors.12 Effective

access to the right to be instructed in an official language of choice

must be given effect to, but without undermining equitable access,

preserving exclusivity or perpetuating racial supremacy.13

10.3. Inequitable access and the unintended entrenchment or fuelling of

racial disharmony would thus be the "appropriate justification" for

taking away or diminishing the already existing enjoyment of the

right to be taught in one’s mother tongue.14

10.4. At a conceptual level, dual medium institutions might well exist

without necessarily nurturing or perpetuating unfair advantage or

racial discrimination and its exceedingly harmful tendencies. When

that is so, then the right to be taught in a language of choice could be

effectively accessible and implemented.15 Where the enjoyment of

the right to be instructed in an official language of choice is

achievable without undermining any constitutional aspiration or

value, then the equity test might well have been met. (We submit

that this is entirely possible at SU.) The challenge could however

arise when scarce resources are deployed to cater for a negligible

12 At par 48. 13 At par 49. 14 At par 50. 15 At par 51.

12 | P a g e

number of students, affording them close, personal and very

advantageous attention while other students are crowded into lecture

rooms. Where access, integration and racial harmony are imperilled

by giving effect to the right to be educated in an official language of

choice, then the criterion of reasonable practicability would not have

been met.16

10.5. Reasonable practicability requires not only that the practicability test

be met, but also that considerations of reasonableness that extend to

equity, and the need to cure the ills of our shameful apartheid past,

be appropriately accommodated. And that is achievable only if the

exercise of the right to be taught in a language of choice does not

pose a threat to racial harmony or inadvertently nurture racial

supremacy. That goes to practicability. The question then is, has the

use of Afrikaans as a medium of instruction at the University had a

comfortable co-existence with our collective aspiration to heal the

divisions of the past or has it impeded the prospects of our unity in

our diversity?17

10.6. Even if a language policy is practicable because there are no

resource constraints to its implementation, it may not be reasonable

16 At par 52. 17 At par 53.

13 | P a g e

to implement it because it offends constitutional norms. The policy

would therefore not meet the reasonably practicable standard.18

11. On the other hand, the test of "appropriate justification" relates only to the

negative duty not to take away or diminish the right without appropriate

justification; it was not defined by the Court of first instance. According to

the Court of first instance it applies in the following context:

11.1. There is a general rule against retrogressive measures in respect of

socio-economic rights.19

11.2. The negative element of the right does not substantially alter the

inquiry.20

11.3. A change in circumstances may materially bear on the question

whether it is reasonably practicable to continue with a policy. What

is required of a decision-maker, when there is a change in

circumstances, is to demonstrate that it has good reason to change

the policy. In other words, it must act rationally and not arbitrarily.21

11.4. Provided that SU could demonstrate that the NLP is a reasonable

18 At par 54. 19 At par 85. 20 At par 85. 21 At par 85.

14 | P a g e

educational alternative, it had acted constitutionally.22

11.5. SU had advanced an appropriate justification for any possible

reduction in Afrikaans tuition that flows inevitably from the NLP.23

12. We respectfully submit that the reasonably practicable test is different and

distinct from the appropriate justification test in the following respects:

12.1. First, in terms of the appropriate justification test, there must be a

change in circumstances in order to demonstrate that there is good

reason to change the policy. However, on the reasonably practicable

test, irrespective of whether there is a change in circumstances: (a)

the policy must be practicable in that there are no resource

constraints; and (b) the policy must not offend constitutional norms

by, for example, not undermining equitable access, preserving

exclusivity or perpetuating racial supremacy.

12.2. Second, while this Court has recognised that inequitable access and

the unintended entrenchment or fuelling of racial disharmony would

be an "appropriate justification" for taking away or diminishing the

already existing enjoyment of the right to be taught in one’s mother

tongue, it is unclear as to what role (if any) resource constraints play

22 At par 86. 23 At par 86.

15 | P a g e

in this analysis. The latter consideration is a key aspect of the

reasonably practicable test.

12.3. Third, the reasonably practicable test mandates the consideration of

three constitutionally prescribed factors, viz: (a) equity; (b)

practicability; and (c) the need to redress the results of past racially

discriminatory laws and practices. An appropriate justification test

on the other hand, does not necessarily include these factors.

12.4. Finally, according to the analysis of the Court of first instance (as

addressed more fully in the section that follows) SU simply had to

demonstrate that its policy constituted a reasonable educational

alternative, in order to pass constitutional muster. However, what

section 29(2) of the Constitution requires, is that the State must

consider all reasonable educational alternatives with due regard to

the factors identified in section 29(2).

WHETHER, PRACTICALLY, THE APPLICATION OF EITHER THE "REASONABLY PRACTICABLE" TEST OR THE "APPROPRIATE JUSTIFICATION" TEST WOULD MAKE ANY DIFFERENCE TO THE OUTCOME OF THIS MATTER?

13. The Court of first instance found:24

"[86] An important point to make is that neither the SCA nor the North Gauteng full bench considered a separate test of

24 At par 86.

16 | P a g e

‘appropriate justification’ in finding that the universities in those cases had complied with their obligations under Section 29 (2). The point though is that if SU can show that retaining the 2014 Policy was not reasonably practicable, or that the impugned 2016 Policy is a reasonable educational alternative, then it has acted constitutionally. One need not shy away from mentioning that the fact that Afrikaans speakers previously enjoyed greater rights does not entitle them to retain those rights where it is not reasonable for them to do so. In my view, the applicants are wrong in stating that Section 29 (2) means that SU ‘may not take away or diminish the rights of Afrikaans-speakers to receive education in Afrikaans in order to increase the English offering.’ Plainly SU may do so provided that increasing the English offering is otherwise consistent with Section 29 (2) because, for example, it is necessary to ensure all students can have equitable access to SU. Mr Muller is correct in contending that whether or not there is any reduction in the Afrikaans offering is a question of implementation and is not a necessary consequence of the impugned Policy. The truth is that the implementation of the Policy is not before us. If one assesses the 2016 Policy holistically, one finds or comes to the realisation that it is proportional to the goals it seeks to achieve. I can think of no better and carefully crafted policy. I am of the view that SU has indeed advanced an ‘appropriate justification’ for any possible reduction in Afrikaans tuition that flows inevitably from the Policy." (Our emphasis.)

14. In its analysis, the Court of first instance approached the matter on the

following basis:

14.1. It could not be equitable for the majority of Black (African) students

to be denied equal access to SU; it was plainly inconsistent with

SU’s obligation to provide redress to continue to exclude Black

(African) students in that way. It was only reasonably practicable for

17 | P a g e

SU to offer Afrikaans tuition to the extent it could do so without

excluding English-speakers, Afrikaans-speakers had no section

29(2) right to demand Afrikaans tuition beyond what SU was

reasonably able to provide without excluding English speakers.25

14.2. The answering affidavits claim that one of the reasons SU wishes

also to continue using both languages in a single lecture is to prevent

segregation and promote multilingualism. The provision of

interpretation services for all lectures is not necessarily a viable

option in that: (a) it would be too expensive and SU may not have

the resources to do so; (b) it is not a long term solution because

interpretation will never be as good as a lecturer in the original

language. The 2014 Policy led to significant discrimination against

Black (African) students who were unable to understand Afrikaans.26

15. While the factors considered by the Court of first instance were, in part,

relevant to the reasonable practicability test, it did not entail the full

spectrum of factors that, in our submission, are relevant to the latter test.

Furthermore, some of the important factors taken into consideration by the

Court were not factors which featured in the SU’s record of decision as

reasons for the adoption of the NLP at all. Had the matter been approached

25 At par 90. 26 At par 92.

18 | P a g e on the basis of the reasonable practicability test, the following factors ought to have been considered and to have been weighed in favour of the

Applicants:

15.1. First, that Afrikaans was traditionally the language of instruction at

the SU. Given its geographic location in a province which is

predominantly Afrikaans and of which the largest population group,

the brown people, is predominantly Afrikaans, the SU was at the

beginning of the 1990's generally regarded as the institution best

placed to remain a predominantly Afrikaans medium institution

following the commencement of the new constitutional dispensation

and that it would make a contribution towards the preservation of

Afrikaans as a language of science and learning as required by the

national Language Policy for Higher Education.

15.2. Since 1994 the SU had become home to an ever-increasing

percentage of students, mainly white students, whose mother-tongue

was not Afrikaans.

15.3. During the 20 years after 1995, the number of Afrikaans-speaking

students at the SU moved in a band between 11 000 and 13 300.

During the same period the number of non-Afrikaans-speaking

students tripled.

19 | P a g e

15.4. The increase in non-Afrikaans students was the result of the fact that

white English-speaking students streamed to the campus; in certain

faculties students began to use English more and more; the SU

started appointing lecturers who could not speak Afrikaans; and

unlike the position in the past, it was not expected of them to

become proficient in Afrikaans. In the result, in 2015 there were

already 202 (21%) of the SU's permanent lecturing personnel

component who could only lecture in English.

15.5. As a result of this influx of English-speaking students, the offering

of single-medium Afrikaans classes decreased to 55% in 2009 and to

12% four years later, whereas dual-medium increased to 58%.

15.6. One of the most important reasons for the phasing out of Afrikaans

at the SU was, therefore, the phenomenal growth in the number of

white English-speaking students and the appointment of lecturers

who were not prepared or able to lecture in Afrikaans. That the

anglicisation of the SU had little to do with transformation is

evident, for example, by the fact that 85% of the English-speaking

students who entered the SU between 1995 and 2015 were white.

15.7. Second, Afrikaans is the first language of 75,8% brown people and

60,8% whites. Afrikaans is the majority language in the western half

20 | P a g e

of South Africa and the first language of 53,8% of the Northern

Cape population, Setswana second with 33,1% and 49,7% of the

Western Cape population with Xhosa second with 24,7%. In the

Western Cape, the seat of the SU, with a population of 6,2 million

(2015 mid-year Statistics South Africa) Afrikaans is the home

language of 49,7% of the inhabitants and English that of only 20,2%.

Although brown people comprise 49,4% of the Western Cape's

population, their participation level at tertiary education is only 15%

compared to 70% blacks and 55% whites.

15.8. Third, of the 26 universities in South Africa there is now only one,

i.e. the Northwest University, which still adheres to a language

policy which makes provision for Afrikaans and English as primary

languages of instruction at one of its campuses. It is therefore

patently clear that the national demand for education in Afrikaans at

tertiary level is larger than the national offer. In this regard a relevant

factor is the fact that SU is one of four universities in a radius of

60km with English being the exclusive language of tuition at the

other three.

16. Instead, the Court of first instance took into consideration three

considerations, viz (a) as demonstrated by a study that had been conducted,

21 | P a g e

SU cannot afford full parallel-medium;27 (b) the relevance of which is that it

shows "that moving to full parallel medium tuition was not reasonably

practicable for the same reason advanced in UFS v AfriForum, viz it would

result in a segregated campus;28 (c) SU wishes to continue using both

languages in a single lecture to prevent segregation and promote

multilingualism.29

17. We would respond to this as follows:

17.1. The study that was conducted was introduced in paragraph 212 of

the answering affidavit filed of record in the Court a quo where it

was referred to as a detailed study that had been requested regarding

the costs of full parallel-medium tuition. This study is annexure

"GMS57" to the answering affidavit and is styled: "Memorandum in

support of the Stellenbosch University submission in terms of the

Language Policy (2015)". It is 1½ pages long and was completely

annihilated in paragraph 125 of the replying affidavit. This

notwithstanding, the Court a quo merely said that this was an aspect

criticised at some length by the Applicants without any attempt at

assessing the merits of the Applicants' attack on the study. Copies of

annexure "GMS57" to the answering affidavit as also paragraphs

27 Par 91. 28 Par 91. 29 Par 92.

22 | P a g e

211 to 216 thereof and of paragraphs 124 and 125 of the replying

affidavit in the Court a quo are annexed hereto as annexures "A" to

"C". The Court is also respectfully referred to paragraphs 88 and 89

of the affidavit in support of the current application.

17.2. Significantly the Court a quo said that SU states that the study shows

that full parallel-medium tuition would not be financially feasible

and that this "is an aspect criticised at some length by the

Applicants". The Court then goes on to say that "(b)ut the fact of the

matter is that the relevance of the study is merely to show that

moving to full parallel medium tuition was not reasonably

practicable for the same reason advanced in UFS v AfriForum

supra – it would result in a segregated campus" (our emphasis).

This is a complete non sequitur.

17.3. Also, the Court a quo ignored the fact that the study did not serve

before the Senate or the Council of SU when it met to discuss and

approve the NLP and the record shows that the decisions to adopt

the NLP had nothing to do with the costs of full parallel-medium

tuition.

17.4. Next, the possibility that full parallel-medium tuition was not

reasonably practicable because it would result in a segregated

23 | P a g e

campus also did not feature at all in the motivation for the adoption

of the NLP nor in the deliberations of the Senate and the Council

during the processes which culminated in the adoption of the NLP.

This is unsurprising in view of the fact that there can be no question

of a segregated campus in circumstances where the large majority of

the students who prefer tuition in English are white and the vast

majority of brown students are Afrikaans-speaking and prefer tuition

in that language.

17.5. Neither the objective to prevent segregation, nor that of promoting

multilingualism, are met by the NLP as is apparent from the

following analysis:

17.5.1. Paragraph 7.1.2 of the NLP provides that undergraduate

modules are offered by any of the measures set out in

paragraphs 7.1.3, 7.1.4 and 7.1.5.

17.5.2. Possibility 1 – separate lectures: Paragraph 7.1.3

provides for an undergraduate model involving separate

lectures in Afrikaans and English where it is reasonably

practicable and pedagogically sound to have more than

one class group coupled with learning opportunities

such as group work, assignments, tutorials and

24 | P a g e

practicals involving students from both language groups

to promote integration within programs. The two

significant features of this provision are that:

17.5.2.1. First, there are no guidelines to inform the

application of the "reasonably practicable"

and "pedagogically sound" criteria. Indeed,

it would be difficult to conceive of when,

and in what circumstances, separate

lectures would be reasonably practicable

given the arguments presented by SU in

respect of segregation and equal access.

17.5.2.2. Second, these concepts are uncertain and

vague, generalised and overbroad and

leave SU considerable scope to not have

separate lectures in Afrikaans and English,

the only feature of the policy which

actually provides for equality between the

two languages.

17.5.3. Possibility 2: Paragraph 7.1.4 provides for a second

category of measures by which undergraduate modules

25 | P a g e are offered. It provides that for undergraduate modules where both Afrikaans and English are used in the same class group, the combination of facilitated learning opportunities will see:

17.5.3.1. During each lecture, all information

conveyed at least in English and

summaries or emphasis on content also

given in Afrikaans with questions in either

language having to be answered in that

language.

17.5.3.2. Students being supported in Afrikaans and

English during a combination of

"appropriate, facilitated learning

opportunities".

17.5.3.3. For first year modules, SU making

simultaneous interpreting available during

each lecture and during second and

subsequent years of study upon request by

a faculty if the needs of the students

warrant the service and SU has the

26 | P a g e

resources to provide it, provided that if two

weeks pass with no students making use of

the interpreting service, it may be

discontinued.

17.5.3.4. By far the most lectures will fall in this

category which makes it abundantly clear

that it will be a 100% English offering and

little or no Afrikaans offering. (One of the

reasons that have been advanced for

abandoning the 2014 LPP was the fact that

students who had to listen to English

translations of Afrikaans lectures were

offended thereby. Yet, in terms of the

NLP, the SU offers Afrikaans translations

of English lectures.)

17.5.3.5. Again there are no guidelines to inform the

requirements of summaries and emphasis

and significant leeway is provided for by

the availability of resources qualification,

an aspect of the matter about which the SU

itself takes the decisions. Nothing is

27 | P a g e

measured against objective criteria and

there are no independent controls.

17.5.3.6. In any event, on the evidence, lecturers

have been abandoning summaries and

emphasis in Afrikaans on a grand scale

across the board since the implementation

of the policy.

17.5.4. Possibility 3: Paragraph 7.1.5, which provides the third

category of measures for offering undergraduate

modules, further benefits English. In the following

instances lectures will be offered in one language only:

17.5.4.1. Where the nature of the subject-matter of

the module justifies doing so, for example

when a module is the language itself. This

criterion however, is not informed by any

objective criteria and clearly capable of

abuse. It should be borne in mind that the

Senate is a good barometer of teaching

staff sentiment and it has given clear

indications that it prefers lectures in one

28 | P a g e

language only and that language has to be

English.

17.5.4.2. Where the assigned lecturer is proficient to

teach only in Afrikaans or English. At a

practical level, the evidence is that there

are virtually no lecturers who can teach

only in Afrikaans, whereas, as we have

seen, there is a large number who can

teach only in English. That number is

increasing since there is no obligation on

lecturers to be or become proficient also in

Afrikaans. In view of the fact that the

majority of lecturers prefer to teach in one

language only, there is scope for coercion

which the evidence demonstrates, has, in

fact, taken place and continues to take

place.

17.5.4.3. Where all the students in a class group

have been invited to vote by means of a

secret ballot and those who have voted

unanimously agree to the module being

29 | P a g e

presented in Afrikaans only or English

only, provided that the relevant lecturers

and teaching assistants have the necessary

language proficiency and agree to do so.

17.6. As regards the first part of (c) in paragraph 16 supra, it is simply not

so that the "SU wishes to continue using both languages in a single

lecture …" as proven by what is happening in practice.

17.7. As is apparent from the aforegoing, at a practical level the

determination of language is underpinned by factors such as: (a) the

proficiency of a lecturer; (b) the nature of the subject-matter; (c) the

vote of the class; and (d) factors such as the reasonable practicability

or pedagogic soundness. This in circumstances where 85% of the

English-speaking students who entered the SU between 1995 and

2015 were white. These facts, we submit, do not justify a contention

that the NLP is aimed at issues of equity and segregation.

18. We respectfully submit that on a consideration of all the factors which the

Court necessarily had to take into account in terms of the reasonably

practicable test, but did not, the outcome of the application would have been

different. This is compounded by the fact that the Court took into

consideration factors which ought not to have found any application by

30 | P a g e

reason of the fact that they are inconsistent with the facts of the matter – a

claim which is objectively verifiable.

WHETHER PUBLIC UNIVERSITIES HAVE OBLIGATIONS IN RELATION TO THE ADVANCEMENT OF ALL OFFICIAL LANGUAGES IN THE CONSTITUTION UNDER SECTION 6 OF THE CONSTITUTION?

19. The Court of first instance found:

19.1. Afrikaans is not an indigenous language as contemplated in section 6

(2) of the Constitution because it does not fall into the category of

‘historically diminished use and status of the indigenous

languages’.30

19.2. Even if Afrikaans qualifies to be referred to as an indigenous

language under section 6 (2), it is a general obligation that rests on

"the State", not a specific obligation on SU.31

19.3. In any event, if the obligation applies to SU in this context, it has

complied with it. SU has – over the years and in its NLP – taken

"practical and positive measures to elevate the status and advance

the use" of Afrikaans. It continues to invest heavily in Afrikaans

teaching, scholarship and research. It continues to employ Afrikaans

30 At par 107. 31 At par 108.

31 | P a g e

as one of two official languages in its events and communications.32

20. We submit that section 6 of the Constitution is relevant to the subject

challenge in two respects:

20.1. First, in respect of whether it imposes a self-standing obligation on

universities such as SU. Pursuant to the Directions of this Court, we

address this issue in more detail hereunder.

20.2. Second, irrespective of whether section 6 of the Constitution

imposes a self-standing obligation on individual universities, it is

relevant to the assessment of language policies of universities and

the interpretation of section 29 of the Constitution. For the purposes

of these written submissions and pursuant to the Directions of this

Court, we do not address this issue any further at this stage. The

point is however best illustrated by the following: If there were to

be no Afrikaans-speaking: (a) early childhood facilities; (b) junior

schools; (c) secondary schools; or (d) universities, particularly in

circumstances where there were, historically, a multitude of such

facilities – can it be said that South Africa recognises Afrikaans as

an official language. We submit not.

21. Turning now to the question of whether section 6 of the Constitution

32 At par 109. (The Applicants have shown this to be not so.)

32 | P a g e

imposes a self-standing obligation, we draw attention to the following:

21.1. First, section 6 of the Constitution, and in particular section 6(4)

thereof, provides that all official languages must enjoy parity of

esteem and must be treated equitably.33

21.2. Second, section 6 also recognises that insofar as the choice of

language by national or provincial government goes, the following

must be taken into account: (a) usage; (b) practicality; (c) expense;

(d) regional circumstances; and (e) the balance of the needs and

preferences of the population.

21.3. Third, in Ex parte Gauteng Provincial Legislature, which, as we

have pointed out, concerned the predecessor to section 29 of the

33 Section 6 of the Constitution provides as follows: "6 Languages (1) The official languages of the Republic are Sepedi, Sesotho, Setswana, siSwati, Tshivenda, Xitsonga, Afrikaans, English, isiNdebele, isiXhosa and isiZulu. (2) Recognising the historically diminished use and status of the indigenous languages of our people, the state must take practical and positive measures to elevate the status and advance the use of these languages. (3) (a) The national government and provincial governments may use any particular official languages for the purposes of government, taking into account usage, practicality, expense, regional circumstances and the balance of the needs and preferences of the population as a whole or in the province concerned; but the national government and each provincial government must use at least two official languages. (b) Municipalities must take into account the language usage and preferences of their residents. (4) The national government and provincial governments, by legislative and other measures, must regulate and monitor their use of official languages. Without detracting from the provisions of subsection (2), all official languages must enjoy parity of esteem and must be treated equitably. (5) A Pan South African Language Board established by national legislation must- (a) promote, and create conditions for, the development and use of- (i) all official languages; …." (Our emphasis.)

33 | P a g e

Constitution,34 this Court observed:

21.3.1. That the Constitution provides that every person shall

have the right to establish educational institutions.

Linguistically and grammatically, it provides a

defensive right to a person who seeks to establish such

educational institutions and it protects that right from

invasion by the State, without conferring on the State an

obligation to establish such educational institutions.35

21.3.2. The object of paragraph (c) is to make clear that while

every person has a right to basic education through

instruction in the language of his or her choice, those

persons who want more than that and wish to have

educational institutions based on a special culture,

language or religion which is common, have the

freedom to set up such institutions based on that

commonality, unless it is not practicable. Thus

interpreted, section 32(c) is neither superfluous nor

34 Section 32 of the Interim Constitution provided: "Education Every person shall have the right - (a) to basic education and to equal access to educational institutions; (b) to instruction in the language of his or her choice where this is reasonably practicable; and (c) to establish, where practicable, educational institutions based on a common culture, language or religion, provided that there shall be no discrimination on the ground of race." 35 At par 7.

34 | P a g e

tautologous; it preserves an important freedom.36

21.3.3. Section 32(b), recognising the diversity of languages in

our country, again creates a positive right for every

person to instruction in the language of his or her

choice, where this is reasonably practicable, not merely

a negative right to prevent any obstruction if such

person seeks instruction in the language of his or her

choice. Section 32(c), by contrast, guarantees a freedom

- a freedom to establish educational institutions based

on a common culture, language or religion. It is that

freedom which is protected by section 32(c). A person

can invoke the protection of the Court where that

freedom is threatened, but the language of section 32(c)

does not support a claim that such educational

institutions, based on a commonality of culture,

language or religion, must be established by the State,

or a claim that any person is entitled to demand such

establishment, notwithstanding the fact that his or her

right to basic education and to instruction in the

language of his or her choice is, where practicable,

36 At par 8.

35 | P a g e

otherwise being satisfied by the State.37

21.4. Finally, in Harrielall v University of KwaZulu-Natal

(CCT100/17) [2017] ZACC 38; 2018 (1) BCLR 12 (CC) (31

October 2017) at par 15, this Court held that the university is an

organ of state. (Indeed, this is consistent with the definition of an

organ of state in section 239 of the Constitution.)

22. We accept that Afrikaans is not an indigenous language as contemplated by

section 6(2) of the Constitution; the reason for this is most plainly apparent

from the dictum of Moseneke DJP as he then was in Ermelo where he

referred to certain languages that "languished in obscurity and under-

development". This notwithstanding, we submit that section 6(4) of the

Constitution places an obligation on, inter alia, national government to

regulate and monitor the use of all official languages, part of which is to

ensure that all official languages enjoy parity of esteem and are treated

equitably.

23. We submit that the ongoing annihilation of Afrikaans as a language of

instruction does not accord with the positive obligation imposed on national

government by section 6(4) of the Constitution.

24. For the sake of completeness we should mention that it would certainly also

37 At par 9.

36 | P a g e

not accord with the national Language Policy for Higher Education nor with,

more particularly, the draft Revised Language Policy for Higher Education,

2017, which was published for comment in Government Gazette No. 41463

of 23 February 2018.

25. Finally, we point out the obvious, viz. that section 6 of the Constitution is a

"founding provision".

WHAT IMPLICATIONS THIS COURT’S DECISION IN AFRIFORUM HAVE ON THE QUESTIONS RAISED IN THIS APPLICATION

26. AfriForum is readily distinguishable from this case in a number of

fundamental respects.

27. In the AfriForum matter:

27.1. The legal dispute concerned a decision by the University of the Free

State (UFS) to adopt a new language policy in March 2016. The new

policy replaced Afrikaans and English as instruments of parallel

medium of instruction with English as the primary medium.

27.2. At the core of that dispute was the contention that the "unintended

consequence" of the parallel-medium policy segregated the lecture

rooms along racial lines; it also generated racial tensions and

complaints from both staff and students. This does not obtain in

37 | P a g e

casu.

27.3. A research report had found that the parallel-medium policy was

entrenching racial separation and impeding racial integration. This

does not obtain in casu.

27.4. The underlying complaint in AfriForum was articulated in the

following terms by the SCA: In 2003 UFS adopted a dual-medium

language policy. There were no resource constraints (cost, human

resources and infrastructure) to continuing with the policy. Section

29(2) therefore required UFS to continue with the 2003 policy

because it was "reasonably practicable" to do so. When the problem

of the racial segregation arose, UFS was not entitled to abandon the

2003 policy only because of this problem. It had to consider all

"reasonable educational alternatives" before departing from the

2003 policy. This assessment involved taking the listed criteria of

equity, practicability and historical redress into account. A proper

consideration of these criteria would have involved balancing the

relevant constitutional considerations and standards, and would not

have led to the 2003 policy being abandoned solely to promote racial

integration. In other words, UFS ought to have employed other

means, without limiting the right of Afrikaans-language-speakers to

38 | P a g e

their language of choice, to solve this problem.38 In casu the Court a

quo did not, as we have seen, perform this exercise.

28. We turn to the present matter:

28.1. First, the Applicants accept that in the determination of reasonable

practicability, there is a two-fold test, viz: (a) a consideration of

constitutional norms, including equity, redress, desegregation and

non-racialism; and (b) resource constraints (cost, human resources

and infrastructure). Also of relevance to the context specific

analysis, is, we submit, the impact of the NLP on the extant rights of

the Afrikaans speaking community which fall to be considered with

due regard to: (i) the demographics of the Afrikaans-speaking

community; (ii) the fact that there is presently one campus of one

university meeting the needs of the entire Afrikaans community; and

(iii) the systematic obliteration of Afrikaans as a medium of

instruction at universities leads to the inevitable demise of the

language.

28.2. Second, the adoption of the NLP did not come about as a result of a

complaint or a fear of segregation and impediments of access and in

this respect this matter is vastly distinguishable from AfriForum.

38 University of The Free State v Afriforum and Another 2017 (4) SA 283 (SCA) at par 23.

39 | P a g e

28.3. Third, and in any event, if there were a complaint or a fear of

segregation and impediments to access, which is not the case, the

NLP does not address this given that the determination of language

is underpinned by factors such as: (a) the proficiency of a lecturer;

(b) the nature of the subject-matter; (c) the vote of the class; and (d)

factors such as the reasonable practicability or pedagogic soundness.

Simply put, these considerations do not respond to the complaints of

equity and/or segregation.

28.4. Fourth, the statistics differ vastly: As SU shows, 85% of the English-

speaking students who entered the SU between 1995 and 2015 were

white. Accordingly, we submit, the NLP is aimed at addressing the

needs of English speaking white students as opposed to students of

colour; this does not meet the objectives of racial equity or

integration. Viewed as such, the NLP is a response to affording

priority to the needs of English-speaking white students, at the

expense of Afrikaans-speaking students who are both white and

students of colour.

28.5. We also refer to what we have said hereinabove regarding the

demographics of the SU's main feeder area which differ dramatically

from those of the UFS (coupled with the close proximity of three

other universities which provide tuition exclusively in English) – a

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university which, we should point out, is situated close to the NWU

of which the Potchefstroom campus language policy requires tuition

in both Afrikaans and English.

IS BIOWATCH APPLICABLE IN THIS MATTER AND, IF SO, IS THE COSTS ORDER GRANTED BY THE HIGH COURT IN ACCORDANCE WITH BIOWATCH?

29. The principle enunciated by this Court in Biowatch, has now become firmly

entrenched in the field of constitutional law.

30. In Biowatch, this Court substantially adapted the general approach to costs

orders; it held that the general rule is not to award costs against unsuccessful

litigants when they are litigating against state parties and the matter is, as

here, of genuine constitutional import.39

31. In Biowatch and in subsequent judgments40, this Court emphasised that

judicial officers should caution themselves against discouraging those trying

to vindicate their constitutional rights by the risk of adverse costs orders if

they lose on the merits; particularly, those seeking to ventilate important

constitutional principles should not be discouraged by the risk of having to

pay the costs of their state adversaries merely because the court holds

39 At par 24. 40 For example: Helen Suzman Foundation v President of the Republic of South Africa and Others 2015 (2) SA 1 (CC) at par 36-38.

41 | P a g e

adversely to them.41

32. However, as recognised by this Court in Lawyers for Human Rights v

Minister in the Presidency and Others 2017 (1) SA 645 (CC) at par 18,

the Biowatch principle does not mean risk-free constitutional litigation. This

Court reaffirmed the principle as stated in Biowatch, viz that if the

constitutional grounds of attack are frivolous or vexatious, or if the litigant

has acted from improper motives or there are other circumstances that make

it in the interests of justice to order costs, a costs order may be awarded.

This Court further observed that the High Court controls its process and that

it does so with a measure of flexibility. So a court must consider the

"character of the litigation and [the litigant's] conduct in pursuit of it", even

where the litigant seeks to assert constitutional rights.42

33. In the present instance, the Court of first instance made no finding that any

of the constitutional grounds relied on by the Applicants falls within the

exception to Biowatch. For that reason alone, we submit that it was not

open to the Court of first instance to have granted an adverse costs order

against the Applicants.

34. Furthermore, as we have shown, the Court of first instance seemed to have

been oblivious to the fact that the Biowatch principle was pertinently

41 Lawyers for Human Rights v Minister in the Presidency and Others 2017 (1) SA 645 (CC) at par 17. 42 At par 18.

42 | P a g e

invoked before it by the Applicants.43

35. In any event, we submit that there are no grounds for a costs order to be

granted against the Applicants. In particular:

35.1. First, the Court of first instance recognised that section 29(2) of the

Constitution is at the centre of the Applicants’ attack.44

35.2. Second, despite a very similar challenge in AfriForum, in the latter

case, this Court held that there was no reason to interfere with the

costs order granted by the SCA, viz, that there would be no order as

to costs.45 Indeed, according to the judgment of the SCA, the

Biowatch principle applied in the case of AfriForum (as the

Applicant) as its real purpose was to vindicate the language rights of

Afrikaans-speaking students.46 That reasoning, we submit is no

different to the underlying imperatives of the subject application.

35.3. Third, more recently in Harrielall v University of KwaZulu-Natal

(CCT100/17) [2017] ZACC 38; 2018 (1) BCLR 12 (CC) (31

October 2017) this Court held as follows (which findings we

submit, find direct application to the present challenge):

43 Record: page 97; par 156. 44 Judgment; par 62 and 72. 45 At par 80. 46 University of The Free State v Afriforum and Another 2017 (4) SA 283 (SCA) at par 45.

43 | P a g e

35.3.1. Absent the exceptions identified in Lawyers for

Human Rights, the Biowatch rule must be followed.47

35.3.2. It cannot be gainsaid that the University is an organ of

state. It is a public institution through which the State

discharges its constitutional obligation to make access

to further education realisable.48

35.3.3. The SCA was not correct that the Biowatch principle

did not apply because "no constitutional issues were

implicated"; and that the case was simply a review of an

administrative decision of the university.49

35.3.4. The constitutional issues raised by the case are two-

fold. First, a review of administrative action under

PAJA constitutes a constitutional issue.50 Second, in

applying for admission the applicant sought to have

access to further education for training that would

qualify her to practise medicine; section 29 of the

Constitution was thereby implicated.51

47 At par 14. 48 At par 15. 49 At par 16. 50 At par 17. 51 At par 19.

44 | P a g e

36. For all of these reasons, we submit that the Court of first instance erred in

granting an adverse costs order against the Applicants.

37. We also submit that if this Court is with us on this aspect of the matter, the

Applicants would have been substantially successful and the Respondents

should be ordered to pay the costs of the application for leave to appeal and

the appeal, also because they declined a proposal by the Respondents that

the Court of first instance be approached in terms of rule 42(1)(b) on the

basis of a patent error, as they declined a proposal that they should abandon

the costs order.

CONCLUSION

38. For all of the reasons addressed in these submissions, we submit that we

have demonstrated that: (a) there are grounds for leave to appeal to be

granted and that such leave ought to be granted; and (b) the appeal ought to

succeed.

JAN HEUNIS SC KARRISHA PILLAY Counsel for the Applicants 22 March 2018 Chambers, Cape Town

45 | P a g e

IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA (HELD AT BRAAMFONTEIN)

CCT Case No: 311/2017 In the matter between:

GELYKE KANSE First Applicant

DANIËL JOHANNES ROSSOUW Second Applicant

THE PRESIDENT OF THE CONVOCATION OF THE UNIVERSITY OF STELLENBOSCH Third Applicant

BERNARDUS LAMBERTUS PIETERS Fourth Applicant

MORTIMER BESTER Fifth Applicant

JAKOBUS PETRUS LE ROUX Sixth Applicant

FRANCOIS HENNING Seventh Applicant

ASHWIN MALOY Eighth Applicant

RODERICK EMILE LEONARD Ninth Applicant and

THE CHAIRPERSON OF THE SENATE OF THE UNIVERSITY OF STELLENBOSCH First Respondent

THE CHAIRPERSON OF THE COUNCIL OF THE UNIVERSITY OF STELLENBOSCH Second Respondent

THE UNIVERSITY OF STELLENBOSCH Third Respondent

RESPONDENTS’ WRITTEN SUBMISSIONS 2

I INTRODUCTION

1. These written submissions are filed in response to the directions issued by the

Chief Justice on 1 March 2018 (the Directions). The Chief Justice directed

the parties to address five issues:

1.1. Question 1: whether the test of “reasonably practicable” and that of

“appropriate justification” referred to in the High Court judgment are

one and the same or are two separate tests.

1.2. Question 2: whether, practically, the application of either the

“reasonably practicable” test or the “appropriate justification” test would

make any difference to the outcome in this matter.

1.3. Question 3: whether public universities have obligations in relation to

the advancement of all official languages in the Constitution under

section 6 of the Constitution.

1.4. Question 4: what implications this Court’s decision in AfriForum and

Another v University of the Free State 2018 (2) SA 185 (CC)

(“Afriforum CC”) have on the questions raised in this application.

1.5. Question 5: whether, in regard to costs, Biowatch Trust v Registrar

Genetic Resources and Others 2009 (6) SA 232 (CC) (“Biowatch”) is

applicable in this matter and, if so, whether the costs order granted by

the High Court is in accordance with Biowatch. 3

2. In short, the Respondents’ answers to these questions are as follows:

2.1. Question 1: the “reasonably practicable” test and the “appropriate

justification” test are the same and will therefore lead to the same

outcome.

2.2. Question 2: even if the tests are different, the result of the application

of the two tests to the facts in this case is the same – the application

should be dismissed.

2.3. Question 3: universities do have an obligation with regard to

indigenous official languages in terms of s 6(2) of the Constitution.

That obligation does not apply to English or Afrikaans. In addition, in

the context of higher education the second sentence of s 6(4) reiterates

the obligations imposed by s 29(2) of the Constitution.

2.4. Question 4: the judgment of the majority of this Court in Afriforum CC

confirmed the core substantive findings of the SCA in University of The

Free State v Afriforum and Another 2017 (4) SA 283 (SCA) (“Afriforum

SCA”) and disposes of the Applicants’ attacks in the present

application.

2.5. Question 5: Biowatch was applicable to this matter, and the High Court

erred in not applying it. SU has therefore abandoned the order of costs

in its favour, except with regard to the various interlocutory applications

which constituted or arose from frivolous, vexatious or manifestly

inappropriate steps taken by the Applicants in the litigation.

3. The remainder of these submissions considers each question in turn. 4

4. We confine ourselves to the questions posed by the Chief Justice. We do not

seek to argue the merits of the application. In particular we do not respond to

arguments of fact and law made by the Applicants that are not relevant to the

questions asked. The Respondents submit that the High Court correctly

determined all the issues of fact and law, save to the extent set out below.

II REASONABLY PRACTICABLE vs APPROPRIATE JUSTIFICATION

5. The Court’s first two questions relate to the difference between the test for

whether tuition in the language of choice is “reasonably practicable”, and

whether there is an “appropriate justification” for altering existing access.

6. SU submits that there is no meaningful difference between the two tests,

either in theory, or in application. We set out that argument under the

following headings:

 The genesis of the two tests;

 The tests are identical;

 The tests produce the same outcome; and

 The Applicants’ arguments.

The genesis of the two tests

7. To understand why the High Court used these two linguistically different

standards, it is necessary to trace where they came from. 5

8. The test of what is “reasonably practicable” comes directly from s 29(2). The

right to own language tuition exists only when it is “reasonably practicable” to

provide that education. As the SCA held in Afriforum SCA1 – and the majority

of this Court confirmed in Afriforum CC2 – that test has two elements. The

provision of education in the official language of choice must be both

logistically practicable, and constitutionally practicable, considering the

context and purpose of s 29(2).

9. The term “appropriate justification” was used by this Court in Head of

Department, Mpumalanga Department of Education and Another v Hoërskool

Ermelo and Another 2010 (2) SA 415 (CC) (“Ermelo”) to describe the negative

element of the right in s 29(2). Moseneke DCJ wrote: “[W]hen a learner

already enjoys the benefit of being taught in an official language of choice the

state bears the negative duty not to take away or diminish the right without

appropriate justification.”3

10. Prior to the recent decisions concerning university language policies,

academics suggested that this language might impose a higher standard to

take away existing access to own-language education, than to demand new

access.4 That view is consistent with the traditional approach to negative and

1 Afriforum SCA at paras 25-27. 2 Afriforum CC at para 53. 3 Ermelo at para 53. 4 See e.g. see S Woolman & M Bishop “Education” in S Woolman & M Bishop (eds) Constitutional Law of South Africa (2ed) at ch 57 pp 36-42. 6

positive socio-economic rights obligations.5 It is also the basis on which the

parties pleaded the case.

11. However, as the recent decisions on university language policies have made

plain, that is not the correct legal position.

The tests are identical

12. In the present matter the High Court, rightly, pointed out that the SCA had

held that there was no difference between the two standards.6

13. After quoting the above passage from Ermelo, Cachalia JA explained the

point in this way in Afriforum SCA:

“this does not mean that once the right exists it continues, regardless of

whether the context and the circumstances have changed. A change in

circumstances may materially bear on the question whether it is

reasonably practicable to continue with a policy. What is required of a

decision-maker, when there is a change in circumstances, is to

demonstrate that it has good reason to change the policy. In other

words, it must act rationally and not arbitrarily.”7

14. The point was made even more clearly by Kollapen J in the Afriforum v

University of Pretoria matter:

5 Jaftha v Schoeman and Others, Van Rooyen v Stoltz and Others 2005 (2) SA 140 (CC) at paras 31- 4; Mazibuko and Others v City of Johannesburg and Others 2010 (4) SA 1 (CC) at para 47. 6 Gelyke Kanse and Others v Chairman of the Senate of the Stellenbosch University and Others 2018 (1) BCLR 25 (WCC) (“HC Judgment”) at para 85. 7 Afriforum SCA at para 27. 7

“I do not understand that there are two tests of application here, one

located in section 29(2) in so far as it relates to a request for education

in the language of choice, and the other that applies to instances where

the right is already enjoyed. While it is and must be so when the State

seeks to take the right away or diminish it, as is the case with the

introduction of the 2016 language policy, there has to be sufficient

justification. Such justification in this instance is to be found in the

successful activation of the test of reasonable practicability found in

Section 29(2). To suggest a different or a more onerous justification

would have the effect of impermissibly entrenching language rights.”8

15. The High Court then accepted the argument advanced by SU that, following

these two judgments, there was no difference in the constitutional standard

applicable to progressive and retrogressive measures under s 29(2). In

Dlodlo J’s words:

“The point though is that if SU can show that retaining the 2014 Policy

was not reasonably practicable, or that the impugned 2016 Policy is a

reasonable educational alternative, then it has acted constitutionally.

One need not shy away from mentioning that the fact that Afrikaans

speakers previously enjoyed greater rights does not entitle them to

retain those rights where it is not reasonable for them to do so.”9

8 Afriforum and Another v Chairperson of the Council of the University of Pretoria and Others [2017] 1 All SA 832 (GP) at para 54. 9 HC Judgment at para 86. 8

16. When the High Court concluded that “SU has indeed advanced an

‘appropriate justification’ for any possible reduction in Afrikaans tuition”,10 it

was holding that continuing with the 2014 Policy was not “reasonably

practicable” in terms of s 29(2).

17. This understanding of s 29(2) was subsequently confirmed by the majority this

Court in Afriforum CC. The Chief Justice wrote as follows:

“Reasonableness within the context of section 29(2) demands that

equity, practicability and the critical need to undo the damage caused

by racial discrimination, also be the intrinsic features of the decision-

making process relating to effective access to education in a language

of choice. For they are some of the decisive factors to which regard

must be had even where “a learner already enjoys the benefit of being

taught in an official language of choice”. Inequitable access and the

unintended entrenchment or fuelling of racial disharmony would thus

be the “appropriate justification” for taking away or diminishing the

already existing enjoyment of the right to be taught in one’s mother

tongue.”11

18. This Court, with respect correctly, equated “reasonably practicable” with

“appropriate justification”.

19. Accordingly, the answer to Question 1 appears clearly from the case law:

The two tests are one and the same.

10 HC Judgment at para 86. 11 Afriforum CC para 50 (footnotes omitted, our underlining). 9

The tests lead to the same result

20. Even if there is a difference between the two tests – despite the holdings to

the contrary by this Court and the SCA – both tests are satisfied in this case.

21. The 2016 Policy12 met the standard of “reasonably practicable” for the

reasons set out by the High Court, and advanced in more detail in response to

the fourth question below.

22. Although it is not clear what the higher standard would be that would be

imposed by the phrase “appropriate justification” if it is different from the

ordinary question of what is reasonably practicable, we assume, for the sake

of argument, that the “appropriate justification” test implies that: (a) the

reduction of access furthered another constitutional goal; and (b) reduced

existing access no more than strictly necessary.

23. We also assume, for the sake of argument, that the 2016 Policy reduces

access to Afrikaans. (The 2016 Policy does not do so. Its expressly stated

goal is to maintain and if possible increase the Afrikaans offering subject to

demand and resources. It creates an accountability mechanism to ensure

that Afrikaans teaching is not reduced significantly from pre-2016 Policy level

and is increased where possible. When Deans and the Vice-Rector: Learning

and Teaching develop the Language Implementation Plans, they must comply

with paragraph 7.4.1.2, which reads: “The Afrikaans offering is managed so

as to sustain access to SU for students who prefer to study in Afrikaans and

12 A copy of which accompanies these submissions. 10

to further develop Afrikaans as a language of tuition where reasonably

practicable.”)

24. But, even applying a higher test that incorporates the idea of necessity, the

2016 Policy would be an “appropriate justification” for any reduction in existing

language rights:

24.1. The reduction was necessary to ensure equitable access to higher

education consistent with ss 29(1)(b) and 9 of the Constitution.

24.2. The reduction will be limited to what is necessary to achieve the goal of

not excluding English-speaking, Black African students from SU.

25. Accordingly, the answer to Question 2 is: The application of either test

would make no difference to the outcome.

The Applicants’ arguments

26. The Applicants’ arguments in relation to the first and second questions can be

summarised as follows:

26.1. the two tests are different;

26.2. the High Court ought to have applied the reasonable practicability test;

26.3. if it had, it would have considered additional factors that it ignored;

26.4. the High Court erred in evaluating the evidence and arguments before

it; and 11

26.5. if it had properly evaluated the evidence, and considered the additional

factors, the High Court should have upheld the application.

27. We submit the Applicants’ submissions should be rejected.

28. First, as explained above, this Court, the SCA, the Pretoria High Court and

the Western Cape High Court have all concluded that the two tests are

identical. However, even if that were not the case, the context of Ermelo

suggests “appropriate justification” test sets a higher, not a lower, standard

than the “reasonably practicable” test. Logically, it could never be that the

High Court would have upheld the application if it had applied a lower

standard to assess the 2016 Policy.

29. Second, the High Court did apply the reasonable practicability test as set out

by the SCA and confirmed by this Court.

30. Third, the Applicants are wrong that the High Court did not consider relevant

factors:

30.1. The first supposedly relevant factor is that the increase in the use of

English was driven by the increase in the number of White, English-

speaking students, not an increase in the number of Black, English-

speaking students.13 It is difficult to understand why this is relevant. It

is undisputed that, in 2015: 63% of the 539 1st year students without

Grade 12 Afrikaans were Black African; 61% of all Black African 1st

year students did not have Grade 12 Afrikaans; and the majority of

13 Applicants’ Written Submissions at paras 15.1-15.6. 12

Black African students could not learn in Afrikaans.14 Whatever the

reason for the increasing use of English at SU over earlier decades,

the reality in 2016 was that the 2014 Policy disproportionately denied

Black African students access to education.

30.2. It is not correct, as the Applicants contend,15 that the High Court did not

consider the linguistic and racial demographics of the Western Cape. It

did.16 The High Court considered this issue because SU considered it

when deciding whether to adopt the 2016 Policy.17

30.3. The High Court also considered the fact that other universities had

stopped offering Afrikaans. It referred repeatedly to the judgments

concerning both UFS and the University of Pretoria. It also referred to

the fact that when making the 2016 Policy SU considered the changes

taking place at other universities during 2016, especially the changes

to the language policies of the UFS and the UP.18 But it accepted SU’s

contentions that it was not responsible for the provision of Afrikaans

tuition in the country as a whole, only at SU,19 and that the lawful and

constitutional decisions by UFS, UP and other universities to stop

teaching in Afrikaans do not impose a greater obligation on SU to

continue teaching in Afrikaans.20 The Applicants’ real concern – the

14 HC Judgment at paras 83-84. 15 Applicants’ Written Submissions at para 15.7. 16 HC Judgment at para 142. 17 HC Judgment at paras 119, 124, 129 and 142. 18 HC Judgment at para 141. 19 HC Judgment at paras 62-65. 20 HC Judgment at paras 88. 13

nationwide decline in Afrikaans tertiary education – should be

addressed by a challenge to the Ministerial Policy, not a challenge to

individual universities’ language policies that are consistent with that

policy.

31. Fourth, the remaining part of the Applicants’ argument21 is a detailed criticism

of the financial feasibility study conducted by SU, and of the impact of the

2016 Policy. We do not respond to those contentions because they fall

outside the scope of the Chief Justice’s directions. We note only that the

Applicants’ contentions are misdirected for the reasons given by the High

Court.22

III SECTION 6 OF THE CONSTITUTION

32. There are two parts of s 6 that impose obligations on universities with regard

to language: s 6(2), and s 6(4). We address each in turn.

Section 6(2)

33. Section 6(2) reads: “Recognising the historically diminished use and status of

the indigenous languages of our people, the state must take practical and

positive measures to elevate the status and advance the use of these

21 Applicants’ Written Submissions at para 17. 22 HC Judgment at paras 91-92. 14

languages.” SU accepts that it has an obligation under s 6(2) to promote

South Africa’s indigenous languages that have been historically diminished.

34. SU seeks to promote the three languages used most prominently in the

Western Cape: Afrikaans, isiXhosa and English. The 2016 Policy achieves

that end by teaching in Afrikaans and English, and increasingly in isiXhosa.

With regard to isiXhosa, the 2016 Policy states:

34.1. “IsiXhosa is used by one of the largest language communities in South

Africa. By means of specific initiatives, SU is contributing to the

advancement of isiXhosa as a developing academic language in

addition to expanding isiXhosa as an internal language of

communication.”23

34.2. Podcasts and vodcasts of lectures are made available in Afrikaans and

English and, “in some cases, isiXhosa”.24

34.3. Some aspects of internal institutional communication require the use of

isiXhosa in addition to Afrikaans and English.25

34.4. External communication is also conducted in isiXhosa where

reasonably practicable.26

34.5. The Policy expressly seeks to promote multilingualism. With regard to

isiXhosa, the Policy recognises that isiXhosa is “an emerging formal

23 2016 Policy at para 2. 24 2016 Policy at para 7.1.6. 25 2016 Policy at paras 7.2.1 and 7.2.4. 26 2016 Policy at para 7.3.1. 15

academic language” that must receive “attention for the purpose of its

incremental introduction into selected disciplinary domains.”27

34.6. The Policy commits to increasing the use of isiXhosa through a variety

of practical mechanisms.28

35. SU therefore accepts and embraces its obligation to promote the use of

isiXhosa in terms of s 6(2).

36. However, as the High Court correctly held, the corrective measures in s 6(2)

do not apply to English or Afrikaans. Neither are “indigenous languages”

within the meaning of s 6(2).29 Accordingly, while SU does not in any way

seek to shirk its obligations with regard to isiXhosa and other indigenous

languages, that issue was not directly relevant to the litigation before the High

Court.

37. The Applicants appear to accept this.30 In the Addendum to their Written

Submissions, the Applicants assert that Afrikaans is an indigenous language,

but acknowledge that it is not the type of indigenous language contemplated

in s 6(2).31 SU agrees. Accordingly, s 6(2) was simply not relevant to the

case brought by the Applicants in the High Court.

38. In addition, while SU does not seek to avoid its obligation under s 6(2), it is

important to recognise that the obligation in s 6(2) rests on “the state”. In

27 2016 Policy at para 7.5.4. 28 Ibid. 29 HC Judgment at para 107. 30 Applicants’ Written Submissions at paras 19.1 and 22. 31 Applicants’ Addendum at paras 4-8. 16

Women’s Legal Centre, this Court interpreted the obligation in s 7(2) of the

Constitution, which is also imposed on “the state”, as follows:

“‘the state’ includes all those actors who derive their authority from the

Constitution, including Parliament, government at national, provincial

and local levels, state institutions supporting constitutional democracy

created by Chapter 9 of the Constitution, “state departments and

administrations” as well as bodies created by statute.”32

39. Public universities fall within the final part of that broad definition of the state.

They therefore bear part of the obligation under s 6(2) to “take practical and

positive measures” to promote indigenous languages. Given universities’ role

in the development and transmission of knowledge, they must play a

particularly important part in performing the joint obligation under s 6(2).

When they exercise their function of providing higher education, and

conducting research, they must do so in a way that promotes the

development of indigenous languages.

40. Nonetheless, universities are only one part of the whole. The obligation

imposed by s 6(2) rests on the state as a collective. It is borne jointly by all

relevant organs of state. Universities, yes, but also the legislature, the

executive, the Pan-South African Language Board established under s 6(5),

and the Commission for the Promotion and Protection of the Rights of Cultural,

Religious and Linguistic Communities established by s 181(1)(c), bear important

responsibilities. Each element of the state must perform its part of the

32 Women’s Legal Trust v President of the Republic of South Africa and Others [2009] ZACC 20; 2009 (6) SA 94 (CC) at para 19. 17

collective obligation, taking into account its particular role, capacities, and its

place in the hierarchy of the state.

Section 6(4)

41. While SU accepts an obligation to promote indigenous languages under s

6(2), it does not understand s 6 to impose any special or additional obligations

on it with regard to the remaining two official languages – English and

Afrikaans:

41.1. With the exception of the second sentence of s 6(4), ss 6(3) and 6(4)

impose obligations on the national and provincial governments (and, in

one instance, municipalities), not universities.

41.2. The obligations in s 6(5) rest on the Pan South African Language

Board, not on universities.

42. The second sentence in s 6(4) does impact on universities. It reads: “Without

detracting from the provisions of subsection (2), all official languages must

enjoy parity of esteem and must be treated equitably.” In the context of

education, this provision cannot impose an obligation that is different from the

obligation imposed by s 29(2). Section 29(2) deals specifically with the right

to education in the official language of choice and establishes a nuanced

approach to determining when that right applies. It is entirely consistent with

the notion of parity of esteem and equitability embodied in s 6(4). 18

43. Importantly, the second sentence of s 6(4) was never the basis for the

Applicant’s claim in the High Court. SU was not called to meet an argument

that rested squarely on s 6(4), let alone an argument that suggested that the

obligations imposed on it by s 6(4) are different from those imposed by s

29(2).

44. The Applicants have now opportunistically sought to reframe their cause of

action based on s 6(4). They argue emotively that “the ongoing annihilation of

Afrikaans as a language of instruction does not accord with the positive

obligation imposed on national government by section 6(4) of the

Constitution.”33 Even if that were the case, it is irrelevant to this application,

which never relied on s 6(4) and was directed at a specific university’s policy,

not at the national government’s conduct.

45. The Applicants’ case has always been limited to an attack on SU’s adoption of

the 2016 Policy, not on perceived failures by the national government. Part of

SU’s defence has been that the Applicants’ concern about the fate of

Afrikaans across the country should be directed at the national government,

not at an individual university. That case may rest in part on s 6(4). But that

is a very different case from the one advanced in the papers before the High

Court, which does not cite national government, or attack the national

language policy for higher education made under s 3 of the Higher Education

Act 101 of 1997.

46. Accordingly, the answer to Question 3 is: Universities have obligations

under s 6(2) to promote the official languages other than English and

33 Applicants’ Written Submissions at para 23. 19

Afrikaans. That obligation is shared with the state as a whole. In the

context of higher education, the obligations under s 6(4) are identical to

those imposed by s 29(2).

IV THIS COURT’S DECISION IN AFRIFORUM

47. In our submission, this Court’s decision in Afriforum CC should dispose of the

present application for leave to appeal. The majority of this Court made three

key substantive findings:

47.1. The adoption of a university language policy is not administrative

action;34

47.2. UFS’s policy which (almost entirely) ended Afrikaans tuition in order to

ensure racial integration, ensure equitable access to education, and

address racial tensions, was consistent with s 29(2);35 and

47.3. UFS’s language policy was consistent with the Ministerial Policy.36

48. Each of these holdings necessarily disposes of the three primary legs of the

Applicants’ case.

49. With specific reference to the implications for the present matter of the second

and third of the holdings in Afriforum CC, we stress the following facts and

circumstances which led SU to adopt the 2016 Policy:

34 Afriforum CC at para 35. 35 Afriforum CC at paras 41-63. 36 Afriforum CC at paras 64-79. 20

49.1. It predecessors, the 2014 Policy and Plan, were intended to make it

easier for English-speaking students to obtain an education at SU.

49.2. However, during 2015 and the first half of 2016 it became clear that the

2014 Policy and Plan, although it was not their purpose, excluded

students who were proficient in English but not sufficiently proficient in

Afrikaans.

49.3. The majority of those who were excluded were Black African students.

More specifically, as a result of their poor Afrikaans, the majority of

Black African students: could not fully understand lectures presented

entirely or partially in Afrikaans; felt stigmatised by the real-time

interpretation SU had implemented, which was almost solely used for

translating the lectures they could not understand; and felt excluded

from other aspects of campus life, like residence meetings and official

SU events which took place in Afrikaans, without interpretation.

49.4. By contrast, nearly all Afrikaans-speaking students were sufficiently

proficient in English to understand SU’s academic content presented in

English. To require them to take certain lectures in English would not

impose a comparable burden on them. Also relevant in this regard is

the fact that for many years SU has prescribed textbooks in English,

with the result that its students have at least to be able to read and

understand English.

49.5. SU undertook a study of the cost of an immediate change to a full

parallel medium system, which indicated it would be an amount of

about R640 million in infrastructure and about R78 million per year for 21

additional personnel. That translated to an approximately 20%

increase in fees (up by about R8 100 from about R40 000 per year).

49.6. SU consequently decided to adopt a new language policy – the 2016

Policy – which would result in a 100% English offering, but would not

similarly increase the Afrikaans offering. Instead, it would manage the

sum total of the Afrikaans offering so as to maintain access for

students who choose to study in Afrikaans and to further develop

Afrikaans as a language of instruction where reasonably practicable.

(We return to aspects of these facts and circumstances briefly below.)

Administrative action

50. Much of the Applicants’ papers and argument in the High Court were devoted

to a wide range of procedural and administrative challenges to the manner in

which the 2016 Policy was adopted. Those challenges were mounted on the

assumption – shared by all the parties – that the decision to adopt the Policy

was administrative action and was therefore subject to the constraints of

reasonableness and procedural fairness.

51. This Court has conclusively determined that the assumption is incorrect. The

decision to adopt the 2016 Policy was not administrative action. Accordingly,

the Applicants’ administrative complaints fall at the first hurdle.

52. To the extent that the Applicants pursue those challenges as elements of

procedural and substantive rationality, the answer is the same as that given 22

by the Chief Justice in Electronic Media Network: “rationality is not some

supra-constitutional entity or principle that is uncontrollable and that respects

or knows no constitutional bounds. It is not a uniquely designed master key

that opens any and every door, any time, anyhow.”37 Those legality or

rationality-based claims have no prospects of success. That is particularly the

case given that the process followed by SU was at least comparable to (we

submit, better than) the process adopted by the UFS, which this Court

described as a “transparent, inclusive and robust consultative process.”38

Section 29(2)

53. As stated, in Afriforum CC this Court confirmed the SCA’s finding that UFS’

language policy was constitutionally sound.

54. Having regard to the facts and circumstances giving rise to the adoption by

SU of the 2016 Policy, outlined above, it must follow that if UFS’ policy was

consistent with s 29(2), that SU’s 2016 Policy was also constitutional. That is

so for two main reasons.

55. First, UFS almost completely ended tuition in Afrikaans. SU has not done so.

The 2016 Policy does not require a reduction in the extent of the Afrikaans

offering at SU. As the High Court held:

37 Electronic Media Network Limited and Others v e.tv (Pty) Limited and Others 2017 (9) BCLR 1108 (CC) at para 6. 38 Afriforum CC at para 57. 23

“It is doubtful that there will be any reduction in the Afrikaans offering

(to the level suggested on behalf of the applicants) compared to what

was offered under the 2014 Policy. Obviously, that will depend on how

faculties implement the policy. Arguably, it may be that the 2016 Policy

under discussion will lead to more parallel medium classes and more

simultaneous interpretation which will increase the total amount of

Afrikaans tuition. Even if the reduction becomes a reality, that cannot

be described as the intent of the Policy and will certainly not be an

inevitable consequence of implementing the Policy. It clearly will be a

direct consequence of the nature of student demand and the limits of

SU’s resources.”39

56. If the Applicants wish to challenge the implementation of the 2016 Policy, as

distinct from the adoption and content of the 2016 Policy (the focus of the

current litigation), they must do so by launching a proper challenge seeking

the correct relief and supported by the necessary evidence. That avenue

remains open to them. What they may not do is seek to convert a challenge

to the adoption and content of the 2016 Policy to a challenge to its

implementation through the back door of replying affidavits, and introducing

yet further new evidence on appeal.

57. Accordingly, there is simply no interference with the s 29(2) right of Afrikaans-

speaking students.

58. Second, the reasons that this Court found to justify the reduction in Afrikaans

tuition at UFS apply with even greater force in SU.

39 HC Judgment at para 61. 24

59. UFS acted for three inter-related reasons. Parallel medium tuition at UFS had

led to racial segregation – White students attended Afrikaans classes, and

Black students attended English classes. This led to inequitable quality of

teaching, as there were far more students in the English classes than the

Afrikaans classes. As the Court explained: “The challenge could however

arise when scarce resources are deployed to cater for a negligible number of

students, affording them close, personal and very advantageous attention

while other students are crowded into lecture rooms.”40 Lastly, this

segregation and inequitable access led to racial tensions. Combined, these

factors justified ending most Afrikaans tuition. As the Chief Justice held:

“effective access to the right to be instructed in an official language of

choice must be given effect to, but without undermining equitable

access, preserving exclusivity or perpetuating racial supremacy. It

would be unreasonable to wittingly or inadvertently allow some of our

people to have unimpeded access to education and success at the

expense of others as a direct consequence of a blind pursuit of the

enjoyment of the right to education in a language of choice. This, in

circumstances where all could properly be educated in one common

language.”41

60. The issue at SU is different. But it is even more constitutionally compelling.

61. Prior to the 2016 Policy, SU did not have pure parallel medium teaching, and

therefore did not have the problem of total racial segregation. It had partially

40 Afriforum CC at para 52. 41 Afriforum CC at para 49. 25

integrated classrooms because lectures were presented in single medium,

dual medium, and parallel medium. Accordingly, English and Afrikaans

students were not separated. While they would have some lectures

separately, other lectures would be held together. That approach avoided the

unintentional racial segregation that occurred in UFS.

62. But it led to another problem – unequal access to education.

63. The majority of Black African students at SU cannot understand Afrikaans. As

explained, under the 2014 Policy they were effectively prevented from

accessing education because they were forced to attend lectures that were

entirely or partially in Afrikaans. When Black African students attended

Afrikaans or dual medium lectures, the majority of them could not understand

all or part of the lecture. Afrikaans students, by contrast can – almost without

exception – understand English. When they attended English or dual medium

lectures, they could understand the lecture.

64. The result was that Black African students were denied access to higher

education at SU in a way that White Afrikaans students were not. That

situation was constitutionally untenable. It was a violation of the right of

access to higher education in s 29(1)(a) of the Constitution, and a denial of

the right not to be unfairly discriminated against in terms of s 9(3) of the

Constitution.

65. The 2016 Policy was a reasonable method to ensure equitable access for all

SU’s students without any necessary diminution of Afrikaans tuition. If it is

consistent with s 29(2) to all but end Afrikaans tuition for the reasons relied on

by UFS, it must be constitutional for SU to (at worst for Afrikaans) slightly 26

reduce the Afrikaans tuition to ensure Black African students have equitable

access to SU.

The Applicants’ arguments

66. The Applicants attempt to distinguish this Court’s decision in Afriforum CC on

three grounds.

67. First, the Applicants again seek to raise the issue regarding the alleged

“systemic obliteration of Afrikaans as a medium of instruction”.42 But that was

also the case before this Court when it considered the UFS matter. This

Court was aware of the decisions at SU and at the University of Pretoria.43

That is simply not a distinguishing factor.

68. Second, the Applicants correctly state that the 2016 Policy was not motivated

by a fear of segregation.44 Although part of the reason that SU decided not to

move entirely to parallel medium was financial, the other part of the reason

was that full parallel medium tuition would result in racial segregation and fail

to promote integration and multilingualism (an important element of SU’s

language policies, past and present).45

69. However, even if the risk of segregation was not part of the reason, that is not

a distinguishing factor. Part of the concern in Afriforum CC was not only

42 Applicants’ Written Submissions at para 28.1. 43 HC Judgment at para 121. 44 Applicants’ Written Submissions at para 28.2. 45 HC Judgment at paras 53, 72, 92 and 144. 27

segregation, but inequality of access on the basis of race. And that is

precisely the issue that motivated SU.

70. Finally, even if the motivation for SU’s decision was different from the

motivation for UFS’s decision, that is not the question. The question is

whether, applying the test for reasonable practicability laid down by this Court,

the 2016 Policy is constitutional. It is, for the reasons set out above.

71. Third, the Applicants correctly point out that there is a greater demand for

Afrikaans tuition at SU than there was at UFS.46 But that is why the 2016

Policy continues to require tuition in Afrikaans and that the Afrikaans offering

be managed so as to sustain access to SU for students who prefer to study in

Afrikaans, whereas UFS (with minor exceptions) ended Afrikaans tuition.

72. Accordingly, the answer to question 4 is: this Court’s judgment in Afriforum

CC disposes of the Applicants’ attacks in the present application.

V COSTS

73. The High Court did not consider Biowatch and did not apply Biowatch.

74. SU accepts that this is a constitutional case that triggered the Biowatch

principles applicable to litigation between private parties and organs of state.

75. That means that, if the application was dismissed, there should ordinarily

have been no order as to costs.47 However, “if an application is frivolous or

46 Applicants’ Written Submissions at para 28.4. 47 Biowatch at paras 22-23. 28

vexatious, or in any other way manifestly inappropriate, the applicant should

not expect that the worthiness of its cause will immunise it against an adverse

costs award.”48

76. While there are elements of the present application that were frivolous and

vexatious, SU accepts it cannot be said that the application as a whole

justified a departure from the ordinary Biowatch principle.

77. Therefore, SU has decided to abandon the bulk of the order of costs granted

by the High Court. A notice of abandonment will be filed with the High Court

in the week of 9 April 2018, and a copy will be provided to this Court.

78. However, SU will not abandon the costs order in relation to the costs it

incurred in dealing with:

78.1. The two striking out applications it brought;

78.2. Its application to file further evidence in response to the new case

made out in the replying affidavit; and

78.3. The Applicants’ application to file the further evidence of Mr Theron.

79. As stated in Biowatch the point of focus is “the character of the litigation and

[the] conduct in pursuit of it. This means paying due regard to whether it has

been undertaken to assert constitutional rights and whether there has been

impropriety in the manner in which the litigation has been undertaken.”49

justified a departure from the ordinary rule. The interlocutory applications

48 Biowatch at para 24. 49 Biowatch at para 20. 29

outlined in the preceding paragraph arose from conduct by the Applicants that

was indeed frivolous, vexatious and manifestly inappropriate.

80. In Lawyers for Human Rights, this Court held that litigation is vexatious if it is

“frivolous, improper, instituted without sufficient ground, to serve solely as an

annoyance to the defendant”; and a frivolous complaint “is one with no serious

purpose or value.”50 And litigation or conduct is manifestly inappropriate if it

“was so unreasonable or out of line that it constitutes an abuse of the process

of court.”51

81. The conduct of the Applicants with regard to the striking out applications and

the application to introduce further evidence met those standards.

82. SU therefore submits that it is unnecessary for this Court to alter the award of

costs granted by the High Court. SU will not be pursue the costs award

beyond what could have been a permissible approach for the High Court to

take in terms of Biowatch.

83. Therefore, the answer to Question 5 is: Biowatch was applicable and was,

incorrectly, not applied by the High Court. There should have been no

order as to costs, save with regard to the applications to strike out and

the applications to file further evidence. As SU has abandoned High

Court’s order as to costs in respect of everything other than those

applications, it is unnecessary for this court to interfere with the award

of costs.

50 Lawyers for Human Rights v Minister in the Presidency and Others 2017 (1) SA 645 (CC) at para 19. 51 Ibid at para 20. 30

V CONCLUSION

84. SU therefore submits the appropriate order remains to dismiss the application

for leave to appeal.

JEREMY MULLER SC

NICK DE JAGER

Counsel for the Respondents

Chambers, Cape Town

29 March 2018 IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA (HELD AT BRAAMFONTEIN)

CCT Case No: 311/17

In the matter between:

GELYKE KANSE and eight others Applicants

and

THE CHAIRPERSON OF THE SENATE OF THE UNIVERSITY OF STELLENBOSCH and two others Respondents

RESPONDENTS’ WRITTEN SUBMISSIONS

I INTRODUCTION

1. The Applicants attack the process leading to the adoption by the Senate and the

Council of Stellenbosch University (SU) of a new language policy in June 2016

(the 2016 Policy or the new Policy).1 They also attack the contents of the new

Policy. Although the new Policy also deals with the languages of internal

institutional communication and external communication, and with the

promotion of isiXhosa as a developing academic language, the Applicants’

focus is on the use of Afrikaans and English for teaching and learning at SU.

2. SU has not done what the University of the Free State and the University of

1 The best copy in the record of the 2016 Policy is DR131, Vol 11, p 1347. 2

Pretoria did, i.e. end Afrikaans tuition to avoid racial segregation. It remains

committed to teaching and researching in Afrikaans. It has found a way to

continue to teach in Afrikaans, while still being inclusive, integrated, and

multilingual.

3. This Court2 and the SCA3 upheld UFS’ language policy, and the High Court

upheld UP’s language policy.4

4. It is difficult to understand how SU’s language policy could violate the

constitutional language rights of Afrikaans speakers where UFS’ and UP’s

policies did not.

5. Despite this Court’s judgment in University of the Free State, and

notwithstanding SU’s strong and ongoing commitment to Afrikaans, the

Applicants claim that SU’s new Policy violates the s 29(2) right of Afrikaans

speakers to receive tertiary education in the official language of their choice. In

particular, they argue that the 2016 Policy reduced the amount of Afrikaans

teaching that occurred under the previous language policy (the 2014 Policy).

6. Many will be is sympathetic to the Applicants’ concerns about threats to the

continued vitality of Afrikaans. But the 2016 Policy is not one of those threats,

and it does not infringe or threaten the right in s 29(2).

7. There are four discrete reasons the 2016 Policy must survive the Applicants’

constitutional attack:

2 AfriForum and Another v University of the Free State 2018 (2) SA 185 (CC) (University of the Free State). 3 University of the Free State v Afriforum and Another 2017 (4) SA 283 (SCA) (University of the Free State SCA). 4 Afriforum and Another v Chairperson of the Council of the University of Pretoria and Others [2017] 1 All SA 832 (GP) (University of Pretoria). 3

7.1. First, the 2016 Policy does not reduce the extent of Afrikaans tuition

offered at SU under the 2014 Policy. It expressly commits to “sustain

access” for Afrikaans students. The 2016 Policy may even result in more

Afrikaans tuition than under the 2014 Policy.

7.2. Second, the reasons SU adopted the 2016 Policy are precisely the reasons

that animate s 29(2) – equity, redress, and practicability. The reality at

SU is that the majority of Black (African) students cannot learn in

Afrikaans, while Afrikaans-speaking students (White and Coloured) can

– almost without exception – learn in English. As a result, the 2014

Policy had the unintended effect of excluding the majority of Black

(African) students from accessing education at SU because they could not

understand content presented in Afrikaans. In contrast, White and

Coloured Afrikaans-speaking students can understand English content,

even if some preferred to receive it in Afrikaans. The only way to ensure

equitable access for Black (African) students is to require that all lectures

are presented at least in English.

7.3. Third, SU does not have limitless resources. It cannot afford to become a

full parallel-medium institution. Nor would it want to. Parallel-medium

results in linguistic segregation, and is inconsistent with SU’s

commitment to promoting multilingualism – including encouraging

English students to learn Afrikaans. The 2016 Policy is a precisely

designed system to give effect to SU’s multiple legitimate goals – 4

promoting Afrikaans, equitable access for all, and an integrated,

multilingual campus and student-body.

7.4. Fourth, to the extent that the implementation of the 2016 Policy might

result in less Afrikaans tuition, any reduction will be only as much as is

reasonably practicable in the circumstances. All first-year lectures are

offered in Afrikaans. In later years, if a faculty has the lecturers, the

classrooms, and the technology to do so, it must offer lectures in

Afrikaans.5 The Policy is crafted to fit exactly within s 29(2)’s limited

right to own-language education when it is “reasonably practicable”.

8. The remainder of these written submissions is structured as follows:

8.1. Part II makes three submissions that frame the argument that follows;

8.2. Part III explains why the 2016 Policy was adopted, and what it means;

8.3. Part IV shows that the 2016 Policy is consistent with s 29(2); and

8.4. Part V deals with the Applicants’ further grounds of review.

9. These written submissions do not deal with the wide range of other

constitutional and administrative-law-type arguments that the Applicants

advanced in the High Court or with the striking out applications. While the

Applicants expressly decline to abandon those arguments, they are not

addressed in any detail in the Applicants’ written submissions. SU endorses the

5 As set out below, the only exceptions are where there are educational reasons not to teach in Afrikaans, or the students unanimously agree, by secret ballot, to be taught only in English. 5

reasoning of the High Court in rejecting all the additional attacks.6

II FRAMING SUBMISSIONS

10. There are three issues that frame the determination of this appeal:

10.1. The national context within which this application should be decided, in

particular the national language policy for higher education;

10.2. The Applicants’ election to challenge the 2016 Policy, not its

implementation; and

10.3. The need for judicial deference to universities when they make complex,

polycentric executive decisions about their language policies.

The National Context – The Ministerial Policy

11. SU’s language policy is “subject to” the national language policy for higher

education (the Ministerial Policy).7 As this Court held in University of the Free

State, that means that “[w]hatever language policy a university determines in

terms of section 27(2) of the Act, must take cue from and be fundamentally in

sync with the ministerial policy.”8

12. The Applicants have not challenged the Ministerial Policy as a whole, or any of

its provisions, including those that:

6 With regard to unfair discrimination, see Gelyke Kanse and Others v Chairman of the Senate of the Stellenbosch University and Others 2018 (1) BCLR 25 (WCC) (HC Judgment) paras 102-105. With regard to s 29(1)(b), see HC Judgment para 106. With regard to s 6 of the Constitution, see HC Judgment paras 107-109 and the Respondents’ Original Written Submissions paras 32-46. With regard to the administrative-law type challenges, see HC Judgment paras 113-145 (in any event, as explained below, the making of the 2016 Policy was not administrative action). 7 DR126: Record Vol 11, pp 1296-1313, adopted by the Minister of Education under s 3 of the Higher Education Act 101 of 1997 in November 2002. See also s 27(2) of the Act. 8 University of the Free State (n 2) para 66. On this issue, this Court over-ruled the SCA which had held “the words ‘subject to’ in s 27(2), contextually understood, do not impose a legal obligation on any university to adopt the LPHE. The LPHE goes no further than to provide a policy guideline for the universities from which they are free to depart. The only obligation on universities that choose this course is to justify their departure.” University of the Free State SCA (n 3) para 39. 6

12.1. Reject the idea that SU and the (then) Potchefstroom University for

Christian Higher Education should be designated as “custodians” of

Afrikaans as an academic language. The Ministerial Policy reasons that

doing so could concentrate Afrikaans-speaking students in those

institutions and thereby set back “the transformation agendas of [the

other] institutions that have embraced parallel or dual medium

approaches as a means of promoting diversity”;9

12.2. Reject the idea of Afrikaans universities, as distinct from universities

which accept institutional responsibility for promoting Afrikaans as an

academic medium. The Ministerial Policy reasons that Afrikaans

universities would be contrary to the end goal of a transformed higher

education system which, as indicated in the National Plan for Higher

Education, envisages “the creation of higher education institutions whose

identity and cultural orientation is neither black nor white, English or

Afrikaans-speaking, but unabashedly and unashamedly South African”;10

and

12.3. State that to achieve the goal of sustaining Afrikaans as a medium of

academic expression and communication, there must be “a range of

strategies” including “the adoption of parallel and dual language

medium options, which would on the one hand cater for the needs of

Afrikaans language speakers and, on the other, ensure that language of

9 Ministerial Policy paras 15.4.1 and 15.4.2: Record Vol 11, pp 1308-9. 10 Ministerial Policy para 15.4.3: Record Vol 11, p 1309. 7

instruction is not a barrier to access and success.”11

13. The Applicants’ failure to challenge the State’s language policy is important.

SU’s obligation was to act consistently with the Ministerial Policy within its

own specific context, and for the benefit of its current and prospective staff and

students. SU is not responsible for the fate of Afrikaans throughout South

African higher education institutions - only at SU.

14. The broader issues about the fate of Afrikaans following the decisions of other

universities like UFS and UP cannot be dealt with by attacking SU. If the

resulting state of affairs is a constitutional violation, it must be dealt with

through an attack on the Ministerial Policy. That is the way to ensure that –

throughout South Africa – there is adequate provision for Afrikaans tertiary

education.12

No attack on Implementation

15. The Applicants launched the application in September 2016, before the 2016

Policy was implemented in January 2017. Their case is that the process

followed to adopt the Policy in June 2016 and the contents of the Policy itself

are irredeemably flawed. Although they could have waited for SU to

implement the Policy, they did not do so. That was their election.

16. When this Court evaluates the substantive attack on the constitutionality of the

Policy it must evaluate it as it has been written. It must accept that the Policy

11 Ministerial Policy para 15.4.4: Record Vol 11, p 1309. 12 University of the Free State SCA (n 3) paras 31-32. 8

will be implemented as planned. As this Court has clearly held: “What happens

in practice may … point to a flaw in the application of the law but it does not

establish a constitutional defect in it.”13 This means that the burden on the

Applicants is to show that the Policy is unconstitutional or unlawful on its face,

i.e. that because of its contents it cannot be constitutionally or lawfully

implemented. They cannot argue that the Policy is unlawful because it may not

be faithfully implemented.

17. In a belated attempt to reverse their election, the Applicants’ replying papers in

the High Court sought to put up evidence to establish that the implementation of

the 2016 Policy had led, in fact, to a reduction in the extent of Afrikaans tuition:

17.1. Those parts of the Applicants replying papers were struck out by the High

Court because they were irrelevant to the case they had chosen to bring.14

There is no basis to interfere with that decision. As this Court confirmed

in Pilane, applicants in motion proceedings “must stand or fall by their

founding papers” and “it is not permissible to make out new grounds for

the application in the replying affidavit”.15 The Applicants refer to the

struck out evidence in their written submissions without ever confronting

the reality that it is not relevant to their pleaded case, or seeking to

explain why the High Court’s striking-out relief should be reversed.16

13 S v Jordan and Others (Sex Workers Education and Advocacy Task Force and Others as Amici Curiae) 2002 (6) SA 642 (CC) para 19. 14 HC Judgment paras 160-168. 15 Pilane and Another v Pilane and Another 2013 (4) BCLR 431 (CC) para 49 and fn 40, quoting Director of Hospital Services v Mistry 1979 (1) SA 626 (AD) at 635H–636B. 16 See, for example, Applicants’ Written Submissions paras 9.12, 21.1 and 52. 9

17.2. Even if the Applicants’ implementation evidence were admitted, it shows

that SU has properly and faithfully implemented the 2016 Policy. SU put

up detailed evidence from the responsible lecturers, deans and heads of

department rebutting the Applicants’ claims and demonstrating that the

Policy has in fact been properly implemented.17 On the ordinary rule in

motion proceedings, SU’s version must stand.18

Deference to Executive Action

18. The decision of Council (with the concurrence of Senate) to adopt the 2016

Policy was not administrative action. It was a “policy decision”.19

19. That does not mean that the decision is immune from review; if it is irrational or

inconsistent “with the Constitution, applicable legislation or ministerial policy –

then that decision could be reviewed and set aside.”20

20. But it does mean that this Court should give some deference to the special

knowledge and experience of the Senate and the Council of SU. In University

of the Free State this point was made in the following terms: “The University

authorities’, lecturers’ and students’ intimate connection to or daily experience

on campus put them at a vantage point to understand better and speak with

respectable authority on the true state of affairs in their own ‘house’.”21

21. This reflects this Court’s general practice of being “careful not to attribute to

17 The various affidavits appear at Record Vol 36 p 4184 to Vol 37 p 4300. 18 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634E-635C; Snyders & Others v De Jager & Others 2017 (3) SA 545 (CC) at para [71]. 19 University of the Free State (n 2) para 35. 20 University of the Free State (n 2) para 37. 21 University of the Free State (n 2) para 59. See also University of the Free State SCA (n 3) para 19. 10

itself superior wisdom in relation to matters entrusted to other branches of

government”.22 That approach is particularly apposite where – as here – we are

dealing with a “decision that requires an equilibrium to be struck between a

range of competing interests or considerations and which is to be taken by a

person or institution with specific expertise in that area”.23

III THE POLICY

22. This Part first provides a brief history leading up to the adoption of the 2016

Policy. It then sets out the relevant content and effects of the 2016 Policy.

Brief History

23. Following the publication of the Ministerial Policy in November 2002,24 on

12 December 2002 SU adopted its first official language policy25 (and an

accompanying language plan26) (the 2002 Policy).27 Under the 2002 Policy,

Afrikaans was the default language of undergraduate learning and instruction.

English was allowed only after the reasons had been thoroughly considered.

Both Afrikaans and English were used in postgraduate learning and instruction.

24. On 22 November 2014 the SU Council adopted the 2014 Policy28 and made

consequential amendments to the language plan.29 The 2014 Policy marked a

substantial break from the 2002 position. Under the 2014 Policy:

22 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others 2004 (4) SA 490 (CC) para 48. 23 Ibid. 24 DR126: Record Vol 11, p 1296. 25 GMS5: Record Vol 20, p 2455. 26 GMS6: Record Vol 20, p 2463. 27 AA para 42: Record Vol 14, p 1883. 28 DR15 (2014 Policy): Record Vol 6, p 629. 29 DR16: Record Vol 6, p 636. 11

24.1. Afrikaans and English were SU’s languages of learning and teaching and

it was committed to purposefully extending the academic application of

both;30

24.2. Afrikaans and English would be employed in various usage

configurations,31 which were spelt out in more detail in the Plan;

24.3. Parallel-medium teaching and real-time educational interpreting were the

preferred options where practically feasible and affordable;32

24.4. Postgraduate learning would happen in both languages, with significant

utilisation of English.33

25. The Plan, as amended by the Council on 22 November 2014, gave substance to

the 2014 Policy. In particular, it created the following language-specifications

for undergraduate teaching in the following order of preference:34

25.1. For the first two years of undergraduate studies, normally:

25.1.1. parallel-medium teaching in separate groups for modules with

250 students or more (A+E); or

25.1.2. real-time interpreting from Afrikaans to English (A+i) or from

English to Afrikaans (E+i), depending on the language the

lecturer was more comfortable with.

25.2. For the third year of undergraduate studies and onwards:

30 2014 Policy para 7(a): Record Vol 6, p 633. 31 2014 Policy para 7(b): Record Vol 6, p 633. 32 2014 Policy para 7(c): Record Vol 6, p 633. 33 2014 Policy para 7(d): Record Vol 6, p 633. 34 DR16 (2014 Plan) ‘Kern van die Taalplan’: Record Vol 6, p 636; and 2014 Plan para 3: Record Vol 6, pp 638-41; and 2014 Plan Annexure A: Record Vol 6, p 647. 12

25.2.1. preferred options:

25.2.1.1. A+E;

25.2.1.2. A+i or E+i, depending on the language the lecturer

was more comfortable with; or

25.2.2. provided the relevant faculty could show: (a) the preferred options

were not feasible; and (b) the support offered for students who

were not sufficiently academically literate in Afrikaans or

English:

25.2.2.1. dual-medium teaching, i.e. the balanced use of

Afrikaans and English to one class group, with the

Afrikaans offering at least 50% (T-specification).

25.2.2.2. English only (E), if the lecturer was not proficient

enough in Afrikaans for the T-specification;

25.2.2.3. Afrikaans only (A), where the resources for

multilingual presentation were not yet available.

25.3. In addition, the 2014 Plan allowed for the use of the T, E or A-

specifications in the first two years of undergraduate study, provided that

students who lacked sufficient Afrikaans or English language skills

would be supported to benefit from the full content of lectures.

26. As is evident from a comparison between the 2002 Policy and Plan with the

2014 Policy and Plan, the latter were intended to make it easier for English-

speaking students to obtain an education at SU. 13

27. However, during 2015 and the first half of 2016 it became clear that the 2014

Policy and Plan unintentionally excluded students who were proficient in

English but not sufficiently proficient in Afrikaans. (In what follows we focus

on the relevant 2015 statistics because these were what informed the decision in

2016 to adopt the new Policy.)

28. First, while virtually all Afrikaans students could learn in English, a significant

portion of English students could not learn in Afrikaans. All but two of the

2015 1st year Afrikaans-speaking students were able to speak English at a

sufficient level that English teaching would not exclude them. Yet, 539 English

students had not taken Afrikaans to Grade-12 and would therefore have

difficulty learning in Afrikaans. That constituted 10.15% of all 1st year students

and 21% of English-speaking students.

29. The statistics were even more concerning when linguistic ability was considered

together with race:

29.1. 63% of the 539 1st year students without Grade 12 Afrikaans were Black

(African); and

29.2. 61% of all Black (African) 1st year students did not have Grade 12

Afrikaans.

30. In addition:

30.1. 82.7% of the Afrikaans-speaking students were White; and

30.2. Only 17% of the Afrikaans-speaking students were Coloured, while 62% 14

of Coloured students were English-Speaking.35

31. Put simply, the majority of Black (African) students could not learn effectively

in Afrikaans, and the majority of those who could not learn in Afrikaans were

Black (African).

32. Second, although the 2014 Policy and Plan adopted various language

specifications or options aimed at making SU more accessible to English-

speaking students, particularly Black (African) students, the implementation of

the 2014 Policy and Plan did not have that effect:

32.1. The majority of modules (54.7%) were offered in the T-option;36

32.2. 39.52% of student enrolments were for T-option modules;37

32.3. Nearly 18% of modules (and roughly 16% of modules) were offered in

A-option or A+i-option;38

32.4. 11.5% of modules were offered with simultaneous translation (either A+i,

or E+i).39

33. Third, there were significant complaints by both the Student Representative

Council and a campus organisation called Open Stellenbosch about how the T-

option was implemented and how simultaneous translation was provided:

33.1. Lecturers were unable or unwilling to lecture in both languages and

35 The statistics above are given in 27 November 2015 opinion by Advocates Breitenbach SC and Bishop (GS4) paras 26-36: Record Vol 8, pp 817-823. These were incorporated by reference into the Answering Affidavit. See AA para 282: Record Vol 15, p 2017. 36 AA para 281.1: Record Vol 15, p 2015. 37 Ibid. 38 Ibid. 39 Ibid. 15

sometimes ended up teaching almost entirely in one language.40

Obviously, this adaptation of the T-option was far more burdensome for

the English-speaking students who could not understand Afrikaans, than

for Afrikaans students who were sufficiently proficient in Afrikaans.

33.2. With regard to the simultaneous translation:

33.2.1. Students complained that the interpretation was often of poor

quality.41

33.2.2. It was primarily used to translate from Afrikaans to English.

There were ten times as many modules and enrolments in the A+i

specification as in the E+i specification. This was largely because

the Afrikaans speaking students do not, in fact, require

translation. Many modules that began as E+i would end up being

taught solely in English because the students would not make use

of the translation facilities.42

33.2.3. The result was that only those students who could not understand

Afrikaans (the majority of whom were Black (African)) had to

make use of the interpretation services. This imposed both a

barrier to access (interpretation to English is not as good as

lecturing in English) and had a stigmatising effect (many of the

students who used the interpretation services felt marginalised

40 AA para 281.2: Record Vol 15, p 2015-16. 41 AA para 281.3.1: Record Vol 15, p 2016. 42 AA para 281.3.2: Record Vol 15, pp 2016-7. 16

and excluded).43

34. To sum up: In 2015 and the first half of 2016 it became clear to SU that the

2014 Policy and Plan discriminated directly against English speakers, and

indirectly against Black (African) students. As regards the latter, it was easier

for White students to understand lectures than Black (African) students. This

created a serious burden for Black (African) students to access further education

that was not experienced by their white counterparts.

35. SU undertook a study of the cost of an immediate change to a full parallel-

medium system, which indicated it would be an amount of about R640 million

in infrastructure and about R78 million per year for additional personnel. That

translated to an approximately 20% increase in fees (up by about R8 100 from

about R40 000 per year).44 The conclusions in that study were placed before the

Council in the 27 November 2015 opinion for SU by Advocates Breitenbach SC

and Bishop,45 and in a subsequent memorandum and oral presentation to the

Council made by Advocate Breitenbach SC.46 The Chairperson of the Council

confirms that this was part of the reason for SU’s decision.47

36. SU consequently decided to embark on a process of drafting a new language

policy – the 2016 Policy. Following a four-month process, which included

public consultation, the 2016 Policy was adopted by the Senate on 9 June

43 Ibid. 44 AA paras 212 and 254.1: Record Vol 15, pp 1985 and 2003; AA para 631: Record Vol 17, p 2169; GMS57: Record Vol 27, p 3124. 45 GS4 para 85: Record Vol 8, p 840. 46 GMS44 para 7.12: Record Vol 26, p 3033. 47 AA para 212: Record Vol 15, p 1985. 17

201648 and by the Council on 22 June 2016.49 It requires a 100% English

offering in lectures, but will not similarly increase the Afrikaans offering.

Instead, it will manage the sum total of the Afrikaans offering so as to maintain

access for students who choose to study in Afrikaans and to further develop

Afrikaans as a language of instruction where reasonably practicable.50

The 2016 Policy

37. It is important to be clear about the effect of the 2016 Policy. The Applicants

argue that it significantly reduces the extent of Afrikaans tuition at SU. This is

wrong.

38. The 2016 Policy does not reduce the Afrikaans offering at SU. What is does do,

is prefer English in limited circumstances in order to advance SU’s multiple

goals, especially equal access, multilingualism and integration.

39. In what follows, we:

39.1. Set out the general principles that undergird the 2016 Policy;

39.2. Summarise how the Policy operates; and

39.3. Deal with the Applicants’ misrepresentations and criticisms of the Policy.

General Principles

40. The Policy expressly states that its purpose is to “give effect to section 29(2)

(language in education) and 29(1)(b) (access to higher education) read with

48 AA paras 183-4: Record Vol 15, p 1973. 49 AA para 186: Record Vol 15, p 1974. 50 AA paras 213-216: Record Vol 15, p 1986; AA para 252: Record Vol 15, p 2002; AA para 287, Record Vol 15, p 2020. 18

section 9 (equality and the prohibition against direct and indirect unfair

discrimination) of the Constitution.”51 It records that “[a]pplying and enhancing

the academic potential of Afrikaans is a means to empowering a large and

diverse community in South Africa.”52 It explains in detail how SU will

“advance the academic potential of Afrikaans”.53

41. Moreover, the 2016 Policy repeatedly notes SU’s commitment to

multilingualism “as a differentiating characteristic of SU”,54 and devotes an

entire section to how SU will promote multilingualism, and particularly the use

of Afrikaans and isiXhosa.55 SU is committed to both institutional and

individual multilingualism.

42. At the same time, one of the Policy’s core principles is that “[l]anguage should

promote access … and should not constitute a barrier to students or staff”,

particularly in the light of past racial discrimination.56

43. The operational parts of the 2016 Policy must be interpreted in light of these

goals, purposes and principles.

The Operation of the 2016 Policy

44. The 2016 Policy provides that Afrikaans and English are SU’s two languages of

learning and teaching.57 It then sets out a carefully calibrated mechanism to

51 2016 Policy para 5.1: Record Vol 11, p 1349. 52 2016 Policy para 2: Record Vol 11, pp 1348-9. 53 2016 Policy para 7.5.3: Record Vol 11, p 1355. 54 2016 Policy para 5.4: Record Vol 11, p1349. See also 2016 Policy para 2: Record Vol 11, p 1348. 55 2016 Policy para 7.5: Record Vol 11, p 1355. 56 2016 Policy para 6.1: Record Vol 11, p 1349. 57 2016 Policy para 7.1.1: Record Vol 11, p 1350. 19

determine when and how each language should be employed in order to balance

SU’s multiple goals.

45. At a general level, the 2016 Policy demands that as much Afrikaans teaching

occurs as is reasonably practicable, without excluding any student, and within

SU’s physical and human resources. To achieve that, undergraduate58 modules

are taught in one of three ways:

45.1. Parallel medium (separate lectures in Afrikaans and English);59

45.2. Dual medium (during each lecture all information is conveyed at least in

English, summaries or emphasis of content are also given in Afrikaans

and questions are answered in the language in which they are asked e.g.

questions in Afrikaans are answered in Afrikaans);60 and

45.3. In a limited range of circumstances (discussed below), in single medium

(solely in either Afrikaans or English).61

46. The 2016 Policy also makes use of simultaneous translation in order to ensure

equitable access for all students.

47. The 2016 Policy has a strong preference for parallel and dual-medium teaching.

The determination of how a module will be taught is governed as follows:

47.1. Parallel medium is employed whenever it is reasonably practicable and

pedagogically sound.62 The Applicants can have no complaint about that.

58 The focus in this litigation has always been on undergraduate teaching. In postgraduate learning and teaching any language may be used provided all the relevant students are sufficiently proficient in that language. 2016 Policy para 7.1.4: Record Vol 11, p 1351. 59 2016 Policy para 7.1.3: Record Vol 11, pp 1350-1. 60 2016 Policy para 7.1.4: Record Vol 11, p 1351. 61 2016 Policy para 7.1.5: Record Vol 11, pp 1351-2. 62 2016 Policy para 7.1.3: Record Vol 11, pp 1350-1. 20

47.2. Where parallel-medium lectures are not possible or appropriate,63 lectures

are taught in dual medium. In addition:

47.2.1. All first-year dual medium lectures are supported by simultaneous

translation; and

47.2.2. Lectures in later years will be translated if there is a request by the

faculty, the needs of students warrant it, and SU has the resources

to provide it.64

47.3. Single medium lectures are offered in only three limited circumstances:

(a) where the subject matter justifies it; (b) where the lecturer is only

proficient in one language; or (c) where the students unanimously vote by

secret ballot to be taught in a single language. Where the lecture is single

medium because of the lecturer’s proficiency:

47.3.1. SU will always provide simultaneous translation from Afrikaans

to English; and

47.3.2. It will provide simultaneous translation from English to

Afrikaans: (a) for all first-year modules; and (b) in second and

third year modules if there is a request by the faculty, the needs of

students warrant it, and SU has the resources to provide it.65

48. In addition to the general policy provisions governing learning and teaching set

out above, the following further policy provisions govern the use of Afrikaans

63 The Applicants are wrong that dual medium can be used even where it is reasonably practicable and pedagogically sound to have parallel medium lectures. Applicants’ Written Submissions para 9.21. Paragraph 7.1.3 of the 2016 Policy makes it clear that parallel medium is the preferred option. 64 2016 Policy para 7.1.4: Record Vol 11, p 1351. 65 2016 Policy para 7.1.5.2: Record Vol 11, p 1351. 21

at SU:

48.1. For all undergraduate modules, all SU module frameworks and study

guides are available in Afrikaans,66 compulsory reading material

(excluding published material) is also provided in Afrikaans where

reasonable practicable67 and students are supported in Afrikaans during a

combination of appropriate, facilitated learning opportunities

(e.g. consultations during office hours, or scheduled tutorials and

practicals).68

48.2. Question papers for tests, examinations and other summative assessments

in undergraduate modules are available in Afrikaans and students may

answer all assessments and submit all written work in Afrikaans.69

48.3. A variety of information and communication technology (ICT) enhanced

learning strategies, including podcasts and vodcasts of lectures, are made

available to students in Afrikaans for the further reinforcement of

concepts and for revision purposes.70

49. The Policy is designed to grant the greatest possible tuition in English and

Afrikaans, within SU’s available resources. As a result, there are only three

minor ways in which the Policy treats English differently from Afrikaans:

49.1. One, as explained, in dual-medium module lectures all information is

conveyed at least in English, whereas summaries or emphasis of content

66 2016 Policy para 7.1.7.3: Record Vol 11, p 1352. 67 2016 Policy para 7.1.7.2: Record Vol 11, p 1352. 68 2016 Policy paras 7.1.3.2, 7.1.4.2 and 7.1.5.2(b): Record Vol 11, pp 1351. 69 2016 Policy para 7.1.8: Record Vol 11, p 1352. 70 2016 Policy para 7.1.6: Record Vol 11, p 1352. 22

are also given in Afrikaans and questions in Afrikaans are answered in

Afrikaans.71 To ameliorate any adverse impact of this on Afrikaans-

speaking students, simultaneous translation is made available in all first-

year dual medium modules, and in later years on request, considering

student needs and available resources.

49.2. Two, for undergraduate modules where the assigned lecturer is proficient

to teach only in Afrikaans, SU will always make simultaneous

interpreting available in English during all years of undergraduate study.

The same position holds for first-year modules where the assigned

lecturer is proficient to teach only in English; SU will always make

simultaneous interpreting available in Afrikaans. It is only during the

second and subsequent years of study that there is a distinction. In those

instances, simultaneous interpreting from English to Afrikaans will only

be made available upon request by a faculty, if the needs of the students

warrant the service, and SU has the resources to provide it.72

49.3. Three, whereas all compulsory reading material is provided in English

(except where the module is about another language),73 there are two

limitations on the provision of compulsory material in Afrikaans:

49.3.1. Material which is not published in Afrikaans need not be made

available in Afrikaans; and

71 2016 Policy para 7.1.4.1: Record Vol 11, p 1351. 72 2016 Policy paras 7.1.4.3 and 7.1.5.2(a): Record Vol 11, p 1351. 73 2016 Policy para 7.1.7.1: Record Vol 11, p 1352. 23

49.3.2. Non-published compulsory material is made available in

Afrikaans where reasonably practicable.74

50. In all other ways, English and Afrikaans are treated identically.

51. While English enjoys some preference, the adverse impact on Afrikaans

speakers is very limited. That is apparent from four factors.

52. First, in the first year of study, there is no difference at all. All modules that are

not offered in parallel medium, must have simultaneous translation. This

bridging mechanism is designed to deal with the gap between the level of

literacy obtained in high school, and the level required for tertiary studies.

53. Second, the limitations on Afrikaans teaching are all linked directly to what is

reasonably practicable. Whether SU will offer a module in parallel medium,

and whether it will offer simultaneous translation in dual-medium or English

lectures in later years of study is expressly made subject to what is “reasonably

practicable”, or to the needs of students and SU’s resources. As we argue

below, Afrikaans students have no right to demand education beyond what it is

reasonably practicable for SU to provide.

54. Third, the slight preference only applies to lectures and, to a limited degree,

teaching materials. All the other learning opportunities – tutorials, practicals,

consulting hours, podcasts and vodcasts – are available in both English and

Afrikaans. For pedagogical reasons, SU (like other universities across the

world) intends to move away from the lecture being the sole focus of learning

74 2016 Policy para 7.1.7.2: Record Vol 11, p 1352. 24

and teaching. While lectures will remain important, these other facilitated

learning opportunities will become increasingly central to the learning

process.75 And those will be equally available in English and Afrikaans and,

increasingly, in isiXhosa.

55. Fourth, the Policy creates an accountability mechanism to ensure that Afrikaans

teaching is not reduced significantly from pre-2016 Policy level, and is

increased where possible. Each year the deans of the faculties and the Vice-

Rector: Learning and Teaching must develop Language Implementation Plans.

When doing so they must comply with paragraph 7.4.1.2 of the new Policy,

which requires that they ensure that “[t]he Afrikaans offering is managed so as

to sustain access to SU for students who prefer to study in Afrikaans and to

further develop Afrikaans as a language of tuition where reasonably

practicable.”76 The Senate must approve all language plans, and can send a

plan back for reconsideration if it fails to meet these requirements.77 The clear

import of paragraph 7.4.1.2 is that: (a) the Afrikaans offering cannot be reduced

materially as that would not “sustain access” for Afrikaans students; and (b) the

Afrikaans offering should be increased to the extent that is logistically and

financially practicable.78

56. It is therefore doubtful that there will be any reduction in the Afrikaans offering

compared to what was offered under the 2014 Policy. That will depend on how

75 AA para 293.2: Record Vol 16, p 2029. 76 2016 Policy para 7.4.1.2: Record Vol 11, p 1354. See generally AA para 722, Vol 17, p 2206 and para 728: Record Vol 17, pp 2208-9. 77 2016 Policy para 7.4.3: Record Vol 11, p 1354. 78 AA para 293.3: Record Vol 16, pp 2029-30. 25

faculties implement the policy, a question which is outside the scope of this

case. Indeed, it may be that, over time, the 2016 Policy will lead to more

parallel-medium lectures, and more simultaneous interpretation, which together

will increase the total amount of Afrikaans tuition.

57. Even if there is a reduction, that is not the intent of the Policy, and will not be

an inevitable consequence of implementing the Policy. It will be a consequence

of students’ needs for e.g. English to Afrikaans simultaneous translation in the

second and further years of study and of the limits of SU’s resources.

The Applicants’ Misconceived Criticisms

58. The Applicants misconstrue the purpose and effect of the 2016 Policy. Their

criticisms of the policy are based on five main misconceptions.

59. First, the Applicants repeatedly argue that the language of instruction is “in the

first instance” determined by the proficiency of the lecturer to teach in English

or Afrikaans.79 They argue that because 79% of lecturers are proficient to teach

in Afrikaans, while 99% can teach in English, this will result in the reduction of

Afrikaans. This argument fails on multiple levels:

59.1. In the first year of study, a particular lecturer’s language proficiency is

irrelevant – lectures are always available in English and Afrikaans (either

through parallel medium or through simultaneous translation).

59.2. In later years, the language proficiency of the lecturer is only one of the

79 Applicants’ Written Submissions para 9.1. See also para 37. 26

factors that determines the language of instruction. Even if a lecturer is

only proficient in English, the module may be offered in parallel-medium,

or with simultaneous translation. In either case, it will be fully accessible

to Afrikaans students.

59.3. SU cannot avoid the constraints imposed by the language proficiency of

its lecturers. The Applicants have not challenged the decision to employ

lecturers who are not bilingual. It would be difficult for SU to comply

with its transformation targets and employ the best lecturers if

bilingualism were a requirement.80

60. Second, the Applicants repeatedly complain that the terms “reasonably

practicable” and “pedagogically sound” in the 2016 Policy are impermissible

vague.81 This argument is difficult to understand:

60.1. The term “reasonably practicable” is the same term used in s 29(2) of the

Constitution. This Court has given clear meaning to those words (which

we consider further below).

60.2. The term “pedagogically sound” is plainly meant to cover instances

where there is an educational reason to choose a particular language. It is

a narrow criterion, that can easily be applied.

60.3. If either of these terms is abused by a particular lecturer, department or

faculty, there are both internal remedies, in terms of the 2016 policy itself

and other avenues, and external remedies, in the form of a PAJA review,

80 This point was not taken in the Applicants’ founding papers. 81 See, for example, Applicants’ Written Submissions para 9.7.2. 27

available to dissatisfied students.

61. Third, the Applicants contend that, in practice, most lectures will be dual-

medium lectures, and those lectures will be “a 100% English offering with little

or no Afrikaans offering”.82 This prediction is false on both counts:

61.1. There is no basis on the record to assert that most lectures will be in dual

medium. That was the case under the 2014 Policy and one of the goals of

the 2016 Policy was to decrease the amount of dual-medium lectures, and

increase the number of parallel-medium lectures. Dual medium is used

only when parallel-medium lecturing is not reasonably practicable.

61.2. There will be more English than Afrikaans in dual medium lectures. SU

accepts that. But they will not be 100% English because the Policy

requires:

61.2.1. Summaries and important sections to be taught in Afrikaans;

61.2.2. Questions in Afrikaans to be answered in Afrikaans; and

61.2.3. Mandatory simultaneous translation in first-year modules, and

simultaneous translation in as many modules as reasonably

practicable in subsequent years.

62. If these prescripts are not followed, the remedy is to use the accountability

mechanisms built-in to the Policy.

63. Fourth, the Applicants contend that decisions about what language to use will

be made by lecturers and they will avoid parallel-medium teaching in order to

82 Applicants’ Written Submissions para 9.9. 28

decrease their workload.83 This claim, again, is false. The language

specification for each module is determined by the faulty in its Language

Implementation Plan, which must be accepted by Senate. Each faculty must

report annually on its compliance with the Policy and its language

implementation plan, and particularly the commitment to sustained use of

Afrikaans in para 7.4.1.2 (quoted in paragraph 55 above). There is no room for

individual lecturers to use the Policy in order to shirk their obligations.

64. Fifth, the Applicants complain that paragraph 7.4.1.2 is “completely

meaningless” because it does not contain guidelines or criteria.84 The complaint

is baseless. The Policy clearly commits to “sustaining access” for all Afrikaans

students to the full extent of SU’s resources. Its meaning and effect are

explained in paragraph 55 above. This is one of the measures against which a

faculty’s language implementation plan must be measured. SU took a policy

decision not to set inflexible targets for the amount of Afrikaans.85 It opted for

a more flexible model that recognises that different faculties and different

departments have varying needs and capacities. That is a policy choice it was

entitled to make.

IV SECTION 29(2)

65. The core provision in this application is s 29(2) of the Constitution. It reads:

83 Applicants’ Written Submissions para 9.11. 84 Applicants’ Written Submissions para 9.14. 85 See the discussion of this decision by Breitenbach SC in his memorandum to the Council dated 17 June 2016 on the version of the 2016 Policy adopted by the Senate. See GMS49 paras 25-28: Record Vol 26, pp 3095-3096. 29

“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; (b) practicability; and (c) the need to redress the results of past racially discriminatory laws and practices.”

66. This Part first deals with the meaning of s 29(2), and then explains why the

2016 Policy is consistent with s 29(2).

The Meaning of Section 29(2)

67. When this matter was initiated, the meaning of s 29(2) was somewhat uncertain,

particularly in the context of university language policies. However, this

Court’s judgment in University of the Free State (read with Ermelo86 and the

SCA’s judgment in University of the Free State SCA) has now conclusively

determined the meaning of s 29(2) in that context.

68. We address the meaning with reference to the following:

68.1. The context of s 29(2);

68.2. The purposes of the s 29(2) right;

68.3. The two mutually-reinforcing parts of s 29(2);

86 Head of Department : Mpumalanga Department of Education and Another v Hoërskool Ermelo and Another 2010 (2) SA 415 (CC). 30

68.4. The meaning of “reasonably practicable”;

68.5. The centrality of equitable access;

68.6. Both parallel-medium and dual-medium teaching are permissible options;

and

68.7. A unified test for positive and negative claims.

69. Context: Section 29(2) must be interpreted in light of the historical context in

which it was enacted, which was described in University of the Free State. For

the majority of South Africans, “Afrikaans has for many years been associated

with dominion or power.”87 It received significant state investment to turn it

into an academic language that was a language of instruction in schools and

universities across the country. The Apartheid government comprised

“predominantly Afrikaans-speaking people who sought to thrust their mother

tongue upon others in the furtherance of sectional and self-serving white

supremacist policies.”88 At the same time, “all African universities and

languages were deliberately starved of resources and capacities critical for a

similar developmental agenda.”89 The result was not only the stultification of

African languages, but the intentional subjugation of African people by denying

them education.

70. Purposes: the provision serves three mutually-supporting purposes:

70.1. To improve the quality of education, as people learn better in their mother

87 University of the Free State (n 2) para 3. 88 Ibid para 6. 89 Ibid para 2. 31

tongue. It is therefore related to s 29(1) of the Constitution and, in the

context of universities, to s 29(1)(b), which guarantees the right to

“further education, which the state, through reasonable measures, must

make progressively available and accessible.”

70.2. To promote and maintain cultural communities. As Sachs J has explained,

language “is not simply a means of communication and instruction, but a

central element of community cohesion and identification for a distinct

community in South Africa.”90 Section 29(2) is therefore linked to the

rights to culture in sections 30 and 31 of the Constitution.

70.3. To mediate between competing demands for limited education resources.

In an ideal world, all people would be able to learn in the language of

their choice, at their university of choice. In reality, that is not possible.

Section 29(2) is the carefully negotiated structure for determining when

own-language education must be privileged over the practical and

constitutional benefits that can be advanced by teaching in other

languages.

71. Structure: s 29(2) achieves these purposes in “two distinct but mutually

reinforcing parts”:91

71.1. The first determines when the right to own-language exists. As this Court

90 See Ex parte Gauteng Provincial Legislature: In re Dispute Concerning the Constitutionality of Certain Provisions of the Gauteng School Education Bill of 1995 1996 (3) SA 165 (CC) para 47. See also University of the Free State SCA (n 7) para 31; and Mahe v Alberta [1990] 1 SCR 342 at 362 (“any broad guarantee of language rights, especially in the context of education, cannot be separated from a concern for the culture associated with the language. Language is more than a mere means of communication, it is part and parcel of the identity and culture of the people speaking it. It is the means by which individuals understand themselves and the world around them.”). 91 Ermelo (n 84) para 52. 32

explained, s 29(2) affords a qualified right to own-language tuition only

where that tuition is “reasonably practicable”.

71.2. The second part explains how the state should provide the right if it is

triggered by the first part – if own-language education is reasonably

practicable. Then the mechanism used to provide the education must be a

“reasonable educational alternative”.

72. Reasonably Practicable: What is “reasonably practicable” must be assessed in

light of the factors mentioned in the second part of s 29(2): equity,

practicability, and redress. The Supreme Court of Appeal concluded in

University of the Free State SCA that what is reasonably practicable is

determined with reference to both a “factual criterion”, and a “constitutional

criterion”. In its words: “even if a language policy is practical because there

are no resource constraints to its implementation, it may not be reasonable to

implement because it offends constitutional norms. The policy would therefore

not meet the reasonably practicable standard.”92

73. In University of the Free State this Court quoted and endorsed that conclusion.93

It particularly stressed the need for non-racialism and racial redress in the

assessment: “Reasonable practicability therefore requires not only that the

practicability test be met, but also that considerations of reasonableness that

extend to equity and the need to cure the ills of our shameful apartheid past, be

92 University of the Free State SCA (n 3) para 27. 93 University of the Free State (n 2) para 54. 33

appropriately accommodated.”94

74. Equitable Access: “[T]he constitutional obligation to make education accessible

to all so as to free the potential of all our people”95 is a vital consideration in

determining what is reasonably practicable. As this Court held in University of

the Free State:

“[E]ffective access to the right to be instructed in an official language of choice must be given effect to, but without undermining equitable access, preserving exclusivity or perpetuating racial supremacy. It would be unreasonable to wittingly or inadvertently allow some of our people to have unimpeded access to education and success at the expense of others as a direct consequence of a blind pursuit of the enjoyment of the right to education in a language of choice”;96 and “Where access, integration and racial harmony are imperilled by giving effect to the right to be educated in an official language of choice, then the criterion of reasonable practicability would not have been met.”97

75. A language policy that limits own-language access in order to ensure equitable

access for other students is difficult to assail under s 29(2). Indeed, that was

one of the primary reasons why this Court held that UFS’ policy was

constitutional. It pointed out that the almost complete cessation of Afrikaans

tuition at UFS was done “to facilitate equitable access for the previously

excluded who are mostly better acquainted with English so that they too, could

94 University of the Free State (n 2) para 53. 95 University of the Free State (n 2) para 48. 96 University of the Free State (n 2) para 49 (emphasis added). 97 University of the Free State (n 2) para 52 (emphasis added). 34

utilise this vital public resource for honing in their much-needed skills.”98

76. Parallel-medium and Dual-medium Teaching: In University of the Free State

this Court stressed the danger that parallel-medium teaching may lead to

constitutionally offensive racial segregation. However, it did not rule out the

possibility of constitutionally compliant dual-medium or parallel-medium

instruction. It held: “dual medium institutions might well exist without

necessarily nurturing or perpetuating unfair advantage or racial discrimination

and its exceedingly harmful tendencies. When that is so, then the right to be

taught in a language of choice could be effectively accessible and

implemented.”99 This applies to SU.

77. One Standard: there is no difference in the constitutional standard if existing

access to own-language education is reduced. As explained in our original

written submissions, the present case was initially pleaded on the assumption

that there was a higher standard if there was a negative interference with

existing access. This arose from the statement in Ermelo that “when a learner

already enjoys the benefit of being taught in an official language of choice the

state bears the negative duty not to take away or diminish the right without

appropriate justification.”100

78. But as the Chief Justice pointed out in University of the Free State, the same

concerns that motivate the ordinary interpretation of the s 29(2) right apply to

98 University of the Free State (n 2) para 51 (emphasis added). 99 University of the Free State (n 2) para 51. 100 Ermelo (n 84) para 52 (emphasis added). See the fuller discussion of this issue in the Respondents’ Original Written Submissions paras 5-31. 35

this negative duty: “Inequitable access and the unintended entrenchment or

fuelling of racial disharmony would thus be the ‘appropriate justification’ for

taking away or diminishing the already existing enjoyment of the right to be

taught in one’s mother tongue.”101 In short, reductions in Afrikaans in order to

ensure equitable access is an appropriate justification, for the same reasons that

doing so is “reasonably practicable”. There is no different standard.

The 2016 Policy is Consistent with Section 29(2)

79. This section demonstrates that the 2016 Policy complies with s 29(2) as

interpreted above. The core question is whether it is reasonably practicable for

SU to provide Afrikaans students with more Afrikaans tuition than that for

which the 2016 Policy provides.

80. To recall, there are two elements to the reasonably practicable test: the

functional (factual) criterion and the constitutional criterion. SU accepts that it

was functionally possible to continue to provide tuition in terms of the 2014

Policy. It had the necessary infrastructure, staff and monetary resources to do

so. That was also the case at both UFS and UP before they changed their

policies, i.e. they had the necessary staff, etc, to continue the status quo.

81. However, at SU, continuing to provide tuition in terms of the 2014 Policy

would not have been consistent with the constitutional criterion. To explain

why, we address the following issues:

81.1. The impact of the 2016 Policy;

101 University of the Free State (n 2) para 50. See also University of the Free State SCA (n 3) para 27; University of Pretoria (n 4) para 54. 36

81.2. More Afrikaans tuition was not reasonably practicable;

81.3. There is no viable alternative; and

81.4. The Applicants’ arguments.

The Impact of the 2016 Policy

82. As we have explained above, the 2016 Policy will not invariably reduce the

extent of Afrikaans tuition compared to the 2014 Policy – it merely reconfigures

it. In this regard the present case is distinguishable from University of Pretoria

and University of the Free State, where Afrikaans tuition was virtually

abolished.

83. As the Applicants were satisfied that the 2014 Policy was consistent with

s 29(2), it is difficult to understand how they conclude the 2016 Policy is

unconstitutional.

More Afrikaans Tuition is not Reasonably Practicable

84. The Applicants appear to accept that at SU in 2016:

84.1. The majority of the Black (African) students could not learn in Afrikaans;

84.2. The majority of the students who could not learn in Afrikaans were Black

(African);

84.3. Under the 2014 Policy and Plan, many Black (African) students were

forced to attend lectures that were wholly or partly in Afrikaans, and were

therefore unable to learn effectively; and

84.4. Virtually 100% of Afrikaans-speaking students (both White and

Coloured) could learn effectively in English. 37

85. Continuing with that state of affairs was not reasonably practicable. It was

inconsistent with the demand in s 29(2) for equity and redress. It may even

have constituted unfair discrimination contrary to s 9 of the Constitution and the

Promotion of Equality and Prevention of Unfair Discrimination Act.102 It is not

equitable for the majority of Black (African) students to be denied equal access

to education at SU. And it was plainly inconsistent with SU’s obligation to

provide redress to continue to exclude Black (African) students in that way. Yet

that was precisely the unintended consequence of the 2014 Policy and Plan.

86. It was only “reasonably practicable” for SU to offer Afrikaans tuition to the

extent it could do so without excluding Black (African) students. Afrikaans-

speakers have no s 29(2) right to demand Afrikaans tuition beyond what SU is

reasonably able to provide without excluding Black (African) students.

87. And that is what the 2016 Policy does – it provides as much Afrikaans tuition as

is reasonably practicable without excluding the majority of Black (African)

students. The only way to prevent their exclusion is to ensure that all lectures

are available in English. The Policy grants the minimum necessary preference

to English that is consistent with that constitutional criterion, and that is directly

connected to SU’s available resources. As explained earlier:

87.1. Parallel-medium teaching is the first option. It must be used when it is

“reasonably practicable and pedagogically sound”.103 What is

reasonably practicable will obviously depend on the relative size of

102 Act 4 of 2000. 103 2016 Policy para 7.1.3: Record Vol 11, p 1350. 38

classes and the availability of lecturers and classrooms. In order to avoid

the difficulties of lack of integration, other learning opportunities are

provided jointly.104

87.2. Dual-medium teaching is used when it is either not reasonably practicable

or not pedagogically sound. While not all information will be provided in

Afrikaans by the lecturer, the important information is; and, in addition,

simultaneous translation is provided in all first-year modules, and where

it is reasonably practicable, in other years.105

87.3. Single-medium English teaching is only permitted where the subject

matter requires it, or where no lecturer is available to teach in Afrikaans.

Again, in those circumstances SU provides translation for all first-year

modules, and for other modules if it has the resources to do so.106

88. The 2016 Policy seeks to promote equitable access to SU based on the

comparative ability of students to learn in Afrikaans and English. It recognises

that, as a matter of fact, teaching the majority of Black (African) English-

speaking students in Afrikaans imposes a far higher barrier to their education

than teaching Afrikaans-speaking students in English. It still seeks to teach

Afrikaans-speaking students in Afrikaans (and to promote multilingualism in

English students) wherever reasonably possible, and in all first-year courses.

Yet in higher years, where Afrikaans tuition is not reasonably possible, it adopts

104 2016 Policy para 7.1.3.2: Record Vol 11, p 1351. 105 2016 Policy para 7.1.4: Record Vol 11, p 1351. 106 2016 Policy para 7.1.5: Record Vol 11, p 1351. 39

the equitable solution that English must be used. That is equitable because the

evidence of bilingualism at SU shows that Afrikaans-speaking students in their

later years of study will be able to learn in English, whereas Black (African)

students for whom English is their second language will not be able to learn in

Afrikaans.

89. Although that is not the test, it is difficult to think how SU could have crafted a

language policy that offered greater Afrikaans tuition, without excluding Black

(African) students.

No Alternative

90. Accordingly, it is unsurprising that the Applicants do not provide any

reasonable alternative suggestions for how the Policy should be amended to

prevent exclusion and provide more Afrikaans tuition.

91. Contrary to the Applicants’ submission, SU does not suggest that the onus was

on them to “identify the means by which to remedy the alleged

unconstitutionality.”107 The argument is that in terms of s 29(2) what is

reasonably practicable, and what constitutes a reasonable educational

alternative, necessarily depends on an assessment of what other options are

available.

92. The Applicants’ only proposals are that SU should have adopted a fully parallel-

medium solution, or should offer more interpretation. Neither are realistic

solutions.

107 Applicants’ Written Submissions para 53.5. 40

93. Parallel-medium: As explained in paragraph 35 above, SU and its students

cannot afford full parallel medium, as the study conducted by SU indicates. In

any event, the 2016 Policy requires SU to use parallel-medium teaching where

it is reasonably practicable and pedagogically sound. The Applicants’

complaint must therefore be that SU should offer parallel medium even where it

is not reasonably practicable or is not pedagogically sound. But Afrikaans

students have no constitutional right to demand Afrikaans tuition in those

circumstances. In addition, for the reasons identified in University of the Free

State and University of Pretoria, it would be constitutionally undesirable to

move to a full parallel-medium policy. Moreover, one of the reasons SU wishes

to continue using a mix of language specifications (including dual and single

medium) is to promote multilingualism, which is a legitimate objective.108

94. The provision of interpretation services for all lectures is also not a viable

option. For a start, it would be too expensive. The policy already requires SU

to provide interpretation whenever it has the available resources. What the

Applicants are asking SU to do is provide interpretation where it does not have

the resources to do so. It was not necessary for SU to conduct a study on the

cost of interpretation precisely because the Policy requires it to provide as much

as it is able to afford. Greatly expanded simultaneous translation would also not

be an adequate long-term solution, as the interpretation will never be as good as

a lecture in the original language. That is why Afrikaans-speaking students in

108 AA para 313.2: Record Vol 16, p 2039-40. 41

many E+i modules under the 2014 Policy stopped using interpretation services

– they preferred to learn in English rather than through interpreted Afrikaans.109

It might also result in the stigmatising effects referred to earlier. Simultaneous

translation is a necessary part of the overall solution, but it is not a panacea.

95. The carefully calibrated approach taken by SU seeks to balance the competing

options and concerns in an effort to achieve the best mix for SU. For the

reasons given above, SU is best placed to make the determination of what blend

of different language specifications best serves its students, staff and goals.

This Court will only interfere where it had acted irrationally or otherwise

unconstitutionally. It has not.

The Applicants’ Arguments

96. The Applicants do not engage in a clear analysis of s 29(2). Instead, they

provide a list of ten “considerations” which, they contend, demonstrate that the

2016 Policy is inconsistent with s 29(2). We have already dealt with some of

them. We consequently limit this section to addressing the following seven

arguments.

97. First, the Applicants make much of general racial and linguistic demographics,

particularly in the Western Cape and Northern Cape. SU considered these

demographics when it adopted the Policy.110 It may well be that the high

percentage of Afrikaans speakers in the Western Cape would make it

109 AA para 281.3.2: Record Vol 15, pp 2016-17. 110 AA para 223: Record Vol 15, p 1989, read with GS4 paras 29-36: Record Vol 8, pp 817-22; and GSM44 paras 7.2-7.6: Record Vol 26, pp 3031-2. 42

unreasonable to stop all Afrikaans tuition at SU. But SU has not abolished

Afrikaans. It continues to offer Afrikaans, in clear recognition that it serves the

community in the Western Cape.

98. Second, the Applicants seek to argue that the 2016 Policy discriminates against

Coloured students. This argument fails for three main reasons:

99. 99.1. Coloured students can continue to obtain an Afrikaans education at SU.

99.2. Almost all Afrikaans-speaking Coloured students – like their White

counterparts – are able to learn in English. With the first-year support

and other language aids offered by SU, they will not be excluded if they

are required to take some modules partly in English.

99.3. The demographics of the Coloured students who attend SU are not the

same as the demographics of the Coloured community as a whole. In

2015 only 17% of the Afrikaans-speaking students at SU were Coloured,

and 62% of Coloured students were English-Speaking.111

100. Third, the Applicants make much of the fact that there has been a large increase

in the number of White English-speaking students at SU.112 This is true, but it

does not affect the reality that it is Black (African) students – not White English

students – who were disproportionately disadvantaged by the 2014 Policy. The

record plainly demonstrates that it was the plight of Black (African) students

that motivated SU to act. They are disproportionately unable to understand

111 This appears from the figures in the Breitenbach SC and Bishop 27 November 2015 opinion paras 30.1-30.2: Record Vol 8, p 818. These were incorporated by reference into the Answering Affidavit para 282: Record Vol 15, p 2017. 112 Applicants’ Written Submissions paras 28-30. 43

Afrikaans compared to their White, English-speaking fellows.

101. Fourth, the Applicants accuse SU of cynically “exploiting” or “capitalising” on

the bilingualism of Afrikaans students to reduce Afrikaans tuition.113 We have

already dealt with the (false) claim of a reduction in Afrikaans tuition. While it

is true that SU justifies the 2016 Policy, inter alia, on the basis that Afrikaans

students are nearly universally bilingual, whereas the majority of Black

(African) students are not, it is not clear why that is improper. SU had to weigh

relative harm and benefit of different policy options. The reality is that

Afrikaans students will suffer far less harm by being required to learn in English

than Black (African) students will suffer if they have to learn in Afrikaans. It

would have been irrational if SU did not take account of that fact.

102. Fifth, the Applicants argued that SU is seeking equal disadvantage for all

students.114 The Applicants submit that because English is already the second

language for many Black (African) students, SU seeks to justify its policy on

the basis that Afrikaans students should suffer equal disadvantage by being

required to learn in their second language. This argument must fail for two

simple reasons:

102.1. First, this is not a basis on which SU defends its policy. It is true that this

argument was advanced by some proponents of SU moving to a 100%

113 See, for example, Applicants’ Written Submissions para 9.20. 114 This “equality of the graveyard” argument was addressed by this Court in Minister of Home Affairs and Another v Fourie and Another 2006 (1) SA 524 (CC) para 149. 44

English policy (i.e. without any Afrikaans at all).115 But SU did not

endorse it. SU’s justifications are those set out above –promoting

inclusivity, integration and multilingualism within its available resources.

102.2. Second, the argument in any event misunderstands the disadvantages in

fact encountered by different groups. SU had to choose between: (a)

requiring the majority of Black (African) students to attend lectures in a

language they could not understand at all; or (b) requiring Afrikaans

speaking students to attend lectures in a language they can understand,

but which is not their mother tongue. That is not equality of the

graveyard. It is substantive equality which takes account of South

Africa’s history and the need to promote equitable access for all students.

103. Sixth, the Applicants contend that there was no need to amend the 2014 Policy

and Plan because they could have been implemented to avoid excluding Black

(African) students by increasing the number of parallel medium lectures. This

argument is difficult to understand:

103.1. The 2016 Policy requires SU to do exactly what the Applicants now

contend it should have done under the 2014 Policy – offer more parallel-

medium modules. The difference is that, under the 2014 Policy, dual

medium teaching was the default, while under the 2016 Policy parallel-

medium teaching is the default. Moreover, under the 2014 Policy, dual-

medium lectures excluded Black (African) students, while under the 2016

115 See, for example, the Open Stellenbosch Complaint, GMS10: Record Vol 21, p 2523. 45

Policy, they are not excluded.

103.2. If the argument rests on the extraordinary measures taken in March 2016

to demonstrate SU’s ability to provide a 100% English offering without

reducing the Afrikaans offering compared with what was provided under

the 2014 Policy,116 then it is misguided. Those were never intended as

permanent measures, but as emergency interim measures. It was

precisely to find a durable, workable solution that SU developed and

adopted the 2016 Policy and provided for its implementation from 2017

onwards.

104. Seventh, the Applicants argue that racial segregation was not considered by SU

and that, in any event, full parallel-medium tuition would not have the same

consequences as it did at UFS and UP.117 Neither contention has merit:

104.1. SU’s answering affidavit makes it clear that segregation was

considered.118

104.2. It is true that, if SU adopted a completely parallel-medium system,

White and Coloured students at SU would learn in both the English and

the Afrikaans streams. But Black (African) and Indian students would

116 AA para 150: Record Vol 15, p 1951-52. This cost more than R1.5 million. The changes were to provide additional support to ensure that 100% of the content in A, A+i and T modules was also provided in English. It did not alter the module specifications, as that would have been contrary to the 2014 Policy. Such a stop-gap measure is not a meaningful alternative to a permanent and consistent policy. 117 Applicants’ Written Submissions para 47. 118 See, for example, AA para 313.2: Record Vol 16, p 2039-40 (“One of the advantages of SU’s use of dual-medium instruction (together with simultaneous translation), in addition to parallel-medium instruction, is that it counteracts the possible racial segregation of parallel-medium instruction. Together with the promotion of multilingualism, that is one of the reasons why SU did not move to a full parallel-medium system” (our translation)). 46

learn almost exclusively in English.119 In other words, virtually none

would be part of the Afrikaans lectures. There would also be

segregation between White English-speaking and White Afrikaans-

speaking students, and between Coloured English-speaking and

Coloured Afrikaans-speaking students. None of that is desirable, for

the reasons identified by this Court in University of the Free State.

VI NO DICTATION BY OPEN STELLENBOSCH

105. In the High Court the Applicant raised a plethora of administrative-law type

challenges relating to the process followed by SU when it adopted the Policy.

They have not overtly abandoned those challenges,120 but pursue only one of

them in their written submissions, namely, that the 2016 Policy was adopted

under the dictation of Open Stellenbosch, and was therefore irrational.121 There

is no merit to this contention.

106. First, as the High Court rightly noted, this claim “is strangely missing in the

founding papers” and “surfaced for the first time in the [Applicants’] heads of

argument.”122 The founding papers alleged only that Open Stellenbosch had

been afforded opportunities to influence the process that had not been granted to

other organisations like Afriforum. This allegation was cogently contradicted in

answer.123

119 GS4 para 30.1: Record Vol 8, p 818. 120 To the extent that the Applicants persist with the other challenges, SU endorses the reasons advanced by the High Court for rejecting those submissions. See HC Judgment paras 113-145. 121 Applicants’ Written Submissions para 52. 122 HC Judgment para 131. 123 See AA paras 345-50: Record Vol 16, pp 2068-3072 47

107. Second, the argument – as advanced in the Applicants’ written submissions –

rests entirely on allegations about the conduct of the Rector’s Management

Team (RMT) in 2015 and the Language Policy Review Working Group (WG)

when drafting the new Policy in 2016. Neither of those allegations has any

merit.

108. The evidence shows that in February 2016 the RMT embarked on a process to

draft a new language policy to present to the Senate and the Council124 and

publicised that fact;125 and that in May 2016 the drafting of the new Policy was

approved by the Council when, after a full-day meeting on the subject, it

recommended to the WG a detailed set of governing principles for the new

Policy.126

109. The WG127 – which had the primary responsibility for drafting the new policy –

followed a fair and thorough process, considering representations from

throughout the University community:

109.1. It held six meetings, lasting up to eight hours;

109.2. It conducted an online survey of all undergraduate students,128 invited

public comment, and received and considered 514 submissions;129 and

109.3. It considered detailed feedback from the Council, the Senate, external

124 AA paras 104 and 118-119: Record Vol 14, p 1922 and Vol 15, pp 1929-1932 125 AA para 110: Record Vol 14, p 1924; DR56: Record Vol 7, p 765. 126 AA para 176: Record Vol 15, pp 1964-1969. 127 The 18 members of the Working Group included academics from seven faculties and members of SU’s administration and support services with knowledge and experience of language planning and the implementation of language arrangements in teaching and administrative environments, as well as two student representatives nominated by student bodies. AA para 114: Record Vol 15, p 1926. 128 The responses received from 5 196 students showed that 59% of the respondents preferred to be taught at SU in English, 26% in Afrikaans and 15% in both English and Afrikaans. In addition, only 65.8% of respondents who did Grade 12 in Afrikaans preferred to be taught at SU in Afrikaans. AA paras 144-149: Record Vol 15, pp 1946-1951. 129 AA paras 140-42: Record Vol 15, pp 1945-6. 48

counsel and faculties.130

110. Moreover, the final policy is significantly different from the demands made in

2015 by Open Stellenbosch,131 and the proposals contained in the RMT’s

controversial media statement of 12 November 2015.132 The only significant

commonality is the commitment that language should not be a mechanism of

exclusion. Even the Applicants appear to accept the correctness of that

proposition – they contest only how it should be achieved. There is simply no

basis in the record to conclude that, throughout this process, the WG was

merely doing the bidding of the RMT, let alone Open Stellenbosch.

111. Third, even if the allegations against the RMT and the WG had substance, they

would be insufficient. SU’s language policy can be made only by decisions of

Council and the Senate. To support a claim of dictation, the Applicants would

have had to show that Senate and Council – not the RMT and the WG – were

dictated to by Open Stellenbosch and/or the RMT. They have not done so:

111.1. There is not a shred of evidence that members of Senate or Council – let

alone a majority of members – were dictated to by the SU Management

or Open Stellenbosch. They were persuaded by the strength of the

arguments in favour of the 2016 Policy.133

111.2. By contrast, there is positive evidence to the contrary. The chairperson of

the Council, the Rector and the Vice-Rector have testified that they did

130 AA paras 177 and 181: Record Vol 15, pp 1969-72. 131 GMS10: Record Vol 21, p 2523. For example, OS demanded the end of translation, while the 2016 Policy continues and possibly increases the amount of translation. 132 DR18: Record Vol 6, p 654. 133 AA paras 334-5: Record Vol 16, pp 2057. 49

not have control over the precise contents of the policy and had no idea

what the outcome of the relevant meetings of the Senate and the Council

would be.134 There is no basis to disregard those allegations, which are

consistent with the fact that the Senate made material amendments to the

WG’s draft policy when approving it in early June 2016.

111.3. The allegation also makes no logical sense. SU Management is

subordinate to the Council. Both section 17(1) of the Higher Education

Act and article 11(1) of the SU Statute make it clear the Council is the

ultimate decision-making body of SU.135 Management could not dictate

to Council (or to Senate), even had it wanted to.

112. In short, the submissions concerning dictation are baseless. The various organs

of SU which considered the matter – Management, Senate and Council –

ultimately concurred that a change along the lines of the 2016 Policy best

achieved SU’s multiple goals. That was not because they were doing the

bidding of Open Stellenbosch, but because they had been persuaded that the

status quo could not continue and change was needed. We submit that, not only

was this lawful, it was admirable.

VI COSTS AND CONCLUSION

113. As set out in our original written submissions, the Respondents have abandoned

the costs award against the Applicants made by the High Court, except with

134 AA paras 336-7: Record Vol 16, pp 2057-8. 135 AA para 360: Record Vol 16, pp 2082-3. 50

regard to the striking-out applications and the applications to introduce further

evidence.

114. The Respondents therefore ask that the application for leave to appeal be

dismissed; alternatively, that the appeal be dismissed, with no order as to costs.

JEREMY MULLER SC

NICK DE JAGER

Counsel for the Respondents

Chambers, Cape Town

31 July 2018