On Wednesday afternoon The Constitutional Court ruled that it is unconstitutional for the University of South Africa to exclude Afrikaans as a language of teaching and learning in its language policy that was adopted in 2016.
This comes after it found the decision to scrap Afrikaans as a medium for teaching and learning was in violation of section 29 of the constitution.
The judgement comes after a five-year-long legal battle between lobby group, Afri-Forum and Unisa which has gone before the High Court as well as the Supreme Court of Appeal.
According to the Apex court's judgment, Unisa contented that catering for Afrikaans students would be at the expense of other official languages. And as a result, decided in 2016 to adopt a new language policy to discontinue Afrikaans as a language of learning and teaching.
The objective for the policy was to institute measures to enhance the status of indigenous African languages, while also phasing out Afrikaans and, therefore, removing the guarantee that courses be offered in both Afrikaans and English.
However, AfriForum launched an application in the high court to review and set aside the language policy on the basis of procedural irregularities and inconsistency with section 29(2) of the constitution.
The section states that everyone has a right to receive education in the official language of their choice in public educational institutions where that education is reasonably practicable.
The High court dismissed AfriForum's application. The lobby group then approached the Supreme Court of Appeal, which upheld its appeal last year.
In 2020, the Supreme Court of Appeal (SCA) ruled in favour of lobby group AfriForum. The SCA found that UNISA had neither implemented nor adopted its language policy in accordance with constitutional requirements.
The SCA noted that when a learner already enjoys the benefit of being taught in an official language of their choice, the state has a negative duty not to diminish this right without appropriate justification. In order to justify the removal of the dual English/Afrikaans model of teaching and learning, UNISA had to show that it was not reasonably practicable to sustain it.
Following this, UNISA appealed the matter taking the case to the Constitutional Court. The Apex court then stated in its ruling that Unisa has been able to show that it was reasonably practicable to discontinue Afrikaans as one of its languages of instruction.
"The Court held that UNISA singularly failed to adduce any evidence that it had regard to the consideration listed in section 29(2) at the time when the impugned decision was made." stated the Concourt.
Consequently, the Court held that UNISA's decision in 2016 to adopt the new language policy, and discontinue Afrikaans as a language of learning and teaching, contravened section 29(2) of the Constitution rendering that decision invalid.
The Constitutional Court has also given the University of South Africa until the start of the 2023 academic year to revise its language policy to include Afrikaans.
Alana Bailey, AfriForum’s Head of Cultural Affair, welcomed the judgment stating it was a huge victory for Afrikaans, Afrikaans-speaking students and language rights in SA in general.
This marks the beginning of a new chapter in the empowerment of all who are not first-language speakers of English in tertiary education.
"The court today confirmed this point with the ruling and confirmed the right to access to Afrikaans mother-language education at both public and private institutions for students of all income groups" She added
Related: Unisa In Court Over Language Policy
(2/2) Judgment on Wednesday, 22 September, at 15h00: The University failed to demonstrate that it is not reasonably practicable to continue with Afrikaans as one of the languages of instruction. pic.twitter.com/3SXGH2joZm
— Constitutional Court (@ConCourtSA) September 22, 2021
