The UNISA v Afriforum case is a victory for the development of languages in tertiary education

Read the above mentioned brief here.

There are two points considered in this brief: first, the difference between the Unisa case and Afriforum v University of the Free State[1] case, secondly, what the Unisa judgment means for tertiary education.

Introduction

This brief examines the need for a policy framework that advances multilingualism and cultural transformation at university level in an integrative manner that supports all cultures and languages. This is a resource-intensive project that will take a number of years to achieve, and it may require an adoption of a couple of policy devices. On 22 September 2021, the Constitutional Court held that it was not reasonably practicable to remove Afrikaans as a medium of instruction at University of South Africa (Unisa) in favour of a monolingual English policy.[2] We first explore the differences between the Unisa case and the UFS case. Then we address the racial divisions that still haunt us as a nation and how this judgment need not inflame those divisions but instead pave a way for multilingualism in tertiary education.

The differences between Unisa and the UFS Cases

There are three central differences regarding these two judgments. Both cases were brought before the court on the basis of whether it was reasonably practicable to continue providing tuition and learning in two languages, English and Afrikaans, to the exclusion of other indigenous language. The first difference was that the UFS policy was purely bilingual whereas the Unisa 2006 policy was multilingual. The second difference is that the objectives of the change in policy were somewhat different in operation. The UFS argued that the ‘current parallel medium language policy does not work. It divides students, largely by race, and therefore works against the integration commitments of the University’.[3] ‘Racial discrimination and the need for redress are the paramount concerns raised by [UFS] within the context of reasonable practicability.’[4]

In Unisa, the stated objective of UNISA’s revised language policy was ‘to institute measures to enhance the status of indigenous African languages, while also phasing out Afrikaans and thereby removing the guarantee that courses be offered in both Afrikaans and English.’ In para [40], ‘UNISA denies that its decisions were irrational, contending that it did not “remove”, “abolish”, “eradicate”, “abandon” or “do away with” Afrikaans tuition. Instead, the new language policy preferred English as the language of teaching and learning, whilst placing Afrikaans on the same footing as the other official languages’. The third difference relates to the fact that Unisa is a distance-learning university that houses a large number of students which is different from UFS which offers contact-learning that forms a community that has the potential of sowing racial divisions.[5]

Accordingly, the Constitutional Court (CC) in Unisa held differently from UFS (and Gelyke Kanse v University of Stellenbosch,)[6]. The courts differ on the qualification of reasonable practicability as entrenched in section 29(2)[7] of the Constitution. In Unisa, the CC clarified the law on reasonable practicability to be one of both factual and normative components.[8] The Court in this regard held that the question is not whether it is reasonably practicable for UNISA to offer tuition in all eleven official languages in all its modules but whether it is reasonably practicable to ‘offer particular modules in particular languages where a demand exists for those modules in those language’.[9]

This is different from UFS as the University had considered in its decision-making process the factors to be considered in terms of section 29(2) prior to making its decision.[10] It is precisely an issue of approach to the change in policy (and perhaps litigation strategy) that the court held that Unisa had not adduced evidence to prove its case.[11]

Racial divisions

As argued in the previous brief, the Unisa judgment need not sow racial divisions although it may appeal to racial sensitivities. As one would note, from para [6] the Constitutional Court performs an extensive historical analysis of Afrikaans, from its origins to how it was used as a racializing or disintegrating tool. In para [19] the Constitutional Court held that:

[19] It bears emphasis that, to simplistically style Afrikaans as having a one-dimensional history and existence as “the language of the whites”, and as “the language of the oppressor”, is entirely misconceived and flies in the face of the true history of its origins and development...

The court, in para [20], further acknowledges how Afrikaans was used as a tool to oppress:

[20] Afrikaans was undeniably employed as a tool of oppression – it is part of our very painful past. As Gasnolar emphasises: “Afrikaans has a painful history in our country, and was used by the apartheid regime to degrade millions, and that past cannot simply be ignored.”

The court further traverses the ground of decolonisation through the achievement of multilingualism: para [22]

In our country, English has become the mainstream language of choice through necessity in virtually all spheres of everyday life, including commerce, law, culture and education. That is so, despite its colonial heritage. Universities as intellectual hubs of transformative constitutionalism must lead the charge for the decolonisation of language. The only way to achieve that is to ensure that all indigenous languages are progressively introduced as languages of teaching and learning, within the means reasonably available.

Further in para [22], the court rightfully warns against the dominance of English over other indigenous languages:

This Court also cautioned that the “flood-tide of English” is a real threat to minority languages, including Afrikaans. The cost and threat in this context were comprehensively articulated by Froneman J in his separate concurrence in that matter and need not be repeated. There, and also in University of the Free State, he rightly bemoaned the dominance of English over other indigenous languages, including Afrikaans.

The Court then concluded that ‘Afrikaans speakers must then accept that their language enjoys equal status with [the] other ten official languages’ and that ‘Afrikaans cannot continue to enjoy its privileged position to the exclusion of the other indigenous languages, which were so terribly neglected under Apartheid’.[12] This balance achieved by the Court is important in achieving integration and racial justice. It cannot be gainsaid that there is an institutionalized racialization of the Afrikaans language that has sowed divisions.

Where to from here?

As argued in the previous brief, a couple of policy devices may need to be adopted in achieving this multilingual policy. The university may need to be creative enough in accessing funds and developing capacity to teach in different indigenous languages. As argued previously,

Policy makers must consider alternatives in order to achieve optimal development of the policy. Upon realizing that the goals of the 2006 policy had not been achieved in a decade, the next course of action could have been to table policies derived from the lessons learned ever since its inception. These could include (1) methodology ranging in different stages from mere translation, language workshops from one to three modules per programme (e.g. BSc) every three years. In these three years, they could phase in three new languages. A 9-year plan would achieve the phasing in of all nine new languages in all programmes. The alternative could be (2) to phase in each of the other 9 official languages in South Africa by phasing in one language in all programmes every three years. This would take approximately 27 years to achieve. Both of these courses of action are resource-intensive.

This does not serve as a perfect solution but a good template for further development and policymaking.

Conclusion

In this brief, we have advanced an important policy direction and, that is, that tertiary education should advance multilingualism and cultural transformation. This may come with impracticalities unless there’s a uniform language that all scholars can learn and be competent in. For instance, legal professors in the same competence may have to learn two languages or more with at least one in common in order to be able to communicate to each other. Learning and teaching in indigenous languages will not only improve visibility and access but will also improve quality of representation, framing of experiences and knowledge.

Mihloti Basil Sherinda
Legal Researcher
Mihloti@hsf.org.za

[1]Afriforum v University of the Free State [2017] ZACC 48 (hereinafter ‘UFS case’).

[2]Chairperson of the council of UNISA v Afriforum [2021] ZACC 32 (hereinafter ‘Unisa case’).

[3] Para [17] of UFS case.

[4] Para [18].

[5] This position is captured in para [62]:

‘In other words, “the use of Afrikaans as a parallel language of instruction unwittingly perpetuate[d] segregation and racism”. By contrast, there is no prospect that the continuation of Afrikaans as a language of teaching and learning at UNISA would constitute a threat to racial harmony, precisely because at UNISA there is no tuition in lecture rooms. There can thus be no apprehension of the kind of racial segregation that arose at the University of the Free State – although this conclusion is subject to the qualification I make shortly. [63] In Gelyke Kanse, the previous language policy created an exclusionary hurdle, specifically for black students studying at the University of Stellenbosch.118 The policy made black students who were not conversant in Afrikaans feel marginalised, because they could not understand the lectures presented in Afrikaans. They felt stigmatised by real-time interpretation during lectures and these students felt excluded from other aspects of campus life, including residence meetings and official university events.

[6]Gelyke Kanse University of Stellenbosch [2019] ZACC 38.

[7] Section 29(2) provides that “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”.

[8] Para [48] Unisa case.

[9] Para [66].

[10] Para [62] and [63].

[11] Para 57. It is unsurprising, given its fallacious stance in its papers in respect of these obligations, that UNISA singularly failed to adduce any evidence that it had regard to the considerations listed in section 29(2) at the time when the impugned decision was made. In respect of the justification of its decision and compliance with section 29(2), there is no evidence put up by UNISA that bears scrutiny. It is plain that neither the Senate, nor the Council, had regard to information relevant to any assessment of reasonable practicability’

[12] Para [23] of Unisa v Afriforum.