Theuns Eloff analyses the impact of the ConCourt judgment in the SU vs Gelyke Kanse case
Does the Constitutional Court judgement signal the end for Afrikaans in public schools?
26 November 2019
The dust has settled a bit regarding the Constitutional Court's ruling in the Gelyke Kanse (GK) case on Stellenbosch University's (SU) Language Policy (read the full analysis of the case here). The implications of this ruling are relevant for SU and the Potchefstroom Campus of the North-West University (NWU Potch); and perhaps most importantly of all, for Afrikaans as a language of instruction in public schools.
As far as SU is concerned, one must remember that many years ago, management and Council themselves introduced as English as a language of instruction and that they themselves recently decided to “scale down” Afrikaans. So, they initially made SU bilingual and now - in effect - monolingual.
Therefore, it is expected that the ruling will facilitate the application of the 2016 Language Policy and that it will “scale down” Afrikaans even more (and perhaps faster). In paragraph 5 of the Constitutional Court judgment, Judge Cameron states that an important consideration in the judgment is that “Afrikaans classes are offered at undergraduate level on a large scale” and, in particular, that “all first-year classes are still offered in Afrikaans”.
However, as GK has proved with affidavits, this is no longer the case. But these statements were not allowed because the case was about the principle of language policy and not its application. SU will therefore continue and completely eliminate Afrikaans (probably within two to three years). The result will be exactly what even the Constitutional Court has not foreseen, namely that Afrikaans will be “extinguished” academically (paragraph 38).
And NWU Potch? Up to this point, the University Council has adhered to a language policy that still recognises Afrikaans as a full language of instruction on campus. Two factors put this situation under pressure. Firstly, the intake on the Potch Campus of more and more non-Afrikaans speaking students (with a 50% target on the horizon) who do not want or cannot speak Afrikaans, can bring the so-called language tipping point above 30% sooner.
Secondly, in the name of (racial) transformation, more and more lecturers and administrative staff are appointed who cannot or do not want to speak Afrikaans. Whether, under these circumstances, the NWU management will retain the political will to adhere to a truly multilingual policy, is highly questionable. And as SU has shown, if management under the Vice-Chancellor’s leadership first make the move to English alone, the Council simply falls in line with it - with just here and there an opposing voice calling in the Afrikaans language desert. The Constitution will not save Afrikaans at NWU Potch, but perhaps economic considerations of Afrikaans students who pay their tuition and residence fees on time will be more effective.
Out of 24 000 public schools in the country, there are still 1 200 single-language Afrikaans schools left. The majority of these schools are in the Western Cape, followed by the Eastern Cape and then Gauteng. Some of these schools are already under pressure from outside, and even from parents, to switch to parallel-medium and others have already decided to do so.
According to the Schools Act, governing bodies have the power to determine the language policy of their schools. This power is under political pressure (among others by Mr Lesufi). There is also pressure from various provincial Departments of Education on monolingual Afrikaans schools to start an English stream. Most are not inclined to this, because the practice of recent years has shown that parallel-medium is a gliding path to English monolingualism.
Judge Cameron's words in paragraph 38 of the judgment do not bode well for the continuation of Afrikaans education in especially parallel-medium schools:
A different way to pose the dilemma Gelyke Kanse brings before us is this. Is it permissible under section 29(2), where tuition is being offered in an official language of choice at a public educational institution, to diminish that offering (while not extinguishing it) in order to enhance equitable access for those not conversant in that language, when the institution judges the cost of non-diminution too high? In my view the answer is Yes.
SU will prove that “while not extinguishing it” is only a matter of time (UF and UP have already proved this). SU has also already proven that the institution's opinion on the high cost of “non-scaling” is highly discretionary and is not limited to practical matters, but also includes the subjective feelings and biases of students.
The irony is that the mostly Afrikaans leadership of the schools (and universities) that decided to move to parallel-medium education with noble motives (but greater naivety), saw their decision ultimately bring the end of Afrikaans as a language of instruction at those institutions. The Constitution Court ruling finally confirmed that in a parallel-medium education environment, section 29(2) of the Constitution was largely disempowered by the courts and specifically the Constitutional Court.
The weight (and legal force) given to the feelings, subjective experiences and prejudices of non-Afrikaans-speaking students simply trumps the language rights of Afrikaans-speaking students. There is no possibility of a compromise of equal language rights. The shadow of racial transformation and political correctness hangs like a cloud over this situation.
What about single-medium Afrikaans schools? Paragraph 38 of the ruling does not exclude them, but it would be more difficult for a group of parents whose children are already in monolingual Afrikaans schools to now raise the arguments that trumped language rights at SU (and UFS). This is especially so because they have agreed to Afrikaans teaching of their children - and in some cases even chose it, especially because of the quality that comes with Afrikaans teaching.
But it is not impossible that a group of non-Afrikaans-speaking parents who want to enroll their children at, for example, Waterkloof High School, may approach a court for an order that an English stream should be started there. This would put the governing body's mandate to determine language policy under pressure (and even destroy it) and likely cause further lawsuits. Judge Cameron's words thus put even single-medium Afrikaans schools under pressure and in the barrage.
The Constitutional Court's two-pronged notions of “reasonably practicable” and “appropriate justification” apparently (in the end) derail any right of learners to be taught in their mother tongue. And an ANC government that fails to live up to its own promises of building enough schools for a growing and urbanising population would love to use this precedent to hide their own shortcomings.
Apparently, it will not help trying to win the argument with numbers either. Even with 13% of the population speaking Afrikaans as their mother tongue, there are now only two campuses (out of 36, only 5.5%) where such students can receive a full degree in Afrikaans: NWU Potch and CPUT Wellington - and Afrikaans is under pressure at both of them. As already stated, there are still 1 200 monolingual Afrikaans schools in the country; 5% of the total number of public schools - again less than the 13% of the population with Afrikaans as their first language. These numbers don't seem to matter, especially when it comes to the subjective experiences of non-Afrikaans speaking students - even though they have full access to the other 34 campuses and 22 800 schools where English education is available. But the Constitutional Court did not look at the bigger picture, because it was not the “question that served before them”.
In his separate judgment, Judge Johan Froneman goes so far as to say that binding legal precedent (of the Kovsie case) is buttressed by recognising that, substantively, South Africa’s history and current inequality entail that the white Afrikaans-speaking minority, because of its historically and currently privileged position, cannot exact the same treatment as historically-disadvantaged minorities. The substantive advantages the Afrikaans-language minority has generally enjoyed, in contradistinction to other linguistic minorities, makes this inevitable.
With respect, where does this leave us with regard to the equality principle in the Constitution? And where does that leave the more than 50% coloured Afrikaans speakers and their language rights? This statement also gives little hope for the survival of Afrikaans as a language of instruction in public schools (even if it is only 5%).
Judge Froneman (in paragraph 75) acknowledges this himself and then (out of desperation?) criticises the Constitutional Court, before lamenting the loss (paragraph 88):
One does not need international studies, of which there are many, to realise that this state of affairs entrenches English as the dominant language not only in tertiary education, but also, as we will see, from primary through secondary school to university. Opinions may differ on whether this is a good or bad thing, but it seems strange for this Court, the ultimate protector of minority language rights under the Constitution, to give its blessing to this result.
Without your own language, culture is lost, a sense of self is lost. And once that happens, diversity is lost. We will lose the belief set out in the Preamble of the Constitution “that South Africa belongs to all who live in it, united in our diversity”.
I can't put it any better. And Judge Froneman should be credited for his razor-sharp analysis of the injustice inflicted on poor (and also coloured) South Africans by the lack of mother tongue education and general quality - and that speakers of the original colonial language came off scot-free. His own opinion (and that of Chief Justice Mogoeng) is that the private sector and the communities themselves must intervene to make good the State's lack of finances to support indigenous languages. He approves of the recently launched MOS Initiative (which will buy, build and manage Afrikaans private schools). Although one wonders whether the State (and taxpayers) can so easily relinquish their responsibilities, it is good news that our highest court is of the view that independent (Afrikaans) educational institutions (such as the MOS, Soltech and Akademia) have constitutional right of existence under section 29(3). May that right not be white-anted as section 29(2).
Finally (and partially tongue-in-cheek): in a previous article it was said that a court and the Constitutional Court do not look at the bigger picture, but only at the case before them. If they stay consistent about this, there is hope for single-language Afrikaans schools. Because it will be very difficult to get 1 200 separate cases relating to the 1 200 Afrikaans schools before the courts each on its own. Or am I grasping at straws?
By Theuns Eloff, Chair, FW de Klerk Foundation Board of Advisers, 26 November 2019