Picture: ISTOCK
Picture: ISTOCK

Economic Freedom Fighters spokesman Mbuyiseni Ndlozi tweeted from inside SA’s apex court on the third last day of December: "Afrikaans just fell here in constitutional court."

In one swift judgment the court relocated Afrikaans to the sidelines of the University of the Free State’s lecture halls.

The university, once an Afrikaans-only institution, adopted a new language policy in 2016. It made English the sole language of instruction, and dropped Afrikaans as its partner — except where the need existed to keep Afrikaans classes, such as in the departments of education and theology, and in tutorial classes.

This policy was first reviewed and set aside by the high court in Bloemfontein, but when taken on appeal to the supreme court of appeal in the city, the court held that the monolingual policy should be implemented. This led lobby group AfriForum and trade union Solidarity to take the battle to the constitutional court.


Afrikaans a language of instruction has been an issue at various universities in SA

Chief justice Mogoeng Mogoeng wrote the majority judgment, which stated that Afrikaans had, once again — but this time inadvertently — led to segregation. Mogoeng emphasised the need for context on an issue that had the potential to divide South Africans on racial lines or worsen pre-existing divisions.

The context in this matter includes looking into SA’s history: Afrikaans, as medium of instruction, was forced upon black South Africans, an event that led to the 1976 student uprisings during apartheid.

Mogoeng said former education minister Kader Asmal developed a language policy framework for higher education institutions. It underscored the need for multilingualism, expressing support for the retention and development of Afrikaans as a medium of instruction, as long as it did not unjustly deprive others of access to higher education and wittingly or unwittingly become an instrument for racial or narrow cultural discrimination.

This, the court found, was indeed the case. "The university is in effect saying that President [Nelson] Mandela’s worst nightmares have come to pass. The use of Afrikaans has unintentionally become a facilitator of ethnic or cultural separation and racial tension. And this has been so from around 2005 to 2016. Its continued use would leave us with the results of white supremacy not being addressed but kept alive and well," Mogoeng wrote in the majority judgment, explaining why the university’s policy revision had become necessary.

Debate about Afrikaans as a language of instruction has not been an issue at the University of the Free State only. Protests at traditionally Afrikaans institutions like Stellenbosch and Pretoria challenged the hegemony of white Afrikaans culture in university communities.

Only two justices supported a dissenting judgment, penned by Judge Johan Froneman. He took issue with the fact that the matter was not heard by oral arguments, but was decided based on the written arguments filed in court. He contended that factual issues were not cleared up in the written submissions.

I sincerely hope I am proved wrong, but I fear the main judgment’s reasoning and content does not bode well for the establishment and nurturing of languages other than Afrikaans and English as languages of higher learning

"This has enormous implications beyond the confines of the university’s campus," Froneman said, adding that it sanctions an approach that deprives speakers of one of SA’s official languages of the constitutional right to receive education in the language of their choice. This, Froneman said, had not yet been dealt with authoritatively by the court. He said it was a novel matter to find that the mere exercise of a language can amount to unfair racial discrimination that would justify taking away that right. And for Froneman, this was a clear situation of merely taking it away.

The court was split across racial lines in this judgment.

Afrikaans took a significant through the judgment, but Froneman warned the collateral damage of the judgment could be to the development of the other official languages. "I sincerely hope I am proved wrong, but I fear the main judgment’s reasoning and content does not bode well for the establishment and nurturing of languages other than Afrikaans and English as languages of higher learning. It may well be that it is better for the country to concentrate on the inclusiveness that English might bring as the sole language of instruction — but that is a choice that ought to be made by the public rather than this court," Froneman said.

Rakwena Monareng, CEO of the Pan SA Language Board, established to promote multilingualism, lamented the judgment.

It "doesn’t speak well when it comes to the development of official languages other than English", and was contrary to the national agenda of multilingualism, Monareng said. "We need to decide whether we want multilingualism or not.

"If we want to scrap it, let’s say it."