Court moves beyond the past in favouring English

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By Professor Rosemary C. Salomone

The South African Constitutional Court’s recent unanimous decision upholding Stellenbosch University’s policy favouring English is important in both substance and tone for its evolving narrative on language, race and historical wrongs.

To fully understand what was at stake in the case, one has to go back to Stellenbosch’s beginnings. Achieving university status in 1918, the intent was to offer higher education to Afrikaans-speaking students. As time went on, Stellenbosch became an elite stronghold of Afrikaner tradition and a major force in preserving apartheid separatism.

That history still haunts the institution even though, as of 2018, only 58.1% of the students were white and not all of them were Afrikaners.

With the end of apartheid in the early 1990s, the university offered English instruction on a limited scale to accommodate primarily non-white students. In 2014, the university adopted a policy that offered parallel-medium instruction in English and Afrikaans with interpreting, mostly from Afrikaans to English. Postgraduate instruction was in English and Afrikaans, though English predominated.

In 2015 and 2016, Stellenbosch and its language policy became caught up in campus disruptions across the country. What began as the Twitter initiative #RhodesMustFall at the University of Cape Town gradually grew into a nationwide call #FeesMustFall, which then evolved into #AfrikaansMustFall, and #OpenStellenbosch with demands for ‘decolonialising’ higher education and for all-English instruction at former white Afrikaans universities like Stellenbosch.

Throughout the controversy, language became both an end in itself and a proxy for airing deeper economic and social grievances. Leading the charge were poor and working-class black students, many of whom did not speak English as their home language. English offered them social and economic mobility but also a neutral alternative to Afrikaans and the subordinating role it had played under apartheid.

For white Afrikaners, the controversy was about preserving their social status as well as their identity, of which Afrikaans was a critical part.

Many other mixed race students, whose home language was Afrikaans, were less visible and vocal, though they too clung to the language for both pragmatic and identity reasons.

Responding to campus protests, the university established a working group that developed the 2016 Language Policy. Taking effect in January 2017, the stated intent was to promote “equal access, multilingualism and integration”.

The university agreed to equally offer parallel classes in English and Afrikaans “where reasonably practicable and pedagogically sound”. Where that was not the case, classes would be ‘dual medium’, that is, taught in English with a summary or key notes in Afrikaans, while questions would be answered in the languages in which they were asked.

Afrikaans classes would still be offered in the first year. Subject to student demand and institutional resources, Afrikaans undeniably lost its longstanding “position of primacy”.

The court decision
Those are the facts that brought Gelyke Kanse, a voluntary association whose name translates to ‘even chances’ or ‘equal opportunities’, along with six white and mixed race Afrikaans-speaking students, to challenge the 2016 policy in court. Rebuffed in the High Court, Western Cape Division, they sought direct appeal to the Constitutional Court of South Africa on the constitutional claims.

The group primarily argued that the policy violated the right under Section 29 (2) of the Constitution to “receive education in the official language” of “one’s choice” in public educational institutions where “reasonably practicable” taking into account “equity”, “practicability” and “the need to redress the results of past racially discriminatory laws and practices”.

It also raised the state’s obligation under Section 6 (2) to “take practical and positive measures to elevate the status and advance the use” of the country’s 11 official languages, including English and Afrikaans, and under Section 6 (4) to treat all official languages “equitably”.

The court’s analysis is striking on a number of counts. First, the decision is unanimous in contrast to the court’s 2017 ruling upholding the English policy at the University of the Free State, which elicited three dissenting opinions. There the new policy aimed at relieving racial tensions; here it was racial marginalisation. There the court upheld a policy that effectively eliminated Afrikaans; here Afrikaans was only “diminished”.

Though bound by the earlier ruling, the majority and two concurring opinions take on a more conciliatory and less politically charged tone. They make only fleeting references to the wrongs of the past as compared to Free State’s overarching theme of redress and “radical” transformation with repeated references to “healing, reconciliation and reparation” to undo a history of “racial supremacy”.

Weighing the costs and the benefits, the court recognises that financial considerations can set limits on individual rights in judging what is “reasonably practicable” under the Constitution. The court agrees with the university that offering parallel streams in English and Afrikaans on an equal basis, as Gelyke Kanse proposed, would prove “enormously, if not prohibitively, expensive”, raising the cost to students by 20%.

The court accepts the university’s evidence that the previous policy’s dual medium classes, with interpreting from Afrikaans to English, marginalised and stigmatised black students who could not speak Afrikaans. It acknowledges the intent underlying the 2016 policy to grant “equitable access” to teaching and learning to black students who were not proficient in Afrikaans but were predominantly isiXhosa-speaking.

Looking at the evidence objectively, the court notes that most Afrikaans-speaking first-year students could be taught in English while a significant minority of entrants lacked the skills for Afrikaans instruction. The 2014 policy made those students, overwhelmingly black, feel “marginalised, excluded and stigmatised”.

Finally, the court places the language question and “equitable treatment” on politically neutral terrain. It notes the “global march of English” and its effects on the country’s entire linguistic heritage, while recognising Afrikaans as a “cultural treasure of South African life”.

A cautionary tale
Similar concerns for indigenous languages are echoed in the two concurring opinions. The first, written by the chief justice, looks to the private sector to take up the charge while calling on the state to stand ready as soon as public resources allow. The second, written in both English and Afrikaans, is what it calls a “cautionary tale” on the implications of the decision for multilingualism and language rights throughout schooling in South Africa and beyond.

Rather than dwelling on the past, the opinion looks to the present and the future, underscoring the connection to race, language and poverty and the importance of language in shaping self-identity. It specifically argues for mother tongue instruction in both Afrikaans and other indigenous languages, not only as a matter of law, but as a matter of good pedagogy based on sound research.

It directly takes on English as the dominant global language and how it favours more privileged white first language English-speakers, as well as white, mixed race and black second-language speakers, who attended English language private schools or well-resourced public schools.

It makes the case for mother tongue instruction for marginalised mixed race students whose home language is Afrikaans, who are the lowest in numbers attending higher education, and who “suffer most” from an education limited to English.

Within this multilingual narrative, the opinion argues for moving beyond the past, where Afrikaans admittedly was a means of power and oppression, to a place where Afrikaans speakers can be proud of their language and speakers of other indigenous African languages can claim their right to “use their language anywhere and everywhere”.

The multilingual turn
The long-awaited Constitutional Court decision, in both majority and concurring opinions, opens a window on the direction the court seems to be taking in its struggle to apply the letter and spirit of the Constitution in resolving the tensions among English, Afrikaans and other indigenous languages.

Without forgetting the wrongs of the past, the court appears to be shifting toward present inequities and a more inclusive and less politically charged multilingual narrative.

It remains to be seen whether that shift can reshape public discourse and policies on language and education, especially given the global dominance of English, and whether it can move the country toward the Constitution’s promise of transformation and redress.

That being said, the outcome undoubtedly is a heavy blow to the many Stellenbosch alumni who are deeply invested in preserving the university’s Afrikaans tradition. It is an even heavier blow to the petitioners who lost a three-year battle.

The court, nonetheless, suggests that they may mount a future challenge to the policy as implemented if it gives credence to their fears that the policy is “sidelining” Afrikaans, though the evidentiary bar may be insurmountably high.

Given Afrikaans’ past role, both real and symbolic, in maintaining racial exclusion at Stellenbosch, the Constitutional Court’s decision diminishing the language’s present-day relevance is indeed historic, not just for the university but for South Africa.

Rosemary Salomone is the Law School’s Kenneth Wang Professor of Law. This article published originally in the University World News on October 19, 2019.