A court decision with consequences for languages in HE

The 26 April decision of the Gauteng High Court in Pretoria upholding English-only courses at the University of South Africa (UNISA) is yet another sign that Afrikaans is losing its status in post-apartheid South Africa. It remains to be seen whether the court’s multilingual turn and conciliatory tone will influence university policies and future court decisions on language rights.

Language has long been contested terrain in South Africa. In recent years, some of the fiercest battles have been fought in universities over attempts to eliminate Afrikaans instruction in favour of an English-only programme. The rights group, AfriForum, has repeatedly charged that these policies violate the South African Constitution. The group met a major defeat in December 2017 in a Constitutional Court ruling supporting the decision of the University of the Free State (UFS) to provide all instruction in English.

Significant programmatic differences left open the possibility of a different judicial outcome in the case against UNISA. The Pretoria court, however, thought otherwise, but under an unexpected line of reasoning with potential policy implications.

A unique parallel programme

UNISA is a ‘distance learning institution’. Students from all over South Africa and beyond take courses online. Responding to decreasing student demand, beginning in 2010, the university incrementally limited the number of courses in Afrikaans until it totally eliminated them in 2016.

As in other universities with parallel language programmes, English-taught courses have typically been the choice of black students who view English as the language of emancipation and Afrikaans as the language of oppression. Though many of them may have attended English-language primary and secondary schools, English is not necessarily their home language.

An increasing number of Afrikaans-speaking students, who may be white or coloured (mixed race), have also chosen English instruction for better access to jobs in the global economy. A shrinking number still clings to Afrikaans for ideological or sentimental reasons as part of their core identity.

To get a sense of what UNISA intended in adopting the new policy, a look at the ‘preamble’ is useful. Here the policy talks about “mother-tongue-based multilingual education” as “an ideal that must be the ultimate goal”. And though the policy recognises that the “time span to achieve that goal” might extend into “future generations”, the University had to take “practical steps … now … to start on that road”. Among the stated principles shaping the policy are “human dignity”, “equality” and the “recognition that indigenous African languages have been historically disadvantaged”.

While all instruction in undergraduate courses would be in English, the university would provide supportive services like multilingual glossaries, tutoring and translations for basic study materials in all remaining official languages, including Afrikaans. Moving forward, it would offer a “selected number” of modules and programmes in more than one official language based on “capacity”.

Postgraduate research students would be allowed to write their proposals, theses and dissertations in any official language so long as appropriate supervision is available. Students already in the programme would have until 2019 to complete their coursework in Afrikaans.

Constitutional principles

AfriForum has claimed procedural irregularities in the way UNISA approved the policy, which could or could not prove persuasive on appeal. The court’s resolution of the substantive constitutional claims and its underlying reasoning, however, are especially compelling and potentially far-reaching.

The 1996 South African Constitution is considered one of the most progressive in the world on language rights and language use. It designates 11 official languages including English, Afrikaans and nine indigenous African languages, which “must enjoy parity and esteem and be treated equally”.

It also grants to all “the right to receive education in the official language or languages of their choice in public educational institutions”. Yet that right is not unqualified. Learning in the language of choice must be “reasonably practicable”, taking into account “equity, practicality and the need to redress the results of past discriminatory laws and practices”.

Though this sounds like a tall order for a country with such a troubled past, the Constitutional Court has added a contextual gloss that leaves some discretion in the hands of education officials, subject to judicial oversight.

The South African Constitutional Court on several occasions has interpreted these provisions, most recently in the UFS ruling, which the Pretoria court used as its “starting point”. Critical differences in the facts, however, gave the court space to chart a rationale that focused less on “redress” of past wrongs, while acknowledging them, and more decidedly on “equity” and “practicality” in allocating limited resources across all African languages and favouring English as chosen by an overwhelming majority of students.

At UFS the parallel programme arguably separated students on the basis of race. Primarily black students enrolled in the English stream, while white Afrikaners as well as coloured students enrolled in the considerably smaller Afrikaans stream.

The majority opinion weighed heavily on the physical separateness of the programme. It was all about the harms of racial separation and the implicit force of English as a unifying neutral language. The subtext was about the symbolic association of Afrikaans with the racially motivated wrongs of apartheid.

The majority made no mention of the state’s constitutional duty to treat all 11 official languages “equally”. Nor did it seem aware of a draft revised language policy issued by the South African Department of Higher Education and Training just days before the court decision. The draft specifically required universities to “diversify the languages of instruction to include indigenous official languages” and called for each campus to cultivate a “culture of multilingualism”.

The UNISA programme, in contrast to UFS, operates in virtual space. Students taking courses in English or Afrikaans do not physically sense a racial divide. And so the court was able to avoid any reference to racial tensions and emphasise the more unifying theme of multilingualism, effectively turning AfriForum’s argument to preserve Afrikaans instruction on its head.

Rather than focus on redressing past racial harms, the court emphasised UNISA’s commitment to “redressing the imbalances that exist in languages”. Mother tongue education could not “only be for Afrikaans students, and not also for the other African languages”.

Beyond being “equitable”, the policy also was “practical”. By the time the court heard the case on the merits, the English-only policy had been in place for three full semesters. “To turn the clock back,” the court said, “would have obvious practical, resource and cost implications … for the benefit of an ever diminishing small number of students.”

In 2016 when the plan was adopted, only 1% of modules were in Afrikaans, while only 8.6% of students reported Afrikaans as their home language, though AfriForum claims 20,000 to 30,000 in real numbers. In the end, the court admitted that “unfortunately” English still retained a “privileged status” for “purely pragmatic reasons”.

Moving forward

Aside from the constitutional merits, as a matter of policy UNISA acted responsibly. Facing limited resources amid calls for equity and language parity from African language students, the university incrementally trimmed down the Afrikaans offerings over the course of six years.

It recognised that even students who voluntarily enrolled in English courses were not sufficiently proficient in English and needed supplemental supports in their native language. It did not cast Afrikaans-speaking students into an English abyss, but offered additional services to help them succeed.

Only time will tell whether the multilingual narrative will gain force and help steer the country beyond the past toward a long-overdue consensus on the respective roles of English, Afrikaans and other African languages.

The more immediate question is whether and how it might influence the courts, and especially the Constitutional Court, in future cases. Pending litigation against Stellenbosch University, a bastion of white Afrikaner tradition with yet a different contextual spin, may put the weight of multilingualism vis-à-vis redress of past wrongs to a demanding test.

Rosemary Salomone is the Kenneth Wang Professor of Law at St John’s University School of Law, United States. She is the author of True American: Language, identity, and the education of immigrant children (Harvard University Press) and is currently writing a book on global English, identity and linguistic justice for Oxford University Press.