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ConCourt ruling on UFS missed the point


The Constitutional Court judgment of December  29 on the language policy for the University of the Free State (UFS) is seminal and its implications are several.

The judgment’s outcome affirms that the UFS language policy is not in contravention of the Constitution or the language policy for higher education. AfriForum and Solidarity’s application for leave to appeal was refused and the judgment confirms that English will be the primary medium of instruction, although Afrikaans may be used in specific professional degrees at the level of the tutorial, rather than the lecture.

The judgment considers the role of Afrikaans in the erstwhile UFS language policy: “It is absolutely impossible to provide language of choice without indirectly discriminating on the basis of race” and associates this with the unintended consequence of racially segregated classrooms, which in turn contributes to race tension and an absence of race integration. English is seen to be a “more equitable” vehicle for transformational change than Afrikaans.

But the English/Afrikaans binary is, as it was in 1976, a false one.

The argument that it is impossible to provide a language of choice is not constitutionally valid, and is educationally flawed. The Constitution is proactive in its enablement of choice of language. What needs to be undertaken by universities is a proactive management (in residential life, in the classroom) of racism and sexism in higher education. By removing the availability of language choice, diversity is not enabled despite the judgment’s claims that it might be.

Parallel mediums of instruction would have guaranteed access to mostly black students for whom English is an additional language; Afrikaans would have provided a better form of access, on the basis that it is home language, to the mostly white speakers of Afrikaans. The decision to scale down and phase out the use of Afrikaans is thus not aimed at better access for anyone; it is rather aimed at equally disadvantaged access for everyone.

Three justifications are provided.

First: “Afrikaans has … fallen into relative disuse” because many Afrikaner students allegedly prefer English because they “see themselves as living, learning and labouring in a global world where English competence provides more access and mobility than any other South African language”. This claim about market-related demand and supply is questionable. Faced with the pressures arising from and leading to the use of English, many white Afrikaans-speaking students, like their black counterparts, “choose” English. This is not the “choice” anticipated by the Constitution. Unseen are the numerable other “markets” that crave professionals able to use more than English. English becomes the transcendent language: capable of transcending race divides in education and in the market. The possibilities that other South African languages may develop to occupy teaching and learning spaces are evaded. The ConCourt ruling stated: “Sadly, there are no reasonable chances of success”; this claim notwithstanding experiences of multilingual success at universities such as KwaZulu-Natal, Rhodes and even Cape Town.

Second: the use of the home language is justified only when this enables a smoother transition to English instruction. The judgment relies heavily on the Ermelo case and judgment by J  Moseneke in which contexts (school and university) are perceived to be commensurate — they are not. The transition from home language to English at schools is premised on the idea that the home language is in place.

At university level, the transition should be from a schooling system in which English has been learnt as an additional language. If that logic is followed, then there is no need for constitutional provisions for multilingualism because the aim of the Constitution is no longer maximal access to education in the home language but rather universal access to education through English as an additional language.

Third: the judgment evades acknowledging that in South Africa education is associated not with English, but with quality education through the medium of English in middle-class schools. The judgment’s logic is convoluted: “It would be unreasonable to wittingly or inadvertently allow some of our people to have unimpeded access to education and success at the expense of others as a direct consequence of a blind pursuit of the enjoyment of the right to education in a language of choice. This, in circumstances where all could properly be educated in one common language.” The new constitutional order confirming English as the common language denies the elitism associated with it.

The judgment is retro-focused and evades the implications for other languages-in-development for higher education: it affirms a perceived failure to transform an institution associated with Afrikaans provision, but in so doing makes transformation the burden of a language.

It would be naive to imagine that English is anything other than a lingua franca rather than a bearer of a specific or a common culture. The judgment sacrifices South African languages in the interests of a national unity that remains fragile, and an appreciation of diversity that is still elusive.

Robert J Balfour is deputy vice-chancellor: teaching and learning at North-West University

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