Chairperson of the Council of the University of South Africa v AfriForum NPC

UNISA adopted a revised language policy in 2016 which phased out Afrikaans as a language of teaching and learning and removed the prior guarantee that courses would be offered in both Afrikaans and English. The policy sought to promote access, equity and the development of indigenous African languages at South Africa’s largest university. AfriForum NPC challenged the policy, contending that it unjustifiably limited the right to receive education in an official language of choice under section 29(2) of the Constitution and that the decision was irrational and procedurally flawed. The High Court set the policy aside, and the Supreme Court of Appeal (SCA) largely upheld that decision. UNISA and its governing bodies appealed to the Constitutional Court.

Leave to appeal was granted but the appeal was dismissed, save for limited relief. The SCA order setting aside UNISA’s language policy was suspended until the commencement of UNISA’s 2023 academic year. If UNISA continued with the 2016 policy, it was required to comply with section 29(2) of the Constitution; if it adopted an entirely new policy by 2023, the SCA order (except for costs) would fall away. UNISA was ordered to pay AfriForum’s costs in the Constitutional Court.

The case forms part of a trilogy of Constitutional Court decisions on university language policies and clarifies the application of section 29(2) in higher education. It underscores that while universities may transform language regimes to promote access and redress, they must properly justify limitations on language rights with evidence. The judgment balances transformation imperatives, institutional autonomy, and constitutional language rights, and provides guidance on appropriate remedial relief.