Gelyke Kanse and Others v Chairperson of the Senate of the University of Stellenbosch and Others

Gelyke Kanse, a voluntary association promoting equal opportunities for Afrikaans and indigenous languages, together with six brown and white students, challenged Stellenbosch University's 2016 Language Policy, seeking to reinstate the 2014 Language Policy. The 2014 Language Policy provided for parallel medium teaching in Afrikaans and English at undergraduate level, with Afrikaans having primacy - students wanting Afrikaans could receive it in all courses, while English-only students could not. The 2016 Language Policy shifted to guarantee 100% English offering of all classes, while maintaining some Afrikaans tuition but in diminished form. The applicants argued this violated their right to education in their language of choice under section 29(2) of the Constitution. The University justified the change based on the need to improve access for black students not conversant in Afrikaans who felt marginalized and stigmatized under the previous policy, and cited the cost (R640 million in infrastructure plus R78 million annually) of maintaining full parallel medium instruction as not reasonably practicable.

• Whether the 2016 Language Policy violated section 29(2) of the Constitution (right to receive education in official language of choice where reasonably practicable)
• Whether the 2016 Language Policy violated section 6(2) and 6(4) of the Constitution (protection and promotion of indigenous languages)
• The meaning and application of 'reasonably practicable' in section 29(2)
• Whether 'appropriate justification' exists for diminishing Afrikaans instruction once afforded
• Whether cost considerations can justify limiting language choice in education
• The relationship between language rights and access to education
• Whether the policy constituted administrative action subject to review

1. Leave to appeal is granted. 2. The appeal is dismissed, with no order as to costs in this Court. 3. The costs orders in the High Court are set aside. 4. In their place is substituted: 'There is no order as to costs.'

The right to receive education in an official language of choice under section 29(2) is subject to the qualification of 'reasonable practicability', which requires a context-sensitive analysis involving both factual and normative constitutional elements. The test of 'reasonable practicability' for conferring the right and 'appropriate justification' for diminishing it once enjoyed are essentially synonymous - both require consideration of equity, practicability, and the need to redress past racially discriminatory laws and practices. A public educational institution may legitimately diminish (but not eliminate) instruction in a previously privileged language where: (1) maintaining full instruction in that language creates barriers to access and feelings of exclusion/stigmatization for students not conversant in it; (2) the cost of avoiding such diminution while maintaining full access is substantial and not reasonably practicable given other institutional needs; and (3) the decision is made through a proper, thorough, inclusive and deliberative process. Cost is a legitimate consideration in determining what is 'reasonably practicable', and courts should give appropriate respect to institutional judgments on cost-benefit analyses, though not deference to unreasonable decisions. White Afrikaans-speakers, because of their historically and currently privileged position, cannot demand the same treatment as historically disadvantaged linguistic minorities.

Cameron J acknowledged that endorsing the University's policy 'comes at a cost' and observed that 'the flood-tide of English risks jeopardising the precious value of our entire indigenous linguistic heritage', though noting this is not the University's burden alone. Mogoeng CJ affirmed that Afrikaans is 'indeed an African language, our historic pride to be treasured by all citizens' with 'original African DNA' predating colonialism, and called upon corporate citizens to help preserve Afrikaans and develop other indigenous languages through private educational institutions under section 29(3). Froneman J's extensive concurrence (joined by Cameron J) warned of troubling consequences: that white English-speakers emerge 'linguistically unscathed'; that only those who can afford private English schools gain real language proficiency; and most troublingly, that poor black and brown people in under-resourced schools suffer most from effectively being limited to inadequate English instruction. Froneman J cautioned that the case establishes English dominance 'not only in tertiary education, but also from primary through secondary school to university' and expressed concern this Court as 'the ultimate protector of minority language rights' was blessing this result. He called for judgments in this Court to be written in various indigenous languages with translations, and urged communities to work together to progressively institutionalize isiXhosa, Afrikaans and English on an equal basis, stating 'we need not destroy one language to advance others.'

This judgment is significant for defining the scope and limitations of language rights in education under section 29(2) of the Constitution. It establishes that 'reasonably practicable' is not an absolute guarantee but must be balanced against equity, access, redress of past discrimination, and institutional resources including cost. The case confirms that where language policies have historically enjoyed privilege, they may be legitimately diminished (though not eliminated) to advance transformative goals of access and inclusion, particularly for previously disadvantaged groups. The judgment also clarifies that the test for 'reasonably practicable' (when conferring the right) is essentially synonymous with 'appropriate justification' (when limiting an existing right). The case reflects the ongoing tension in South African higher education between protecting minority language rights (particularly Afrikaans) and promoting access and transformation. Froneman J's concurrence importantly highlights the broader implications for all indigenous African languages and warns against the dominance of English as the de facto medium of instruction, noting the particular disadvantage this creates for poor and marginalized communities. The case is a key authority on the application of section 29(2) in tertiary education following the earlier Ermelo and AfriForum CC decisions.