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

UNISA, a historically bilingual (English and Afrikaans) distance-learning university, adopted a new language policy in 2016 which replaced its dual-medium policy with English as the sole language of learning and tuition. The policy was recommended by the Senate and approved by the Council in terms of the Higher Education Act and the national Language Policy for Higher Education. AfriForum NPC challenged these decisions, arguing that the removal of Afrikaans as a language of instruction was unconstitutional and unlawful. Initially relying partly on PAJA, AfriForum later confined its challenge to the principle of legality, contending that UNISA failed to show that it was not reasonably practicable to continue offering tuition in Afrikaans as required by s 29(2) of the Constitution. The High Court dismissed the application, and AfriForum appealed to the Supreme Court of Appeal.

The appeal was upheld with costs. The High Court’s order was set aside. The resolutions of UNISA’s Council and Senate approving the 2016 language policy were reviewed and set aside. The new language policy was declared unconstitutional and unlawful to the extent that it removed Afrikaans as a language of learning and tuition. UNISA was ordered to restore and publicise Afrikaans modules and to pay the costs of the application.

The case affirms the constitutional protection of language rights in higher education and clarifies the evidentiary burden on universities seeking to replace multilingual policies with English-only instruction. It reinforces the application of the principle of legality, rather than PAJA, to university language policy decisions and underscores that s 29(2) requires demonstrable proof that continued instruction in another official language is not reasonably practicable.