University of the Free State v Afriforum and Another

In March 2016 the Council of the University of the Free State (UFS) adopted a new language policy replacing Afrikaans and English as parallel media of instruction with English as the primary medium. The change followed years of concern that the parallel-medium policy entrenched racial segregation, as Afrikaans classes were predominantly white while English classes were predominantly black. Afriforum and Solidarity, organisations representing Afrikaans interests, challenged the Council’s decision in the Free State High Court, arguing that it constituted unlawful administrative action under PAJA and that it violated s 29(2) of the Constitution and the national Higher Education Language Policy. The High Court reviewed and set aside the Council’s decision. UFS appealed to the Supreme Court of Appeal.

The appeal was upheld. The High Court’s order reviewing and setting aside the Council’s decision was replaced with an order dismissing the review application. The respondents’ application to strike out portions of the applicants’ affidavits was upheld, and appropriate costs orders were made.

This case is a leading authority on the distinction between administrative action and executive policy decisions in the context of university governance. It clarifies that the adoption of a university language policy is an executive decision subject to legality review rather than PAJA. The judgment provides an important interpretation of s 29(2) of the Constitution, confirming that the right to education in a language of choice is internally limited by what is 'reasonably practicable' in light of broader constitutional values, including equality and non-racialism.