University of the Free State v Afriforum

The University of the Free State (UFS) has a 113-year history with changing language policies. From 1904 English was the sole medium of instruction, changing to Afrikaans in 1953, and in 1993 a parallel-medium policy was introduced. In 2003, UFS adopted a dual-medium language policy (Afrikaans and English). However, this policy had the unintended consequence of segregating lecture rooms along racial lines, with Afrikaans classes predominantly white and English classes predominantly black. This problem persisted despite repeated reports. In June 2015, UFS Council mandated a Language Committee to formulate a new language policy through an open consultation process. After thorough investigation, debate, and deliberation involving linguistic experts, the Committee found that the parallel-medium policy was entrenching racial separation and impeding integration. On 11 March 2016, Council adopted a new policy making English the primary medium of instruction, with some exceptions for professional programs like Education and Agricultural Sciences. Afriforum and Solidarity challenged this decision, seeking to review and set aside the Council's decision to adopt the new policy. The Full Court of the Free State Division set aside the decision on the basis that it constituted unlawful administrative action under PAJA. UFS appealed.

• Whether the decision by the University Council to adopt a new language policy constituted 'administrative action' as defined in PAJA
• Whether the decision was subject to legality review on the ground that it was made in the exercise of a public power
• Whether UFS misconstrued its powers under section 29(2) of the Constitution by failing to properly apply the 'reasonably practicable' standard
• Whether the new language policy was constrained by and had to comply with the Higher Education Language Policy (LPHE) in terms of section 27(2) of the Higher Education Act
• Whether Afriforum and Solidarity had standing to bring the review application
• Whether certain allegations in the respondents' papers should be struck out

The appeal was upheld with costs including costs of two counsel, save that in the case of Afriforum each party was to pay its own costs. The appeal in the strike-out application was upheld with costs on an attorney-client scale. Various paragraphs of the respondents' affidavits were struck out. The order of the Free State High Court was set aside. The respondents' application to review and set aside the Council's decision to adopt the new language policy was dismissed with costs, save that in Afriforum's case each party pays its own costs. The strike-out application was upheld with attorney-client costs.

The binding legal principles established by this judgment are: (1) The decision to adopt a policy is an executive decision, not administrative action under PAJA; only the implementation or application of policy constitutes administrative action. (2) The 'reasonably practicable' standard in section 29(2) of the Constitution has normative content beyond mere resource constraints and includes constitutional considerations such as equity, practicability, redress, desegregation and non-racialism. (3) The two parts of section 29(2) are 'mutually reinforcing' - constitutional norms in the second part (equity, practicability, redress) also inform the assessment of whether language instruction in a chosen language is reasonably practicable in the first part. (4) Even where a language policy is practical in resource terms, it may not be reasonably practicable if it offends constitutional norms such as by entrenching racial segregation. (5) Changed circumstances (such as changing demographics and racial segregation effects) can affect whether it remains reasonably practicable to continue a particular language policy. (6) Under section 27(2) of the Higher Education Act, the Minister's Higher Education Language Policy does not impose binding legal obligations on universities; it is a guideline from which universities may depart for good reason, consistent with university autonomy. (7) The test for legality review is whether, objectively viewed, a decision was rationally connected to the purpose for which the power was given, considering whether the decision-maker acted within its powers and considered relevant material.

The court made several obiter observations: (1) The court noted that the dispute potentially raises difficult constitutional questions including whether the new policy unfairly discriminates against linguistic and cultural minorities, promotes majoritarian hegemony at the expense of diversity, or undermines the constitutional language scheme requiring the State to elevate all official languages. However, such questions can only be confronted through a substantive constitutional challenge to the policy itself, not through judicial review of the decision to adopt it. (2) The court expressed appreciation for the importance of Afrikaans as a cultural treasure in South African life, quoting Sachs J's description of it as 'one of the cultural treasures of South African national life, widely spoken and deeply implanted, the vehicle of outstanding literature, the bearer of rich scientific and legal vocabulary and possibly the most creole or "rainbow" of all South African tongues.' (3) The court emphasized that UFS's conduct was 'exemplary' in the manner it approached the decision to reconsider the 2003 policy, showing proper research, debate and deliberation. (4) The court noted that the new policy was 'carefully calibrated' with transitional provisions, piloting, tutorial support, and continuation in certain professional programs. (5) The court expressed doubt about whether Afriforum had demonstrated a legal interest sufficient for standing, noting it did not represent all Afrikaans-speaking students and had not shown its members' rights were adversely affected, though it did not decide the point given UFS's concession. (6) The court observed that language rights overlap with cultural rights and are very emotive issues of considerable importance to many South Africans beyond Afrikaans-speakers.

This case is significant in South African law for several reasons: (1) It clarifies the distinction between executive decisions (policy-making) and administrative action (policy implementation) for purposes of PAJA review. (2) It authoritatively interprets section 29(2) of the Constitution, establishing that the 'reasonably practicable' standard for language instruction has normative content and is not limited to resource constraints, but includes constitutional values like equity, redress, and non-racialism. (3) It establishes that the two parts of section 29(2) are 'mutually reinforcing' and that changed circumstances can affect whether it remains reasonably practicable to continue a language policy. (4) It clarifies the relationship between university autonomy in setting language policy under section 27(2) of the Higher Education Act and the Minister's Higher Education Language Policy, holding the latter is a guideline rather than binding prescription. (5) It addresses the tension between language rights protection and other constitutional imperatives like transformation, desegregation and equality in the higher education context. (6) It demonstrates application of the Biowatch principle on costs in constitutional litigation. The case has important implications for language policy development at South African universities and balancing competing constitutional values in the post-apartheid transformation context.