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

The University of South Africa (UNISA) is a distance university with a long history of offering tuition in both English and Afrikaans. In 2016, UNISA's Senate (on 30 March 2016) and Council (on 28 April 2016) adopted a new language policy that made English the sole language of learning and tuition (LOLT), effectively removing Afrikaans as a LOLT. This replaced the previous dual-medium policy that had been in place since 2006. AfriForum NPC challenged these decisions, seeking to have them reviewed and set aside on grounds that included breach of section 29(2) of the Constitution (the right to receive education in the official language of one's choice where reasonably practicable), breach of the principle of legality, and failure to consult affected persons. The Gauteng High Court dismissed the application, finding that it was not reasonably practicable for UNISA to continue offering tuition in Afrikaans.

• Whether UNISA's decision to adopt an English-only language policy violated section 29(2) of the Constitution, which guarantees the right to receive education in the official language of one's choice where reasonably practicable
• Whether UNISA established appropriate justification for removing the right of Afrikaans students to receive tuition in their language of choice
• Whether the considerations in section 29(2) - equity, practicability, and the need to redress past discrimination - were properly applied
• Whether UNISA failed to comply with its own Senate rules in breach of the principle of legality
• Whether UNISA failed to adequately consult with affected persons in breach of the principle of procedural rationality

The appeal was upheld with costs, including costs of two counsel. The order of the High Court was set aside and replaced with: (a) the resolutions of Council and Senate adopting the new language policy were set aside; (b) the new language policy was declared unconstitutional and unlawful to the extent that Afrikaans was removed as a LOLT; (c) UNISA was ordered to prominently publish on its website, in three major Afrikaans newspapers, and transmit by email to all students a notice: (i) containing a full list of modules offered in Afrikaans as at 28 April 2016; (ii) offering prospective students admission to such modules at first year level; (iii) offering existing students who were enrolled or would have enrolled in Afrikaans courses but were forced to follow modules in English the choice to re-enrol to follow the module in Afrikaans until completion of studies; (iv) stating all such modules will be presented in full in following academic years until the language policy is lawfully amended, if at all; (d) UNISA to pay the costs of the application.

The binding legal principles established are: (1) Section 29(2) of the Constitution applies in its entirety to all educational institutions, including universities, and imposes both positive and negative obligations; (2) Where a learner already enjoys the benefit of being taught in an official language of choice, the State and public educational institutions bear a negative duty not to take away or diminish that right without appropriate justification; (3) The test for "reasonable practicability" under section 29(2) contains both factual elements (relating to resource constraints and feasibility) and normative elements (relating to equity, redress, and non-racialism as constitutional values); (4) When removing an existing language right, an institution must establish with proper evidence that it is not reasonably practicable to continue offering tuition in that language; (5) The considerations prescribed by section 29(2) - equity, practicability, and the need to redress past discrimination - are mutually reinforcing and must be explicitly addressed in decision-making; (6) Cost considerations alone are insufficient justification without proper data, investigation, consideration of alternatives (such as cross-subsidization), and demonstration that the costs would be prohibitive; (7) Educational institutions must comprehend the constitutional parameters within which their powers to determine language policy must be exercised; (8) The statistics and data underlying a decision to remove language rights must be properly presented to decision-making bodies; (9) Distance education institutions present different considerations than residential universities regarding language policy, as they do not create risks of racial segregation in physical classrooms.

The Court made several important non-binding observations: (1) The Chief Justice's remarks in AfriForum v University of Free State about the emotive and sensitive nature of language issues, particularly regarding Afrikaans and its historical association with apartheid, are relevant and require careful, detached handling by constitutional defenders; (2) At a conceptual level, dual-medium institutions might exist without necessarily nurturing or perpetuating unfair advantage or racial discrimination; where this is so, the right to be taught in a language of choice could be effectively accessible without undermining constitutional aspirations; (3) The Court questioned the logic of "knocking down a fully developed and functional language of learning and tuition to 'develop the other official languages to its standard'" when there is no sound reason to do so other than dwindling interest; (4) The Guidelines for Discontinuation of Afrikaans module-by-module may have been a better alternative than wholesale removal of the language; (5) The Court noted UNISA's "noble and self-admittedly progressive goal" to develop all South African indigenous languages but questioned how this would be advanced by removing Afrikaans; (6) There was implicit criticism of UNISA's understanding that section 29(2) obligations applied to "the State" but not to UNISA as an educational institution - this interpretation was described as "fallacious"; (7) The Court suggested that proper consultation should have occurred with organizations advocating for linguistic rights and with the affected students themselves, not merely with institutional bodies like the SRC.

This judgment is significant for several reasons: (1) It clarifies that section 29(2) of the Constitution applies in its totality to the education sector, including universities; (2) It establishes that universities bear a negative duty not to remove existing language rights without appropriate justification showing it is not reasonably practicable to maintain them; (3) It defines the test for "reasonable practicability" as having both factual elements (resource constraints, feasibility) and legal/normative elements (equity, redress, desegregation, non-racialism); (4) It emphasizes that the mere exercise of one's right to be taught in their mother tongue cannot be rendered unconstitutional where it has not been shown that non-Afrikaans students would be deprived of learning opportunities, that maintaining it was unaffordable, or that it would result in unlawful racial discrimination; (5) It distinguishes distance education from residential universities in terms of language policy implications - distance education does not create the same risks of racial segregation in classrooms; (6) It sets high evidentiary standards for universities seeking to remove existing language rights, requiring proper data, costing studies, consideration of alternatives like cross-subsidization, and explicit engagement with constitutional requirements; (7) It recognizes that even a "minority" of students (25,000-30,000 out of much larger student body) may constitute a significant number deserving constitutional protection; (8) It affirms that the development of indigenous African languages cannot be used as justification for removing an already developed and functional language of learning without sound reasons. The judgment represents an important application of language rights in the higher education context and reinforces constitutional protection for minority language speakers.