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

UNISA is South Africa's largest distance-learning university. In 2016, its Council and Senate adopted a revised language policy that phased out Afrikaans as a medium of instruction, making English the sole language of teaching and learning. Previously, courses had been offered in both English and Afrikaans under a dual-medium policy since 2010. The stated objective of the new policy was to enhance the status of indigenous African languages while phasing out Afrikaans. AfriForum challenged this decision, arguing it violated section 29(2) of the Constitution (the right to receive education in one's official language of choice where reasonably practicable), was irrational, and failed to comply with procedural requirements. The High Court dismissed the application. The Supreme Court of Appeal upheld the appeal, declaring the 2016 language policy unconstitutional and unlawful, and ordering UNISA to reinstate Afrikaans modules discontinued after the policy's adoption.

• Whether UNISA's 2016 language policy violated section 29(2) of the Constitution by phasing out Afrikaans as a language of teaching and learning
• Whether UNISA, as an organ of state, complied with its constitutional obligation to consider all reasonable educational alternatives and account for equity, practicability, and the need to redress past racially discriminatory laws and practices
• Whether UNISA's decision to adopt the new language policy was rational
• Whether UNISA complied with procedural prescripts under its own rules and section 27(2) of the Higher Education Act
• What appropriate remedy should be granted

Leave to appeal granted. Appeal dismissed save as to remedy. The Supreme Court of Appeal's order was suspended until the commencement of UNISA's 2023 academic year. If UNISA decides to continue with the 2016 language policy, it must comply with section 29(2) of the Constitution. If UNISA adopts an entirely new language policy by the 2023 academic year, the Supreme Court of Appeal's order (save for costs) will fall away. UNISA ordered to pay AfriForum's costs in the Constitutional Court, including costs of two counsel.

The binding legal principles established are: (1) Universities, as organs of state, are bound by section 29(2) of the Constitution and must consider all reasonable educational alternatives, taking into account equity, practicability, and the need to redress results of past racially discriminatory laws and practices when determining language policy. (2) Where students already enjoy the benefit of being taught in an official language of choice, the state (including universities as organs of state) bears a negative duty not to take away or diminish that right without appropriate justification. (3) "Reasonable practicability" under section 29(2) consists of both factual components (relating to resource constraints and feasibility) and normative components (the legal standard of reasonableness tested against constitutional norms including equity, redress, and non-racialism). (4) The test for reasonable practicability is objective, but decision-makers must demonstrate that they actually considered the relevant constitutional factors; courts will scrutinize the facts advanced while according appropriate respect to institutional judgments. (5) Equity considerations may be met through dual-medium tuition at distance-learning institutions where there is no risk of racial segregation or exclusion. (6) There must be evidence that discontinuing tuition in one language is necessary for developing other languages; one indigenous language cannot simply be sacrificed for others without justification. (7) Compliance with section 29(2) extends beyond mere availability of resources and requires substantive engagement with constitutional norms.

The Court made significant obiter observations on the contested history of Afrikaans, noting: (1) Afrikaans is a creole language that developed from Dutch, Malay, Portuguese, Khoi languages, and Arabic-Afrikaans, with major contributions from enslaved peoples and indigenous Khoisan populations. (2) The narrative of Afrikaans as exclusively a "white man's language" or "language of the oppressor" is a misconceived one-dimensional portrayal that ignores its diverse origins and the fact that today the majority of Afrikaans speakers are black. (3) During Afrikaner nationalism, Afrikaans was appropriated and weaponized for ethnic mobilization and became associated with apartheid oppression, but this represents only part of its complex history. (4) The "white" history of Afrikaans has shamefully overlooked its equally important "black" history. (5) Universities as intellectual hubs of transformative constitutionalism must lead decolonization of language by progressively introducing all indigenous languages as languages of teaching and learning. (6) The "flood-tide of English" poses a real threat to minority languages, including Afrikaans. (7) While Afrikaans cannot continue to enjoy a privileged position to the exclusion of other indigenous languages neglected under apartheid, its one-dimensional portrayal must be disputed by asserting its heterogeneity. (8) White Afrikaans speakers have an obligation to ensure their desire to protect their language does not disadvantage others. The Court also observed that cost containment arguments (such as online materials and cross-subsidization) were accepted without proper scrutiny by the Supreme Court of Appeal, and that courts must be cautious about supplanting experienced institutional judgments on cost matters.

This judgment is significant in South African law for several reasons: (1) It clarifies that universities, as organs of state, bear the full burden of section 29(2) obligations when making language policy decisions affecting existing language rights. (2) It establishes that where students already enjoy tuition in their language of choice, the state bears a negative duty not to diminish that right without appropriate justification meeting the "reasonable practicability" test. (3) The judgment provides an extensive historical analysis of Afrikaans as a creole language with significant contributions from enslaved peoples and indigenous Khoisan populations, challenging the narrative of Afrikaans as exclusively a "white" or "oppressor's" language. (4) It emphasizes that equity considerations in language policy must be evidence-based and cannot simply assume that one indigenous language must be sacrificed for others without proof. (5) The Court's remedial approach demonstrates judicial restraint and respect for separation of powers, allowing the institution time and discretion to comply constitutionally rather than prescribing specific outcomes. (6) It reinforces that cost considerations alone cannot justify constitutional violations without proper substantiation. The case contributes to the development of transformative constitutionalism in education while protecting linguistic diversity and minority language rights within the framework of redressing historical injustices.