University of the Free State v Afriforum and Another

The Council of the University of the Free State (UFS) adopted a new multilingual language policy in March 2016, effective from 2017, making English the primary medium of instruction with limited Afrikaans and Sesotho support, replacing a 2003 parallel-medium policy. Afriforum applied to review and set aside the Council’s decision. On 21 July 2016, the Full Court of the Free State High Court reviewed and set aside the decision. UFS sought leave to appeal, triggering the automatic suspension of the judgment. Afriforum then applied under s 18 of the Superior Courts Act 10 of 2013 for implementation of the Full Court’s order pending appeal. The Full Court granted this relief. UFS exercised its automatic right of appeal under s 18(4)(ii) to the Supreme Court of Appeal.

The appeal was upheld with costs, including the costs of two counsel. The Full Court’s order implementing its earlier judgment pending appeal was set aside and replaced with an order dismissing Afriforum’s s 18 application with costs.

This was the first appeal decided by the SCA under s 18(4)(ii) of the Superior Courts Act. The judgment authoritatively clarified that s 18 creates a stricter regime than the common law for execution pending appeal, imposing a heavy onus on applicants. It provided guidance on 'exceptional circumstances', irreparable harm, the relevance of prospects of success, and reaffirmed the duty of courts to furnish proper reasons. The case is a leading authority on interim enforcement of judgments in South African civil procedure.