Afriforum and Another v Chairman of the Council of the University of the Free State and Others (A70/2016) [2016] ZAFSHC 130 (21 July 2016)

IN THE FREE STATE HIGH COURT, BLOEMFONTEI N

CASE NO: A70/2016

REPORTABLE

CIRCULATE

TO JUDGES

In the matter between:

AFRIFORUM

1st Applicant

SOLIDARITY 2nd Applicant

and

CHAIRMAN

OF THE COUNCIL OF THE 1st Respondent

UNIVERSITY

OF THE FREE STATE

CHAIRMAN

OF THE SENATE OF THE 2nd Respondent

THE

UNIVERSITY OF THE FREE STATE 3rd Respondent

FEDERATION

OF GOVERNING BODIES OF

SOUTH

AFRICAN SCHOOLS

AFRIKAANSE

TAALRAAD

SOUTH AFRICAN TEACHERS'

UNION Amici curiae

FULL

BENCH REVIEW

HENDRICKS J, MOKGOHLOA J & MOTIMELE AJ

DATE OF HEARING : 20 JUNE 2016

DATE OF JUDGMENT : 21 JULY 2016

COUNSEL

FOR APPLICANTS

ADV. JI DU TOIT SC with ADV.MJ ENGELBRECHT

COUNSEL

FOR THE RESPONDENT ADV. JJ GAUTLETT SC with ADV. FB PELSER

COUNSEL

FOR AMICI CURAE

ADV. JC HEUNIS SC

JUDGMENT

HENDRICKS

J

INTRODUCTION

[1] The University of the Free State ("UFS") is a university as defined in the Higher Education Act 101 of 1997. It comprises of three campuses namely the Qwaqwa Campus (representing 10% of the student population of the UFS); the South Campus near Bloemfontein (representing 20% of the student population of the UFS) and the Bloemfontein campus (representing 70% of the student population of the UFS). The UFS was at first an Afrikaans University with tuition almost exclusively in Afrikaans.

[2] Since 1993 the UFS has offered Afrikaans and English parallel medium instruction. In June 2003 the UFS formally adopted a language policy of parallel medium instruction in Afrikaans and English ("the 2003 language policy"). This language policy was adhered to until March 2016. On 07 March 2016 the Senate of the UFS took a decision to adopt a new language

policy. On 11 March 2016 the Council of the UFS embraced the decision to adopt a new language policy for the UFS ("the 2016 language policy") with English becoming the primary medium of instruction at all levels and Afrikaans remaining available only in particular professional programs such as teacher education and the training of students in theology. It is these decisions taken by the Senate and Council of the UFS respectively, which the Applicants seek to be reviewed and set aside by this Court, in this semi -urgent review application.

[3] This application is premise on inter alia the following grounds of review:-

"(a) in reaching the decision to adopt the new language policy of the UFS, the Council and Senate were unconcerned with:

(i) considering whether it remain reasonably practicable for the UFS to offer Afrikaans as a medium of instruction, by having regard to the relevant factors to be brought into account in such an assessment;

(ii) the legal implications of its election forthwith to deprive Afrikaans speaking students (current and prospective) of the opportunity to assert their section

29 (2) of the Constitution of the Republic of South Africa Act 108 of 1996 ("the Constitution'/ right at the UFS;

(iii) the costs of and the human resource and infrastructural requirements for the effective implication of the new language policy (i.e. with its reasonable practicability).

(b) the UFS Council and Senate were also unconcerned and did not take into account (or effectively so) the result of a poll conducted across all three campuses that demonstrated substantial support for parallel medium instruction, with 3323 students in favour thereof compared to the 1107 that favoured English with tutorials in Afrikaans and Sesotho.

(c) The Language Committee tasked with preparing a report on the new language policy left it to the Council of the UFS to consider the legal and constitutional implications of its adoption. The UFS Council took no internal or external legal advice on this issue. Both members of the UFS Senate and the members of the UFS Council making the decision were led to believe that no constitutional issue for consideration arose. They considered that facts relevant to the determination of relative reasonable practicability of the 2003 language policy and the (then proposed) language policy (costs, human resource and infrastructure availability) fell within the ambit of implementation, and therefore did not consider them. The decision turned on the perceived need to achieve integration of classes: the 'overarching consideration underlying the adoption of the impugned policy is to redress the classroom segregation brought by the previous policy. The new policy seeks racial integration ...' This is surprising because the 2016 Prospectus proclaimed that the Bloemfontein campus is a multicultural, parallel medium institution, regarded as the most integrated campus in South Africa with the most diverse group of students."

[4] The applicants attack the decision to adopt the new language policy, on the basis that:

• relevant considerations were left out of account;

• account was taken of irrelevant considerations; and/or

• a material error of law influenced the adoption of the new language policy;

• no rational connection existed between the decision to adopt the new language policy and the purpose for doing so, the purpose of the empowering provision and/or the information available to the decision-maker;

• the decision to adopt the new policy was otherwise unconstitutional or unlawful.

[5] It behoves no argument that this case raises important constitutional issues. This was quite correctly conceded to by Mr. Gauntlett on behalf of the Second Respondent and the Third Respondent ("the Respondents"). [the First Respondent abide by the decision of this Court].

IS THE UFS AN ORGAN OF STATE?

[6] As a starting point, it need to be determined whether the UFS is an organ of State. The Constitution of the Republic of South Africa Act 108 of 1996 ("the Constitution") is the supreme law of the land. Any law or conduct inconsistent therewith is invalid and the obligations imposed thereby must be

fulfilled. Section 7(1) of the Constitution echoes aspects of the Preamble to the Act inasmuch as it describes the Bill of Rights as a cornerstone of democracy which enshrines the rights of all people and affirms the democratic values of human dignity, equality and freedom.

[7] The Bill of Rights applies to all law and binds the legislature, the executive, the judiciary and all organs of state. In addition, a provision of the Bill of Rights binds a natural or juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right. Conversely, a juristic person is entitled to the rights in the Bill of Rights to the extent required by the nature of the right and the nature of that juristic person.

[8] Section 239 of the Constitution provides:

"In the Constitution, unless the context indicates otherwise - ... 'organ of state' means -

(a) any department of state or administration in the national, provincial or local sphere of government; or

(b) any other functionary or institution -

(i) exercising a power or performing a function in terms of the Constitution or a provincial constitution; or

(ii) exercising a public power or performing a public function in terms of any legislation, but does not include a court or a judicial officer."

In defining the concept "organ of state", section 239 covers all instances in which a public power is exercised or a public

function is performed in terms of legislation, regardless of whether the person or institution exercising a power or performing the function is formally recognised as an organ of state or not. This raises the question whether a university, which exercises public powers and performs public functions in terms of legislation, is an organ of state for purposes of the Constitution.

[9] In Minister of Education, Western Cape and Others v Governing Body, Mikro Primary School and and Another, 2006 (1) SA 1(SCA), ["the Mikro case"], the Supreme Court of Appeal per Streicher JA (with whom Cameron JA, Brand JA, Lewis JA and Mlambo JA concurred) overturned a finding of the Court a quo that the governing body of the school was not an organ of state and intended by the legislature to be independent of State or government control in the performance of its functions and concluded as follows at paragraph [20]:

"[20] ...In terms of the definition in the Constitution, any institution exercising a public power or performing a public function in terms of any legislation is an organ of State. The second respondent, a public school, together with its governing body, the first respondent, is clearly an institution performing a public function in terms of the Act. It follows that it is an organ of State as contemplated in the Constitution."

[10] In my view, and by parity of reasoning, the UFS is also an organ of state and, therefore, bound by the Bill of Rights by virtue of the provisions of section 8(1) of the Constitution.

See also:- Baloro and Others v University of Bophuthatswana 1995 (4) SA 97 (B). Gardener and Others v Central University

of Technology: Free State [2012] ZALAC 23 (25 July 2012).

THE

CONSTITUTION

[11] Section 6 (1) of the Constitution sets out the eleven (11) official languages of the Republic of South Africa (which includes Afrikaans). Section 6 (2) of the Constitution recognize the historically diminished use and status of the indigenous languages of our people. These are languages other than Afrikaans and English.

Section 6(4) of the Constitution provides as follows:

"The national government and provincial governments, by legislative and other measures, must regulate and monitor their use of official languages. Without detracting from the provisions of subsection (2), all official languages must enjoy parity of esteem and must be treated equitably."

Sections 9(3), (4) and (5) of the Constitution provide as follows:

"(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

(4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.

(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair. "

Section 29 of the Constitution provides as follows:

"(1) Everyone has the right -

(a) to a basic education, including adult basic education; and

(b) to further education, which the state, through reasonable measures, must make progressively available and accessible.

(2) Everyone has the right to receive education in the official language or languages of their choice in public educational institutions where that education is reasonably practicable. In order to ensure the effective access to, and implementation of, this right, the state must consider all reasonable educational alternatives, including single medium institutions, taking into account -

(a) equity;

(b) practicability; and

(c) the need to redress the results of past racially discriminatory laws and practices. "

[12] Section 29 (1) (a) of the Constitution states that everyone has the right to basic education. Unlike the right to basic education in Section 29 (1) (a) of the Constitution which is immediately realisable, the right to further education in terms of Section 29 (2) of the Constitution is progressively realisable and subject to reasonable measures.

[13] In the Mikro case, supra, Streicher JA held that paragraph [31]:

"[31] ..The right of everyone to receive education in the official language or languages of their choice in public educational institutions where that education is reasonable practicable is a right against the State".

[14] In Head of the Department, Mpumalanga Department of Education and Another v Hoerskool Ermelo and Another 2010

(2) SA 415 (CC), [" the Ermelo case"], Moseneke DCJ writing the unanimous judgment of that Court, stated as follows in paragraph [53]:

"[53] The second part of s 29 (2) of the Constitution points to the manner in which the State must ensure effective access to and implementation of the right to be thought in the language of one's choice. It is an injunction on the State to consider all reasonable educational alternatives which are not limited to, but include, single-medium institutions. In resorting to an option, such as a single or parallel or dual medium of instruction, the State must take into account what is fair, feasible and satisfies the need to remedy the results of past racially discriminatory Jaws and practices."

In so far as Section 29(2) of the Constitution is concerned, Moseneke DCJ said the following in paragraph [52] of this judgment:

"[52] The provision is made up of two distinct but mutually reinforcing parts. The first part places an obvious premium on receiving education in a public school in a language of choice. That right, however, is internally modified because the choice is available only when it is 'reasonably practicable'. When it is reasonably practicable to receive tuition in a language of one's choice will depend on all the relevant circumstances of each particular case. These would include the availability of and accessibility to public schools, their enrolment levels, the medium

of instruction of the school that its governing body has adopted, the language choices that learners and their parents make, and the curriculum options offered. In short, the reasonableness standard build into s 29(2)(a)

imposes a context-sensitive understanding of each claim for education in a language of choice..."

[15] The "reasonably practicable" specific limitation provision in the section 29(2) right means that the State has to fulfil this right, unless it is not reasonably practicable or the State can establish on other grounds that its refusal or inability to provide such education complies with the general limitation provision of section 36 of the Constitution. Factors such as learner numbers, costs, availability of facilities and educators, the distance to the nearest similar institution that is able to provide education in the chosen language, and the chosen medium of instruction in the case of universities, can be relevant factors that may determine whether, in a particular case, it is reasonably practicable to provide such education.

See: The Constitutional Framework for Pursuing Equal Opportunities in Education, Perspectives in Education Vol 22 (3), September 2004.

[16] Accordingly, as the Supreme Court of Appeal quite correctly pointed out in the Mikro case, supra, that section 29(2) of the Constitution does not mean that

"[30] In effect, the first and second appellants contended that s 29(2) of the Constitution should be interpreted to mean that everyone had the right to receive education in the official language of his or her choice at each and every public education institution where this was reasonably practicable. If this were the correct interpretation of s 29(2), it would mean that a group of Afrikaans learners would be entitled to claim to be taught in Afrikaans at an English medium school immediately adjacent to an Afrikaans medium school which has vacant capacity provided they can prove that it would be reasonably practicable to provide education in Afrikaans at that school. So interpreted, since the right in question extends to 'everyone', this would entail that boys have a constitutional right to be educated at a school for girls if reasonably practicable. "

(emphasis added)

[17] Once it is shown that education in the language of choice is reasonably practicable, it becomes necessary to consider the second

part of section 29(2), i.e. the means to fulfil the right. At that point, as the Constitutional Court said in the Ermelo case, supra, at paragraph [53], the second sentence of section 29(2) places "an injunction on the State to consider all reasonable educational alternatives" to achieve the right. It continue further by stating that in determining what alternatives to employ,

"the State must take into account what is fair, feasible and satisfies the need to remedy the results of past racially discriminatory laws and practices".

[18] Although the UFS is a historically Afrikaans university as alluded to earlier on in this judgment, it has established English as a language of learning and teaching to a considerable extent. The issue is not whether it should offer learning in English at all - as was the point of contention in the case concerning the Afrikaans­ medium Mikro Primary School - but the issue is what the nature and extent of the UFS's English and Afrikaans offering should be. That brings one to the second part of section 29(2), i.e. the means to fulfil students' and prospective students' right to receive education in Afrikaans and English. It obliges the State to consider all reasonable educational alternatives to achieve the right.

[19] In the Ermelo case, the Constitutional Court emphasised that when determining what alternatives to employ, the State must take into account what is fair, feasible and satisfies the need to remedy the results of past racially discriminatory laws and practices. The Constitutional Court also held that when a person already enjoys the benefit of being taught in an official language of choice, the State bears the negative duty not to take away or diminish the right without appropriate justification. It is noteworthy that in the Ermelo-case the Constitutional Court saw nothing reprehensible about a parallel medium language policy that allowed for 'racial redress' for students demanding institution in English without deprivation of the rights of those seeking tuition in Afrikaans.

[20] Therefore, what section 29(2) requires of the UFS is the following:

• It has to adopt reasonable measures to fulfil students' and prospective students' right to receive education in Afrikaans and English.

• When choosing what measures to adopt, it has to take into account what is fair, what is feasible and what will remedy the results of past racially discriminatory laws and practices.

• It may not take away or diminish the right of Afrikaans­ speakers to receive education in Afrikaans, in order to increase the English offering.

[21] In Ex Parte Gauteng Provincial Legislature: In Re Dispute Concerning The Constitutionality Of Certain Provisions Of The Gauteng School Education Bill of [1996] ZACC 4; 1995. 1996 (3) SA 165 (CC) ["the Education Bill case"], the Constitutional Court was confronted with the meaning and scope of section 32 of the Interim Constitution, the counterpart of section 29 of the Constitution, which provided as follows:

"Education

32. Every person shall have the right -

(a) to basic education and to equal access to educational institutions;

(b) to instruction in the language of his or her choice where this is reasonably practicable; and

(c) to establish, where practicable, educational institutions based on a common culture, language or religion, provided that there shall be no discrimination on the grounds of race."

[22] In paragraph [9] of the judgment, Mahomed DP states:-

"{9] The interpretation of s 32 (c) as a defensive right, based on its grammatical and linguistic structure, seems to me also to be supported by its context within s 32 itself. Section 32 (a) creates a positive right that basic education be provided for every person and not merely a negative right that such a person should not be obstructed in pursuing his or her basic education. Section 32 (b), recognizing the diversity of languages in our country, again creates a positive right for every person to instruction in the language of his or her choice, where this is reasonably practicable, not merely a negative right to prevent any obstruction if such person seeks instruction in the language of his or her choice. Section 32 (c), by contrast, guarantees a freedom - a freedom to establish educational institutions based on a common culture, language or religion. It is that freedom which is

protected by s 32 (c). A person can invoke the protection of the Court where that freedom is threatened, but the language of s 32 (c) does not support a claim that such educational institutions, based on a commonality of culture, language or religion, must be established by the State, or a claim that any person is entitled to demand such establishment, notwithstanding the fact that his or her right to basic education and to instruction in the language of his or her choice is, where practicable, otherwise being satisfied by the State"

[23] In his concurring judgment Kriegler J, having expressed his "wholehearted agreement with Mahomed DP's clinical analysis" and his broad affirmation of "the more historical-international law trent of thought and conclusion of Sachs J'', said that the government is constitutionally obligated to, inter alia, where reasonable practicable, provide instruction in the language of a pupil's choice. He states as follows:

"[39] Nietemin is daar enkele aspekte wat ek spesifiek wil toelig. Taal - en by name die behoud van Afrikaans - ontlok diepgewortelde emosie. Daarom is dit lewensnoodsaaklik dat daar nugter en oorwoe gelet word op die implikasies van hierdie saak. Subartikel 32(c) van die Grondwet dra weliswaar nie die bree betekenis wat die petisionarisse en die amicus daaraan wou heg nie. Dit is en bly egter 'n skans teen verswelging van enige minderheid se gemeenskaplike kultuur, taal of godsdiens. Solank 'n minderheid daadwerklik wagstaan oor sy gemeenskap/ike erfgoed, solank is dit sy onvervreembare reg om eie onder-wysinstellings ter behoud van kultuur, taal of godsdiens tot stand te bring.

[40] Daar is egter twee belangrike voorbehoude. Ten eerste is die slotwoorde van die betrokke subartikel ondubbelsinnig; daar mag geen diskriminasie op grand van ras wees nie. Die Grondwet bied dus geen beskerming vir rassevooroordeel op die onderwysterrein nie. 'n Gemeenskaplike kultuur, taal of godsdiens met rassisme as 'n wesense/ement het geen konstitusionele aanspraak op die vestiging van afsonder/ike onderwysinstellings nie. Die Grondwet beskerm verskeidenheid, nie rassediskriminasie nie.

[41] Ten tweede moet daar duidelik ingesien word waaroor die debat in hierdie saak werklik gaan. Subartikels (a) en (b) van art 32 van die Grondwet boekstaaf en bevestig die reg van iedereen op basiese onderwys, gelyke toegang tot onderwysinstellings en, waar redelikerwys uit-voerbaar, onderrig in die taal van die Jeerling se keuse. Daartoe is die owerheid grondwetlik verplig. Die maatstaf van redelike uitvoerbaarheid is wel rekbaar - soos dit noodwendig moet wees om ruimte te laat vir 'n groat verskeidenheid omstandighede. Dit is egter objektief beoordeelbaar, wat beteken dat owerheidswillekeur deur die Howe aan bande gele kan word. Betekenisvolle getalle taalsprekers het gevolglik 'n afdwingbare reg teenoor die owerheid op onderrig in hul gemeenskaplike taal solank dit maar redelikerwvs uitvoerbaar is."

Translated into English, the underlined portion in paragraph [41] states that:-

"...The standard of reasonable practicability is elastic - as it necessarily has to be in order to leave room for a wide range of circumstances. It is, however, objectively justiciable, which means that arbitrary governmental action can be restrained by the Courts. Accordingly, meaningful numbers of language­ speakers have an enforceable right against the government to instruction in the language of their community as long as it is reasonably practicable."

[24] Sachs J, in this judgment stated as follows:

"[46] The first assumption is that the 'never again' principle, which I feel should be one of our guides to interpretation, applies not only to bitter experiences of former State enforced segregation, but also to those of past compulsory assimilation. This was a major theme at the National Convention held to draft the document which became the Constitution of the Union of South Africa in 1910.

[47] The second assumption is that the Afrikaans language, like all languages, is not simply a means of communication and instruction, but a central element of community cohesion and identification for a distinct community in South Africa. We are accordingly dealing not merely with practical issues of pedagogy, but with intangible factors that, as was said in Brown v Board of Education of Topeka, form an important part of the educational endeavour. In addition, what goes on in schools can have direct implications for the cultural personality and development of groups spreading far beyond the boundary fences of the schools themselves.

[48] The third assumption is that there exists amongst a considerable number of people in this country a genuinely-held, subjective fear that democratic transformation will lead to the down-grading, suppression and ultimate destruction of the Afrikaans language and the marginalisation and ultimate disintegration of the Afrikaans-speaking community as a vital group in South African society.

[49] The fourth assumption is that the Afrikaans language is one of the cultural treasures of South African national life, widely spoken and deeply implanted, the vehicle of outstanding literature, the bearer of a rich scientific and legal vocabulary and possibly the most creole or 'rainbow' of all South African tongues. Its protection and development is therefore the concern not only of its speakers but of the whole South African nation. In approaching the question of the future of the Afrikaans language, then, the issue should not be regarded as simply one of satisfying the self-centred wishes, legitimate or otherwise, of a particular group, but as a question of promoting the rich development of an integral part of the variegated South African national character contemplated by the Constitution. Stripped of its association with race and political dominance, cultural diversity becomes an enriching force which merits constitutional protection, thereby enabling the specific contribution of each to become part of the patrimony of the whole."

[25] Significantly, in the Ermelo case, supra, Moseneke DCJ considered it appropriate, before examining section 29(2) of the Constitution, to "echo and embrace the tribute Sachs J paid to minority rights in general and to Afrikaans in particular" in the Ermelo area and, more specifically, what he said in relation to the fourth assumption.

Moseneke DCJ in the Ermelo judgment then stated the following:

"[49] Of course, vital parts of the 'patrimony of the whole' are indigenous languages which, but for the provisions of s 6 of the Constitution, languished in obscurity and underdevelopment with the result that at high-school level, none of these languages have acquired their legitimate roles as effective media of instruction and vehicles for expressing cultural identity.

[50] And that perhaps is the collateral irony of this case. Learners whose mother tongue is not English, but rather one of our indigenous

languages, together with their parents, have made a choice to be taught in a language other than their mother tongue. This

occurs even though it is now settled that, especially in the early yearsof formal teaching, mother-tongue instruction is the foremost and the most effective medium of imparting education."

[26] In my view, only once the reasonably practicable requirement has been satisfied, the import of the second sentence in Section 29 (2) of the Consitution, which states that "(i)n order to ensure the

effective access to, and implementation of, this right, the state must consider all reasonable educational alternatives, including

single medium institutions, taking into account -

(a) equity;

(b) practicability; and

(c) the need to redress the results of past racially discriminatory laws and practices",

comes to the fore.

[27] The second sentence of Section 29 (2) of the Constitution makes it clear that single medium institutions are but one way of

accommodating the right of a learner to instruction in the language of choice and the mere mention thereof does not privilege such

institutions over dual or parallel medium institutions or institutions which accommodate multilingualism in some other way.

[28] What this portion of section 29(2) of the Constitution requires 1s that all reasonable educational alternatives that would make mother-tongue or preferred language instruction possible, ought to be considered. For a single medium institution to be preferred to another reasonable practicable institutional arrangement, such as dual medium instruction or parallel medium instruction, it has to be demonstrated that it is more likely to advance or satisfy the three listed criteria of equity, practicability and historical redress. Due consideration of all reasonable educational alternatives that would make mother-tongue instruction possible, such as dual or parallel medium instruction, taking into account the three listed criteria of equity, practicability and historical redress, stands squarely in the way of dispensing with Afrikaans as a primary language of instruction at the UFS.

[29] Section 29(2) of the Constitution requires the consideration of three factors:

(i) The first is equity and there are two parts to the equity enquiry.

• The first is that from an educational perspective Black (African) students of whom the vast majority are neither Afrikaans nor English-speaking and of whom English or Afrikaans is the second language, will not benefit from the new policy.

• The second is that dispensing with Afrikaans as a primary language of instruction will necessarily come at a cost to the Afrikaans offering, a fact that would violate Afrikaans-speakers' section 29(2) right not to have their existing access to Afrikaans higher education interfered with.

(ii) The second is practicability. This is a consideration which is easily applied in casu since there is no suggestion that it is impracticable, a prov1s1onmg perspective, to continue instruction with Afrikaans and English as primary languages of instruction by way of parallel medium.

(iii) The third is redress. This factor weighs strongly in favour of ensuring that language is not a barrier to access for Black (African), Coloured and Indian students. For the following reasons this consideration does not favour the new policy over the old:

• The old policy favoured multilingualism and sustaining the use of Afrikaans.

• While Afrikaans may be a barrier to Black (African) students, English is a barrier to many Coloured students who were also victims of past discrimination and a move that decreases the Afrikaans offering would negatively affect them, particularly when regard is had to the diminishing other options for Afrikaans-language higher education.

• It will not benefit Black (African) students since the previous policy was not a barrier to access for them because in the prevailing parallel medium environment there is a 100°/o English offering.

[30] The fact that English has been introduced at the UFS which was a historical Afrikaans university as a language of instruction,

especially to comply with the redress criterion in section 29(2) of the Constitution, does not mean that Afrikaans must inevitably be replaced by English as the dominant language of instruction since that would clearly fall foul of the fairness criterion without any commensurate benefit viewed from the perspective of the demand which derives from the redress criterion. Such an application of section 29(2) would clearly be unfair and discriminate against Afrikaans-speakers inconsistently with the requirements of section

29(2).

[31] Also, the Constitution's recognition of community rights, associational rights, religious rights, cultural rights and linguistic rights, creates a set of background conditions against which the claim of continued parallel medium instruction at the UFS has to be considered and "an overriding commitment to 'equality' or 'transformation"' cannot simply be invoked to dispense with Afrikaans as a medium of instruction.

[32] One of the crucial flaws in the decisions which led to the adoption of the new language policy is precisely that the Council and the Senate of the UFS did not consider what was "reasonably practicable" at the UFS and has clearly overlooked that, as an organ of state, it is co-responsible for taking the desired measures, and not to abolish measures that were in place and were consistent with the Ministerial Policy and the Constitution, particularly in the face of the Ermelo decision's affirmation of the principle of non-retrogression. This doctrine stands squarely in the way of a decision that has the effect of curtailing vested rights that claim the protection of the Constitution.

THE

HIGHER EDUCATION ACT