University of the Free State v Afriforum and Another (1027/2016) [2017] ZASCA 32; [2017] 2 All SA 808 (SCA); 2017 (4) SA 283 (SCA) (28 March 2017)

University of the Free State v Afriforum and Another (1027/2016) [2017] ZASCA 32; [2017] 2 All SA 808 (SCA); 2017 (4) SA 283 (SCA) (28 March 2017)

The Supreme Court of Appeal held that the University of the Free State's decision to adopt a new language policy was not administrative action under PAJA, as it did not adversely affect rights or have direct, external legal effect at the point of adoption. The decision was an exercise of executive power, subject to...

Source-derived case information.

Citation
[2017] ZASCA 32
Parties
Appellant: University of the Free State; Respondent: Afriforum; Respondent: Solidarity
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
28 March 2017
Case Number
1027/2016
Procedural Posture
Civil Appeal / Appeal From the Free State Division of the High Court, Bloemfontein
Outcome
Appeal upheld. The order of the Free State Division of the High Court is set aside and replaced with an order dismissing the review application. The University's application to strike out is upheld.
Judges
Cachalia, Swain, Mathopo, Fourie, Schippers
Legal Topics
Language Rights, Promotion of Administrative Justice Act, Legality Review, Higher Education Language Policy, Standing, Costs Biowatch Principle
Constitutional Law Administrative Law Civil Procedure Language Rights Promotion of Administrative Justice Act Legality Review Higher Education Language Policy Standing +1 more

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Summary, issues, holding and outcome

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Parties

University of the Free State

Appellant

Afriforum

Respondent

Solidarity

Respondent

Procedural Posture

Civil Appeal / Appeal From the Free State Division of the High Court, Bloemfontein

Legal Issues

  1. 1 Whether the University of the Free State's decision to adopt a new language policy constitutes administrative action under PAJA.
  2. 2 Whether the University misconstrued its power under the principle of legality when adopting the new language policy.
  3. 3 Whether the new language policy is 'reasonably practicable' as contemplated in section 29(2) of the Constitution.

Ratio Decidendi

The Supreme Court of Appeal held that the University of the Free State's decision to adopt a new language policy was not administrative action under PAJA, as it did not adversely affect rights or have direct, external legal effect at the point of adoption. The decision was an exercise of executive power, subject to legality review. The Court found that the University properly considered the reasonably practicable standard in section 29(2) of the Constitution, taking into account constitutional norms such as equity, redress, and non-racialism. The evidence showed that the dual-medium policy entrenched racial segregation and was no longer reasonably practicable. The Higher Education...

Court Disposition

Appeal upheld. The order of the Free State Division of the High Court is set aside and replaced with an order dismissing the review application. The University's application to strike out is upheld.

Orders

  • The appeal in the review application is upheld with costs, including the costs of two counsel, except that in the case of Afriforum, each party shall pay its own costs.
  • The appeal in the strike-out application is upheld with costs, including the costs of two counsel, on a scale as between attorney and client. The specified parts of the respondents' papers are struck out.