The University of SA's (Unisa) decision in 2016 to adopt a new language policy and discontinue Afrikaans as a language of learning and teaching contravened the Constitution, rendering the decision invalid, the Constitutional Court ruled yesterday.

The decision was a victory for AfriForum in a five-year battle with Unisa via the High Court and the SCA.

A TimesLIVE report notes AfriForum launched a High Court application to review and set aside the language policy on the basis of procedural irregularities and inconsistency with section 29(2) of the Constitution – which states everyone has a right to receive education in the official language of their choice in public educational institutions where that education is reasonably practicable.

The High Court dismissed its application, but AfriForum succeeded in the SCA, which noted that when a learner already enjoys the benefit of being taught in an official language of their choice, the state has a negative duty not to diminish this right without appropriate justification.

 The Constitutional Court said Unisa has failed to demonstrate that it was not reasonably practicable to continue with Afrikaans as one of the languages of instruction. 

It said it was a misconception that Afrikaans was only ‘the language of whites’ and ‘the language of the oppressor’.

Today Afrikaans was spoken predominantly by black people, it noted. The court held that it was open to Unisa to put up evidence to justify the phasing out of Afrikaans in the future, but it could not justify the limitation of the right to receive education in the language without clear and convincing evidence.

AfriForum welcomed the judgment and said it was a huge victory for Afrikaans, Afrikaans-speaking students and language rights in SA in general.

Full TimesLIVE report

The court gave Unisa until the start of the 2023 academic year to revise its language policy. According to a News24 report, it said there was no evidence Unisa applied section 29(2) of the Constitution when making the decision to change its policy in 2016.

‘It is plain that neither the Senate nor the council had regard to information relevant to any assessment of reasonable practicality. The evidence simply did not bear up Unisa's contentions on equity, on cost or the dwindling demand for Afrikaans or on demographics.’

Mojalefa Motalane, who represented Unisa in the case, welcomed the ruling that would give it time to change the policy.

‘We are yet to take instructions from our client Unisa, but as the legal team, we are fairly happy with the fact that the Constitutional Court exercised quite a bit of wisdom to suspend its order and give our client an opportunity to make a decision as to whether it will revert to its old policy or decide to introduce a new policy all together which will give it an opportunity to follow all the right processes in compliance with the Constitution,’ he said.

Full News24 report