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Assessing and promoting civil and minority rights in South Africa.

[Source: Centre for Constitutional Rights by Christine Botha.  This is the first article in a four-part series on the right to receive education in the official language or languages of choice in public educational institutions.]

Is it realistic in South Africa’s multicultural society to expect to receive mother tongue education at a public educational institution? If one only focuses on section 29(2) of the Constitution, the answer should be legally determinable in any factual context. Section 29(2) of the Constitution (section 29(2) right) was crafted to ensure a balancing of rights, by guaranteeing everyone the right to education in the language of their choice at a public education institution, provided the same is “reasonably practicable”. The State is furthermore obliged to consider “all reasonable educational alternatives” to give effect to this right, taking into account the listed factors of “equity, practicability and the need to redress the results of past discriminatory laws and practices”.

Therefore a constitutionally-framed balancing test exists in terms of which any language request can be tested against. However, how does one test section 29(2) in the context where an ideological factor such as a “commitment to transformation” – which is difficult to test – plays a dominant role? A case in point is the recent Supreme Court of Appeal (SCA) judgment of the University of the Free State v AfriForum and Another (SCA judgment). The SCA judgment questions the future of section 29(2) and whether mother tongue instruction at public educational institutions, as many experts believe, will boil down to political arm wrestling.

The SCA judgment upheld the University of the Free State’s (UFS) decision to replace the dual Afrikaans-English language policy with English as the primary language of instruction (UFS decision). This was after the Free State High Court (High Court) set the UFS decision aside as an unlawful administrative action in terms of the Promotion of Administrative Justice Act of 2000 (PAJA). The High Court found that the UFS decision to abandon Afrikaans failed to take all relevant considerations into account, such as Afrikaans students’ section 29(2) right and the Minister’s Higher Education Language Policy (Higher Education Policy).

Continue reading here.

South Africa at a Glance
57 700 000 (mid 2018 estimate)
4.9% y/y in September 2018 (CPI) & +6.2 y/y in September 2018 (PPI)
-0.7% q/q (2nd quarter of 2018)
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