Matthew Chaskalson SC has made this submission on behalf of Unisa at the Constitutional Court, which was hearing the university’s bid to appeal a ruling that declared its new language policy unconstitutional and unlawful.
Unisa lost to Afriforum at the Supreme Court of Appeal (SCA) last year, prompting its appeal application at the apex court.
The university adopted a language policy in 2016 that removed Afrikaans as a dual medium of teaching and learning along English.
Afriforum waged a legal fight to have the decision reversed and Afrikaans reinstated.
It argued that no one would be prejudiced by Unisa allowing students to submit assignments and examination papers written in Afrikaans. The Afrikaans-speaking students would also have to receive tutorial material written in the language.
Unisa’s position was that the reinstatement of the language would mean privileging its insignificant number of Afrikaans students.
“In this case Afriforum section 29(2) of the Constitution in an attempt to preserve historical privilege bequeath by apartheid,” Chaskalson said in his opening submission at the apex court.
“Afriforum wants Unisa to subsidise Afrikaans home language learners at the expense of all other learners.”
The organisation simply fought for reinstatement of apartheid privileges, Chaskalson said.
“On its own version, these Afrikaans home language learners are less than 10% of the student population and more than two-thirds of them are white.
“Yet it wants Unisa to take resources away from its African language speaking students who carry the historical burdens of the aparthied legacy so that the university can continue to subsidise this group of primarily white Afrikaans-speaking beneficiaries of apartheid privilege,” Chaskalson told the court.
“The basic premise of the Afriforum case is at odds with fundamental principles of equality and transformation that underpin our Constitution.”
Chaskalson rejected what he termed Afriforum’s narrative that Unisa scrapped Afrikaans to placate a populist #AfrikaansMustFall lobby.
Afriforum created this narrative in order to advance its case, he said. “This narrative is simply false.
“Nothing was sprung on anyone and there was no last minute capitulation to an Afrikaans must fall lobby.
“Instead, there was a lengthy considered response to an untenable situation at Unisa where the arrangements built on the legacy of apartheid meant that white students were being subsidised at the expense of all other Unisa students.
“That response required the amendment of the Unisa language policy and the process of amending the language policy involved more than two years with cycles of consultation, consideration and revision before the new policy was finally drafted.”
Afriforum was expected to dispute Unisa’s submissions that demand for Afrikaans at the university was insignificant. In its heads of argument, it said Unisa’s statistics on Afrikaans students did not appear to be plausible or correct.
“In 2016, there were approximately 24000 students who had chosen Afrikaans as a medium of instruction and examination in approximately 100 000 modules,” said Afriforum’s reply papers.