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 passed this judgment on Wednesday in the legal battle between AfriForum and Unisa which has been running for five years and had previously gone before the high court and the Supreme Court of Appeal (SCA).

The objective for the policy was to institute measures to enhance the status of indigenous African languages, while also phasing out Afrikaans and, therefore, removing the guarantee that courses be offered in both Afrikaans and English.

AfriForum launched an application in the high court to review and set aside the language policy on the basis of procedural irregularities and inconsistency with section 29(2) of the constitution. That section states that 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 AfriForum's application. AfriForum then approached the SCA, which upheld its appeal last year.

The SCA 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.

Unisa then appealed to the Constitutional Court.

In its decision, the apex court said Unisa has failed to demonstrate that it was not reasonably practicable to continue with Afrikaans as one of the languages of instruction.

The ConCourt 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 said.

The apex 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.

“This marks the beginning of a new chapter in the empowerment of all who are not first- language speakers of English in tertiary education,” AfriForum’s head of cultural affairs Alana Bailey said.

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