Kovsies, Afrikaans and the Constitutional Court’s political slip that is showing
There is almost a god-like devotion to the text of the Constitution, the opinions of the Chief Justice and the rulings of the Constitutional Court – a devotion to our own detriment and which forces us to inconsistently give manifestation to our preconceived idea of the superhuman status of the Constitution and the Constitutional Court. When it rules on corruption, we rejoice in the independence of the judiciary. We like to state that the Constitutional Court – and especially Chief Justice Mogoeng – is an important counterweight against the ruling elite that ensures that things are kept under control.
What we fail to acknowledge, however, is that the Constitutional Court – and the Chief Justice in particular – is part and parcel of the ruling elite and that the Constitution is interpreted every time in a manner that is consistent with the ruling elite’s so-called progressive ideas about the Constitution. (“Leftist ideas” is a more apt description, as it by no means leads to progression). If the Constitutional Court is part of the ruling elite, why does it happen that such strong rulings are made against the President?
Prof. Koos Malan has already provided the answer: We have to differentiate between two types of cases in our evaluation of the rulings of the Constitutional Court. On the one hand, there are rulings that relate to factional infighting in the ruling elite or are simply administrative of procedural in nature; on the other hand, rulings that rest on an active interpretation of the substantive conditions of the Constitution.
When the Court has to rule on matters that are really nothing but factional infighting, or to simply confirm whether the correct procedures were followed and applicable legislation was complied with, it readily delivers justice to put Government in its place – as it were to keep Government on course. On the other hand, when it has to rule on content issues that relate to discrimination, equality, transformation and other political themes, the Constitutional Court time and again serves as instrument to entrench the ruling elite’s interpretation of the Constitution.
The problem that I want to highlight, however, is the astoundingly poor level of argumentation that is employed in some rulings by the Constitutional Court when political rulings are written.
The recent ruling in the case AfriForum v. University of the Free State on the language policy of the University of the Free State (UFS) serves as a very good example. In this case, it was ruled that the UFS was correct in abolishing Afrikaans as language of instruction.
The Chief Justice ruled on the grounds of his interpretation of Section 29(2) of the Constitution that it was “feasible” to continue Afrikaans education at the UFS, this “feasibility” was “unreasonable” because race relations were “poisoned” as a result. If Afrikaans students were to study in their own language, it would be a continuation of “white supremacy”, and if Afrikaans students were to continue studying in Afrikaans, it would be the realisation of former President Nelson Mandela’s “worst nightmares”.
Well then – as if this statement isn’t enough to raise your eyebrows, a range of fallacious arguments are made in the ruling before this conclusion is reached.
While reading the ruling, I started at one stage to keep a bullet list on my computer of all the fallacies made by the Chief Justice as proof of his conclusion that Afrikaans instruction at the UFS should be abolished. Upon reaching the end of the ruling, I have typed up two and a half pages of points!
Without discussing each point in detail, I want to highlight a few to illustrate my point:
1. Approach to the case
The first issue is the politically-inspired manner with which the case was approached. Paragraphs 1 to 20 employ inspired words about the evilness of Apartheid, the correlation between Afrikaans and oppression, the UFS’s abolition of Afrikaans as part of a “constitutionally-inspired transformational agenda”, the fact that we all should be “unashamedly South African” and that multilingualism leads to racial division.
After these 20 paragraphs, the 21st paragraph is devoted to AfriForum and Solidarity’s argument, stating that the applicants are not happy and that many white and black students want to study in Afrikaans. If that is an indication of the Chief Justice’s applied argumentation, it means that the Chief Justice only glanced over the arguments that AfriForum made.
The ruling relies heavily on the ruling of the Ermelo case years back as confirmation of the ruling that Afrikaans be abolished. There are significant differences between the Ermelo case and the UFS case. The Ermelo case dealt with the changing of the school’s single-medium language policy to that of a parallel-medium policy. The argument raised to change Ermelo High School into a multilingual school is quoted by the Chief Justice as confirmation that the UFS should be exclusively English.
In his minority ruling, Judge Froneman argues that the court papers did not claim that all, most or a significant component of the Afrikaans student community made themselves guilty of racist behaviour. However, this is the impression when reading the Chief Justice’s ruling, which comprises a major part of his motivation on why Afrikaans should be abolished. If this indeed happens, Froneman asks, why is the solution not simply to discipline the racists? Why must a language be abolished as medium of instruction to stop alleged racism?
As if the Chief Justice’s alleged racists would suddenly change their attitude when forced to study in another language. The Chief Justice’s does not even attempt to prove a correlation between Afrikaans as medium of instruction and this alleged racism.
2. Political slip
The Chief Justice makes it clear in his ruling that he holds strong political opinions on this matter and that these political opinions in truth lead him in the direction of how the Constitution should be interpreted.
The Chief Justice argues that Afrikaans is phased out as a result of the execution of a constitutionally-inspired transformation agenda, and that the underlying values of the Constitution necessitates that students of the UFS may no longer study in Afrikaans.
When the Constitution determines that mother-tongue education should be reasonably feasible, the Chief Justice acknowledges that it is feasible to continue Afrikaans education at the UFS, but states that “reasonableness extend to equity and the need to cure the ills of our shameful apartheid past… And that is achievable only if the exercise of the right to be taught in a language of choice does not pose a threat to racial harmony or inadvertently nurture racial supremacy.”
He fails to define racial harmony or racial supremacy, or to argue that it is indeed the case at the UFS, or – more importantly – whose view of racial harmony or racial supremacy should be accepted. If the demands of extremist anti-white racist are not met, it is extremely easy for these to demand in an opportunistic fashion the abolition of Afrikaans by alleging that Afrikaans is detrimental to racial harmony.
It seems that the Chief Justice was caught in the same trap. It is clear in the ruling that “white Afrikaner” students are viewed with suspicion when they ask to study in their own language, while the sentiments of extremist anti-white racists are endorsed without question when these demand the abolition of Afrikaans.
There are also problems with the political rhetoric used in the ruling. Terms like “our people” to refer to black people and the repeated reference to “white supremacy” are but a few examples of this.
3. Anti-Afrikaner tendencies
In his ruling, the Chief Justice does not hide the fact that he has a certain irritation with “white Afrikaners”. Despite the fact that the ruling isn’t about Afrikaners, but Afrikaans, the ruling refers continuously to Afrikaners.
For example, he says: “Whether white Afrikaner students have demonstrated respect for the dignity of fellow students who are black in their daily interactions over the years, and whether a credible or vital connection has been made between racially segregated classes and the ‘racial tensions’ alluded to, the University community would know better.” This remark is very inappropriate. Not only is it irrelevant to the case; it is also an outdated debating technique used to create suspicion in your opponent without offering any proof of it. The statement does not contribute to the ruling and the only aims achieved with it is to get in a punch at the Afrikaner in the ruling.
In more than one instance, the ruling refers to the racism of “white Afrikaners”. There is no trace of the racism committed against white people at the UFS. No mention is made of the white students who are threatened with murder or assaulted simply because they have white skins.
The ruling creates the perception that “white Afrikaners” are the only ones who are guilty of racism and that they should be punished in one or other way. The solution is therefore to abolish Afrikaans. As if this would solve the problem that the Chief Justice sketches.
The Chief Justice then goes further by not merely ruling on how justice should be interpreted, but by attacking those whom he view as racists based on his own selective observations. He says: “It would be unreasonable to slavishly hold on to a language policy that has proved to be the practical antithesis of fairness, feasibility, inclusivity and the remedial action necessary to shake racism and its tendencies out of their comfort zone.” It is clear from the ruling that he is only concerned with white racism.
The Chief Justice is grossly inconsistent in at least four instances in the argumentation that lead him to the conclusion that Afrikaans should be abolished.
In the first place (as already shown), the problem of white racism is exaggerated, while the problem of black racism is completely ignored. The solution for white racism is to abolish Afrikaans (that is at least part of his argument). If this is indeed the case, one could then also argue that the solution for black racism would have been to abolish English.
The second point rests on my own speculation of what the Chief Justice would have ruled under different circumstances. It is argued that Afrikaans classes lead to racial division. Racial division is so bad that it is better to tell the Afrikaans community that they may no longer study in their own language (against almost all UN instructions on mother-tongue education). I am extremely curious about the Chief Justice’s view point if Afrikaans were to have been the majority language, and English or even Tswana or Sotho the minority language. Would the Chief Justice have said that, in the interests of racial harmony, these black students should rather study in Afrikaans? I doubt it! This is nothing more than double standards to the detriment of Afrikaans.
The third point relates to the second. The Chief Justice again and again makes two core arguments to justify his ruling on the abolition of Afrikaans – which are in direct conflict with one other.
On the one hand, he argues that Afrikaans leads to racial segregation and should be abolished to prevent white students from sitting in one class and black students in another (white English students seem to be irrelevant in this argument). On the other hand, he argues that Afrikaans should be abolished as the majority of white Afrikaans students study in English anyway. According to his own interpretation of the situation, therefore, there isn’t racial segregation, yet Afrikaans should be abolished to stop racial segregation.
The fourth point is the old irony of the “English only” policy in the name of decolonisation. It is argued in the ruling that Afrikaans was historically favoured and, as a result, lead to inequality. Consequently, instruction should be exclusively in English (except for Theology, Education and tutor classes).
English is, however, the one language that “benefitted” even more than Afrikaans. If the problem truly is one of certain languages having been favoured, the solution is to uplift other languages rather than to break down the status of favoured languages.
I have made the point that the ruling is based on a certain interpretation of the Constitution. My argument is therefore not necessarily that the ruling by the Constitutional Court is unconstitutional. I have made the point that the Constitution can be interpreted in different ways, and that the interpretation thereof by the Constitutional Court to entrench the ruling elite is on the order of the day.
This is but another matter that should be understood with the necessary seriousness. The problem here is that the Constitutional Court, in its attempt to heed the agenda of the ruling elite, has made itself guilty of cherry-picking, ad hominems, non sequiturs, inconsequent argumentation and various other fallacies.
Ernst Roets is Deputy CEO of AfriForum
Follow Ernst on Twitter at @ErnstRoets