Perpetual punishment of Afrikaners for the sins of their fathers

The thing about human rights is that their exercise often offends somebody. Many politicians, for example, would be happier if the press did not exercise its right to expose their skulduggery.

It is precisely because they can cause offence that rights need constitutional protection, which fortunately our Constitution gives them. Unfortunately, however, attempts by Afrikaners to enforce their rights seem sometimes to have offended some of our judges, among them some who grace the bench of the Constitutional Court.   

In July 2016, that court criticised the civil rights group Afriforum for "advancing illegitimate sectarian interests through legal stratagems" by making use of the constitution and the courts. At issue was an attempt by Afriforum to prevent the changing of certain street names in Pretoria. This was held to be an intolerable attempt to perpetuate apartheid.

Now, in a judgement handed down at the end of last year, the court refused Afriforum and the Solidarity trade union leave to appeal against a ruling by the Supreme Court of Appeal upholding a decision by the University of the Free State to phase out Afrikaans as a medium of instruction. Both Afriforum and the FW de Klerk Foundation have criticised the judgement on this website.

Handed down by the chief justice, Mogoeng Mogoeng, on behalf of the majority of eight judges, the judgement accepted at face value a series of claims by the university that the use of Afrikaans "threatens to perpetuate racial discrimination or disharmony". Writing for the minority of three judges, Johan Froneman said that it would have been preferable to allow an appeal so that the university could present evidence to back its claims.

At issue was whether it was "reasonably practicable" for the university to retain Afrikaans as its second major medium of instruction. The majority judgement failed to deal with actual practicalities, concentrating instead on "the need to redress the results of past discriminatory laws and practices". According to Judge Mogoeng, the "blind pursuit" of a right to be instructed in an official language of choice should not undermine equitable access, preserve exclusivity, or perpetuate "racial supremacy".

Having cautioned against a "subliminal and yet effectively prejudicial disposition towards Afrikaans", and having also underlined the need for judicial officers to avoid becoming "emotionally entangled" in matters before them, Judge Mogoeng said that Afrikaans had been used as an "instrument of control, exploitation, and systematic humiliation". Apartheid was a "crime against humanity" which had "left us with many scars".

Judge Mogoeng quoted university officials as having said the dual medium policy had necessitated separate lecture rooms, which had given rise to racial tensions. Continued use of Afrikaans as a major medium of instruction would leave the results of white supremacy "alive and well". It was not "reasonably practicable" to retain it "when race relations is poisoned thereby".

These are bold claims for the university to make and for the court to endorse without hearing evidence. Whether or not separate lecture rooms were "innocuous or toxic" was something the university "would know", Judge Mogoeng wrote. It would also "know better" whether or not "white Afrikaner students have demonstrated respect for the dignity of fellow students who are black".

In effect, then, the Constitutional Court has acquiesced in downgrading Afrikaans and therefore depriving Afrikaans-speaking students of a constitutionally-guaranteed language right on the basis of claims put forward by the university in defence of its own policy. It has then refused leave to appeal, so that there is now no chance that the university's allegations can be subject to proper interrogation, even though that institution claims that these are backed by "observable incidents" and empirical research.

The court's decision in this case flies in the face of the chief justice's own warning against prejudicial attitudes towards Afrikaners. It is also inconsistent with his statement stressing the need to avoid emotional entanglement. In refusing leave to appeal, the court comes close to failing to uphold the principle of audi alteram partem. Afrikaans students, it would appear, are to be collectively punished in perpetuity for the sins of their fathers.   

* John Kane-Berman is a policy fellow at the IRR, a think-tank that promotes political and economic freedom.