Universities' language policies at a crossroads? The interpretation of Administrative action
23 May 2017
A crucial finding made in the SCA judgment related to the reviewability of the University of the Free State’s decision (UFS decision) to replace its dual-medium language policy with a single-medium language policy. The SCA held that the UFS’s decision was not “administrative action” as defined in the Promotion of Administrative Justice Act of 2000 (PAJA) and therefore only the rationality of the decision could be reviewed by the Court. The aforesaid finding, given the provisions of section 29(2) of the Constitution, is the key issue to be decided in Afriforum’s appeal to the Constitutional Court.
Section 29(2) of the Constitution guarantees everyone the right to receive education at a public higher education institution, in the language of their choice - provided same is “reasonably practicable”. Furthermore, to give effect to this right, the State is obliged to consider “all reasonable educational alternatives”, while taking into account factors such as equity, practicability and historical redress.
If the UFS decision to replace the existing dual language policy is “administrative action”, as was held by the Free State High Court (High Court), it would allow the Constitutional Court to review the UFS decision against the framework of the legal requirements of PAJA. The Constitutional Court would have the power to analyse whether all relevant considerations were taken into account and the weight attached to these considerations by the UFS. On the other hand, if the UFS’s decision is of executive nature, as was held by the SCA Judgment, the Constitutional Court would only interfere to the extent that the UFS, an organ of State, did not exercise its power rationally as the decision must be rationally related to the purpose for which the power was given.
The starting point in this analysis of the SCA judgment should be the definition of “administrative action” in section 1 of PAJA. Considering that the UFS is an organ of State and that its Council, together with the Senate, has the power to adopt a language policy in terms of the Higher Education Act (Education Act), the approach in Greys Marine Hout Bay (Pty) Ltd and Others v Minister of Public Works (Greys Marine) should be adopted. Greys Marine broke down “administrative action” to seven requirements, namely: any decision of an administrative nature; by an organ of State; exercising a public power or performing a public function; in terms of any legislation; that adversely affects someone’s right; which has a direct external legal effect and that does not fall under any of the exclusions listed in section 1 of PAJA.