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ARTICLE: SHOULD SECTION 29(2) OF THE CONSTITUTION JUST BE REMOVED?*

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In his reply to the avalanche of criticism on the proposed amendments to the Schools Act, Mr Panyaza Lesufi, MEC for Education in Gauteng, recently said that “economically and educationally the country cannot afford single-medium schools (read: Afrikaans-language schools) when the demand for education is so great”.

Before the merit of this statement is examined, it must first be determined what the facts are. There are more than 25 000 schools in the country, of which 15 000 are English single-medium schools, 1 200 are Afrikaans single-medium, with about 1 300 additional schools using both Afrikaans and English. This equates to approximately 10% of schools using Afrikaans as language of instruction. But only 5% of all schools in the country are Afrikaans single-medium. In Gauteng, Lesufi's province, of 2 080 schools, only 124 are Afrikaans single-medium schools - 5.9% of all schools. There is an estimated shortage of 159 schools in Gauteng. The reason for this is not primarily a lack of capital, but rather poor planning and the consequent failure to build more schools.

A first conclusion that can be drawn is that Lesufi is not worried about the 15 000 single-medium English schools. They already offer “access” because their language of instruction is English - even in some of the rural areas where English is almost a foreign language. This view, of course, ignores the internationally accepted argument for mother tongue education - but this of course will not bother Lesufi the ideologist. Many experts are of the opinion that the poor quality of education in our schools stems from the language of instruction (English).

Lesufi's argument is further that single-medium schools (read: Afrikaans single-medium schools) hamper access to education and therefore need to be changed to bilingual schools to allow greater access. A question then emerges - if Lesufi changes the 124 single-medium Afrikaans schools in his home province into dual-medium by adding English (and sets these schools on the slippery slope to single-medium instruction in English), what difference will it make to access and quality? He is targeting 6% of the schools, to solve 94% of the problem. This defies any logic - but passes the test of ideologically-tainted thinking with flying colours.

This question becomes more relevant considering that Lesufi has built very few new schools since becoming MEC and is thus co-responsible for the 159-school shortage. It appears as if he might be targeting the 124 single-medium Afrikaans schools to hide his own inadequacies. It seems as if he wants to use these schools to solve his problem of access and the shortage of 159 schools. But what will he do with the Afrikaans learners in those schools? And will he merely fill those schools (some of which are already overcrowded) with non-Afrikaans learners?

This involuntarily reminds me of the first Chairman of the new North-West University Council, who in 2004 was of the opinion that the black students from Mafikeng should be brought to the Potchefstroom Campus to give them better education. On the question about what to do with mostly Afrikaans students at Potchefstroom, his answer was, “I haven’t really thought about that yet”. Apparently, neither has Mr Lesufi.

Given his view that single-medium Afrikaans schools should disappear, the more important question is: what will Mr Lesufi do with section 29(2) of the Constitution? This section gives each learner the right to receive education in the official language of his/her choice, where it is “reasonably practicable”. In all 124 of those schools (and in the other dual-medium schools) in Gauteng it is reasonably practicable. Section 29(2) was one of the carefully negotiated clauses in the Bill of Rights, and forms part of the delicate compromise in the Constitution between the rights of the majority and those of minorities. Today there is no single-medium Afrikaans school in Gauteng that only teaches white learners. Access is thus already provided to previously disadvantaged learners, but is balanced with the rights provided for in section 29(2) - and with the benefits of mother tongue education clearly visible in the results.

It is also important to remember that the majority of single-medium Afrikaans schools are in the Western and Northern Cape, and by far the most are in so called coloured communities. What is Mr Lesufi's message to these learners and parents? Your single-medium Afrikaans schools do not give enough access? I wonder if he would be comfortable saying this to a community in Wellington, the West Coast or even at certain schools on the Cape Flats.

In 1994, a Constitution was negotiated which gave parents a say in terms of the management of public schools, as well as in the choice of language of instruction. This partnership is grounded, inter alia, in section 29(2), where the language of instruction is made a right. In 2017, Mr Lesufi and many other ANC leaders say this partnership and the right to mother tongue education is trumped by the “demand for education”. What he is actually saying, is that he rejects section 29(2) of the Constitution, and that it should be scrapped - despite the fact that his party was one of those who negotiated that section. It is simply not possible to destroy single-medium Afrikaans schools without violating section 29(2).

But despite this seemingly waterproof argument, the struggle for the language of instruction in public education is unfortunately not won - and Mr Lesufi probably knows this. Because in a number of recent education cases in the higher courts, the argument was accepted that section 9 of the Constitution (which applies to equality), trumps any other right in the Constitution, even section 29(2). This applies to the judgment in the North Gauteng High Court on the UP's language policy and the SCA judgment on the UFS language policy. Those judgments did not erase section 29(2), but according to a well-known senior advocate it turned it into an “empty shell”. The Constitutional Court must still give a date for the appeal on the UFS matter. Hopefully the wise men and women on the Bench will be more nuanced and balanced about the variety of rights in the Constitution than the one-dimensional thinking of Lesufi and others.

Minorities in general and Afrikaans speakers in particular will have to assume that the transformation ideology of the ruling party (based on the racially-based 80-9-9-2 formula) will place more pressure on Afrikaans as language of instruction in schools. The interpretation of our courts thus far, that equality is the “major and primary right”, adds further pressure. Mr Lesufi's opinion is not the exception. He is just the most audible of those driving the transformation agenda. But there is nothing that gives me any hope or assurance that any new ANC leadership (or even DA coalition) will deviate from this. Afrikaans education in public schools, even with an appeal to section 29(2) of the Constitution, is under threat.

By Theuns Eloff: Executive Director, FW de Klerk Foundation
23 November 2017

First published in Afrikaans on Netwerk24

 

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