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Gelyke Kanse and Others v Chairperson of the Senate of the University of Stellenbosch and Others
Court: Constitutional Court · Date of judgment: 2019-10-10
Case No: CCT 311/17 Gelyke Kanse and Others v Chairperson of the Senate of the University of Stellenbosch and Others Legal Concept: Reasonable Practicability The most important legal aspect of this case is the concept of "reasonable practicability" under Section 29(2) of the Constitution. This means that while everyone has the right to receive education in the official language of their choice, the government (or a university) only has to provide it if it is fair, feasible, and can be done without unfairly excluding others or ignoring the need to fix past racial inequalities. Facts of the Case In 2014, Stellenbosch University had a policy that gave Afrikaans and English equal status.
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Section 6, section 9 and section 35 of the Constitution — in everyday life
South Africa has eleven official languages and a constitutional commitment to elevate, protect and use them equitably. In practice, contracts, court papers and official communications are often presented in a single language that the other party does not properly understand. Van Dyk · Theron Attorneys advise on language rights in contracts, in litigation, in education and in dealings with the State.
1. The Constitutional Framework
Section 6 of the Constitution recognises eleven official languages and obliges the State to take practical steps to elevate the status and advance the use of all of them. Section 9 prohibits unfair discrimination on the basis of language. Section 35(3) and 35(4) entitle accused persons to be tried in a language they understand or to have proceedings interpreted into such a language — a guarantee that runs into every form of civil and criminal litigation.
2. Language and Contracts
A contract presented in a language the signatory does not properly understand is vulnerable to attack on the basis of mistake, misrepresentation or non-disclosure under the Consumer Protection Act 68 of 2008 — which expressly requires plain and understandable language. We assist clients to insist on contracts in a language they understand and to challenge contracts that have been signed in circumstances of language disadvantage.
3. Language in Court
An accused has the constitutional right to be tried in a language he or she understands or to have a competent interpreter. Civil litigants are also entitled to interpretation in practice. We make sure interpreters are properly qualified and that critical evidence is not lost in translation.
4. Language and Education
The right to receive education in the official language of one's choice in public educational institutions where reasonably practicable is protected by section 29(2). The Constitutional Court has decided multiple cases on Afrikaans-medium and other single-medium institutions; this remains a live and contested area.
5. Language and the State
Provincial and national government must use at least two official languages, and municipalities must take into account the language usage and preferences of their residents. Failure to do so is reviewable. We assist clients with engagements with State organs where language rights have been ignored, including review litigation and structured mediation with the responsible authority.
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