The right to receive education in an official language or a language of choice is enshrined in

South Africa’s Constitution, specifically in the context of promoting and preserving linguistic
diversity while also ensuring equality in education. As South Africa is a multilingual country,
the interpretation of the right to education in a language of choice has sparked significant
debate and legal scrutiny. This issue intersects with broader constitutional principles of
equality, human dignity, and the protection of minority rights, especially considering South
Africa’s complex history of racial and linguistic inequalities. In this essay, we will examine
how South African courts have interpreted and applied the right to receive education in a
language of choice, drawing on three key cases: Minister of Education v. Governing Body
of the Mikro Primary School, Bam v. University of Pretoria, and Khulumani v. Minister
of Education.

Constitutional Framework and Language Rights

The South African Constitution, in Chapter 2 (the Bill of Rights), explicitly outlines language
rights. Section 29(2) provides that "everyone has the right to receive education in the official
language or languages of their choice in public educational institutions, where that education
is reasonably practicable." This provision reflects the country’s commitment to ensuring
access to education in languages that are both accessible and meaningful to all learners, given
South Africa’s eleven official languages.

However, this right is subject to the condition that it must be "reasonably practicable," a
clause that has been interpreted by the courts as acknowledging the logistical and financial
constraints that could affect the implementation of this right.

Case 1: Minister of Education v. Governing Body of the Mikro Primary

School (2006)

The first case that highlighted the conflict between the right to education in a language of
choice and the practical constraints of providing such education is Minister of Education v.
Governing Body of the Mikro Primary School. This case revolved around the right of
learners at Mikro Primary School, a public school in the Western Cape, to be taught in their
home language, Afrikaans.

Mikro Primary School had, for many years, used Afrikaans as the medium of instruction.
However, the Western Cape Education Department sought to introduce English as the
primary medium of instruction. The Governing Body of the school resisted this change,
arguing that it infringed on the learners' constitutional right to receive education in their
language of choice, which in this case was Afrikaans. The school argued that Afrikaans was
essential to preserving their cultural identity, and the switch to English would disadvantage
the learners.

The Constitutional Court had to balance the rights of the learners and the practical
considerations of the state. It found that the state had an obligation to ensure that education
was accessible in a language of choice, but it also acknowledged the difficulties in
implementing such a provision in a multilingual society with limited resources. The court
ruled that while the learners' rights to Afrikaans as a language of instruction were important,
the Department of Education could lawfully decide to implement English as a medium of
instruction, provided that the change was done in a manner that did not unduly disadvantage
the learners.
This case marked an important moment in the interpretation of Section 29(2). The court
recognized the tension between linguistic rights and the state’s ability to provide adequate
and effective education. The decision underscored that the right to education in a language of
choice must be balanced with the realities of managing a diverse, resource-constrained
education system.

Case 2: Bam v. University of Pretoria (2016)

Another key case in the debate about the language of instruction was Bam v. University of
Pretoria. This case focused on the right of students at a public university to receive education
in their preferred language. The University of Pretoria, which had historically used Afrikaans
as the language of instruction, began to transition towards English as the primary medium of
teaching, citing the need for greater inclusivity, given the broader demographic of students.

Bam, a student at the University, argued that the shift from Afrikaans to English was an
infringement on his constitutional right to be taught in his language of choice, Afrikaans. He
claimed that the university’s move to English was discriminatory and disproportionately
affected Afrikaans-speaking students, as it deprived them of the opportunity to receive
education in their home language.

The court considered whether the university had violated Section 29(2) of the Constitution,
which mandates that students should have access to education in the language of their choice,
provided that such provision is reasonably practicable. The court found that the University of
Pretoria’s decision to move to English was not an arbitrary or discriminatory move. The court
acknowledged the challenges posed by a university environment where students came from
diverse linguistic backgrounds, and it agreed that moving to English was a reasonable
solution for promoting inclusivity.

In this case, the court also emphasized that while the right to language choice in education is
constitutionally protected, this right is not absolute. The courts recognized the importance of
universities providing an inclusive environment where students from different linguistic and
cultural backgrounds could feel at home. The judgment highlighted that universities have a
responsibility to ensure that education is provided in a way that is inclusive, efficient, and
practical, even if that means prioritizing English as the medium of instruction.

Case 3: Khulumani v. Minister of Education (2010)

The Khulumani v. Minister of Education case focused on the issue of access to education
in indigenous languages and how this related to the principle of equality in education. In this
case, the applicants, a group of parents and learners from rural areas, challenged the
Department of Education’s failure to provide education in indigenous languages, particularly
in the Eastern Cape. They argued that their right to education in a language of choice was
being violated because the Department of Education was not providing enough resources to
support indigenous language education in schools.

The key issue in this case was whether the right to education in a language of choice should
extend to the promotion of indigenous languages, given that these languages were often
neglected in favor of the more widely spoken official languages like English and Afrikaans.
The court found that the right to education in a language of choice includes the right to access
education in indigenous languages, provided that such provision is reasonable and practically
achievable.

The court ruled in favor of the applicants, emphasizing the importance of protecting and
promoting linguistic diversity in the education system. It held that the Department of
Education must take proactive steps to ensure that indigenous languages were adequately
supported, both in terms of resources and teaching staff, to ensure that learners could access
education in their language of choice.

Interpretation of Section 29(2) and Language Rights

From the cases discussed above, we can infer several key principles regarding the
interpretation of Section 29(2) of the South African Constitution:

1. The Right to Language of Choice is Not Absolute: In all three cases, the courts
consistently held that the right to education in a language of choice is not absolute. It
is subject to the condition of "reasonable practicability," which allows the state to take
practical considerations, such as available resources and the need for inclusivity, into
account when deciding on the language of instruction.
2. Balancing Linguistic Rights and Inclusivity: The courts have stressed the
importance of balancing linguistic rights with the practical need for inclusivity in
education. In the case of Bam v. University of Pretoria, the court recognized that in
a multilingual society, it is often necessary to use a common language (such as
English) to ensure that all students have equal access to educational opportunities.
3. Promotion of Indigenous Languages: The case of Khulumani v. Minister of
Education highlighted the need for the state to take proactive measures to support
indigenous languages in the education system. This case reflects a growing
recognition of the importance of linguistic diversity and the need to preserve and
promote indigenous languages in the face of historical marginalization.
4. Reasonable Practicability and State Discretion: A consistent theme across these
cases is the notion that the state has discretion in determining the most practical
means of fulfilling the constitutional right to education in a language of choice. This
means that the state is not required to provide education in every possible language
but must make reasonable efforts to accommodate linguistic diversity in a manner that
is sustainable and efficient.

Conclusion

The right to receive education in an official language or language of choice is a vital

component of South Africa's constitutional framework. The courts have interpreted this right
with a focus on balancing individual linguistic rights with the broader goals of inclusivity,
equality, and the practical realities of education provision in a multilingual society. Through
cases like Minister of Education v. Governing Body of the Mikro Primary School, Bam
v. University of Pretoria, and Khulumani v. Minister of Education, the judiciary has
navigated the complexities of ensuring that the language of instruction in schools and
universities respects both the diversity of South Africa’s linguistic landscape and the
practicalities of delivering quality education to all.