This is the second article in a series of four analysing the recent Supreme Court of Appeal judgment in the matter of University of the Free State v Afriforum and Another (SCA judgment).
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.
The first requirement, namely “a decision of administrative nature”, is especially difficult to determine in this instance. In line with President of the Republic of South Africa and Others v South African Rugby Football Union and Others (SARFU), the focus should be on the nature of the power. A distinction needs to be drawn here between policy formulation, associated with a wide discretionary power, and policy implementation. The general principle is - the closer the decision lies to policy formulation the less likely it is to be administrative in nature - which was the general approach in the SCA judgment.
The SCA however, failed to investigate other ancillary factors used by the Courts to determine the nature of the power, specifically the source and constraints on the power. It is, arguably, in line with the reasoning in Permanent Secretary of the Department of Education of the Government of the Eastern Cape Province and Another v Ed-U-College (Ed-U), that the UFS decision might constitute policy formulation in a narrower sense, which would make it administrative in nature. In Ed-U, the Constitutional Court distinguished between policy formulation in a broader sense, which would involve more a political decision, such as policy formulated by the executive outside the legislative framework, and policy formulated in a narrower sense where a member of the executive is in fact implementing legislation. The power to formulate policy in the narrower sense is often sourced from legislation and as in Ed-U, ultimately the power is constrained by the Legislature.
The constraints in terms of the Education Act on the Universities’ power to govern, and the fact that the Minister may intervene if the Council of the University for instance is unable to perform its functions properly or where there is financial impropriety, can be strong indicators that Universities are not granted a wide discretionary power. The Universities’ power to govern arguably relates more to a narrower discretionary power as they would be in the best position in a specific factual context to decide. However, this power is still exercised under the umbrella of the Minister’s power in line with the Ed-U approach. Following the Constitutional Court’s reasoning in Head of Department, Mpumalanga Department of Education and Another v Hoërskool Ermelo and Another (Ermelo), which confirmed that the Head of the Education Department may intervene on “reasonable grounds” when a governing body of a public school adopts a language policy, it is plausible that the Minister in the context of public higher education institutions would also have the power to intervene on “reasonable grounds”.
On further analysis of the requirements of “administrative action”, the SCA judgment came to a further inexplicable conclusion the “the policy itself does not adversely affect the rights of any person or have the capacity to do so”. This was in relation to the requirement that “administrative action” constitutes a decision that “adversely affects the rights of any person and which has a direct external legal effect”. This roundabout approach must be read with the fact the SCA approached the matter on the basis that as the decision to adopt a language policy was sought to be set aside and not the policy, the legal consequences will only follow once the policy is implemented.
The SCA judgment loses sight of the fact that the decision to adopt a new language policy also constitutes a decision to abandon the current bilingual option as the High Court stated. Therefore, there is merit in Afriforum’s argument in their leave to appeal to the Constitutional Court, that the decision to remove Afrikaans - in effect - removes a language choice for a prospective student at UFS. This has the “capacity”, in line with Greys Marine, to affect their section 29(2) constitutional right. Hence the decision should be viewed as an “administrative action”.
Had the SCA Judgment approached the UFS decision as “administrative action” it could have considered and weighed all factors taken into account, including a “commitment to transformation” in the decision to abandon the dual language option. This approach would also have allowed the SCA to specifically investigate the weight the UFS attached to the impact on section 29(2) of the Constitution. Considering the importance of this distinction, it will be crucial for the Constitutional Court to provide legal certainty.
**The second article in a four-part series on the right to receive education in the official language or languages of choice in public educational institutions.
By Christine Botha: Legal Officer, Centre for Constitutional Rights