Generally ICTs are considered appropriate, even though there remain concerns over economic priorities, basic needs or computers. However, the implementation of ICTs is occurring in a context where the cultural and institutional barriers are not well addressed. The assumption often made is that if one just purchases a few computers and modems, a post-industrial society can magically result.
Clearly final relief is sought by the applicants in this application. The latter judgment is binding on this Court in respect of issues which also arise in the current case by virtue of the doctrine of stare decisis. Mr Heunis sought to distinguish the SCA decision from the present matter.
This shall be dealt with later in this judgment. However, in written argument the applicants contended that since the policy itself is attacked and has the legal consequences of adversely affecting the rights of people as well as a direct, external legal effect, that part of their case predicated upon the operation of PAJA remains alive.
It is apparent therefore that the applicants approached this matter on the basis that they seek to have the policy set aside on constitutional as well as administrative law grounds. We are also referred to European law.
Consequently there is an unopposed application for condonation in that regard which is accompanied by a tender for costs. The respondents also brought two striking out applications in terms of Rule 6 15 of the Uniform Rules of Court. Furthermore, the applicants brought an application for the admission of a further affidavit.
In this application the applicants also applied for the leading of oral evidence i. This application is strenuously resisted by the respondents. Prior to presentation of oral submissions, the parties informed the Court that they have reached an agreement to the effect that all these issues would be argued together with the main matter and this duly occurred.
He referred us to some provisions of the LPHE which he described as directly pertinent and which echo provisions of the Constitution, namely: See S30 of the Constitution and para 3.
In order to ensure the effective access to, and implementation of this right, the state has to consider all reasonable educational alternatives, including single medium institutions, taking into account equity, practicability and the need to redress the results of past racially discriminatory laws and practices.
S 29 2 of the Constitution and para 3. This is what the policy framework, set out in the LPHE, seeks to address. It is true that the committee referred to in this regard was tasked to advise on ways in which Afrikaans could be assured of continued long-term maintenance, growth and development as a language of science and scholarship in the higher education system without non-Afrikaans speakers being unfairly denied access within the system or the use and development of the language as a medium of instruction wittingly or unwittingly becoming the basis for racial, ethnic or cultural division and discrimination.
Of course the reason for focusing on Afrikaans was that, with the exception of English, Afrikaans is the only other South African language which is employed as a medium of instruction and official communication in institutions of higher education.
There is hardly a dispute that the framework for language in higher education also reflects the values and obligations of the Constitution, especially the need to promote multilingualism, and it commits as it were to an attempt to ensure that all the official languages are accorded parity of esteem.
See para 12 of the LPHE. It must be mentioned that the LPHE seeks to balance, on the one hand, the needs to transform higher education, and in particular to prevent institutions' languages of instruction from impeding access and success by people who are not fully proficient in English and Afrikaans on the other hand, the development of multilingualism in those institutions' day-to-day functioning and core activities, including the development of indigenous African and other languages as scientific and academic languages.
It also seeks to assure the long-term maintenance and growth of Afrikaans as a language of science and scholarship in the higher education system. It advocated "that attention and strengthening of Afrikaans as a language instruction" sicin historically Afrikaans Universities but it also acknowledged that this will practically create a tension with other constitutional imperatives, particularly considerations of equity, the need to redress past racially discriminatory laws and practices and practicability, identified in s 29 2 of the Constitution.
Mr Heunis submitted as follows: That inconsistency is the most dramatic in the instance of the SU which has taken a deliberate decision to end the status of Afrikaans as a primary language of instruction with full knowledge of what has happened at the other historical Afrikaans universities.
It may be that this is the reason why the Second Respondent consistently denies, in the face of overwhelming evidence to the contrary, that the NLP would lead to a significant down scaling of the role of Afrikaans as a language of instruction at the SU. The latter Section provides as follows: I make passing remarks but would fully and comprehensively deal with these contentions later in this judgment.
We have been referred to Western Cape Minister of Education v Governing Body of Mikro Primary School 1 SA 1 ; 10 BCLR SCAa judgment which overturned a finding of this Court that the governing body of the School was not an organ of state and intended by the legislature to be independent of state or government control in the performance of its functions.
The SCA concluded as follows: The second respondent, a public school, together with its governing body, the first respondent, is clearly an institution performing a public function in terms of the Act.
It follows that it is an organ of State as contemplated in the Constitution. In this regard this Court was referred to the following authorities: This is not synonymous with the broadest or most generous meaning which can be given to a provision. The purpose of a right must be determined with reference to the language, history, larger character of the Bill of Rights, and, where applicable, to the meaning and purpose of related rights.
This purposive or teleological approach to the interpretation of rights may at times require a generous meaning to be given to provisions of chp 3 of the Constitution and at other times a narrower or specific meaning.
One, in my view, may not conclude this aspect on interpretation without reference to Davis et al — Fundamental Rights in the Constitution, Commentary and Cases page 14 where the learned authors describe the difference between a generous and purposive interpretation as follows: By contrast the purposive interpretation is predicated upon the purpose of the right, with the result being that the widest possible interpretation will not inevitably be the one which will be supported.
See para 92 of the judgment.
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