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In oral argument the applicants conceded that the impugned decision did not involve administrative action as contemplated in the Promotion of Administrative Justice Act 3 of 2000 (‘PAJA’) but that the adoption of the new policy could be subject to a legality review on the ground that it was made in the exercise of a public power.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 important to note that as far as possible at this stage an endeavour is made to document Mr Heunis’s contentions.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. The LPHE (based on Prof Gerwel's Committee) acknowledges that Afrikaans, ‘as a language of scholarship and science is a national resource’ and it commits to ‘ensuring that the capacity of Afrikaans to function as such a medium is not eroded’. Mr Heunis correctly contended that the language policy determined by the Council of the University has to be informed by the LPHE and all such policies (including the LPHE itself) have to comply with Sections 29 (1) (b) and 29 (2) of the Constitution.He referred us to some provisions of the LPHE which he described as directly pertinent and which echo provisions of the Constitution, namely: (a) . The applicants seek orders reviewing and setting aside the decisions of the Senate and Council of Stellenbosch University (‘SU’), taken on 9 and 12 June 2016 respectively (the decisions), to adopt a new language policy for the SU (‘the Policy or the 2016 Policy’) in terms of section 27 (2) of the Higher Education Act 101 of 1997 (‘the Act’); as well as an order setting aside the Policy itself; and an order directing SU to implement its previous language policy approved by the Council on 22 November 2014 (‘the 2014 Policy’) until it is validly amended or replaced.
Clearly final relief is sought by the applicants in this application.
In this application the applicants also applied for the leading of oral evidence i.e.
that the Court should subpoena an identified person to come and testify before Court.
(para 4 of the LPHE); (e) The challenge facing higher education is to ensure the simultaneous development of a multilingual environment in which all South Africa's languages are developed as academic/scientific languages, while simultaneously ensuring that the existing languages of instruction do not serve as a barrier to access and success.
This is what the policy framework, set out in the LPHE, seeks to address.  Mr Heunis relied heavily on the fact that the Minister of Higher Education had invited Prof GJ Gerwel to convene an informal committee to provide him (the Minister) with advice specifically with regard to Afrikaans as a language of instruction.
(b) The Ministry's support for the retention of Afrikaans as a medium of academic expression and communication in higher education and its commitment to ensure that the capacity of Afrikaans to function as such, is not eroded.