The Higher Education and Training Laws Amendment Act, finalised in November last year, is almost certainly open to constitutional challenge, according to Advocate Jeremy Gauntlett.
The act’s provisions are impermissibly vague; it unjustifiably infringes the constitutional right to academic independence, and it violates the right to a fair procedure.
In a recent lecture at the University of Johannesburg, Gauntlett – one of South Africa's foremost lawyers – asserts that numerous provisions of the act confer “an unfettered discretion on the minister (of higher education and training), especially those providing for the appointment of an administrator".
In addition, he says, "the Amendment Act in material respects trenches upon academic freedom, in a manner which cannot be justified in terms of section 36 of the Constitution”.
Finally, he contends that a "cluster of further defects in the Amendment Act" rendered it "assailable also on the basis of the constitutional right to procedural fairness".
We could not agree more.
The act, finalised in November 2012 and assented to by President Jacob Zuma in December 2012, has the potential to impact negatively on institutional autonomy and academic freedom of universities and other higher education institutions in an unconstitutional manner.
One of the primary concerns of the act, as pointed out by Gauntlett, resulted from the provisions of section 7, which allow the minister to intervene in the governance and management of higher education institutions.
In terms of this section, the minister may issue a directive to the council of a university if, in the minister's opinion, the council has acted "unfairly or in a discriminatory or inequitable way towards a person to whom it owes a duty".
If that council then fails to comply with the ministerial directive, the minister must dissolve the council and replace it with an administrator with extensive powers – regardless of the nature or extent of the minister's directive, or the council's reasons or defence for failing to adhere to the letter of such directive.
According to Gauntlett, the act does not specify the circumstances justifying the appointment of an administrator: "Because of the far-reaching consequence of such appointment (not just the vesting of all powers – thus management, governance and administration – in a single person, but also the automatic and irreversible dissolution of a council), the lack of legislative guidance provided to the minister falls foul of Constitutional Court case law".
The lack of adequate consultation with relevant higher education stakeholders prior to promulgation of the act is equally concerning.
Both Higher Education South Africa (HESA), representing all 23 vice chancellors of South African universities, as well as the Council on Higher Education (CHE), the statutory body that advises the minster, were previously quoted in the media stating that the Minister of Higher Education and Training, Blade Nzimande, had failed to consult them about the amendment legislation – both during the drafting as well as the parliamentary processes.
Both HESA and CHE did, subsequently, in their public submissions to the parliamentary Portfolio Committee on Higher Education and Training, raise their concerns and present recommendations on the legislation, but to no avail.
The bill was adopted without any substantive changes and promulgated by the president without considering their remaining concerns.
In response to their claims, the Portfolio Committee said that public hearings, in which these bodies made submissions, served as adequate consultation.
In addition, the minister's spokesperson Vuyelwa Qinga contended that both HESA and CHE had the opportunity to participate in the public hearings and that the act did not give new powers to the minister.
According to her, it was not true that the minister wanted to control governance of universities, but that "institutional autonomy can never be an end in itself if you are a public institution that is subject to the national imperatives of a developmental state like ours and sustained through public funds."
Nzimande reiterated this position in his recent budget vote speech in which he remarked that he had been compelled to take action in some higher education institutions to "ensure their integrity and proper functioning in the face of corruption or maladministration" and that he "refuses to be intimidated by those who say this violates university autonomy, but ignore the need for universities to be publicly accountable."
As Gauntlett pointed out, academic freedom – as a constitutional right – is not absolute: "It exists side by side with the rights of others." As such, it is without doubt necessary to ensure all universities and other higher education institutions function properly, free of maladministration and corruption.
It is important to ensure the institutional integrity of these institutions – both in the interest of quality education and in the interest of accountability for public funding being invested in these institutions.
Regardless of how intimidating it may sound, however, taking control of a university's governance and management structures without considering constitutional imperatives can certainly not be an end in itself or even a means to an end.
(Adv. Kruger is director at the Centre for Constitutional Rights)