HIGHER EDUCATION AND TRAINING LAWS AMENDMENT ACT FAILING THE TEST
Adv Johan Kruger, Director: Centre for Constitutional Rights
In a recent lecture at the University of Johannesburg, Jeremy Gauntlett argued that certain provisions of the Higher Education and Training Laws Amendment Act 23 of 2012 (the Act) are almost certainly unconstitutional. According to him, the Act is open to constitutional challenge as its provisions are impermissibly vague; it unjustifiably infringes the constitutional right to academic independence; and it violates the right to a fair procedure. Gauntlett asserts that the Act is vague as “numerous provisions of the Amendment Act confer an unfettered discretion on the Minister, especially those providing for the appointment of an administrator“. In addition, “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 the President in December 2012, has the potential to negatively impact 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 mustdissolve 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 caselaw“.
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 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 also 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“. Minister 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 that 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, but also in the interest of accountability for public funding being invested in these institutions. However, regardless of how intimidating it may sound, 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.
Read Jeremy Gauntlett’s complete lecture, “Freedom’s Children? Institutional Autonomy at South African Universities 20 Years On“ as delivered at the University of Johannesburg on 7 May 2013.
[Lecture published and distributed with the author’s permission]
The Lutheran Order of Service for the high holiday of the most holy Trinity is available here in isiZulu and seTswana. Today it comes with a sermon on Numbers (Moses 4) chapter 6 verses 22-27 (The Aaronitic blessing) written by brother Rev. Peter Weber (LC Ohlangeni, KZN) in isiZulu (wz1330130526 Tr) and translated as usual into seTswana (wt1330130526 moletlo wa Borobongwe) by my father Rev. E.A.W.Weber DD.
Wilhelm's space 
Political comment by F.W. de Klerk: On Africa and SA
In a speech to the Process Expo at Nasrec this morning, FW de Klerk questioned the tendency to be pessimistic about both South Africa – and Africa. He said that he wanted to address “these Prophets of Doom and Afro-Pessimists in a balanced way”.
He conceded that South Africa was once again experiencing serious international perception problems. Foreign observers were worried about the role of radical trade unions and were also concerned about the Marikana incident and farm strikes in the Western Cape. These developments had a negative impact on foreign direct investment, which had fallen by 43.6% in the past year.
De Klerk said that it was nevertheless important to retain balance in one’s assessment of South Africa – and informed his audience of the progress that had been made since 1994:
International observers were constantly reminded of South Africa’s failures. However,
“Where we score badly is in those areas of national activity that fall under the responsibility of government. We are in the bottom 20% with regard to the quality of education; the business cost of crime; HIV prevalence; and labour market efficiency.”
According to De Klerk, the good news was that government was aware of these problems and had adopted the National Development Plan to address them.
De Klerk said that he was also optimistic about South Africa’s future “because of the excellent foundation that our non-racial constitution has created for present and long-term stability.”
De Klerk said that he was also increasingly confident about the future of Africa. Pessimists tended to focus excessively on the slow progress that Africa was making in resolving conflicts and promoting democracy. They also pointed out that Africa continued to lag far behind the rest of the world in terms of human development, education, competitiveness and corruption – and that the continent was still too dependent on foreign aid.
De Klerk insisted that observers should also take into account “the continent’s vibrancy, its enormous potential and its growing strategic importance”.
“The central reality is that sub-Saharan Africa constitutes one of the largest areas of under-developed real estate in the world. There are about the same number of people in its 24 million square kilometers than there are in the 3.3 million square kilometers of India.”
De Klerk also believed that South Africa would increasingly be regarded as the gateway to Africa.
De Klerk concluded that “Africa and South Africa are on the march.” “Although South Africa and Africa continue to wrestle with enormous problems I believe that we should shift our attention from the Prophets of Doom – to the profits that can be earned by becoming involved in one of the most exciting growth prospects in the world.”
ISSUED BY THE FW DE KLERK FOUNDATION
21 MAY 2013
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