As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
Students across South Africa are protesting against proposals by University managements to increase student fees dramatically in 2016. These proposed increases would make it even more difficult for middle class and poor students to attend University. But because access to higher education is a right and not a privilege, those responsible for this state of affairs may well be in breach of their constitutional duties.
In 2013 the Ministerial Committee for the Review of the Funding of Universities (Chaired by Deputy President Cyril Ramaphosa) concluded that “significant additional funding” would be required to meet the resource needs of Universities. The Committee noted that between 2000 and 2010, state funding per student fell by 1.1% annually, in real terms. During the same period, perhaps as a response to declining state funding, tuition fees per student increased by 2.5% annually, in real terms. The Report then concludes:
South Africa’s funding of higher education, even though significant, does not compare favourably to other countries. In 2011, the state budget for universities as a percentage of gross domestic product (GDP) was 0.75% compared to 0.78% for Africa as a whole, and 1.21% for the Organisation for Economic Co- operation and Development (OECD) countries. Given the important role of higher education in the production of skills, research and innovation, in the mitigation of socio-economic inequalities, and in the realisation of the state’s development agenda, the level of funding needs to improve. However, for additional funding to have any meaningful impact, it is necessary to address the inefficiencies in the system.
University Vice Chancellors and University managements have been far too timid about this state of affairs. If they protested, they protested mostly quietly and behind closed doors. Instead of taking a strong, united, public stance against these budget cuts, University managements increased fees to make up the shortfall in their budgets or slashed spending, probably compromising the quality of the education provided.
Even Universities committed to addressing the effects of past and ongoing structural discrimination will be unable to provide the kind of support to underprepared students without access to more funds.
Arguably the reduction in state subsidies to Universities therefore not only prevents deserving students whose parents cannot afford the tuition from accessing higher education, it also threatens the quality of the education of those students whose parents can afford to pay.
Given this disastrous state of affairs a good argument can be made that the state and University managements have been infringing on at least two of the constitutional rights of those who have the ability and inclination to further their studies but are hampered from accessing higher education by their lack of funds or are prevented from succeeding because of a lack of academic support.
First, section 29(1)(b) of the Constitution states that everyone has the right “to further education, which the state, through reasonable measures, must make progressively available and accessible”. Unlike the other social and economic rights contained in section 26 and 27 of the Bill of Rights, this right is not qualified by requiring the state to make further education available and accessible only “within its available resources”.
This means the state will not automatically be able to justify its failure to make further education available and accessible to more students, on the basis that no resources are available to do so. The drafters of the Constitution thus decided to treat education differently from the right to housing, health care and sufficient food and water, which the state has a duty to make accessible progressively but only within its available resources.
As the Constitutional Court pointed out in Governing Body of the Juma Musjid Primary School & Others section 29(1)(b) does contain an internal limitation requiring that the right to further education be “progressively realised” by the state who has to take reasonable measures to make higher education both more available and more accessible.
This provision recognises that it would be impossible immediately to build and staff more Universities and other institutions of further education. Nevertheless, the Constitutional Court noted in Government of the RSA v Grootboom that the language of “progressive realisation” places a duty on the state to immediate take steps to achieve this goal.
It means that accessibility should be progressively facilitated: legal, administrative, operational and financial hurdles should be examined and, where possible, lowered over time…. [This] should not be misinterpreted as depriving the obligation of all meaningful content… It thus imposes an obligation to move as expeditiously and effectively as possible towards that goal. Moreover, any deliberately retrogressive measures in that regard would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for.
Where the state cuts funding to higher education institutions (as it has done since 2000), making it more difficult for many students to gain access to higher education of a better quality, the state is engaging in “deliberately retrogressive measures”. It would not be easy for the state to justify such retrogressive measures in the higher education field, given the fact that the Auditor General has pointed out that billions of Rand have been lost by the state to maladministration and corruption over the past 15 years.
The right to further education is also not qualified – as other social and economic rights are – by the requirement that the state should only provide “access to” the right. In Grootboom the Constitutional Court noted that a right of access to adequate housing suggests that it is “not only the state who is responsible for the provision of houses, but that other agents within our society, including individuals themselves, must be enabled by legislative and other measures to provide housing”.
An argument could therefore be made that the right in section 29(1)(b) requires the state to work towards providing free higher education to all who have the ability and desire to benefit from it.
But even if this is not correct and the court reads an “access” component into the right to further education, it would mean that both the state and University managements have a duty to address the problem that those without resources are often excluded from access to further education for no reason other than that their parents do not have the resources to pay for their studies. As the Constitutional Court pointed out in Grootboom, even where the state “only” has a duty to provide “access” to the right, the state (and University managements) are nevertheless required to “take account of different economic levels” in society.
There is a difference between the position of those who can afford to pay for higher education and those who cannot and at the very least policies must take account of this. For those who can afford to pay for higher education, at the very least the state has a duty to “unlock the system”. Those who cannot afford to pay need to be assisted to enable them to access further education and once students are provided with the opportunity, to ensure that they are provided with the academic support needed to succeed.
Of course, this right is not unlimited. If the state takes reasonable steps to provide more students with better access to education and to provide further academic support to assist students to succeed, it might be justifiable for any funding scheme to require a reasonable success rate from students who benefit from it. I suspect that a system in which the state stops funding a financially deserving student after the student has twice failed to proceed to the next year of study, would constitute a justifiable limit on the right contained in section 29(1)(b).
It is not only the right to further education that is implicated by the funding model currently in place to fund higher education in South Africa. The model may also be in breach of the equality provision in the Constitution.
Section 9(3) prohibits anyone (both the state and University managements) from unfairly discriminating against an individual on the basis of race, gender, sexual orientation, language, disability or ethnic or social origin. The South African Constitution embraces a substantive notion of equality and does not require identical treatment of individuals. Instead, it acknowledges the fact that different people are situated differently and may have to be treated differently to ensure their equal dignity.
Section 9(3) does not only prohibit direct discrimination but also indirect discrimination. For example, where funding rules or policies are “race-neutral” it will not constitute direct discrimination. However, it may very well constitute indirect discrimination on the basis of race, language, disability or ethnic or social origin.
Where a University treats all students the same and assumes that all students have exactly the same means to pay for their education, it would in effect be discriminating indirectly against students who are not able to fund their education. Given the legacy of apartheid and because of the structural racism that still pervades our society, poorer students are still disproportionately black. A funding model that fails to take adequate account of this reality will make it more difficult for a poorer (disproportionately black) subgroup of student to gain access to a University. Such a policy may be discriminatory and may well infringe on section 9(3) of the Bill of Rights.
A court will ask what is fair in the circumstances, taking account of whether the student belongs to a group who has suffered from unfair discrimination in the past (or continues to suffer from such discrimination), and also taking account of the purpose of the discriminatory rule. It will then ask whether the rule has the effect of treating some students as not having equal moral worth because of their race, gender, sexual orientation or social origin. Clearly a rule that has the effect of excluding many deserving students (who will be overwhelmingly black and poor) from University studies while not having any big impact on more affluent students (many of whom will be white) will have such an effect.
It could therefore be argued that any system that has the effect of indirectly excluding some students because of their race, gender, sexual orientation or social origin will constitute unfair discrimination in conflict with section 9(3) and will be unconstitutional.
The Constitution thus places a duty on the state (who largely funds Universities) and University managements, to ensure that no student who otherwise would have been granted access to University is excluded because of his or her lack of funds. While Universities are allowed to make certain rules to regulate access to University, I would argue such rules would be found to discriminate unfairly if they are purely based on whether the prospective student has the funds to pay for his or her education.
The Constitution commands that we (but especially the state) address the deeply entrenched patterns of privilege and disadvantage (much of it still based on race) and that we (especially the state) dismantle the system that continues to skew access to opportunities in our society. In the field of education this requires a complete rethink on the funding model of both primary and tertiary education. Maybe the student protests about fee increases at Universities will finally force policy makers and policy implementers to address the structural inequality that is being perpetuated by the current funding model for education.BACK TO TOP