Authoritarianism harms academia
Last week's ruling in the Bloemfontein High Court, which set aside Higher Education and Training Minister Blade Nzimande's appointment of an administrator at the Central University of Technology in the Free State, is undoubtedly a landmark.
There has never before been a legal challenge emanating from provisions of the Higher Education Act of 1997 and its amendments. There has also never been a real legal test of which of the three modes of university governance is the most consonant with our Constitution: state control, state interference or state supervision.
The events that led to the minister appointing an administrator for the university betray a worrying trend towards state control. In this light, last week's judgment carries many lessons for universities, academics, the department, our legislators and broader society.
The Constitution and the Act
Freedom of expression and academic freedom are guaranteed in the Constitution. Academic freedom goes hand in hand with institutional autonomy, which the Higher Education Act clearly establishes.
That they are subject to public accountability does not make public accountability the tail that wags the dog. Neither does public accountability have to equate with state interference or control of universities.
The Constitution and the Act provide for an open, democratic higher education system in which co-operative governance should reign supreme when public accountability is being exercised.
"The concept of [co-operative] governance aligns with one of co-operative government enshrined in South Africa's 1996 Constitution," I argued in an article on university governance and the knowledge economy published in 2009.
"Section 41 of the Constitution enjoins all state institutions that exercise public power and authority to co-operate with one another in mutual trust and good faith in pursuance of the public good.
"The preamble of the Constitution calls for a democratic and open society based on democratic values and democratic government. This is how deep the origins of co-operative governance are.
"In this scheme of things, the government would not become the sole agent of systemic governance, but would commit to consultation and negotiated solutions to problems in a transparent, equitable and accountable manner in pursuit of social justice and the public good."
This encapsulates how the post-1994 constitutional dispensation moved away from a culture of authority and deference to it. Further, unlike school governance, government department management and even governance of parastatals, universities have inviolable constitutional and legislative provisions against state interference and control.
Section 41 of the Act
Section 41A(1) of the Higher Education Act was not properly interpreted and applied by the minister, the judgment found. It does not provide for dissolution of a university's council, but only for taking away its powers temporarily.
The closest analogy here is that when the national government took over the authority of a number of departments in Limpopo, it did so without dissolving those departments or the province itself. And, I must add, it did so without summarily calling for the premier, provincial ministers and others to be put on special leave, as the minister sought to do with me.
There is an interesting point about the use of "or" in section 41 of the Act where it specifies an administrator taking over the powers of governance "or" management. Although Judge Johann Daffue found that "or" should be interpreted as "and/or" where there are problems at both governance and management levels, he accepted that "it is laudable that governance and management should be kept separate".
The reason for why this is laudable, especially in a country reeling under rampant corruption, is that those who make policy and provide strategic oversight should not be the same people responsible for implementing or managing policy.
For instance, universities have massive infrastructure programmes worth billions of rands. If a single person, called an administrator, was responsible for approving tender documents to be published, approving and signing off on adjudication results and giving oversight over all these processes at the same time, it would be a recipe for plunder and corruption. Yet this is what the current system of appointing an administrator to take over both powers for up to two years encourages.
Judge Daffue suggested that, if both governance and management are seriously undermined, two administrators would have to be appointed. However, that is not the only permutation.
One other way, among many, to ensure that governance and management are kept separate would be for the Act to provide for the minister to appoint an administrator to deal with, say, management and a team of two or three people to take over the powers of a council.
Parliament's committee on higher education and training and Parliament itself should take special note of this serious matter.
The tactic the minister has used successfully so far has been to disempower and emasculate councils by appointing an administrator almost overnight, rendering the whole university impotent. The Central University of Technology received a notice of appointment at about 6pm on the same day it was made, with a notice that the administrator would arrive the following day. Why the minister should resort to such guerrilla tactics in a democratic and open society boggles the mind.
In the court documents, the minister argued that the council had no "locus standi" on the matter and if council members had been concerned about his action, they should have lodged applications in their individual capacity. But as the university's counsel, Jeremy Gauntlett SC, argued and Daffue accepted, "locus goes to function, that is, to keep people out of court that have nothing to do with the case". It could hardly be said that the council, which represents the interests of the whole university, had nothing to do with the case as a representative collective, only as individuals.
Daffue determined that, if the administrator had been lawfully appointed, he could have revised the university statute because he would have had the authority of a whole council.
In cases where a university has no statute, the Act allows the minister to impose a standard statute, not a specifically designed one. In my view, this is to allow a proper council, one with all the stakeholders re-presented, to become involved in the preparation of a specific statute.
The principle of co-operative governance demands that it is a representative body such as a council — together with other stakeholders — that should take responsibility for moving beyond a standard statute to formulating one that fits the aspirations of the university, within the limits set in the Higher Education Act.
By contrast, a specifically prepared statute that involved only an administrator and the minister who finally approved it would be a recipe for council and stakeholder manipulation. In the interests of co-operative governance, Parliament will have to revisit this matter.
The era of justification
The judgment is a wake-up call to universities, academics and intellectuals to go back to the basics of pursuing truth. Succumbing to a culture of authority when we are clearly in an open and democratic era of justification is inimical to the pursuit of truth.
Managers and government officials have to acquaint themselves with this new culture. If academics executed their special role in society to pursue the truth diligently, so many of South Africa's ills would be resolved.
The culture of authority that the minister seeks to employ in the university sector is at odds with the post-1994 dispensation.
The minister's position was that he had simply accepted the recommendations of the assessor he had appointed at the university and was under no obligation to provide his own reasons, including how he had reconciled two obviously contradictory reports — one by the assessor and one by the council — on the state of the university. In our post-1994 era of justification it is unacceptable, as the judge correctly ruled.
Academics and society
Unfortunately, many people, including academics, quiver in fear of authority when a Government Gazette is published, such as the ones that announced the minister's decisions first to appoint an assessor and then, in June, an administrator.
But the role of academics is to pursue the truth and question the veracity and reasonableness of what is published in such documents, rather than obsequiously accepting it just because it has been published.
I am not saying that academics and intellectuals should necessarily take an oppositional stand to the government. But when what that government, or any other social structure, seeks to do has no basis and there is no evidence to support it, we should be the first ones to say so in pursuit of truth.
There was no prima facie case against the university, no evidence, and what emerged as evidence was untested and eminently refutable, such as the ridiculous claim about our reserves having being eroded when they had actually trebled.
Whistle-blowers and officials
It is common cause that some faceless, disgruntled people made all sorts of allegations against the Central University of Technology. They did not attempt to provide facts and evidence. They did not give a sense of how many they were and what internal processes they had followed before sending an anonymous letter to the minister early last year. There is nothing wrong with whistle-blowing, but if you are going to be anonymous you should provide as many facts as possible, because you cannot be called upon to justify what you allege. You should show that internal mechanisms have not worked, rather than merely saying so without substantiating the claim.
In our policies, we must make sure that these requirements for whistle-blowing are met so that we avoid a waste of resources — as this court case has shown. In other words, officials who receive and manage anonymous complaints should insist on such criteria before taking further action.
Professor Thandwa Mthembu is vice-chancellor and principal of the Central University of Technology