An opinion carries a high price

The ‘chilling effect’ of threatened disciplinary proceedings hanging over the heads of academics who voice an opinion is troubling, writes Angus Stewart. This is an edited version of a submission he made to the University of KwaZulu-Natal on academic freedom

I make this submission to the committee as an interested and concerned alumnus. Its purpose is to explore the relationship between the three distinct areas of the committee’s investigation, namely university governance, academic freedom and university disciplinary processes, and to identify the content of the right to academic freedom.

The South African Constitution and various statutes recognise the right to academic freedom, and a number of statutes recognise the right of staff and students to participate in the governance of the university.

Yet neither the Constitution nor any statute defines what academic freedom means.
It is nevertheless clear from the texts that it is linked to and forms part of the right to freedom of speech and expression.

It is long recognised that the most protected speech is political speech; after all, the most compelling justifications for why the citizenry should enjoy the right to freedom of speech and expression is to ensure that they are able to participate in the political process, so that the best ideas may triumph in the “marketplace of ideas”. It follows that at the heart of the right to academic freedom lies the right to enjoy freedom of speech and expression about the “politics” of the university; about the issues of governance and policy that students and staff have a right to participate in.

On August 14 1968 the late Professor Denis Cowen delivered the third EG Malherbe academic freedom lecture at the then University of Natal. His lecture followed the release two months earlier of the report of the Harcourt Committee of Inquiry into student unrest at the university in 1967. Cowen was one of three members of that committee who defended the rights of students to be involved in public debate and political activity.

The committee’s findings were an important vindication of the students’ assertion of political openness in the university and Cowen’s lecture is an important defence for academic freedom. (This is explained by Justice Edwin Cameron in the recently published book Cowen on Law, in which Cowen’s lecture is also published.)

Cowen identified four aspects of academic freedom for students that few would deny. Those four aspects are equally relevant to university staff, namely:

  • Freedom to express and defend their own views and beliefs, and to question and to differ without authoritative repression or victimisation either by the state or by the university authorities;

  • A guarantee of procedural fairness in the administration of discipline;

  • Substantial autonomy of student (and staff) groups and organisations in the conduct of their own activities; and

  • An effective measure of participation in the government and policies of the university.

Cowen’s identification of the core components of academic freedom for staff and students is as valid today as it was when he addressed the university 40 years ago. It is in particular the first two aspects that are relevant for present purposes.

With regard to freedom of speech and expression, it is obvious that for the rights of stakeholder participation in the governance and policy of the university to be real, staff and students have to be able to speak out about the deliberations and processes of the key bodies of governance, namely senate and council. Those drawn from these ranks have to be able to report back to them without fear of punishment. There must be a protected space for robust debate.

As it was famously put by the United States Supreme Court: “A function of free speech under our system of government is to invite dispute.” There is no way in which the decisions of senate and council can be scrutinised and debated for the public good, which is the guiding objective to whose end the university is constituted, if free discussion of the deliberations of those bodies is prohibited or threatened.

The “chilling effect” of threatened disciplinary proceedings hanging over the heads of participants is intolerable. The only exception from such openness should be decisions about identified individuals who can claim a right to privacy in relation to those decisions.

The university recently employed senior counsel to prosecute disciplinary charges carrying the threat of expulsion against professors Nithaya Chetty and John van den Berg. After the case was settled, senior counsel wrote a letter to the vice-chancellor, Professor Malegapuru Makgoba, which was then self-servingly made public. In this he offered the reassurance that the disciplinary processes against the professors “had nothing to do with academic freedom and freedom of expression”.

That statement is fallacious. The letter itself identifies that the charges against the professors arose out of things that they said and wrote about governance processes at the university.

To discipline someone for what he or she said is inevitably about freedom of expression and in this case that includes academic freedom. Whether an accused staff member’s right to academic freedom and freedom of expression trumps the charge in any particular case is a separate matter, but the fact of the charges being brought itself implicates those rights and necessarily puts them at the core of any defence and the proceedings. The apparently impassive facade of the legal process should not be allowed to mask the truth of what is going on behind it.

The second aspect identified by Cowen is the fairness of disciplinary proceedings. In that regard it is quite unfair on any charged staff member to be faced with a prosecution team of lawyers, including senior and junior counsel and attorneys, employed from outside the university when that staff member is not afforded equality of arms.

The university’s resources—so pressed in relation to other priorities—are apparently bountiful when it comes to employing lawyers to prosecute members of staff. For the staff member concerned, however, the costs of an equality of arms is prohibitive yet the consequences of a guilty verdict are ruinous.

The leading work in South Africa on the rights of an accused to adequate representation was done at the University of KwaZulu-Natal. I refer to the work of professors David McQuoid-Mason and Nico Steytler in the 1970s and 1980s. The groundbreaking judgment on the subject, S v Khanyile, was by a judge from this province, Justice John Didcott, who was also an honorary professor in the law faculty of this university and on whom the university bestowed an honorary doctorate of laws. It would accordingly be particularly appropriate for the university to recognise the unfairness identified above and to ensure that if the university hires outside lawyers to prosecute a case against a member of staff then it allows that member of staff to appoint a legal team of equivalent standing at the university’s expense. Fairness demands it.

Finally, it is worth saying something about law and ethics. It might be that in any particular case there has been a breach of one or other rule or regulation of the university and that the university has the legal power to prosecute that transgression. It is quite another matter whether the university should prosecute and yet another the manner in which it should do so.

The university may well have the power to do something, but it may be quite wrong for it to do so. From what is made available publicly it appears that the university justifies its actions on the basis of its legal power, resorting to publishing the expressed views of the lawyers it has paid to argue its position, yet ignoring whether it was the right thing to do to exercise that power.

When one considers that the consequences of actionable speech in the ordinary law are relatively minor—damages for defamation are notoriously low and criminality based on expression is now highly circumscribed—it is deeply troubling that in the context of the university what someone says can carry such a high price.

Angus Stewart is a senior advocate practising in Durban. As a student in the National Union of South African Students in the 1980s he served on the University of Natal senate and council and more recently on the council of the University of Zululand as a ministerial appointee

What’s the issue?
The University of KwaZulu-Natal’s Council announced last year that it had set up a committee to look into academic freedom at the institution and called for submissions from staff, students and the public.

This followed a public outcry over the treatment of two academics, then associate professor of physics Nithaya Chetty and mathematics professor John van den Berg, who faced disciplinary action for criticising vice-chancellor Malegapuru Makgoba in March last year.

The fuss was over the submission by the science and agriculture faculty’s criticism of the university’s academic freedom record.

Makgoba allegedly wanted the document referred to a senate subcommittee rather than directly to senate.

On the university’s online forum, the academics suggested that he wanted to suppress the document.

They were charged with “failing to take due care in communicating with the media, breaching confidentiality and dishonest and/or gross negligence”. A disciplinary tribunal was scheduled for December 8 2008. Van den Berg signed a settlement agreement, which allowed him to keep his job, terminating disciplinary proceedings.

Chetty refused to sign and resigned. International support for these academics flooded in.

The Committee on Academic Freedom has received several submissions, including one from the Freedom of Expression Institute.

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