Minister given a blue light to ride roughshod over academic rights
Most of us who turned away from a life in academia can point to a defining moment. It is when you know whether your own set of sensibilities inclines you to the life, or not; or perhaps that the challenge is put in terms that defeat you.
For me it was the latter. The decision was made when Sir Rupert Cross, Vinerian professor of English law and fellow of All Souls, handed back a set of collections — Oxford argot for essays — to a bachelor of civil law class. Although he was blind from birth, he had the extraordinary ability to look witheringly at an audience — as he did then, to deadly effect. He shook his head and said: "I know you really can't help your laziness. But you really should try to do something about your stupidity."
That seemed to me as unattainable as it was unanswerable. I turned to practice instead. But, one way or another, my life has remained tied to universities. I believe in the university as simply essential to free thought and a free society.
So I venture here on an appraisal of the tricky terrain suggested by one subtheme of academic freedom: institutional autonomy, now and then — more narrowly still, its relation to legitimate needs and objects of the executive on the one hand and academic freedom on the other.
My thesis has five points to it. First, that the constitutional dispensation inaugurated in 1994 entrenches in the Bill of Rights academic freedom. Second, that this is explicable in the light of the very particular history of academic freedom in South Africa — and to be interpreted with regard to it. Third, that that history records, in particular, a resistance to academic freedom being subservient to any notion of any greater — or indeed, different — social good.
Fourth, that on to the statute books four months ago crept, however, a series of statutory provisions inimical to the institutional autonomy of universities. Fifth, that, consequentially, these diminish academic freedom — and in my view, do so unconstitutionally.
For my concept of academic freedom, my text is a United States Supreme Court opinion — one by a celebrated legal scholar who became a great judge, Felix Frankfurter. I do so because, when seeking to define academic freedom for the US, Frankfurter took the definition not from his but from our own country: "It is the business of the university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail the four essential freedoms of the university — to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught and who may be admitted to study."
Those "four freedoms" are derived from the inaugural address of Professor TB Davie, principal and vice-chancellor of the University of Cape Town in the 1950s. In articulating them, Davie stressed that their root was "freedom from external interference … Both staff and students are bound to rise in protest at the least threat to their sanctity."
The first point in my thesis is that South Africa since 1994 need not, as was once the case, scrabble between the flat stones of oppressive statutes to find an etiolated common-law academic freedom. It is powerfully protected in the country's supreme law. Section 16(1)(d) of the Constitution reads: "Everyone has the right to freedom of expression which includes … (d) Academic freedom and freedom of scientific research."
Of course, as a constitutional right, academic freedom is not absolute. Like all rights, it may be limited by a law of general application "to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom".
There can be little doubt that the framers of the Constitution were aware of Davie's four freedoms and meant them to serve as cornerstones, without reciting them, especially in view of the particular history of academic freedom, and the assaults on it, in South Africa.
That brings me to my second point: the particular light thrown on academic freedom by its recent history in South Africa. This entailed the resistance by those, of whom Davie was one, to a notion of academic freedom being subservient to any rampant assertion of popular will or greater social good. For it is this assertion that I see as resurgent in the new statutory provisions.
In the 1950s, it is often forgotten, a powerful lobby of university principals and senate members at South African universities abhorred the stance that Davie personified. In their concept of society, restricted by race and even by group within race, they saw themselves as both a new order and even majoritarian.
The battle lines were sharply drawn by Dr HB Thom, principal of the University of Stellenbosch, in his 1965 address, University and Society. Stellenbosch was to be a volksuniversiteit — no ivory tower or preserve of the intellectual elite but a mirror held up to Afrikaner society.
Thom's address appeared in print with a supplement by the poet Professor WEG Louw, who quoted HF Verwoerd to the effect that a reliance on academic freedom is actually part of a volksvreemde (alien) imperialist ideology.
How, for some, academic freedom has to bend the knee to the society in which it finds itself is my third point, and it is this notion that is once again on the loose. True, not the pseudo-anthropological notion of a volk, with its atavistic evocation of Germania, but still the notion of a new order, to which loyalty is owed and within which a personal freedom is yet to be achieved — if (and it is a Faustian pact) it defers to the new order.
And so I turn to my fourth point: the effect of a new set of legislative provisions, the Higher Education and Training Laws Amendment Act 23 of 2012. To understand their reach, and often bizarre provisions, it must be noted that there are, in the Higher Education Act itself, already far-reaching powers of intervention for the minister.
These are hinged on circumstances of serious mismanagement or financial malpractice. The minister already has the power to send in an investigator and the capacity to intervene in circumstances of serious institutional failure.
There can be no sensible in-principle objection to such a redemptive, fire-engine power. The Constitution contemplates similar emergency interventions in other contexts (such as by national government when provincial departments fail).
My objection to the amendments is simple: the fire engine becomes a commodious, ill-designed vehicle permitting ministerial takeover in a range of circumstances shrouded in at times comically inept draftsmanship. The red light is supplanted by a discretionary blue light, with all that has come to signify in our society.
The Act extends the minister's power to intervene in the governance and management of higher education institutions. It authorises the minister to issue directives to a university council if, in the minister's opinion, the council has acted "unfairly or in a discriminatory or inequitable way towards a person to whom it [the council] owes a duty".
If such a council fails to comply with any such ministerial directive, whatever the explanation and however limited either the directive by the minister or the default by the council, the minister must replace the council with an administrator with extensive powers. The council, moreover, is thereby automatically dissolved.
These are some of the more objectionable features, in detail, of the amendment Act:
- Section 1 introduces inter alia section 27(5B) into the Act, which disqualifies a council member from reappointment if he "is implicated in the report of the independent assessor" (emphasis added). Not found to have committed any criminal or civil wrong by a competent tribunal, just "implicated" — this in the view of the minister's investigator. And so marked for life.
- Section 2 introduces section 38A, authorising the minister to appoint "a national institute for higher education … with a specific scope or application" (emphasis added), the "particulars" of which are to be prescribed by the minister. What these "national institutes", hovering over the universities, will do is left to the minister to determine.
- Section 3 introduces section 38B, which notionally provides for the functions of a national institute — that is, inter alia, "ensuring collaboration, co-ordination or collaboration and co-ordination of the work of higher education institutions and national institutes for higher education". If this jumble of words means anything, it is that, besides collaboration, "co-ordination" may be directed. As with the "particulars" of the establishment of the institute, the functions of the institute are left to be prescribed by the minister.
- Section 7 introduces section 38J, allowing the minister to issue directives to the board of a national institute, failing compliance with which the minister "must" dissolve the board and appoint an administrator to take over its functions. Thus the (enhanced) powers of ministerial intervention in university councils are simply replicated for the new super-entities, each with a "scope" of the minister's ad hoc determination.
- Section 9 inserts section 45A, making extensive provision for investigations by independent assessors as regards universities. Despite its encompassing nature, section 45A does not properly deal with fundamental issues such as open and transparent proceedings, procedural fairness and the privilege against self-incrimination. All of these fundamental issues are either omitted or not protected as required.
There are three bases on which, in my view, the amendment Act is open to constitutional challenge. The first is that it is impermissibly vague. The second is that it unjustifiably infringes the constitutional right to academic independence. The third is that it violates the right to a fair procedure. I address each in turn.
It is a fundamental principle of the rule of law that legislation may not confer wide and unconstrained discretions on members of the executive without providing adequate guidelines for the exercise of the discretion. The rule of law, spelt out in section 1 of the Constitution as a foundational value, requires that rules be articulated clearly and in a manner accessible to those governed by the rules.
Numerous provisions of the amendment Act confer an unfettered discretion on the minister, especially those providing for the appointment of an administrator.
Firstly, the new section 49(b)(1)(b) to be inserted in the main 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.
Sections 27(5B), 38A, 38B, 45A, 49A(1), 49B(1)(b) and 49B(1)(c) are in my view all liable to be set aside on this basis.
The second is that the amendment Act in material respects trenches upon academic freedom in a manner that cannot be justified in terms of section 36 of the Constitution. Based on a US Supreme Court judgment, American and South African legal commentators concur the right to academic freedom "also includes institutional autonomy".
Lastly, it is necessary to consider a cluster of further defects in the amendment Act that render it assailable also on the basis of the constitutional right to procedural fairness.
Firstly, the amendment Act automatically disqualifies for reappointment as council member any person who has been "implicated" in a report by an assessor. It is not permissible to affect the rights of an individual merely on the basis of an "implication" of that person in a report. What is required is that a particular finding against a person be made, and that the finding justifies the penalty imposed. Legislation that imposes consequences on the basis of a person merely being "implicated" per se violates the right to procedural fairness.
Secondly, the amendment Act does not qualify an assessor's powers to conduct an investigation with due regard to procedural fairness. At most section 45A(9) purports to give the assessor the power to allow legal representation. Legislation that purports to create a framework for a lay assessor to conduct an inquiry, which may prejudice the rights of individuals and institutions, is demonstrably deficient if it does not provide procedural protections.
Thirdly, the assessor is provided with an unconstrained power to exclude from his investigation "any person or all persons whose presence is not desirable". Apart from being impermissibly vague, the provision unjustifiably compromises a fair procedure by excluding affected persons, potential witnesses and observers.
Fourthly, section 35A(2) further compromises the fairness of the proceedings by requiring a blanket embargo on any documents, records or evidence disclosed to the assessor. This is an obvious violation of the right of access to information, freedom of expression and open justice — and it compromises the integrity of the proceedings.
Fifthly, article 45A(4) to (6) purports to confer powers on the assessor to direct evidence to be provided under oath. It does not provide for any person subjected to such directive by the assessor to invoke the privilege against self-incrimination and does not absolve such an individual from potential criminal liability on the basis of the evidence adduced under compulsion. In similar circumstances, the Constitutional Court declared a comparable provision unconstitutional for violating the right to a fair trial.
More important than the detail, however, is the resurgent notion that academic freedom is in some way subservient to a greater loyalty to society, be it now a democratic, majoritarian one rather than the volksgebondenheid (bonds of kinship) proselytised by Thom and Louw. The suggestion that academic freedom is a stalking horse for nebulous imperialisms or, then and now, "liberalism" — that thing from which mothers should avert their children's faces — has been exhumed.
Of course, academic freedom finds different expressions at different times. Davie's concept was much focused on what universities faced then. His formulation is not a tablet from Mount Sinai.
But what at all times is to be resisted are the siren voices asserting that the four freedoms must defer to a prevailing zeitgeist, whatever its name. The amendment Act is repugnant, in a constitutional and social sense. It should not stand.
Jeremy Gauntlett SC is an advocate of the high court of South Africa, a member of the Cape, Johannesburg and London Bars, and a bencher of the Middle Temple. This is an edited version of his public lecture at the University of Johannesburg on May 7