/ 24 March 2023

Restless Prejudice: Is higher education a right or privilege?

Uct Protest
Students protest for free education in Cape Town. (Photo by Shaun Swingler/Anadolu Agency/Getty Images)

There are about 503 institutions of higher education in South Africa. Of this number, 26 are universities. Since 1994, universities have experienced an increase in enrolments. Many factors, such as societal pressure, the dawn of democracy and access institutions previously reserved for whites, led to this increase.  

A deliberate government policy made higher education accessible and available, in line with the Constitution and the Universal Declaration of Human Rights. In 2019, about 1.2 million students enrolled for both private and public higher education in SA. Of these, 90% ended up in public higher education institutions or universities. With this said, 65% of these students enrol through contact mode, leading to lack of space and capacity. 

The Education White Paper painted higher education as a broker of “life chances” and conduit for “achieving equity in the distribution of opportunity and achievement among South African citizens”. Parents and students view a university degree as a vehicle to escape the structural inequalities and poverty and a ladder of ascendency to the corporate and public sector strata. 

With limited resources available to address the capacity challenges in our universities, we ask ourselves one question: “Is higher education a right or privilege?”

Not everyone deserves/requires a university qualification

The basic education and adult basic education rights enshrined in the Constitution state that the state must provide education for all children and adults who reside in South Africa. This right is rooted to section 9(3) of the Constitution which gives right to equality and prohibits unfair prejudice. However, unlike basic education, higher education is a privilege and the state must make a concerted effort to make it available and accessible to citizens. 

Availability of higher education is dependent on the availability of resources, such as infrastructure and funding. As a result, we argue that education, especially higher education, must discriminate. Higher education institutions must have fair and functional discrimination to operate effectively and efficiently. 

Fair discrimination

That there are 503 higher education institutions in the country shows the variety of choices which students have post-matric. However, the majority of students choose to enrol at universities and ignore the other higher education institutions available, which can offer relevant education.

Higher education offers various types of education. For instance, universities are theory based, they create and introduce frameworks to solve societal or business problems. Technical colleges and TVETs (technical and vocational education and training) are there to offer practical experience to learners. Then there are Sector Education and Training Authorities (Seta) and the like, which are other means of post-school education

Depending on their matric marks and the abilities of the learner, they need to either go to universities or TVETs. 

Article 26 of the Universal Declaration of Human Rights qualifies that while technical and professional education should be available and accessible to all, this must be based on merit. Merit is a fair discriminatory qualifier based on unlisted grounds. It is a spectrometric tool that acts to identify a socially constructed, objective quality into and from a higher education institution. 

It is a tool that is used to allocate scarce educational resources and determine access to optimise the return on investment from the tiered higher education system. Merit gives the state flexibility to allocate resources in line with politically constructed developmental aspirations. 

Section 37 (1) of the Higher Education Act sets the basis for fair discrimination in higher education through an admission policy by the council of a public higher education institution.

However, the basic education system could be a solution to the overcapacity in higher education. 

Learners with a pass of 30% to 40% qualify for university enrolment. This is where we argue that education must discriminate. Only students passing with an overall mark of 80% to 100% should go to universities. Others must be enrolled for TVETs and other higher education institutions, depending on the criteria set.  

Fair discrimination gives the state flexibility to allocate resources and students to institutions that will unleash their potential and optimise return on investment while allowing students to gain skills required to actively participate in the economy. 

The Department of Higher Education and Training recognises four conduits for post-secondary education: universities, vocational education, community education and Setas. These channels should actively allocate learners through a merit system. For example, learners with 30% to 40% and less should automatically be routed to community and vocational colleges. These institutions have the required skills, capacity and programmes to unlock potential in these learners. 

It is critical to point out at this juncture that these learners can still enrol in private universities in South Africa at their own cost. While there are arguments that these learners have a right to public university education, this right is not being denied nor delayed. The learners can still achieve their degree and degree-equivalent certificates from these multiple pathways.

Lack of fair discrimination in higher education could be the main course of the increase in protests at universities calling for free education, and so forth. 

The massification of higher education is leading to larger, and not necessarily wider, access to education opportunities due to structural issues in our overall education system. Primary and secondary education and other pathways to higher education have policy and programming inconsistencies that create entry barriers for pupils in school in rural and poor areas across South Africa. 

While the government has attempted to mitigate financial hurdles to access, most learners in rural and poor communities might still not be able to access these opportunities.

The progressive nature of the right to higher education does not absolve the government and allow it to slack in its constitutional obligation to deliver access to higher education but rather recognise the economic and time constraints that arbitrate the provision of the right and the need for flexibility in pursuit of this right. 

Progressive rights require the government to set clear goals and timeframes to achieve universal access. Access to higher education does not only mean mass admission but also talks to a wider range of learners from different socio-economic backgrounds in line with section 9 (3) of the Constitution. This means a rural learner living with disabilities should have equal and unencumbered access to higher education like any other learner. 

Functional discrimination

The increasing incidents in the public domain of individuals using fake qualifications to access higher education and work opportunities reflects not only the perceived value of degree certificates but also the desperation to acquire the key to unlock the way to opportunities as envisaged in the Education White Paper. These individuals recognise that an educational qualification creates an elite citizen with a world of opportunities and that education is in itself a cold-blooded discriminator that sieves degreed candidates from the mass of the unemployed. 


The right to higher education is a secondary entitlement that can be realised when there is equitable access to quality primary and secondary education. This means it is not a right, but a privilege. As a result, the government should prioritise putting policy in place to address the current massification of access. There has to be a clear understanding that higher education has to be fairly and functionally discriminate. 

Not every learner has to acquire a university qualification. Fair discrimination requires all South Africans, regardless of background, to have an equal chance to meet the minimum standard to access institutions of higher education. 

However, this access, seen as a tool to realise equality in society, is in itself a tool that propagates inequalities between graduates and non-graduates of higher education — a restless pursuit of discrimination.  

Dr Motshedisi Mathibe is a senior lecturer at Gordon Institute of Business Sciences. Hamandawana Zhou is a managing consultant at Skill Share Africa Institute.

The views expressed are those of the author and do not necessarily reflect the official policy or position of the Mail & Guardian.