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28 April 2017 02:49 (South Africa)
Opinionista Paul Hoffman

The pending destruction of higher education in South Africa can be avoided

  • Paul Hoffman
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    Paul Hoffman
The #FeesMustFall movement has a legitimate demand at its core and illegitimate thuggery on its periphery. The legitimate demand ought to be dealt with responsively and the thuggery needs to be dealt with properly and decisively by invoking the criminal justice system and the disciplinary machinery available to the universities. Left unchecked, the thugs, who are few in number, have the potential to destroy higher education completely, to the everlasting detriment of the country as a whole.

The legitimate demand is based upon the provisions of the Constitution itself. Section 29(1)(b) of the Bill of Rights declares unequivocally that everyone has the right to further (as against basic) education “which the state, through reasonable measures, must make progressively available and accessible”. Basic education has come to mean ECD, primary and secondary education while “further education” takes place after schooling is successfully completed, in our universities and other institutions of higher learning. The National Development Plan, accepted as policy by the ANC in December 2012, has a chapter called “Improving education, training and innovation” which includes these gems:

  • This system needs to be supported by effective governance and funding mechanisms to promote co-ordination and collaboration.”
  • The data on the quality of university education is disturbing. SA universities are mid-level performers in terms of knowledge production, with low participation, high attrition rates and insufficient capacity to produce the required level of skills.”
  • Enrolments have almost doubled in 18 years yet the funding has not kept up, resulting in slow growth in the number of university lecturers, inadequate student accommodation, creaking university infrastructure and equipment shortages. The number of institutions that have recently been put under administration is an indication of the leadership and governance challenges.”

Speaking on September 23, 2016 the Minister of Higher Education, Dr Blade Nzimande, summed up where the government is at present on funding of higher education:

Let me also clarify the important intervention I announced on behalf of government earlier this week. For the 2017 academic year, government has gone further than it has ever done:

Accordingly, the state will absorb the fee increase of up to 8% for all students eligible for the National Student Financial Aid Scheme (NSFAS), over and above, paying all the fees for them. Moreover, the state will pay for fee increases of all the students who come from families with [monthly] household income of up to R50,000! This would cover more than 70% of undergraduate students in our universities! It will also cover students in similar categories in our 50 Technical and Vocational Education and Training (TVET) colleges. In fact, in some of our universities like Zululand, Walter Sisulu and Limpopo, more than 90% of students will not pay any increase. This is going to benefit the children of nurses, teachers, police and many skilled workers who do not qualify for the NSFAS.

In addition, the government is far advanced in exploring and designing a loan system that will assist the ‘missing middle’, so that the children of the working class and the lower strata of the middle class who do not qualify for the NSFAS can get financial assistance and only pay them back once they are working.

Meanwhile, the Presidential Higher Education and Training Commission is hard at work exploring a lasting solution to the issue of student fees. We urge all students and stakeholders to participate and make submissions to the commission.

Given the aforementioned progress, principles and work, I am of the view that there is absolutely no need for any, in particular, disruptive student protests. It could otherwise be concluded that some of the small student groupings that persistently seek to achieve disruption and destruction of learning progress are now acting like hired agents of the bourgeoisie who want the state to pay for the rich.

Our democratic government’s commitment is free higher education for the poor, with reasonable measures to assist the ‘missing middle’ while those who can afford to pay – the rich and the well-off – must pay. The call for free higher education for all is not inherently a revolutionary call – it could as well be a reactionary stance that is inconsiderate of the objective conditions, in particular, to social relations of class inequality that we are yet to and must eliminate. What must happen after we have radically reduced or eradicated class inequality, must not be confused for what must happen towards successfully realising the goal.”

The crisp legal issue is whether, after 22 years of democracy, the stance of the minister reflects less than reasonable measures to make further education “progressively available and accessible”. The fallists argue that insufficient priority has been accorded to the higher education sector in the past, the concessions made are too little too late and the resources can be found to make fees fall if only the political will to do so can be generated. Their protests are aimed at generating that political will. Like most other service delivery protesters around the country, they have discovered that until there is a fire, nothing is done, but once something is burning the authorities do sit up and take notice of the demands and of the disruptions that accompany them. This is crisis management rather than good governance, and it has become the order of the day in the universities.

Consider this circular from Rhodes University dated Sunday September 25, 2016:

Rhodes University supports the call for free high quality education for the poor. Rhodes University is working tirelessly together with other universities to lobby government for exactly this.

If your family income is R600,000 or less, you will have no fee increase in 2017, as the state will cover the increase.

If normal activities cannot continue next week, the university will be left with no option but to close and send all students home.

The closure of the university will have dire consequences for the town, for all university staff, and for students themselves who will not be able to complete the academic year.

Think hard about your actions!

Continued instability will destroy our higher education system.”

Already some commentators, notably Prof Tim Crowe of UCT and Sara Gon, are bemoaning the triumph of the malevolent minority while other academics urge the universities to stand up to the lawlessness that threatens their very existence.

It is opportune to pause to consider the legal effect of university closures (due to fallist disruptions and the prevalence of thuggery during protests) on the provision of services to students by them.

Section 54 of the Consumer Protection Act is instructive:

Consumer’s rights to demand quality service

When a supplier undertakes to perform any services for or on behalf of a consumer, the consumer has a right to:

  • the timely performance and completion of those services, and timely notice of any unavoidable delay in the performance of the services;
  • the performance of the services in a manner and quality that persons are generally entitled to expect;
  • the use, delivery or installation of goods that are free of defects and of a quality that persons are generally entitled to expect, if any such goods are required for performance of the services; and
  • the return of any property or control over any property of the consumer in at least as good a condition as it was when the consumer made it available to the supplier for the purpose of performing such services, having regard to the circumstances of the supply, and any specific criteria or conditions agreed between the supplier and the consumer before or during the performance of the services.

If a supplier fails to perform a service to the standards contemplated in subsection (1), the consumer may require the supplier to either:

  • remedy any defect in the quality of the services performed or goods supplied; or
  • refund to the consumer a reasonable portion of the price paid for the services performed and goods supplied, having regard to the extent of the failure.”

Students who are unable to write examinations or complete their degrees, or their parents, will be able to invoke these provisions against the universities should the so-called “malevolent minority” be allowed to prevail in the sense that universities are closed down due to the risks of death and injury, damage and destruction during the protests. These are risks the universities may just have to take with provision of additional security.

There seems to be a misconception among those who seek to protest, “peacefully and unarmed” as the Bill of Rights puts it, that this entitles them to engage in disruptive activities such as singing and dancing noisily in lecture theatres, libraries and laboratories with a view to making it impossible for those who wish to continue learning and teaching to do so. This is not the case at all. The rights of those who prefer not to protest have to be respected equally with the rights of those who do protest. Disciplinary steps or the laying of criminal charges against those who so disrupt should be the order of the day. Sadly, it is not.

Much of the protest action is misdirected. It is the obligation of the state to take reasonable measures to make further education progressively available and accessible, not the universities. The pickets should be at Parliament, Luthuli House and at the offices of the department of higher education. The universities are already lobbying for all they are worth for more funds; taking protest action against them is a “coals to Newcastle” exercise in political theatre or an abusive power play by those seeking destruction of higher education in its entirety.

It is however the duty of the university administrations to take steps to secure the rights of those who wish to get on with learning and teaching despite the presence of protesters. They are contractually obliged to do so and the provisions of section 54 of the Consumer Protection Act afford a remedy for their failure to do so. The continuation of classes and examinations may involve the provision of increased security, the taking of disciplinary steps and the invocation of the criminal justice system in extreme cases. Hitherto the universities have tended to be over-indulgent towards the excesses of protesters, perhaps out of sympathy for their cause.

The spectacle of the Wits Vice-Chancellor bargaining unsuccessfully with a fallist leader on Judge for Yourself for her permission to take action against arsonists and other criminals involved in the protests on his campus is an egregious example. The rule of law does not require the universities to have the permission of protesters before taking action against those who break the law. While it may be that a debating point was being scored, the collateral damage caused by appearing to give the fallists the power to permit the university to do what the law entitles it to do is not edifying. Appeasing thugs did not work for Neville Chamberlain and it still won’t work now.

Those academics who welcome the protest action ought to be prudent in their praise lest they be regarded as egging on the illegal activities of the protesters. Professor Pierre de Vos has written in praise of the protests. He seems not to appreciate that the many students who are not participating in the misdirected protests also have rights. Their freedom of association with those who are trying to get on with the core business of the university – learning and teaching, researching and studying – is disrupted every time a chanting mob of noisy and ill-disciplined miscreants bursts into a lecture in session or a library in use. This is so whether or not the intrusion is accompanied by violence, assault or arson. It is not within the purview of peaceful protest to take protest action into the faces, lecture theatres and libraries of those who prefer to get on with receiving their tertiary education.

Tertiary education is also a right guaranteed in the Bill of Rights, a fact apparently overlooked by Professor De Vos. The protesters, if they consider the measures at present in place for fees to be less than reasonable, have a remedy in the courts for the infringement of their rights, a remedy they appear not even to have considered in their eagerness to create chaos, destruction and disruption. Those whose lectures and studies are disrupted are victims of human rights abuses on the part of the protesters because their physical and psychological integrity are threatened or infringed as are their rights to freedom of assembly, association and education. Those who are deleteriously affected by this ought to complain, loud and long, to the Human Rights Commission.

Instead of praising the protesters, the professor should be admonishing them to respect the property rights of the university itself (also guaranteed in section 25 of the Bill of Rights) and the various other rights of those who wish to work, learn and teach there, as is their right.

He should also know that when it comes to equality, the Bill of Rights is colour-blind in deference to our founding value of non-racism. The section 9(2) criterion for affirmative action is disadvantage “by unfair discrimination”, nothing more and nothing less.

Another feature of the debate around the protests is that everyone appears to be ad idem that if the country were less corrupt in its procurement system and general governance there would be more than enough resources to make it possible for fees to fall sufficiently for the state to be able to afford the cost of further education out of its general revenue from the taxpayers.

South Africans appear to have become so inured to corruption with impunity that no consideration is given to clawing back their ill-gotten gains from the corrupt. The law allows for this, but it is seldom invoked in the post-Scorpions era.

The perennial challenges of poverty, inequality and unemployment in SA are not going to be solved with the universities in uproar over the fees issue. Job-creation will contribute to solving all three challenges. The skills necessary to create jobs are acquired through further education. Urgent action is required to prevent these challenges becoming an insoluble conundrum.

Interesting and relevant statistics reveal that in their last year of operation – 2008 – the Scorpions seized R4-billion as proceeds of crime, in their first year the Hawks managed only R35-million; the Hawks arrest rate has dwindled over the years from nearly 15,000 at first to around 5,000 per annum and their conviction rate is now under 25 % of those arrested.

When he made a presentation to Parliament recently, the head of the Hawks seemed to work on the assumption that money that finds its way into the hands of the corrupt is not recoverable. This is not the case.

If, for example, the arms deals are declared invalid, as they should be, a sum of around R70-billion is recoverable by the state and all it will lose is some hardly used armaments which can, if needed (an unlikely event), be replaced cheaply by not including bribes in their price.

At present, the future of poorer students is being stolen by the state due to the prevalence of corruption in SA and the failure of the state to honour their rights to further education under s 29 [ read with s7(2)] of the Bill of Rights which is part of our supreme law.

The protesting students would do well to focus on the issue of corruption because it threatens the “better life” they seek far more than the failure of the state to finance higher education properly. Getting behind the call for an Integrity Commission of the kind at present under consideration by the Constitutional Review Committee of the National Assembly and attending its deliberations would be a good start.

The parents and sponsors of all students at present at university ought, in their own self-interest, to write to the Vice-Chancellors and administrations of the university they pay fees to, with a copy to the Minister of Higher Education, reserving their rights under the Consumer Protection Act in the event of closure of universities in the manner threatened by Rhodes University.

The students who are not part of the protest movement should become more pro-active in asserting their rights, especially when their education is illegally disrupted. This involves anything from whistle-blowing, to complaining to the Human Rights Commission (which is free) to seeking to persuade moderate protesters of the counter-productivity and loss of public support that their movement is exposed to when excesses occur.

The university authorities need to bring a little more spinal fortitude to bear on the issues. Zero tolerance of criminal behaviour would be a good start. Disciplinary steps against those guilty of lesser misdemeanours and criminal charges for those who burn, assault and wage war in general would be the right way to take charge of the situation. Universities should be kept open, even if additional security is required. This is preferable to having to disgorge the fees wasted due to the closure and disruptions brought about by illegal protest action. This course of action also involves upholding the rule of law, which universities should be seen to be doing at all times and in all circumstances.

The government needs to reprioritise spending on higher education. Additional taxation should only be considered when corruption has been brought under control. The economy is in far too delicate a condition to simply add to the tax burden, whether of the wealthy (who have the means to just leave) or of everybody. Corruption can be controlled if an Integrity Commission is established as a matter of urgency. It is clear to any objective observer that the Hawks are not structurally or operationally up to the task at hand.

Those individual academics who are considering quitting to seek greener pastures that are free of the thuggery that has unfortunately been allowed to fester on our campuses should please, pretty please, reconsider and stay to become part of the solution rather than contribute to being part of the problem by leaving. Their departures will pose an insoluble problem as the words quoted from the NDP above show.

It is no coincidence that cultural rights are juxtapositioned in the Bill of Rights with educational rights. There is a strong culture of learning and research in our universities that has been built up over the decades in spite of the effects of apartheid and colonialism on our society.

Proud traditions of opposition to the Extension of Universities Act ought not to be lost because a “malevolent minority”, to use the tag given them by Professor Crowe, is being allowed too much latitude both by academic leaders and by our dysfunctional criminal justice administration.

All academics should be prepared to stand up to the illegality of the actions of the small group of thugs whose power play has an agenda that does not relate to the true fees-related purpose of the fallists.

Under our new constitutional dispensation the rule of law is supreme, not the rule of thugs. DM

Paul Hoffman SC is a director of Accountability Now. He participated in the Towards Carnegie Three conference by presenting a paper on “The effect of corruption on poverty” available at www.accountabilitynow.org.za.

  • Paul Hoffman
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    Paul Hoffman

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