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[2021] ZAGPPHC 205
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Economic Freedom Fighters Student Command v Minister of Higher Education, Science & Technology and Others (7641/21) [2021] ZAGPPHC 205 (11 March 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
Case
Number
:
7641/21
In
the matter between:
ECONOMIC
FREEDOM FIGHTERS STUDENT COMMAND
APPLICANT
and
MINISTER
OF HIGHER EDUCATION, SCIENCE & TECHNOLOGY
1
st
RESPONDENT
UNIVERSITY
OF SOUTH AFRICA
2
ND
RESPONDENT
EXECUTIVE
COUNCIL: UNIVERSITY OF SOUTH AFRICA
3
RD
RESPONDENT
COUNCIL
OF THE UNIVERSITY OF SOUTH AFRICA
4
TH
RESPONDENT
SENATE
OF THE UNIVERSITY OF SOUTH AFRICA
5
TH
RESPONDENT
SOUTH
AFRICAN HUMAN RIGHTS COMMISSION
6
TH
RESPONDENT
(
Amicus
Curiae
)
REASONS
FOR JUDGMENT
KUBUSHI
J,
Delivered:
These reasons for judgment were
transmitted electronically by circulation to the parties’ legal
representatives by e-mail
and uploading on Caselines.
INTRODUCTION
[1]
Two review applications, one by the Economic Freedom Fighters Student
Command (“EFFSC”)
and the other by the Black Lawyers
Association Student Chapter (“BLASC”),
[1]
were set down for hearing on the urgent court roll during the week of
1 to 5 March 2021. The two applications were instituted against
the
same respondents and the facts and issues pertaining to the
applications were similar, thus, it was prudent that they serve
before the same Judge. Due to their sheer volume, the applications
were allocated for a special hearing before me.
[2]
The review applications were brought in terms of the Promotion of
Administrative Justice
Act No 3 of 2000 ("PAJA")
[2]
and in the alternative, on the principle of legality. Both
applications, which are opposed, concerned the review of two impugned
decisions. The first decision is that of the first respondent, the
Minister of Higher Education, Science & Technology ("the
Minister") wherein the Minister directs the second respondent,
University of South Africa ("UNISA") ultimately the
third
to fifth respondents, to reduce the 2021 intake of
first-time-entering (“FTEN”) students by 20 000 from a
planned
57 857 to 37 857 ("the Minister's decision"); and
the second decision is that of UNISA when, through the third
respondent,
UNISA’s Executive [Committee of] Council (“EXCOC”),
it consequently took the decision to acquiesce to the Minister’s
decision (“UNISA’s decision”).
[3]
Initially, the application for EFFSC was to be heard on 2 March 2021
and due to the
truncated timeframes which affected the filing of
papers, I made a ruling that the matter be stood down for hearing to
4 March
2021. Whilst busy with EFFSC’s application I was
allocated the BLASC’s application, in which I also directed
that it
be heard on 4 March 2021 together with that of EFFSC. I gave
a directive, in both applications respectively, for the filing of
papers and heads of argument and that the applications be decided on
the papers filed on Caselines, dispensing with the hearing
of oral
argument.
[4]
The applications were purported to be urgent because of the fact that
the registration
of students for the 2021 academic year with UNISA,
was due to close on 12 March 2021. Having considered the
applications, I, on
11 March 2021, granted order(s) in both
applications, without providing reasons therefor. The respondents in
both applications
have, in terms of Uniform Rule 49, requested the
reasons for such order(s). Even though the facts and issues in the
two applications
are similar, the applications were not consolidated,
as such I granted separate orders, and I shall provide reasons
thereto, separately.
[5]
In this instance, the Minister filed his answering affidavit out of
time and applied
for condonation. The condonation application was not
opposed. Having read and considered the condonation application, I
decided
that it ought to be granted.
[6]
The second to fifth respondents are represented by the same legal
team and have filed
a composite answering affidavit. I shall, for
convenience, in these reasons for judgment, refer to them
collectively as UNISA.
[7]
The sixth respondent, the South African Human Rights Commission
(“SAHRC”)
has been admitted into these proceedings as
amicus curiae
(“
amicus
”) for the reasons
that shall appear later in the judgment. SAHRC filed its papers late
and applied for condonation. For the
reasons I will refer to later in
this judgment, I decided to grant SAHRC’s condonation for the
late filing of the application
for admission as
amicus
and for
truncating the time periods prescribed in Rule 16A (2) of the Uniform
Rules of Court.
THE
IMPUGNED DECISIONS
[8]
The Minister is alleged to have made a decision when on 28 December
2020 he addressed
a letter to the Chairperson of UNISA's Council
wherein he gave Council notice of his intention to direct UNISA to
reduce the number
of FTEN students by 20 000 in the 2021
academic year.
[9]
The letter noted that in 2018 UNISA had been warned that it must
adhere to its enrolment
planning targets and that it would be
penalised in the 2020/21 financial year should it fail to adhere.
Despite the penalty imposed,
UNISA over-enrolled its FTEN students.
The letter also read that:
"The
approved enrolment planning target for first-time entering (FTEN)
students in 2020 for the University of South Africa
(UNISA) was 57
703. It has come to my attention that according to UNISA's first
submission of HEMIS data the university has enrolled
77 840 FTEN
students in 2020. It is noted that this is a preliminary and not
audited data. Nevertheless, this is an over enrolment
of 20 137
students (i.e. 35 % over the approved target). Furthermore, I have
been informed by my officials that many of the over-enrolments
occurred in Higher Certificate qualifications. This over-enrolment
will have a significant impact on the sustainability of the
National
Student Financial Aid Scheme (NSFAS) and the higher education sector
as a whole.
....
In
the light of the current fiscal constraints and the impact that
over-enrolment has on the whole sector, I am now issuing a notice
of
my intention to issue a directive to UNISA to reduce its 2021 FTENs
by 20 000 in 2021 to accommodate the over-enrolment in 2020
and the
impact this will have on NSFAS over the next few years until those
students complete their qualifications. This reduction
would mean an
FTEN intake of only 37 857 students in 2021 instead of the 57 857
planned."
The
Minister further reaffirmed his position on this issue on 18 January
2021 during a media briefing.
[10]
It is this alleged decision and/or notice issued by the Minister that
EFFSC submitted, is
ultra vires
, procedurally unfair,
irrational and unreasonable.
[11]
The UNISA decision, on the other hand, was taken by EXCOC when it
decided to accede to the Minister’s
notice of intention by
decreasing the number of FTEN students by 20 000 in the 2021 academic
year. The decision was announced on
5 January 2021 when EXCOC made a
statement that it met on 2 January 2021 to deliberate on the
Minister’s letter and UNISA's
shape and size and the effective
support for students to succeed in the pursuit of their studies, and
consequently, took the decision.
[12]
EFFSC sought in these papers to review and set aside the Minister's
decision and EXCOC's decision
to accede to the Minister's decision.
THE
RELIEF SOUGHT
[13]
In the notice of motion, EFFSC sought relief in the following terms:
13.1
That the time periods, forms and manner of service provided for in
the rules are dispensed with and
the matter is heard as one of
urgency in terms of Uniform Rule 6 (12).
13.2
Reviewing and setting aside the Minister’s decision of
28
December 2020 to direct UNISA to reduce its 2021 FTEN students’
intake by 20 000, as unlawful and invalid
13.2.1
In the
alternative
, reviewing and setting aside the Minister’s
decision of 28 December 2020 to issue a notice of intention to direct
UNISA to
reduce its 2021 FTEN students’ intake by 20 000,
as unlawful and invalid.
13.3
Reviewing and setting aside EXCOC’s decision to accept the
decision by the Minister to reduce
UNISA’s 2021 FTEN students’
intake by 20 000, as unlawful and invalid.
13.4
That the costs of this application be paid, jointly and severally, by
the respondents that oppose it.
[14]
Before I deal with the merits of the application, it is apt that I
set out the factual background
that necessitated the institution of
these proceedings and to give context to the issues raised in these
papers.
THE
FACTUAL MATRIX
[15]
It is common cause that periodically, the Minister and institutions
of higher learning, engage
in bilateral discussion for enrolment
planning. The purpose of the enrolment plan is to ensure transparency
and to achieve a balance
between the institutional capacity and
funding. The process is not only aimed at financial planning as such,
but designed to ensure
that certain post school priorities are also
met. The process is, thus, said to be complex and involved, and takes
time to complete.
[16]
During 2012 the Department of Higher Education, Science &
Technology (“the Department”)
invited all institutions of
higher learning in the Republic to submit their institutional
enrolment and output plans including
proposed targets. In this regard
certain priorities informing the need for the plans were identified,
which culminated in a Departmental
National Enrolment Plan.
[17]
On the basis of the targets and plans reached in the National
Enrolment Plan, the Department
concludes agreements with individual
institutions in relation to institutional enrolment plans for FTEN
students, of the institution
concerned. The enrolment planning for
FTEN students is a product of discussion and engagement between the
Department and the institution
concerned, culminating in a six-year
plan agreed upon with the institution, taking into account several
factors like the status
of planned and built infrastructure, the
human and financial resources available to the institution. These
plans form the foundation
of sector planning, specifically funding of
the institutional subsidy and NSFAS funding for students’
support, and are reviewable
every six months.
[18]
The process of planning for the enrolment plan for FTEN students
commences at the institutional
level before it is agreed with the
Department. At the institutional level, the process is said to
involve the approval of a number
of structures within the
institution. Specifically, the plan, firstly serves before the
Academic Enrolments and Academic Human
Resources Planning Committee
("the AEHRPC"), a sub-committee of Senate, responsible for,
among others, overseeing academic
enrolments, including the planning
of the enrolment plan.
Per
its terms of reference, the AEHRPC recommends the plan to Senate,
which in turn recommends the plan to the Academy and Student
Affairs
Committee of Council ("ASACOC"). The latter then recommends
the plan for approval by Council. The six-year Council
approved plan
is then submitted to the Minister for consideration in conjunction
with those of other institutions of higher learning.
These
plans form the foundation of sector planning, specifically funding of
the institutional subsidy and NSFAS funding for students’
support.
[19]
UNISA’s institutional enrolment plan was arrived at through the
same process and by agreement
with the Department, it’s
enrolment plan for FTEN students for the 2021 academic year, was
capped at 57 857. It is not in
dispute that on the strength of this
enrolment plan for FTEN students, UNISA sent out offers to potential
students advising them
of their provisional offers to pursue their
studies through UNISA for the 2021 academic year.
[20]
With effect from 2018, UNISA is said to have failed to keep to the
agreed numbers and over- enrolled
its FTEN students. As a result of
this over enrolment the Department punished UNISA by withholding a
certain portion of the funding
due to it (R66 million). It appears
that despite this penalty, UNISA continued to over-enrol its FTEN
students.
[21]
During 2020 whilst addressing the Enrolment Efficiency targets for
2020
-2025 the Department became aware that
UNISA has again over-enrolled during its 2020 intake of FTEN
students. From the deliberations
between the Department and UNISA it
was found that UNISA had for the 2020 academic year, enrolled about
81 620 FTEN students, which
represented an over enrolment of about
41.05%. This presented an addition to the over enrolment that was
identified during the
2018 academic year.
[22]
On 5 October 2020 the Director-General of the Department (“the
Director-General”)
addressed a letter to UNISA in which he
notified UNISA that the Department was aware that UNISA has
over-enrolled its 2020 FTEN
student intake. The Director-General also
notified UNISA of the impact of such over enrolment, in particular,
on the NSFAS budget
and generally on the budget of the country which,
at this time, was facing a pandemic. The Department had earlier in
the year advised
UNISA to utilise the mid-term review of the
enrolment planning cycle to adjust its enrolment figures, but UNISA
failed to do so.
[23]
It is on this basis that as a final resort, the Minister issued the
notice to UNISA as contained
in the letter of 28 December 2020. The
notice consequently led to the decision taken by UNISA to implement
the Minister’s
intended directive. Aggrieved by these two
impugned decisions, EFFSC approached court for relief in these
proceedings.
PRELIMINARY
ISSUES
[24]
There are a number of points
in limine
which were raised by the respondents. The preliminary issues raised
by the Minister are in respect of urgency,
locus
standi
,
failure to comply with the
State Liability Act 20 of 1957
as amended
(“the
State Liability Act&rdquo
;), unauthorised institution of
proceedings and that the letter on which EFFSC relies does not
constitute a decision. UNISA, on
the other hand, raised
in
limine
points on urgency and non-joinder of the Student Representative
Council (“SRC”) and NSFAS. I deal, hereunder, with
each
of the points in turn and shall deal with the points of urgency
raised respectively by the Minister and UNISA, together.
The
Alleged Lack of Urgency
[25]
Both the Minister and UNISA contended that this matter was not urgent
and that if it was found
that the matter was urgent, the court should
find that the urgency is self- created and as a result the
application ought to be
struck off from the urgent court roll.
[26]
Having already granted the relief sought by EFFSC, it means that I
found the matter urgent enough
to serve in this court. I was inclined
to agree with EFFSC on its point that this matter is inherently
urgent for the various reasons
EFFSC raised in its argument, as
appears hereunder.
[27]
The first ground on which EFFSC relied on urgency, was that, it would
not be afforded substantial
redress in due course. In support of the
argument on this ground, EFFSC referred me to the judgment in the
case
of
Mogalakwena Municipality v Provincial Executive Council, Limpopo and
Others
,
[3]
wherein the court explained that the primary investigation in
determining urgency should be to determine whether the applicant
will
be afforded substantial redress at a hearing in due course. It is
only if an applicant cannot establish prejudice in this
sense that
the application cannot be urgent.
[28]
There is no dispute that the absence of substantial relief at a later
stage is clear in this
matter. The reality, as correctly argued by
EFFSC, was that the academic year was about to commence on 12 March
2021 and if the
matter was not heard urgently, 20 000 FTEN students
might not have a place at UNISA. All parties accepted that
registration for
the 2021 academic year at UNISA was set to close on
12 March 2021. Unlike previous years, UNISA had intended to have only
one registration
period throughout the entire year. This meant that
any person not registered by 12 March 2021 would not be able to study
with UNISA
in 2021.
[29]
EFFSC’s second ground that this matter be heard in the urgent
court was that the issues
involved in this application were of great
public interest. In this regard, EFFSC relied on the judgment in
Secretary
of the
Judicial
Commission of Inquiry into Allegations of State Capture, Corruption
and Fraud in the Public Sector including Organs of
State v Zuma,
[4]
wherein the Constitutional Court held that public interest will
always weigh heavily in favour of a matter being heard urgently
and
that the public interest should not suffer at the altar of the
litigant's ineptitude.
[30]
The public interest of this matter is self-evident and UNISA has
conceded as much in its papers.
As
per
EFFSC’s argument, it is undeniable that this matter is of great
public importance impact, necessitating an urgent hearing.
The
right to further education of 20 000 FTEN students was at stake
which meant that this case required to be heard as a matter
of
urgency so that the students would not lose their right to be
considered for enrolment at UNISA before the closing date of
registration of 12 March 2021. Conversely, the respondents stood to
suffer no prejudice if the application was heard in the urgent
court.
[31]
Lastly, that the matter had been specially allocated did away with
the issue of whether the urgency
was self-created or not.
[32]
This preliminary issue is dismissed.
The Alleged Lack of
Standing
[33]
The Minister argued that EFFSC had failed to establish the requisite
locus standi
to bring this application, in the circumstances
where EFFSC
had brought the application under
the following subsections of the Constitution:
33.1
In terms of section 38 (a), acting in its own interest;
33.2
In terms of section 38 (b), in the interests of all persons in the
country that would be affected by
the enrolment planning and denied
access to higher education because of the decision;
33.3
In terms of section 38 (c), in the interests of FTEN applicants who
would be denied access to UNISA
as a result of the Minister's
decision; and
33.3
In terms of section 38 (d) in the public interests as the decision
had far reaching consequences not
for UNISA but other institutions of
higher learning.
[34]
The Minister’s submission was that none of the grounds sought
to be relied upon by EFFSC
were sufficient to clothe it with, or
establish EFFSC’s
locus
standi
within the context
of this case. The Minister in turn raised the following defences:
34.1
That none of the applicant's rights, as an organisation, were
adversely affected by the letter addressed
to UNISA.
34.2
That the Minister’s letter did not constitute a decision on
enrolment planning. The submission
was that the enrolment planning
was decided upon with all the affected institutions in 2018 and it
was determined by the available
resources or projected available
resources within the institutions over a period of four to six years.
Accordingly, FTEN applicants
or members of the public could only be
admitted to institutions where the available resources permit so.
Otherwise, they have no
right to be admitted and their right was only
limited to a right to have their applications considered and decided
upon depending
on such resources.
34.3
That the letter addressed to UNISA had no bearing on the other
institutions of higher learning as the
letter was only meant to
address a situation created by and happening at UNISA.
[35]
In his heads of argument, the Minister approached his defence of
EFFSC’s lack of standing,
by firstly, arguing that EFFSC has
failed to establish any right that had been infringed or threatened
to be infringed. The contention
by the Minister was that there was no
right that had been or threatened to be infringed by his letter of 28
December 2020. According
to the Minister any right that might have
been or threatened to be infringed is that contained in section 29 of
the Constitution
which provides for the right to further education.
He argued further that unlike the right to basic education, the right
to further
education is not immediately realisable but subject to
reasonable means and must be progressively made available and
accessible.
Consequently, so the argument ran, the right of
aspiring students to further education was subject to the
availability of infrastructural,
human and financial
resources. The aspirant students have no right to
be admitted to UNISA when there are no resources. Their right is only
limited
to a right to have their applications considered and decided
upon depending on availability of resources.
[36]
The Minister further argued that EFFSC’s case is based on pure
speculation without any
tangible evidence of any infringement or
likely infringement of any person' right. This, according to the
Minister was so because
there was no evidence that UNISA had refused
to consider the applications of or admit any FTEN students that have
applied to UNISA.
There was also no evidence of how many students
have been admitted or even applied to UNISA for 2021.
[37]
It is trite that the applicant's right to approach court must be
determined in accordance with
whether the applicant has established
any right that is affected by the alleged decision or administrative
action. Failure to establish
this right must lead to the application
being dismissed for lack of
locus standi
on the part of the
applicant.
[38]
There is no dispute that the right to be infringed or threatened to
be infringed in the circumstances
of this case is that contained in
section 29 (b) of the Constitution, which is the right to further
education. In terms of this
sub section the right to education is
subject to reasonable measures and must be progressively made
available and accessible by
the state.
[39]
In accordance with the Minister’s argument above, reasonable
measures are translated into
the availability of infrastructural,
human and financial
resources. In
making this right progressively available and accessible at UNISA,
the state, through the Department, agreed together
with UNISA on a
six-year enrolment plan for FTEN students (“the enrolment
plan”), taking into account several factors
like the status of
planned and built infrastructure, the human and financial resources
available to UNISA. In terms of the said
plan the intake for FTEN
students in the 2021 academic year was set at 57 857.
[40]
When the enrolment plan was approved, the understanding was that the
built infrastructure, human
resources and financial resources would
during the 2021 academic year, accommodate the intake of 57 857
FTEN students.
It is worthy to note that the Minister in his
letter of 28 December 2020 does not complain about the built
infrastructure, the
human and/or financial resources at UNISA. He is
more concerned about the impact on the sustainability of NSFAS and
the higher
education sector as a whole. He does not say in the letter
that the over enrolment will put strain on the built infrastructure
and/or the human
resources and/or
financial resources at UNISA. In the circumstances,
by
intending to reduce the number on FTEN students’ intake to
37 857, the Minister threatened to infringe on the right
to
further education of 20 000 aspirant FTEN students.
[41]
A further challenge to the Minister’s argument was that
it
was said that he issued the letter in terms of section 42 of the
Higher Education Act 101 of 1997 (“the Act”).
Section 42 of the Act provides as follows:
“
42.
Action on failure of council to comply with this
Act or certain conditions
(1)
If the council of a public higher education
institution fails to comply with any provision of this Act under
which an allocation
from money appropriated by Parliament is paid to
the institution, or with any
condition
subject to which any such allocation is paid to such institution, the
Minister may call upon such council to comply with
the provision or
condition within a specified period.
(2)
If such council thereafter fails to comply
with the provision or condition, the Minister may withhold payment of
any commensurate
portion of any allocation appropriated by Parliament
in respect of the public higher education institution concerned. . .
“
[42]
It is, thus, evident that the Minister, in his intention to direct
UNISA to reduce its FTEN students’
intake of the 2021 academic
year by 20 000, acted in contravention of the stipulations in
section 42 (2) of the Act.
The sub-section empowers the
Minister, on failure by UNISA to comply with any condition placed on
it – in this case over
enrolment, to withhold payment of any
commensurate portion of any allocation appropriated by Parliament to
UNISA. The section does
not entitle the Minister to cut the student
enrolment which, he, in his letter of 28 December 2020, intends to
do.
[43]
The Minister’s argument that his letter does not constitute a
decision on enrolment planning,
but the impact of the over enrolment
on the finances of the whole sector and NSFAS, may be correct. The
challenge he faces, however,
is that he did not act as empowered by
section 42 of the Act to withhold UNISA’s funds as punishment
for UNISA’s failure
to comply with the condition of over
enrolment. Instead his intention is to direct UNISA to reduce its
intake of FTEN students.
[44]
Therefore, the Minister’s action of contravening the provisions
of section 42 of the Act,
threatens to infringe on the right to
further education of 20 000 aspirant FTEN students.
[45]
The Minister’s argument that EFFSC’s case is based on
speculation without any tangible
evidence of any infringement or
likely infringement of any person's right, has no merit as well. The
converse is the case.
In his letter dated 28 December 2020
there is no indication where the Minister got the figure of 20 000
students that should
be reduced from the 2021 academic year intake of
FTEN students, from. In his own version in the said letter, he states
that “
It
is noted that this is preliminary and not audited data
.
”
Even if it can be accepted that his argument that
the over enrolment has a financial impact on UNISA, it is not evident
from the
said letter.
[46]
His concerted argument that there is no evidence of how many students
have been admitted or even
applied to UNISA for 2021, applies equally
to him, in that, he intended to direct UNISA to reduce its intake by
20 000 when
he had no clue how many aspirant students had
applied and would be admitted. The intention to reduce the intake of
20 000
aspirant FTEN students without any valid data, threatens
to infringe the right to further education of those students.
[47]
I find the further argument of the Minister that EFFSC has no
standing because it failed to show
that it is acting in the interest
of a group, that has legal interest in the matter, as EFFSC has not
attached its constitution
to the founding papers, to have no merit.
[48]
The Constitutional Court In
Ferreira
v Levin; Vryenhoek v Powell NO
,
[5]
has clearly stated that a more generous approach to legal standing be
applied to all constitutional cases and not only in cases
where an
infringement, or a threat to, any right entrenched in the
Constitution is alleged. The court emphasised the discretionary
powers of courts in relation to standing and stated that it is for
the court to decide what a sufficient interest is in such
circumstances.
It is clear from this that in constitutional cases,
and thus in administrative cases too – because of the reliance
on section
33 of the Constitution - courts are required to adopt a
broad approach to standing, rather than a narrow one. What is further
required
is that the link between the applicant's interest and the
requested remedy must not be too tenuous, abstract or hypothetical.
[49]
Four factors that a court can consider to ensure that the applicant
has the requisite standing
to bring the application for review of
administrative action, were formulated in
Kolbatschenko
v King
[6]
as:
49.1 the
applicant must have an adequate interest in the subject matter of the
litigation;
49.2 the
interest must not be too far removed;
49.3 the
interest must be actual, not abstract or academic, and
49.4 the
interest must be a current issue and not a hypothetical one.
The question whether
these requirements have been met depends on the facts of each case.
From the facts of this application, it
is undoubtedly evident that
EFFSC meets the requirements set out in
Kolbatschenko
, above.
[50]
Besides, the Constitution empowers any person in a matter where
constitutional rights are infringed
or alleged to be infringed to
bring a matter to a competent court.
It
is sufficient for a person to show that a right contained in the
Constitution has been infringed or is threatened to be infringed.
If
this is shown it matters not whether that person is the victim.
[7]
[51]
In
Permanent
Secretary, Department of Welfare, Eastern Cape Provincial Government
v Ngxuza
,
[8]
the court stated the following:
“
It
is precisely because so many in our country are in a “poor
position to seek legal redress”, and because the technicalities
of legal procedure, including joinder, may unduly complicate the
attainment of justice, that both the interim Constitution and
the
Constitution created the express entitlement that “anyone”
asserting a right in the Bill of Rights could litigate
“as a
member of, or in the interest of, a group or class of persons”.”
[52]
By his conduct, in threatening to direct UNISA to reduce the number
of FTEN students by 20 000
in the 2021 academic year, the
Minister has in fact threatened to infringe the right of further
education of 20 000 FTEN students.
[53]
Thus, it is in that sense that I have to rule that EFFSC has
locus
standi
to institute this application.
Failure
to comply with the
State Liability Act 20 of 1957
, as amended
[54]
It was contended on behalf of the Minister that the non-compliance
with the provisions of the
State Liability Act by
EFFSC, is fatal to
these proceedings and that the application deserves to be dismissed
with costs on this basis alone. According
to the Minister, for EFFSC
to have complied fully with the provisions of the
State Liability
Act, EFFSC
should have served the application on both the Minister
and the State Attorney in accordance with the provisions of
section 2
of the
State Liability Act.
[55
]
The salient provisions of the
State Liability Act on
which the
Minister relied for his argument, reads as follows:
“
2.
Proceedings to be taken against executive authority of Department
concerned
(1)
In any action or other proceedings
instituted against a department, the executive authority of
the
department concerned must be cited as nominal defendant or
respondent.
(2)
The plaintiff or applicant, as the
case may be, or his or her legal representative must—
(a)
after any court process instituting
proceedings and in which the executive authority of a department
is
cited as nominal defendant or respondent has been issued, serve a
copy of that process on the head of the department concerned
at the
head office of the department; . . .”
[56]
‘
It
is a cornerstone of our legal system that a person is entitled to
notice of legal proceedings against such person’
.
[9]
Similarly, the Minister, as the executive authority of the
Department, was entitled to notice of the review application
instituted
against him. The provisions of
section 2
of the
State
Liability Act set
out the mechanism as to how such notice should be
brought to the knowledge of the Minister.
[57]
It is common cause that even though the provisions of the
State
Liability Act require
service of the application to have been served
on the Minister, this was not done.
The
application was instead served at the office of the
Director-General. The fact that the Minister filed his notice
to
oppose the application is indicative of the fact that he received
and had knowledge of the application.
[58]
Dealing with the effectiveness of service of summons in terms of
Uniform
Rule 4
, the court in
United
Reflective Converters (Pty) Ltd v Levine,
[10]
stated the following:
“
The
rules, set out procedural steps. They do not create substantive law.
Insofar as the substantive law is concerned, the requirement
is that
a person who is being sued should receive notice of the fact that he
is being sued by way of delivery to him of the relevant
document
initiating legal proceedings. If this purpose is achieved, then,
albeit not in terms of the rules, there has been proper
service.”
[59]
Although the above decision dealt with the Rules of Court, the
principle enunciated therein is
apposite in this instance.
Section 2
of the
State Liability Act sets
out the procedure to be followed for
the service of legal proceedings taken against the executive
authority of a Department (the
Minister), it does not create
substantive law.
[60]
The objective of
section 2
of the
State Liability Act, like
that of
Uniform
Rule 4
is to provide for a mechanism by which relative
certainty can be obtained that service has been effected upon the
executive authority
and the Department. If the Minister received the
application or came to know of it through the Director-General, as is
the case
in this instance, and acted on the application, the purpose
for which service is required has been fulfilled.
[61]
The courts have considered prejudice suffered in order to render
service of legal proceedings
to be defective. In
Investec
Property Fund Limited v Viker X (Pty) Ltd,
[11]
the
court when considering the effectiveness of a summons on the
defendant, concluded that i
f
service of summons was not effected according to the letter of the
rule, but was still effective in that the defendant received
the
summons, and suffered no prejudice, service will be good.
[62]
Even though the application was not served directly on the Minister,
what he fails to mention
in his argument is whether or not he
suffered prejudice by the failure of EFFSC to serve the application
on him. If the Minister
was in any way prejudiced, he ought to have
stated what prejudice he suffered. In the present circumstances, it
is apparent that
the Minister suffered no prejudice.
[63]
In this instance, the non-compliance with the provisions of
section 2
of the
State Liability Act, in
failing to serve the application on
the Minister, does not result in prejudice to the Minister since the
purpose of the section
was fulfilled.
[64]
The point
in limine
falls to be dismissed.
The
Unauthorised Institution of Proceedings
[65]
In this regard, the submission by the Minister was that in the
present case EFFSC has not attached
its constitution to prove its
authority to litigate in its name. It has also failed to attach a
resolution authorising the institution
of the proceedings. In the
circumstances, the contention was that this application falls to be
dismissed with costs.
[66]
The Minister relied for support of his argument, on the judgment in
Gaines
v
Telekom
Namibia
,
[12]
wherein the Supreme Court of Appeal established the principle that
the institution of proceedings must be authorised. What the
Minister
failed to state was that that court also confirmed that Uniform
Rule
7
is the only mechanism in which authority of a person to act may be
challenged.
[67]
The Supreme Court of Appeal in
Unlawful
Occupiers of the School Site v City of Johannesburg
,
[13]
when dealing with the challenge to authority of an attorney in
relation to Uniform
Rule 7
(1), expressed itself as follows:
“
[13]
Based on these facts the appellants raised the argument that Lefatola
had failed to prove that he had
been duly authorised, because he did
not say whether or not the Director of Legal Services agreed with him
that the application
should be brought. . .
[14]
At the hearing of the appeal, counsel for
the appellants conceded that she could not support this
ground of
appeal. I think the concession was fairly made. The issue raised had
been decided conclusively in the judgment of Flemming
DJP in
Eskom
v Soweto City Council
1992
(2) SA 703
(W),
which was referred to with approval by this court in
Ganes
and another v Telecom Namibia
Ltd
2004
(3) SA 615
(SCA)
624I-625A. The import of the judgment in
Eskom
is
that the remedy of a respondent who wishes to challenge the authority
of a person allegedly acting on behalf of the purported
applicant, is
provided for in
rule 7(1).
The
ratio
decidendi
appears
from the following
dicta
(at
705D-H):
'The
care displayed in the past about proof of authority was rational. It
was inspired by the fear that a person may deny that he
was party to
litigation carried on in his name. His signature to the process, or
when that does not eventuate, formal proof of
authority would avoid
undue risk to the opposite party, to the administration of justice
and sometimes even to his own attorney.
. . ‘
The
developed view, adopted in Court
Rule 7(1)
, is that the risk is
adequately managed on a different level. If the attorney is
authorised to bring the application on behalf
of the applicant, the
application necessarily is that of the applicant. There is no need
that any other person, whether he be a
witness or someone who becomes
involved especially in the context of authority, should additionally
be authorised. It is therefore
sufficient to know whether or not the
attorney acts with authority.
As
to when and how the attorney's authority should be proved, the
Rule-maker made a policy decision. Perhaps because the risk is
minimal that an attorney will act for a person without authority to
do so, proof is dispensed with except only if the other party
challenges the authority. See
Rule 7(1).'
And
(at 706B-D):
'If
then applicant had qualms about whether the 'interlocutory
application' is authorised by respondent, that authority had to be
challenged on the level of whether [the respondent's attorney] held
empowerment. Apart from more informal requests or enquiries,
applicant's remedy was to use Court
Rule 7(1).
It was not to hand up
heads of argument, apply textual analysis and make submissions about
the adequacy of the words used by a
deponent about his own
authority.'
[15]
These remarks by Flemming DJP must be
understood against the background that
rule 7(1)
in its present form
was only introduced by way of an amendment in 1987. Prior to the
amendment an attorney was obliged to file
a power of attorney
whenever a summons was issued in an action, but not in motion
proceedings. The underlying reason for the distinction,
so it was
said, was that in motion proceedings there is always an affidavit
signed by the applicant personally or by someone whose
authority
appears from the papers (see e.g.
Ex
Parte De Villiers
1974
(2)
SA 396
(NC)).
On the basis of this reasoning it is readily understandable why,
before 1987, the challenge to authority could only be directed
at the
adequacy of the averments in the applicant's papers and pre-1987
decisions regarding proof of authority should be read in
that light.
[16]
However, as Flemming DJP has said, now that
the new
rule 7(1)
-remedy is available, a party who wishes to raise
the issue of authority should not adopt the procedure followed by the
appellants
in this matter, i.e. by way of argument based on no more
than a textual analysis of the words used by a deponent in an attempt
to prove his or her own authority. This method invariably resulted in
a costly and wasteful investigation, which normally leads
to the
conclusion that the application was indeed authorised. After all,
there is rarely any motivation for deliberately launching
an
unauthorised application. In the present case, for example, the
respondent's challenge resulted in the filing of pages of resolutions
annexed to a supplementary affidavit followed by lengthy technical
arguments on both sides. All this culminated in the following
question: Is it conceivable that an application of this magnitude
could have been launched on behalf of the municipality with the
knowledge of but against the advice of its own director of legal
services? That question can, in my view, only be answered in the
negative.”
[68]
It is common cause that in this instance the Minister did not follow
the
Rule 7
(1) mechanism but opted to raise the issue in his
answering affidavit and heads of argument. It can be accepted that
this process
was followed due to the urgency of the matter. This,
however, does not regularise the wrong process followed by the
Minister.
[69]
The deponent to EFFSC’s founding affidavit who is the President
of UNISA’s Student
Representative Council (“SRC”)
and a member of EFFSC, a student political movement, alleges that he
brings the application
on behalf of EFFSC. In support of this
allegation he attaches a confirmatory affidavit deposed to by the
General Secretary of the
EFFSC authorising him to bring the
application in the EFFSC’s name.
[70]
The question, as raised by Brand JA in
Unlawful Occupiers of the
School Site
, as to whether it is conceivable that an application
of this magnitude could have been launched without the knowledge of
EFFSC,
stands to be asked in this instance, as well. That question,
as Brand JA also concluded, can only be answered in the negative.
[71]
Nonetheless, the confirmatory affidavit of the General Secretary of
EFFSC was enough to confirm
that the institution of this application
was authorised.
[72]
The point
in limine
falls to be dismissed, as well.
Whether the Letter of 28
December 2020 is a Decision
[73]
The Minister submitted that the letter in question does not
constitute a decision or administration
action reviewable under PAJA
nor does it fall foul of the principle of legality.
[74]
As regards the decision’s reviewability under PAJA, the
Minister submitted that the letter
does not constitute a decision or
administration action envisaged in
section 1
of PAJA. The contention
was that in insisting on compliance with the enrolment plan, he was
exercising a control function as a
member of the executive over state
organs which are accountable to him. It was further contended that by
so doing the Minister
was developing and implementing a national
policy or coordinating the functions of his department and
administration.
[75]
The Minister found support for his argument, on the judgments in
Bhungwan
v JSE Pty
,
[14]
and
South
African National Roads Agency Ltd v Cape Town City
.
[15]
In
Bhungwan
,
when analysing the elements for the purpose of determining whether a
decision was exercised by the relevant authority the court
concluded
that whether a decision that constitutes administrative action within
the context of PAJA was taken in a particular
case cannot be
decided in the abstract but should be more informed by the
circumstances of each case.
[76]
The Supreme Court of Appeal explained in
Chairman,
State Tender Board v Digital Voice Processing (Pty) Ltd; Chairman,
State Tender Board v Sneller Digital (Pty) Ltd and
others
,
[16]
that
'Generally
speaking, whether an administrative action is ripe for challenge
depends on its impact and not on whether the decision-
maker has
formalistically notified the affected party of the decision or even
on whether the decision is a preliminary one or the
ultimate decision
in a layered process.... Ultimately, whether a decision is ripe for
challenge is a question of fact, not one
of dogma."
[77]
It is indeed so that whether a decision was exercised by the relevant
authority should not be
decided in the abstract but should be more
informed by the circumstances of the case. The facts in this
instance are clear.
A decision was exercised by the Minister
when he, in the letter in question, notified the Chairperson of
Council, UNISA of his
intention to direct UNISA to reduce its 2021
intake of FTEN student by 20 000. The reduction of the intake
stands to prejudice
the FTEN students and not UNISA, as such.
[78]
PAJA
[17]
defines a decision as
"any
decision of an administrative nature made, proposed to be made, or
required to be made, as the case may be, under an empowering
provision."
For
purposes of administrative action under PAJA, it is not necessary
that the action actually affects rights. Our highest courts
have
repeatedly confirmed that it is enough that the action has the
capacity to affect legal rights. It is thus enough, for purposes
of
PAJA review that the Minister intended to act in the manner in which
he suggested in his letter of
28 December 2020.
[79]
In the circumstances of this case, the Minster’s argument that
he was exercising a control
function is not sustainable. In
order to come to a conclusion that the Minister was exercising a
control function as a member
of the executive over a state organ
which is accountable to him, the effect of the decision contained in
the letter must impact
on UNISA and not on the FTEN students, as it
does. It follows that the Minister should have sought, in that
letter, to compel UNISA
to comply with the enrolment plan, instead of
directing that the intake of FTEN student be reduced.
[80]
The Minister’s argument in respect of the principle of legality
is also not sustainable.
As argued by EFFSC,
a
lower bar applies under the principle of legality, as was made clear
by the court in
Electronic
Media Network Limited and Others v e.tv (Pty) Limited and Others
,
[18]
when the following was stated –
"review
under the principle of legality does not require, as PAJA does, that
the decision has direct, external, legal effect
for it to be
reviewable." For purposes of legality review, the only question
is whether the review is ripe. This is a question
primarily of
prejudice — whether prejudice has already resulted or is
inevitable."
[81]
This
in limine
point does not avail the Minister under the
circumstances.
The
alleged non joinder of the SRC and NSFAS
[82]
It was UNISA’s submission that the failure by EFFSC to join the
SRC and NSFAS as parties
to the application was fatal to the
proceedings.
[83]
It has by now become settled law that the joinder of a party is only
required as a matter of
necessity
–
as
opposed to a matter of convenience
,
–
if that party has a direct and substantial interest which may be
affected prejudicially by the judgment of the court
in the
proceedings concerned.
[19]
[84]
The rule is that a person is a necessary party and should be joined
if such a person has a direct
and substantial interest in any order
that the court might make, or if such order cannot be sustained or
carried out into effect
without prejudicing that party, unless the
court is satisfied that he has waived his right to be joined.
[20]
[85]
The argument by EFFSC that UNISA conflates a joinder of convenience
with one of necessity, proved
persuasive. As indicated above, the
joinder of necessity is where the subject matter cannot be decided in
such party's absence,
nor can an order be sustained, or carried out
without negatively interfering on such party's rights. To the
contrary, a joinder
of convenience is where on the ground of equity,
the saving of costs, or the avoidance of multiplicity of actions, a
party is joined
to the proceedings.
[86]
From the evidence proffered in these proceedings, there is no relief
specifically sought against
the SRC and/or NSFAS, nor is there an
issue canvassed on the papers that necessitates the involvement of
either of them. The order
granted on 11 March 2021 is in no way
prejudicial to the rights of the SRC and/or NSFAS. The relief sought
by EFFSC was against
the Minister and UNISA and the order granted
relates specifically to them. The order against the Minister and
UNISA can be carried
out into effect without prejudicing the rights
of either the SRC or NSFAS.
[87]
The non-joinder of the SRC and/or NSFAS is not fatal at all to these
proceedings, nor was their
joinder necessary. This point is,
therefore, without merit and falls to be dismissed.
[88]
All the points
in limine
having been dismissed, I turn now to the merits of the application.
THE
MERITS
The
Grounds of Review
[89]
EFFSC in its case relied on the following grounds of review:
89.1
The impugned decisions are
ultra vires
in that neither the
Minister nor EXCOC may exercise powers beyond those conferred on them
by the law.
89.2
The impugned decisions were taken in a procedurally unfair or
irrational manner.
89.3
The rationality of the impugned decisions.
89.4
EXCOC failed to apply its mind.
89.5
The impugned decisions are unreasonable.
89.6
The impugned decisions are disproportional.
89.7
The decision of UNISA is a fruit of a poisonous tree.
The
Issues for Determination
[90]
On the substantive issues the following were required to be
determined by this court:
90.1
Whether the Minister has the power to direct UNISA to cut its FTEN
students’ enrolment numbers
by 20 000;
90.1.1
If so, did the Minister reach that decision in a procedurally fair
manner?
90.1.2
If so, is the Minister's decision rational, reasonable and
proportional?
90.2
Whether EXCOC has the power to acquiesce to that decision on behalf
of Council and the University.
90.3
If UNISA is wrong on any of the above decisions, what would be just
an equitable in the circumstances?
I
deal hereunder with the said issues in turn.
Whether
the Minister has the power to direct UNISA to cut its FTEN students’
enrolment numbers by 20 000
Argument
by the Economic Freedom Fighters Student Command
[91]
EFFSC’s case was that the Minister's decision is
ultra vires
and thus unlawful; it was taken in a procedurally unfair and/or
unlawful manner, and is, thus, irrational, unreasonable and
disproportional.
EFFSC’s further contention was that the
Minister does not have the authority and power to dictate to
universities how many
students they may take. It, furthermore,
submitted that even when a university strains beyond a condition
attached to state
funding, the Minister is not empowered to cut down
the number of potential students to be enrolled.
The
Argument by the Minister
[92]
The Minister, on the other hand, submitted that the over enrolment at
UNISA puts a strain on
the infrastructural, human and financial
resources of the Department and on the budget of NSFAS. This,
according to the Minister,
is so because the Department operates on a
Block grant determined in accordance with teaching inputs for all the
institutions.
If there is a continued over enrolment over time this
reduces the amount available to other institutions from the
Departmental
budget. Furthermore, more than fifty percent of the
funding of institutions comes from NSFAS budget and NSFAS has been
complaining
to the Department about these over enrolments that result
in NSFAS exceeding its budget on a yearly basis.
[93]
It was the Minister’s argument that whilst UNISA is over
enrolling its FTEN students, its
infrastructure and the human and
financial resources are not increasing. UNISA is, as a result, taking
a serious strain which may
result in disastrous consequences for the
institution and the Department. According to the Minister, once UNISA
has enrolled a
student, it has an obligation to provide quality
tuition to the student for the duration of the degree or diploma
term. In turn
this creates a corresponding obligation on the
Department and NSFAS to finance the student for the entire period.
[94]
The Minister contended, further, that the withholding of financial
support to UNISA, contended
for by EFFSC, offers no solution to the
problem. In fact, the Minister argued that it is negligible and at
some point in time it
appears very much unreasonable and harsh not
only to the institution but to the students. This will be especially
so should UNISA
fail to honour its contractual obligations to its
staff and other creditors as a result of the financial punishment. He
submitted
that, in the circumstances, it is clear that a solution to
the problem does not lie in punishing UNISA financially for the over
enrolment but lies in insisting on UNISA complying with the enrolment
plan. In particular, UNISA must, according to the Minister,
in the
remaining years of the plan ensure that it enrols in accordance with
the projected numbers in the plan. In short, it is
irrational to
allow UNISA to continue with its conduct in the hope that the
Minister or the Department is, going to impose a financial
penalty.
It is tantamount to allowing a person to commit a crime hoping to
punish him thereafter. It is simply not consistent with
good
governance. It was for that reason that the Minister contended that
he addressed the letter dated 28
December 2020 to the Chairperson of Council, UNISA in which he gave
notice of his intention to issue a directive against UNISA
to reduce
its 2021 FTEN students by 20 000 in 2021.
[95]
The Minister continued to lament, that the said letter was issued
after several attempts and
engagements with UNISA Council on the
matter. EFFSC is said to have, all this time, offered no other
solution to the problem facing
the Department and UNISA.
[96]
The Minister, furthermore, contended that from the content of the
letter dated 28 December 2020
he had not yet taken any decision. He
only notified UNISA of his intention to issue a directive and gave it
seven (7) days to make
representations in that regard. According to
the Minister, it was up to UNISA, EFFSC included, to offer another
solution to the
problem, if they had any.
[97]
The Minister argued that the contents of the letter specifically
refer to both the fiscal constraints
and the impact that the over
enrolment has on the entire sector (the Higher Education Sector).
He argued further that, he
was, within that context, responsible for
taking policy decisions that affect the entire Higher Education
sector. He is also responsible
for ensuring that there are sufficient
resources to keep the sector functioning and delivering within its
constitutional mandate.
[98]
His argument was that, it, will defeat the aforesaid purpose to allow
any of the institutions
to depart from an agreed plan which was
adopted in line with relevant policies and available resources. The
contention being that
that the Minister can withhold financial
support to an institution must not and cannot be a reason for him to
allow such a departure
which has serious impacts on the Department's
mandate.
[99]
According to the Minister, the letter issued to UNISA was issued in
terms of section 42 (3) of
the Act. Section 42 (1) of the Act
empowers the Minister, to issue a directive to the Council of a
public higher education institution
after complying with subsection
(3), if the Minister has reasonable grounds to believe that the
institution has committed any of
the transgressions referred to
therein. He submitted, as such, that on that basis it accordingly
follows that, on the wording of
section 42 (3) of the Act, the letter
dated 28 December 2020, is neither a decision nor a directive.
The
Applicable Law
[100]
It is said that the letter issued by the Minister to UNISA was issued
in terms of section 42 (3) of the
Act. Section 42 of the Act
provides as follows:
“
42.
Action on failure of council to comply with this
Act or certain conditions
(1)
If the council of a public higher education institution fails to
comply with any provision of
this Act under which an allocation from
money appropriated by Parliament is paid to the institution, or with
any condition subject
to which any such allocation is paid to such
institution, the Minister may call upon such council to comply with
the provision
or condition within a specified period.
(2)
If such council thereafter fails to comply with the provision or
condition, the Minister may
withhold payment of any commensurate
portion of any allocation appropriated by Parliament in respect of
the public higher education
institution concerned.
(3)
Before taking action under subsection (2), the Minister must –
(a)
give notice to the council of the public higher education institution
concerned of the intention
so to act;
(b)
give such council a reasonable opportunity to make representations;
and
(c)
consider such representations.”
[101]
To give it context, section 42 of the Act should be read together
with section 39 of the Act which provides
as follows:
“
39.
Allocation of funds by Minister
(1)
The Minister must, after consulting the CHE [Council of Higher
Education] and with the concurrence
of the Minister of Finance,
determine the policy on the funding of public higher education, which
must include appropriate measures
for the redress of past
inequalities, and publish such policy by notice in the Gazette.
(2)
The Minister must, subject to the policy determined in terms of
subsection (1), allocate public
funds to public higher education on a
fair and transparent basis.
(3)
The Minister may, subject to the policy determined in terms of
subsection (1), impose –
(a)
any reasonable condition in respect of an allocation contemplated in
subsection (2); and
(b)
different conditions in respect of different public higher education
institutions, different
instructional programmes or different
allocations, if there is a reasonable basis for such differentiation.
. . “
[102]
Section 39, in turn, should be read with the provisions of section 12
of the Higher Education Amendment
Act, 2015, which amended section 39
of the Act by the insertion after subsection (3) thereof, of the
following subsections:
“
(3A)
If the council of a public higher education institution fails
to comply with any—
(a)
provision of this Act under which an
allocation from money appropriated by Parliament is paid
to the
institution; or
(b)
condition subject to which any such
allocation is paid to such institution, the Minister may
in writing
request such council to comply with the provision or condition within
a specified period.
(3B)
If such council thereafter fails to comply with
the provision or condition within the specified period as
contemplated in subsection (3A), the Minister—
(a)
may withhold payment of any
commensurate portion of any allocation appropriated by Parliament
in
respect of the public higher education institution concerned; and
(b)
must in writing inform the council concerned of his decision.
(3C)
Before acting under subsection (3B), the Minister must—
(a)
give notice in writing to the council
of the public higher education institution concerned of
the intention
so to act;
(b)
give such council a reasonable
opportunity to make representations; and
(c)
consider such representations.
(3D)
The Minister must table a report in Parliament,
regarding any action taken under subsection (3B), as soon as
reasonably practicable after such action.’’
The
Discussion
[103]
Section 39 of the Act empowers the Minister to impose a reasonable
condition regarding the allocation of
public funds to a University.
Non-compliance with such a condition may then lead to the Minister
withholding funding to the non-compliant
University.
[104]
Thus, section 42 (1) read with section 39 (3A) of the Act empowers
the Minister to issue a directive to
the Council of a public higher
education institution, if the Minister has reasonable grounds to
believe that the institution has
committed any of the transgressions
referred to therein. The transgressions are stated in the subsections
as ‘failure to
comply with any provision of this Act under
which an allocation from money appropriated by Parliament is paid to
the institution,
or with any condition subject to which any such
allocation is paid to such institution’.
[105]
The Minister’s contention that the letter was issued in terms
of section 42 in an attempt to compel
UNISA to comply with the agreed
enrolment plan acted in contravention of this subsection as the
subsection does not empower the
Minister to temper (in this instance
to reduce) or to instruct an institution to temper with its agreed
enrolment plan.
[106]
Even if it can be deduced that the over enrolment has financial
implications as the Minister seemed to suggest
in his argument, the
Minister is still, not empowered to instruct an institution to temper
with its students’ enrolment plan.
Subsection 42 (2) read with
subsection 39 (3B) of the Act provides that ‘if the council,
having been notified in terms of
subsection (1) thereafter fails to
comply with the provision or condition, the Minister may withhold
payment of any commensurate
portion of any allocation appropriated by
Parliament in respect of the public higher education institution
concerned’.
[107]
In terms of this subsection, the Minister is authorised to punish the
institution for transgressions in
terms of subsection (1) by
withholding payment of any funding to be allocated to the institution
concerned. Nowhere does any of
the sub-sections in sections 42 and/or
39 of the Act authorises the Minister to direct an institution to
temper with its student
enrolment plan or to reduce its intake of
FTEN student as punishment for the infringement.
[108]
Given that
the Minister might have
characterised his decision in relation to the conditions of state
funding, sections 42 (2) and 39 (3B) of
the Act set out what powers
the Minister has in relation to non-compliant institutions.
Instructing an institution to reduce its
students’ intake is
not one of them.
[109]
To the extent that the Minister sought to use the directive in terms
of section 42 of the Act to compel
UNISA to stick to the enrolment
plan as agreed, and did not want to withhold funds as punishment, the
Minister is constrained by
the principle that there must be a
rational connection between the decision taken and the purpose sought
to be achieved. Put differently,
the Minister cannot rely on section
42 to design a solution that transcends the bounds of the problem
sought to be fixed.
Conclusion
[110]
It is trite that if an act or conduct falls beyond the parameters of
the authorisation granted, such conduct
is
ultra vires
. A
decision that exceeds the bonds of legal authorisation is a violation
of the rule of law. As an administrator, the Minister
may not
exercise any power or perform any function beyond that conferred upon
him or her by law.
[111]
Therefore, the Minister in issuing the letter in terms of section 42
of the Act, informing UNISA of his
intention to direct it to reduce
its FTEN student intake by 20 000 in the 2021 academic year,
acted
ultra vires
the provisions of the said section. On this ground alone, the
Minister’s decision ought to be reviewed and set aside.
Whether
EXCOC has the power to acquiesce to the Minister’s decision on
behalf of Council and the University
.
EFFSC’s
Argument
[112]
In respect of UNISA’s decision, it was contended that the
decision taken by EXCOC is
112.1
Firstly,
ultra vires
and, thus, unlawful in that EXCOC
acquiesced to the directive of the Minister when it also did not have
the authority to do so;
112.2
Secondly, to the extent that it had the requisite authority, EXCOC
took the decision without acting independently, reasonably
and
impartially and, as such, did not properly apply its mind; and
112.3
Thirdly, to the extent that the decision is based on the Minister's
decision which is alleged to be unlawful, then the
consequent
decision of EXCOC itself is unlawful and must be set aside.
The
Argument by the University of South Africa
[113]
UNISA opposed this application on the ground that when UNISA received
the compliance notice from the Minister,
it was mindful of the
consequences of its funding being withheld ultimately if it did not
comply, given the legislative powers
that the Minister is endowed
with. It was also mindful of the discussion between its own
officials, led by the Vice Chancellor,
and the officials of the
Department, for UNISA to reduce its FTEN students’ intake. It
was aware that based on these discussions,
UNISA had already held
deliberations internally to reduce the FTEN students' intake from 57
857 to 43
300. Given the above,
and the fact that the Minister's notice gave UNISA only seven (7)
days to respond, EXCOC considered that
it had to respond urgently on
behalf of Council. Given the urgency, this was not a decision that
required Senate’s recommendation.
It was in any event
impractical to obtain one within seven (7) days deep into the festive
season. Consequently, EXCOC took the
decision to accept the
Minister’s instruction to reduce the intake of the FTEN
students by 20 000.
Discussion
[114]
It is my finding that UNISA’s decision ought to be reviewed and
set aside on the grounds provided
hereunder:
[115]
Firstly, it is trite that acts performed on the basis of the validity
of a prior act are themselves invalid
if and when the first decision
is set aside. Having found that the Minister's decision is unlawful,
any consequent decision, thereafter,
including that of UNISA, falls
to be reviewed and set aside.
[116]
UNISA’s decision, as it has been shown, is based on the
Minister’s decision which was found
to be
ultra vires
and, thus, unlawful. Consequently, UNISA’s decision falls to be
reviewed and set aside, as well.
[117]
It is
evident that
in
the absence of the Minister's decision, UNISA would not have reduced
the number of FTEN students in the 2021 academic year but
it would
have accepted all 57 857. In other words, but for the Minister's
decision, EXCOC would not have taken the decision to
reduce the 2021
academic year's intake even though the issue had been considered. In
its own version, UNISA's reason for departing
from the Enrolment Plan
is that it believed, that the Minister had the power to give it
instructions and that the letter of 28
December 2020 was an
instruction over which it did not have any option but to comply. On
this basis alone, UNISA’s decision
stands to be reviewed and
set aside.
[118]
Secondly,
EXCOC
acquiesced to the directive of the Minister when it does not have the
authority to do so
. One of the
functions of Council in terms of section 37 of the Act read with
section 7 (2) (j) of the University Statute,
is to
determine
the student admission policy of the University, after consultation
with Senate. The salient provisions of section 37 of
the Act reads as
follows:
“
37.
Admission to public higher education institutions
(1)
Subject to this Act, the council of a public higher education
institution, after consulting the
senate of the public higher
education institution, determines the admission policy of the public
higher education institution.
(2)
. . .
(4)
Subject to this Act, the council may, with
the approval of the senate –
(a)
determine entrance requirements in respect of particular higher
education programmes;
(b)
determine the number of students who may be admitted for a particular
higher education programme
and the manner of their selection; . . .”
[119]
Section 37 of the Act requires Council to consult the Senate on
admission policy and may only determine
the number of students to be
admitted into a programme with the approval of Senate. In this
instance, EXCOC, even though it was
acting
qua
Council, did
not consult Senate on the Minister's directives nor did it obtain the
approval of Senate to reduce the number of FTEN
for the 2021 academic
year. This consultation is also a requirement in terms of the
University’s Guidelines for Good Governance
Practice. Whilst
EXCOC is empowered to act on behalf of Council in urgent matters, it
cannot make a decision that Council is required
to consult the Senate
on. By deciding to acquiesce to the Minister’s decision on
behalf of Council and without the necessary
approval of Senate, EXCOC
acted unlawfully. The unlawful decision ought to be reviewed and set
aside.
[120]
Lastly,
UNISA, through EXCOC, failed
to, meaningfully and extensively, consider the decision of the
Minister before taking the decision
it did. The Minister gave Council
only seven (7) days within which to consider the matter. That seven
(7) days is said to have
been deep into the festive season and
straddled a long weekend that included New Year’s Day. The
letter was written on 28
December 2020 and EXCOC was able to meet on
2 January 2021 with only two (2) days before the expiry of the period
of seven (7)
days set by the Minister. There was just no adequate
time to give it proper consideration.
[121]
For instance, if EXCOC had properly considered the Minister’s
decision, it would have written back
to the Minister and made him
aware that
121.1 he was not
giving UNISA adequate time to call a meeting, which according to the
relevant prescripts, required at least
seven days' notice. Meetings
of Council of UNISA and its EXCO are required to be held on seven (7)
days’ notice.
121.2 UNISA had
already considered the matter and has come to the conclusion that the
reduction of FTEN students to 43 000
would be reasonable.
121.3 the Minister
has no authority to direct UNISA to reduce the number of FTEN
students, in terms of section 42 read with
section 39 of the Act.
[122]
Having hurriedly taken the decision as it did and, thus, not properly
considering the Minister’s decision,
EXCOC failed, as such, to
make the Minister aware of the considerations that might have
persuaded him to opt for a different solution
to its problems. The
urgency which UNISA uses as justification for having taken the
decision it took, does not validate its action.
The decision
is, as a result, unlawful, invalid and ought to be reviewed and set
aside.
Other
Issues to be Determined
[123]
Having come to the decisions I have on the impugned decisions, I find
it not necessary that I deal with
the other issues raised for
determination, like for instance, whether the Minister reached that
decision in a procedurally fair
manner; or whether the Minister's
decision is rational, reasonable and proportional; and the just and
equitable remedy proposed
by UNISA if the impugned decisions are
found to be wrong. The remedy was, in any event, to be sought in case
the Minister’s
decision was found to be lawful and the decision
of UNISA was found to be unlawful for lack of the Senate’s
approval.
AMICUS CURIAE
[124]
As earlier stated, in the order I granted, I made an order admitting
SAHRC as
amicus.
[125]
Before launching the application for admission as
amicus
,
SAHRC had sought consent from the parties in the application which
consent was granted by EFFSC. The attorneys for UNISA, citing
practical reasons such as timeframes for filing the answering or
replying papers and heads of argument, refused to grant such consent.
It is on that basis that SAHRC had to institute an application for
its intervention as
amicus
in these proceedings.
[126]
It is trite that
'An
amicus curiae assists the Court by furnishing information or argument
regarding questions of law or fact. An amicus is not a
party to
litigation, but believes that the Court's decisions may afffect its
interest . . . An amicus joins the proceedings, as
its name suggests,
as a friend of the Court. lt joins in the proceedings to assist the
Court because of its expertise on or interest
in the matter before
the Court. lt chooses the side it wishes to join unless requested by
the Court to urge a particular position”.
[21]
[127]
SAHRC as an expert in the protection of human rights of all citizens
approached court with the intention
to present evidence and
submissions which relate to the EFFSC's challenge of the decision of
the Minister.
In essence SAHRC did
not seek any specific relief in respect of the substantive and
procedural attacks on the impugned decisions.
It wanted only to place
information that is material and relevant to the issues at stake in
the EFFSC’s application which
information would assist the
court when making its decision.
[128]
The respondents on the other hand disputed SAHRC’s entitlement
to be admitted as
amicus
in these proceedings. The Minister
contended that SAHRC was raising issues that fall outside the
permissible bounds as SAHRC’s
issues were not raised by EFFSC
in these papers, hence it should not be admitted as
amicus
in
these proceedings.
[129]
The information sought to be placed before the court is the
recommendations as contained in a Report on
Transformation at Public
Universities in South Africa which was compiled by SAHRC after it
conducted public hearings (“the
Transformation Report”).
[130]
The information submitted by SAHRC is in my view relevant because it
provides additional facts which placed
a complete picture of the
Minister's alleged failure to act rationally and to disregard
relevant factors. I found the Minister's
decision to be a direct
contradiction to the transformation objectives in the Higher
Education Sector as it continued to entrench
the existing
inequalities, patterns of systematic exclusion, marginalisation and
subtle forms of discrimination that still exist
in institutions of
higher learning.
[131]
UNISA on the other hand, objected to the admission of SAHRC as
amicus
on the basis that the Transformation Report sought to be placed
before the court was dated and did not take into account the most
recent statistics on state funding particularly following the #Fees
Must Fall movement. Accordingly, UNISA argued that the Transformation
Report raised factual disputes that go much wider than the relief
sought by EFFSC, entitling UNISA to respond thereto.
[132]
For the reasons stated in paragraph [130] of this judgment, I allowed
SAHRC to intervene as
amicus
in these proceedings. The statistics that UNISA sought to respond to
are not relevant to these proceedings when considered against
the
reasons for the decisions I have taken in regard to the two impugned
decisions.
COSTS
[133]
UNISA opposed the prayer for costs against it on the basis that when
EXCOC took its decision of 2 January
2021, it did so
bona
fide
and in line with Council's
fiduciary duties to act in the best financial interests of UNISA; and
in opposing this application,
UNISA was concerned of the consequences
that may befall it if its decision is set aside, but the Minister’s
decision is not.
The suggestion was that even if UNISA’s
decision was to be set aside, UNISA should not be mulcted with costs.
[134]
It is my view that EXCOC acted
mala fide
when it failed to bring to the attention of the Minister
considerations that could have persuaded the Minister to reverse or
amend
the decision that he was contemplating or had resolved to
take. On this reason alone, UNISA should be held liable for
costs.
[135]
When it comes to whether the scale should be that of attorney and
client, the court in
Cook
v Seabush Investments (Pty) Ltd
,
[22]
opined as follows:
“
9.2
“
4.09
Attorney and client costs are not readily granted
The ordinary rule is that
the successful party is awarded costs as between party and party.
An award of attorney and client
costs is not lightly granted by the
court: the court leans against awarding attorney and client
costs, and will grant such
costs only on “rare” occasions.
It is clear that normally the court does not order a litigant to pay
the
costs of another litigant on the basis of attorney and client
unless some special grounds are present. Where the court would
in the light of the other facts not have hesitated to make an award
of attorney and client costs, it refused to do so where there
were
faults on both sides, as it considered itself not justified in
penalising one side only.
In
Van
Wyk v Millington
it
was pointed out that the court’s reluctance to award attorney
and client costs against a party is based on the right of
every
person to bring his complaints or his alleged wrongs before the court
to get a decision, and he should not be penalised if
he is misguided
in bringing a hopeless case before the court. If, however, the
court is satisfied that there is an absence
of bona fides in
bringing or defending an action it will not hesitate to award
attorney and client costs.”
[136]
In defending the proceedings against it, there were no
mala
fides
on UNISA’s part. The
lack of
bona fides
is only in regard to UNISA’s failure to inform the Minister as
alluded in paragraph [121] of this judgment. Therefore,
costs
should not be awarded on an attorney and client scale.
[137]
Similarly, I did not think that EFFSC had made out a case for costs
on an attorney and client scale against
the Minister. An order for
costs on a party and party scale against the Minister and UNISA was
properly granted.
[138]
Ordinarily, the
amicus
is neither awarded costs nor ordered to
pay costs of the successful opposing party. I decided to follow
that principle here,
as well.
THE ORDER
[139]
It is for these reasons that I granted the order on 11 March 2021.
E.M KUBUSHI
JUDGE OF THE HIGH
COURT
GAUTENG
DIVISION, PRETORIA
Appearance:
Applicant’s
Counsel
: Adv. T. Ramogale
Adv.
M. Ka-Seboto
Adv.
T. Pooe
Applicant’s
Attorneys
:
Ian Levitt Attorneys
1
st
Respondent’s Counsel
: Adv. Z.Z Matebese SC
1
st
Respondent’s Attorneys
:
The State Attorney, Pretoria
2
nd
to 5
th
Respondent’ Counsel
: Adv.
J Motepe
Adv.
S. Manganye
2
nd
to 5
th
Respondent’s Attorneys
:
Diale Mogashoa Attorneys
For the Amicus
Curiae
: Adv. K. Van Heerden
:
SAHRC
Date of
hearing
: 04 March 2021
Date of
judgment
: 11 March 2021
[1]
Case
Number: 9388/2021.
[2]
Sections
6 (2) (a) (i), 6 (2) (d), 6 (2) (e), 6 (2) (f) and 6 (2) (i).
[3]
(35248/14)
[2014] ZAGPPHC 400:
[2014] 4 SA 67
(GP) (19 June 2014).
[4]
(CCT
295/20)
[2021] ZACC 2
(28 January 2021).
[5]
1996
(1) SA 984
(CC) para 38 and 165 to167.
[6]
2001
(4) SA 336 (C).
[7]
See
Ferreira at para 166.
[8]
2001
(4) SA 1184
(SCA) para 6.
[9]
Steinberg
v Cosmopolitan National Bank of Chicago
1973 (3) SA 885
(RA) at 892B
– C.
[10]
1988
(4) SA 460 (W).
[11]
unreported
GJ case number 2016/07492 dated 10 May 2016 paras 7 -19.
[12]
2004
(3) SA 615
(SCA) at 642B.
[13]
2005
(4) SA 199
(SCA) paras 13 to 16.
[14]
2010
(3) SA 334 (GSJ).
[15]
2017
(1) SA 468 (SCA).
[16]
2012
(2) SA 16
(SCA) para 21.
[17]
Section
1.
[18]
2017
(9) BCLR 1108
(CC) para 122.
[19]
Judicial
Service Commission v Cape Bar Council
2013 (6) SA 170
(SCA) para 12.
[20]
Erasmus:
Superior Court Practice 2
nd
ed Volume 2 pD1-125.
[21]
Hoffman
v South African Airways
2001 (1) SA 1
(CC) at 27H – 28B.
[22]
[2018]
ZAECGHC 36.