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2016
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[2016] ZAGPPHC 902
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Matshidiso and Others v President of the Republic of South Africa and Others (75657/2016) [2016] ZAGPPHC 902 (12 October 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number: 75657/2016
DATE:
12/10/2016
Reportable:
No
Of
interest to other judges: Yes
Revised.
In
the matter between:
MOGODI
MATSHIDISO 1
st
APPLICANT
MOKWENA
JEANETTE 2
nd
APPLICANT
SETSIBA
MAMPOTSE
CONSTANCE 3
rd
APPLICANT
MBATHA
THULISILE
GLENDAR 4
th
APPLICANT
MATLOU
MAMOJA
TSOALEDI 5
th
APPLICANT
MONEOANG
SIPHO
MPHO 6
th
APPLICANT
MACHETE
MEMORY 7
th
APPLICANT
MAVHUNGU
MATODZI 8
th
APPLICANT
ADV
ZONDEKA MAKONDO
AFRICAN
LAW
PROJECT 9
th
APPLICANT
And
THE
PRESIDENT OF THE REPUBLIC
OF
SOUTH
AFRICA 1
st
RESPONDENT
MINISTER
OF HIGHER
EDUCATION 2
nd
RESPONDENT
CHAIRPERSON
COUNCIL FOR HIGHER
EDUCATION 3
rd
RESPONDENT
CHAIRPERSON
OF UNIVERSITIES OF
SOUTH
AFRICA 4
th
RESPONDENT
VICE
CHANCELLOR OF THE UNIVERSITY
OF
LIMPOPO
NO 5
th
RESPONDENT
JUDGMENT
Fabricius
J,
1.
This
is an urgent application set down for hearing on 4 October 2016. It
was heard on 6 October 2016. The issues involved, whether
express or
implied, are of such importance that I deem it important to deal with
the proper context in some detail.
2.
The relief initially
sought was the following: “Pending the outcome of the relief
sought in
PART B
.
PART A:
Declaring
the decision of the Second Respondent of the 20
th
September 2016 of recommending increase of universities fees taken
therein to be unlawful administrative action and unconstitutional.
Reversing
and/or setting aside the decision of the Second Respondent
recommending that universities fees be increased between
2% to 8%
before the Commission of Inquiry into Higher Education and Training
(“the Fees Commission”) has finalised
its report and
presented it to the First Respondent.
Directing
that the decision made by the First Respondent of 0% increase on
student fees stand until such time that the First Respondent
has
received a final report from the Commission of Inquiry into Higher
Education and Training (“the Fees Commission”).
Declaring
that the Respondents’ action(s) are inconsistent with the
provisions of
Section
7 (1) and (2)
of the
Constitution
.
Declaring
that the Respondents’ action(s) are inconsistent with the
provisions of
Section
28 (1) (f) (ii)
of the
Constitution
.
Declaring
that the Respondents’ action(s) are inconsistent with the
provisions of
Section
29 (1) and (2)
of the
Constitution
.
Declaring
First and Second Respondents’ decision or failure to take such
decision to declare any fees increase before the
final Report of
Commission of Inquiry into Higher Education and Training (“the
Fees Commission”) to be procedurally
unfair, and materially
influenced by an error of law.
Declaring
First and Second Respondents’ decision or failure to take such
decision to patiently await the final report and
recommendations of
the Commission of Inquiry into Higher Education and Training (“the
Fees Commission”) to be procedurally
unfair, and materially
influenced by an error of law.
Alternatively,
directing the First, Second and Third Respondents to urgently sit
and consider the 0% fee increment pending the
finalisation of the
final report: Report of the Commission of Inquiry into Higher
Education and Training (“the Fees Commission”).
Directing
that the cost of relief sought in Part A to be of public interest
and as a result the cost of relief sought in Part
A be borne by the
First and Second Respondents.”
PART
B
:
This
part was formulated on the basis of a review application relating to
the alleged decision of the Second Respondent referred
to in par. 2
of the prayers.
3.
The
deponent to the Founding Affidavit avers that she is acting in her
own interest, in the interest of fellow students and also
in the
public interest in terms of the provisions of
Section 38 (a),
(c) and (d) of the Constitution
. Confirmatory affidavits were
only filed by the Fifth, Sixth and Eighth Applicants.
4.
The purpose of this
application was said to be the following:
“
The
purpose of this application, first is to seek an order declaring the
recommendations of fees increment, made by the Minister
of Higher
Education on 19 September 2016 to be an unfair administrative action
that adversely affect poor students and the public
at large.
Secondly,
seeking an order declaring that the Applicants have not been given
the opportunity to make any representation to the
Commission thus
the Minister of Higher Education has failed to comply with the
provisions of
Section
4 of
Promotion of Administrative Justice Act 3 of 2000
and further failed to apply the principles of the
audi
alterem partem
rule.
Thirdly,
seeking an order directing that the 2015 decision of the First
Respondent of 0% increase continues until such time the
First
Respondent has been handed the final commission report and the
opportunity to apply his mind on the said final report.
Fourthly,
seeking and order declaring the recommendations of the Minister of
Higher Education to be in conflict with
Section
28 (1) (f) (ii)
of
the
Constitution
.
Fifthly,
seeking an order declaring that the First and Second Respondents are
in contravention of the provisions of
Section
29 (1) (b) and (2) (c) of the Constitution
.
Sixthly, seeking an
order declaring that education is a fundamental right enshrined in
Section 29 of the Constitution of the Republic of South
Africa
, that in terms of section 7 (2) the State must
respect, protect, promote and fulfil these rights as there is no
limitation that
exists in terms of
Section 36 of the
Constitution
.
Alternatively,
seeking an order compelling the Second Respondent to comply with the
decision issued by the First Respondent on
23 October 2015 of 0% fee
increment until such time as the Commission has concluded its
business and gave its final report to
the First Respondent and the
First Respondent applied his mind on the recommendations contained
in the report.
Furthermore,
is to seek an interim order compelling the Second Respondent to
withdraw his recommendation for fee increase for
year 2017 until
such time the Commission has concluded its business and/or the
finalisation of the review application
PART
B
of this application.”
5.
It
is clear from those allegations that the Applicants rely on certain
provisions of the
Administrative Justice Act 3 of 2000
(“PAJA”),
certain sections of the
Constitution
of South Africa
and also on the requirements for an
interim mandatory interdict. Under the heading “
Law
”
they repeat that they rely on Sections 7, 9, 28 (1) (f) (ii), 29 (1)
(b) and (2) (c) read with Section 33 (1), (2) and Section
84 (2) (f)
of the
Constitution of the Republic of South Africa Act 108 of
1996
. The Applicants also repeat that they rely on Section 3
read with Section 4 (1) to (3) of
PAJA
, namely the
Second Respondent’s recommendation to increase university fees
from 2% to 8%, without giving the Commission adequate
time to
finalise its report, and hand its recommendation over to the First
Respondent. It is also said that the Second Respondent’s
decision to recommend university fees increase of 2% to 8%
constitutes administrative action which materially and adversely
affects
the Applicants’ rights, and that the decision of
recommending a fees increase had been taken without observing the
prescript
of “
audi alterem partem
-rule”. They also
rely on “the ruling party’s basic document -
The
Freedom Charter
, that states that higher education and technical
training shall be opened to all by means of State allowances and
scholarships
awarded on the basis of merit and that Adult illiteracy
shall be ended by a mass State Education Plan”. I may just add
at
this stage, that this Charter was drawn during 1955 and has no
legal effect inasmuch as
Section 2 of the Constitution
states that the
Constitution
itself is the supreme law
of the Republic. In the context of the applicable “
Law
”,
Applicants say that this Court has the power to declare that any law
or conduct that is inconsistent with the
Constitution
is invalid to the extent of its inconsistence, and in that context
make reference to
Section 172 of the Constitution
.
Lastly, they submitted under this particular heading that I have the
power to review administrative actions which flow directly
from
PAJA
,
common law, legality and the
Constitution
.
6.
As far as urgency is
concerned, the following was said:
“
The
announcement of the recommendations of the Minister of Higher
Education placed me and other students in the universities’
education, well-being, physical, mental health and moral at high
risk.
The
announcement has created a volatile situation in all universities,
resulting in some universities’ properties being
damaged thus
putting the life of minors like myself in serious danger.
The
examination is supposed to start as from 20 October 2016, and this
makes it impossible for students to prepare for such examinations
as
classes will be constantly disrupted by protesting students.
Crimes
of robbery and house-breaking in the vicinity of the University have
suddenly increased to unacceptable standards thus
putting my life
and other students’ at high risk.
The
First and Second Respondents have failed to protect my Section 28
(1) (f) (ii) constitutional rights.
Respondents
have failed to take into consideration that the Commission has not
submitted its final report and that universities
fees increase is of
great national interest and needs to be handled with care;
Education
is a human rights issue, education is life, the Respondents’
actions are life-threatening;
The
Applicants’ urgent application is of great public interest to
the citizens of South Africa and Africa at large as it
may bring a
possibility of civil disobedience by students and the public at
large;
Education
is a right enshrined in Section 28 (1) (f) (ii) and Section 29 of
the
Constitution
of the Republic of South Africa Act of 1996
as amended, and can only be limited in terms of law of general
application to the extent that the limitation is reasonable and
justifiable in an open and democratic society based on human
dignity, equality and freedom.”
At
the hearing on 6 October I accepted that the application was urgent
in the context of the issues raised. There are obviously
other potent
formal defects in the application, but fortunately all parties before
me were
ad idem
that I should address the crux of Applicants’
case and not discuss it or strike it off the Roll for reasons
relating to urgency,
locus standi
and the obvious absence of a
cause of action in the context of most constitutional provisions
relied upon.
7.
To give the
above-mentioned the proper contextual meaning, it is convenient to
mention at this stage that on 22 January 2016, by
way of
Proclamation
1 of 2016
, the President established a “Commission of
Inquiry into Higher Education and Training” (the “Fees
Commission”).
This Commission was tasked to enquire into,
report on, and make recommendations on the following:
“
The
feasibility of making higher education and training (higher
education) fee-free in South Africa, having regard to:
1.1
the
Constitution of the Republic of South Africa, all relevant higher and
basic
education legislation,
all findings and recommendations of the various Presidential and
Ministerial Task Teams, as well as all relevant
educational policies,
reports and guidelines;
1.2
the
multiple facets of financial sustainability, analysing and assessing
the role
of government together
with its agencies, students, institutions, business sector and
employers in funding higher education and
training; and
1.3
the
institutional independence and autonomy which should occur
vis
a vi
s
the financial funding model”.
On
20 May 2016, by way of
Government Notice No. 556
, a
call was made for submissions to the Commission of Inquiry by 31 May
2016. I agree with the Applicants’ criticism of the
short
period of time. On 8 August 2016, by way of Proclamation, which would
come into effect on 23 September 2016, the terms of
reference of this
Commission were amended, and it was stipulated that it would be
required to submit interim reports and recommendations
to the
President whenever it was necessary, and issue a preliminary report
by 15 November 2016. The Commission would also have
to complete its
work within a period of eight months from the date of the
Proclamation i.e. by no later than 30 June 2017, and
would have to
submit its final report to the President within a period of two
months after the date on which the Commission completed
its work.
8.
As
far as the background facts were concerned, it was said that the
history of the problems of education for African children was
as old
as colonisation of South Africa by both the Dutch and the British.
During the British rule, the education of African children
was left
in the hands of the churches and the Government refused to take
responsibility for the education of the African children
or the
African people. After the National Party took over the Government, it
created policies that adversely effected the education
of the African
child. Free education of these children was removed from the control
of the churches and the burden of paying was
put on the oppressed
African people to finance their children’s education. Thus, so
it was averred in the Founding Affidavit,
the majority of African
children were denied education. Further background facts were that on
14 October 2015, the Mail and Guardian
Newspaper reported that
management of Wits University raised the fees by 10.5% and an
up-front registration fee by 6%, a decision
that “enraged Wits
students resulting in the biggest protest the University had ever
seen after post-apartheid”. This
protest spread to other
universities in the country. On 23 October 2015, the President
announced a 0% increment after deliberation
with certain
vice-chancellors of universities and student representatives, and
also taking into account considerations of national
interest. In this
context the deponent to the Founding Affidavit submitted that the
President’s announcement of a 0% increase
created a legitimate
expectation that there would be no fee increase until such time that
the Commission to be appointed by the
President had concluded its
business and submitted its final report.
9.
It is clear from the
Founding Affidavit read as a whole that what gave rise to this urgent
application was a statement by the Minister
of Higher Education, the
Second Respondent, published on 19 September 2016. I deem it
important, for purposes of this application,
to quote this statement
by the Second Respondent in full:
“
Good
morning ladies and gentlemen of the media, and thank you very much
for making time to be here for this important announcement.
Our public universities
are a significant national asset. They empower the next generation
with skills and knowledge, and contribute
significantly to the
ability of our economy to compete globally through innovative and
appropriate research.
Our universities
currently face serious challenges in terms of funding. At the same
time, large numbers of South Africans are currently
finding it
difficult to access post-school education because of the financial
challenges they as individuals or as families face.
Government is aware of
these challenges and takes them very seriously. Indeed, government
remains firmly committed to progressively
realise free post-school
education for the poor and working class, as called for by our
Constitution, and to assist middle class
families who are unable to
pay.
This is demonstrated by
the creation of the Presidential Commission of Inquiry into Higher
Education and Training funding, which
includes universities, and
Technical and Vocational Education and Training (TVET) colleges, as
well as the substantial increases
in funding to the National Student
Financial Aid Scheme since 2010.
The task of the
Presidential Commission is to advise on systemic and long-term
measures to achieve a far-reaching reconstitution
of the entire
post-school education and training funding system, thereby enabling
South Africans to access higher education even
if they come from poor
and working class families.
The Heher Commission
recommendations will hopefully also contribute significantly to
building and strengthening our universities
and TVET colleges –
and the Commission should be allowed to complete its vitally
important task.
In the interim, while we
all wait for the recommendations of this Commission, our university
system has to continue functioning,
producing skills for the economy,
and empowering young South Africans and students from countries
around the world, in particular
the South African Development
Community (SADC).
Currently, our
universities face an extremely difficult financial situation. The
effects of last year’s moratorium on fee
adjustments and the
extra costs associated with insourcing have both added to these
challenges.
Our immediate and
pressing task is to ensure that as we continue to improve access to
post-school education and strengthen the quality
of learning and
teaching, we do not erode the financial sustainability of the sector.
Our economy is currently
weak and our fiscal position parlous. The tax burden has been rising
in recent years, and we must preserve
the fiscal space to fund
government’s policy agenda in future years. This means that any
funding government mobilises to
support the pressing challenges in
higher education, it would need to reprioritise from other government
programmes.
We understand the
legitimate student concerns about the affordability of university
education. At the same time, we need to ensure
that those who can
afford to pay must pay.
Equally importantly, the
post-school budget has to cover students in technical and vocational
education and training, while we also
face the challenge of building
a community college sector to provide educational alternatives for 18
million South Africans who
are unable to study at university.
In other words, our job
as government requires a number of very delicate balancing acts.
To achieve our
objectives, we must continue arguing for as significant a budget
allocation as possible for post-school education.
Indeed, a look at
this year’s budget shows that this sector received the largest
increase in funding of any government department.
Higher Education and
Training this year received an additional 18% for 2016/17, with an
average annual increase of 9.8% across the
Medium Term Expenditure
Framework period up until 2018/19.
From R 42 billion in the
2015/16 financial year, the Department’s budget is set to rise
to R 55,3 billion in 2018/19.
Government has this year
provided R 1,9 billion of the R 2,3 billion shortfall resulting from
the subsidization of the 2016 university
fee increase. More than R
4,5 billion in the 2016/17 financial year has been reprioritised to
the National Student Financial Aid
Scheme (NSFAS).
Expanded funding is
targeted to support 205 000 students entering universities for
the first time or continuing this year,
and a further 200 000
students at TVET colleges. This means that a total of 405 000
students would receive government
support to access universities and
colleges in 2016.
The National Skills Fund
(NSF) has allocated R 1,393 billion in 2016 towards funding
undergraduate and postgraduate bursaries in
scarce and critical
skills. This funding is directed at meeting the full cost of study
for over 13 500 undergraduate and 1 200
postgraduate
students enrolled in programmes at our 26 public universities.
In addition, and perhaps
most importantly, we must also ensure that we strengthen and empower
those sectors, which are charged with
training, and skilling people
either who choose not to go to university or who do not have the
opportunity, but nevertheless must
be assisted to become useful
contributors to the economy.
To support this aim, the
NSF has allocated R 626, 795 million in 2016 towards supporting TVET
college students in occupational programmes
with a specific emphasis
on occupations in high demand and R 1,237 billion towards funding
students in workplace-based learning.
Artisan development is
also key on our agenda to address the National Development Plan
target of 30 000 artisans per annum
by 2030. Dependent on the
artisan trade, it costs between R 350 000 – R 400 000
over a period of three years to
train an artisan.
This year the target is
to register 30 750 new artisan learners, which will amount to
approximately R 4,6 billion in artisan
learner grant funding through
the Sector Education and Training Authorities (SETA’s).
It is indeed a fine
balancing act and we must all participate, whether at the national
level, in university administrations, or
as student leaders –
because it is the nature of balancing acts that if one falls, all
fall.
Last month I received
recommendations from the Council on Higher Education (CHE) on
university fees for 2017. I have studied these
recommendations,
consulted with university vice-chancellors and council chairs,
various student organisations, organised labour,
faith communities,
political organisations and government.
Ladies and gentlemen, the
issues at stake are complex, and there are differing opinions and
arguments across the system.
The CHE argued for a
consumer price index (CPI) based fee adjustment for 2017, while many
university leaders have made a strong
case that an 8% agreement (CPI
+ 2%) is essential.
On the other hand, some
students have called for a moratorium on all fee adjustments until
the outcome of the Presidential Commission
is announced, whilst
others are supporting government’s measures to assist students
from poor, working and middle class families,
which include the
“missing middle”.
Currently,
the authority for determining fee adjustments resides with University
Councils
(I
underline). The CHE has suggested to their leadership that the system
will be best served by a national approach. However, at
the same time
we do recognise the differentiated nature of the system and that a
one-size fits all approach may not lead to sustainability
in the
system over the long run.
Government is alive to
the legitimate cries of students regarding fees and to those of the
universities who must continue to pay
for specialist books and
equipment in foreign currency and ensure that academic, support and
service staff are adequately paid
for their work.
As we wrestle with how to
respond comprehensively, the equally critical building and
transforming of our post-apartheid universities
has to be supported.
Starving our universities of funding is not the way to go, which is
effectively what another across-the-board
fee rise moratorium against
the current fiscal backdrop would mean at this point.
While the Presidential
Commission does its important work in developing proposals for a
long-term funding model, universities will
not be able to operate
with less funds than what they already have. Everything is more
expensive today than it was this time last
year.
That is the reality of
inflation.
We
have looked at the challenges at hand from all sides and have
concluded that the best approach would be to allow universities
individually to determine the level of increase that their
institutions will require to ensure that they continue to operate
effectively
(I
underline) and at least maintain existing quality – with the
caution that this has to also take into account affordability
to
students, and therefore has to be transparent, reasonable and related
to inflation-linked adjustments.
Our
recommendation is that fee adjustments should not go above 8%
(I underline).
To ensure that such
inflation-linked fee adjustments on the 2015 fee baseline are
affordable to financially needy students, government
is committed to
finding the resources to support children of all poor, working and
middle class families – those with a household
income of up to
R 600 000 per annum – with subsidy funding to cover the
gap between the 2015 fee and the adjusted 2017
fee at their
institution. This will be done for fee increments up to 8%.
This will in effect mean
that all NSFAS qualifying students, as well as the so-called “missing
middle” – that
is, students whose families earn above the
NSFAS threshold but who are unable to support their children to
access higher education,
will experience no fee increase in 2017.
Government will pay for the fee adjustment
(I underline). This
will bring huge relief to nurses, teachers, police, social workers,
and other parents who work in occupations
that do not earn huge
salaries, and who have children at university. This will apply to
students at universities and TVET colleges.
Administrative mechanisms
will be developed and students informed on how to apply for the
gap-funding grant before the end of this
academic year.
There are many students
from upper middle class and well-off families, as well as students on
full company bursaries in our institutions
who can afford to pay the
adjusted 2017 fees, and we expect them to do so.
It is very unclear to
government why families who can afford private schools should, under
the current circumstances, be receiving
further state subsidies for
their children at universities.
To subsidise these
students would require taking funding from the poor to support
cheaper higher education for the wealthy, which
is not justifiable in
a context of inequality in our country. We cannot subsidise the child
of a cleaner or unemployed person in
the same way as we subsidise the
child of an advocate, doctor or investment banker.
While NSFAS will continue
to provide loans and bursaries to poor and “missing middle”
students, which is developing
a model that will be tested in 2017 to
provide affordable support to these students. We will continue to
look for other ways of
supporting financially needy students not
covered by NSFAS, whilst a long-term solution is being developed to
raise sufficient
funding from the public sector, private sector and
other sources to fund “missing middle” students at
universities
and TVET colleges.
Universities must
urgently, effectively and comprehensively advance our shared
transformation as articulated in the 2015 Durban
Statement on
Transformation, and provide annual reports on their progress.
Moreover, universities are expected to pay all of their
staff, both
permanent and contracted, a fair living wage.
I thank you.”
Having regard to this
statement, it was said in the Founding Affidavit that as a matter of
fact the Minister of Higher Education
had advised “the fee
increment not exceeding 8%”. It was alleged that because the
authority determining any adjustment
resided with the University
Council, and the fact that the President had appointed the Commission
under the chairmanship of retired
Judge of Appeal J. Heher, the
Minister had “jumped the gun in issuing the recommendation”.
The submission was that
the Minister had no authority to determine
any fee increment, that his recommendation was therefore unlawful,
and constituted unfair
administrative action that adversely affected
the deponent’s rights and those of other students. The
Minister’s statement
had allegedly the following three “key
implications” for students of the University of Limpopo:
1.1
“
The
first key point is that, the Government is committed to finding the
resources of children of all poor working and middle class
families
whose household income is up to R 600 000 per annum. We submit
that this does not resolve the issue of free education,
but a simple
transfer of the education’s financial burden from parent to
child or student, and we submit that NSFAS is a
loan that must be
paid back by Applicants and the community of students with exorbitant
interest, after obtaining their qualification.
1.2
We
submit that the above-mentioned solution does not address the
question of free education. It still perpetuates the policies that
were started by the National Party to deny an African child free
education.
2.
The
second key point is that, the burden is of financing the education
and an increase thereof has been placed on the African child,
as the
increase would affect the loan that NSFAS gives to students.
3.
The
third key point is that NSFAS may increase by 8% which will have
devastating effects to a poor African child who has to pay
back as
soon as she completes her studies.”
10.
It
was also alleged that on 26 September 2016, the University of Limpopo
issued a notice that classes were suspended until 28 September
2016,
based on the press statement issued by the Minister that resulted in
the situation at the University becoming highly volatile
which
adversely “affected minors like myself”. It was said that
other students were similarly adversely affected and
on 27 September
2016, a student residence was also burnt down.
11.
Having
dealt with the above mentioned background, the Applicants in the
Founding Affidavit then deal with the requisites for an
interim
interdict. They do so under the heading of a
prima facie
right, irreparable harm and no alternative remedy as well as the
balance of convenience. Under the heading of “
Prima Facie
Right
”, the First Applicant says that in the light of the
fact that a lawful Commission was established, the Minister’s
recommendation
on a fee increment not exceeding 8% was unlawful and
unconstitutional, and against the spirit reached between the First
Respondent
and other interested parties. In view of the above, so it
was put, the recommendation of the fee increment constituted unfair
administrative
action that adversely affected the Applicants and the
student community at large, and was therefore unconstitutional. It
was also
said that the said recommendation undermined work of the Fee
Commission and created an atmosphere of mistrust. It also undermined
the 2015 presidential announcement of a 0% fee increment. Under the
heading of “Irreparable harm and no alternative remedy”,
it was said that if interim relief was not granted, the Applicants
and the membership of the Ninth Applicant would suffer irreparable
harm in that “the Applicants’ irreparable harm lies in
the fact that if a interdict is not granted but they are ultimately
successful in showing that in the review application the impugned
decision is invalid and unlawful”. Under the heading of
“Balance of convenience”, it was said that “Applicants
and the entire student community at large will suffer
in the event
that an interdict is not granted and the Applicants are ultimately
successful in the review application”.
12.
By
way of conclusion it was submitted that there were exceptional
circumstances that existed that warranted this matter to be heard
on
an urgent basis, that a case has been made out for an interim
interdict and that the prospects of success in the review application
were overwhelming.
13.
It is to be expected that
in a democratic society that has not yet overcome the inequities of
the past, disagreement will be rife
about what is right and wrong. A
reasoned and informed argument can contribute to positive debate
about what is in the best interests
of the broader society.
It
is not appropriate for me to comment on Government policy, nor will
it serve any useful purpose herein if I deal with the history
of this
country that the Applicants have eluded to, except to say the
following which is contextually justified: it is indeed a
shameful
and tragic truth that millions of South Africans were deprived of an
adequate education in the past. That this fact or
the Government’s
present position has led, as alleged, to continued violence in the
streets and at the Universities, is something
that I abhor. It is not
justified on the basis of any rational argument. The sad irony is
that it will ultimately be the students
that will suffer the most if
facilities meant for them are destroyed, if lectures are prevented
and Universities are closed at
critical examination times. What
example does that set for the youth that must look upon the present
events with deep anxiety and
insecurity? It also appears that Police
and security personnel often react with inappropriate brutality. Our
system of constitutional
values suffers as a result and the whole of
society is scarred.
14.
At the hearing of this
application, Mr J. Hattingh appeared for all the Applicants. I was
informed that he appeared pro bono. I
thank him for accepting this
instruction and for representing the interests of the Applicants as
best as he could, having regard
to the facts and the applicable legal
principles. I was informed that the Applicants’ Affidavits have
been drafted by themselves,
but that he had studied them and
associated himself with them. In Court, I complimented the Applicants
for their courage and confidence
for approaching this Court for an
order, albeit incompetent in law, as I will hereafter show, rather
than taking the law into their
own hands and inflicting violence on
others or on property. In order to avoid unnecessary argument on
orders that were not competent,
having regard to the provisions of
PAJA
and the
Constitution
, Mr Hattingh
handed up a new Draft Order which now read as follows:
“
The
Second Respondent is ordered to retract the pronouncement made on 19
September 2016 that University fees for the 2017 academic
year be
adjusted to a maximum of 8%.
The Second Respondent is
ordered to refrain from making further pronouncements in respect of
the increases of University fees
pending the finalization of the
report of the Commission of Inquiry into Higher Education and
Training commissioned by First
Respondent in terms of Proclamation
No. 1 of 2016 published in the Government Gazette of 22 January
2016.
A
cost order was also sought. Mr Hattingh informed me that to the best
of his knowledge, it was the first time that students had
decided to
approach a Court for relief rather than resorting to the streets and
being part of the chaotic circumstances that one
can view daily at a
number of Universities. I was assured that the Applicants were not
participating in any violence, but that
as reflected in the Draft
Order presented to me, the violence and chaos at the Universities had
been caused by the statement of
the Second Respondent that I have
quoted in full. He submitted that the University of Limpopo had been
closed as a direct result
of the Minister’s announcement. He
posed the question to me whether these students, whether at the
University of Limpopo
or at other Universities, had not possibly
misunderstood the Minister’s statement. I mentioned to Mr
Hattingh that it was
not for a Court to tell a Minister of the
Cabinet what policy statements to make, when to make them, and how to
make them. The
principle of the separation of powers is one that
underlies our constitutional dispensation and that it was not for a
Court to
say what a Minister may say or do, having regard to
Government policies or other consideration that concerned the
Executive. See:
Mazibuko v The City of Johannesburg
2010 (4) SA
1
at 20 par. 61,
by way of example. I posed the question to
Mr Hattingh whether or not the detailed statement of the Second
Respondent was unlawful
or not. He conceded that it was not unlawful
in the context of any Statute that he could rely upon, or in terms of
any constitutional
provision, but that it was inappropriate because
of the establishment of the Fee Commission that I have referred to.
He also conceded
that it was the University Council in each
particular case who had to make a decision regarding their fee
structure and that no
such decision has yet been made. The said
Commission was lawfully instituted and it had been inappropriate to
have made an interim
statement regarding a fee structure as the
Second Respondent had done.
15.
On behalf of the First
Respondent, Ms A. Platt SC simply pointed out that there was no issue
against the First Respondent. She submitted
that the business of
Courts was generally retrospective in that they dealt with situations
or problems that had already crystalized
and not with prospective or
hypothetical ones, and therefore the necessary factual predicate was
required.
See:
Ferreira v
Levin NO
1996 (1) SA 984
(CC) at par. 199
.
She
submitted that the Applicants were applying for relief in the
abstract, and without due regard to the rights of people or juristic
entities other than the Applicants, and permutations beyond the facts
of the present case, and without proper consideration for
its effect,
inter alia
on the national fiscus and on the economy as a
whole. The result was that having regard to the Applicants’
Affidavits, no
factual material had been presented to justify the
challenge that the First Respondent’s conduct was
unconstitutional. I
agree with that submission and hold that no case
has been made out against the First Respondent. It is of course
correct that the
President stated on 23 October 2015, by way of a
statement issued by the Presidency that he had held a meeting with
Vice-Chancellors,
Chairpersons of University Councils, Presidents of
Student Representative Councils and representatives of student
organisations
nationally. The statement continued as follows: “The
meeting agreed that Government needs to lead a process that goes
wider
than fees, looking at the higher education sector. On the
matter at hand, we agreed that there will be a zero increase of
university
fees in 2016”. The statement is unambiguous and
clear. No increase of university fees was envisaged for 2016. It went
no
further than that and in my view there is no basis for submitting
that it could have formed any reasonable expectation that the
fee
structure for 2017 would not need to be addressed, having regard to
normal economic realities. With reference to the Second
Respondent’s
detailed statement of 19 September 2016, Mr S. Maritz SC pointed out
that if this statement was read carefully
and rationally, it was
clear that no decision had been taken by the Government relating to
an increase of fees, and that it was
abundantly clear as well that
the Universities had as yet not taken any decision relating to an
increase of fees for 2017. The
press statement of the Minister was a
well-reasoned document and it comprehensively demonstrated the
Governments present limited
ability to subsidise needy and the
so-called “missing middle” students, up to an increase of
8% in student fees for
the 2017 academic year. The press statement
was in fact in the nature of an appeal to Universities to limit all
increases in fees
to 8% which the Government would fund. The
Minister’s announcement was not a decision and did not amount
to any form of executive
or administrative action. Accordingly, there
was simply nothing capable of review, either in these proceedings or
by way of the
prayers sought as per
PART B
of the Notice of
Motion. Neither the President, nor the Minister, had the authority to
decree a 0% increase in fees for the 2017
academic year. Similarly, I
did not have the power to order a 0% increase for next year. The
Minister’s Answering Affidavit
was deposed to by the
Director-General of the Department of Higher Education of the
Republic. He was entitled to make this affidavit
and was duly
authorized by the Minister to do so. The following was said in this
affidavit which I deem to be important and decisive
of the present
issue before me: “The Second Respondent has no authority or
capacity to increase or decrease university fees
or to maintain such
fees at the current rate. Maintaining fees at the current rate or any
increase or decrease falls solely within
the competence of each
individual University. As yet no University announced an increase of
fees for the 2017 academic year”.
I agree with this contention
and it is clear from the very detailed statement of the Minister that
I have quoted in full. The 0%
increase of the university fees in 2016
announced by the First Respondent in 2015 was a result of an
agreement reached between
Government and all the Universities of
South Africa. The nub of this agreement was that there would be an
increase of 6% in fees
in 2016, which was funded by an additional
subsidy by the Government and by the University from their reserves.
It was therefore
a misconception to argue that 0% increase for 2016
had been announced in 2015. The Director-General continued to say
that the reserves
of the respective Universities had now been
depleted. Their running costs were very high and their very existence
were threatened
if they did not keep up with the inflation of such
costs in the ensuing years. The Government was subsidizing an average
of 40%
of the running costs of Universities, but the actual subsidies
provided to individual Universities varied. In the case of the
University
of Limpopo, the actual subsidy was 67% of its running
costs. The Council on Higher Education presented a very detailed
advice to
the Minister on 11 August 2016. This advice made it
abundantly clear that all Universities were financially stressed and
that the
entire tertiary education system would face collapse if
urgent remedial action were not taken. The press release by the
Second
Respondent, upon a proper reading thereof, was an information
document. It was pointed out that needy students could be subsidised
with fee increases up to 8% in 2017. This was the upper limit of the
Government’s financial ability, and forms the basis
of the
well-reasoned recommendation that fee increases be limited to 8%. In
actual fact, the press release was no more than a plea
to
Universities to limit an increase accordingly, and it was in the form
of a recommendation by which no University was bound.
Accordingly,
and in the context of the applicable legal principles, the press
statement by the Second Respondent was neither of
an administrative,
nor executive nature. Accordingly, the press statement, and what was
contained therein, was not subject to review
by a Court, and the
relief sought by the Applicants in the Draft Order handed to me
during the hearing was not competent.
16.
I agree with those
submissions. They are made on the basis of objective facts.
Furthermore, the 0% increase in fees referred to
in 2015 occurred by
agreement, and by its very nature could not have given rise to any
reasonable expectation that a 0% increase
would be perpetuated in
future. The definition of “administrative action” in
PAJA
made it abundantly clear that this plea to Universities based on
solid economic considerations, was not an administrative action
that
could be reviewed by a Court. It was not in the nature of a decision
be it of administrative or even executive nature.
I agree.
It
is of the utmost importance that the statement of the Second
Respondent be properly read, properly analysed and properly
understood.
If this is done, the violence and anarchy that have
allegedly resulted from this statement should cease. He submitted
that violence
is not contemplated as a solution to problems facing
our society, be it of an economic nature or otherwise. It was an
anathema
to any civilized society. He submitted that students should
contribute to solutions and not resort to violence to force either
the Government, or the Universities, to take decisions which are not
based on sound economic considerations. If they do, the whole
system
will ultimately collapse and there will be nothing to study for, and
the Applicants’ dream of one day appearing before
me, as either
Attorneys or Advocates, will simply dissipate into thin air. In that
context, it was submitted that it was appropriate
for me to look at
the application before me beyond the legal issues that arose, and to
point out to every single interested party
and all students, that
neither the Minister of Higher Education, nor the individual
Universities, have as yet made any decision
that would adversely
affect any student.
17.
Ms
M. Engelbrecht on behalf of the Fourth and Fifth Respondents
associated herself with the argument presented on behalf of the
President and of the Minister. The Limpopo University was due to set
its fees for the 2017 academic year in early November, after
consultation with relevant stakeholders, and in accordance with
proper procedure. Its Council, in making the decision on fee
increases,
would bring into account the recommendation as well as all
other relevant factors. If the recommendation was followed, only a
tiny
minority of the students of the University would experience any
fee increase since about 70% of the students were NSFAS students
and
the remaining 30% largely came from the so-called “missing
middle”. Furthermore, the University had already indicated
that
it would consider the circumstances of students not benefitting from
the recommendation on a case-by-case basis, to alleviate
their burden
also. She also submitted that, as was pointed out by her colleagues,
that the recommendation had in any event no force
of law.
18.
In
the light of the provisions of the Constitution, the provisions of
PAJA
and the autonomy of the Universities to determine
their own fees, which has not yet been done, there was no decision by
any of
the Respondents that could be reviewed by me or could be set
aside. She also submitted that the history of education in South
Africa
was not a matter that required debate in the present
proceedings. The Fees Commission would only complete their work by
mid-2017
and all reasonable persons should await the conclusion of
the work of the Committee. I must point out that it is clear from the
Applicants’ own admissions in their affidavits that the
Minister does indeed not have the power to set fees. Accordingly,
the
recommendation has no force of law and is not enforceable as against
the University or against anyone else. The remedy for
the Applicants
and for all other students in the country is to engage the
Universities and all other interested parties on a calm
and rational
basis having regard to objective economic factors. I agree. Normally,
this would have been the end of the argument
and I would be entitled
to make an order dismissing the application without much further ado.
I was however invited, in the interests
of society as a whole to go
one step further than a Court would normally do in proceedings before
it, and especially in proceedings
in the Urgent Court. I was asked by
all Counsel to call upon each and every student in South Africa to
calmly and rationally consider
the statement by the Second Respondent
again, if this was done it would be realized that it was in the
nature of a well-reasoned
plea to Universities to limit any increases
up to 8%, which would then be funded by the Government. There was no
reason for any
anarchy, violence and destruction of property. I asked
Counsel whether it would be proper for me, sitting as a Court to give
guidance
in this context by way of explaining the meaning of the
Minister’s statement and its status in law. This I have done. I
asked
all Counsel whether it would be proper of me to moralize in
this judgment, if I can use that phrase, but all Counsel were in
agreement
that I should point out what was right according to law and
what was wrong. This I have done. The Minister’s statement is
clear. It is not legally binding on anyone. The Universities have as
yet made no decision. The Fees Commission is doing its work.
The
President has made no binding decision. It is abundantly clear that
no action of the Respondents in this matter justify the
present
violence that one can observe at Universities.
19.
Our
Constitution
is based on the Rule of Law. Without it
our society will not survive, be it in its present form or any other
form. Violence can
never be the solution to economic problems or the
plight of the poor, which I recognise. If I could remedy the
inequities of the
past, I would. In the present instance, there is no
legal basis for the relief sought by the Applicants. I commend them
for their
courage, their efforts in these proceedings and the fact
that they have sought relief from this Court rather than resorting to
acts of anarchy. I sincerely hope that they will one day appear
before this Court, either as Attorneys or Advocates, and that the
Rule of Law will guide them in their efforts. I similarly appeal to
all other students to follow the same lawful course.
20.
The following order is
therefore made:
The
application is dismissed;
There
is no order as to costs.
_____________________________
JUDGE H.J FABRICIUS
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Case
number: 99212/15
Counsel
for the Applicants: Adv J. Hattingh
Instructed
by: Sekati Monyane Attorneys Inc
Counsel
for the 1
st
Respondent: Adv
A.
Platt SC
Instructed
by: The State Attorney
Counsel
for the 2
nd
Respondent: Adv S. Maritz SC
Instructed
by: The State Attorney
Counsel
for the 4
th
& 5
th
Respondents: Adv
M.
Engelbrecht
Instructed
by: Anton Bakker Attorneys
Date
of Hearing: 6 October 2016
Date
of Judgment: 12 October 2016 at 10:00