Universities may take minister to court over autonomy

South African universities could tackle Higher Education and Training Minister Blade Nzimande in the Constitutional Court next year following radical changes to the Higher Education Act that were steamrolled through parliament.

The Higher Education and Training Laws Amendment Bill has been described as "apartheid-like" and "draconian" for the wide-ranging powers it will give Nzimande to intervene in the running of universities – the one part of the South African education system that is still functioning well.

If enacted it will give Nzimande the power to issue ‘directives’ to universities if he believed they were acting in a discriminatory manner.

This means he could tell a world-class institution such as the University of Cape Town to change its entry requirements and dissolve its council if it does not convince him of the merits of its requirements, according to experts.

Vice-chancellors agreed that there was a lack of an inclusive consultation process between the Department of Higher Education and Training (DHET) and the higher education sector over the changes.

“We are deeply concerned about the bill's content,” said Professor Ahmed Bawa, vice-chancellor of Durban University of Technology and chair of Higher Education South Africa (HESA), the umbrella body representing the sector.

“We are hoping to meet the minister early in the new year. HESA will also decide on court action then. In the meantime we hope President Jacob Zuma will take heed of our concerns,” he said.

Zuma has not yet signed the bill into law and vice-chancellors have been lobbying him in a bid to stop him.

Dr Theuns Eloff, vice-chancellor of North-West University, spoke to the chair of the ruling African National Congress Baleka Mbete about the bill recently.

"Even though I did not have a specific mandate to speak on behalf of the sector, there is widespread concern among vice-chancellors about the amendments – in particular its impact on institutional autonomy and the general management of education,” he said. Eloff said he expected a group of institutions to challenge the bill in court if the matter was not resolved.

But the DHET said Nzimande would not consider asking Zuma to withhold his signature as parliamentary processes had been complied with. It was confident that the Constitutional Court would uphold the amendments to the Act.

"Funding provided by the government to universities for 2012 amounted to R24.3 billion (US$2.8 billion) and the National Skills Fund augmented this with an allocation of close to R1 billion for financial aid and expansion of certain priority programmes in a number of universities.

“Institutional autonomy can never be an end in itself if you are a public institution that is subject to the national imperatives of a developmental state like ours and sustained through public funds,” the DHET said in response to written questions.

Professor Thandwa Mthembu, vice-chancellor of the Central University of Technology (CUT), called for a higher education indaba (meeting) to discuss the matter.

The controversial amendments were pushed through following a court case between CUT and Nzimande, who wanted to dissolve its council and appoint an administrator to run the university.

CUT took the legal route and the High Court found that Nzimande did “not possess such authority and has exceeded his powers”. The proposed act will give him the necessary powers.

Mthembu said last week that principles of higher education such as cooperative governance and institutional autonomy would be compromised by the changes. “[The] Minister appears to hold the view that he has to govern and manage alone despite there being structures like council, senate, the institutional forum and so forth.

“His will must be imposed on them,” Mthembu said.

But the DHET said the changes to the act were necessary and the amendments addressed flaws in the current act to ensure that public universities with financial problems and maladministration became functional in the shortest time possible.

According to the department, the CUT case did not play a part in the changes, but it was a clear example of how investigation processes into problems with the administration of an institution could be frustrated and showed that the current legislation to deal with dysfunctional institutions was not sufficient.

Universities, however, argued that the powers the minister had under the current legislation were sufficient.

The University of Pretoria, in a strong submission about the amendments to the parliamentary committee on education in October, said a “new consensus between the government and the higher education sector was needed”, on the basis and the nature of their relationship as well as the recognition of both institutional autonomy and public accountability.

Ahmed Essop, CEO of the Council on Higher Education, an advisory body to the minister, said the changes were slipped through and caught universities off guard. He said that there should have been a broader consultation process given the seriousness of the amendment.

* This article is also published today by South Africa's national Sunday Times newspaper. It is co-published with permission.