Submissions to the Commission of Inquiry into Higher Education and Training

In the face of the Fees Must Fall movement and mounting public pressure, President Zuma appointed a commission of inquiry to investigate the feasibility of making higher education fee-free in South Africa. Towards the end of 2016, the Commission of Inquiry into Higher Education and Training (the Fees Commission) heard from stakeholders and received written submissions on the issue.

The Legal Resources Centre made written and oral submissions to the Fees Commission on behalf of Students for Law and Social Justice (SLSJ), a South African student organisation dedicated to protecting human rights, preventing discrimination and promoting social justice and the rule of law in public higher education institutions. This is a summary of those submissions.

SLSJ recognises that education has the ability to alter the lived realities of the historically oppressed, as well as open the doors of opportunity to those whom society has traditionally relegated to subservience and poverty.  Thus, universal availability and access to further education is an aspiration all peoples should seek to realise.  Education yields the benefit of bearing returns on investments made for the proliferation of this right.  Significantly, education edifies human existence in enabling individuals to pursue lives in which they can maximise their potential.  While basic education is key in this regard, accessing opportunities for further education significantly enhances a person’s prospects of a meaningful existence.

The Constitution envisions a society that improves the quality of life of all people and frees their potential.  The continued marginalisation of people based on their circumstance and position in society is abhorrent and must be addressed as matter of urgency.  The right to further education is located in section 29(1)(b) of the Constitution and, importantly, it also finds reference in international law. It is in the light of these empowering provisions that SLSJ has envisioned and proposed its suggested model of funding – a means-based sliding-scale ‑‑ and its recommendations. SLSJ’s engagement with this issue is grounded in an understanding that the right to further education must be made progressively available and accessible, and that it is a constitutional imperative and obligation under international law that further education becomes universally available and accessible, over time.

As a starting point, admissions policies are vital to the success of the proposed sliding-scale in facilitating redistributive access to tertiary institutions.  Spaces in institutions must be awarded with the goal of transforming a vastly unequal society.  SLSJ submitted that the admissions policies of various institutions must be reviewed as a space in which to effect redress of past and present injustices.  Only when the student body is racially representative that redistribution of access will be constitutional.  Further, it is an imperative that marginalised groups are afforded the protection guaranteed by the Constitution in admissions.  This is vital to the promotion of human dignity and ensuring that the best interests of the student are protected and promoted.

Importantly, the affordability of further education is a barrier to access for the majority of prospective students and is an aspect that requires redress.  SLSJ submitted that the implementation of a progressive sliding-scale model of government subsidies directly to students, not as a collective but as individuals, must ensure that personal circumstances of a student (including the best interests of the student, any forms of disadvantage, socio‑economic disparities, and historic or continuing social systems or structures) are accurately accounted for.

SLSJ views fee-free further education as a term that must be understood relatively.  It submitted that immediate realisation of fee-free further education for all would serve to benefit the advantaged in society to the detriment of the overburdened poor.  SLSJ submitted that a progressive system aimed at redress, redistribution of wealth and the provision of access to education to those most in need, implemented as a matter of urgency, was a pragmatic solution to South Africa’s harsh economic reality.

On the question of availability of resources, SLSJ submitted that it is not appropriate to read the availability of resources into section 29(1)(b) as a justification, in and of itself, that can be relied on by the state for non-fulfilment of the right but it may be considered as a component in assessing the reasonableness of measures taken.

In its submissions, SLSJ called for public involvement and transparency in the Fees Commission and stressed the importance of the role of civil society.  It called on the President to urgently consider the findings and recommendations of the Fees Commission and to report to the public on the implementation of its recommendations.

The full submissions of SLSJ can be accessed here: http://www.justice.gov.za/commissions/FeesHET/submissions/sto/2016-SLSJ.pdf

By Steve Lichti

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