The clarion call #FEESMUSTFALL

With the matric results having been released and the arduous registration process almost over, allow me to visit the question which is pertinent to those matriculants who cannot afford to enrol in institutions of higher learning and those students who have suffered the fate of financial exclusion from institutions of higher learning; without forgetting those ‘graduates’ who have met the requirements of their different qualification who however will not graduate nor get their qualification confirmation letter because of outstanding fees. A couple of years ago I read a book titled “I will try” by Legson (Didimu) Kayira, which is premised on his journey from Malawi (the county of his forefathers) to the United States of America on foot, in pursuit of attaining higher education for which he yearned. I herein cogitate on the clarion call for free quality education in our higher education institutions, and so doing I hope you do welcome my equipoise.

It is most befitting that at the onset we capture the essence of the clarion call by scrounging of the preamble of the Constitution of the Republic of South Africa, a few declarations, stating: “We, the people of South Africa, Recognise the injustices of our past …” and further adopt the Constitution as the supreme law so as to: “Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights … Improve the quality of life of all citizens and free the potential of each person …”.

Section 2 of the Constitution again declares the constitution as the supreme law of the Republic and that the obligation so imposed therein must be fulfilled. Further that the state must respect, protect, promote and fulfil the rights so enshrined in the bill of rights, section 7 (2). Section 29 speaks firmly on the right to education, which I quote with my own emphasis: “(1) Everyone has the right – (a) to a basic education, including adult basic education; and (b) to further education, which the state, through reasonable measures, must make progressively available and accessible.”

I respectfully submit that the importance of education to the continued liberation of our nation, its importance in nation building, and in maintaining the rule of law (and by consequence order) cannot be ignored nor can it be reduced to nugatory side discourse.

The Constitutional court has been petitioned on numerous occasions to adjudicate on the right to education, albeit being mainly to adjudicate on the rights that arise of section 29 (1) (a), with the most recent being the curtain call of the now former Deputy Chief Justice Moseneke, which decision will bear reference later. At no particular point, in the literature read, was the court summoned to expand on the rights as conferred in section 29 (1)(b). The position in relation the section 29(1)(a) rights is to a great extent cleared by the courts, and is well cemented. LN Murungi (in PELJ 2015(18)1) advances that the implementation of the right to basic education as set out in section 29 is not subject to the availability of resources, and accordingly has to be directly and immediately implemented, which position is also confirmed by the Constitutional court in Governing Body of the Juma Musjid primary school v Ahmed Asruff Essay 2011 ZACC 13.

The #FeesMustFall call, I must indicate, was directed at further education which is covered in terms of section 29 (1) (b) of the constitution. In the Juma Musjid Primary-matter, the court in the inverse to it assertions on the right to basic education made clear that the right to further education contained an internal limitation, which requires that the right be progressively realised within the available resources, which is further subject to reasonable legislative measures. In careful consideration of the section 29(1)(b), it is noted that an obligation rests on the state to make further education progressively available and accessible. The state has though the Higher Education Act, 101 of 1997, together with the National Student Financial Aid Scheme Act, 56 of 1999, advanced acts which would help with the realization of the right in section 29 (1)(b). It is significant to note the preamble of the Higher Education act, which notes amongst others that it is desirable to restructure and transform programmes and institutions to respond better to the human resource, economic and development needs of the Republic; and redress past discrimination and ensure representation and equal access. I bring to your attention that the act also speaks to the funding of public higher education, which position is to be read in line with possible solutions to the call #FeesMustFall.

In summary, the National Student Financial Aid Scheme is a credit scheme which lends money to students who meet particular criteria, which beneficiaries have a responsibility to repay the money to the scheme. I should also advance that I am aware that under particular circumstances parts of the loan to the students are converted to a bursary, and the remaining greater part of the loan remains as a loan. The question on whether the efforts of the government in enacting the above acts achieves the purpose of section 29 (1)(b) cannot be answered in the absolute, however inference can be draw from the call for fees to fall.

As a point in passing, the autonomy of the Universities is noted, however such an autonomy is to be read in line with Justice Nkabinde’s findings in the Juma Musjid Primary-case (paragraph 60) wherein the Justice indicated that the Trust (a private entity) has a negative constitutional obligation not to impair the learners of their right to education.

It would be reckless to consider the call #FeesMustFall without considering those who made the call together with the socio-economic position they made the call from, in a country with such a history as ours. The Freedom Charter (the founding charter of the Bill of rights and birth paper to our constitutional jurisprudence), as adopted, declares that the doors of learning shall be opened to all. Further that education shall be free, compulsory and universal, and equal for all children. In relation to further education, the charter states that, higher education and technical training shall be opened to all by means of state allowances and scholarships awarded on the basis of merits. The persons making the #FeesMustFall call are the intended beneficiaries of the declaration in the freedom charter as adopted.

As his parting contribution to our constitutional Jurisprudence, former deputy chief justice Moseneke delivered a Judgment in the matter of Federation of Governing Bodies for South African school v MEC Education Gauteng, Case CCT 209/15. We will borrow from that judgement sentiments which speak to the call #FeesMustFall call, albeit not specifically. Justice Moseneke stated that: “…teaching and learning are as old as human beings have lived…”, also noted that “ the indigenous and ancient African wisdom teaches that “thuto ke lesedi la sechaba”, the DCJ also quotes Immanuel Kant as having stated that “How then is perfection to be sought? Wherein lies our hope? In education, and in nothing else.” The DCJ also notes in paragraph 3 that “…all forms of human oppression and exclusion are premised, in varying degrees, on a denial to access to education and training. The uneven relations that marked slavery, colonialism, the industrial age and the information economy are girded, in great part, by inadequate access to quality teachings and learning.” The DCJ in the above matter summarized what necessitates the call for fees to fall; because without such a fall, the limited access to higher education perpetuates the status quo for the majority of the masses who cannot afford to pay to access higher education, and also cannot afford to be granted access through government loans, which (in the long run) result in the already destitute being even more destitute by the time they qualify and want to start a career.

Is the system as is, as at this instance, not designed to frustrate or perpetuate the struggle for the already destitute youths who have ambition to attain further education? Karl Marx’s statement: “Hitherto every form of society has been based, as we have already seen, on the antagonism of oppressing and oppressed classes. But in order to oppress a class, certain conditions must be assured to it under which it can, at least, continue its slavish existence.” I submit that this remains true today.

How then do we answer the clarion call? For it is imperative for the future of this country that we answer the call. I advance that the Constitutional court should be petitioned, in terms of section 38 to enforce the rights as set out in section 29 (1)(b). Such a petition would enable the court, to take the state to task, and would equally place on the state a burden to investigate alternatives to ensuring that the future of each citizen is secured regardless of the family they are born into. In answering the call, we are securing the future of the students, and further the future of the country. Upon such a petition, the Constitutional court would be in a better position to answer the call through section 172. In Mpumalanga Department of Education v Ermelo Hoerskool (2010), DCJ Moseneke stated in relation to section 172 that: “…this ample and flexible remedial jurisdiction in constitutional disputes permits a court to forge an order that would place substance above mere form by identifying that actual underlying disputes between the parties and by requiring the parties to take steps directed at resolving the dispute in a manner consistent with the constitutional requirements.”.

Allow me to also scrounge from Dr Ravi Zacharias, a Christian apologist’s assertions in that: “A nation has reached its lowest ebb when our children are victimized. The last vestige of civility is left when we are there to see what we do with our children.” I am aware that no right is absolute, but I submit that the limitation as asserted in section 36 should be considered carefully when dealing with the right to further quality education, mainly as it affects particular social classes.

“Rintihu rinwe ari nusi hove” one finger cannot lift a pebble.

Gastavus Chabalala (African Child)