The right to progressively free higher education in terms of International and South African Law

Abstract

Protest action in relation to increasing tuition fees at the level of tertiary education has become quite a regular occurrence in South Africa. It is in this context that this study ponders the question whether, in the light of international law, but also constitutional law interpreted in the light of international law, South African law and state action must recognise and implement progressively free higher education. Article 13(2)(c) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) of 1966 requires higher education to “be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education.” A proper understanding of South Africa’s international and constitutional duties in relation to free higher education requires a critical appreciation of the purport of Article 13(2)(c). The primary objective of this study is to determine whether a legal argument exists in both international and South African law for an obligation that higher education must be made progressively free. The thesis has seven chapters. Following an introductory first chapter, which “sets the scene,” the second chapter will focus specifically on the international law position regarding the right to progressively free higher education. It will examine the international right to education, addressing also primary and secondary education, to then focus on higher education. The crucial question here is whether Article 13(2)(c) of the ICESCR conceives of progressively free higher education as a mandatory instrument, or whether it is rather the goal of “equal access,” however achieved, that is legally binding. The third chapter analyses the relevance of international law to South African law and jurisprudence, in principle. It examines the different roles played by international law in South Africa under sections 39(1)(b), 231, 232 and 233 of the Constitution, 1996. Central to the discussion here is a discussion of the important Constitutional Court case of Glenister v President of the Republic of South Africa 2011 (3) SA 347 (CC), in which the court addressed the issue of the role of international law in South Africa. The fourth chapter focuses on the right to education as this is protected in South Africa under section 29 of the Constitution. Section 29(1) protects a right to “basic education” and a right to “further education.” The discussion notably examines whether section 29(1)(b) on “further education” should be considered to encompass the right to progressively free higher education. It also has a look at the relevant legislation in the sphere of higher

education, namely, the Higher Education Act 101 of 1997 and the National Student Financial Aid Scheme Act 55 of 1999, inter alia to ascertain whether the progressive introduction of free higher education is, as it were, seen to be implicitly covered by section 29(1)(b) of the Constitution. The chapter identifies the insufficiencies of the current legislative framework in so far as this relates to the progressive introduction of free higher education. The fifth chapter focuses on the ground-breaking cases of the Constitutional Court dealing with socio-economic rights, that is, the cases which laid the foundation for the adjudication of socio-economic rights in South Africa. Because the right to further education can also be categorised as a socio-economic right, a discussion of these cases is warranted, to provide guidance on the likely (and desirable) interpretation of section 29(1)(b) of the Constitution by the courts. The analysis notably discusses the impact of the doctrine of the separation of powers on the adjudication of socio-economic rights. The funding of higher education in South Africa is then analysed in the sixth chapter. The chapter examines different funding models, income streams, and the purpose of the National Student Financial Aid Scheme and its shortcomings. The chapter further explores the role of the private sector in the funding of higher education. The chapter identifies the nature of the challenges faced by students in accessing higher education because of high tuition fees. A final seventh chapter affirmatively holds that both international and South African law should be read to require the progressive introduction of free higher education. A number of recommendations to guide future state action in relation to the financial accessibility of higher education are made.