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Nzimande's Amendment Act: An assault on academic freedom

Jeremy Gauntlett 09 May 2013 Jeremy Gauntlett argues that the legislation is repugnant in both a constitutional and social sense Advocate Jeremy Gauntlett SC, public lecture at the University of Johannesburg, May 7 2013 FREEDOM'S CHILDREN? INST IT UT IONAL AUT ONOMY AT SOUT H AFRICAN UNIVERSIT IES 20 YEARS ON Most of us who turned away f rom a lif e in academia can point to a def ining moment. It is when you know whether your own set of sensibilities inclines you to the lif e, or not. Or perhaps that the challenge is put in terms that def eat you. For me it was the latter. In my case, the decision was made when Sir Rupert Cross, Vinerian Prof essor of English Law and Fellow of All Souls handed back a set of collections - essays, in Oxf ord argot - to a BCL class. Although he was blind f rom birth he had the extraordinary ability to look witheringly at an audience. As he did now, to deadly ef f ect. He shook his head and said: "I know you really can't help your laziness. But you really should try to do something about your stupidity". T hat seemed to me as unattainable as it was unanswerable. I turned to practice instead. But one way or another, my lif e has remained tied to universities. I believe in the university, as simply essential to f ree thought and a f ree society. So tonight I thought I should venture with you on an appraisal of the tricky terrain suggested by the topic. I intend to conf ine it to one sub-theme of academic f reedom: institutional autonomy, now and then. More narrowly still, its relation to legitimate needs and objects of the executive on the one hand, and academic f reedom on the other. T here are many other perennial issues which arise - admissions policies, the tensions between teaching and research, the ef f ect on universities of chronic f ailure in primary and secondary education, issues of academic f reedom within universities - but these are not f or tonight. T hat is because I am mindf ul of a deadly intervention by a very great South Af rican lawyer, Sir Sydney Kentridge QC, in the Court of Appeal. His opponent was digressing. He rose in protest. An emollient judge said: "Mr Kentridge, I think we must allow him a little latitude". "My Lord", replied Kentridge, "it's not his latitude I object to. It's his longitude". I need to f orestall such a rebuke. T his is my thesis. It has f ive points to it. First, that the constitutional dispensation inaugurated in 1994 entrenches in the Bill of Rights academic f reedom. Second, that this is explicable in the light of the very particular history of academic f reedom in South Af rica - and to be interpreted with regard to it. T hird, that that history records, in particular, a resistance to academic f reedom being subservient to any notion of any greater - or indeed, dif f erent - social good. Fourth, that on to the statute books f our months ago crept however a series of statutory provisions inimical to the institutional autonomy of universities. Fif th, that, consequentially, these diminish academic f reedom - and in my view, do so unconstitutionally. But f irst you would require me to state my concept of academic f reedom. I take as my text a United States

Supreme Court opinion. Not just any opinion, but one by a celebrated legal scholar who became a great judge, Felix Frankf urter. I do so because that great judge, when seeking to def ine academic f reedom f or the United States, took it not f rom his but f rom our own country. In Sweezy v New Hampshire,[1] Justice Frankf urter said this: "It is the business of the university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which there prevail the four essential freedoms' of the university - to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study". T hose "f our f reedoms" are derived f rom the inaugural address of Prof essor T.B. Davie as Principal and ViceChancellor of the University of Cape Town. Tom Davie, in the later words of Chief Justice Centlivres, himself the Chancellor of UCT, on that occasion "set f orth his articles of f aith. T he f irst was that a university is primarily a centre of learning, the second that a university f lourishes only in an atmosphere of absolute intellectual f reedom, and the third, that the pre-eminent virtue of university lif e is intellectual integrity".[2] T.B. Davie, in articulating the f our f reedoms, stressed that their root was "f reedom f rom external interf erence in (a) who shall teach, (b) what we teach, (c) how we teach, and (d) whom we teach".[3] He concluded, in f atef ul, prophetic words: "These freedoms we value highly. Both staff and students are bound to rise in protest at the least threat to their sanctity". It is not my ambition tonight to venture into the debate over classical and contextual def initions of the concept of academic f reedom, least of all the distinctions drawn between deontological and teleological models.[4] T he Constitution gives me a surer f ooting f or legal if not philosophical purposes. I thus turn to the f irst argument in my thesis: that South Af rica since 1994 need not, as was once the case, scrabble between the f lat stones of oppressive statutes to f ind an etiolated common-law academic f reedom. It is powerf ully protected in the country's supreme law. Section 16(1)(d) of the Constitution reads: "Everyone has the right to freedom of expression which includes ... (d) Academic freedom and freedom of scientific research". Whether academic f reedom is properly classif ied under f reedom of expression is debatable. Academic f reedom, in the sense T.B. Davie delineated, clearly includes other f undamental rights entrenched in the Bill of Rights of the Constitution: f or instance f reedom of association, f reedom of movement, the right of assembly, demonstration, picket and petition and the right to choose an occupation or prof ession f reely, the right to education, regarding language and culture and membership of cultural religious and linguistic communities is also implicated. So are others. But like the United States, we have gone down the road of not only recognising academic f reedom as a constitutional right, but attaching it to what is at least a main f acet of its existence, f ree speech. To do so is not to conf ine the right, nor to deny its interwoven nature with other f undamental f reedoms. T.B. Davie saw this, believing in the unf olding of the human spirit, unconstrained by arbitrary intrusion, in circumstances in which people are most nearly able to realise their gif ts and thought is to be advanced. For that f ree speech is a necessary but not a suf f icient condition. Of course, as a constitutional right, academic f reedom is not absolute. It exists side by side with the rights of

others. It also has an interesting express internal limitation in section 16: the exclusion of what is generally termed hate speech. T hus section 16(2) provides: "The right in subsection (1) does not extend to (a) propaganda for war; (b) incitement of imminent violence; or (c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm". Aside f rom this internal limitation, there is the general limitation f or which section 36 of the Constitution provides. Like all rights, it may be limited by a law of general application "to the extent that the limitation is reasonable and justif iable in an open and democratic society based on human dignity, equality and f reedom". Various f actors are important in this regard, such as the importance and the purpose of the limitation, the nature and extent of the limitation, and whether it represents the less restrictive means to achieve the purpose of the limitation. So academic f reedom itself is now, to apply the f ashionable demotic, constitutionalised'. T here can be little doubt that the f ramers of the Constitution were aware of T.B. Davie's f our f reedoms, and meant them to serve as cornerstones, without reciting them. Especially in view of the particular history of academic f reedom, and the assaults on it, in South Af rica. T hat brings me to my second point: the particular light thrown on the ambit of academic f reedom by its recent history in South Af rica. T his entailed, in short, the resistance by those of whom T.B. Davie was one, academic f reedom being subservient to any rampant assertion of popular will or greater social good. For it is this assertion which I see as resurgent in the new statutory provisions. In the 1950s, it is of ten f orgotten, a powerf ul lobby of university principals and senate members at South Af rican universities abhorred the stance that T.B. Davie personif ied. In their concept of society, restricted by race and even by group within race, they saw themselves as both a new order - and even majoritarian. T he battle lines were sharply drawn by Dr H.B. T hom, principal of the University of Stellenbosch, in his address on "University and Society" in 1965. Stellenbosch was to be a volksuniversiteit, no ivory tower or preserve of the intellectual elite, but a mirror held up to Af rikaner society. It would be property of the people. Its science and teaching would serve its needs. Key was the notion of volksgebondenheid. T hom made clear what he meant: "(Universiteite) sal vryheid van studie, onderrig en navorsing hoogskat, maar in alles wat hulle doen, sal hul optree soos dit vir burgers van hulle eie land en lede van hulle eie volk betaamlik is. Dit moet 'n gesindheid wees wat nie van buite opgel of opgedwing word nie, maar 'n gesindheid wat vanselfsprekend is en as vanselfsprekend uitgeleef word".[5] Dr T hom's address appeared in print with a supplement by the poet Prof essor W.E.G. Louw. Louw quoted Verwoerd to the ef f ect that a reliance on academic f reedom is actually part of an alien (volksvreemde) imperialist ideology: "Enige strewe by 'n universiteit na 'n vryheid groter as sy plig en vernaamlik sy volksplig sodat hy sy volksgebondenheid wil verlon, in die naam van akademiese vryheid, ontstaan gewoonlik uit internasionale strominge wat by groot nasies begin en hul belange of ideologie moet dien. Dis nie vryheid nie, maar 'n vreemde slawerny wat die geleerdes van 'n klein volk probeer wegspeen van sy volk na onderworpenheid aan wat skynbaar universeel is". True f reedom, Louw expanded, "is geen vryheid as dit geen grens het nie ... [dit is] die vreedsaamheid van die

gemoed wat ontstaan uit sy gevoel van sy eie veiligheid".[6] Of course the prelude to the sharp divide between those who would subordinate academic f reedom to membership of a def ined society, and those who would not, was the closing of what were hitherto the open universities, notably the Universities of Cape Town and the Witwatersrand, to people of colour. In March 1957 the Separate University Education Bill was tabled in Parliament. Its purpose was to close open universities to "non-white persons" and transf er to the government the University College of Fort Hare and the "medical school f or non-Europeans at the University of Natal". Af ter passage through a select committee, transf ormed into a Commission of Enquiry during the parliamentary recess, the legislative endeavour resurf aced as a new Bill. It bore f ine Orwellian plumage. It now had a new name: the Extension of University Education Bill. Who could oppose such a noble object? It was submitted to Parliament without prior consultation with either the University Advisory Committee or the Committee of University Principals.[7] How, f or some, academic f reedom had to bend the knee to the society in which it f ound itself was perhaps most clearly articulated by the-then editor of Die Kerkbode, Dr A.P. Treurnicht. He wrote: "... die universiteit moet in die beste sin van die woord volksgebonde wees ... Van 'n algehele vryheid van denke ... kan daar dus ... geen sprake wees nie ... Dit is ook duidelik dat omdat hierdie waarhede 'n eie ingroeiing en uitlewing in ons volk gevind het, die universiteit wat midde in die volkslewe staan en daaraan diensbaar wil wees, die volkskarakter sal vertoon ... En wat ondermynende en onwettige elemente betref - vir hulle sal daar geen beskerming of plek wees nie".[8] T hus the university is an artef act of time and place; it belongs - in both senses - to its own society; it avoids conf lict with that society by being as integral to it as the heart or colon is to the body itself . And in that way the restless intellectual may f ind, in W.E.G. Louw's phrase, that peace of mind which grows f rom a sense of personal saf ety. It is a variant of that notion which, I suggest, is once again on the loose. True, not the pseudo-anthropological notion of a volk, with its atavistic evocation of Germania. But still the notion of a new order, to which loyalty is owed, and within which a personal f reedom is yet to be achieved - if (and it is a Faustian pact) it def ers to the new order. And so I turn to my f ourth point: the ef f ect of a new set of legislative provisions, the Higher Education and Training Laws Amendment Act 23 of 2012 ("the Amendment Act"). To understand their reach, and of ten bizarre provisions, it must be noted that there are (in the Higher Education Act itself ) already f ar-reaching powers of intervention f or the Minister. T hese are hinged on circumstances of serious mismanagement or f inancial malpractice. T he Minister already has the power to send in an investigator. He already has the capacity to intervene in circumstances of serious institutional f ailure. T here can be no sensible in-principle objection to such a redemptive, f ire-engine power. T he Constitution contemplates similar emergency interventions in other contexts (thus by national government when provincial departments f ail, or by provincial governments when municipalities are moribund). My objection to the amendments is simple: the f ire-engine becomes a commodious, ill-designed vehicle permitting ministerial takeover in a range of circumstances shrouded in at-times comical inept draf tsmanship. T he red light is supplanted by a discretionary blue light - will all that has come to signif y in our society. How much this is by design or the result of haste is unclear. T he Amendment Act was given the f orce of law with startling celerity. Passed by Parliament in November 2012, without (as I shall show) proper consultation

regarding material changes, it already received presidential assent on 12 December 2012, and was gazetted just a week later. What it does is to extend the Minister's power to intervene in the governance and management of higher education institutions. It authorises the Minister to issue directives to a university council if , in the Minister's opinion, the council has acted "unf airly or in a discriminatory or inequitable way towards a person to whom it [the council] owes a duty".[9] If such a council f ails to comply with any such ministerial directive, whatever the explanation and however limited either the directive by the Minister or the def ault by the council, the Minister must replace the council with an administrator with extensive powers. T he council, moreover, is thereby automatically dissolved. T hese are the more objectionable f eatures, in detail, of the Amendment Act: (a) Section 1 introduces inter alia section 27(5B) into the Act, which disqualif ies a Council member f rom reappointment if he "is implicated in the report of the independent assessor" (emphasis added). Not f ound to have committed any criminal or civil wrong by a competent tribunal. Just "implicated" - this in the view of the Minister's investigator. And so marked f or lif e. (b) Section 2 introduces section 38A, authorising the Minister to appoint "a national institute f or higher education ... with a specif ic scope or application" (emphasis added), the "particulars" of which are to be prescribed by the Minister. What these "national institutes", hovering over the universities, will do is lef t to the Minister to determine. While the establishment of an institute (of which, it appears f rom the rest of the Amendment Act, there may now be as many as the Minister wishes)[10] must be preceded by consulting the CHE, the "particulars" are prescribed by the Minister without any consultative (or other procedural) constraints. (c) Section 3 introduces section 38B, which notionally provides f or the f unctions of a national institute (i.e. inter alia "ensuring collaboration, co-ordination or collaboration and co-ordination of the work of higher education institutions and national institutes f or higher education"). If this jumble of words means anything, it is that besides collaboration "co-ordination" may be directed. As with the "particulars" of the establishment of the institute, the f unctions of the institute is (subject only to those f unctions already assigned by subsection 38B(1))[11] lef t by the legislature to be prescribed by the Minister. (d) Section 7 introduces section 38J, allowing the Minister to issue directives to the board of a national institute, f ailing compliance with which the Minister "must" dissolve the board and appoint an administrator to take over its f unctions. T he same section f urther introduces sections 38K to 38N, purporting to authorise the appointment of an administrator - upon whose appointment the board of a national institute of higher education is dissolved automatically, without any exception. T hus the (enhanced) powers of ministerial intervention in university councils are simply replicated f or the new super-entities, each with a "scope" of the Minister's ad hoc determination. (e) Section 9 inserts section 45A, making extensive provision f or investigations by independent assessors as regards universities. Despite its encompassing nature, section 45A does not properly deal with f undamental issues like open and transparent proceedings, procedural f airness, and the privilege against self -incrimination. All of these f undamental issues are either omitted, or not protected as required. (f ) Section 11 introduces section 49A, providing f or intervention by the Minister in the council of a higher education institution by issuing directives similar to those ref erred to in (d) above (which deals with ministerial intervention in national institutes). One of the most striking grounds of intervention in a council is the higher education institution's unf air, discriminatory or inequitable action towards "a person to whom it owes a duty under the Act".[12] As in the case with national institutions, any f ailure by the council to comply timeously with the directive requires the Minister to dissolve the council (without any provision authorising the Minister to extend the time f or compliance with the directive or make an exception, and without conf erring a discretion on

the Minister to impose a dif f erent or lesser remedy required by the circumstances). Section 11 f urther introduces section 49B, which provides f or the appointment of an administrator "to take over the management, governance and administration" of a higher education institution, upon which the council of that institution is dissolved automatically and categorically (section 49E). May I highlight three bases on which, in my view, the Amendment Act is open to constitutional challenge. T he f irst is that it is impermissibly vague. T he second is that it unjustif iably inf ringes the constitutional right to academic independence. T he third is that it violates the right to a f air procedure. I address each in turn. It is a f undamental principle of the rule of law that legislation may not conf er wide and unconstrained discretions on members of the Executive, without providing adequate guidelines f or the exercise of the discretion. T he rule of law, spelt out in section 1 of the Constitution as a f oundational value, requires that rules be articulated clearly and in a manner accessible to those governed by the rules. Numerous provisions of the Amendment Act conf er an unf ettered discretion on the Minister, especially those providing f or the appointment of an administrator. Firstly, the new section 49(b)(1)(b) to be inserted in the main Act does not specif y the circumstances justif ying the appointment of an administrator. Because of the f ar-reaching consequence of such appointment (not just the vesting of all powers - thus management, governance and administration - in a single person, but also the automatic and irreversible dissolution of a council), the lack of legislative guidance provided to the Minister f alls f oul of constitutional court caselaw. Sections 27(5B), 38A, 38B, 45A, 49A(1), 49B(1)(b) and 49B(1)(c) are in my view all liable to be set aside on this basis. T he second is that the Amendment Act in material respects trenches upon academic f reedom, in a manner which cannot be justif ied in terms of section 36 of the Constitution. Based on the judgment by Frankf urter J in the US Supreme Court, American[13] and South Af rican legal commentators are ad idem that the right to academic f reedom "also includes institutional autonomy".[14] It seems to me clear that the approach by the US Supreme Court is likely to inf luence a South Af rican court's approach,[15] and should be adopted.[16] On the basis of this approach, American Courts have invalidated a wide range of statutory provisions f or violating the constitutional right to academic f reedom.[17] Interestingly, there has been one prior attempt, in what we might call the constitutional era in South Af rica, to provide a basis f or State intervention in higher education institutions. In 1993 there was a plan to build this into the (interim) Constitution itself - where of course it would have been beyond challenge. T here, too, the suggestion was that the measure was necessary to empower the State to secure race and gender equality in universities. T hanks largely to the exertions of Prof essors John Dugard and Etienne Mureinik, the attempt was routed. Mureinik and Dugard compellingly argued that the proposed non-constraint clause to be inserted in the interim constitution was superf luous and, indeed, an impermissible measure allowing the State an unf ettered right of interf erence in university autonomy. Lastly, it is necessary to consider a cluster of f urther def ects in the Amendment Act which render it assailable also on the basis of the constitutional right to procedural f airness. Firstly, the Amendment Act automatically disqualif ies f or reappointment as council member any person who has been "implicated" in a report by an assessor.[18] It is not permissible to af f ect the rights of an individual merely on the basis of an "implication" of that person in a report. What is required is that a particular f inding against a person be made, and that the f inding justif ies the penalty imposed. Legislation which imposes consequences on the basis of a person merely being "implicated" per se violates the right to procedural f airness.

Secondly, the Amendment Act does not qualif y an assessor's powers to conduct an investigation with due regard to procedural f airness. At most section 45A(9) purports - "in accordance with section 3(5) of the Promotion of Administrative Justice Act"[19] - to give the assessor the power to allow legal representation. While the constitutional requirement of procedural f airness and the provisions of PAJA should be read into ordinary legislation, it is salutary f or empowering provisions to provide explicitly f or a f air procedure something which section 45A omits to do. Legislation which purports to create a f ramework f or a lay assessor to conduct an inquiry which prejudices the rights of individuals and institutions is demonstrably def icient if it does not provide procedural protections. T hirdly, the assessor is provided with an unconstrained power to exclude f rom his investigation "any person or all persons whose presence is not desirable".[20] Apart f rom being impermissibly vague, the provision unjustif iably compromises a f air procedure by excluding af f ected persons, potential witnesses and observers. T his f urther violates the constitutional f ounding values of accountability, responsiveness and openness.[21] Should there be any countervailing consideration rendering in camera proceedings justif iable,[22] the empowering provision should stipulate the circumstances which do. It is not permissible to leave f undamental procedural aspects to the discretion of an adjudicator who may not have a legal qualif ication and suf f icient experience. Fourthly, section 35A(2) f urther compromises the f airness of the proceedings by requiring a blanket embargo on any documents, record or evidence disclosed to the assessor. T his is an obvious violation of the right of access to inf ormation, f reedom of expression and open justice[23] - and it compromises the integrity of the proceedings.[24] Fif thly, article 45A(4) to (6) purports to conf er powers on the assessor to direct evidence to be provided under oath. It does not provide f or any person subjected to such directive by the assessor to invoke the privilege against self -incrimination, and does not absolve such individual f rom potential criminal liability on the basis of the evidence adduced under compulsion.[25] In similar circumstances the Constitutional Court declared a comparable provision unconstitutional f or violating the right to a f air trial.[26] T hese are detailed reasons f or concluding that, on substantive and procedural grounds, the Amendment Act is unconstitutional. More important than the detail is the resurgent notion that academic f reedom is in some way subservient to a greater loyalty to society, be it now a democratic, majoritarian one. T he volksgebondenheid, proselytised by H.B. T hom, W.E.G. Louw and A.P. Treurnicht in the passages I have cited, in a dif f erent f orm. T he suggestion that academic f reedom is a stalking horse f or nebulous imperialisms, or - then and now, liberalism', that thing f rom which mothers should avert their children's f aces - has been exhumed. Of course, academic f reedom f inds dif f erent expressions at dif f erent times. T.B. Davie's concept was much f ocused on what universities f aced then. His f ormulation is not a tablet f rom Mount Sinai. But what at all times is to be resisted are the siren voices asserting that the f our f reedoms must needs def er to a prevailing Zeitgeist, whatever its name. Tom Davie saw this. He knew he would not live to see the f our f reedoms restored in his own time. Nor, it is apparent, did he think the struggle would thereaf ter cease. T he second T.B. Davie Memorial Lecture was delivered (on 26 July 1960), af ter Davie's death, by a distinguished South Af rican historian Prof essor C.W. de Kiewiet, who had gone on to become President of the University of Rochester in the United States. In their last conversation, De Kiewiet recalls Tom Davie "with his gnarled hand on the cane, standing almost like one of your great oaks in one of your great storms, and he said: I will f ight this. I will not give in'. T hat was Tom Davie".[27] T he Amendment Act is repugnant, in a constitutional and social sense. It should not stand. T.B. Davie lef t a valediction, almost a nunc dimittis: "T hese f reedoms we value highly. Both staf f and students

are bound to rise in protest at the least threat to their sanctity". In more f amiliar words, perhaps, a luta continua. Jeremy Gauntlett SC[28] Footnotes:
[1]

354 US 234 (1957) at 346. T he f irst T B Davie Memorial Lecture, delivered 6 May 1959, p 3. Ibid, page 5.

[2]

[3]

[4] Hall "Introduction - Academic f reedom and the university: f if ty years of debate" Academic Freedom and Institutional Autonomy: Views f rom the University of Cape Town at 4, available here. Bentley, Habib and Morrow "Academic Freedom, Institutional Autonomy and the Corporatised University in Contemporary South Af rica". Report prepared f or the CHE's Task Team on South Af rican Government Involvement in, and Regulation of Higher Education, Institutional Autonomy and Academic Freedom (Council on Higher Education, 2006) at 14, 16-17.
[5]

H.B. T hom Universiteit en Maatskappy', Openingsrede Universiteit van Stellenbosch 24/2/1965 (quoted in Hertzog et al Gesprek sonder Grense: Huldigingsbundel ter ere van Johan Degenaar (H & B Uitgewers, Stellenbosch, 2006) 102).
[6]

Ibid 103. T he Open Universities in South Af rica and Academic Freedom 1957-1974 (Juta, Cape Town, 1974) 9.

[7]

[8]

A.P. Treurnicht "Universiteit en Christendom" (Die Kerkbode, 31.3.65), quoted in Hertzog et al op cit 103 (emphasis supplied).
[9]

Section 7 of the Amendment Act.

[10]

See e.g. section 3 of the Amendment Act, substituting section 38B(2) to provide f or the prescribed f unctions of each national institute f or higher education (emphasis added). [11] T hese f unctions include "provid[ing] services to higher education" (section 38B(1)(a)), "ensuring collaboration, co-ordination or collaboration and co-ordination" (as already mentioned, pursuant to section 38B(1)(b) and advising the Minister (section 38B(1)(a)). [12] Section 49A(1)(c), emphasis added. [13] Rosenthal T he Emerging First Amendment Law of Managerial Prerogative" (2008) 77 Fordham L Rev 3 at 99. For a discussion of academic f reedom f rom an American perspective, with a particular f ocus on institutional autonomy, see Schauer T he T hirteenth IRA C. Rothgerber, Jr., Conf erence On Constitutional Law: Horowitz, Churchill, Columbia - What Next f or Academic Freedom?: Is there a Right to Academic Freedom? 2006(77) U Colo L Rev 907 and caselaw there collected. See also Byrne "Academic Freedom: A Special Concern of the First Amendment'" 99 Yale LJ 251 at 313 at 314, ref erring to Regents of the University of Calif ornia v Bakke 438 US 265 (1978) at 312 and the inf luence of Dr Davie's def inition approved by Frankf urter J in Sweezy v New Hampsire.

[14] Malherbe "T he erosion of academic f reedom in South Af rica: ref lections on a battle f orf eited" 2003(2) T SAR 213 at 220. See f urther Dlamini "Limitations on and threats to university autonomy and academic f reedom" 2000(2) T HRHR 171 at 199; Smith "Constitutional and Academic Freedom" 1995(112) SALJ 678 at 680. [15] See e.g. Smith "Constitutional and Academic Freedom" 1995(112) SALJ 678 at 680.
[16]

Inter alia because the US Supreme Court's approach is closely inf luenced by South Af rican circumstances; and because the (tacit) right to academic f reedom sourced in the First Amendment to the American constitution relates directly to the right to f reedom of expression, which is the f ocus of section 16 of the South Af rican Constitution - in which the right to academic f reedom resides.
[17]

See the caselaw collected in Byrne "Academic Freedom: Special Concern of the First Amendment'" 99 Yale LJ 251 at 313 at 312-329.
[18]

Section 27(5B).

[19]

Act 3 of 2000. However, section 3(5) of PAJA deals with an alternative procedure f rom that statutorily prescribed. It does not deal with legal representation. T hus the provision makes no sense.
[20]

Section 45A(1)(c). Section 1(d) of the Constitution.

[21]

[22]

T his is an exception to the principle that inquiries into public af f airs must be prosecuted in public (which principle section 16(1) of the Supreme Court Act 59 of 1959 recognises in the context of court proceedings).
[23]

Cf Shinga v T he State 2007 (4) SA 611 (CC) at para 26; and South Af rican Broadcasting Corp Ltd v National Director of Public Prosecutions 2007 (1) SA 523 (CC) at para 32; Independent Newspapers (Pty) Ltd v Minister f or Intelligence Services 2008 (5) SA 31 (CC) at para 39-42; Director of Public Prosecutions, Transvaal v Minister of Justice and Constitutional Development 2009 (4) SA 222 (CC) at 146-150. Although these principles have been articulated in the context of court proceedings, they apply equally in the context of a public institution whose public nature (and the public interests at stake) is the purported justif ication f or State intervention.
[24]

It is no answer that the assessor retains a discretion to direct the disclosure of any document, record or evidence on application, because the def ault position is that proceedings should be open, and inf ormation f reely available. Furthermore, the assessor is not provided with any guidance by the legislature as regards the exercise of the discretion to disclose the material.
[25]

Ferreira v Levin NO 1996 (1) SA 984 (CC) at paras 158-159.

[26] Idem at paras 76, 90.

[27]

Second T.B. Davie Memorial Lecture (UCT, 1961) 1.

[28] Advocate of the High Court of South Af rica; member of the Cape, Johannesburg and London Bars, Bencher of the Middle Temple. Click here to sign up to receive our free daily headline email newsletter

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