It was abundantly clear to the high court that the present violence at the universities, almost amounting to anarchy, was not justified by any action of the government or the universities. The high court consequently declined to grant an urgent interdict because the Minister’s statement regarding university fees is clear and is not legally binding on anyone.  The Universities have not yet decided the fees and the Fees Commission is doing its work.  The President has not made any binding decisions capable of being reviewed.

“Our Constitution is based on the Rule of Law.  Without it our society will not survive, be it in its present form or any other form.  Violence can never be the solution to economic problems or the plight of the poor, which I recognise.  If I could remedy the inequities of the past, I would.  In the present instance, there is no legal basis for the relief sought by the Applicants.  I commend them for their courage, their efforts in these proceedings and the fact that they have sought relief from this Court rather than resorting to acts of anarchy.  I sincerely hope that they will one day appear before this Court, either as Attorneys or Advocates, and that the Rule of Law will guide them in their efforts.  I similarly appeal to all other students to follow the same lawful course” [para 19]. 

Matshidiso v President of the Republic of South Africa (75657/2016) [2016] ZAGPPHC 902 (12 October 2016) per Fabricius J.

Excerpts

16.     I agree with those submissions.  They are made on the basis of objective facts.  Furthermore, the 0% increase in fees referred to in 2015 occurred by agreement, and by its very nature could not have given rise to any reasonable expectation that a 0% increase would be perpetuated in future.  The definition of “administrative action” in PAJA made it abundantly clear that this plea to Universities based on solid economic considerations, was not an administrative action that could be reviewed by a Court.  It was not in the nature of a decision be it of administrative or even executive nature.  I agree.

It is of the utmost importance that the statement of the Second Respondent be properly read, properly analysed and properly understood.  If this is done, the violence and anarchy that have allegedly resulted from this statement should cease.  He submitted that violence is not contemplated as a solution to problems facing our society, be it of an economic nature or otherwise.  It was an anathema to any civilized society.

He submitted that students should contribute to solutions and not resort to violence to force either the Government, or the Universities, to take decisions which are not based on sound economic considerations.  If they do, the whole system will ultimately collapse and there will be nothing to study for, and the Applicants’ dream of one day appearing before me, as either Attorneys or Advocates, will simply dissipate into thin air.  In that context, it was submitted that it was appropriate for me to look at the application before me beyond the legal issues that arose, and to point out to every single interested party and all students, that neither the Minister of Higher Education, nor the individual Universities, have as yet made any decision that would adversely affect any student.

17.     Ms M.  Engelbrecht on behalf of the Fourth and Fifth Respondents associated herself with the argument presented on behalf of the President and of the Minister.  The Limpopo University was due to set its fees for the 2017 academic year in early November, after consultation with relevant stakeholders, and in accordance with proper procedure.  Its Council, in making the decision on fee increases, would bring into account the recommendation as well as all other relevant factors.

If the recommendation was followed, only a tiny minority of the students of the University would experience any fee increase since about 70% of the students were NSFAS students and the remaining 30% largely came from the so-called “missing middle”.  Furthermore, the University had already indicated that it would consider the circumstances of students not benefitting from the recommendation on a case-by-case basis, to alleviate their burden also.  She also submitted that, as was pointed out by her colleagues, that the recommendation had in any event no force of law.

18.     In the light of the provisions of the Constitution, the provisions of PAJA and the autonomy of the Universities to determine their own fees, which has not yet been done, there was no decision by any of the Respondents that could be reviewed by me or could be set aside.  She also submitted that the history of education in South Africa was not a matter that required debate in the present proceedings.

The Fees Commission would only complete their work by mid-2017 and all reasonable persons should await the conclusion of the work of the Committee.  I must point out that it is clear from the Applicants’ own admissions in their affidavits that the Minister does indeed not have the power to set fees.  Accordingly, the recommendation has no force of law and is not enforceable as against the University or against anyone else.

The remedy for the Applicants and for all other students in the country is to engage the Universities and all other interested parties on a calm and rational basis having regard to objective economic factors.  I agree. 

Normally, this would have been the end of the argument and I would be entitled to make an order dismissing the application without much further ado.

I was however invited, in the interests of society as a whole to go one step further than a Court would normally do in proceedings before it, and especially in proceedings in the Urgent Court.  I was asked by all Counsel to call upon each and every student in South Africa to calmly and rationally consider the statement by the Second Respondent again, if this was done it would be realized that it was in the nature of a well-reasoned plea to Universities to limit any increases up to 8%, which would then be funded by the Government. 

There was no reason for any anarchy, violence and destruction of property.  I asked Counsel whether it would be proper for me, sitting as a Court to give guidance in this context by way of explaining the meaning of the Minister’s statement and its status in law.  This I have done.  I asked all Counsel whether it would be proper of me to moralize in this judgment, if I can use that phrase, but all Counsel were in agreement that I should point out what was right according to law and what was wrong.  This I have done.

The Minister’s statement is clear.  It is not legally binding on anyone.  The Universities have as yet made no decision.  The Fees Commission is doing its work.  The President has made no binding decision.  It is abundantly clear that no action of the Respondents in this matter justify the present violence that one can observe at Universities.