What if #FeesWon'tFall?

Two academic years from the nation-wide #FeesMustFall students’ protests, a lot has since happened. The SABC reports that the long-awaited university fees commission, the Justice Jonathan Heher Commission, report is expected to be released by President Zuma anytime this week. However, a leaked version is reported to say that free education is not feasible, which has sparked fear of more intense student protests with a few incidents having already taken place last week: Eight University of Cape Town (UCT) students were arrested during fees-related protests and security was apparently tightened at the University of the Witwatersrand (Wits) even though the newly elected Students Representative Council cancelled their planned campus shutdown. These and the matter of students’ mental health which have recently come under the spotlight with social media inundation with suicide incidents instigated by student-pressures apparently prompted the SABC to invite newly appointed Minister of Higher Education, Professor Hlengiwe Mkhize to discuss the issues.

         At least in the interview, the Minister strikes as sensible. She expressed empathy for the student protest, but warned them against ‘diverting’ the budget further by destroying university property – thus detracting from the student agenda of a free education – and the consequent upscale of security on campuses.

         Perhaps more importantly, the Minister reproved our nation’s students (who are assumed to be intellectuals bringing to bear reason and scholarship to the crucial matter of free higher education) to contribute to (a) a solution on the fees impasse and (b) the decolonisation of higher education. Without detracting on the still very legitimate student protests for a free and decolonised higher education, the Minister’s proposition is rational and appealing for the following several reasons.

Firstly, the proposition is attractive for demanding more of students than simply throwing their toys out the cot at the first sight of the prospect of their demands not being met. It demands of students to responsibly and actively seek sustainable and holistic solutions to a national crisis, ie free higher education that is apposite to the country’s unique needs, balanced against the other major challenges we face 23 years into democracy.

Second, is the proposition’s appeal to our national consciousness, the essence of our society forged, as it is, from decades of selfless struggle for the many hard-won freedoms we now enjoy. That national consciousness, that essence, is the very altruistic nature of struggle. The collective contributions made in the continuum of generation after generation towards our country’s liberation. And an acknowledgement that our predecessors contributed to the betterment of our society under far worse pedagogical circumstances. One would like to think that the present generation of our nation’s students are not so self-centred, self-important that should the Heher Commission report say that ‘fees won’t fall’, they will adopt a ‘my way or the high way’ posture. Surely, they are better than that. Surely, they are more rational than that. More responsible and sophisticated than that. Surely we can expect more from them, so should they of themselves. Contributions to struggle are often generational with benefits only being reaped by future generations.

Another reason for which the Minister’s proposition is sensible is that it most aligns with the respect of democratic processes arising most importantly from what the Supreme Court of Appeal (SCA) has said in Hotz and Others v University of Cape Town [2016] ZASCA 159; 2017 (2) SA 485 (SCA), in a judgment written by Wallis JA for a unanimous Court. The SCA, amongst other things, held that student protest action must be undertaken within constitutional and legal bounds which duly respect the right of universities (and students) to approach courts. It is a right that has been described as ‘as being of cardinal importance and “foundational to the stability of an orderly society” as it “ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes without resorting to self-help” said the SCA, and it is ‘“a bulwark against vigilantism, and chaos and anarchy”.’[1] The SCA went further to say the following in para 62 of the judgment:

‘Protest action is not itself unlawful. As pointed out by Skweyiya J in the passage already quoted from Pilane [ and Another v Pilane and Another  [2013] ZACC 3; 2013 (4) BCLR 431 (CC)]  the right to protest against injustice is one that is protected under our Constitution, not only specifically in section 17, by way of the right to assemble, demonstrate and present petitions, but also by other constitutionally protected rights, such as the right of freedom of opinion (s 15(1)); the right of freedom of expression (s 16(1)); the right of freedom of association (s 18) and the right to make political choices and campaign for a political cause (s 19(1)). But the mode of exercise of those rights is also the subject of constitutional regulation. Thus the right of freedom of speech does not extend to the advocacy of hatred that is based on race or ethnicity and that constitutes incitement to cause harm (s 16(2) (c)). The right of demonstration is to be exercised peacefully and unarmed (s 17). And all rights are to be exercised in a manner that respects and protects the foundational value of human dignity of other people (s 10) and the rights other people enjoy under the Constitution. In a democracy the recognition of rights vested in one person or group necessitates the recognition of the rights of other people and groups and people must recognise this when exercising their own constitutional rights. As Mogoeng CJ said in SATAWU v Garvis,[ [2012] ZACC 13; 2013 (1) SA 83 (CC) para 68] “every right must be exercised with due regard to the rights of others”. Finally the fact that South Africa is a society founded on the rule of law demands that the right is exercised in a manner that respects the law.’

In instructive terms, the SCA went further to say the following, which must always be taken into consideration at any rate by protesting students, thus necessitating generous quotation:

‘[70] The evidence summarised above in respect of each of the appellants discloses that they were all engaged in the erection of the shack; they were all either involved in or parties to the destruction, damage or defacing of university property; they all participated in unlawful conduct and encouraged others to do the same. In the cases of Mr Maxwele and Mr Magida that involved actual violence and incitement to violence. These actions had the effect of interfering with the acknowledged rights of the university as set out in paragraph 30.

[71] The appellants invoked necessity as a defence to the university’s contention that this conduct was unlawful and a breach of its rights. In the court below the judge held that this defence is confined to the criminal law. That is incorrect. There are instances in relation to civil wrongs where necessity will rebut an inference of unlawfulness. Thus it would be a defence to a claim based on trespass that one was fleeing a forest fire and there was no other route to escape the flames. Extending the example, it would also be a defence to a contention that taking one’s neighbour’s water in order to fight the fire was unlawful. Here the appellants contend in argument that their conduct was necessary in the light of the university’s failure to address their concerns and the lack of transformation of which they complained.

[72] The contention must fail at the first hurdle. Necessity was not raised as a defence in the affidavits and was therefore not one that the university was called upon to address. None of the appellants alleged that they had acted out of necessity or sought to explain their conduct in terms of necessity. The history of civil disobedience by outstanding historical figures such as Mahatma Ghandi, Martin Luther King, and Archbishop Desmond Tutu, to mention but a few, is an honourable one. At times it involved breaches of the law, such as Rosa Parks’ dignified and steadfast refusal to sit on the bus in the seats reserved for Black people, or the thousands in this country who burnt the hated dompas in protest against the Pass Laws, that were imposed by an undemocratic government on an oppressed majority, and lacked any moral content. Civil disobedience by those individuals was a challenge to an unjust or oppressive political and legal system, which is not present in our constitutional dispensation.

[73] Consideration of a defence of necessity in the present circumstances would have to take into account that in our legal system government action or inaction that is unlawful is subject to judicial scrutiny. That avenue and the right to peaceful protest guaranteed by our Constitution are open to the students. Their grievances against the university, if legitimate, could also be the subject of litigation. In the present case, the court is required to adjudicate on actions, such as those of the protesters, in the light of constitutional principles and the protection afforded by a Bill of Rights, where an order was sought interdicting such conduct on the grounds of its unlawfulness. We were not asked to consider a development of the common law in terms of s 39(2) of the Constitution and, as the issue of necessity was not properly raised on the papers, it would be inappropriate for us to do so mero motu.    

[74] The attitude that all of the appellants adopted in their affidavits was that they had done nothing wrong. There was no expression of contrition or any undertaking not to engage in such conduct again. I stress that they were not being asked by the university not to engage in protest action. That the university was always willing to accept as legitimate. It was the manner in which the right to protest was exercised that gave rise to the university’s application. Counsel for the appellants indicated that he was unable on behalf of his clients to give an undertaking that they would not engage in further conduct of the type complained of by the university and held in this judgment to be in breach of the university’s rights.’

Accepting Frantz Fanon’s assertion that ‘Each generation must discover its mission, fulfil it or betray it, in relative opacity’[2] – yet another reason for which the proposition appeals, ie that students should take initiative in seeking a constructive and sustainable solution for a free and decolonised higher education, emerges from what Professor Njabulo Ndebele said at the 10th Annual Helen Joseph Memorial lecture,[3] about his generation from which the present generation, I suspect he was hinting to draw important lessons of self-reflection in protest action to complete the process through restorative action – I daresay which ideas are encapsulated in the concept of Botho/Ubuntu. He said:

‘What I do remember vividly are the student activists who in the suddenly quiet, ghostly, aftermath of a massive public protest, remained behind to clean up the war-zone streets. Many fellow protestors had left in all likelihood with the memory of their protest and the violence it would most likely be remembered for. The cleaners of the aftermath pushed, pulled, or lifted away debris that had been dragged onto the streets. They swept away paper, ashes of burnt tyres and other litter of protest. They were calm yet determined as if what they were doing was something they felt they had to do.

Why did they remain to clean up when they could have just walked away and put behind them the scene of their drama like many had done? It seemed they needed to perform a ritual act of conclusion that surprisingly invites quiet, yet potent pondering. Their actions were a quiet speech conveying a message not only to the public, but I think even more vitally, to themselves. They were activists, they seemed to say in their action, who never abandoned the power of reflection even in the heat of an intense public moment. They actively cared not only about what they thought of themselves, but also what society thought of them. The scenes in which the anger and rage of protest stood face-to-face with the potential terror of official, State violence, the public-street cleaning students seem to say, should never be the only memories to take home.

Also to take home is how at the end of what was legitimate public action is a memory of how we have to strive also to constitute or reconstitute the social public at the very moment that we feel impelled to question it. These students tell us that the social public is never to be altered in destruction and then abandoned. To restore and reaffirm the social public is the responsibility of all generations of South Africans. At all times the social public is the treasured space of community.

I think that the activists cleaning up the public space had another message to send in their actions. Destruction, they seemed to remind us, is wired heavily into the workings of the colonial that is being assailed. The assimilative nature of powerful oppressions can be reproduced by those that fight them, unwarily drawing them into a vicious cycle. Those that have been victims of the single story, can easily lose the sense of the beauty they yearn for in their struggles, and give in to the ugliness of means gone so wrong that they too can impose the single story on others as a weapon of explaining them away, thus casting away the responsibility to know them. In the public space to free the human from the historical distortions of race, South Africans need to continue to affirm their idealism.

Since the bonfire of artworks at UCT, fire as a weapon of protest has spread throughout the higher education system, and rekindled beyond. And so, when the portraits of the “colonials” have been burnt, the timeless questions remain: what is the future of the townships? What is the link between that future and schools and universities? What is the link between Sandton and Alexandra? When will the fires be tamed, and what will it take to tame them, so that new art work can be forged; to create new industries and forge inventions to meet the needs of a people in intimate dialogue with their new world? What will it take to tame fire, and to remember that fire can be a companion to invention; and that for fire to play its companion role, requires of those who use it a lot more thought, a lot more rigour in the thinking, a lot more thoughtful detail in the doing, a lot more investment in time and focus to understand the rich complexity of people living in the social realm, meeting head-on the challenge of thought and imagination stretching across time into the centuries ahead, South Africa emerging as a successful democracy?

These are questions I leave you with.’

Forgetting for the moment what the SCA said in Hotz, by so concluding his speech, Professor Ndebele inspires a critical evaluation of the proper instrumentality of violence (fire) and its destructive force in the reconstructive process of our society. The youth of 2015-2017 will find that the very proponents of democratic revolution, who they ever so often quote and assume to emulate such as Frantz Fanon and Che Guevara, to mention but two, advocated not for a senseless and misdirected use of violence. They were all steeped in a purposeful and philosophical use of violence as a matter of necessity. Remembering too that they fought counter-majoritarian, autocratic and violent colonial regimes (in light of what is stated in Hotz paras 72-73).   To Fanon, for instance, ‘Violence not only unified the colonized: it became “a cleansing force” that “makes him fearless and restores his self-respect.” It consequently provided a solution to the anxiety, the nervousness, the alienation, and the anger that Fanon diagnosed throughout his work.’[4]   Sharing a professional affinity with Fanon, Guevara, who similarly trained as a medical doctor and thus had to also wrestle with the contradiction of being a physician whilst plying violence in the advancement of a democratic revolution ‘regarded revolutionary violence as necessary, not solely for its potential strategic benefits, but also because it could be mobilised to achieve crucial ideological goals, such as the purification of values, the emergence of a new morality and the creation of a “New Man”.’[5]    But, ‘Che did not embrace violence unreservedly . . . he made a distinction between the correct and incorrect uses of violence, and underlined that rebels should refrain from using violence in certain circumstances, both attitudes based on tactical and ethical considerations. Thus, it emerges that Che had a detailed ideology of violence which occupied a central role in his thinking and combined with other factors to achieve his military, political, and ideological goals.’[6]

Based, in the very least, on the above-mentioned four justifications that suggest the Minister’s proposition to be sound, it bears to conclude that whatever the conclusions of the Heher Commission report, when it is finally released, it must of necessity herald the students’ tactful engagement with its recommendations. Whether politically through holding accountable the ruling ANC for its decision (clearly informed by its internal report) that:[7]

‘4.5.4.1 The report on the extension of the provision of free education for the poor was submitted to the Subcommittee in November 2015. It was neither adopted nor sent to the NEC for adoption. The adoption of such a policy is necessary to guide government. The policy on free higher education for all poor undergraduate level students was not finalized for adoption before the end of 2013 as directed.

4.5.4.2 The ANC resolved after the 2015 NGC that uncontrolled fee increases should be curbed in colleges and universities and directed government to put in place regulations to implement those throughout the higher education and training sector.’

Or through assuming a more self-reliant approach that draws from former Deputy Chief Justice Dikgang Moseneke’s ‘mantra’ that you are your own liberator. That one cannot merely dream about one’s revolutionary ideals. That we ought, instead, to take real and concrete steps towards pursuing and realising our legitimate goal of a free and decolonised education. Remembering also that whatever the outcome of the Heher Commission, it was never meant to be an end in itself, but a means to the end of assessing the feasibility of dispensing free higher education.

         Nothing, of cause, happens in vacuo, we thus, cannot ignore the backdrop against which the students are demanding a free education. Such backdrop is made up of importantly, in the first place, the origins of the promise of a free higher education like many other policy ideals, namely, from the ruling ANC;[8] and in the second place, the ever present juxtaposition of governmental and State Owned Enterprise corruption described graphically by Professor R W Johnson as ‘a virtual orgy of corruption and looting but also an attempt to reorganise the whole national economy so as to maximise rent-seeking opportunities for the new black elite.’[9] He cites an Ernst and Young survey of June 2014, which found that ‘South Africa was seen as the third-worst country out of 59 when it came to corruption – only Kenya and Nigeria were worse.’[10] Worst still, Professor Johnson writes of ‘The ruling culture of theft’ in relation to which he highlights the sheer fleecing of State resources that happens with utter impunity.[11] He points to the heavily blotted public sector which has been ‘vastly expanded’ ‘in order to be able to offer highly paid jobs to cadres.’[12] It is all too deplorable to entirely repeat all he says here, but suffice it to say the students’ demand for a free education under these circumstances settles their cause on an ceaselessly high moral ground when all things are considered.

         So too in relation to the notional decolonisation of spaces of higher learning, there had been clear forewarnings. As far back as 2013, two years preceding the UCT #RhodesMustFall movement, public law associate professor at UCT and political analyst, Professor Richard Calland published The Zuma years: South Africa’s changing face of power,[13] by no means an obscure publication. In which, he referred to the alarming observations of history and heritage activist Patric Triq Mellet, then a special advisor to the Minister of Home Affairs. Mellet made the observations from the vantage of having previously researched and written with Shelagh Gastrow in 2002, when working for the UCT Development Office, which had been established by Dr Mamphela Ramphele during her tenure as UCT Vice-chancellor.[14] Referring to what may be referred to as a cultural socialisation of UCT, Mellet is quoted as saying:

‘What I see is a thread where at UCT you have this breeding ground for people who will go off with not just an education but a socialisation that will accompany you through your professional life . . . this “natural” thing becomes larger than life.’

Professor Calland noted that Mellet’s argument ‘deserves attention, both for what it says about the impact of universities on society, through the professions and other institutions that they supply, and in terms of how the cultures of the universities may impact on national politics and the electoral trajectory in the longer term.’[15] For, as Mellet put it:[16]

‘UCT has very strong links with its graduates, in law and in commerce. . . . so you can get a UCT hegemony in society’.

Importantly, with reference to what we now see as questions of ‘decolonisation’, Mellet argued:

‘As UCT transforms and a majority of black middle-class kids attend it, if the faculties have not really transformed and it is married to an ideological outlook and unashamedly bats for that outlook, they will be trying to create clones.’

Such ‘socialisation’, ‘hegemony’ and ‘outlook’, although not put in these terms by either Mellet nor Prof Calland, must have of necessity been exclusively Anglo-Saxon, neoliberal, classist and quite obviously white.[17] Said Prof Calland, that what Mellet said about UCT culture, that it

‘sounds suspiciously to me like the “Oxbridge phenomenon” that my father brought me up to recognise an elitist golden thread running through Britain, one to be resisted and countermanded wherever possible.’ [18]

Whether it is fair to point such finger at UCT solely, Mellet’s response is quoted to be, that:[19]

‘UCT has a distinctive thing; there may be something like it at Wits. I travelled around the other universities when I set up Inyathelo after leaving UCT and I never came across it so strongly elsewhere. Maybe Stellenbosch from a different paradigm, more so than UP [University of Pretoria] or Potch [now University of the North West], in terms of the old-boy network for Afrikaners. If UCT is the English-speaking home for this kind of thing, then Stellenbosch is the Afrikaans one.’

Taken from these points of view – as noted above in the very least two years before the #RhodesMustFall movement – can the students’ calls for a decolonised higher education and higher learning space be faulted? Professor Calland further noted that as was the case in Britain with Oxbridge,

‘the political consciousness in respect of the elite South African universities runs deep. Unsurprisingly. Mellet – and here’s another important rub – see the potential “counter-reaction” to it a “very worrying, and leading to violence”.’ [20]

So, years before #RhodesMustFall, Mellet had forewarned against UCT’s perceived intellectually condescending ideological outlook, and prophetically said that it would end ‘in tragedy if we don’t deal with it’.[21] Once again, in view of these forewarnings which became a matter of public record, the question must be asked: Can the students be faulted?

_________________________

[1] Hotz and Others v University of Cape Town [2016] ZASCA 159; 2017 (2) SA 485 (SCA) para 39 where is cited in fn 12: Chief Lesapo v North West Agricultural Bank and Another  1999 12 BCLR 1420; 2000 1 SA 409 (CC); [1999] ZACC 16 para 22, citing with approval Concorde Plastics (Pty) Ltd v NUMSA 1997 11 BCLR 1624 (LC) at 1644F - 1645A.

[2] Frantz Fanon The wretched of the Earth (translated by Constance Farrington) (New York; Grove Weidenfeld, 1963) at 205.

[3] Njabulo S Ndebele ‘They are burning memory’ 10 Annual Helen Joseph lecture (14 Sep 2016), at: https://www.crassh.cam.ac.uk/assets/general/NjabuloNdebele_They_Are_Burning_Memory_HelenJoseph_Lecture_2016.pdf, accessed on 5 November 2017.

[4] Christopher J Lee Frantz Fanon: Towards a revolutionary humanism (Auckland Park, Jacana Media (Pty) Ltd; 2016) at 158.

[5] Nikolaos Souslous ‘The role of violence in Ernesto Che Guevara’s revolutionary and political ideology’ Che Guevara: The Making of a Revolutionary essay submitted at Department of History, University College London (2016) at 1.

[6] Ibid.

[7] ANC 5th National Policy Conference Discussion Document on Education, Health, Science and Technonoly (30 June – 5 July 2017) at 17.

[8] Ibid, and the therein mentioned earlier documents of the ANC.

[9] R W Johnson How long will South Africa survive?: The crisis continues 2 ed (Jeppestwon, Jonathan Ball Publishers (Pty) Ltd; 2017) at 108.

[10] Ibid at 109.

[11] Ibid at 109-112.

[12] Ibid at 113.

[13] Richard Calland The Zuma years: South Africa’s changing face of power (Cape Town, Zebra Press; 2013).

[14] Ibid at 396. The reported is cited: Gastrow & Mellet ‘Personal philanthropic giving amongst UCT alumni and the state of relations between the University of Cape Town and UCT alumni globally’, October 2002, endnote 19 to Chapter 15 at 488.

[15] Ibid at 399.

[16]

[17] See Jenna Etheridge ‘University culture still alienates black students - Price’ News24 (10 November 2016, 14h29) available at: https://www.news24.com/SouthAfrica/News/university-culture-still-alienates-black-students-price-20161110, accessed on 7 November 2017.

[18] Calland at 399.

[19] Ibid.

[20] Ibid at 400.

[21] Ibid.