The beauty of liberal constitutional democracy means that everyone can rely on the courts to resolve battles when they feel mediation does not help.
The three students, Samantha Moloi, Linda Makhaza and Keabetswe Motaung, were all law students at Wits University when they decided to take the National Student Financial Aid Scheme (NSFAS) to court. They were all enrolled for postgraduate LLB at Wits University.
The bone of contention is the scheme declining to fund their studies.
It was not in dispute in court that on 11 March 2021, higher education minister Blade Nzimande released a media statement in which he announced changes to the 2020 guidelines for the bursary scheme.
The changes were driven by a shortfall in the budget allocated to the bursary scheme for the 2021 academic year. The result was that NSFAS was not able to commit to funding students in the same manner as before. It did not have a budget to support all its commitments.
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The Minister explained in the media statement that NSFAS could only commit to funding all returning beneficiaries of the scheme. It was unable to confirm funding for new university students. He advised that the guidelines for the 2021 university funding criteria would be published accordingly.
“The Minister released a further media statement in which he advised that Cabinet had approved reprioritisation of the Department of Higher Education and Training (DHET) budget to ensure that ‘all deserving NSFAS qualifying students’ would receive funding.
“The good news was that, in addition to funding continuing students who met the qualifying criteria, NSFAS would also be funding new students who qualified for the bursary scheme.
“The Minister emphasised that NSFAS funding was primarily provided for students registered for a first undergraduate qualification, although in the past the scheme had been extended to ‘some limited second qualifications in key areas.
“In 2021 there would be no funding for new entrants in second or postgraduate qualifications, as these qualifications were the responsibility of the National Research Foundation. However, students that were already registered (continuing) for postgraduate degrees would still be funded if they met the qualifying criteria,” the court heard.
Prior to registering for the two-year LLB programme, Samantha had been studying for a BA (Law) degree at the same University, from 2018. After completing the BA (Law) degree, in 2020, she proceeded to register for the two-year LLB degree at the start of the 2021 academic year. She did so without applying to NSFAS for funding for the LLB degree.
She believed, as she stated in her founding affidavit, that she would be automatically funded by the scheme, given that, that was the only avenue through which to attain LLB at Wits University at the time. Her belief stemmed from the 2020 guidelines in terms of which the LLB degree was one of the exceptions from the rule excluding postgraduate qualifications from NSFAS funding. She only learnt in March 2021 that the postgraduate LLB had been defunded.
Keabetswe was in the same boat, except that he was in the first year of the three-year programme when the 2021 guidelines were published. Linda was in the second year of the three-year LLB studies in 2021. Despite having been approved for NSFAS funding with effect from 2020 she was advised by the University that NSFAS was not funding her for 2021, and that she would have to refund all the fees that had been paid by the scheme on her behalf, from 2020.
The students sought an order saying that the decisions by the Minister and NSFAS reflected in the media statements and the 2021 guidelines, be reviewed and set aside, in as far as they provided for the defunding of postgraduate qualifications.
When the matter went to the high court, the court ruled in the students favour, and NSFAS took the matter up on appeal and the Supreme Court of Appeal (SCA).
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“The Minister’s concurrent decision to discontinue funding of the second undergraduate and certain postgraduate qualifications are reviewed and set aside only to the extent that they relate to the LLB programmes,” the Pretoria High Court said.
The Minister contended that the order of the high court was an encroachment on the executive powers and functions of the national cabinet.
The SCA says the high court misconstrued the premise for the development of the eligibility criteria and guidelines, which was statutory policy-formulation of the same character as the input and acquiescence to the guidelines by National Treasury, the Minister of Finance and the National Cabinet.
“In my view, considering all those factors, the high court erred in setting aside the decision by the Minister and NSFAS to redirect the funding in the manner explained above. It must also be emphasised that, even without change in policy, the current respondents had not met the criteria as indicated.
“In the result, the appeal must succeed. Given that the students were asserting their constitutional rights to further education as provided in section 29 of the Constitution, there will be no costs order against them.”
