University of Cape Town and Another v Ministers of Education and Culture (House of Assembly and House of Representatives) and Others

• Jurisdiction: South Africa
• Judge: Howie J, Nel J and Conradie J
• Judgment Date: 03 March 1988
• Citation: 1988 (3) SA 203 (C)
• Court: Cape Provincial Division

Howie J:

These applications concern the validity of certain conditions G imposed purportedly in terms of s 25 of the Universities Act 61 of 1955 in relation to the grant of subsidies.

The applicants sought an order declaring the conditions invalid. At the conclusion of the hearing such an order was granted in each application, with the costs to be paid by first and second respondents H jointly and severally in each instance. It was intimated that reasons for this decision would be filed later. Those reasons now follow.

The applications were opposed by the Minister of Education and Culture of the relevant House, as first respondent, and the Minister of National Education as second respondent. In the application of the University of I the Western Cape the third respondent, the Minister of Home affairs, abided the Court's decision.

The conditions were imposed by first respondent in identical form on all South African universities following a meeting between representatives of the universities and representatives of the Government. In their English form, the conditions read thus:

J 'Conditions determined under s 25(1) of the Universities Act 61 of 1955

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A 1. The Council of the (University) shall within the scope of the powers and duties conferred or imposed upon it by law with regard to the government and the general control of the affairs and functions of the University, take steps directed towards -

(a)

the prevention of wrongful or unlawful interference with, intimidation of, or discrimination against students or staff members of the university in the pursuit of their normal and lawful B activities as such students or staff members;

(b)

the accomplishing of the undisrupted and undisturbed continuance of the teaching and research activities and of all related supporting activities of the University in accordance with a predetermined academic calendar as determined by the responsible authority of the University;

(c)

the deterring on the premises of the University of gatherings which C are unlawful by virtue of the provisions of any law, the boycotting of classes or examinations or any other disruptive conduct;

(d)

the prevention of staff members or students of the University or other persons from using -

(i)

any supplies (including stationery);

(ii)

any equipment (including vehicles, office equipment, printing D presses, recording equipment, sound amplifying equipment or notice boards);

(iii)

any buildings; or

(iv)

any land improvements other than buildings,

of the University for any of the following purposes, namely:

(aa)

the promotion of the aims or public image of any unlawful E organisation as defined in s 1 of the Internal Security Act 74 of 1982;

(bb)

the promotion, support or organising of a boycott action against -

(aaa)

any particular firm or against firms of any particular nature, class or kind;

(bbb)

any particular product or article or against products or articles of any particular nature, F class or kind; or

(ccc)

any particular educational institution or against educational institutions of any particular nature, class or kind;

(cc)

the incitement or encouragement of members of the public to stay away from work or to strike in contravention of the provisions of any law;

(dd)

the promotion, support or organising of any campaign of civil disobedience in terms of which members of the public are G incited or encouraged, or which is calculated to have the effect of inciting or encouraging members of the public to refuse to comply with or to contravene a provision of, or requirement under, any law;

(ee)

the printing, publishing or dissemination of any publication in contravention of a notice issued under s 5(1) of the H Internal Security Act 74 of 1982; or

(ff)

the commission of any act which endangers or which may endanger the safety of the public or the maintenance of public order;

(e)

ensuring that disciplinary steps be taken against any student or staff member who, to the satisfaction of the responsible disciplinary body, is found to have -

(i)

been guilty of conduct constituting interference or I intimidation or discrimination or an attempt at interference or intimidation or discrimination as contemplated in para (a) ;

(ii)

been guilty of conduct which disrupted the teaching, research or related supporting activities contemplated in para (b) ;

(iii)

organised, promoted or taken part in any unlawful gathering, boycott or other disruptive conduct contemplated in para (c) ; J or

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(iv)

A used any supplies, equipment, building or land improvement referred to in para (d) (i) - (iv), inclusive, for any of the purposes set out in para (d) (aa) - (ff) inclusive;

(f)

ensuring that disciplinary steps be taken against any staff member who is found, to the satisfaction of the responsible disciplinary body of the University, on proof furnished by the B Minister of Education and Culture at any place to have committed any act of which the Council is notified by the Minister, which constitutes an act in respect of which the Council is in terms of these conditions required to take preventive or disciplinary measures;

(g)

ensuring that disciplinary steps be taken against any student or staff member who, to the satisfaction of the responsible disciplinary body, is found to have at any place intimidated any other student or staff member; and C

(h)

ensuring strict compliance with the provisions of s 17 of the Joint Statute of the Universities regarding the submission of a certificate of conduct by a student who was previously registered at another university: Provided that the University shall not register any student who has been expelled from another university on the grounds of misconduct contemplated in paras (e), (f) and (g) above as long as such expulsion is of force and effect. D

2. Any incident of unrest or disruption or any other occurrence against the happening of which the preventive measures contemplated in para 1(a) - (c), inclusive, are directed, involving the University or a student of staff member thereof and of which the Council is aware or which has been brought to the attention of the Council shall be notified E to the Minister of Education and Culture in writing within 21 days of the date on which it took place, or in the event of such incident or occurrence coming to the notice of the Council only after the expiration of such period of 21 days, within such further period, not exceeding 21 days, as the Council can conveniently so notify the Minister. Should the Council not be in a position to comply with this requirement within the stated period, the Council may request an extension of the aforesaid period.

F The notification of the Council shall be accompanied by an explanation of the circumstances giving rise to the incident or occurrence, as well as by a report submitted by or on behalf of the Council setting forth what steps, if any, were or are to be taken in respect of the incident or occurrence, including disciplinary steps and what steps, if any, are intended to be taken in order to prevent a recurrence of similar incidents or occurrences in the future.

G On receipt of such a report the Minister will notify the Council of his finding whether the Council has complied with the above conditions. If the Minister finds that any condition has not been met, the Council will be notified accordingly, the reasons for any finding will be given and the Council will be afforded 21 days to furnish the Minister with a submission relating to the finding.

If the submission fails, the formal procedure in terms of s 27 of the H Universities Act 61 of 1955 will commence.'

In imposing the conditions first respondent stated that they would come into effect on 19 October 1987 and would remain in force until further notice.

Applicants' counsel attacked the validity of the conditions on three I grounds:

(1)

their imposition exceeded the powers conferred by the Legislature in s 25 of the Universities Act;

(2)

they are so vague that they do not convey with reasonable certainty what applicants are required to do in order to avoid J non-compliance and its consequences; and

Howie J

(3)

A they involve unreasonably oppressive or gratuitous interference with applicants' rights.

Although, according to the categorisation usually employed in the branch of law which governs this matter, all three grounds could be regarded as falling within the ambit of the ultra vires doctrine, it is ground (1) which raises ultra vires in the strict sense and it is in the latter B sense that I use the term in what follows.

As to ground (1), s 25 of the Universities Act provides:

'Subsidies to universities.

(1) The Minister, in consultation with the Minister of Finance, may out of moneys voted by Parliament for the purpose grant subsidies to universities in respect of capital and normal recurrent expenditure for C such purposes and on such basis and subject to such conditions as may, in respect of each university, be determined by the Minister and with due regard to the requirements of each university in relation to the general requirements of higher education in the Republic.

(2) Conditions determined by the Minister under ss (1) may (except in the case of the University of South Africa) include conditions subject D to which persons of a population group or population groups mentioned in the conditions other than that of which the student body of a relevant university mainly consists on the date of coming into operation of s 9 of the Universities Amendment Act, 1983, may, notwithstanding the provisions of any law to the...