Supreme Court opinion. Not just any opinion, but one by a celebrated legal scholar who became a great judge,Felix Frankfurter. I do so because that great judge, when seeking to define academic freedom for the UnitedStates, took it not from his but from our own country. In
Sweezy v New Hampshire
,Justice Frankfurter saidthis:
"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 - todetermine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and whomay be admitted to study".
Those "four freedoms" are derived from the inaugural address of Professor T.B. Davie as Principal and Vice-Chancellor 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 forth his articles of faith. The first was that a university isprimarily a centre of learning, the second that a university flourishes only in an atmosphere of absoluteintellectual freedom, and the third, that the pre-eminent virtue of university life is intellectual integrity".T.B.Davie, in articulating the four freedoms, stressed that their root was "freedom from external interference in (a)who shall teach, (b) what we teach, (c) how we teach, and (d) whom we teach".He concluded, in fateful,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 definitions of the conceptof academic freedom, least of all the distinctions drawn between deontological and teleological models.TheConstitution gives me a surer footing for legal if not philosophical purposes.I thus turn to the first argument in my thesis: that South Africa since 1994 need not, as was once the case,scrabble between the flat stones of oppressive statutes to find an etiolated common-law academic freedom. Itis powerfully 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 freedom is properly classified under freedom of expression is debatable. Academicfreedom, in the sense T.B. Davie delineated, clearly includes other fundamental rights entrenched in the Bill of Rights of the Constitution: for instance freedom of association, freedom of movement, the right of assembly,demonstration, picket and petition and the right to choose an occupation or profession freely, the right toeducation, regarding language and culture and membership of cultural religious and linguistic communities isalso implicated.So are others. But like the United States, we have gone down the road of not only recognising academicfreedom as a constitutional right, but attaching it to what is at least a main facet of its existence, free speech.To do so is not to confine the right, nor to deny its interwoven nature with other fundamental freedoms. T.B.Davie saw this, believing in the unfolding of the human spirit, unconstrained by arbitrary intrusion, incircumstances in which people are most nearly able to realise their gifts and thought is to be advanced. For that free speech is a necessary but not a sufficient condition.Of course, as a constitutional right, academic freedom is not absolute. It exists side by side with the rights of