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Politicsweb.co.Za-Nzimandes Amendment Act an Assault on Academic Freedom

Politicsweb.co.Za-Nzimandes Amendment Act an Assault on Academic Freedom

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Published by: SCRUPEUSS on May 10, 2013
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Nzimande's Amendment Act: An assault on academic freedom
Jeremy Gauntlett09 May 2013Jeremy Gauntlett argues that the legislation is repugnant in both a constitutionaland social sense
Advocate Jeremy Gauntlett SC, public lecture at the University of Johannesburg, May 7 2013FREEDOM'S CHILDREN? INSTITUTIONAL AUTONOMY AT SOUTH AFRICAN UNIVERSITIES 20 YEARS ON
Most of us who turned away from a life in academia can point to a defining moment. It is when you knowwhether your own set of sensibilities inclines you to the life, or not. Or perhaps that the challenge is put interms that defeat you. For me it was the latter. In my case, the decision was made when Sir Rupert Cross,Vinerian Professor of English Law and Fellow of All Souls handed back a set of collections - essays, in Oxfordargot - to a BCL class. Although he was blind from birth he had the extraordinary ability to look witheringly at anaudience. As he did now, to deadly effect. He shook his head and said: "I know you really can't help your laziness. But you really should try to do something about your stupidity".That seemed to me as unattainable as it was unanswerable. I turned to practice instead. But one way or another, my life has remained tied to universities. I believe in the university, as simply essential to free thoughtand a free society. So tonight I thought I should venture with you on an appraisal of the tricky terrainsuggested by the topic.I intend to confine it to one sub-theme of academic freedom: institutional autonomy, now and then. Morenarrowly still, its relation to legitimate needs and objects of the executive on the one hand, and academicfreedom on the other. There are many other perennial issues which arise - admissions policies, the tensionsbetween teaching and research, the effect on universities of chronic failure in primary and secondaryeducation, issues of academic freedom within universities - but these are not for tonight.That is because I am mindful of a deadly intervention by a very great South African lawyer, Sir Sydney KentridgeQC, in the Court of Appeal. His opponent was digressing. He rose in protest. An emollient judge said: "MKentridge, I think we must allow him a little latitude". "My Lord", replied Kentridge, "it's not his latitude I object to.It's his longitude".I need to forestall such a rebuke.This is my thesis. It has five points to it. First, that the constitutional dispensation inaugurated in 1994entrenches in the Bill of Rights academic freedom. Second, that this is explicable in the light of the veryparticular history of academic freedom in South Africa - and to be interpreted with regard to it. Third, that thathistory records, in particular, a resistance to academic freedom being subservient to any notion of any greater - or indeed, different - social good. Fourth, that on to the statute books four months ago crept however aseries of statutory provisions inimical to the institutional autonomy of universities. Fifth, that, consequentially,these diminish academic freedom - and in my view, do so unconstitutionally.But first you would require me to state my concept of academic freedom. I take as my text a United States
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
,[1]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".[2]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".[3]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.[4]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 oRights 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 o
others. It also has an interesting express internal limitation in section 16: the exclusion of what is generallytermed hate speech. Thus section 16(2) provides:
"The right in subsection (1) does not extend to -(a) propaganda for war;(b) incitement of imminent violence; or (c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to causeharm".
 Aside from this internal limitation, there is the general limitation for which section 36 of the Constitutionprovides. Like all rights, it may be limited by a law of general application "to the extent that the limitation isreasonable and justifiable in an open and democratic society based on human dignity, equality and freedom".Various factors are important in this regard, such as the importance and the purpose of the limitation, thenature and extent of the limitation, and whether it represents the less restrictive means to achieve the purposeof the limitation.So academic freedom itself is now, to apply the fashionable demotic, ‘constitutionalised'. There can be littledoubt that the framers of the Constitution were aware of T.B. Davie's four freedoms, and meant them to serveas cornerstones, without reciting them. Especially in view of the particular history of academic freedom, andthe assaults on it, in South Africa.That brings me to my second point: the particular light thrown on the ambit of academic freedom by its recenthistory in South Africa. This entailed, in short, the resistance by those of whom T.B. Davie was one, academicfreedom being subservient to any rampant assertion of popular will or greater social good. For it is thisassertion which I see as resurgent in the new statutory provisions.In the 1950s, it is often forgotten, a powerful lobby of university principals and senate members at South African universities abhorred the stance that T.B. Davie personified. In their concept of society, restricted byrace and even by group within race, they saw themselves as both a new order - and even majoritarian.The battle lines were sharply drawn by Dr H.B. Thom, principal of the University of Stellenbosch, in his addresson "University and Society" in 1965. Stellenbosch was to be a
, no ivory tower or preserve of the intellectual elite, but a mirror held up to Afrikaner society. It would be property of the people. Its science andteaching would serve its needs. Key was the notion o
. Thom made clear what he meant:
"(Universiteite) sal vryheid van studie, onderrig en navorsing hoogskat, maar in alles wat hulle doen, sal hul optreesoos dit vir burgers van hulle eie land en lede van hulle eie volk betaamlik is. Dit moet 'n gesindheid wees wat nievan buite opgelê of opgedwing word nie, maar 'n gesindheid wat vanselfsprekend is en as vanselfsprekend uitgeleef word".
Dr Thom's address appeared in print with a supplement by the poet Professor W.E.G. Louw. Louw quotedVerwoerd to the effect that a reliance on academic freedom is actually part of an alien (
)imperialist ideology:
"Enige strewe by 'n universiteit na 'n vryheid groter as sy plig en vernaamlik sy volksplig sodat hy sy volksgebondenheid wil verloën, in die naam van akademiese vryheid, ontstaan gewoonlik uit internasionalestrominge wat by groot nasies begin en hul belange of ideologieë moet dien. Dis nie vryheid nie, maar 'n vreemdeslawerny wat die geleerdes van 'n klein volk probeer wegspeen van sy volk na onderworpenheid aan wat skynbaar universeel is".
True freedom, Louw expanded, "is geen vryheid as dit geen grens het nie ... [dit is] die vreedsaamheid van die

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