By Sabelo Bongani Ndlovu

The practice of withholding certificates as an inducement to settle student debt is a thorny topic. We are all aware of the crisis; let us not waste space on scene-setting, anecdotes, and statistics. To keep the discussion brief and focused, indulge me and let us hone in on the withholding action taken by public institutions, looking exclusively at domestic experience and practice.

Is there a legal basis for the practice?

The Higher Education Act 101 of 1997 (HEA) grants the Minister of Higher Education, Science and Technology the authority to determine higher education policy. An institution also has the capacity – subject to ministerial approval pursuant to ss 33 and 34 of HEA – to set policies and rules that regulate its internal affairs, especially as pertaining to the relationship with its students. Those policies and rules are, however, not exempt from compliance with the Constitution or with any other laws flowing from constitutional imperatives.

Usage reveals that institutions assume the existence of an institutional right to withhold certificates, but does such a right exist in fact and, if so, do any parameters apply to the exercise thereof?

Section 65B of HEA, which deals with the awarding of diplomas, certificates, and degrees is silent on the supposed right to withhold. Nor does s 65BA, entitled ‘Withdrawal and revocation of degree, diploma, certificate or other qualification’, expressly provide for the withholding of qualifications once earned.

One possible origin of such a right is a notional contract between the institution and the student in terms of which the institution provides an education to the student in exchange for and on condition of, among others, the student’s timely payment of fees and conformity with the institution’s code of conduct. A student is made to sign a raft of documents from various administrative departments. These may include agreements in acceptance of a placement offer, enrolment and registration agreements, agreements in respect of occupation of a residence, and fee payment structure undertakings. This last category is the obvious refuge for institutions: Most now explicitly list the prevention of a student from receiving their certificates among the harsh consequences a student may face should they have an outstanding balance upon exit. Still, there is scope to argue against the existence and validity of a coherent education contract (lack of a single document or oral agreement or demarcation of the totality of documents that constitute it, the essential elements of such a contract have not been described, students endorse fee policies by force of coercion). Its enforceability is a matter apart.

Assuming the basis of the disputed right lies in the contract, recall that Beadica 231 CC and Others v Trustees, Oregon Trust and Others 2020 (5) SA 247 (CC) and related jurisprudence direct us to scrutinise a contract incorporating the right in the light of public policy. A contract must be infused with the spirit of ubuntu – an incident of public policy as embodied by the Constitution. This simply means that contracting parties must deal fairly with one another, paying attention to the personal circumstances of a counterparty with a view to performing compassion and maintaining a peaceful symbiosis in the community. This legal imperative thus circumscribes the once near-absolute principles of freedom of contract and contractual sanctity. At the interface of these principles and ubuntu, we – and particularly the courts – must assess factors such as whether there is equality of arms between the parties, any history of socio-economic exclusion and systemic disadvantage, and whether the action of one party is likely to exacerbate the hardships faced by an indigent party. Now turning to the contract of education, the power and prowess asymmetries are self-evident. It often happens that a prospective student receives a single remotely feasible offer from the family of public institutions. Moreover, these institutions essentially stipulate the terms of study and award (unilaterally on a take-it-or-leave-it basis) to students the majority of whom come from backgrounds of modest means. It should not escape our notice either that fee policies routinely resemble the dreaded standard form contract. Ubuntu demands that a withholding right must be exercised sparingly, judiciously, and empathetically. At the very least, the enforcement thereof should not be a mechanical exercise but one that considers the peculiarities of each case, however burdensome that may prove to be.

A second proposition is that institutions hold a sort of quasi-lien (a right of retention in intangible property) over the certificates they hopefully eventually grant, which certificates are a product of the pedagogical services rendered to socialise and develop the student intellectually and professionally. But it is conceptually and morally questionable that an institution should be able to ‘possess’ a person’s education or to detain evidence thereof.

Yet another possibility is that institutions are empowered to withhold certificates by virtue of the wide discretion they enjoy in respect of conferring qualifications. However, unfettered discretion occupies a shaky position in a social order founded on justification. If a discretionary decision to withhold a qualification is reached despite, as is true in many cases, a student having substantially satisfied the bulk of – if not all – graduation requirements, that decision is patently unfair.

Whatever the source of such a right might be, it is highly problematic that institutions enforce the right so dispassionately, frustrate the s 29(1)(b) constitutional right to further education by barring entry to continuing education, and call up student debts in a manner that effectively stunts a former student’s capacity to gather the fruits of their years of toil.

Is the withholding policy and practice defensible in our society?

Arguably, the action of withholding a qualification restricts the s 22 constitutional right to freedom to choose and pursue a career and negatively impacts on dignity (by limiting choice, inhibiting – even if only temporarily – the realisation of a person’s full potential, and – in many instances – by perpetuating indigence and consequential deprivations). It stands to reason that the ability to invade these rights cannot be implied or tacitly read into either the HEA or any fee policy.

Assuming that the right to retain a qualification exists, would the limitation that this right visits on the countervailing rights identified above, pass constitutional muster under s 36? The limitation fails at the first step of that inquiry. As already mentioned, there is no law that explicitly imbues institutions with the right to withhold qualifications once earned. The policy of an institution is not law, let alone one of general application. Even if it were such a law, the grounds that would justify the practice – the financial integrity of an institution, deterrence of widespread default and the principle of contractual sanctity – are far outweighed by the reasons against it when the constitutional balancing mechanism is applied.

First, consider the unequal historical and contemporary distribution of resources in our society. The implications of qualification retention are many and grave:

• Denying a former student access to the tool they need to shatter the cycle of poverty by obtaining employment damns them to continuing poverty and dependence.
• A graduate who is unable to enter the workforce is a burden on their family, community and the fiscus.
• By the time an institution adopts a softer stance, permitting graduates access to their transcripts, the recruitment window for the relevant year has often practically closed.
• Withholding a qualification inflicts immeasurable harm on a graduate’s psychological well-being, both owing to emotional stress linked to the two preceding points and to moments of triumph (which milestones may be few and far between) being sapped of their joy.
• A graduate in that position is overcome with a sense of stagnation.

Second, the practice may be in tension with a crucial public objective, one that is a staple of South African political rhetoric: the value and transformative potential of education.

Third, the arguments challenging the existence of a right to withhold a qualification outlined above all militate against upholding the reasonableness of the limitation, particularly because they show how the practice may derogate from the dictates of the Constitution.

The foregoing line of reasoning coheres with the decision of the Mpumalanga Division of the High Court in Ex Parte Lindumusa Hopewell Makamu (MM) (unreported case no 304/2021, 7-10-2021) (Mashile J et Roelofse) (see Lindumusa Makamu ‘Rule 17.6.3 of the Rules of the Legal Practice Act declared unconstitutional’ 2022 (July) DR 39). Here, r 17.6.3 of the Rules made under the authority of ss 95(1), 95(3) and 109(2) of the Legal Practice Act 28 of 2014 requiring an applicant for admission as an attorney to furnish a certified copy of their degree certificate was declared unconstitutional (see Makamu (op cit)). The court’s decision was based on findings that the rule is essentially underinclusive in relation to its underlying rationale being an applicant’s obligation to demonstrate they have satisfied the LLB requirements (does not necessitate the production of a degree certificate), that the rule violates the rights of an applicant with a credit fees balance to equality, human dignity, and occupational freedom. On reflection, this does not rubberstamp a debtor student’s frustration of a creditor institution’s right to debt enforcement. It is an acknowledgement that the failure to obtain a degree certificate should not necessarily be an insurmountable hindrance in the path of a person who has completed their studies. The subtext of this acknowledgement is recognition of the fact that certificate withholding practices are unfair and harmful. A certificate is not constitutive of qualification; it is merely evidence thereof and ought not to be used to hold a former student to ransom and likely stunt their development.

What should happen?

The view that institutions should be run like a business is not without merit, but it belies two unassailable truths: education is not a commodity, but a right and educational institutions carry responsibilities beyond securing purely commercial interests. We understand these truths. That much is reflected in our approach to exclusionary fee practices in the context of basic education: paragraph 25(12) of the National Protocol for Assessment Grades R – 12, 2011 prohibits the withholding of a school report card.

I will venture a guess that loads of aspirant students prematurely throw in the towel even when they read and hear the stories of students who have been deprived of their qualifications. Furthermore, arrear and interest fees sometimes accrue to a student’s account through no fault on the student’s part, but because the National Student Financial Aid Scheme has paid late, protest action has disrupted enrolment procedures and timelines, or an institution’s financial administration is in shambles. Why this burden should be shifted onto a student is beyond comprehension.

We have seen that there is no statutory right to withhold a certificate. How is it that our legislature makes pronouncements on issues as banal as changes in the names of institutions, but omits to regulate a matter with such far-reaching consequences?

The pressures on institutions to recover debts and to maintain healthy balance sheets are immense. But the common manner of debt enforcement makes a mockery of Nelson Mandela’s assertion that education is the most powerful weapon which one can use to change the world, the state’s obligation to progressively make further education available and the country’s commitments in the international sphere, including goal 4 of the United Nations Sustainable Development Goals which stipulates that states should endeavour to ensure inclusive and equitable education and to promote lifelong learning. It is a travesty that this withholding practice – which surely feels punitive to those individuals who suffer its lashes – is allowed to persist. This hope-dashing scourge deserves vigorous public debate, ministerial intervention, and judicial treatment. We must interrogate not only its legality, but also whether it is just. For my part, I think it is cruel to hold our youth to ransom. The recognition of educational achievement ought to be decoupled from financial status. Our institutions must stop conducting themselves like loan sharks contrary to our boni mores; they must find other ways to recoup debt.

Sabelo Bongani Ndlovu BA (Hons) (Law and French) (Amherst College, USA) LLB (UCT) is a candidate legal practitioner at Webber Wentzel in Johannesburg. 

This article was first published in De Rebus in 2023 (Sep) DR 45.