File picture: Ekaterina Bolovtsova, Pexels
THE PRIORITISATION of first-time entry students to benefit from the National Student Financial Aid Scheme (NSFAS) at the expense of those who require a second qualification, is not a disproportionate measure, the Supreme Court of Appeal (SCA) has ruled.
Changes were made to the 2020 guidelines for the bursary scheme, driven by a shortfall in the budget allocated to the scheme for the 2021 academic year. The result was that the NSFAS was not able to commit to funding students in the same manner as before.
This caused three students, who were enrolled for postgraduate LLB studies at Wits University, to turn to the Gauteng High Court, Pretoria, as they had lost their funding to their further studies.
They challenged the defunding of the postgraduate LLB (pursued as a second qualification) under the 2021 guidelines.
The high court ruled in their favour to receive further funding, but the NSFAS subsequently turned to the SCA to appeal the ruling.
Before registering for the two-year LLB programme, Samantha Moloi had been studying for a BA (Law) degree at the same university, from 2018. After completing the 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 that she would be automatically funded by the scheme, given that it was the only avenue through which to attain an LLB at Wits University at the time.
Her belief stemmed from the 2020 guidelines under which the LLB degree was one of the exceptions from the rule excluding postgraduate qualifications from NSFAS funding. She learnt in March 2021 that the postgraduate LLB had been defunded.
The other two students were in a similar boat.
In March 2021, the minister announced changes to the 2020 guidelines for the bursary scheme, due to budget shortfalls. The result was that the NSFAS was not able to commit to funding students in the same manner as before.
Covid-19 was one of the reasons given for this. During lockdown, the scheme had to continue paying student allowances even when universities were closed.
The minister said 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”.
He said that in 2021 there would be no funding for new entrants in second or postgraduate qualifications, as the qualifications were the responsibility of the National Research Foundation.
However, students who were registered (continuing) with postgraduate degrees would be funded if they met the qualifying criteria.
The three students argued that they had a legitimate expectation that the NSFAS would fund their LLB studies, as the degree was a “professional requirement” for employment as lawyers.
They argued that, if it were not for the 2021 guidelines, they would all be eligible for NSFAS funding as they were under the 2020 guidelines.
They maintained that the minister and the NSFAS board had failed to act in a procedurally fair manner in that they had never afforded the affected students an opportunity to make representations before the decision was made.
But Judge Nambitha Dumbuza, in a concurring judgment, said that from the minister’s first media statement in March 2021, there was a likelihood that even first-time entry students were at risk of not being funded.
A few days later, he had announced that the department's budget had been approved and he had been given the scope of how the 2021 funding scheme would be structured.
Judge Dumbuza said it would have been impractical, in those circumstances, to afford the general student body an opportunity to make representations, given that it was past the usual start of the academic year and the determination of beneficiaries that had to be done.
Thus, timeous invitation for representations from potentially affected students had been unattainable.
But there had been consultations with student bodies which constituted a reasonable and justifiable form of compliance with the requirement of procedural fairness. Consultation with student representative bodies was an acceptable form of communicating with students, the court said.
In upholding the appeal, Judge Dambuza said the extent of the limitation of the constitutional right to further education, although seemingly harsh on those affected, was reasonable.