Could government be legally forced to provide free education?

Another year and another student protest about fees. It’s getting tired, so could we maybe sue somebody and just get it over with?

The promise of free education has been one that’s been made ever since democratic South Africa became a thing.

But then again, so was housing, electricity, water, health, and the like. We were all too happy to watch that Madiba magic oversee the reconstruction and development programme (RDP) programme, roll out electricity, and improve public health, and thought that the rest, including higher education, would follow.

I mean, how much can one expect from a single administration trying to dismantle segregation?

When the Thabo Mbeki era came in, we got excited about the economic growth, improving petrol price, and thought, yes, soon free uni will be on the agenda.

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But, it was not to be.

And then it just all went to pot and the institutionalised annual national protest festival began taking shape.

The question is, however, can you sue a government for promising something and failing to deliver?

The answer? Well, kinda.

We’ve done it before in matters of housing and even ARVs, but higher education is a tougher one.

One has to provide a reason why what you’re fighting for is a public good and with graduate unemployment at a high, that might be a difficult ask, especially when dealing with public money.

What is even more of a difficult ask is where the money may come from. Government has continually successfully defended adverse policy on the basis that there is no money to fund it, and when somebody is given the task of, “I don’t care, just find the money” ridiculous unchecked results follow.

This idea of free higher education is a case in point.

Sure students are angry and rightly so. Nobody likes to be lied to by the people who are elected and appointed to “provide leadership” whatever that means.

It’s just that few people actually realise the extent of the difficulty in funding such a thing. Frankly it would be more valuable than funding the South African Airways (SAA), but we don’t even know where the money for that keeps coming from.

You only need to look at the submissions from student organisations to the Fees Commission 5 years ago (remember we had one of those?).

Student unions made compelling reasons for free education, and some even went as far as suggesting where money could come from. Would you believe that the South African Union of Students even went as far as suggesting a cutting of the wage bill and dealing with corruption in their submission?

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Along with a really smart framing against the value for money proposition of higher education, the South African Students Congress (Sasco) had a more radical idea of “investing” government pension funds topping their list, but that drives the question, what is the potential return on that investment?

In other words, other than creating more access to education, how does free education really benefit the country?

In the time when we’re desperate to create jobs and drive an economy, is it the most prudent way to pump money into the graduation machine?

Sure the graduate unemployment rate is lower than most other unemployment rates, but if even at the 2 to 4 percent it may hover around, it still represents a top tier of educated people unable to find work. This would suggest that the more people we push into that top tier, the higher that rate will go until we create the jobs to place them in.

And that’s the reality we are stuck in: students are protesting to gain resources to improve their odds of finding work that statistically will likely be unavailable, but still presents them with the best odds of securing an income.

Only those odds come at the cost of a couple of years of their lives and a couple of Rand from our taxes, or pensions if you go with Sasco.

In my student representative council (SRC) days, I had a hero in Sizwe Mpofu-Walsh, who held the presidency at UCT and legend has it that he walked into a UCT council meeting armed with tons of audited research, a plan and a viable proposition to limit fee increases in his term, and won.

I can’t imagine the work it must have taken, but to think that a small team of leaders had more considered impact than an institutionalized annual protest-fest is quite telling.

So it is unlikely that students would be able to sue the government into submission, even though it will be on the basis of promises government made.

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But honestly, I don’t want that from students. What I do want is a push to be meticulous researchers, get angry at money wasted through the hands of the state, and build plans to show the value of higher education, if there still is any, and how to fund it.

Many more people would be able to get on board if we were convinced that the fight is for more than access into the seemingly bottomless pit.

We need a better long term plan but it would appear that those who are invested don’t know how, and those who do know how, aren’t invested.

I believe it would be prudent for the protests to investigate that leadership conundrum too.

Call our leadership out for not caring, sure, but present them with a considered and implementable plan.

If you’ll excuse the sexism, there’s room here for a great Greek proverb; A society grows great when old men plant trees in whose shade they know they shall never sit.

Richard Anthony Chemaly. Entertainment attorney, radio broadcaster and lecturer of communication ethics.

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