The National Student Financial Aid Scheme (NSFAS) has succeeded in its appeal bid in a dispute with Wits law students over funding a second bachelor’s degree.
No student with an undergraduate degree can therefore get NSFAS funding for a second one, regardless of the nature of that degree.
The Supreme Court of Appeal (SCA) ruled that NSFAS’s justification of budgetary constraints was adequate.
The ruling affects all South African students, not just law students, in terms of where they can seek funding. NSFAS covers the tuition fees and living expenses of more than 1.1-million students at universities and training colleges.
Higher education minister Blade Nzimande said recently that NSFAS had paid more than R1bn to university students.
The scheme funds academically deserving students from poor backgrounds, specifically for a first undergraduate qualification. Postgraduate degrees were mostly not funded.
After the Covid-19 pandemic NSFAS struggled. Furthermore, the academic year had to be extended without additional funds for that extension. This ripple effect led to the government having to implement drastic changes.
During the lockdown, NSFAS limited funding to those who had already qualified for funding previously. In 2021, it gradually allowed new applicants to get their first undergraduate qualification.
In the past, NSFAS did fund a few specific degrees as a second undergraduate pursuit, including the bachelor of law (LLB) degree. In 2021, Nzimande said there would be no secondary undergraduate funding.
Refund fees
Samantha Moloi, Linda Makhaza and Keabetswe Motaung were all studying for an LLB at Wits University during this time. All three obtained a first undergraduate degree and were pursuing a second undergraduate degree, the LLB. This was known as the “postgraduate stream” or “postgraduate LLB”, which takes fewer years — two or three, as opposed to four or five without a previous bachelor’s degree — to obtain.
All three were in the middle of, or had just started, their law studies. Motaung had received funding for 2020 but was told it would not be the case for 2021. She was also instructed to refund her fees paid by the scheme. All three challenged the NSFAS policy change to exclude funding their postgraduate LLBs.
If you are willing to fund the [normal] four-year LLB, it makes no sense not to fund the [postgraduate] two-year or three-year LLB
— Geo Quinot, Stellenbosch administrative law professor
They argued they had a “legitimate expectation” because when they first registered the new guidelines that suspended funding for postgraduate LLBs were not in place.
The high court agreed, but NSFAS took it on appeal to the SCA last year.
The SCA ruled in NSFAS’s favour last week. Writing for a unanimous court, acting deputy president of the SCA Nambitha Dambuza noted the students’ arguments were “untenable”.
“The 2021 guidelines were adopted for a legitimate government purpose,” she wrote, “which was the funding of the first undergraduate degree for each student [applicant], given the prevailing financial constraints, to enable NSFAS to fund as many beneficiaries as possible.”
She conveyed sympathy to the students for the impact of the decision, but said “though seemingly harsh on those affected, [the 2021 decision] was reasonable”. It made sense, given budgetary constraints, to prioritise “first-time entry students at the expense of those who required a second qualification”.
Insecure
Dambuza also found the expectations unreasonable because NSFAS funding of secondary degrees had always been minimal and insecure. She therefore upheld NSFAS’s appeal, dismissing the students’ claims, but made no costs order.
Speaking to Business Day in his personal capacity, Stellenbosch administrative law professor Geo Quinot said: “Typically, half of my final-year administrative law class would be in the second-degree LLB programme.”
He also said the postgraduate LLB was “important”, noting “the option to study law fully alongside another discipline cultivates interdisciplinary insights and competence that are crucial to many areas of work where law is implicated”.
Regarding NSFAS’s policy, he said the postgraduate LLB “is still a bachelor’s”.
“If you are willing to fund the [normal] four-year LLB, it makes no sense not to fund the [postgraduate] two-year or three-year LLB.”
Fellow Stellenbosch law professor Bradley Slade disagreed, saying he was “not convinced the state should fund the second degree in the current climate”. While acknowledging its importance, prioritising those without even one degree made sense, he said.
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