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The FXI has made a submission to the the UKZN Governance and Academic Freedom Committee, established by the university's Council. The purpose of the Committee is to investigate and make a finding on whether the university's governance systems have violated academic freedom. The Committee was set up after the recent controversy over the disciplinary action against two UKZN professors, for criticising the university in the media and releasing confidential Senate information.
Submission to Committee on Governance and Academic Freedom at the University of KwaZulu/ Natal
Freedom of Expression Institute
INTRODUCTION
The Freedom of Expression Institute (“FXI”) thanks the Committee on governance and academic freedom for the opportunity to make the following submission, which we must stress, is a preliminary submission. The main purpose of the submission is to summarise our concerns about how a number of controversial matters have been dealt with. These matters are as follows:
• Disciplinary proceedings against Fazel Khan
• Disciplinary proceedings against Evan Mantzaris
• Defamation claim by Dasarath Chetty against Jimi Adesinah
• Disciplinary proceedings against John van den Berg and Nithaya Chetty.
The Committee has requested evidence of instances where academic freedom may have been violated. In the case of Khan, Mantzaris, van den Berg and Chetty, the charge sheets from their disciplinary hearings are sufficient evidence of the threats to academic free speech, as are the court papers and magistrate’s court judgment in the case of Adesina.
The FXI further requests an oral hearing so that we can elaborate on the following areas:
• Alternative dispute resolution forums for utterances made by UKZN staff in the media, including the use of an academic ombud type office;
• Circumstances under which disciplinary action for speech related misconducts may be warranted against UKZN staff;
• Review and inclusion of the rules and regulations on information confidentiality and media policy within the University in the employment contracts entered into by between the University and its employees.
Composition of Committee
At the outset, the FXI must note its deep reservations about the composition of the Committee, as well as the tone of the statement released by the Chairperson of Council, Mac Mia, when announcing the establishment of the Committee. This statement will undoubtedly compromise the Committee’s work, by insinuating that academic freedom is not under threat at the University, and that those who suggested that it is, constitute ‘a ‘small minority of dissenting voices’. Mia’s statement belittles the very problem the Committee is set up to investigate, and preempts the Committee’s findings by ensuring the public that no suppression of academic freedom has taken place.
With respect to the composition of the Committee, ideally the Committee should have included individuals who are external to the University, rather than being a Council-constituted Committee. According to the terms of reference of the Committee, the enquiry focuses on the extent to which the University’s governance structures foster or hinder academic freedom. Potentially this enquiry could require the Committee to investigate the role of Council. Rightfully, the Committee should have been established independently of Council, with Council participating as a witness, so that the conduct of all role players could have been investigated. As things stand, the FXI fears that some individuals may decide not to participate in the enquiry out of fear that they will not get a fair hearing, and as a result the enquiry will not be able to get to the bottom of the problem.
Freedom of expression and academic freedom in the South African constitution
Section 16 of the Constitution reads as follows:
16. Freedom of Expression
(1) Everyone has the right to freedom of expression, which includes —
(a) freedom of the press and other media;
(b) freedom to receive or impart information or ideas;
(c) freedom of artistic creativity;
(d) academic freedom and freedom of scientific research.
(2) The right in subsection (1) does not extend to —
(a) propaganda for war;
(b) incitement of imminent violence;
(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.
Academic freedom is a subset of freedom of expression. The fact that academic freedom is mentioned in s.16 implies that this right is considered important enough to be given emphasis, and that it is considered to be at the core of the right. This means that the courts will be extremely reluctant to limit this right, as it is considered high value speech, and they may afford it higher levels of protection than other forms of expression. In fact, it could be argued that people who devote their lives to the development of knowledge – as the producers and conveyors of ideas – must be given greater protection for their freedom of expression than ordinary members of society, as knowledge production cannot flourish in a climate of censorship.
In our view it is clear that the right to academic freedom applies to institutions and individuals. This right cannot be enjoyed by institutions alone as the section is clear that ‘everyone’ enjoys this right and is equal before the law.
Only a narrow range of speech does not receive constitutional protection, namely the forms of speech identified in s.16(2). The Film and Publications Act prohibits an even narrower range of expression than the constitution, as it contains three important exemptions to the prohibition in s.16(2): (a) a bona fide scientific, documentary, dramatic, artistic, literary or religious publication, film, entertainment or play; (b) a bona fide discussion, argument or opinion on a matter pertaining to religion, belief or conscience; and (c) a bona fide discussion, argument or opinion on a matter of public interest.
It is unlikely that academic speech would involve propaganda or incitement. Furthermore, in the case of published speech, such speech would have to fall outside the exemptions contained in the Film and Publications Act, to qualify for a limitation. This means that the grounds for prohibiting academic speech of a public interest nature are very narrow indeed.
There are other recognised grounds for limiting speech, including defamation (providing that none of the defences are available), privacy (providing the public interest defence cannot be invoked), instances where freedom of expression may prejudice the administration of justice, intellectual property restrictions, child pornography and a narrow range of adult pornography, national security restrictions and prior restraint.
Conceivably, there are also instances when employees may stand accused of bringing their institutions into disrepute, or prejudicing the smooth running of their institutions. Yet even in ordinary employment situations, our courts have consistently upheld the right of workers to engage in speech critical of their employers, most famously in the 1999 Constitutional Court case of SANDF Union vs Minister of Defence. In the 2006 case of Costa Gazidis vs The Minister of Public Service and Administration, the Pretoria High Court found that Dr Gazidis’ criticism of government’s policy in the media, including his utterance about the Minister of Health, did not amount or constitute prejudice to the administration of the department. Dr Gazidis described the Minister’s policy on HIV/ Aids as ‘genocidal’. He was reinstated.
In 2006 the FXI successfully intervened as amicus curiae in the CCMA case of Vusi Sibeko, a member of the Commercial, Services and Allied Workers’ Union (Cosawu), who was dismissed for writing an article in the newspaper of the Democratic Socialist Movement that was critical of working conditions at Superspar, his employer. Sibeko won his case for unfair dismissal at the CCMA. His employer, the Royal Ascot Superspar in Cape Town, was ordered to reinstate Sibeko and pay five months of back pay. The case became a cause celebre for labour organisations both locally and internationally and Superspar attracted much criticism in the media.
Striking a balance between an employee’s right to free speech in the workplace on the one hand, and the company’s/ institution’s right to its reputation on the other, requires a delicate balancing of the parties’ rights, taking into account all the facts of each specific case. As a guideline, it is our view that, firstly, each case must be determined on its own merits, and secondly that any conduct involving the disclosure of information that is absolutely vital to the operation of a University, the disclosure of which would materially and irreparably affect the smooth running of the University and cause irreparable harm to a University’s reputation or functioning, and where no public interest defence is available, may constitute an infringement of a University’s rights as aforementioned.
None of the reasons mentioned above should be used to cloak illegal and unethical activities on the part of a University or its management. Nor should any confidentiality rules as contained in each employee contract or in any rules or policy of a University, be used as a front to deny the public knowledge of the proper functioning and accountability of the institution as it is largely funded from the public purse.
Definition of academic freedom
The FXI agrees with the following definition of academic freedom, taken from the UNESCO 1997 rcommendations on the rights of higher education teaching personnel, that it is the right, without constriction by prescribed doctrine to freedom:
• of teaching and discussion;
• in carrying out research and disseminating and publishing the results thereof;
• to express freely their opinion about the institution or system in which they work;
• from institutional censorship;
• to participate in professional or representative academic bodies; and,
• to participate in legitimate labour organisations and industrial actions without prejudice to the status of their academic or research freedom rights.
This means that academic freedom would cover not only the ‘core business’ of teaching and research, but comments concerning their conditions of service and the administration of the University, being the mechanism though which academics exercise their right to free academic speech.
Perhaps the most difficult issue is how institutions should approach the question of ‘extramural’ expression, namely those comments made by academics that are not directly related to their area of expertise. The FXI is loathed to consider such utterances as outside the framework of academic freedom, as academics should be expected – as part of their public intellectual role – to profess on general matters of public importance, and not just on issues specific to their discipline. The test for whether such speech should be covered under academic freedom is whether scholarly method has been applied to the comments, and whether the public interest is served by these utterances. (Our view in respect of the definition of public interest can be canvassed at the hearing of this matter).
The FXI associates itself with the recommendations of a recently released report on institutional autonomy and academic freedom in South Africa, written by a Task Team established by the Council on Higher Education (CHE). The authors of the report argue that if academic freedom is to be realised, higher education institutions must 'protect the freedom of expression of academics...from undue sanction by their own institution'. This means affording academics the space to espouse unpopular views on general matters or even in relation to the university administration, without threats of disciplinary action. The report also notes that 'Senates, as institutional bodies, are bound to uphold the right of individual academics to freedom of expression and freedom of scientific research'.
Academics should be dismissed only if it can be proved that their utterances make them clearly unsuitable for the job, and this evaluation should be made by academics themselves – rather than administrators - through a system of peer review. It should be noted that, historically, the purpose of academic freedom was to place academia above the vagaries of employer-employee relations, so that knowledge production could take place under conditions of job security. The test for dismissing academics should therefore be a strict one indeed.
Media freedom and academic freedom
As the freedom of enquiry is central to the mission of the university, it is important that the university takes steps to protect the expression of particular views by their staff, including unpopular views. In fact, universities should be required – on pain of sanction – to uphold the academic freedom of their staff. This includes the expression of these views in the media.
Blanket prohibitions on staff speaking to the media would be unconstitutional. For instance, in his communiqué to the university community on 5 December 2008, Vice-Chancellor Malegapuru Makgoba referred to an university-wide notice by the Acting Vice-Chancellor, Professor Mazibuko, ‘instructing’ all members of the university community including Council members ‘not to make statements to the media concerning university matters’. If such a circular was enforced, then it would constitute an infringement of the right of academic staff ‘…to express freely their opinion about the institution or system in which they work’.
The FXI would like to amplify the argument made by the South African National Editor’s Forum (SANEF) that the disciplining of staff for speech-related misconducts will have an undesirable effect on the free flow of information. In their press statement of November 12, 2008, SANEF argued that one result of disciplinary action will be that ‘…employees stop voicing their complaints - leading to an unacceptable drying up of sources of information and thus public interest issues being kept secret. Another outcome is that such people supply information on the strict condition that their identities are protected by the media which leads to an undesirable increase in stories based on information from confidential sources’.
Universities and openness of meetings
According to the FXI, universities are organs of state. This means that they exercise public power or engage in a public function in terms of underlying legislation or constitutional provisions. As such, the Bill of Rights applies to universities, and they must respect, protect, promote and fulfil the rights in the Bill of Rights. These include the rights to freedom of expression and access to information. In terms of the Bill of Rights, everyone has an unqualified access to information held by organs of state.
The right of access to information is qualified, though, in the Promotion of Access to Information Act (PAIA), which gives effect to the constitutional right by providing for procedures to access records. It should be noted that it does not provide procedures for accessing information that is not contained in records; be that as it may, it does provide some useful guidelines when it comes to appropriate grounds for non-disclosure of information. Broadly, three grounds are recognised for non-disclosure: privacy, national security and the operations of public bodies.
With respect to privacy, it is important to note that PAIA only prohibits unreasonable disclosure of personal information, which should involve an examination of the strength of a third party’s privacy interests, the nature of the record and the importance of the purpose for which confidentiality is requested.
Information may also not be disclosed if such disclosure could reasonably be expected to cause prejudice to the defence, security or international relations of the country.
Records may also be refused if the record relates to the operations of a public body; the intention here is to ensure that the deliberative process with respect to policies is not frustrated, and that candid exchange of views is not inhibited. While the FXI has reservations about the constitutionality of this clause, as it is overbroad, it should be noted that the clause can be read restrictively. Firstly, the clause only protects pre-decision, and not post-decision documents. But if pre-decision documents are incorporated into decision-making, then they are no longer protected. Also, the restriction should apply only to documents containing opinions, not facts. This restrictive interpretation is necessary to ensure that the principles of open government are adhered to. There is a public interest override in the Act, although the override is inappropriately narrow and needs to be amended.
According to the Vice Chancellor’s circular of 5 December 2008, s2.6 of the Draft Code of Conduct on maintenance of confidentiality states, ‘Members of Council shall respect and maintain the confidentiality of Council meetings and any other university meetings and may not make improper use of information acquired at any such meetings. Members shall respect the security of information of the Council and the university’. It should be evident from the cursory discussion of PAIA, that the Act does not support blanket confidentiality of records relating to meetings, and could be extrapolated to refer to all information concerning university meetings (not just records).
The FXI supports the suggestion that the Senate agenda be divided into restricted and unrestricted parts, and that guidelines be developed to determine legitimate grounds for limiting information flow about the restricted parts.
Recent cases at UKZN
These observations are now applied to the specific cases:
• Disciplinary proceedings against Fazel Khan
In 2007, UKZN academic Fazel Khan was accused of distributing false information to the media, for supposedly lying to the media about his exclusion from an article in the University’s publication, the UKZNdaba. A report on the article appeared in the Mail and Guardian newspaper, followed by articles in the Witness and the Mercury newspapers. By doing this he was accused of bringing the UKZN into disrepute. The article concerned a film that he worked on with another UKZN staffer, Sally Giles, who was also responsible for the cropping of the photograph. In several newspaper articles, Khan implied that the UKZN management had played a role in his exclusion, as revenge for his role in a staff strike early in 2006. He was given a final written warning on this count, but was dismissed for allegedly leaking confidential information to the media.
Unfortunately, in the finding of the disciplinary hearing, insufficient consideration was given to whether Khan’s statements were reasonable and in the public interest, even if he could not prove their factual accuracy. A analysis of the evidence presented in the disciplinary enquiry has been undertaken by the FXI’s Executive Director, Jane Duncan, in a lecture entitled ‘The rise of the disciplinary university’, so the details will not be repeated here (http://www.fxi.org.za/content/view/85/1/). Suffice to say that false statements are constitutionally protected; admittedly, they do not receive as much protection as true statements, and may be more easily overridden by countervailing interests.. But if false statements made in good faith were not constitutionally protected, we would be returning to the dark apartheid-era days of strict liability, where people would self-censor their speech for fear of reprisals for making mistakes.
• Disciplinary proceedings against Evan Mantaris
Mantzaris was Professor of Sociology and Chairperson of the staff union, the Combined Staff Association (Comsa). He was suspended from his position in the School of Sociology in March 2007, pending a disciplinary hearing. The FXI is made to understand that Mantzaris has reached a settlement with the university.
At the time, there were four charges levelled against him; charges 2 and 3 in the letter that was sent to Mantzaris by Deputy Vice-Chancellor Zacharias have been of particular concern to the FXI as they related to his freedom of expression. The FXI did not comment on the other charges, as they fell outside the Institute’s mandate.
Charge 2 alleged that Mantzaris ‘engaged in a concerted campaign to bring adverse publicity to the University and / or some members of staff, with respect to the “unbanning “of Dr Ashwin Desai’. The letter also claimed Mantzaris conducted this alleged campaign ‘with other members of the University from the University premises and using University equipment’. While the letter did not specify what the elements of the campaign were and how exactly Mantzaris was supposed to have caused ‘adverse publicity’, the FXI learnt that this referred to Mantzaris’ vocal support of Desai – mainly through media statements – and arguments against the stance taken by the university that Desai was banned from working at UKZN.
If academics are not allowed to support each other in terms of their right to conduct academic work and if their support – as in this case – is subject to disciplinary action, then this violates academic freedom and, by inference, freedom of expression.
The third charge against Mantzaris accused him of having ‘produced and published defamatory letters about the Vice-Chancellor (VC) [Malegapuru Makgoba] and other members of staff’. The ‘defamatory letters’ referred to letters criticising Makgoba that were published in local newspapers. Makgoba accused Mantzaris of being the secret author of the letters, even though they did not bear the latter’s name. Professor Zacharias also cited correspondence sent by Mantzaris to Makgoba, in which he accused the VC of ‘conspiring to get rid of [him]'. This, Zacharias concluded, was proof that Mantzaris ‘engaged, and continue[s] to engage in, a campaign to discredit the Vice-Chancellor in your capacity as an employee and Chairperson of COMSA.’
If the University believed that it had received adverse publicity, then the institution had only itself to blame, as it responded inappropriately to a range of controversies, often lashing out at its critics, leading to even more adverse publicity.
In a letter to Professor Makgoba on the 4th October last year, we pointed out concerns that lead us to this conclusion. Our letter mentioned a report which found that staff felt there was, at the University, ‘a lack of consultation and a lack of meaningful communication; an authoritarian attitude; the privilege of position; intimidation and bullying; a lack of transparency and democratic procedures’. We mentioned Makgoba’s refusal to meet with student leaders to discuss exam exclusions simply because they had spoken to the media. We also mentioned the attempted gagging of staff just before the commencement of a strike and the suing of Rhodes academic Professor Jimi Adesina because he pointed out that such gagging was taking place. We also raised concerns about the university’s “Electronic Communications Policy” which is a gross violation of academic freedom and freedom of expression more generally. Apart from allowing the University to spy on individuals’ email correspondences, it also allows the University to read documents on staff members’ personal computers (that belong to the University).
The FXI does not believe that UKZN management should be pursuing defamation charges against their critics in disciplinary hearings, as this will chill critical debate. Public figures generally have less protection from critical commentary than ordinary individuals, and senior managers like Professor Makgoba need to accept that this is a consequence of the positions they hold. The UKZN is a controversial institution; if it is to move beyond these controversies, it needs to create maximum space for debate about its future direction, even if this means that management must stomach tough criticism. For these reasons, the FXI requested the university to exclude the two above mentioned charges from his disciplinary hearing, and rather for the Vice Chancellor to pursue his defamation claim against Mantzaris in open court.
• Defamation case against Jimi Adesina
In February 2007, the Grahamstown Magistrates' Court dismissed (with costs) charges of defamation made by University of Kwazulu Natal head of communications, Professor Dasarath Chetty, against Rhodes University academic Professor Jimi Adesina.
The case followed a series of emails the previous, just before UKZN staff went on strike for better wages and working conditions. Before the strike began, Chetty's office issued an email requesting "all staff who receive any media query related to the impending industrial action refer these calls" to his staff. In response, Adesina sent an open letter to Chetty, accusing him of attempting to gag academics and of being an instrument of authoritarianism at the university. He also claimed Chetty had brought sociologists into disrepute. Chetty then sued Adesina for defamation.
In his testimony, Adesina argued that the issue was really about academic freedom. He said Chetty's actions were typical of the beginning of the end for academic freedom on university campuses in other parts of Africa, and expressed concern that academic freedom and freedom of expression were under threat in South Africa, too.
The magistrate found that, given the prevailing circumstances at the university, Chetty's letter "could very well be understood" as a gagging order. Adesina's comments, the Magistrate said, showed no malice and were about "matters of public interest". This judgement vindicated the FXI’s stance that Chetty’s failed attempt to sue Adesina displayed an unacceptable intolerance of criticism.
The FXI is concerned that a large amount of money has been paid in legal costs, apparently at the expense of the taxpayer, and we are made to understand that Chetty is appealing the case. Questions need to be asked about why the public should pay for an academic to pursue a frivolous case against a fellow academic in an attempt to gag him. While the FXI respects Chetty’s right to take the matter to court, he should have used his own money to pursue the case, not public money.
• Disciplinary proceedings against Nithaya Chetty and John van den Berg
In November 2008, the UKZN decided to institute disciplinary proceedings against two of the University's Professors, Nithaya Chetty and John van den Berg. The disciplinary proceedings related to statements in the media and an e-mail list that were highly critical of the conduct of Professor Makgoba, in his handling of a University Senate debate on academic freedom. Chetty and van den Berg were interviewed in several newspapers, including the Mail and Guardian, earlier this year about their unhappiness with the way in which Makgoba allegedly blocked Senate's consideration of a Faculty of Science and Agriculture document on the state of academic freedom in the University. This led to charges that the two Professors have failed to exercise due care in communicating with the media, and released confidential senate information, as well as dishonesty and/or gross negligence.
While the FXI respects the right of the University to institute disciplinary proceedings against its staff, such proceedings should be instituted with due regard to their basic human rights, including their right to freedom of expression. Also, if the University felt that their criticisms were unjustified, there are remedies the University could have taken short of disciplinary action in relation to the Professor's media statements, such as approaching the Press Ombudsman.
Academics should be encouraged to play a public intellectual role, not punished for it. It should be a condition of service, especially at UKZN, as the university has committed itself to being "critically engaged with society". It is difficult not to read the charge that they failed to exercise 'due care' in communicating with the media as code for failing to practice self-censorship in their criticisms of Makgoba.
According to the FXI, Senate is an organ of state, and is therefore bound by the constitutional requirements of openness and transparency. So the default position cannot be that Senate proceedings are confidential; rather, confidentiality should apply only in compelling situations.
Also, the special nature of Senate should also be taken into account. Senate is meant to be the academic voice of a university; as the highest authority on academic issues, it acts as a sort of mini-Parliament where mandated representatives of different academic stakeholders can air their concerns. In order to perform this role, Senators must be able to communicate Senate-related issues freely, and to speak robustly without fear of sanction. They must report back to their constituencies, which makes confidentiality on all matters impractical. Also the offending statements made by Chetty and van den Berg about the disputed Senate meetings were made after the meetings had taken place, and decisions were arrived at. So it is doubtful - if one relies on the grounds for non-disclosure in PAIA – that the information disclosed could be considered confidential information.
Conclusion:
FXI submits that the cases mentioned hereinabove constitute sufficient evidence of the violations on the right to academic free speech that are occurring at UKZN and that the policies and employee conditions of employment, in so far as they exist, are inadequate both in their content and implementation.
We urge UKZN to take our submission to heart and to address the concerns raised herein. FXI reiterates that we, in the spirit of ensuring an environment that is friendly towards academic free speech, are more than prepared to engage with UKZN on the issues raised herein.
We look forward to addressing the Committee at the hearing of this matter during March 2009.
Dr Jane Duncan
Executive Director
Freedom of Expression Institute
19 February 2009
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