Author: Adv Mark Oppenheimer
Date: 28 March 2019
1. The Consultant is the Free Market Foundation’s Rule of Law Project. The Free Market Foundation is an independent public benefit organisation founded in 1975 to promote and foster an open society, the rule of law, personal liberty, and economic and press freedom as fundamental components of its advocacy of human rights and democracy based on classical liberal principles. Since its inception, the Free Market Foundation has committed to the Rule of Law as an indispensable vehicle for the achievement of a free and prosperous society. The Rule of Law Project, formally established in 2016, is meant to give effect to this commitment. The Rule of Law Project exists to give substance to section 1(c) of the Constitution of the Republic of South Africa, which provides that South Africa is founded upon the supremacy of the Constitution and the Rule of Law.
2. I have been instructed that on 15 March 2019 the Senate Committee of the University of Cape Town (UCT) has resolved to adopt the following proposal:
UCT will not enter into any formal relationships with academic institutions operating in the Occupied Palestinian Territories as well as academic institutions enabling gross human rights violations in the Occupied Palestinian Territories
3. On 30 March 2019, the Council of UCT will be voting on whether to approve the proposal.
4. I have been asked to provide an opinion on two issues. First, whether UCT will be in breach of its Constitutional obligations if the Council adopts the proposal. Second, whether there are any impediments to members of the Council voting on the proposal.
5. The South African Constitution states the following:
Supremacy of Constitution
S2 This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.
S7(1) This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom.
S7(2) The state must respect, protect, promote and fulfil the rights in the Bill of Rights.
6. The University of Cape Town is an organ of state and is therefore bound to respect, protect, promote and fulfil the rights in the Bill of Rights.
Freedom of Expression
7. S16(1) of the Constitution creates protection for freedom of expression by proclaiming that:
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; and
(d) academic freedom and freedom of scientific research.
8. In Dikokov Mokhatla the Constitutional Court described freedom of expression as:
The lifeblood of an open and democratic society cherished by our Constitution.
9. In South African National Defence Union v Minister of Defence, the Constitutional Court held that:
[Freedom of expression] lies at the heart of a democracy. It is valuable for many reasons, including its instrumental function as a guarantor of democracy, its implicit recognition and protection of the moral agency of individuals in our society and its facilitation of the search for truth by individuals and society generally. The Constitution recognises that individuals in our society need to be able to hear, form and express opinions and views freely on a wide range of matters. 
10. There are four main reasons why freedom of expression is so valuable. First, it aids us in the search for truth. Second, it is vital for the functioning of a democracy. Third, it enhances moral agency. Fourth, it instils tolerance.
11. Allowing the free dissemination of beliefs, opinions and other forms of expression brings immense benefits. It allows for intellectual, cultural, and scientific progress whilst provoking discussion and aiding the search for truth. Since we are fallible, we cannot know with certainty that a particular opinion is false. When we suppress opinions that are believed to be false, we risk missing out on the truth. By stifling beliefs that are different from our own we lose the opportunity to ‘challenge, reconsider and perhaps reaffirm’ our own views.
12. In S v Mamabolo the court held that:
Freedom of expression, especially when gauged in conjunction with its accompanying fundamental freedoms, is of the utmost importance in the kind of open and democratic society the Constitution has set as our aspirational norm. Having regard to our recent past of thought control, censorship and enforced conformity to governmental theories, freedom of expression — the free and open exchange of ideas — is no less important than it is in the United States of America. It could actually be contended with much force that the public interest in the open market-place of ideas is all the more important to us in this country because our democracy is not yet firmly established and must feel its way. Therefore we should be particularly astute to outlaw any form of thought control, however respectably dressed.
13. Freedom of expression is the cornerstone of a functioning democratic state. It gives people the opportunity to be exposed to differing viewpoints to make informed and legitimate decisions about their political and private lives.
14. In Khumalo v Holomisa Justice O’Regan held:
Without [freedom of expression], the ability of citizens to make responsible political decisions and to participate effectively in public life would be stifled.
15. The eminent legal philosopher Ronald Dworkin wrote that:
Morally responsible people insist on making up their own minds about what is good or bad in life or in politics, or what is true or false in matters of justice and faith. Government insults its citizens, and denies their moral responsibility, when it decrees that they cannot be trusted to hear opinions that might persuade them to dangerous or offensive convictions. We retain our dignity, as individuals, only by insisting that no one — no official and no majority — has the right to withhold an opinion from us on the ground that we are not fit to hear and consider it.
16. When people are exposed to a range of conflicting opinions on a subject, they are given the opportunity to exercise their rational faculties, weigh up the arguments on both sides and come to form their own view on the matter.
17. If university students are under the impression that the ideas they are exposed to have gone through a filtering process to remove all inappropriate forms of expression, then they are less likely to be critical of the material that they consume. Societies that allow for a broad selection of opinions create an environment that strengthens people’s analytical skills and trains them to question the views that are presented to them.
18. In South African National Defence Union v Minister of Defence & Another the Constitutional Court held that:
The corollary of freedom of expression and its related rights is tolerance by society of different views. Tolerance, of course, does not require approbation of a particular view. In essence, it requires the acceptance of the public airing of disagreements and the refusal to silence unpopular views.
19. Academic freedom is explicitly protected in the right to freedom of expression.
20. Cary Nelson, president of the American Association of University Professors, states the following about academic freedom:
- Academic freedom means that both faculty members and students can engage in intellectual debate without fear of censorship or retaliation.
- Academic freedom establishes a faculty member’s right to remain true to his or her pedagogical philosophy and intellectual commitments. It preserves the intellectual integrity of our educational system and thus serves the public good.
- Academic freedom in teaching means that both faculty members and students can make comparisons and contrasts between subjects taught in a course and any field of human knowledge or period of history.
- Academic freedom gives both students and faculty the right to express their views — in speech, writing, and through electronic communication, both on and off campus — without fear of sanction, unless the manner of expression substantially impairs the rights of others or, in the case of faculty members, those views demonstrate that they are professionally ignorant, incompetent, or dishonest with regard to their discipline or fields of expertise.
- Academic freedom gives both students and faculty the right to study and do research on the topics they choose and to draw what conclusions they find consistent with their research, though it does not prevent others from judging whether their work is valuable and their conclusions sound. To protect academic freedom, universities should oppose efforts by corporate or government sponsors to block dissemination of any research findings.
- Academic freedom means that the political, religious, or philosophical beliefs of politicians, administrators, and members of the public cannot be imposed on students or faculty.
- Academic freedom gives faculty members and students the right to seek redress or request a hearing if they believe their rights have been violated.
- Academic freedom protects faculty members and students from reprisals for disagreeing with administrative policies or proposals.
- Academic freedom gives faculty members and students the right to challenge one another’s views, but not to penalize them for holding them. 
21. The International Council of Scientific Unions (ICSU) has formulated the following principle regarding the Universality of Science:
The principle of the Universality of Science is fundamental to scientific progress. This principle embodies freedom of movement, association, expression and communication for scientists as well as equitable access to data, information and research materials. In pursuing its objectives in respect of the rights and responsibilities of scientists, the ICSU actively upholds this principle, and, in so doing, opposes any discrimination on the basis of such factors as ethnic origin, religion, citizenship, language, political stance, gender or age.
22. The scientist, Michael Yudkin has written that:
Plainly it is not justifiable to use academics that are innocent of any wrongdoing as pawns in the same way as a kidnapper uses hostages – that is, to deprive them of their individuality and autonomy as human beings and turn them into instruments of the political aims of others. So, while it might well be justifiable (or even obligatory) to boycott academics who are involved in illegal or morally unacceptable practices, such a justification would be tenable only if it could be proved that those who are being boycotted are individually responsible for, or complicit in, those practices. To boycott them in the absence of such proof would be to hold them collectively responsible for the actions of others – their government, for example – which in practice they might very well actively oppose.
Right to receive or impart information or ideas
23. The right to receive or impart information or ideas is explicitly protected in the right to freedom of expression.
24. In Case and Another v Minister of Safety, Mokgoro J emphasised the importance of the right to receive information in the following terms:
But my freedom of expression is impoverished indeed if it does not embrace also my right to receive, hold and consume expressions transmitted by others. Firstly, my right to express myself is severely impaired if others’ rights to hear my speech are not protected. And secondly, my own right to freedom of expression includes as a necessary corollary the right to be exposed to inputs from others that will inform, condition and ultimately shape my own expression. Thus, a law which deprives willing persons of the right to be exposed to the expression of others gravely offends constitutionally protected freedoms both of the speaker and of the would-be recipients.
25. In terms of S9(3) of the Constitution:
The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.
26. In Pretoria City Council v Walker Sachs J held that:
A distinction whether intentional or not amounts to discrimination against an individual or group if it has “. . . the effect of imposing burdens, obligations, or disadvantages on such an individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society.”
27. In President of The Republic of South Africa and Another v Hugo Goldstone J held that:
The prohibition on unfair discrimination in the interim Constitution seeks not only to avoid discrimination against people who are members of disadvantaged groups. It seeks more than that. At the heart of the prohibition of unfair discrimination lies a recognition that the purpose of our new constitutional and democratic order is the establishment of dignity and respect regardless of their membership of particular groups. The achievement of such a society in the context of our deeply inegalitarian past will not be easy, but that that is the goal of the Constitution should not be forgotten or overlooked.
28. In the case of Leonard Dingler Employee Representative Council v Leonard Dingler (Pty) Ltd & Others the Labour Court held that:
Indirect race discrimination occurs when criteria, conditions or policies are applied which appear to be neutral, but which adversely affect a disproportionate number of a certain race group in circumstances where they are not justifiable. As with direct discrimination, intention or motive is irrelevant.”
29. Section 3 of the National Education Policy Act 27 of 1996 (“the National Education Policy Act”) states that:
The Minister shall determine national education policy in accordance with the provisions of the Constitution and this Act.
30. Section 4(1)(a)(i) of the National Education Policy Act states that:
The policy contemplated in section 3 shall be directed toward the advancement and protection of the fundamental rights of every person guaranteed in terms of Chapter 2 of the Constitution, and in terms of international conventions ratified by Parliament, and in particular the right of every person to be protected against unfair discrimination within or by an education department or education institution on any ground whatsoever;
RESTRICTIONS ON MEMBERS OF COUNCIL VOTING ON PROPOSAL
31. The Higher Education Act states the following:
S27(7)(e) A member of a council or a member of a committee of a council-
(i) may not have a conflict of interest with the public higher education institution concerned;
(ii) may not have a direct or indirect financial, personal or other interest in any matter to be discussed at a meeting and which entails or may entail a conflict or possible conflict of interest with the public higher education institution concerned;
(iii) must, before the meeting and in writing, inform the chairperson of that meeting of that conflict or possible conflict of interest. [Sub-s. (7) substituted by s. 1 of Act 21/2011]
(7A) Any person may, in writing, inform the chairperson of a meeting, before the meeting, of a conflict or possible conflict of interest of a member of the council with the public higher education institution concerned of which such person may be aware. [Sub-s. (7A) inserted by s. 1 of Act 21/2011]
(7B) A member referred to in subsections (7)(e) and (7A) is obliged to recuse himself or herself from the meeting during the discussion of the matter and the voting thereon.
(7C) A committee of the council with delegated functions in terms of section 68(2) may not take a decision on a matter considered by it if any member of the committee has a conflict of interest contemplated in this section. [Sub-s. (7C) inserted by s. 1 of Act 21/2011]
(7D) A member of the council or a member of a committee of the council who contravenes subsection (7)(c), (d) or (e), (7A) or (7B), after Council has followed a due process, may be-
(a) suspended from attending a meeting; or
(b) disqualified as a member of the council or a member of a committee of the council. [Sub-s. (7D) inserted by s. 1 of Act 21/2011]
32. UCT has an obligation to uphold the rights in the Bill of Rights. If the Council were to adopt the proposal, UCT would be in breach of its obligations.
33. The policy would prohibit UCT from entering into formal relationships with Israeli academic institutions. This would inhibit the free flow of ideas, course materials and other resources between the students and staff of UCT and Israeli institutions. Presumably, exchange programs for staff and students would be constrained. Opportunities for academics from UCT and Israel to give guest lectures would be restricted. Cooperation on joint research between universities would also be limited.
34. The proposal constitutes an imposition of the political beliefs of university administrators on staff and students. Students and staff at UCT have a right to be exposed to ideas from the entire globe. Impeding access from one country violates the rights of academic freedom, access to information and freedom of expression.
35. The fact that the proposal singles out Israeli institutions, and by implication academics and students, is a breach of the obligation on UCT not to unfairly discrimination. Since an overwhelming number of staff and students in Israel are ethnic Israelis, are Jewish by religion and speak Hebrew by language; the effect of the policy would constitute indirect unfair discrimination on the grounds of ethnicity, religion, and language.
36. Furthermore, the policy would have an adverse effect on all staff and students in Israel regardless of whether they support or oppose the actions of the Israeli government. Such discrimination is arbitrary and capricious.
Restrictions on Voting
37. The Higher Education Act makes it clear that members of council that have a personal or other interest in any matter to be discussed at a meeting of council have a duty to recuse themselves from voting or participating at such a meeting.
38. Regarding the forthcoming meeting, those members of Council that have actively participated in prior efforts to obtain an academic boycott of Israel may be conflicted in terms of the act and be required to recuse themselves.
39. It would be incumbent upon the chairperson of the Council to investigate this issue to ensure that there are no procedural irregularities relating to the decision of the Council.
Advocate Mark Oppenheimer
Bridge Group of Advocates
28 March 2019
 University of the Free State v Afriforum and Another 2017 (4) SA 283 (SCA), at footnote 6.
 Dikoko v Mokhatla 2006 (6) SA 235 (CC), at para 92.
 1999 (4) SA 469 (CC), at para 7.
 Denise Meyerson, Rights Limited: Freedom of Expression, Religion and the South African Constitution, at 78
 Jonathon Wolff, An Introduction to Political Philosophy, (Oxford University Press, 1996), at 118
 S v Mamabolo (E TV, Business Day and the Freedom of Expression Institute Intervening) 2001 (3) SA 409 (CC), at para 37
 J De Waal et al, Bill of Rights Handbook, (Juta, 2001), at 310
 Khumalo & Others v Holomisa 2002 (5) SA 401 (CC), at para 21.
 Ronald Dworkin, Freedom’s Law: The Moral Reading of the America Constitution (1996), at 200
 Nadine Strossen, Defending Pornography: Free Speech, Sex and the Fight for Women’s Rights, at 263
 South African National Defence Union v Minister of Defence & Another 1999 (4) SA 469 (CC), at para 8.
 Statute 5 of ICSU
 M Yudkin, Is an Academic Boycott of Israel Justified?, Engage Journal, 2007, at page 112
 Case and Another v Minister of Safety and Security and Others, Curtis v Minister of Safety and Security and Others 1996 (3) SA 617, at para 25
 Pretoria CC v Walker 1998 (2) SA 363 (CC) para 112 at 470, footnote 75.
 1997 (4) SA 1 (CC).
 President of the RSA v Hugo 1997 (4) SA 1 (CC) para 41 at 22G – 23A.
 (1998) 19 ILJ 285 (LC).
 Leonard Dingler Employee Representative Council v Leonard Dingler (Pty) Ltd & Others (1998) 19 ILJ 285 (LC) at 285H-I.
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