NSFAS, Nzimande win appeal against Wits law students

The National Student Financial Aid Scheme (NSFAS) has succeeded in appealing a High Court order, which set aside its decision to not fund students studying for second degrees and post-graduate degrees.

The Supreme Court of Appeal (SCA) delivered the judgment in favour of NSFAS on May 3.

NSFAS was taken to the Pretoria Hight Court by three University of Witwatersrand law students. This after Higher Education, Science and Innovation Minister Blade Nzimande published changes to the scheme’s guidelines for the 2021 academic year.

The changes meant NSFAS would no longer fund students studying towards second degrees and postgraduate degrees. These include the Bachelor of Laws (LLB) degree.

Nzimande cited a shortfall in the budget allocated to the bursary scheme for the changes. The Covid-19 pandemic was also a major contributor.

“During the lockdown period, the scheme had to continue paying student allowances even when universities were closed. The academic year had to be extended without allocation of additional funds for the extended academic period.

Changes in funding affected post-graduate students

“There was also an increase in the number of students qualifying for funding as a result of job losses by their previous funders because of the Covid-19 pandemic. On the other hand, prior to the onset of the pandemic, National Treasury had started to implement budget cuts across government departments. This as a result of relentless deterioration in the economy,” the SCA judgment summarised Nzimande’s reasons.

The affected students are Samantha Moloi, Linda Makhaza and Keabetswe Motaung. They argued that the funding guideline changes were an administrative issue. As affected students, they were supposed to be consulted, they said. They also challenged the rationality and fairness of changes, among other reasons.

At the time of taking the matter to court, the judgment shows that the LLB degree was a postgraduate qualification at Wits. There were two pathways to graduate with an LLB degree from Wits.

“The first was a two-year postgraduate stream, which was available on completion of a BA (Law) degree. The second was a three-year postgraduate stream. [The latter] was available on completion of any other undergraduate degree. Wits University did not offer the third stream LLB, which was available at other universities. This is the four-year LLB, which was on offer to matriculants as an undergraduate programme,” said the SCA judgment.

High court ruled in favour of the affected students

The Pretoria High Court reviewed and set aside the NSFAS’s decision to discontinue the funding. This refers to the funding of the Bachelor of Laws (LLB) degree as a second university qualification.

NSFAS subsequently appealed the decision, and the matter was heard on May 9, 2023. The judgment was delivered in May 2024, a year later.

Delivering the judgment, acting deputy president Nambitha Dambuza said that given that the respondents were asserting their constitutional rights to further education, there will be no costs order against them.

“I make the following order: 1. The appeal is upheld with no order as to costs. 2. The order of the High Court is set aside and replaced with the following order: ‘The application is dismissed with no order as to costs’.”

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