The legal status of South African universities and the concomitant effect on the corporate governance structures

Abstract

South African universities play a tremendously influential role in the development of a sustainable future in South Africa. It is at these institutions where many of our future leaders will be educated and moulded. Higher education institutions bear a fundamental ethical obligation to augment the attitudes, knowledge, skills and intelligence required to construct a sustainable future (Cortese, 2013). Given the vital role played by universities in society, their own achievement of good governance is of paramount importance. In order to sufficiently determine which pieces of enacted legislation or code, if any, affect the corporate governance requirements of South African universities, it is critical to investigate the nature of South African universities’ legal personality. The determination of South African universities’ legal personality shall enable the author to satisfactorily determine what, if any, corporate governance requirements should be applied within South African universities, irrespective of their source. The determination of universities’ legal personality and applicable governance provisions shall be done through extensive legal doctrinal analysis of the relevant legislation, case law and code. The results of the research unambiguously demonstrate that universities’ governance requirements are unique in that they are held to an immeasurably higher standard of corporate governance than that of normal juristic persons such as companies (of any nature) and close corporations, as they must not only comply with their enabling legislation, the Companies Act and the King Code, like normal juristic persons, but they are required to accede to the governance provisions set out in the Constitution, whilst meeting their positive obligation to uphold and safeguard the rights enshrined in the Bill of Rights (“BOR”).