Can the college where I studied withhold my certificates if I cannot pay the outstanding fees?

The long answer

Though the school could certainly argue that you signed a contract to pay the fees and it is necessary to withhold certificates to induce defaulting students to pay their outstanding fees, a different view was presented in a 2023 De Rebus article by candidate attorney at Webber Wentzel, Sabelo Bongani Ndlovu.

Ndlovu notes that while the Higher Education Act of 1997 (HEA) grants the right to institutions to set policies and rules for its students, the HEA does not mention the supposed right to withhold certificates. He goes on to say that section 65BA of the HEA, which deals with “withdrawal and revocation of degree, diploma, certificate or other qualification”, does not expressly give permission for the school to withhold qualifications once they have been earned. (Since 2011, schools may not withhold a report card from Grades R – 12.)

Ndlovu quotes a 2020 Constitutional court case (Beadica 231 CC and Others v Oregon Trust and Others) that said a right given by a contract must be examined to see how it fits with the public policy that is embodied in the Constitution. This means the parties to a contract must deal fairly with each other and pay attention to the personal circumstances of a party to the contract. The courts specifically must pay attention to whether one of the contracting parties has far less power than the other or has suffered previous exclusion and disadvantage, and whether the action of one party is likely to make things worse for the party that has been disadvantaged previously. 

In other words, says Ndlovu, a contract is also required to fit with the principles of ubuntu laid down in public policy by the Constitution. A contract is not above the Constitution. He says that ubuntu demands that a right to withhold certificates must not be exercised as a matter of course, but only after examining the circumstances of each case.  

Ndlovu says that even if the right to withhold a student’s certificate exists, would this right be in line with Section 36 of the Constitution? Section 36 is known as the limitation clause because it lays down the test that any limitation of rights must pass: the two central aspects of this test are reasonableness and proportionality. He thinks not. Even when the grounds for withholding certificates are the sanctity of contracts, the financial survival of the school and discouraging other students from failing to pay their fees, these grounds do not stand up to the constitutional balancing act that is required, says Ndlovu. 

He understands that institutions are under enormous pressure to recover debts and keep themselves financially afloat, but he says that the way this is done, routinely withholding certificates which a poor student has already earned, makes a mockery of Nelson Mandela’s assertion that education is the most powerful weapon that one can use to change the world. 

So where does this leave you? There is one way forward that I can see, based on what Ndlovu has said, is to ask organisations that promote human rights to take up your case, and assist you to negotiate an agreement about repaying your debt when you are employed, using your certificates.

You could approach one of the following organisations:

• Lawyers for Human Rights

Email: info@lhr.org.za

Pretoria: 012 320 2943

Johannesburg: 011 339 1960

• Legal Resources Centre

Email:info@lrc.org.za

Johannesburg: 011 836 9831

• ProBono.org

Email: info@probono.org.za

Tel: Johannesburg: 011 339 6080

Wishing you the best,
Athalie