Sustainable Development Goals and Higher Education Institutions 73best interest of the student shall be the primary consideration”.^14
However, little guidance is given on how to determine the “best interest
of the student” standard. Arguably, students themselves should have a
key role to play in determining how this standard is crafted and met,
although the practicability of achieving a standard that all students agree
on would be nearly impossible. At the very least, this ought necessarily
to be a relevant consideration that permeates every level of the decision-
making process.
It is apparent from the provisions set out above that there are clear
and express obligations for the state. However, the next leg of the
enquiry is what obligations exist for higher education institutions in
achieving this.
4.3 The Role of Higher Education Institutions
As an organ of state, South African universities are expressly bound
by the Bill of Rights. While the ambit of this has not yet been tested in
South African law, it is submitted that there is an arguable case that this
comprises not only the negative duties, but also the positive duties to
achieve the realisation of the right. Indeed, through factors such as
government subsidies, accreditations and oversight exercised by the
executive, higher education institutions are provided with a social
licence to operate, facilitated by the state in order for the state to realise
the right to higher education.
Certain aspects of the right, such as acceptability and adaptability,
more easily lend themselves to being achievable by the higher education
institutions with limited state involvement; whereas other aspects, such
as availability and accessibility, are arguably more dependent on
cooperation with the state. In all circumstances, however, it is through
the establishment and functioning of these institutions that the state
14
Above n 4 at para 7.