Authored By: Nontobeko Charity Ngomane
University of South Africa
- INTRODUCTION
The Constitution says everyone has the right to further education. The state must make it available step by step through reasonable plans. To help poor students, the government created the National Student Financial Aid Scheme through the National Student Financial Aid Scheme Act. The NSFAS gives bursaries and loans so students can pay fees, buy books, and stay in residence.
But in the last 3 years the NSFAS has been paying very late. Many students who were approved still could not register. Some were kicked out of residence. Others missed exams. This is a big problem because education is supposed to be a right, not a privilege for those who can pay on time.
This article will argue that NSFAS delays are not reasonable. They break s 29 of the Constitution and also break the rules of fair administration. The state must fix this by putting clear deadlines in the law.
- THE LEGAL FRAMEWORK
The Constitution is the highest law. Section 29(1)(b) says the state must make further education progressively available. “Progressively” means the government must keep improving access every year, not make it worse.
The _NSFAS Act_ created the NSFAS to give financial help. Section 4 says the NSFAS must give money to students who qualify. The Bursary Rules also say when students should get paid. If the NSFAS does not follow its own rules, then it is acting unfairly.
The Promotion of Administrative Justice Act says government decisions must be reasonable. If a decision causes harm and there is no good reason, a court can say it is unlawful.
Also, South Africa signed international agreements that say higher education must be accessible. Courts must look at these agreements when they interpret the Constitution.
- THE PRACTICAL IMPACT OF DELAYS
Late payments hurt students in real ways. In 2023 and 2024 many universities said thousands of NSFAS students could not register because fees were not paid. At the University of KwaZulu-Natal and the University of Cape Town students were told to leave residence in the middle of semester. Some had nowhere to go.
Other students could not write tests because their accounts were blocked. Some had to borrow money from loan sharks. Others became depressed and dropped out. This shows that a delay of a few weeks can destroy a whole academic year for a poor student.
The problem is that the NSFAS knows these delays happen every year. It is not a once-off mistake. When a problem repeats, it means the system is not working.
- LEGAL ANALYSIS: WHY THE DELAYS ARE UNLAWFUL
The Constitutional Court said in _Grootboom_ that “reasonable measures” must work in practice. A plan that fails every year is not reasonable. The Court also said the state must act with care and urgency when dealing with socio-economic rights.
In Treatment Action Campaign the Court said the government cannot delay programs that help people access rights. The same logic applies here. Education is just as important as health.
Under PAJA, an action is unreasonable if no reasonable person would do it. Any reasonable person would pay approved students before registration closes. Paying in May for a February semester is not reasonable.
Section 195 of the Constitution also says public service must be efficient and responsive. The NSFAS is not being responsive when students sleep in libraries because they have no residence.
- WHAT SHOULD BE DONE
The solution is simple. Parliament must change the NSFAS Act to add deadlines. For example: all approvals must be done by end of January. First payment must be done by 15 March. If the NSFAS misses the deadline, it must report to Parliament and explain why.
This will force the NSFAS to plan better. Other countries already do this. In Kenya the Higher Education Loans Board Act has fixed payment dates. Students know when money will come and can plan.
The NSFAS must also talk to universities earlier so that approved students can register even while payment is processing. No student should be punished for NSFAS mistakes.
- CONCLUSION
The right to education in s 29 means nothing if money only comes after students are excluded. NSFAS delays stop poor students from going to class, staying in residence, and writing exams. This is not reasonable and it is not fair.
Based on the Constitution, the _NSFAS Act_, and court cases like Grootboom and Treatment Action Campaign_, the state is failing its duty. To fix this, the law must set clear dates and punishments for late payment. Only then will further education really be available to everyone, not just to rich students.
BIBLIOGRAPHY
Legislation
_Constitution of the Republic of South Africa_ 1996
_Higher Education Act_ 101 of 1997
_Higher Education Loans Board Act_ 1995 (Kenya)
_International Covenant on Economic, Social and Cultural Rights_ 1966
_National Student Financial Aid Scheme Act_ 56 of 1999
_Promotion of Administrative Justice Act_ 3 of 2000
Cases
_Government of the Republic of South Africa v Grootboom_ 1 SA 46 (CC)
_Juma Musjid Primary School v Essay NO_ 8 BCLR 761 (CC)
_Minister of Health v Treatment Action Campaign (No 2)_ 5 SA 721 (CC)[2001][2011][2002]
Secondary Sources
Parliamentary Monitoring Group, ‘NSFAS 2024 Performance Report’ (15 March 2024) https://pmg.org.za accessed 6 August 2026
Sisonke Msimang, ‘NSFAS chaos leaves 30 000 students stranded’ _Daily Maverick_ (20 February 2024) https://www.dailymaverick.co.za accessed 6 August 2026
¹ _Constitution of the Republic of South Africa_ 1996 s 29(1)(b); _National Student Financial Aid Scheme Act_ 56 of 1999 s 2.
² _Government of the Republic of South Africa v Grootboom_ 1 SA 46 (CC) para 44; _National Student Financial Aid Scheme Act_ 56 of 1999 s 4; _Promotion of Administrative Justice Act_ 3 of 2000 s 6(2)(h); _International Covenant on Economic, Social and Cultural Rights_ 1966 art 13; _Juma Musjid Primary School v Essay NO_ 8 BCLR 761 (CC) para 37.
³ Parliamentary Monitoring Group, ‘NSFAS 2024 Performance Report’ (15 March 2024) https://pmg.org.za accessed 6 August 2026; Sisonke Msimang, ‘NSFAS chaos leaves 30 000 students stranded’ _Daily Maverick_ (20 February 2024) https://www.dailymaverick.co.za accessed 6 August 2026.
⁴ _Grootboom_ (n 2) para 39; _Minister of Health v Treatment Action Campaign (No 2)_ 5 SA 721 (CC) para 98; _Promotion of Administrative Justice Act_ 3 of 2000 s 6(2)(h); _Constitution of the Republic of South Africa_ 1996 s 195(1)(b).
⁵ _Higher Education Loans Board Act_ 1995 (Kenya) s 14.
⁶ _Constitution of the Republic of South Africa_ 1996 s 29(1)(b).
