Do legal frameworks direct merger outcomes? A study of the legal origins and consequences of recent higher education mergers

Abstract

This article traces the legal challenges and contestations embedded in five recent cases of higher education mergers in South Africa. I am aware that there are a number of forms of mergers. For the purposes of this article I use the term as one that is descriptive of a policy decision. Where necessary I make a brief distinction between a merger and incorporation. The article argues that although such mergers are founded in constitutional and legal imperatives, the process of merger is imbued with its own complexities and contests that influence the forms and outcomes of each merger. Legal frameworks and guiding principles are almost always up for dispute when mergers are contemplated, and such disputes can extend the time frames and alter the projected outcomes of a merger significantly. Legal frameworks include the Constitution of the Republic of South Africa Act (No 108 of 1996) and legislation and agreements relating to the merger process. These would include agreements between the merging institutions and collective bargaining agreements. In the two cases where the disputes have prolonged and, in one case, prevented the merger process from being completed, the stakes are high; there are long-term institutional and political relationships that could be decided at this conjuncture. What emerges in the analysis of these processes and outcomes is that in the context of higher education mergers legal frameworks are inadequate as an instrument to support the merger. Further, the feasibility of legal challenges and the wherewithal to declare them are closely aligned with the conception, distribu- tion and extent of political and institutional power. Exercising the right to issue a legal challenge is therefore rarely a purely legal matter. The capacity or failure to take legal action is closely intertwined with the power and authority of institutions to contemplate such action in the first place. The five merger cases from which this article is drawn are the voluntary merger between the ML Sultan Technical College (MLS) and the Technikon Natal (TN); the merger of the veterinary science faculties of the University of Pretoria (UP) and the Medical University of South Africa (Medunsa); the merger of the Johannesburg College of Education (JCE) and the University of the Witwatersrand (Wits); the merger of the Giyani College of Education (GCE) and the University of Venda (Univen) and the South African College for Teacher Education (Sacte) and the University of South Africa (Unisa). I draw on material presented in the five case studies published in a book on higher education mergers. Permission to use the material has been obtained from the authors, apart from myself, as contributors to this monograph entitled, Jansen J et al (2002). Mergers in higher education: lessons learned in transitional con- texts. While the article will offer some description of each of the five cases, my central focus will be to illustrate the legal issues that emerged (or did not emerge) in each and offer some analysis of the consequences of such legalities on the merger process.