The South African government's attempt to control overseas universities' operations on its soil has run into legal problems.
Eben Boshoff, director of legal services in the education department, told a parliamentary portfolio committee last week that South Africa's constitution prohibits the registrar from discriminating against foreign institutions in favour of local universities and technikons.
He warned that the government would risk legal action if it tried to discriminate against foreign institutions. Under existing laws, it must have "a reasonable excuse" for preferring a local institution over a foreign one.
The government, however, is drafting legislation that seeks a way round that restriction. The proposed legislation aims to favour local institutions by empowering the registrar of higher education to determine the size, shape and scope of foreign institutions before granting them permits to operate.
Early this year, education minister Kader Asmal clamped down on for-profit courses being offered by foreign institutions - many of them British - through local state universities and technikons. He also threatened to regulate the operation of foreign institutions.
He said the government was not against foreign institutions setting up mutually beneficial operations in South Africa, but wanted to avoid "invasion by overseas universities with profit-making aims, which is killing our local institutions".
Thami Mseleku, director-general of education, told the parliamentary committee this week that it was the government's responsibility to protect local institutions. "We are not saying competition is wrong. But it should not be detrimental to South Africa's needs."
In line with governments elsewhere, South Africa would regulate the influx of foreign institutions to ensure their work was in keeping with South Africa's interests and human resource needs, Mr Mseleku reportedly added. The new legislation would allow the registrar to determine whether institutions are genuine, and provide for greater accountability.
The government is also trying to exert control over a growing private sector - comprising some 700 local and foreign private providers - by obliging them under the Higher Education Act to have courses accredited by the South African Qualifications Authority and to register with the education department, or face being closed down.
Registration was aimed at clamping down on fly-by-night education providers, but the process was slow, flawed and earlier this year resulted in 37 foreign institutions, including 15 from Britain, appearing on a list of 75 "illegal" providers who had not registered.
Legitimate institutions rightly complained about being bundled into the same "illegal" basket as bad ones, Mr Mseleku said. In most cases the government had granted them periods of grace because of delays in processing accreditation applications.
But it appears that the new legislation is aimed more broadly at controlling what foreign institutions are allowed to offer in South Africa, at intervening in the market to give the government greater say over who can provide what courses to whom, and at protecting local institutions from foreign competition.