Retaining Degree Certificates for Outstanding Student Debts: A Social-Justice and Ethical Issue in the Legal Profession

The right to education, as protected under section 29 of the Constitution of the Republic of South Africa, is marred by disparities and inequalities owing to the cost of accessing higher education. This has culminated in excessive student debts and has, in turn, resulted in higher educational institutions (HEIs) implementing student debt-collection practices that include withholding degree certificates, marks and academic transcripts as a means of debt recovery. Although such debt-recovery practices are commercially defensible, the retention of degree certificates, marks and academic transcripts has a negative impact on a graduate’s ability to enrol for further studies and secure gainful employment, thereby having the unintended consequence of barring graduates from the very thing that would enable them to repay their student debt – namely, employment. Graduates from marginalised socio-economic backgrounds carry the heaviest load under these debt-collection practices, which often have the effect of perpetuating cycles of poverty and inequality. Drawing on international experience, particularly in the United States and the United Kingdom (where legislative safeguards have been instituted to curtail similar practices), this article underscores the need for both legislative intervention and the development of innovative debt-collection strategies by HEIs in South Africa. The focus here is specifically placed on debt-collection practices within the legal profession, where the retention of degree certificates prevents law graduates from being admitted into the legal profession. Ultimately, an assessment is made of the two pillars of assessing suitability of candidate legal practitioners: technical competence (evidenced through the LLB degree) and moral suitability of the individual (reflected in being a “fit and proper” person and also compliance with the expected standards of conduct). Here, the values of reliability, responsibility, trust, integrity and honesty are highlighted in the context of honouring a person’s contractual obligations. The fulfilment of contractual obligations within the legal industry is said to reflect the ethical values of legal practitioners and candidate legal practitioners. However, non-payment of student debts cannot (on its own) be an indicator of a lack of moral character or a breach of ethics. The author argues that a distinction must be made between those candidate legal practitioners who cannot repay their student debts owing to socio-economic conditions and those candidate legal practitioners who can (or would in the future be in a position to) repay student debts but simply choose not to do so. This latter group’s conduct constitutes not only a flagrant breach of contractual promises and undertakings but also spills into the realm of questionable ethical conduct. This article ultimately concludes that rather than HEIs retaining documents that are necessary for employment, the focus should be placed on fostering environments that allow graduates the opportunity to secure gainful employment, with the ultimate aim being that graduates should repay outstanding student debts upon securing such employment. It appears that South Africa has yet to consider international developments in this area. There is an urgent need for the legislature to intervene and for HEIs to develop alternative and creative debt-collection mechanisms to avoid a deepening of the inequalities within higher education and the legal profession, but also to prevent the looming social-justice crises within the country stemming from student debt-collection practices. Failure or a delay in this regard will only be to the detriment of our students and the economy.