National Student Financial Aid Scheme v Moloi and Others

NSFAS, in consultation with the Minister of Higher Education and Training under s 4(b) of the National Student Financial Aid Scheme Act 56 of 1999, amended its annual bursary guidelines for the 2021 academic year due to severe budgetary constraints exacerbated by COVID-19. The 2021 guidelines excluded funding for all second and postgraduate qualifications, including the postgraduate LLB, which had been an exception under the 2020 guidelines. Three students enrolled for postgraduate LLB programmes at the University of the Witwatersrand challenged the defunding, alleging that they had a legitimate expectation of continued funding and that the decision was procedurally unfair, irrational and unlawful. The Gauteng High Court reviewed and set aside the decision insofar as it related to LLB programmes. NSFAS and the Minister appealed to the Supreme Court of Appeal.

Leave to appeal was granted; the appeal was upheld; the order of the High Court was set aside and replaced with an order dismissing the application, with no order as to costs.

The case clarifies the distinction between administrative action and executive policy formulation in South African administrative law, particularly in the context of public funding schemes. It affirms that NSFAS eligibility criteria are executive decisions subject to rationality review rather than PAJA, and underscores judicial deference to budgetary and policy choices made by the executive in allocating scarce public resources.