Abstract:

Sustainability is now a central governance principle in the twenty-first century, particularly for public institutions that shape societal development. Universities occupy a unique position within governance systems as centres of knowledge production, institutional actors in public governance, and drivers of social transformation. Although sustainability discourse has gained prominence in higher education, many university initiatives remain confined to policy commitments rather than being embedded within institutional governance obligations.

This context brings into sharp focus a fundamental legal dilemma: should sustainability continue as policy rhetoric shaped by institutional discretion, safeguarding academic freedom, or should it be elevated to an enforceable legal duty, carrying statutory obligations that may limit such discretion? This raises a critical legal question: should sustainability persist as a voluntary policy aspiration, or should it be recognised as a governance duty under higher education law? The implications of these two approaches are significant. If sustainability remains a voluntary policy aspiration, universities retain flexibility in how and when they address environmental issues, with actions largely determined by internal priorities, available resources, and stakeholder interests.

This may encourage innovation and preserve institutional autonomy, but it also risks inconsistent implementation, limited impact, and a lack of accountability. In contrast, recognising sustainability as a legal governance duty would require universities to systematically integrate sustainability into decision-making, planning, operations, and reporting, subjecting them to statutory oversight and potential legal consequences for non-compliance. While this approach may necessitate additional effort and resources, it would strengthen accountability, ensure consistency across institutions, and reinforce the alignment between higher education and national environmental objectives.

The discussion centres on the Higher Education Act 101 of 1997 and its relationship with broader environmental governance laws, such as the National Environmental Management Act 107 of 1998. Through doctrinal legal analysis, comparative research, and examination of case law, this article assesses whether current university governance frameworks support the interpretation of sustainability obligations. The study specifically investigates recent developments in African higher education, emphasising the growing integration of sustainability into governance structures.
The article concludes that elevating sustainability from a policy initiative to a governance duty constitutes a necessary progression in higher education governance.

This transition would require universities to integrate sustainability into their formal governance obligations, thereby enhancing institutional accountability for sustainable practices, ensuring alignment with constitutional environmental rights, and strengthening higher education institutions' capacity to advance sustainable development.

Keywords:

Sustainability governance, higher education law, environmental constitutionalism, sustainable development, university governance.