Abstract:

In contemporary higher education institutions, policy, defined here as institutional rules or guidelines not having the force of law, and law, referring to statutes, council resolutions, and national legislation, have increasingly acquired overlapping normative authority. This article contends that misconstruing policy as law represents a pervasive yet under-examined governance failure, particularly within public universities in constitutional democracies.

The study uses both empirical and analytical methods. Empirically, it examines documented cases from the South African higher education sector. For example, the University of Cape Town's 2018 council dispute involved policy decisions mistakenly deemed legally binding, which caused serious governance conflict and prompted legal review. Other cases from United Kingdom, Canada, Australia and some Southern African Development Community (SADC) regions show that management implemented admission or disciplinary policies without enough statutory authority. These cases resulted in successful legal challenges by affected students or staff.

Analytically, this article uses doctrinal legal analysis and administrative law jurisprudence to explore the roots of policy misconstrual. It examines South African court decisions, like 'Minister of Education v Harris (2001)', which highlight the dangers of confusing policy with law. Similar issues appear in European university governance, as shown in the European University Association's 2021 review. Together, these cases show that policy misconstrual is more than a mistake. It is a systemic governance problem that undermines legality, weakens council authority, spreads accountability thin, and brings legal, ethical, and reputational risks to institutions.

The article offers a governance framework to prevent policy misconstrual. This framework has four key parts. First, it reaffirms the hierarchy of norms, making policies clearly subject to statutes, regulations, and council resolutions. Second, it strengthens council oversight by giving councils more power to review and approve university policies for compliance with the law. Third, it builds legal governance capacity through regular training for administrators and policy drafters on legal interpretation and administrative justice. Finally, it encourages a culture of lawful interpretation by embedding checks and internal audits, and by raising awareness of the different roles of policy and law. These practical steps help universities avoid policy misconstrual and support lawful, accountable governance.

Drawing on doctrinal legal analysis, administrative law, governance theory, and European comparisons, the article proposes a preventive governance framework. The framework emphasises the hierarchy of norms, stronger council oversight, legal governance capacity, and lawful institutional culture. The article concludes that placing policy in its proper role is a constitutional, ethical, and institutional imperative. This is essential for sustainable and legitimate university governance.

Keywords:

Higher education governance, policy misconstrual, rule of law, council authority, administrative justice, comparative university governance, Europe, South Africa.