UCT: The cost of cancelling Israel

OPINION FOR THE EXECUTIVE OF THE UNIVERSITY OF CAPE TOWN ON THE SUSTAINABILITY IMPACT OF IMPLEMENTING AN EARLIER SENATE RESOLUTION TO BOYCOTT CERTAIN ISRAELI ACADEMIC INSTITUTIONS

January 2019

EXECUTIVE SUMMARY

This report presents the outcome of an investigation requested by UCT with regard to the Senate resolution of 15 March 2019 that:

"UCT will not enter into any formal relationships with Israeli academic institutions operating in the Occupied Palestinian Territories as well as other Israeli academic institutions enabling gross human rights violations in the Occupied Palestinian Territories."

UCT's Council in turn was of the view that: "a number of issues required clarification, including afull assessment of the sustainability impact of the Senate resolution, and a more consultative process was necessary before the matter could be considered any further. Council resolved to refer the matter back to the Senate."

As it turns out, the above Senate resolution was, at least in part, rescinded by a subsequent Senate resolution passed on 22 November 2019. The UCT Executive Management, however, requested that the investigation resulting in the originally intended opinion, nevertheless be pursued as it could yield potentially useful information for the University for future use.

Against this background the earlier resolution of UCT's Senate and the position adopted by the UCT Council as set out earlier, is assessed with particular emphasis on the impact of implementing this Senate resolution from a potential risk perspective for UCT in a number of crucial institutional areas and sets of activities.

The views and opinions expressed in this report were formed and shaped by a series of documents made available by UCT, quantitative date and other information from its Office for Alumni and Development, its Research Office and some other sections of UCT, interviews with selected UCT officials and representatives of a number of external organisations and donor agencies/foundations, and views obtained from the German and USA embassies in South Africa.

The risk assessment yielded the following outcomes:

- Legal issues pertaining to the original Senate resolution

Two potential risks arise for UCT pertaining to this matter. The first, concerns the likelihood of such a resolution, if adopted by the UCT Council, being challenged in a court of law.

From some of the interviews conducted and from some correspondence relating to this matter amongst UCT staff members the likelihood of such a court challenge is deemed high due to the high degree of internal and external polarization which this matter has caused.

The second risk concerns the likelihood of a court of law finding against UCT in the event of the Council having accepted such a resolution. In the face of the material differences between the two legal opinions, one obtained by UCT and the other by the Academic Freedom Committee, it is impossible to predict with any reasonable degree of certainty which way a legal challenge against UCT, if it were to adopt the Senate resolution, would go. The risk of UCT being found in violation of the law in the event of such a Senate resolution being challenged if the UCT Council were to have accepted it, is thus regarded as medium.

- Views of governments of the USA and Germany

A number of recent legal and political developments at both the federal and state levels in the USA which are set out more fully in the main report, clearly point to a present USA government that is definitely pro-Israel and that would find it extremely hard to not interfere in the funding of, and rendering other forms of support, by government linked agencies such as USAID and NIH to institutions such as UCT, if the latter were to accept the earlier Senate resolution as formal institutional policy. From a risk perspective the risk of funding and other forms of support towards UCT by USA government linked agencies being negatively affected is thus extremely high.

In line with provisions regarding the preservation of the freedom of speech and of science in its Constitution of 1949 the stance of the German Government is very clear in that it cannot and will not support partnerships between academic institutions in Germany and academic institutions in South Africa if it were to perceive that any actions of South African universities will lead to inhibiting freedom of research or freedom of speech. From a risk perspective, the risk attached to the possible discontinuance of relationships between UCT and German academic institutions such as universities or research institutes, in the event of the UCT Council accepting such a Senate resolution, would thus be very high.

- UCT networks, partnerships and other forms of collaboration

Type 1 partnerships involve participation in international or regional higher education structures such as the Association of Commonwealth Universities (ACU), the Association of African Universities (AAU), the African Research Universities Associations (ARUA), the International Alliance of Research Universities (IARU), the Australia-Africa Universities Network (AAUN) etc. The risk of UCT being asked to resign from, or formally voted out of belonging to, an international and/or regional type of partnerships involving universities is thus deemed low to medium.

Type 2 partnerships typically involve partnership agreements with national or international government departments or government linked agencies such as the National Institutes of Health (USA), USAID, European Commission, Department for International Development (UK), National Centre for Scientific Research (France), International Development Research Centre (Canada), National Institutes of Health (USA), Max Planck Institutes (Germany). The risk of Type 2 partnerships being endangered and even terminated is directly linked to the stance adopted by the government of the country in question. Arriving at a general risk assessment applicable to all countries could vary from very high (Germany and USA as examples) to moderate or even low, in the case of countries that do not have a strong pro Israel stance to even zero for governments that have a strong pro-Palestinian stance.

Type 3 partnerships consist of typical inter-university MoUs which usually commit UCT and the other participating university/ research agency to a broader range of academic and research collaborative efforts. These MoUs normally form the basis for more detailed partnership arrangements which could consist of academic faculties, schools or departments or even research programmes in the two institutions working together

It can probably be accepted that universities which are strongly linked to the Jewish fraternity in some way or other could well re-consider their support for their MoUs with UCT while others may either remain neutral and in some cases could even support such a stance.

Type 4 partnerships represent funding and other collaborative arrangements between UCT and business concerns, philanthropic or other types of donor organisations and individual donors (presumably mostly alumni) The risks associated with termination of collaborative arrangements of Type 4 partnerships depends nearly entirely on each individual case. However, it is evident from some individual discussions and communications with UCT that linked philanthropic organisations and alumni who have strong to fairly strong Jewish connections would in all likelihood review and probably phase out and/or terminate their continued association with UCT. This could have catastrophic consequences for UCT academically as well as in terms of its international networking and overall standing.

Type 5 partnerships involve direct collaborative partnerships with Israeli institutions or academics based at Israeli institutions of which only 3 examples seem to exist at the moment. It is probably safe to assume that the few existing collaborative arrangements between UCT and Israeli institutions are nearly certain to be terminated - if not immediately at least in the short term.

- UCT's 3^rd stream income

From data supplied by UCT's Office of Alumni and Development it follows that:

- 15% of all UCT donations, gifts and endowments listed in the period 2015 to mid 2019 came from donors or organisations with a Jewish connection;

- 15% of all UCT donations, gifts and endowments listed in the period 2015 to mid 2019 equal to or larger than R500 000 came from donors or organisations with a Jewish connection;

- Approximately 24% of the donors and donor organisations who in this period donated or gave R20 million or more were identified as having a Jewish connection while a corresponding figure also holds for donations of R10 million or greater. In all, gifts and donations to UCT from sources marked by the Development and Alumni Office as having a Jewish connection amounts to close to R57 million per annum.

While it is not possible to say with absolute certainty in the case of implementation of the Senate resolution, that all the gifts, donations and endowments from those donors with a Jewish connection will cease, a high risk exists that this could well be the case even if not immediately then within a period of say 3 years or so. The risk on acceptance by UCT of such a resolution of losing approximately R57 million pa is thus assessed as high.

From data supplied by the Research Office it is evident that:

- Research contract contributions from the USA make up approximately 57% of all UCT research contract income for the 2015-2018 period while the corresponding figures for the UK and Europe are 18% and 16% respectively. This shows that UCT would be particularly vulnerable to reductions in funding from the USA;

- Major sources of USA research contract funding have been NIH and the Bill and Melinda Gates Foundation. Their contributions have averaged 32% and 26% of all USA contributions during this period. Any reductions in funding from these two sources would therefore affect close to 60% of all UCT's research contract income from USA sources.

Given the background set out to the USA government's general position regarding anti Israel initiatives and stances, the chances of USA research contract funding diminishing are deemed very high. A worst-case scenario would see UCT lose approximately R660 million using 2018 figures or 55% of its total research contract income. A better case scenario would, for example, see only NIH funding cut which would see UCT lose approximately R330 million using 2018 figures or approximately 28% of its research contract budget. Whatever, any reasonably significant cut in UCT research contract funding would have catastrophic consequences for UCT.

UCT also provided some data for the period 2015-2019 for externally funded student scholarships. From this it appears that:

- Approximately 36% of designated externally funded student scholarships was from sources with an identifiable Jewish connection during the period 2015-2019;

- Funding for student scholarships from sources with an identifiable Jewish connection amounted to an average of approximately Rl9.06 million p a during this period;

- Students whose studies were funded from sources with an identifiable Jewish connection made up about 50% of all students funded through such designated external funding; and

- The average number of students funded from sources with an identifiable Jewish connection was 58 p a during this period.

It is safe to assume that nearly all the students assisted through this scholarship programme would be desperately needy students and if South African, the chances of them being black are nearly 100%. This means that if funding for student scholarships from sources with an identifiable Jewish connection were to be withdrawn, potentially upwards of 50 black students p a would not be able to be assisted with the cost of their studies. This would have a very seriously detrimental effect on UCT's transformation programme. The risk of UCT's student scholarship programme being dealt a devasting blow upon acceptance by UCT of the Senate resolution is deemed very high.

- UCT's academic and organisational standing

Since staff expenditure at UCT at the moment amounts to slightly more than 73% of total expenditure. Cuts in income inevitably would have to be absorbed mainly in cutting back on the staffing budget. Due to legislative provisions relating to rights of permanent employees such cuts, if applied to staff expenditure, inevitably first affect part-time and contract employees, including post-graduate student tutors and assistants, post-doctoral fellows etc. This category of employees is often found within research programmes supported through external and time bound funds.

The risk attached to staff cutbacks mainly affecting casual, temporary, part-time, and contract staff, as well as post-doctoral fellowships and postgraduate student tutor and assistant positions is deemed very high.

Postgraduate study is of vital importance to research-oriented universities. The reasons why this is so are outlined fully in the main report. In addition, the main report also shows why the National Research Foundation would not be in a position to assist UCT in respect of postgraduate study grants beyond its present levels. UCT would thus have to absorb any cuts in 3^rd stream income affecting its postgraduate study programmes itself.

The risk of a significantly negative effect on UCT's postgraduate study endeavours and as part of the consequential domino effect, on its research outputs, its DHET subsidy funding levels and its transformation programmes is deemed high

From the evidence presented in Annexure C of the main report it appears that some of UCT's research programmes, especially in the Faculty of Health Sciences, are in real danger of being scaled down dramatically or even closed down if funding cut backs, especially from USA research contract sources, were to materialise. The risk of some of UCT's premier health science research programmes having to be terminated due to funding cuts emanating from acceptance by UCT of the recent Senate resolution is deemed real.

The net effect of accepting the Senate resolution will most certainly be that UCT would lose its standing as Africa and South Africa's premier research-oriented university. In addition, much of the exemplary research-based work being done to solve long standing social, health and economic challenges facing the majority of South Africa's population would be in danger of being lost. Recovering this would take years and years, if not decades with a real risk of it never being realised.

In view of the above it is the considered opinion that UCT Council cannot accept and approve a resolution such as the recent Senate resolution forming the topic of this investigation, and at the same time claim to be acting in the best interest of the institution

- this would simply not be true.

Based on the analyses contained in the full report the following recommendations are made:

Recommendation 1: It is recommended that the UCT Council not accept the Senate resolution passed early in 2019 and which, in any event, was rescinded by a subsequent resolution of Senate late in 2019;

Recommendation 2: It is recommended that UCT's Executive Management develops suitable measures to restore a sense of common purpose within the University's academic fraternity which specifically addresses any polarisation that may have occurred during the past year or two during the period of debate and consideration of the earlier Senate resolution regarding co-operation with Israeli institutions.

Recommendation 3: It is recommended that the UCT Council requests the Executive Management to assess the feasibility of developing proposals for possible inclusion in UCT's Institutional Statute and Rules which will better circumscribe the meaning to be attached to the notions of academic freedom and the freedom of research, and measures for their safeguarding and preservation. If proven to be sufficiently feasible such proposals should be submitted to the Council via Senate.

Recommendation 4: It is recommended that UCT's Executive Management develops a set of procedures supporting ongoing communication with all its stakeholders, including its alumni and its donor community, in the event of the University being faced with situations that are of sufficient import and seriousness in terms of decision-making;

1. INTRODUCTION

The purpose of this document is to set out an opinion for the Executive Management of the University of Cape Town on the sustainability impact of the UCT Senate resolution of 15 March 2019 given below:

As it turns out, this Senate resolution was, at least in part, rescinded by a subsequent Senate resolution passed on 22 November 2019. The UCT Executive Management, however, requested that the investigation into this matter and the development of the originally intended opinion, nevertheless be pursued as it could yield potentially useful information for the University for future use.

2. BACKGROUND

The University Council at its March 2019 meeting did not adopt the above resolution but was of the view that "a number of issues required clarification, including a full assessment of the sustainability impact of the Senate resolution, and a more consultative process was necessary before the matter could be considered any further. Council resolved to refer the matter back to the Senate."

On 10 May 2019, the Senate agreed that the UCT Executive Management would be responsible for extending the consultative process and assessing the sustainability of the resolution to boycott Israeli universities.

UCT's Executive Management consequently has requested an opinion on the sustainability impact of the Senate resolution in relation, yet not limited to, the following factors:

a) Potential to reduce resources to UCT's academic enterprise including financial, physical, human capital and organisational arrangements with respect to teaching and learning, and research;

b) The impact on all activities at UCT as it relates to membership of and participation in international networks relevant to the academic project; and

c) The relative benefits of implementing the Senate proposal.

In order to obtain such an opinion UCT enlisted the services of a consultant and provided him with numerous documents and also arranged for a set of wide-ranging interviews with UCT staff members, external individuals and representatives of a variety of organisations who could be in a position to supply further information of value in developing such an opinion. A list of these persons and representatives of structures who were contacted appears in Annexure A to this report while the documentation provided is listed in the references section.

It was agreed with all the persons contacted as set out above that while their views would be used in the report, as far as was possible such views would not be ascribed to identifiable individuals in order to protect individual privacy and rights.

3. CONTEXT

UCT is regarded as South Africa's foremost university, specifically from a research perspective and in terms of many of the more reputable university ranking systems is regarded as Africa's foremost university (see for example for 2019 rankings: Times Higher Education, Quacquarelli Symonds, US News Best Global Universities, and Academic Ranking of World Universities) Although South Africa's higher education system does not have a formal ranking system UCT is widely and consistently regarded as the country's foremost university. In terms of a number of academic output measures such as SET undergraduate success rates, proportion of graduates to total enrolments, proportion of master's graduations to master's degree enrolments, proportion of doctoral graduations to doctoral degree enrolments, research publications per academic staff member, number of NRF A rated scientists etc. it, in virtually all cases, outscores other South African universities.

This academic standing and the institution's corresponding national and international reputation has not come cheaply and has been achieved through decades of commitment to academic excellence of the highest order. This implies that decisions that could unintentionally put this academic standing at risk have to be assessed with care and diligence. Unfortunately, in Africa in particular, some of our erstwhile top universities have largely lost their former academic standing, albeit due to multiple and varied reasons, and have found it extremely difficult, if not impossible to regain their former academic standings.

Assessing the impact of the earlier Senate resolution on UCT's overall academic and research reputation would thus be of the utmost importance.

Achieving such a generally recognised high academic standing was accompanied by the recognition of the importance of establishing global academic networks and partnerships in its academic and scholarly endeavours. This has also enabled UCT to attract top international academic staff who in turn have brought their individual scholarly connections and networks with them. In this way UCT is related to a vast worldwide network of academics and academic structures, including research supporting donor organisations. It is vital that these partnerships and networks be maintained and strengthened as through them UCT maintains its international position within the family of top universities in the world.

UCT also boasts an illustrious set of alumni, many of whom have excelled in various spheres of human endeavour including the business world. These alumni have in the past made significant contributions in the form of gifts, donations and endowments to the University. Apart from this, UCT alumni are an important factor in the general positioning and recognition granted to UCT as a pre-eminent research-oriented university.

Assessing the impact of the earlier Senate resolution on UCT's partnerships and networks, as well as on its alumni giving, would likewise be important in arriving at an informed position regarding the original Senate resolution.

Earning such a status that is recognised worldwide has been backed up by sound governance systems, good institutional management, and prudent financial management of its financial resources. This includes extensive efforts to strengthen 3^rd stream income in the form of research grants and contracts, research endowments, donor funding, alumni contributions, bequests etc. In fact, UCT's 3^rd stream income ranks together with one other university as the highest in South Africa's university system. Due to public funding constraints regarding our universities, premier universities such as UCT have found that they can only maintain their research and innovation excellence in particular, by means of sustainable 3^rd stream income revenue. Any institutional decisions that could possibly dilute UCT's 3^rd stream income levels could have a negative effect on its research and innovation outputs and ultimately on its standing as a premier research-oriented university.

Assessing the impact of the Senate resolution on UCT's financial strength and especially its 3^rd stream income would assist the Council in reaching a decision on this matter.

Furthermore, matters such as the earlier Senate resolution inevitably raise many legal questions. In this regard UCT obtained an officially requested legal opinion from a constitutional law expert while its Academic Freedom Committee also obtained a legal opinion from Prof John Dugard SC, a former staff member of UCT's Law Faculty who is now at the International Court of Justice in The Hague. The views contained in these two opinions will be presented as part of indicating the level of complexity accompanying matters such as these.

At the request of the Vice-Chancellor and Principal of UCT two government points of view on this matter were specifically sought via their respective embassies in South Africa. The countries in question are: USA and Germany.

Against this background the earlier resolution of UCT's Senate and the position adopted by the UCT Council as set out earlier, should be assessed with particular emphasis on the impact of implementing this Senate resolution from a potential risk perspective for UCT in the following five broad areas:

- Legal complexities and potential legal risks for UCT in implementing the earlier Senate resolution;

- Views and positions of the governments of the USA and Germany and any risks inherent in these views for UCT's relationships with organisations in these countries;

- Risks to UCT's continued participation in an array of international academic and scholarly partnerships, networks and relationships on individual as well as institutional levels;

- Risks for UCT in not only maintaining but increasing its 3^rd stream income levels, particularly relating to contract research and development funding; and

- Risks for UCT in maintaining its overall academic standing and especially its reputation as an internationally recognised research-oriented university.

These areas, are of course, not discrete and totally separable from one another and are inter linked but are nevertheless discussed separately for the sake of clarity. Furthermore, risk assessments such as those mentioned above are normally classified as 'high risk', 'medium risk' or 'low risk'. This classification will also be followed in this report.

Assessing the impact of implementing the Senate resolution in terms of the three areas of institutional activity and endeavour set out above will enable a more informed opinion to be formulated in relation to the Executive Management's request as set out earlier in par 2.

4. APPROACH FOLLOWED

At the outset it must be stressed that this 'opinion' is one on the possible effects in the form of risk perspectives of implementing the Senate resolution in the broad areas mentioned above in order to provide an informed view for the Executive Management and UCT's Council on this matter. This opinion in no way reflects on the moral and ethical aspects of this resolution as these falls outside the scope of the terms of reference for formulating such an 'opinion'.

As mentioned earlier UCT provided numerous documents as background to the formulation of this 'opinion' which are listed in the 'references section'. These documents while very useful in providing a context to the debates that preceded the adoption the Senate resolution do not specifically address what the UCT Council termed the 'sustainability impact' of the Senate resolution which forms the subject of this document.

The approach followed in obtaining information and assessing it in order to arrive at some conclusion with regard to Council and Executive Management's request consisted of the following steps:

- Identification of some members of the UCT Executive and Senior Management who could provide informed views or obtain viewpoints from staff members in their areas of responsibility on the broad issues on which an assessment is to be based and requesting them to collate any such viewpoints and information used in arriving at conclusions;

- Arranging face-to-face interviews with most of these executive and senior managers in order to obtain any additional and/or more nuanced points of view on the possible outcomes of implementing the Senate resolution in their areas of responsibility;

- Contacting a considerable number of persons and organisations external to UCT for their views on this issue and conducting telephonic or face to face interviews with quite a few of them; and

- Obtaining a considerable amount of financial and other quantitative information having a bearing on this matter from the following sections of UCT: HR, Alumni, Research Office, and Finance.

This opinion is based on the information, views and data obtained through the above steps.

5. EVALUATION AND ANALYSIS OF INFORMATION

5.1 Introduction

At the moment only one Israeli academic institution seems to have been established in the Occupied Palestinian Territories (OPT) namely the University of Ariel. As far as could be ascertained from the information provided, UCT does not have any formal or contractual relationships with this University. Furthermore, it appears that UCT at present is involved as a secondary research partner in two, and potentially a third, research contract partnership involving Israeli academic/research institutions. In only one these cases does UCT have a direct connection to an Israeli academic institution as part of the research project. In the other cases the lead institution is an overseas academic entity and UCT thus, has an indirect connection only with Israeli institutions. One of these research contracts was scheduled for completion by May 2019.

It thus is evident that at this stage UCT's collaboration with Israeli academic institutions is fairly limited and a significant increase in such collaboration is not foreseen at present.

5.2 Legal opinions concerning the earlier Senate resolution

5.2.1Legal opinion from a constitutional expert obtained by UCT

As mentioned before UCT obtained a formally requested legal opinion from a constitutional law expert on various legal questions pertaining to the earlier Senate resolution. UCT specifically requested a legal view on the following:

- If Council has the power to adopt such a proposal?

- If so empowered, would the decision to adopt be reviewable and if so, on what grounds?

- Whether such a proposal, if adopted, would limits any rights of the Bill of Rights?

- Whether such a limitation is reasonable and justifiable in an open and democratic society?

As can be expected in such a complex matter the opinion and the arguments leading up to it are quite voluminous and thus only the final summarized opinion is given next:

1. The Council has the power in terms of the Higher Education Act and its institutional statute to decide which other universities to form formal relationships with.

2. That decision must comply with the rights in the Bill of Rights, and the principle of legality.

3. The principle of legality requires that the Council act within the limits of its powers, for the purpose for which the power was given, and rationally (both substantively and procedurally). This means:

1. The Council cannot take a decision that is not in the best interests of the University, although it has a wide discretion to determine what that is.

2. The Council must invite comment from internal stakeholders, and consider all relevant information, including external comments.

4. The Proposal will limit the right to academic freedom of both faculty and students. That limitation occurs in three ways:

1. It directly prohibits institutional collaboration which is a valuable part of the academic project.

2. It will chill even individual exchange with Israeli universities, and academic debate on the Israeli/Palestine conflict.

3. It has the potential to reduce the resources - both social and financial - that UCT has to pursue research and teaching.

5. The Proposal is not motivated by academic concerns. It is, therefore, not an exercise of the University's institutional academic freedom which extends only as far as UCT acts to promote the academic project.

6. There is no law of general application on which UCT can rely to justify the limitation of academic freedom and other related rights.

7. Even if UCT could attempt to justify the limitation of academic freedom, in these circumstances the Proposal would not be justified:

8. As UCT exists primarily to promote the academic project, when it limits academic freedom it must have a strong justification.

1. The Proposal could have a significant impact on all activities at UCT, particularly if it reduces funding or results in UCT being excluded from important international networks.

2. The goal of the Proposal - to influence the policy of the Israeli state - is a legitimate and indeed admirable one. However, it is at the periphery of the functions of a university.

3. It is doubtful whether the Proposal will achieve its intended purpose. A} Generally, a boycott by one university is unlikely to have any significant effect. B} The Proposal's focus on formal relationships limits the impact it will have on Israeli academics. C) There is reason to believe the Proposal will be counter productive by strengthening the hand of the conservative state

4. There are less restrictive means that UCT can adopt (and has adopted) to put pressure on Israel to change its behaviour towards Palestine.

9. The proposal will constitute discrimination against Jewish and Israeli faculty and students on the basis of nationality, religion and ethnic origin. It may also constitute discrimination against the wider Jewish and Israeli community. That discrimination is likely unfair, in light of the position of Jewish people as a vulnerable group that has been historically discriminated against.

We have stated these conclusions firmly, but as we set out below many of them are expressed with some caution. Above and beyond the ordinary qualifiers that apply to any legal opinion, there are three factors that make this opinion particularly difficult:

1. The issue of the legality of an academic boycott has never been litigated in South Africa or, as far as we can tell, in any other jurisdiction. Moreover, the right to academic freedom has never been properly investigated by our courts, even in other contexts. It is therefore difficult to advise with certainty about how courts will interpret the right.

2. The opinion is sought about a proposal in the abstract. However, assessing the legality of the Proposal relies in part on what practical impact it in fact has. The nature and degree of any impact is impossible to predict with precision. Any challenge to the Proposal will also depend on how litigation is framed, and what facts the challengers allege.

3. This is an intensely political issue on which people on both sides have extremely strong opinions. Both the call for justice for Palestine, and the call for free and open academic inquiry have powerful moral force. It is difficult in this context to separate the legal from the political. That applies both to this opinion, and to how a judge is likely to evaluate any possible challenge to the Proposal.

5.2.2 Opinion solicited by the Academic Freedom Committee

The second opinion is one solicited by UCT's Academic Freedom Committee from Prof John Dugard. The way in which this opinion was written makes it more difficult to extract sections that, as it were, can stand alone. Doing so may interrupt the flow of the arguments and do the opinion as a whole an injustice. The full opinion is thus given in Annexure B.

However, Prof Dugard states he was asked to: '... advise whether such a resolution is lawful under international law, the South African Constitution and South African law'.

In drafting a response four specific questions are entertained viz:

(a) Whether Israel universities operating in the Occupied Palestinian Territories {OPT} are lawful under international law.

(b) Whether such universities are lawful under the South African Constitution.

(c) Whether universities in Israel itself enable the gross violation of human rights in the OPT in violation of international law.

(d) Whether the South African Constitution or law contain any provisions of relevance to (c) if Israeli universities enable the gross violation of human rights.

Although not in all cases addressing the same issues that were addressed in the first opinion sought by UCT, it is significant that the second opinion in general finds far more grounds for positively sanctioning the Senate resolution from a legal perspective. The opinion does, however, point out some practical challenges which UCT would face in implementing certain aspects of this resolution.

5.2.3 Further legal opinion sought by UCT

In response to this second opinion obtained by the Academic Freedom Committee, UCT asked the constitutional expert who had drafted the first opinion whether Prof Dugard's opinion altered any aspect of the original opinion drafted for UCT. The response is once again given in summary form only:

'Prof Dugard's opinion has not significantly altered our opinion. He does not address the core of our opinion - whether the Proposal limits the right to academic freedom, or constitutes unfair discrimination. Our view on those issues therefore remain unchanged. We also disagree with Prof Dugard that any relationship with Ariel University or other Israeli universities would be contrary to international law or UCT's constitutional obligations. In our view, only relationships that directly contribute to the continued illegal occupation of the OPT, or human rights violations within the OPT would be unlawful in terms of international law, or possibly contrary to UCT's constitutional obligations. An absolute prohibition on academic relationships with Israeli universities is a disproportionate means to avoid those rare, unlawful relationships. Subject to the caveats expressed in our initial opinion, we continue to advise that UCT would act unlawfully if it adopted the Proposal in its present form '.

5.2.4 Risk assessment in respect of legal opinions

Two potential risks arise for UCT pertaining to this matter. The first, concerns the likelihood of such a resolution, if adopted by the UCT Council, being challenged in a court of law. From some of the interviews conducted and from some correspondence relating to this matter amongst UCT staff members the likelihood of such a court challenge is deemed high due to the high degree of internal and external polarization which this matter has caused.

The possibility of such a resolution being challenged in a court of law is thus deemed high.

The second risk concerns the likelihood of a court of law finding against UCT in the event of the Council having accepted such a resolution. From the above legal opinions, it is evident that clear differences on points of law exist regarding the legal standing of the Senate resolution between the drafters of the two opinions. Legal opinions are not absolute in their pronouncements and represent nothing more and nothing less than expert opinions on sometimes very difficult and complex matters such as the issue at hand. In the face of the differences between the two opinions it is impossible to predict with any reasonable degree of certainty which way a legal challenge against UCT, if it were to adopt the Senate resolution, would go.

If this is the case, it at the very least means that there could be a risk to UCT in formally adopting the Senate resolution, of having it overturned by a court of law, obviously depending on the nature and wording of such a legal challenge. Equally so, it is possible that the converse would hold. Whatever the outcome of such a legal challenge, the mere fact that it has occurred would cause institutional and reputational damage to the University.

The risk of UCT being found in violation of the law in the event of such a Senate resolution being challenged if the UCT Council were to have accepted it, is thus regarded as medium.

5.3 Governmental views

As mentioned earlier two specific governmental views were sought viz those of Germany and of the USA. The USA was selected largely due to the fact that UCT receives a very significant amount of funding from donor organisations with USA connections as well as the fact that it is the largest non-USA recipient of research contract funding from the National Institutes of Health (NIH) in the USA. Germany was selected as the research partners in two of its existing three research collaborations with Israeli institutions, are institutions from Germany.

5.3.1 USA governmental view

The USA governmental view has been shaped by a distinct sharpening of focus in views and positions concerning Israel under its present administration. It is a well-known fact that the USA a while back formally recognised Jerusalem as the capital city of Israel and also has moved its embassy from Tel Aviv to Jerusalem. A recent statement by their Secretary of State also indicated that the USA would no longer recognise non-recognition of Israel's rights to the Occupied Palestinian Territories.

Furthermore, twenty-seven US States have recently passed laws designed to discourage boycotts and equivalent actions against Israel. This legislation is, however, apparently being challenged as unconstitutional in several states. More recently, the US Congress passed a non binding resolution condemning boycotts of Israel by a very large margin and which was supported in large measure by both the major political parties in the USA.

Finally, the USA President recently signed an Executive Order on combating anti-Semitism in terms of Title VI of the Civil Rights Act of 1964. Effectively this means that government can now take steps to put on hold or withhold federal funding from, in the context of this investigation, any academic or research institution that is deemed to allow or endorse anti Semitism.

Regarding Israeli linked boycotts, the above points to a present USA government stance in terms of which it can be expected to exert some form of pressure regarding the continued funding of, and rendering of other forms of support, by government linked agencies such as USAID and NIH to institutions such as UCT, if the latter were to accept the earlier Senate resolution as formal institutional policy.

Although USA based philanthropic and donor agencies generally do not fall into the same category as NIH or USAID, the present USA government stance is likely to also be a factor for them in considering the continuation of their support for UCT. This aspect is discussed more fully later in this report.

From a risk perspective the risk of funding and other forms of support towards UCT by USA government linked agencies being negatively affected is thus extremely high.

5.3.2 Germany's governmental view

Germany's governmental view is largely shaped by the 1949 Constitution of the Federal Republic of Germany and its history of anti-Semitism culminating in the persecution of Jews during the period of 2^nd World War. The German Constitution recognises and upholds a number of civil rights such as freedom of speech and freedom of research. It accords equal value and importance to all these civil rights and is legally and morally committed to preserve these rights. It is important to note that these provisions apply as much to individuals as to institutions.

In line with these provisions the stance of the German Government is very clear in that it cannot and will not support partnerships between academic institutions in Germany and academic institutions in South Africa if it were to perceive that any actions of South African universities will lead to inhibiting, in this instance, freedom of research or freedom of speech. In particular the German Government, given its history with regard to the Jewish People, would be extremely sensitive if such inhibitions were to occur in relation to Israeli academic institutions. Obviously, such a stance would have an effect on any funding support flowing via The German Government to South African academic institutions. In addition, the German Government would in such cases actively discourage any universities in Germany from entering into collaborative arrangements with such South African universities.

From a risk perspective, the risk attached to the possible discontinuance of relationships between UCT and German academic institutions such as universities or research institutes, in the event of the UCT Council accepting such a Senate resolution, would thus be very high.

5.4 Assessment of effects on UCT partnerships and networks

5.4 1 Introductory remarks

UCT, as is the case with all research-oriented universities, is committed to a partnership approach at a variety of levels in which these partnerships take on a variety of forms or types. In fact, maintaining such a vast array of academic and research partnerships and collaborations forms an important part of UCT's institutional strategy as is evident from its listed strategic goals. In addition, as is the practice with high level academic institutions these partnerships and forms of collaboration are accompanied with, and supported by, academic networks and relationships with donor organisations, socio-economic and other development-oriented initiatives, and strong relations with its alumni.

The direct financial effects of any termination of collaborative agreements and any further consequences are discussed more fully later in this report.

Not all these partnerships and forms of collaboration are likely to be affected in the same manner by an implementation of the Senate resolution. The following types of collaborative partnerships are considered but should in no way be taken to cover each and every type of partnership in which UCT may be involved.

5.4.2 Types of relationships and partnerships and possible effects of implementing the Senate resolution

i) Type 1 partnerships: International university associations

Type 1 partnerships involves participating in international or regional higher education structures such as the Association of Commonwealth Universities (ACU), the Association of African Universities (AAU), the African Research Universities Associations (ARUA), the International Alliance of Research Universities {IARU), the Australia-Africa Universities Network (AAUN) etc.

While not impossible, it is unlikely that implementing the Senate resolution would have any immediate and material effect on UCT's participation in these international or regional types of collaborative structures. Participation in these collaborative structures is normally voluntary and furthermore, seldom is of such a nature as to allow for a direct influence in a particular university's decision-making processes. Generally, bodies such as those would respect the autonomy of its participating institutions.

A more complex situation could, however, arise if some Israeli institutions affected by the Senate resolution were also to be members of a body to which UCT belongs. It is not immediately clear whether the Senate resolution implies that UCT should then resign its membership of such a body or structure. A strict reading of the resolution seems to suggest that this would not necessarily be the case as any relationship between UCT and such an Israeli institution would merely arise from the fact that they both belong to a larger collective of universities.

- Risk assessment in respect of Type 1 partnerships

From the above discussion the following risk assessment is made with regard to the negative effect of UCT accepting such a resolution for this particular category of partnerships:

The risk of UCT being asked to resign from, or formally voted out of belonging to, an international and/or regional type of partnerships involving universities is thus deemed low to medium.

ii) Type 2 partnerships: National and international governments or government related agencies.

Type 2 partnerships typically, as is the case with many research universities, involves partnership agreements with national or international government departments or government linked agencies such as the National Institutes of Health (USA), USAID, European Commission, Department for International Development (UK), National Centre for Scientific Research (France), International Development Research Centre (Canada), National Institutes of Health (USA), Max Planck Institutes (Germany). In some cases, government linkages can be considerable and such agencies operate closer to their respective governments, while in other cases, while funding is largely from government sources, such structures enjoy a large degree of institutional autonomy and are free from potential government influence or interference.

Assessing the impact of implementing the Senate resolution in this case is considerably more complex. This is mainly due to two reasons:

a) The prevailing government view and political climate of the country concerned; and

b) The level of autonomy and freedom from political influence and/or interference which a government agency in a particular country may enjoy.

For example, as matters stand now it is difficult to see that the Senate resolution would have any meaningful effect on a collaborative agreement between say UCT and the European Commission or the CNRS in France. However, from the discussions on the views of the German Government on this matter it is clear that collaboration with agencies such as the organisation for German Technical Cooperation (GTZ) or any Max Planck or Frauenhofer Institutes would be at significant risk.

Given the prevailing views and policies of the USA Government, at federal as well as in many states, the uninterrupted continuance of collaboration with agencies such as USAID and NIH must be deemed to be at high risk. Senate resolution. This assessment regarding the effect of UCT accepting the said Senate resolution on collaboration with USA linked government or semi-government agencies is strengthened by the fact that:

a) In the USA history has tended to show that resolutions reflecting negatively on the State of Israel have resulted in a decline in giving amongst donor and philanthropic organisations as organisations sympathetic to Israel, have been very effective in mobilizing donors to withhold funds, especially from Jewish individuals and their family foundations to organizations and institutions even thought to embrace anti-Israel sentiments; and

b) Specifically, regarding grants from the NIH and other, the Acting Dean of the Faculty of Health Sciences sought views from academic staff in the FHS in their personal capacities who were recipients of grants in excess of R10 million. Some of these inputs address NIH funding as well as other types of USA linked funding. These inputs are summarised and given separately in an annexure but the overwhelming sentiment expressed is one of accepting that funding from USAID would effectively come to an end and funding from the NIH would in all likelihood also be reconsidered and in time withdrawn.

- Risk assessment in respect of Type 2 partnerships

Obviously, the risk of Type 2 partnerships being endangered and even terminated is directly linked to the stance adopted by the government of the country in question.

Arriving at a general risk assessment applicable to all countries is thus problematic as this could vary from very high (Germany and USA as examples) to moderate or even low, in the case of countries that do not have a strong pro-Israel stance to even zero for governments that have a strong pro-Palestinian stance.

However, the reputational damage to UCT in the case of collaborative arrangements with government linked agencies being terminated, even if only in the case of Germany and USA, would be immense. The knock-on effect of such collaborations being cancelled by say, USA and Germany, is difficult to foresee but it is entirely possible that other countries may re evaluate their support of relationships between their linked academic/research agencies and UCT.

iii) Type 3 partnerships: Inter-university MoUs

Type 3 partnerships would consist of typical inter-university MoUs which usually commit UCT and the other participating university/ research agency to a broader range of academic and research collaborative efforts. These MoUs normally form the basis for more detailed partnership arrangements which could consist of academic faculties, schools or departments or even research programmes in the two institutions working together. Such collaboration is normally driven by a smaller group of academics or even individual academic staff members.

In some cases, academics at different institutions build up collaborative relationships even though a formal MoU between their respective institutions does not exist. This usually arises from shared academic pursuits and interests.

In most democratic countries, universities even more so than research agencies, have traditionally been somewhat freer from government influences and interferences than would be the case with other government funded organisations such as research agencies.

- Risk assessment in respect of Type 3 partnerships

In the absence of any directives from their governments, the effect on UCT's Type 3 collaborative partnerships in accepting a resolution such as the recent Senate resolution, would thus depend a lot on each individual university/research agency with which it has such a formal agreement.

In the case of individual and more informal academic collaborations between academic staff at UCT and staff members at other universities, it is similarly difficult to predict the likely outcome of UCT accepting such a Senate resolution. In some cases, such a step could even be welcomed while in other cases it could be condemned.

Some evidence was presented by UCT in the form of related correspondence of such individual academic staff members at overseas institutions indicating their objection to the Senate resolution and the likelihood and even near certainty of this leading to a termination of any further collaboration.

iv) Type 4 partnerships: Partnerships between UCT and business concerns, philanthropic or other types of donor organisations and individual donors (presumably mostly alumni)

As can be expected UCT has a vast array of partnerships falling into this category of which a very large number is made up of collaborative arrangements with philanthropic organisations such as business or family foundations, and individual alumni.

In this regard UCT's international offices have reported that this resolution already has had a negative effect on their ability to secure donations and support for UCT. Some foundations have already signalled their intention of terminating their support for UCT in the event of the Senate resolution being adopted by the UCT Council while quite a sizeable number of others have voiced their concerns but have chosen to adopt a 'wait and see approach'.

In discussions with some of these foundations and philanthropic organisations it became apparent that many of them are in contact with one another regarding this matter and that a strong information and position sharing network exists amongst them. These networks imply that any decision by one them to terminate relationships with UCT may have a significant knock-on effect.

In this regard some evidence was presented that shows that the so-called 'solidarity' effect amongst the donor organisation fraternity has resulted in donor organisations that do not have any Jewish connections also reconsidering their UCT support relationships.

Some family foundations who either have long standing ties with UCT or who are contemplating such ties, have raised issues such as:

- Foundations prefer entering into longer term relationships and commitments with UCT but the prospect of such resolutions as the recent one by Senate becoming UCT's officially approved position makes this difficult for them. In some way of other UCT should endeavour to find ways and means which would enable such foundations to a reasonable measure of assurance that any commitment to longer term associations with UCT would not become problematic for them;

- Even if UCT's Council were not to accept the Senate's resolution, it would be helpful if UCT could find ways in which the recurrence of similar situations were managed better through a clearer position on matters such as academic freedom and freedom of research being incorporated into official UCT policies etc. This would make the management of such situations less dependent on persons and individuals within UCT or associated with UCT; and

- In situations such as the above donors would appreciate being kept informed regularly of any relevant developments etc. It would be helpful if they received first hand information from UCT and not receive their information via the media.

Furthermore, in the UK UCT was denied an already given approval by a company from using its offices for hosting a reception due to 'political' pressure from its clients linked to the Senate resolution;

As far as alumni reactions to the implementation of the Senate resolution are concerned it is striking that approximately 25% of UCT's alumni community who are listed on UCT's database as having made some financial contributions to the University, either as individuals or through family foundations, during the past 5 years, were identified as having strong Jewish connections. Many of them represent extremely influential individuals/organisations who have had a very long relationship with UCT. The termination of these relationships, apart from the financial effects which are discussed later, would have a disastrous effect on UCT academically and in terms of national and international positioning and standing.

- Risk assessment in respect of Type 4 partnerships

The risks associated with termination of collaborative arrangements of Type 4 partnerships, as before, depends nearly entirely on each individual case. However, it is evident from some individual discussions with such organisations and communications with UCT that linked philanthropic organisations and alumni who have strong to fairly strong Jewish connections would in all likelihood review their continued association with UCT. This could have catastrophic consequences for UCT academically as well as in terms of its international networking and overall standing.

v) Type 5 partnerships: Direct collaborative partnerships with Israeli institutions or academics based at Israeli institutions

As mentioned earlier, very little active collaboration exists at the moment between UCT and Israeli institutions. In addition, it is not immediately clear on what information or judgment a classification is to be based with regard to a specific Israeli institution falling under the Senate resolution (or not).

- Risk assessment with regard to Type 5 partnerships

Despite the above caveats it is probably safe to assume that the few existing collaborative arrangements between UCT and Israeli institutions are nearly certain to be terminated - if not immediately at least in the short term.

5.4.3 Risk assessment in respect of networks and partnerships

Establishing networks and relationships with any of the entities, organisations or structures, and alumni and related foundations mentioned above with the aim of securing support for giving and for research and other scholarly endeavours does not happen in and of itself. Establishing such relationships usually require years of discussion and relationship building and a matching of the financial support areas of donors and donor organisations with UCT research themes and thrusts. Maintaining such relationships also requires constant attention and follow-up which if not pursued easily leads to a cooling off in interest and commitment to UCT.

Furthermore, such donor funding is normally subject to time limits and constant review in terms of the performance and relevant usage of funds by UCT and the continued matching between donor funding priorities and UCT research niche areas. In addition, accessing donor funding has become a highly specialised exercise and requires specific networking expertise due to over subscription of available donor funds by competing universities and other research agencies. Losing the support of a single, or worse still, a few collaborative organisations, can, apart from the financial effects, have serious reputational and positioning consequences for universities. Replacing such external networks and relationships, if successful at all, may take a number of years due to an increasingly competitive environment.

From the analyses covering the various types of UCT networks, partnerships and collaborations the overall risk assessment, if the Senate resolution is accepted, is that maintaining and strengthening these networks and partnerships will be severely impaired and in will in fact in a number of cases come to an end. This much is alo evident from the views and correspondence presented in Annexures C and D.

5.5 Assessment of possible 3^rd stream income effects

5.5.1 Introductory remarks

UCT such as is the case with other research-oriented universities in South Africa is heavily dependent on 3^rd stream income in maintaining its research and innovation endeavours. The country's research-intensive universities are normally understood to include UCT, Wits, SU, UKZN and Pretoria University while some would also include Rhodes University.

For this grouping of universities, government subsidies make up approximately 40% of their income while tuition fees seldom make up more than about 20% meaning that approximately 40% of their income is constituted of 3^rd stream income. In the case of UCT and also for Stellenbosch University, 3^rd stream income actually makes up approximately 45% -50% of their total income and easily surpasses government subsidies as their primary revenue source.

3^rd Stream income is normally understood to be made up of mainly of externally funded research grants, research contract income, endowments and bequests, gifts, and grants for scholarships etc. In some cases, endowments are also made for the provision of equipment and infrastructure. In addition, 3^rd stream income could also include income from the commercialisation of intellectual property and income from the sale of goods and services and rental of facilities etc.

For these universities in particular, strengthening 3^rd stream income has come to be vital to maintaining their continued standing as eminent research-intensive institutions. This is not likely to change in the foreseeable future and in fact is destined to become an even greater matter of 'life and death' for these universities. This is mainly due to the following factors:

- Government subsidies that have not kept pace with general price inflation let alone with higher education price inflation which typically runs about 2% higher, nor with student enrolment increases;

- Sluggish internal economic growth affecting especially our business sector, coupled to higher levels of competition for 3^rd stream income;

- Incorporating staff formerly rendering outsourced services resulting in significant increases in staff expenditure;

- Giving by external parties to universities increasingly being linked to specific designated research or institutional support areas reducing amounts of unencumbered 3^rd stream giving;

- Resistance to increasing tuition fee levels in order to match rising costs; and

- Rising student tuition fee debt which in many cases has had to be written off.

In addition, an improvement in government funding levels is simply not on the cards at the moment. On the contrary, universities are expecting a further decline in government funding due to pressures on the fiscus due to the poor economic outlook for our country coupled to the cost of providing for the funding of 'free higher education for the poor' as instituted a few years ago by government.

As a general statement UCT, as is also the case with the other research-intensive universities in our country, simply cannot afford its 3^rd stream income levels to drop as it will not be able to sustain its existing research and innovation endeavours and will inevitably have to cut back on these endeavours which in turn will have negative effects on its overall national and international academic standing.

5.5.2 Quantitative funding effects of implementing the Senate resolution

Of course, not all 3^rd stream income would be affected by acceptance of the Senate resolution so that it is important to narrow down the more general statements made above in relation to decreased 3^rd stream income.

Data on income derived from donor gifts and endowments, including from alumni was provided by the Department of Development and Alumni while data on grants etc. related to specific research contracts and agreements was provided by the UCT Research Support Office.

i) Data received from Development and Alumni Office

The Department of Development and Alumni provided data on donations, endowments and research grants from a variety of UCT donor sources from 2015 to mid 2019. In doing so they also identified all those donors or donor organisations with a Jewish orientation or connection. This they did only in those cases where they were sure of their assessment but also marked those donors or donor organisations where they suspected that such a connection existed but were not sufficiently sure to make such an assessment. In the analysis that follows only those donors or donor organisations for whom a sufficient level of certainty existed regarding their Jewish connections, are considered.

Table 1: Donations, endowments and other gifts and grants recorded from beginning 2015 to mid 2019 recorded by the UCT Department of Development and Alumni Relations

Total amount of endowments, donations and gifts	Total amount of endowments, donations and gifts equal to or larger than R500 000	Total amount from donors and donor organisations with a Jewish connection	Total amount from donors and donor organisations with a Jewish connection equal to or larger than R500 000
R1 735 224 738	R1 732 776 932	R 255 914 083	R255 464 627

Source: UCT Department of Development and Alumni Relations

From Table 1 it follows that:

- 15% of all UCT donations, gifts and endowments listed in the period 2015 to mid 2019 by the Department of Development and Alumni came from donors or organisations with a Jewish connection; and

- 15% of all UCT donations, gifts and endowments listed in the period 2015 to mid 2019 by the Department of Development and Alumni equal to or larger than RSOO 000 came from donors or organisations with a Jewish connection.

Furthermore, approximately 24% of the donors and donor organisations who in this period donated or gave R20 million or more were identified as having a Jewish connection while a corresponding figure also holds for donations of RlO million or greater. In all, gifts and donations to UCT from sources marked by the Development and Alumni Office as having a Jewish connection amounts to close to R57 million per annum.

While information on all the foundations and donor organisations is not available evidence has been presented that at least in some cases where these foundations/donor organisations also fund academic activities involving Israeli institutions, they also do so for programmes and projects specifically targeting the support and development of Palestinian academics and academic activity amongst Palestinians.

Some may argue that while implementing the Senate resolution may put gifts and donations from donors and donor organisations with a Jewish connection at risk, it could also open up new avenues of funding from donors or organisations who are strongly in favour of the Palestinian cause. Unfortunately, at this stage no concrete data exists to assess such a position in general and specifically for UCT although some of those interviewed regarded this as extremely unlikely.

- Risk assessment in respect of giving from sources with a Jewish connection

While it is not possible to say with absolute certainty in the case of implementation of the Senate resolution, that all the gifts, donations and endowments from those donors with a Jewish connection will cease, a high risk exists that this could well be the case even if not immediately then within a period of say 3 years or so. As pointed out above this means that approximately R57 million p a would be at risk.

The risk on acceptance by UCT of such a resolution of losing approximately R57 million p a is thus assessed as high.

ii) Data received from the Research Support Office

UCT annually enters into a large number of research contracts with many entities across the world. In 2018, for example, 1006 contracts to the value of Rl 201.7 million were entered into with non-UCT foreign entities compared.

Table 2: Foreign research contract income for UCT for the period 2015-2018 (figures in R 000 000)

Amount	2015	2016	2017	2018
USA	550.1	548.0	476.0	663.0
NIH	174.2	180.5	273.7	331.0
B&M Gates F	183.5	187.1	58.4	154.0
UK	156.2	113.3	230.0	223.0
Europe	93.3	123.8	191.0	223.0
Other	80.7	51.9	101.0	92.7
Total	880.3	837.0	998.0	1201.7

Source: UCT Research Office

From Table 2 it appears that research contract contributions from the USA make up approximately 57% of all UCT research contract income for the above period while the corresponding figures for the UK and Europe are 18% and 16% respectively. This shows that UCT would be particularly vulnerable to reductions in funding from the USA.

Table 2 also shows that major sources of USA research contract funding have been NIH and the Bill and Melinda Gates Foundation. Their contributions have averaged 32% and 26% of all USA contributions during this period. Any reductions in funding from these two sources would therefore affect close to 60% of all UCT's research contract income from USA sources.

In Table 3 a more detailed breakdown is given of UCT research contract funding for 2017.

Table 3: Major research related grants/contracts recorded for 2017 by the UCT Research Support Office

Entity	Value (Rm)
Department for International Development (UK)	38
Bill & Melinda Gates Foundation (USA)	58.4
EDCTP - European & Developing Countries Clinical Trials Partnership	14
European Commission	44
Family Health International	37
International Development Research Centre (Canada))	26
Foundation for the National Institutes of Health (USA)	39
London School of Hygiene and Tropical Medicine (UK)	22.5
National Institutes of Health (USA)	273.7
University of Gothenburg (Germany)	8.3
USAID (USA)	13.4
Wellcome Trust (UK)	107.4

Source: UCT Research Support Office

In this case it is not possible to deduce levels of Jewish connectedness or not as was possible in the case of the data received from the Office for Development and Alumni.

- Risk assessment in respect of research contract funding

If one accepts that for the moment USA research contract funding would be at risk to a greater degree than would be the case say for the UK or Europe (with the exception of Germany) the next question becomes one of to what degree would USA research contract funding be at risk?

Given the background set out to the USA government's general position regarding anti Israel steps and stances, the chances of USA research contract funding diminishing are deemed very high.

A worst-case scenario would see UCT lose approximately RGG0 million using 2018 figures or 55% of its total research contract income. A better case scenario would, for example, see only NIH funding cut which would see UCT lose approximately R330 million using 2018 figures or approximately 28% of its research contract budget. Whatever, any reasonably significant cut in UCT research contract funding would have catastrophic consequences for UCT to put it mildly.

The next set of data obtained from the Research Office concerns the exact nature of research contract activities involving Israeli institutions.

Table 4: Research grants and direct collaboration with institutions in Israel during 2018

Start date	End date	Title of project	Partners
06/06/2018	05/06/2021	MTA for Infant Plasma and Peripheral Blood Mononuclear Cells	Univ of Potsdam and Ben Gurion University of the Negev
To begin	31/12/2022	Resurrection plants reveal secrets of vegetative desiccation tolerance [RESIST] project Partnership Agreement	Ben Gurion University of the Negev
01/06/2015	31/05/2019	Grant Agreement -Horizon 2020 Call: H2020-SFS-2014-2. Topic: SFS-03a- 2014.nEUROSTRESSPEP	Agricultural Research Organisation of Israel

Source: UCT Research Support Office

As has already been pointed out UCT is not involved in a large number of projects with Israeli institutions and as is evident from Table 4 does so not as the lead partner but as one of a group of research partners.

iii) Data concerning externally funded student scholarships

UCT also provided some data for the period 2015-2019 for externally funded student scholarships. This is probably not the total external funding devoted to scholarships as some alumni and family foundations include student scholarships amongst a number of projects and programmes they fund.

Table 5: Externally funded student scholarship programmes for the period 2015-2019

Total amount of endowments, donations and gifts	Total number of students assisted from all donations for student scholarships	Total amount from donors and donor organisations with a Jewish connection	Total number of students assisted from donations for student scholarships with a Jewish connection
R236 268 747	527	R85 768 533	263

Source: Office of DVC: Transformation From the above table it appears that:

- Approximately 36% of designated externally funded student scholarships was from sources with an identifiable Jewish connection during the period 2015-2019;

- Funding for student scholarships from sources with an identifiable Jewish connection amounted to an average of approximately R19.06 million p a during this period;

- Students whose studies were funded from sources with an identifiable Jewish connection made up about 50% of all students funded through such designated external funding; and

- The average number of students funded from sources with an identifiable Jewish connection was 58 pa during this period.

- Risk assessment regarding student scholarship funding

From the above it is apparent that funding from sources with an identifiable Jewish connection plays a fundamentally important part in student scholarship funding. If all this funding were to be withdrawn on acceptance by UCT of the recent Senate resolution, UCT's student scholarship programme would be dealt a devastating blow. But even more importantly, an average of 58 students p a would have to find alternative sources of support with a high risk of not being able to do so and either build up a sizable student study debt or worse still, having to withdraw form studying at UCT at all.

The risk of UCT's student scholarship programme being dealt a devasting blow upon acceptance by UCT of the Senate resolution is deemed very high.

5.5.3 Risk assessment with regard to UCT 3^rd stream income

From the above analyses the overall risk assessment with regard to 3^rd stream income if UCT were to accept the Senate resolution, is that the risk is very high and probably inevitable, that UCT would suffer a serious and irreversible decline in its 3^rd stream income with disastrous consequences for it in its pursuit of fulfilling its general academic and organisational responsibilities.

5.6 Impact on UCT1s academic and research, as well as other operational activities

5.6.1 Introduction

As was pointed out earlier, all South African universities, and especially the research-intensive ones, have been operating under increasing financial strictures for the last decade or two. UCT is no exception and has thus far been fairly successful in mitigating the most negative effects of these funding strictures but, like many universities, is 'scraping the barrel' at the moment. Any financial cut or reduction in any of its funding sources will hit the University hard, as is the case at the moment, with all South African universities.

5.6.2 Effects on staff expenditure

Since staff expenditure easily amounts to 60%-70% or more of a university's total expenditure such cuts inevitably have to absorbed mainly in cutting back on the staffing budget. In the case of UCT this figure amounts to slightly more than 70%. Usually it is not possible for any university to absorb the full effects of any financial cuts through its non-staff costs budget only and any significant cuts invariably have implications for staff employment.

If a purely mathematical argument is followed it thus means that if, for arguments sake, UCT's total income is reduced by 15% through reduced donor funding and research contract income, staff expenditure has to be reduced by 0.70.x 0.15 which would equal a cut of more than 10% in the staffing budget.

Due to legislative provisions relating to rights of permanent employees such cuts, if applied to staff expenditure, inevitably first affect part-time and contract employees, including post graduate student tutors and assistants, post-doctoral fellows etc. This category of employees is often found within research programmes supported through external and time bound funds.

Evidence has been presented, particularly from the Faculty of Health Sciences that precisely these categories of staff members would be affected first and the following has been pointed out as the inevitable staff related consequences of such a withdrawal of funds:

- Cutting back or even terminating the services of part-time and contract research staff;

- Curtailing the number of student tutor and assistant positions available; and

- Limiting the intake of post-doc fellowship positions.

Furthermore, evidence was presented that such cut backs in staff support would particularly affect black post-graduate students as many of the research programmes go all-out to attract such post graduate students as part of UCT's transformational drive.

- Risk assessment of potential staff cut-backs

Based on the information given earlier as well as the feedback from research programme leaders given in the annexures it is difficult to see how such staff cutbacks can be avoided in the event of UCT accepting such a resolution as the one recently passed by Senate. The risk attached to staff cutbacks mainly affecting casual, temporary, part-time, and contract staff, as well as post-doctoral fellowships and postgraduate student tutor and assistant positions is thus deemed very high. The risk of such an eventuality affecting largely black staff members falling into the above categories is extremely high.

5.6.3 Effects on UCT postgraduate study

Postgraduate study is of vital importance to research-oriented universities. This is mainly due to the following reasons:

- Advanced post graduate students frequently from part of longer-term research teams and such research projects usually form the basis for their Ph D studies. In this way Ph D students actively contribute towards an institution's research outputs;

- The DHET funding formula rewards postgraduate study and particularly advanced postgraduate study through favourable funding weightings. A strong emphasis on postgraduate study thus generates considerable input and output subsidies for universities;

- A healthy student enrolment and throughput in honours and masters study programmes provides a constant pipeline for PhD study which as pointed out is essential for maintaining research outputs and which also generates DHET subsidy funding; and

- Strong postgraduate programmes form an important part of the transformation commitment of universities in that apart from providing an avenue for changing the race and gender profile of the postgraduate student body they also provide a solid base for institutions in 'growing their own timber' as part of their efforts to change their staff profiles.

Some will argue that acceptance of the Senate resolution should not have any material effects on UCT's proven strengths in post graduate study. This, the argument would contend is due to the fact that National Research Foundation funding for post graduate study is not likely to be affected. However, this will not be the case due to the following reasons:

i) NRF at the moment only supports approximately 10% of all postgraduate students in South Africa;

ii) NRF's Parliamentary Grant- the main vehicle used for such postgraduate student support has been growing annually at less than 5% p a meaning that it is faced with the dilemma of either awarding higher levels of support to fewer students or awarding clearly insufficient levels of support for more students;

iii) NRF has traditionally not been awarding postgraduate study support grants for honours degree study. This means that universities have to make up for this lack themselves from their 'own' funds;

iv) NRF is embarking on a new funding regime for postgraduate study support at South African universities which if fully implemented will probably mean that fewer students will be supported but at higher funding levels;

v) NRF has been finding it very difficult to extend postgraduate study support sufficiently into the humanities and social sciences and does not seem likely to be able to improve in this respect in the near future due to funding shortages.

The second reason why an acceptance of the Senate resolution would have an alarmingly negative effect on UCT's post-graduate study efforts is that research-oriented universities have generally found that they can only maintain their postgraduate programmes through strong flows of 3^rd stream income. A diminishing of 3^rd stream income inevitably affects post graduate study negatively. It has already been shown that UCT is likely to experience a significant drop in 3^rd stream income which in turn will affect its postgraduate study endeavours negatively.

- Risk assessment in respect of post-graduate study

Some of the responses represented in Annexures C and D emphasise the risk that UCT would run if its 3^rd stream research contract income were to be cut in terms of postgraduate student involvement in some of its research programmes being curtailed or even coming to an end.

5.6.4 Effects on some UCT research programmes

From the evidence presented in Annexure C it appears that some of UCT's research programmes, especially in the Faculty of Health Sciences, are in real danger of being closed down if funding cut backs, especially from USA research contract sources, were to materialise. This would be tragic to the extreme as UCT, and especially its health sciences research is widely regarded as being pre-eminent on the African continent. In addition, its health sciences research is contributing very significantly towards solving health challenges in Africa and particularly Southern Africa. It would be absolutely disastrous for general health standards in Africa and Southern Africa if these research programmes were to be terminated. As in the previous cases it would be precisely those who are most vulnerable and susceptible to the various diseases targeted in these programmes who mainly constitute the poor and needy, that will be affected.

- Risk assessment in respect of research programmes being terminated

The risk of some of UCT's premier health science research programmes having to be terminated due to funding cuts emanating from acceptance by UCT of the recent Senate resolution is deemed real. For those programmes funded through NIH or other USA sources which are somehow government linked this risk is deemed high. Even for those programmes funded by, for example, the Bill and Melinda Gates Foundation a substantial risk of being cut back or even terminated exists as funders generally do not like to be associated with institutions that have become 'controversial'. In addition, especially USA foundations are often the target of fight back campaigns from Jewish quarters when funding institutions espousing what is perceived to be clear anti-Israel positions.

Unfortunately, the domino effect of steps such as the above is often that a university's top academics are lost to competitor institutions, nationally and internationally, who are subject to less intense financial strictures. In fact, in some cases the entire research programme including 'research labs' associated with such a programme and all its staff are scooped up by other universities. Such a blow can be extremely heavy as building up an entire research team around a specific research programme and attaining international recognition for its work does not come easily and is usually the outcome of many years of dedication and commitment.

In addition, such cuts and their consequential effects inevitably lead to a demoralised academic staff corps which cannot but affect a university's overall production of academic outputs.

Clearly if the above were to actually materialise in the case of UCT, it would face severe challenges to maintaining its academic and research standing. In fact, it is hard to see UCT maintaining its position as South Africa's premier research-oriented university if cuts of up to say R100 or R200 million p a have to be absorbed in its broader research endeavours, coupled to the negative perceptions the University would have to encounter through the withdrawal of a portion of its external funding support base.

Furthermore, invariably some faculties are hit harder through such an unfortunate run of events. In this case it seems as if the Faculty of Health Sciences could run the greatest risk within the University of having to cut back very significantly on its research activities. Apart from the academic consequences the negative effects of such cut backs in the Faculty's contribution to achieving higher levels of general public health in South and Southern Africa would be impaired severely. This Faculty has also been active in bringing about transformation in the health services sector through a committed programme of training and delivery.

5.6.5 Risk assessment in terms of academic and reputational standing

From the above analyses it is evident that the risk that UCT would suffer serious consequences in respect of its ability to recruit, develop, and retain academic staff is high. In addition, the risk of a significant retarding of its transformational efforts in changing its staff profile is also high. The risk is high that UCT would suffer negative consequences regarding the strength of its post-graduate study endeavours. Similarly, the risk is high that the continuation of many of its research programmes, especially those in the health sciences would be adversely affected and accompanied by a 'fall-out' in terms of staff development, research outputs and contributions to society in improving social, economic and health related conditions.

6. CONCLUSION

Based on the discussion and analysis, findings and risk assessments presented in especially Section 5 of this report the inescapable conclusion has to be reached that UCT's Council would not be executing its fiduciary duty with regard to UCT if it accepted the Senate resolution given earlier. Overwhelmingly the information and evidence presented demonstrates the very high negative risk attached to nearly all the matters analysed. Clearly the Council's acceptance of such a resolution would lead to disastrous academic, organisational, reputational and financial consequences for the University apart from opening up the University for possible legal challenges in this regard.

- this would simply not be true.

Based on the analyses contained in the full report the following recommendations are made:

Recommendation 1: It is recommended that the UCT Council not accept the Senate resolution passed early in 2019 and which was rescinded by a subsequent resolution of Senate late in 2019;

Recommendation 2: It is recommended that UCT's Executive Management develops suitable measures to restore a sense of common purpose within the University's academic fraternity which specifically addresses any polarisation that may have occurred during the past year or two during the period of debate and consideration ofthe earlier Senate resolution regarding co-operation with Israeli institutions.

7. BIBLIOGRAPHY

Bishop M: Opinion for the University of Cape Town on the Lawfulness of Adopting a Proposal to Boycott Academic Institutions. 2019

Bishop M: Supplementary Opinion for the University of Cape Town. 2019

Department of Higher Education and Training: Higher Education Act, Nol0l of1997. Pretoria.

Dugard J: Opinion on Relations between UCT and Israeli Universities. 2019 UCT: Institutional Statute and Institutional Rules. 2016

UCT: Various supplementary internal documents of which authorship is not indicated:

i) Academic Freedom Committee resolution regarding the proposal for the academic boycott of Israeli Academic Institutions. 2017;

ii) Summarising Options for the Academic Boycott of Israeli Academic Institutions;

iii) Statement from the Executive of the University of Cape Town.2018

iv} UCT Council on the resolution of the Senate regarding formal relationships with Israeli academic institutions in the Occupied Palestinian Territories. 2019

United Nations: Elimination of all forms of religious intolerance. 74^th Session. 2019

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