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[2016] ZAWCHC 198
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Williams and Another v University of the Western Cape and Others (24537/2015) [2016] ZAWCHC 198 (15 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
REPORTABLE
CASE
NO: 24537/2015
In
the matter between:
BRIAN
PATRICK
WILLIAMS
First
Applicant
SONGEZO
MAQULA
Second
Applicant
and
THE
UNIVERSITY OF THE WESTERN
CAPE
First
Respondent
THE
COUNCIL OF THE UNIVERSITY OF
THE
WESTERN
CAPE
Second
Respondent
THE
CHAIRPERSON OF THE COUNCIL
OF
THE UNIVERSITY OF THE WESTERN
CAPE
Third
Respondent
THE
CONVOCATION OF THE UNIVERSITY
OF
THE WESTERN
CAPE
Fourth
Respondent
JUDGMENT
DELIVERED ON 15 NOVEMBER 2016
GAMBLE,
J:
INTRODUCTION
[1]
In its recent judgment in
Hotz
[1]
the Supreme Court of Appeal described the unrest which has
beleaguered South African university campuses over the last 18 months
or so primarily around the call by students for free tertiary
education. The background to this judgment are the demands of the
so-called “
#Fees Must
Fall”
social
movement (“FMF”) as described in that judgment, this time
on the campus of the University of the Western Cape
(“UWC”
or “the University”, as the case may be) in Bellville
South during October 2015. What began as peaceful
protest turned
violent towards the end of that month culminating in a public meeting
on Sunday 31 October 2015 on the campus dubbed
“
Prayers
for Peace”.
As the name suggests,
this event was intended to engender a sense of calm amongst students
on the campus through introspection and
the intercession of religious
leaders.
[2]
The applicants attended, and both
addressed, the gathering. The applicants claim that their intention
in doing so was to make a
constructive contribution towards bringing
peace to the campus. Others claim that the applicants added fuel to
the fire by sweeping
up students and encouraging them to continue
with their protest which is aimed at bringing about change to the
system of funding
of students at South African universities.
[3]
The first applicant (“Mr Williams”)
was formerly the chair of the second respondent, (“the
Council”). In
October 2015 both Mr Williams and the
second applicant (“Mr Maqula”) were ordinary members of
Council. Mr Williams,
it seems, was taken up by the FMF movement and
supported their cause. He considerd it prudent to call upon the third
respondent
to convene a special sitting of the Council to consider
the unrest on campus and cited similar meetings of councils on other
campuses
to that end. The third respondent’s refusal to accede
to this request was not taken lightly by Mr Williams who considered
it an abdication of the Council’s responsibilities toward the
University.
[4]
The presence of the applicants at the
“
Prayers for Peace”
meeting
was seemingly in their respective personal capacities, that is to
say, they did not attend at either the request of, or
with the
blessing of, the Council. Evidently certain members of the Students
Representative Council (“the SRC”) took
umbrage at the
presence of the applicants at the “Prayers for Peace”
gathering, claiming that they attended without
the SRC’s
invitation and complained to the Council in writing about their
conduct at the meeting which was allegedly inflammatory
and
unacceptable to the SRC. The complaint was lodged on the letterhead
of the SRC on 6 November 2015 but was unsigned.
[5]
On 26 November 2015 the Council held one of
its ordinary quarterly meetings which was attended by the applicants
as they were entitled
and required to do. At the meeting the
applicants were confronted with an agenda item (they say added late ,
and therefore unprocedurally)
relating to their attendance at the
prayer meeting. The item was based on the SRC complaint which called
for disciplinary action
to be taken against the applicants. The
applicants did not recuse themselves from the meeting when the agenda
item was debated,
choosing rather to confront their accusers. The
outcome of this agenda item (after limited debate and a secret
ballot) was that
both applicants were immediately suspended from
Council.
[6]
The suspension was accompanied by the
immediate establishment of an
ad hoc
committee of the Council to probe the
factual basis for the allegations made against the applicants and for
a recommendation as
to the appropriate response from the Council. On
30 November 2015 the Registrar of UWC wrote to the applicants
informing them of
a disciplinary enquiry to be held against them on 3
and 4 December 2015. However, the enquiry did not go ahead as planned
because
the applicants claimed that they were unable to attend. They
also requested documentation relevant to the proposed enquiry to
enable
them to be able to prepare.
[7]
The applicants lost little time in
challenging the Council’s decision, launching urgent papers in
this Court on 18 December
2015 for orders declaring their respective
suspensions from Council to have been unlawful, reviewing and setting
aside those suspensions
and requesting their reinstatement as full
members of the Council. That application was opposed by UWC which was
then required
to make available its record of decision in terms of
Rule 53 (1). It complied with this procedural step around 26 January
2016.
[8]
In the meantime the
ad
hoc
committee, under the chairmanship
of Dr Raymond Patel, the vice chair of the Council, went about its
business. Its invitation on
12 January 2016 to the applicants to
attend its sitting on 21 January 2016 was spurned on a number of
procedural grounds: they
challenged the impartiality of the
committee, sought a plethora of documents before they were prepared
to participate in its proceedings
and claimed, in any event, to be
unavailable on the day. In the result the
ad
hoc
committee did not hear the
applicants. It prepared a report for the Council recommending
disciplinary action which was submitted
to the applicants and their
legal representatives for comment on 29
February 2016. The applicants elected
not to comment but once again requested documentation in an obvious
endeavour to filibuster
the contemplated proceedings.
[9]
Ultimately the applicants’ attorneys
undertook to make submissions to the
ad
hoc
committee by 25 April 2016 but did
not make good on their promise. The
ad
hoc
committee accordingly finalised its
report without input from the applicants and tabled it before the
Council for consideration
at a quarterly meeting on 30 June 2016. The
recommendation remained the same. The applicants, then still under
suspension, were
precluded from attending that meeting which
resolved, there and then, to expel Mr Williams with immediate effect.
Mr Maqula, on
the other hand, was suspended pending a disciplinary
enquiry to follow. I shall revert to this meeting in more datil later
but
suffice it to say that the report of the
ad
hoc
committee formed an important part
of the Council’s deliberations on that day.
[10]
The applicants were clearly in no great
hurry during the first semester of 2016. They waited for some 10
weeks after delivery of
the Rule 53 record before amending their
notice of motion and delivering supplementary affidavits. They took
no steps to hasten
the filing of any answering papers, either by
correspondence to the opposing attorneys or through a chamber book
application, the
customary local procedure to enforce the filing of
overdue affidavits.
[11]
On 7 July 2016 the applicants filed a
further amended notice of motion so as to further challenge the
decisions of the Council of
30 June 2016, together with further
supplementary affidavits dealing with the recent events. This notice
of amendment was opposed
by the respondents. On 8 July 2016 the
University filed its answering papers which, together with
accompanying annexures, ran to
more than 200 pages. On 11 July 2016
the parties took a court order by agreement enrolling the review for
hearing on 5 September
2016. In that order the parties agreed that
the terms of the amended notice of motion would stand. Thereafter
there was a flurry
of further exchanges of paper with the result that
the matter was not ripe for hearing in September, the parties
agreeing to a
postponement to 3 November 2016. Another paper storm
ensued thereafter but ultimately the matter was regarded as ready for
hearing
on the day.
[12]
This court heard argument from the parties
on Thursday, 3 November 2016. The applicants were represented by
Advs. A.J. Freund SC
and M.Osborne and the respondents by Advs.
W.R.E.Duminy SC and N.Mangcu-Lockwood. The court is indebted to
counsel for their detailed
heads of argument and oral submissions
which have facilitated the delivery of this judgement.
[13]
It was agreed in advance that the matter
would run over to Friday, 4 November 2016 if required. While
addressing the court during
the afternoon session on the Thursday, Mr
Duminy SC requested a short adjournment to attend to an instruction
from UWC. The matter
stood down and the court was later informed in
chambers that the parties were exploring a resolution of the dispute.
The case accordingly
stood over till the following day. A report in a
local newspaper on the morning of Friday 4 November 2016 quoted a
press statement
issued by the third respondent (the chair of the
Council, Mr Perry-Mason Mthunzi Mdwaba) to the effect that the
expulsion of Mr
Williams had been revoked and the suspension of Mr
Maqula set aside.
[14]
When the matter was called in court that
morning Mr Duminy SC handed up the first to third respondents’
consent to a judgment
being granted in the terms set out therein. At
first blush this appeared to be a complete capitulation to all of the
relief sought
by the applicants in terms of the amended notice of
motion of 10 July 2016. Included in the consent was the revocation of
the expulsion
and the suspension and an undertaking to bear the
applicants’ costs on the punitive scale. However, Mr Freund SC
informed
the court that the applicants were not happy with the extent
of the concessions made by the respondents, pointing out that there
was certain crucial relief sought in prayer 2.1 of the amended notice
of motion which had not been conceded by the University.
In the
result, there was further argument by the parties during the course
of that morning whereafter judgment was reserved.
THE
ISSUE REMAINING FOR DETERMINATION
[15]
That which remains for consideration will
appear from the bold emphasis in prayers 2 and 2.1 hereunder, the
full extent of the prayer
with its subparagraphs being recorded for
the sake of completeness:
“
2. It is declared that the following
decisions pertaining to the Applicants taken by the Second
Respondent,
and any decisions,
steps or measures consequent
upon aforementioned decisions
,
are invalid, and are reviewed and set aside:
2.1. Of
26 November 2015
, to suspend the Applicants as
members of the Second Respondents,
and to appoint a disciplinary
committee to investigate certain allegations against them tabled
at that
meeting;
2.2
Of
30 June 2016,
to expel the First Applicant, and to suspend
Second Applicant, as members of the Second Respondent.”
[16]
The consent to judgement handed up by Mr
Duminy SC contained the following concessions :
“
1. That the following decisions of the
Second Respondent are set aside-
1.1 The decisions taken on 26 November 2015 to suspend the
Applicants as members of the Second Respondent; and
1.2
The decisions of the Second Respondent taken on 30 June 2016 to
expel the First Applicant and to suspend the Second Applicant
as
members of the Second Respondent;”
[17]
Mr Freund SC pointed out that it was
central to the applicants’ case that the decision of 26
November 2015 to appoint the
ad hoc
committee as well as its report tabled before the Council on 30 June
2016 be set aside since the continued existence of that report
would
most likely form the basis of the Council’s action going
forward. Put otherwise, the question was whether the clock
should be
rewound to 30 June 2016 or 26 November 2015.
[18]
The latest stance by the applicants
necessitates a fairly detailed consideration of the relevant
background facts and circumstances,
notwithstanding the fact that the
expulsion and suspension of the first and second applicants
respectively from the Council are
no longer in issue. In the process,
for reasons which will become apparent as this judgment progresses,
it is necessary to have
regard to the substance of deliberations at
the meetings of both 26 November 2015 and 30 June 2016. Central to
the disharmony which
exists between the parties is the role of Mr
Williams at the University over the years and it is to that which I
turn first. Mr
Maqula’s involvement is fairly peripheral to the
piece.
MR
WILLIAMS’ INVOLVEMENT WITH UWC
[19]
Mr Williams’
involvement with UWC goes back a good number of years, although it is
not clear from the papers precisely when
it commenced. Be that as it
may, in 2012 Mr Williams was the chair of the Council and Prof Brian
O’Connell the Rector (or
Vice Chancellor) of the University. It
is common cause that “the 2 Brians” clearly did not get
on well together: Prof
O’Connell was unhappy with Mr Williams
meddling in the day-to-day running of the University and accused him
of abusing his
position on the Council to micro-manage UWC. Mr
Williams, clearly no shrinking violet whos is not afraid to state his
position,
did not take kindly to the criticism and attitude of the
Rector, and openly criticized him. And so the stage was set for
conflict
between two leaders with competing agenda’s.
[20]
Various attempts were made at dispute
resolution, including asking the Chancellor of UWC, Archbishop Thabo
Makgoba, to intercede.
His Grace agreed but soon came to the view
that the relationship between the 2 men was charaterised by a mutual
breach of trust
and irretrievable breakdown and his endeavours to
achieve a truce came to nought. Matters eventually came to a head in
September
2013 when Mr Williams was removed as the chair of the
Council and replaced by Dr Patel. Mr Williams approached this court
for redress
and on 6 May 2014 Schippers J found that the removal of
Mr Williams’ as chair of the Council was unlawful and
consequently
invalid. The court restored him to that position
forthwith. Although Mr Williams’ attack on his removal as chair
was multi-pronged,
Schippers J held against the University on the
basis of a limited procedural irregularity - that the motion to
remove Mr Williams
was not placed on the agenda of the meeting in
accordance with the requisite procedure.
[21]
The reinstatement of Mr Williams as the
chair of the Council did not sit well with all of his erstwhile
fellow council members and,
importantly, did not address the
fundamental problems which beset the matter. In the result, things
quickly begin to unravel again.
Shortly after the reinstatement of Mr
Williams, the University set up a so-called “Eminent Persons
Panel” (“the
Panel”) to investigate the structural
issues giving rise to what was manifestly a crisis at the University:
the Panel was
to adopt a “non-punitive” approach and make
recommendations to the University as to the way forward. The panel
comprised
Emeritus Archbishop Njongonkulu Ndungane (the retired
Anglican Archbishop of Cape Town), Adv Thabani Masuku, a senior
member of
the Cape Bar and Dr Vincent Mphai, a prominent and
respected director of companies.
[22]
The Panel went to great ends to fulfil its
mandate, consulting with a broad spectrum of interested parties. It
delivered a detailed
report traversing all the relevant issues and
embracing a number of recommendations, stressing in particular the
importance of
a sound relationship between the Council and its chair,
and the University, its Convocation
[2]
and its management. While critical of the roles of both Prof
O’Connell and Mr Williams, the Panel was at pains to point out
that it did not making findings or pass judgement based upon the
guilt of any of the parties. The structure of the Panel was such
that
it was unable to resolve any disputed issues and it made this clear
in its report. And so, while Mr Williams’ continued
involvement
with the Council was one of the main focus areas of the Panel, it
prefaced its report with the following cautionary
remarks:
“
A general point needs to be made at the
outset. The Chair had (sic) not being confronted with these
allegations, and he was also
not offered the opportunity to respond
to them. They may be relevant, but certainly not decisive, in
assessing Mr William’s
(sic) continued role on Council.”
[23]
The papers before this court suggest that
Mr Williams acquiesced in the findings of the Panel which concluded
its detailed 17 point
summary of recommendations with the following
plea:
“
What is required urgently at UWC is
leadership that can focus on the welfare of the institution, give
direction and take responsibility
for all the short-comings and
address those. Sadly, this has been lacking for sometimes (sic) as
council allowed itself to be side-tracked
by dubious and self-serving
agendas.”
I say
acquiesced, because there are passages in the papers before this
court which suggest that in a meeting with the Council, Mr
Williams,
who was emotional and contrite, gave a solemn undertaking to his
colleagues that he would address the substance of the
issues raised
by the Panel.
[24]
During 2014 Mr Williams and Mr Maqula were
elected by the Convocation to be its representatives on the Council.
I should point out
at this juncture that the Council is a statutory
body established under section 27 of the Higher Education Act, 101 of
1997 (‘the
HEA”) and the IS is sourced in section 32 of
that Act. The IS is intended to regulate the internal affairs and
structure
of the University and it contains,
inter
alia
, provisions relating to the
establishment of the Council. Chapter VII of the IS deals with the
functions, composition, terms of
office, meetings, responsibilities
and the like of the Council. In terms of para 7.2.9 of the IS two
persons elected by the Convocation
in a separate process are required
to serve on the Council. The applicants were duly elected to fill
these positions and they point
out that as such they represent the
largest constituency at the University. The IS makes provision for
other persons to serve on
the Council representing various interests,
including organized labour, the student body and business. The
Minister of Higher Education
may also appoint a maximum of 5 members
of the Council
THE
MEETING OF THE COUNCIL ON 26 NOVEMBER 2016
[25] As
of October 2015, the chair of Council was Mr Mdwaba, the vice-chair
Dr Patel, and the Rector Prof Tyrone Pretorius, Prof
O’Connell
having since retired. The applicants, as I have said, were ordinary
members of Council representing the Convocation.
[26]
Mr Williams says that by that time it had come to his attention that
Mr Mdwaba had been the subject of two reported High Court
judgments
in Gauteng, both commercial matters, which he believed impacted
directly on Mr Mdwaba’s eligibility and suitability
to serve on
the Council.
[3]
In the founding affidavit Mr Williams drew attention to the
Msimang
matter in particular because in that
case the court found that Mr Mdwaba was a delinquent director of
companies as contemplated
in
section 162(5)(c)(iv)(aa)
of the
Companies Act, 71 of 2008
. Mr Williams accordingly requested that the
continued position of Mr Mdwaba as chair of the Council be tabled as
an agenda item
for debate at the quarterly meeting to be held on 26
November 2015. Timeous notice having been given, the motion was
placed at
the end of the agenda for that day’s business.
[27] Mr
Maqula , for his part, had written to Mr Mdwaba in July 2015
expressing concern that an earlier matter regarding an enquiry
into a
tender dispute for the provision of security services at UWC (and
allegedly implicating a certain Mr Manie Regal, a senior
member of
management) was being unduly delayed. The complaint was not dealt
with; rather on 12 August 2015 Mr Mdwaba retaliated
by accusing Mr
Maqula of “
sinister motives
” and threatening him
with discipline.
[28]
When the Council meeting commenced on 26 November 2015, Mr Williams
requested that the agenda item relating to Mr Mdwaba be
brought
forward, arguing that if the motion was upheld the latter could no
longer chair the meeting. This did not happen but instead
the meeting
considered an item, which had been added to the agenda without the
requisite notice
[4]
,
entitled “
Unbecoming recent
conduct of members of Council during the recent protest action on the
UWC main campus… submitted for discussion,
consideration and
possible further action”.
Although the applicants were not mentioned by name in the agenda item
it soon became clear during the meeting that it was targeted
at them.
The applicants claim now that this was an act of revenge for their
respective personal attacks on the chair, the clear
implication being
that their suspensions flowing from the deliberations at that meeting
were actuated by malice and/or taken for
an ulterior purpose.
[29] In
light of the fact that the consent to judgement by the University
concedes that the decision to suspend at that meeting
be set aside,
it is not necessary to go into any great detail as to what transpired
during the meeting. The transcript of the proceedings
is a matter of
record and it is clear therefrom that the applicants were not going
to get a fair hearing at the meeting prior to
their suspension and,
further, that certain members of the council were hell-bent on taking
action against the applicants. The
SRC letter which was referred to
earlier was placed before the meeting as was a video recording made
on a cellphone of events at
the “
Prayers for Peace
”
meeting. It was alleged that incitement of the students by
, inter
alia,
the applicants was self-evident from the video clip.
Indeed, the chair is recorded as having remarked as follows during
the meeting
with regard to the video –
“
If that’s not incitement I will
never know what incitement is.”
[30] Mr
Williams points out that the video clip was shown to the meeting in
silent form - that is without the benefit of any audio
content. He
claims that, while he and Mr Maqula may have gesticulated
enthusiastically at the meeting, their message was at all
times
intended to promote peace. I should point out that, at the request of
the court, the video clip was made available by UWC
but counsel were
informed that the Court would only view it at the request of either
party, and then only in their presence. In
the result, the video was
never viewed by the court for, as counsel later agreed, the content
thereof was indecipherable and inconclusive.
It is common cause that
the court would have been none the wiser by viewing or listening to
the audio content of the clip.
[31]
The record of proceedings at the meeting demonstrates that the chair
was not alone in the quest to vilify the applicants. One
of the
Ministerial appointees on the Council
[5]
,
Mr Onkgopotse “JJ” Thabane, joined in in condemning
Williams in the following terms –
“
Conduct a church choir or to conduct a
prayer… The fact that it was a [church] meeting instead of a
meeting to incite people,
doesn’t make a difference for
Williams.”
[32]
Yet, in the initial answering affidavit deposed to in these
proceedings by the Rector, Prof Pretorius was at pains to point
out
that the suspensions at that meeting were based on a so-called
“
conflict of interests”
which had arisen on the part of the applicants and not because they
had been an accused of incitement to violence. The alleged
conflict
of interest was not fully articulated in the answering affidavit ,
but in the heads of argument and before this court
counsel for UWC
relied on the provisions of
sections 27(7)(d)
and (e)(ii) of the HEA
in support of this contention.
[6]
It was suggested by Mr Duminy SC (admittedly without his customary
vigour) that in calling for a special meeting of the Council
the
applicants had demonstrated a conflict of interest which sought to
advance the interests of FMF. That argument probably requires
interpretation of the provisions of the sections to be stretched
somewhat but in fairness to counsel it should be observed that
argument in relation to this point may have been curtailed since,
when the matter stood down for Adv Duminy SC to take instructions,
he
was barely into his stride.
[33] In
any event, just a couple of paragraphs further into the affidavit
Prof Pretorius went to make the following claim, which
seems to be at
variance with the conflict of interest point -
“
Moreover, Mr Williams’ words and
gestures did not take place in a vacuum. He specifically addressed
and, thereby gave credence
to, a particular group of students who had
caused significant damage to the property of the University and who
were instrumental
in shutting down the operations of the University
and thwarting my attempts to reach a peaceful negotiation with the
students.
He was not encouraging students to the ‘FeesMustFall’
movement who were peaceful, but with a small destructive group
of
students who were threatening the interests of the University.”
In the
absence of any reliable audio content on the video clip it is
difficult to understand just how the Rector was able to depose
to
these facts unless he was prepared to accept the say-so of the SRC
without more.
[34]
In conceding that the decision of the Council to suspend the
applicants at the November 2015 meeting fell to be set aside,
Mr
Duminy SC accepted that the provisions of
PAJA
[7]
were at play, and in particular that the decision constituted
“
administrative action
”
as defined in
section 1
of that Act. Whether the University threw in
the towel and consented to an order reviewing and setting aside the
decision of that
meeting on the basis of a failure to afford the
applicants of fair hearing, ulterior purpose or motive, or because
irrelevant considerations
were taken into account or relevant
considerations were not considered
[8]
,
is neither here nor there for present purposes. What must be
considered at this stage is whether the proceedings at that meeting
were so fundamentally flawed (“contaminated” was the word
preferred by Mr Freund SC), that they vitiated not only the
suspension but the establishment of the
ad
hoc
committee as well. I shall revert
to this point later.
THE
MEETING OF THE COUNCIL OF 30 JUNE 2016
[35]
The court is in the fortunate position that it has a full transcript
of the proceedings as they unfolded at the quarterly council
meeting
of 30 June 2016. I say fortunate because it is not often that a
reviewing authority has before it the
ipsissima verba
of the
proceedings which it is called upon to consider. All too often
allegations of bias or ulterior purpose are made on the basis
of
minuted notes coupled with inferential reasoning on limited facts. In
this matter the court is able to consider for itself exactly
what
took place. From an administrative law point of view the preceedings
were a complete travesty of justice. As Mr Freund SC
quite correctly
said, if one wanted to provide a case study to students in the field
of administrative law, one need go no further
than considering the
record in this matter. To be sure, the concessions handed up by Mr
Duminy SC on behalf of the University in
relation to the setting
aside of the decisions taken at that meeting can only proceed from
the premise that the meeting did not
observe the basic tenets of just
and fair administrative action protected under section 33 of the
Constitution and, in particular,
under the provisions of
PAJA
.
I intend to highlight just a few of the more egregious aspects
thereof. The reason therefor shall become apparent later.
[36] In
the first place, neither the potential disqualification of Mr
Williams from the Council or the further suspension of Mr
Maqula was
properly advertised in the agenda for the meeting. But even if there
had been proper notice, it would have made little
difference to the
applicants because they were not present at the meeting to defend
themselves having been unlawfully precluded
from further attendance
of such meetings in November 2015. To this extent, a manifestly
unfair procedure was followed by the Council.
[37]
The principle of
audi alteram partem
is
one so entrenched in our law since time immemorial that little more
need be said in that regard
[9]
.
In
Board of Education
[10]
Lord Loreburn LC made the following trenchant observation –
“
In the present instance, as in many
others, what comes for determination is sometimes a matter to be
settled by discretion, involving
no law. It will, I suppose, usually
be of an administrative kind… In such cases the Board…
will have to ascertain
the law and also to ascertain the facts. I
need not add that in doing either they must act in good faith and
listen fairly to both
sides, for that is the duty lying upon everyone
who decides anything. But I do not think they are bound to treat such
a question
as though it were a trial. They have no power to
administer an oath, and need not examine witnesses. They can obtain
information
in any way they think best,
always
giving a fair opportunity to those who are parties in the controversy
for correcting or contradicting any relevant statement
prejudicial to
their view.”
(Emphasis added)
A
motion which was highly prejudicial to the interests of the
applicants was put, and taken, in their absence with no opportunity
to controvert. Other than to observe that the notorious Star
Chamber
[11]
disappeared from the English legal system in 1640 with the
passing of the Habeas Corpus Act, little more need be said on
this
point.
[38]
Then, one sees in the transcript of proceedings allegations of fact
which are devoid of all truth. The charge in this regard
was led by
the chair with Mr Onkgopotse hot on his heels. So, with reference to
the report of the Panel, Mr Mdwaba had the following
to say in
respect of Mr Williams:
“
They found him guilty of everything.
They found him guilty of every conceivable problem there was on the
campus. And they also said,
other than the fact that the other one
[ie Prof O’Connell]
is
leaving, he must also leave, they also said they suggest we make sure
that he exits… We then said, if he doesn’t
apologise or
whatever, he will be out.”
Nothing
could be further from the truth: the report contains no such
allegations. Indeed the authors of the report were at pains
to point
out that they were not able to attribute culpability one way or the
other for they were not a fact-finding body and they
certainly did
not call for Mr Williams’ “
exit”.
[39]
Seemingly seeking a further basis for its decision, a vague attempt
was made to refer the Council to the report of the
ad hoc
committee. Here Mr Tabane, reflecting on past developments
involving Mr Williams and UWC, had the following to say:
“…
. I have been here for four or
five years, but it will be a parable to a new member of Council (sic)
would not even know what you
are talking about. But it seems to me
that the cancer continues, the cancer that although we spent months
and months with the eminent
people’s group and the report and
by the way in this Council, in last December we had to suspend two
members because remember
what happened when these two members were
suspended, we were shown footage of people immobilizing (sic)
students and so on. The
matter still hangs over our heads and I’m
not sure where it is going to be dealt with; I am
sure
there
is
a report somewhere
but we are
now on the second meeting of Council, next time we deal with it and
if we don’t deal with today then September.
And that is part of
the problem that we don’t have a history of being decisive
around [indistinct], we don’t. I mean
after the eminent
people’s report given (sic) to us, there was still six months
between the time that we got the report and
the time that we took
action. We ignored that report and we tried to pepper (sic) over the
cracks and so on right and I am saying
that with all due respect to
all of us, particularly those who have been here for a long time; we
don’t have a history of
being decisive to cut this cancer. And
now it is coming to bite us with our CEO
[Prof
Pretorius]
saying I can’t take
this; he is busy telling us in coded or uncoded form that we may wake
up with a letter from him saying
I quit [indistinct]. So, therefore,
chair; I am suggesting the following, I am
assuming
that there is a report somewhere that will tell us what has
happened to the suspension of the
two members
….
Based
on
that
report
, I hope that we will make
a decision, whatever it is that is in the report, that will take us
forward.”
(Emphasis added)
[40]
There were, however, some voices of reason at the meeting. Dr Patel,
who had chaired the
ad hoc
committee, explained what their
function was and cautioned against overhasty steps –
“
So, basically, Chair, what we say then
that (sic) there is enough evidence and we are now putting it to you
that we are saying the
University or Council has to take a decision,
Chair, to institute a disciplinary procedure against the two Council
members…
We did not have a DC… we had to find factual information
whether it is necessary to have a disciplinary, so that is what we
are presenting to you today: we are saying to you that there is
enough evidence to have a disciplinary hearing… the next
step
is to appoint a person to contact a disciplinary hearing. I would
propose in that case, Chair, we find… a Judge, a
retired Judge
to deal with the matter, so that it cannot be seen as lice and rat
infested at the end of the day and that should
be done as in
immediate (sic).”
The
other members of the
ad hoc
committee, Ms X. Bam (who was
present in the meeting) and Mr Lyndon Barends (who communicated his
views to the chair by sms) supported
the stance of Dr Patel.
[41]
Prof Pretorius (who is referred to in the transcript as “VC”)
also expressed concern and urged caution:
“
Chair, as tempting as Mr Tabane’s
proposal is, I think there is (sic) some real, real risks for the
University because you
expel someone that is guilty and the
investigation has simply indicated that there is, there is (sic)
grounds for a disciplinary;
the investigation did not find him
guilty. The investigation simply said there is (sic) grounds. You can
only expel if indeed he
is guilty of these things. So, there is a
real risk that despite our good intentions of expelling that because
of that procedural
(sic), someone is presumed innocent until found
guilty. And even if we can bet our lives on people being guilty, the
reality is
he hasn’t been found guilty of anything and so
procedurally there is a risk that we will have to sit with that for
the foreseeable
future. And so while it is tempting, I must say that
the investigation report simply indicates that there are grounds for
a disciplinary.
The investigation report doesn’t say that Mr
Williams or Mr Maqula is (sic) guilty of anything.”
[42]
The Deputy Vice Chancellor, Prof. Vivienne Lawack, was similarly
circumspect –
“
I think we really definitely need to
institute a DC as soon as possible and I know we are probably not
going to get him out but
one of the people I was thinking about is
our retired Deputy Chief Justice, someone of that kind of standing in
the legal community.….
My understanding was not that the [ad
hoc committee made]… any finding of guilt…”
She
went on to caution about the risks in acting hastily and without a
proper basis, particularly in light of the previous litigation
in
2013/14 –
“
My biggest worry is that if we do the
technical thing, yes I hear it is only the legal thing, but what do
we end up with? We also
have the chance that he is reinstated. Look
what happened last time, if I, unless I am reading the case wrong
that it was purely
on procedural grounds that it was found against
the University and I think that really led to quite a bit of,
especially for this
Council, reputational damage. So, I would just
caution that we don’t fall into the trap of the previous time
that we lose
this one in court on procedural grounds.”
[43]
After the chair himself had expressed limited reservations about
taking immediate action, Mr Tabane took over again, cynically
preferring the expedient rather than the procedurally fair route –
“
(H)e must receive a letter from us
saying you are now expelled based on that report, you must go and
challenge that in court but
you will be out of the University, you
are not allowed to come here, you are expelled from all structures of
the University. You
are either serious to cut the cancer or you are
not. You keep him here [indistinct] he comes here, he says I need
access to people,
I must bring witnesses; you are giving him another
chance to [indistinct] because you cannot say to him…
[interrupted]…
Now, I am saying and I may be wrong, as I am not a sangoma, but
come June next year we will still be dealing with the Williams
matter,
if not even later, right. In that period, you are giving
somebody, who you don’t want interfering with anybody on
campus,
the right, because you are trying to follow procedure and be
fair, isn’t it, so it means that [indistinct] I want to
subpoena
the eminent (sic); he is going to say that, I want to talk
to students, talk to people who were there at that place, I will call
witnesses and in order to do that, he can’t do that sitting
outside campus and each time coming here having to ask the Rector
because he is going to say no that is prejudicial because I mean the
Rector would know who he wants to meet, so I’m just
telling you
the scenario that is backed by how this fellow has behaved over the
years, alright. So when you actually say DC, please
be clear that you
are then saying that the person has a right to prepare for the DC and
have people representing him and so on
and so on, a process that may
drag out [indistinct]. When you expel him, he won’t mess around
like he messed your committee
over six months; he must go to court,
you understand? And we are at this point, he must go to court and
ventilate this thing in
court, right, so that then the court can
convene us all to come and [indistinct] then submit that report, you
say forget about
the case, the second case, we are just expelling on
the basis of this eminent person’s report, so they can go and
spend money
to go to court and do that, so that we can create an
atmosphere where we say to him because you are expelled, you are not
allowed
to be on the premises of the University, full stop; he must
go and fight in court.…”
[44]
After Dr Patel had reminded the Council that the previous litigation
had cost the University more than a million Rand only
for the Council
to be reminded by Schippers J that the courts certainly consider
procedural fairness, and again urged his colleagues
not to be hasty
but to “
rather do it properly”,
the chair
gratuitously offered his misguided understanding of some of the legal
concepts being bandied about by those around the
table:
“
When you work on
prima
facie
and you talk about
ratio
decidendi
, you complicate it
because the
prima facie
case is for a court of law, okay we are not working on (sic) a court
of law test here. The test is according to our eminent person’s
(sic); it had nothing to do with this higher level of the court,
right and at that stage we were ready to accept it as an expulsion,
okay.”
[45]
The chair then upped the ante and pushed for an end to the debate
effectively overruling the reasoned response of the Rector,
suggesting that the latter should let the Council make its decision
and “
sit this one out …so that he is not
[later]
blamed for the decision of Council.”
Having described
the first applicant in the nastiest of terms he formulated his
position thus:
“
The issue for me is this, is as simple
as this; the cancer that we have been referring to… equals
Brian Williams, equals
his protégé as Maqula who in
complete disregard of the suspension have come into our environment,
become a president
of convocation whose territory belongs to Council,
summons our people, our academics to come to them to talk to them
about why
they are going to look into this [Institutional] Statute
that we are trying to change and whatever, whatever it is….
…
Council must make its decision and
Council, as risky as it might be, because this is the difference is
(sic) that other people are
very conventional in the way they deal
with things and that is why we are sitting where we are sitting now,
because unconventionally
we have always chosen to go the safer route
and what have you. Last time, this is not the same, I keep reminding
people; it is
not the same as last time, last time there was no
eminent report, there was no report from eminent persons. Last time
we never
sat with him and got him to acknowledge that he has done
wrong and therefore must apologise and desist from continuing to do
wrong.
Last time he did not continue to do things with students and
burn our University where he was now suspended on the basis of what
was happening on our campus, our resources being looted and he was
not at the time agreeing with us and said we are lice infested
whatever, whatever it is. Now, for me this is very different from the
last time and we followed process. How did we follow process?
We laid
charges, we said investigate, we called him, he refused to come, he
refused to come to a council appointed body in complete
disregard of
what we may think and feel and want to do as this University. So he
has no regard for the authority of this University.
In my view
therefore, I back up the JJ motion that has been backed up, so if
somebody has another motion, let’s hear the
motion and then
let’s talk about it and vote on it if we want to do; me, I am
happy to get to that point now to say let’s
vote on the
motion.”
After
some further discussion the matter was put to the vote through a show
of hands: 11 members of the Council voted in favour
of the motion and
there were 4 abstentions while nobody voted against the motion. The
transcript does not, however, reflect the
identity of those who
voted, or how they voted.
[46] I
am of the view that these extracts from the record demonstrate just
how badly the Council got it wrong. From the outset members
of the
Council were actuated by bias towards the applicants, in particular
Mr Williams, who was repeatedly referred to as a “cancer”.
Then there is the fact that the motion was debated on a false
premise, namely, that the report of the Eminent Person’s Panel
had made findings of fact regarding Williams’ earlier conduct
and that this served as a basis for his later disqualification,
without more. Finally, there is the obdurate refusal on the part of
the majority of the members of the Council to adhere to the
advice of
Dr Patel that the
ad hoc
committee’s report was no more
than a confirmation that a
prima facie
case had been found to
exist for the institution of disciplinary action and that it did not
serve as a basis for disciplinary action.
THE
RELIEF NOT CONCEDED BY THE UNIVERSITY
[47] Mr
Duminy SC argued that the order consented to by UWC was adequate to
protect the interests of the applicants. He observed
that the report
of the
ad hoc
committee was a matter of “
cosmic
reality
” that could not be wished away and that nothing
could legally be done to set it aside. Mr Freund SC, on the other
hand, questioned
the University’s
bona fides
in agreeing
to only part of the relief claimed, calling it “
an
exceedingly cynical consent
”. He went on to point out that
if there were to be future steps taken by the Council against the
applicants the court had
to do its best to ensure that these
proceeded from a lawful basis. If the report was allowed to stand,
said counsel, it was likely
to form the basis for fresh disciplinary
steps and this would place the applicants at a disadvantage from the
outset. He went on
to argue that if, however, the report was set
aside, the Council, if so advised, could take steps to set up a fresh
investigative
tribunal comprised of different members who would
commence their task afresh, unhindered by any preconceived ideas.
[48]
The extracts from the meeting of 30 June 2016 which I have cited
above clearly establish that there is great hostility towards
the
applicants and Mr Williams in particular, on the part of a good
number of the members of the Council. As a matter of fact we
do not
know who the four persons were who abstained from supporting the
motion, nor do we know who voted in favour thereof. There
is no
doubting the hostile sentiments towards the applicants of Mr Mdwaba,
Mr Thabane, Ms Akhona Landu (the SRC representative)
and Mr Bahu
Sogayise. It would appear also that the two members of the
ad hoc
committee also present at the meeting (Dr Patel and Ms Bam) were
fundamentally indisposed towards the applicants. Ms Bam referred
obliquely to “
these side evils, for lack of a better word,
which are really trying to be destructive”
while Dr Patel
used particularly strong language with reference to Mr Williams:
“…
There is a violation of
Section
27
of the
Higher Education Act, there
is a disregard of Council and
when the Rector speaks of (sic) sustained attack on the executive, I
want you to replace that; it
is a sustained attack on the University.
Because the Rector and his immediate, what do you call it, executive,
is appointed by
this University Council and therefore any attack on
our Rector and any attack on the executive is an attack on the
University.
In other (sic) country, this would be seen as treason but
we are in South Africa.”
[49]
The provisions of
section 27
(7D) of the HEA permit the suspension
from the attendance of a single meeting or the permanent
disqualification of a member of
the Council if such member has
contravened,
inter alia,
subsections (7)(c), (d) or (e),and
then only “
after Council has followed a due process”.
Mr Duminy SC suggested that the consent to an order to set aside
the decision of the meeting of 26 November 2015 to suspend the
applicants was based on the procedural unfairness which took place at
that meeting. However, he said that such illegality was to
be
distinguished from the decision to appoint an
ad hoc
committee
which was not tainted by any procedural unfairness.
[50] Mr
Freund SC, on the other hand, pointed to a number of passages in the
transcript of the proceedings of that meeting where
the suspension of
the councillors and the establishment of the
ad hoc
committee
were taken as one step by the Council.
Inter alia
:
·
There were two motions put to the
meeting:
“
Motion
1:
Suspend the two Council
members pending an investigation. Establish an
ad
hoc
committee (consisting of
three members) to investigate the matter, and to make recommendations
to Council….
Motion
2:
Rejection of Motion 1….”
·
The chair characterised the motion
as follows:
“
The
motion on the table was JJ’s motion for suspension pending an
investigation.”
[51]
In my view the decision in question is incapable of severability,
just as the decisions in
Lewis
Stores
[12]
and
Woods
[13]
were held to be. In this case the Council, in its unified quest to
get rid of Mr Williams in particular, would never have considered
the
one without the other. It follows therefore that the establishment of
the
ad hoc
committee
is similarly tainted by the procedural irregularities which
accompanied its conception. And, its report, as the abortive
product
of a body without standing is of no force and effect.
[52]
But if I am wrong on this score, there is an equally valid reason to
consider the work of the
ad hoc
committee tainted by
irregularity. As I have demonstrated with reference to the meeting of
30 June 2016, Mr Williams had long been
a source of great irritation
within the Council; so much so that he was derisively referred to as
a “
cancer”
by a number of his colleagues. Based on
what I have read in the transcript, I must express serious
reservations about the ability
of any of his fellow Council members
to objectively gather and evaluate evidence against Mr Williams or to
sit in judgment over
him. These tasks should have been entrusted to
an outside agency or individual in light of the intense,
interpersonal dynamics
at play here. The University is represented in
this case by competent and experienced lawyers and I have little
doubt that had
they been consulted as the Council was urged by some
of its members to do, legal advice would have cautioned strongly
against the
intended route.
[53]
These findings in regard to the tainted appointment of the
ad hoc
committee and its still-born report render it unnecessary to deal
with Mr Freund SC’s final argument that the facts before
the
Council in November 2015 could never have justified the alleged
conflict of interest under subsections 27(7)(d) or (e). That
enquiry,
as interesting as it may be, must be held in abeyance for another day
when a duly constituted body investigating the facts
of this matter
may wish to consider it.
CONCLUDING
REMARKS
[54] In
conclusion, I must record that more than twenty years into the
constitutional State it is deeply troubling to read of the
blatant
disregard on the part of the majority of members of the Council for
the rule of law. Chief amongst these are the chair
and Mr Tabane, who
chose to ignore the findings of Schippers J in regard to the
Council’s earlier wrongful conduct. They
are certainly not
alone, but they were the most vocal and they seem to have lost sight
of the fact that our country is a constitutional
democracy where the
rule of law prevails. The courts are the final arbiters in matters
such as these given that the right to fair
administrative action,
guaranteed by section 33 of the Constitution, has been entrenched
through the provisions of
PAJA
. S
ection 3
thereof details the criteria to be considered by a court in
adjudicating whether there has been procedurally fair administrative
action in any given case or not.
[55]
Since section 27(7D) of the HEA does not define “
due
process”
in relation to the
suspension and disqualification of members of the Council, it is
axiomatic that a body such as the Council must,
firstly, treat its
members with dignity and respect affording them the rights which each
member would be entitled to demand individually
and in so doing be
guided by the ambit of section 3 of
PAJA
.
The concept “
due process”
when referring to decisions involving administrative action under
PAJA
is flexible and will vary from case to case
[14]
,
but it is never without content and it will at all times embody the
basic tenets of the Constitution.
[56]
In
Janse van Rensberg
[15]
Goldstone J remarked that –
“
In modern States it has become more and
more common to grant far-reaching powers to administrative
functionaries. The safeguards
provided by the rules of procedural
fairness are thus all the more important… Observance of the
rules of procedural fairness
ensures that an administrative
functionary has an open mind and a complete picture of the facts and
circumstances within which
the administrative action is to be taken.
In that way the functionary is more likely to apply his or her mind
to the matter in
a fair and regular manner.”
[57]
And in
De Lange
[16]
Mokgoro J made the following trenchant observations:
“
Everyone has the right to state his or
her own case, not because his or her version is right, and must be
accepted, but because,
in evaluating the cogency of any argument, the
arbiter, still a fallible human being, must be informed about the
points of view
of both parties in order to stand any real chance of
coming up with an objectively justifiable conclusion that is anything
more
than chance.”
[58]
The Council is the highest decision-making and governing body of the
academy, a revered institution where the search for truth
is
predicated on integrity, mutual respect for the views of others, the
right to challenge such views, and ultimately fairness.
I am left
with the abiding impression that in this instance the Council fell
woefully short in its obligation to uphold those ideals.
I agree with
the argument by Mr Freund SC that in this matter the deliberations
involving the applicants were flawed from start
to finish. It follows
in my view that the applicants are entitled to the full extent of the
relief sought and not the attenuated
version belatedly put up by the
University.
[59]
Finally, I would be failing in my duty to the University and its
funders if I did not express my concerns about the ability
of Mr.
Mdwaba to properly discharge the important office of chairperson of
the Council. A position such as that requires leadership
and
equanimity. A chairperson is meant to keep the Council in check and
endeavor to accommodate all views, disparate as they may
be. The
chair does not lead the charge to demonise and damnify members of the
Council with which he does not agree.
[60] In
Msimang
Kathree-Setiloane J found in November
2012 that as a director of a large Black empowerment company with
significant interests in
the public sector, Mr Mdwaba had conducted
himself with reckless disregard of his duties as a director of the
company in question
and that such conduct amounted to gross
negligence and willful misconduct. With reference to the import of
section 162, Her Ladyship
said the following:
“
This provision is directed at protecting
companies and corporate stakeholders against company directors, who
have proven themselves
to be unable to manage the business of the
company or have failed in, or are in neglect of, their duties as
directors of a company.
There is no equivalent in the old
Companies
Act [of
1973].”
[61] Mr
Mdwaba is accordingly disqualified from assuming stewardship over any
company under the
Companies Act 71 of 2008
for a period of at least 7
years, possibly longer depending on the circumstances. When recently
challenged in that regard by the
applicants in the founding papers,
Mr Mdwaba opportunistically claimed that the
Msimang
matter was subject to appeal. But, upon enquiry to the attorneys
who acted against Mr Mdwaba in that matter, the applicants’
attorneys found that this was not true: no appeal has ever been noted
and four years have passed since the judgment was delivered.
[62] It
is not clear from these papers just when Mr Mdwaba was appointed to
the Council, but it must have been after November 2012
given that Dr
Patel succeeded Mr Williams in 2013 and Mr Mdwaba was only appointed
thereafter. In observance of good corporate
governance, Mr Mdwaba was
duty bound to disclose the findings of the High Court against him to
the Council if he was of the view
that he was nevertheless a suitable
person to serve on the Council. It is axiomatic that a legal
impediment to someone’s
right to serve on the board of a
company due to corporate delinquency must raise serious questions
about that person’s ability
to serve in a position of
governance on a statutory body which controls vast sums of public and
donor finance.
[63] As
to his suitability to serve on the Council, the court is not called
upon in these proceedings to make a finding in that
regard for it is
not an issue before the court and, importantly, Mr Mdwaba has not
been heard. Nevertheless, Mr Mdwaba’s
utterances during
meetings of the Council form part of the record before this court and
have not been placed in issue: an investigation
is therefore
warranted. In light of the decisions of the Council in this matter,
UWC will once again incur significant legal costs
at a time when the
public purse is stretched and the clamour for a reduction in the cost
of higher education is at its loudest.
These legal costs would have
been avoided if the chair had conducted himself in accordance with
the most basic principles of good
governance, taken counsel from
others who acted with due diligence and enforced observance of a fair
procedure. In the circumstances,
it is a matter of urgent importance
that consideration be given by the relevant authorities as to Mr
Mdwaba’s suitability
to further serve on the Council.
[64]
Similar concerns apply to Mr Tabane, who, although not disqualified
under the
Companies Act, is
a long serving member of the Council who
has likewise demonstrated through his utterances that he too lacks
the requisite skills
which the demands of membership of the Council
require.His opportunism has caused the University financial and
reputational embarrassment
and an enquiry as to his fitness to hold
office is justified. The attorneys for the applicants are accordingly
requested to bring
the contents of this judgment to the attention of
the Minister of Higher Education for consideration of the appropriate
steps to
be taken against these and other members of the Council.
ORDER
OF COURT :
1.
The
applicant’s failure to abide by the Rules of Court pertaining
to the time periods, as well as the filing and service of
documents,
is condoned, and this application is dealt with as a matter of
urgency in accordance with Uniform
Rule 6
(12).
1
.25cm; margin-bottom: 0cm; line-height: 150%">
2.
It
is declared that the following decisions pertaining to the applicants
taken by the second respondent, and any decisions, steps
or measures
consequent upon the aforementioned decisions, are invalid and are
reviewed and set aside:
2.1
. Of 26 November 2015 to suspend the
applicants as members of the second respondent, and to appoint a
disciplinary committee to
investigate certain allegations against
them tabled at that meeting;
2.2
Of 30 June 2016 to expel the first
applicant, and to suspend the second applicant, as members of the
second respondent.
3.
The
applicants are restored as full members of second respondent and its
committees, shall not be barred from participation therein,
and shall
receive documents and notices pertinent to its business.
4.
The
respondents shall pay the costs of this application, jointly and
severally, the one paying, the other to be absolved, such costs
to
include the costs of two counsel where employed.
____________________________
GAMBLE
J
[1]
Hotz v UCT
2016 ZASCA 159
(20 October 2016)
[2]
The Convocation is a body established in terms of the University’s
Internal Statute (“IS”) which consists of
all alumni and
all current members of academic staff, other than those on limited
one year contracts: a constituency estimated
to be of the order of
70 000 people.
[3]
The decisions are
Multi-LinksTelecommunications Ltd v Africa
Prepaid Services Nigeria Ltd; Telkom SA Soc Ltd and Another v Blue
Label Telecoms Ltd
and Others
[2013] 4 All SA 346
(GNP) and
Msimang NO and Another v Katiliiba and Others
[2013] 1 All SA
580 (GSJ)
[4]
Two days instead of the requisite ten.
[5]
In terms of
section 27(4)(c)
of the HEA, the Minister of Higher
Education must appoint not more than five persons to serve on the
Council
[6]
“
S 27(7)
A member of a council or any member of a committee
of a council –
(d) may not place himself or herself under any financial or other
obligation to any individual or organisation that might seek to
influence the performance of any function of the council, and…
(ii) may not have a direct or indirect financial, personal or
other interest in any matter to be discussed at a meeting and which
entails or may entail a conflict or possible conflict of interest
with the public higher education institution concerned;"
[7]
The
Promotion of Administrative Justice Act, 3 of 2000
.
[8]
See
sec 6(2)(e)
of PAJA
[9]
See generally in this regard
Baxter
Administrative Law at 536
et seq
[10]
Board of Education v Rice
[1911] AC 179
at 182, followed in,
inter alia,
Builders, Ltd v Union Government
1928 AD
46
at 59 - 60
[11]
Wikipaedia Online Encyclopaedia
sv
“Star
Chamber”: A special court set up in the 1500’s to try in
the most arbitrary and secretive fashion, members
of the upper
class, as well socially and politically prominent people.
[12]
Lewis Stores Ltd v Greytown Town Council and Others
1964(1)
SA 90 (N) at 99 A-C.
[13]
Woods v East London Municipality and Others
1974(4) SA 541
(E) at 550 B
[14]
President of the Republic of South Africa and Others v South
African Rugby Football Union and Others
2000(1) SA 1 (CC)
at [219]
[15]
Janse van Rensburg NO v Minister of Trade and Industry NO
2001 (1) SA 29
(CC) at [24]
[16]
De Lange v Smuts NO
[1998] ZACC 6
;
1998 (3) SA 785
(CC) at
[131]