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[2018] ZAWCHC 152
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Van der Ross v University of Cape Town and Another (8473/2018) [2018] ZAWCHC 152 (15 November 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
Number:
8473/2018
In
the matter between:
GHALIB
VAN DER ROSS
Applicant
and
UNIVERSITY
OF CAPE TOWN
PROCTOR
JAMES CHAPMAN
First
Respondent
Second
Respondent
Court:
Loots AJ
Heard:
16 August 2018
Delivered:
15 November 2018
JUDGMENT
INTRODUCTION
[1]
The applicant, a final year student at the first
respondent, seeks an order reviewing and setting aside the decision
of the second
respondent to refuse the applicant external legal
representation at a disciplinary hearing initiated by the first
respondent.
[2]
The charges relate to alleged dishonest conduct,
which conduct is alleged to be in contravention of the second
respondent’s
rules of conduct.
[3]
The applicant contends that the second respondent
was to have acceded to his application for external legal
representation in respect
of the disciplinary process.
[4]
The respondents, on the other hand, contend that
the matter does not warrant external legal representation, and thus
that the second
respondent had correctly exercised his discretion in
disallowing the applicant’s application. This they principally
base
on the contentions that it is an uncomplicated matter which does
not carry a sanction of expulsion upon conviction.
DISCUSSION
Relevant
Facts
[5]
In mid-October 2017 Professor Wim Fuls became
suspicious of plagiarism in relation to an assignment that had been
given to his final
year engineering students.
[6]
On 23 October 2017 Professor Fuls notified the
students concerned that he would submit the evidence to the Student
Tribunal, as
he was obliged to do.
[7]
On 25 October 2017 Professor Fuls, as he had
notified the students he would, reported multiple suspected
plagiarism cases to Ms
Chyanne Isaac, the first respondent’s
legal counsellor.
[8]
Also on 25 October 2017 Professor Fuls notified
the applicant, in writing, that he was suspected of having
plagiarised the work
of a student of a previous year.
[9]
Charges were compiled in respect of 15 students.
[10]
On 25 November 2017, the applicant was advised by
email that he would have to appear before the University Student
Disciplinary
Tribunal for a disciplinary hearing on the charges of
having breached RCS2.1 and RCS2.3 of the first respondent’s
Rules of
Conduct.
[11]
RCS 2.1 and RCS 2.3 read as follows:
“
RCS2.1 A
student must refrain from dishonest conduct in any examination, test
or in respect of the completion and/or submission
of any other form
of academic assessment. Dishonest conduct includes but is not limited
to plagiarism.
RCS2.3 A student
may not submit the work of any other person in any examination, test
or in respect of the completion and/or
submission of any other form
of academic assessment without full and proper attribution and
acknowledgement.”
[12]
The particulars in respect of the charges were
stated to be the following:
“
The student is
charged in respect of RCS2.1 and RCS2.3 above and is accused of
dishonest conduct in that he plagiarised certain
sections of his
Electricity supply expansion program project submission in the
following course: MEC108S”
[13]
A pre-hearing (“
the
first pre-hearing
”) was convened for 1
December 2017.
[14]
On 29 November 2017 the applicant applied for
external legal representation at the pre-hearing.
[15]
The applicant’s application for external
legal representation was assigned to the second respondent, who is an
attorney employed
by the Refugee Rights Unit of the first respondent,
and a Proctor in the University Student Disciplinary Tribunal.
The second
respondent would only deal with the application for
external legal representation and would in no way be involved in the
disciplinary
hearing itself, which hearing would be presided over by
a different Proctor and assessors.
[16]
The first respondent objected to the application
on the basis that the matter was uncomplicated and that the sentences
the applicant
faced did not include an adverse finding which could
lead to expulsion from the first respondent.
[17]
On 30 November 2017 the second respondent, having
considered the submissions by both the applicant and the first
respondent, found
against allowing the applicant external legal
representation. This decision was based on:
a.
The charges (of which he had been appraised);
b.
The degree of complexity of the matter;
c.
The potential seriousness of an adverse finding;
and
d.
The availability of suitable staff and student
legal representatives.
[18]
Inter alia
in respect
of the potential seriousness of the matter, the second respondent
also considered the representations made by both the
applicant and
the first respondent (through the assistant prosecutor Ms Minhaaj
Ebrahim), which he summarised as follows:
“
In the applicants
[sic] request for external legal representation his reasons include
among others that the charges are of a serious
nature and the student
has ‘not been given sufficient time to consult with a
University student or staff member.’ UCT’s
legal services
have responded objecting to external legal representation on the
grounds that the matter is not complex and that
given the nature of
the charges and the potential finding and sentence,
the
potential adverse finding could not result in expulsion
.”
[Emphasis,
in cursive, added]
[19]
From the written reasons for the decisions
denying the applicant external legal representation, it is clear that
the second respondent
was aware of the provisions of first
respondent’s General Rules and Policies under the heading
“Disciplinary Jurisdiction
and Procedures” (the “
DJP
”),
and specifically the provisions of DJP 5.9.
[20]
DJP 5.9 provides as follows:
“
A student whose
conduct is the subject of [a] charge before University Tribunal is
entitled to be represented by another student
or staff member of the
University.
A student may apply to
the University Tribunal for the right to legal representation and the
Tribunal has a discretion to grant
such application, taking into
account:
(a)
The nature of the charges brought;
(b)
The degree of factual or legal complexity
attendant upon considering them;
(c)
The potential seriousness of the consequences of
an adverse finding;
(d)
The availability of suitable representatives
among the University’s student or staff body; and
(e)
Any other relevant factor.
An application may not
be refused where an adverse finding could lead to expulsion
.”
[Emphasis, in cursive,
added]
[21]
It is common cause that the reference to legal
representation, as contained in paragraph 5.9 of the DJP, refers to
external legal
representation.
[22]
The first pre-hearing proceeded on 1 December
2017, as scheduled.
[23]
Annexed to the answering papers were both the
handwritten notes of Ms René Carelse (a secretary then
employed at the first
respondent’s Legal Services Secretariat)
and the minute prepared by Ms Ebrahim (which minute Ms Ebrahim, under
oath, confirmed
to be accurate).
[24]
While Ms Carelse’s note, following the
entry “sanctions explained
”
records
“final year so harsher sentence but not expulsion – first
offence
”
the minute prepared by Ms Ebrahim
does not contain a similar entry. Instead the relevant portion
of the minute reads as follows:
“…
Possible sanctions were
explained to the student:
(i)
Expulsion – the most serious sentence where
a student is disqualified but may re-apply for admission at UCT after
a period
of 5 years;
(ii)
Rustication – the second most serious
sanction –where a student is temporarily excluded from the
university for a specified
period of time but thereafter may continue
with his studies after the period of rustication has been served;
(iii)
Lenient sentence – rustication or expulsion
suspended on condition that the student must complete a specified
number of community
service hours and is not convicted of a similar
offence again.
The student was informed
that he could face any of these sanctions
.
The student was informed
that the tribunal decides on the verdict and the sentence and that
various factors are considered.
…
Miss Ebrahim also
explained that the chances of the student getting expelled is [sic]
unlikely
and that the possible sentence is rustication
suspended with community service.”
[Emphasis, in cursive,
added]
[25]
The last entry in the minute prepared by Ms
Ebrahim is echoed by Ms Carelse’s notes, where she wrote:
“
>
chance
of expulsion > unlikely
- possible sentence
- rustication suspended,
comm. serve”
[26]
Following correspondence during which the
applicant requested information regarding the plagiarism, to which
the first respondent
duly responded, the applicant was informed that
the first respondent had evidence that another student had allowed
the applicant
to copy his work.
[27]
On 26 February 2018 a meeting followed a further
email from Ms Ebrahim (sent to the applicant on 23 February 2018).
During
the meeting the submission of the other student was discussed,
including the fact that the student had stated that that he and the
applicant had worked together on the assignment.
[28]
On 28 February 2018 an amended charge sheet was
presented to the applicant.
[29]
In terms of the amended charge sheet the charges
remained the same, but the particulars changed to the following:
“
The student is
charged in respect of RCS2.1 and RCS2.3 above and is accused of
dishonest conduct in that he colluded with another
student in respect
of his Electricity supply expansion program project submission in the
MEC108S course, by working together when
there was a clear
instruction that this was to be an individual submission.”
[30]
From a comparison between the particulars to the
charges provided on 25 November 2017 and those provided on 28
February 2018,
it cannot be argued that the essence of the charges
(according to the particulars at least) have not changed from
plagiarism to
collusion.
[31]
Following the applicant having been provided with
the amended charge sheet a further pre-hearing was held on 5 March
2018 (“
the second pre-hearing
”).
[32]
The second pre-hearing was again attended by Ms
Ebrahim, this time cited as the “Facilitator”.
[33]
Under the heading “
1.
Purpose of the Pre-Hearing Conference
”
the
following is recorded:
“
Ms. Ebrahim
explained the purpose of the pre-hearing conference to the student.
The purpose of the pre-hearing conference is to
explain the charge,
discuss the right to representation of the student, whether the
student will plead guilty or not guilty, explain
the process of the
plea chosen by the student, explain possible sanction [sic], explain
endorsement of the offence on the transcript
and right to appeal.”
[34]
The first paragraph under the heading “
5.
Not Guilty Plea Process
”
concludes with
“The Proctor will then make a founding [sic] based on the
evidence and witness statements and if found guilty,
the next step
would be sentencing.” The second paragraph under the same
heading then proceeds as follows:
“
The University
will address the Proctor on aggravation and defence will address the
Proctor on mitigation. The Proctor will
then make an
appropriate sanction. Ms. Ebrahim explained the types of Sanctions.
Expulsion- Student can be expelled from the University
for a period
of 5 years. After 5 years, student can re-apply to the university
it’s not an automatic re-admission.
Rustication- Student
is excluded from the university for a definite period chosen by the
Proctor at his or her discretion.
After that period of
Rustication student can continue with studies. Community
service/Lenient sentence- Rustication for period
decided by Proctor
which is suspended, on condition that the student complete a number
of hours of community service and is not
found guilty the same or
similar offence.”
[35]
On 23 March 2018 the applicant, through his
attorney, again made application for external legal representation.
This time in respect
of the hearing itself. In the request the
applicant’s attorney,
inter alia
,
stated that the first respondent’s junior legal counsellor, Ms
Kavita Kooverjee, advised the applicant that she considers
this a
serious matter and will ask for a 12 month rustication sentence to be
imposed. The attorney also opined that a sentence
of 12 months
rustication could be imposed thus placing it on the brink of
expulsion.
[36]
The first respondent again objected to the
application for legal representation, this time through Ms Isaac.
Ms Isaac placed
the following on record:
“
It is highly
unlikely that Mr van der Ross will be excluded from the university.
In all likelihood the sentence will be a
suspended rustication with
community service.
Neither is this a complex
matter.
All students have their
records endorsed upon conviction.
I do not support the
inconsistency where affordability of external representatives creates
a higher sense of entitlement that is
not ordinarily granted.
In this same group of
students referred to our office, some had applied for external
representation and this was declined.
There are no mitigating
reasons to deviate in this instance. Our office will remain fair and
consistent and will not be intimidated
by external representatives or
students in any of our matter.
We ask your earlier
decision to decline this application remain the same.
If the parties opposing
wish to appeal and then review the case outside of the USDT they
still have the opportunity to do so.
This kind of
representation for a plagiarism matter is unnecessary.”
[37]
It is important to note that Ms Isaac’s
submission to the second respondent:
a.
Does not refer thereto that the charge against
the applicant has essentially changed from plagiarism to collusion
(unless the reference
to plagiarism is in addition to that of
collusion, in which case the second respondent was not informed of
the additional charge);
b.
Reinforces the view that the matter relates to
plagiarism only.
c.
Does not inform the second respondent that the
assistant prosecutor, Ms Ebrahim, is of the view that the tribunal,
though unlikely,
may impose a sentence of expulsion;
d.
Does, therefore, not correct the assertion
contained in the objection to the first application for external
legal representation;
that expulsion is not a possibility;
e.
Still refers thereto that exclusion from the
university is a possibility;
f.
States that, in the same group of students
referred to their office, some had applied for external
representation which was declined.
This statement was made in
the absence of any context (for example, whether the other students
had faced the same charges as the
applicant ultimately faced, and
whether in the matters involving the other students the minuted view
was held that they faced the
possibility of expulsion);
g.
Creates the impression that the matter is exactly
the same as the matters in respect of which external legal
representation had
been refused; and
h.
Creates the impression that the applicant is
motivated by a sense of entitlement, rather than by proper cause.
[38]
The second respondent, having reviewed the email
and representations forwarded to him on 30 November 2017, and the
renewed application
for legal representation and the response
thereto, on 23 April 2018, again declined the applicant’s
application for legal
representation.
[39]
It is this decision (“
the
decision
”) the applicant seeks to have
reviewed and set aside.
The
Legal-Factual Matrix
[40]
In
Hamata
and Another v Chairperson, Peninsula Technicon Internal Disciplinary
Committee, and Others
,
[1]
which concerned a student challenging the rule limiting
representation at disciplinary proceedings to fellow students or
members
of the Pentech Staff, the SCA (reading in the discretion,
although the Pentech’s rules did not provide for external legal
representation) held that the law does not recognise an absolute
right to legal representation.
[2]
[41]
A consideration of paragraphs [11] to [13] of the
Hamata
judgment
makes it clear that the right to legal representation in fora other
than courts exists only where it is truly required
to attain
procedural fairness.
[42]
At paragraph [13] of
Hamata
,
the SCA then states that the decision whether or not to allow legal
representation depends on the circumstances prevailing in
the case
under consideration, once the decision-making body has taken into
account factors such as:
a.
the nature of the charges brought;
b.
the degree of legal or factual complexity
attendant upon considering the charges;
c.
the potential seriousness of an adverse finding;
d.
the availability of suitably qualified lawyers
among the student or staff body;
e.
the training of the presiding officer (in
Hamata
the presiding officer was legally trained); and
f.
any other
factor relevant to confining the student to the representation for
which the rule expressly provides
[3]
.
[43]
The SCA’s
approach in
Hamata
,
that there is no absolute right to legal representation in fora other
than in courts of law (and that the discretion whether or
not to
allow external legal representation is essentially based on
considerations of fairness) has been confirmed in a number of
subsequent cases, which cases covered diverse contexts.
[4]
[44]
A caveat
was raised in
Fransman
v Speaker of the Western Cape Provincial Legislature and Another
[5]
at paragraph [57], where the
court stated the following:
“
In short, there is
no absolute right to legal representation in fora other than courts
of law, but it cannot be excluded as of rule;
a discretion on whether
to allow it must be exercised taking into account relevant factors.
Having said that,
if the rules of a particular
tribunal allow for an unqualified right to legal representation then
it will be unqualified
, but that is not the
case with rule 72. The judgment of the Legal Aid South Africa v
Magidiwana and others
2015 (6) SA 494
(CC) does not take the matter
any further”
[Emphasis, in cursive,
added]
[45]
From the wording of paragraph 5.9 of the DJP it
is clear that, where an adverse finding against the applicant
could
result in his expulsion from the first respondent, the applicant is,
as of right, entitled to external legal representation.
[46]
In the circumstances of the present matter the
dictum
of the court in
paragraph [57] in
Fransman
,
cited above, is to be qualified to the extent that the applicant
would only be entitled to as of right should the possibility
exist
that he may be expelled from the first respondent.
[47]
From this it follows that the enquiry postulated
in
Hamata
only
becomes relevant once it appears that there is no possibility that
the applicant may be expelled.
[48]
In light of the abovementioned contents of the
pre-hearing minutes (the correctness of which were confirmed under
oath on behalf
of the respondents), and the fact that the second
respondent cannot bind the tribunal hearing the matter, I do not
accept the respondents’
contention that there is no possibility
that the applicant may not be expelled from the first respondent
following a conviction
on the charges he ultimately faces.
[49]
From what has been stated above, it is clear that
the second respondent was neither provided with the minutes of the
pre-hearing
of 1 December 2017 or the minutes of the pre-hearing of 5
March 2018, both of which expressly include the possibility that the
applicant may be expelled from the first respondent.
[50]
Since the second respondent explicitly stated (in
his 30 November 2017 decision) that an application for external legal
representation
may not be refused where an adverse finding could lead
to expulsion, I will in favour of the second respondent accept that
had
the second respondent been made aware thereof that the applicant
faced the possibility of expulsion from the first respondent, he
would have allowed the application for external legal representation.
[51]
If I am wrong in my assumption, that the second
applicant was unaware thereof the applicant faced the possibility of
expulsion (according
to the first respondent, through Ms Ebrahim), he
could (given the express wording of DJP5.9) nevertheless not
competently have
reached the decision to deny the applicant external
legal representation.
[52]
In making
the above findings, I am mindful of the test in respect reviews in
the current context, as set out in matters such as
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Others
,
[6]
Carephone
(Pty) Ltd v Marcus NO
,
[7]
and
Rustenberg
Platinum Mines Ltd (Rusternberg Section) v Commission for
Conciliation, Mediation and Arbitration
.
[8]
I am specifically mindful thereof that the question is not whether a
court agrees with the decision made by the decision maker,
but
whether it was one that the decision maker could reach. As stated in
Carephone
at par [36]:
“
In determining
whether administrative action is justifiable in terms of the reasons
given for it, value judgments will have to be
made which will, almost
inevitably, involve the consideration of the 'merits' of the matter
in some way or another. As long as
the Judge determining this issue
is aware that he or she enters the merits not in order to substitute
his or her own opinion on
the correctness thereof, but to determine
whether the outcome is rationally justifiable, the process will be in
order.”
[53]
In the
premises I find that the second respondent’s decision to not be
rationally justifiable and one the second respondent
could not reach
in the circumstances of this case and that it is subject to judicial
review as contemplated by section 6(2) of
the
Promotion
of Administrative justice Act
.
[9]
The
Promotion of Administrative Justice Act
[54]
Once it is decided that a particular
administrative act falls in one of the categories referred to in
sub-section 6(2) of PAJA,
the remedies provided for following such a
finding is contained in section 8 of PAJA, the relevant portion of
which is sub-section
8(1).
[55]
Subsection 8(1) of PAJA provides as follows:
“
(1) The court or
tribunal, in proceedings for judicial review in terms of section
6(1), may grant any order that is just and equitable,
including
orders-
(a)
directing the administrator-
(i) to give reasons; or
(ii) to act in the manner
the court or tribunal requires;
(b)
prohibiting the administrator from acting in a particular manner;
(c)
setting aside the administrative action and-
(i) remitting the matter
for reconsideration by the administrator, with or without directions;
or
(ii) in exceptional
cases-
(aa)
substituting or varying the administrative action or correcting a
defect resulting from the administrative action; or
(bb)
directing the administrator or any other party to the proceedings to
pay compensation;
(d)
declaring the rights of the parties in respect of any matter to which
the administrative action relates;
(e)
granting a temporary interdict or other temporary relief; or
(f)
as to costs.”
[56]
In the present instance sub-section 8(1)(c),
specifically, is applicable.
[57]
Relevant to the present matter, in terms of
subsection 8(1)(c) of PAJA, a court setting aside the administrative
action is either
to remit the matter to the administrator (in the
ordinary course), or to substitute, vary, or correct the action (in
exceptional
circumstances).
[58]
The applicant has only prayed for the setting
aside of the second respondent’s decision, without praying for
any consequential
relief. This raises the question of whether
the court can
mero motu
consider
whether to refer the decision back to the second respondent, or
whether to substitute, vary, or correct it.
[59]
In terms of subsection 8(1)(c) it appears that,
once a court has decided to set aside an administrative act, the
decision must be
accompanied either by an order referring the
decision back to the administrator, or by an order substituting,
varying, or correcting
the decision. Following from this it
would appear that, in granting an order that is just and equitable, a
court can
mero motu
consider whether to make an order in terms of sub-section 8(1)(c)(i)
of PAJA, or an order in terms of sub-section 8(1)(c)(ii) in
any
matter where an administrative action is set aside.
[60]
The
Constitutional Court, in
Trencon
Construction (Pty) Ltd v Industrial Development Corporation of SA
Ltd
,
[10]
at paragraphs [34] to [54] set out the relevant test in respect of
whether exceptional circumstances exist which would allow a
court to
substitute, vary, or correct an administrative action. I have found
this reference resists precis (save for minimal redaction):
“
Exceptional
circumstances test
[34]
Pursuant to administrative review under section 6 of PAJA and once
administrative action is set aside, section 8(1) affords
courts a
wide discretion to grant “any order that is just and
equitable”. In exceptional circumstances,
section 8(1)(c)(ii)(aa)
affords a court the discretion to make a
substitution order.
[35]
Section 8(1)(c)(ii)(aa) must be read in the context of section 8(1).
Simply put, an exceptional circumstances enquiry
must take place in
the context of what is just and equitable in the circumstances.
In effect, even where there are exceptional
circumstances, a court
must be satisfied that it would be just and equitable to grant an
order of substitution.
[36]…
[42]
The administrative
review context of section 8(1) of PAJA and the wording under
subsection (1)(c)(ii)(aa) make it perspicuous that
substitution
remains an extraordinary remedy. Remittal is still almost
always the prudent and proper course.
[43]
In our constitutional
framework, a court considering what constitutes exceptional
circumstances must be guided by an approach that
is consonant with
the Constitution. This approach should entail affording
appropriate deference to the administrator.
Indeed, the idea
that courts ought to recognise their own limitations still rings
true. It is informed not only by the deference
courts have to
afford an administrator but also by the appreciation that courts are
ordinarily not vested with the skills and expertise
required of an
administrator.
[44]
...
[45]
Judicial deference,
within the doctrine of separation of powers, must also be understood
in the light of the powers vested in the
courts by the Constitution…
[46]
A case implicating an
order of substitution accordingly requires courts to be mindful of
the need for judicial deference and their
obligations under the
Constitution. As already stated, earlier case law seemed to
suggest that each factor in the exceptional
circumstances enquiry may
be sufficient on its own to justify substitution. However, it
is unclear from more recent case
law whether these considerations are
cumulative or discrete.
[47]
To my mind, given the
doctrine of separation of powers, in conducting this enquiry there
are certain factors that should inevitably
hold greater weight.
The first is whether a court is in as good a position as the
administrator to make the decision.
The second is whether the
decision of an administrator is a foregone conclusion. These
two factors must be considered cumulatively.
Thereafter, a
court should still consider other relevant factors. These may
include delay, bias or the incompetence of an
administrator.
The ultimate consideration is whether a substitution order is just
and equitable. This will involve
a consideration of fairness to
all implicated parties. It is prudent to emphasise that the
exceptional circumstances enquiry
requires an examination of each
matter on a case-by-case basis that accounts for all relevant facts
and circumstances.
[48]
A court will not be in
as good a position as the administrator where the application of the
administrator’s expertise is still
required and a court does
not have all the pertinent information before it. This would
depend on the facts of each case.
Generally, a court ought to
evaluate the stage at which the administrator’s process was
situated when the impugned administrative
action was taken. For
example, the further along in the process, the greater the likelihood
of the administrator having already
exercised its specialised
knowledge. In these circumstances, a court may very well be in
the same position as the administrator
to make a decision. In
other instances, some matters may concern decisions that are judicial
in nature; in those instances
– if the court has all the
relevant information before it – it may very well be in as good
a position as the administrator
to make the decision.
[49]
Once a court has
established that it is in as good a position as the administrator, it
is competent to enquire into whether the
decision of the
administrator is a foregone conclusion. A foregone conclusion
exists where there is only one proper outcome
of the exercise of an
administrator’s discretion and “it would merely be a
waste of time to order the [administrator]
to reconsider the
matter”. Indubitably, where the administrator has not
adequately applied its unique expertise and
experience to the matter,
it may be difficult for a court to find that an administrator would
have reached a particular decision
and that the decision is a
foregone conclusion. However, in instances where the decision
of an administrator is not polycentric
and is guided by particular
rules or by legislation, it may still be possible for a court to
conclude that the decision is a foregone
conclusion.
[50]
…
[51]
A court must consider
other relevant factors, including delay. Delay can cut both
ways. In some instances, it may indicate
the inappropriateness
of a substitution order, especially where there is a drastic change
of circumstances and a party is no longer
in a position to meet the
obligations arising from an order of substitution or where the needs
of the administrator have fundamentally
changed. In other
instances, delay may weigh more towards granting an order of
substitution. This may arise where a
party is prepared to
perform in terms of that order and has already suffered prejudice by
reason of delay. In that instance,
the delay occasioned by
remittal may very well result in further prejudice to that party.
Importantly, it may also negatively
impact the public purse.
[52]
What must be stressed
is that delay occasioned by the litigation process should not easily
clout [sic] a court’s decision
in reaching a just and equitable
remedy. Sight must not be lost that litigation is a
time-consuming process. More so,
an appeal should ordinarily be
decided on the facts that existed when the original decision was
made. Delay must be understood
in the context of the facts that
would have been laid in the court of first instance as that is the
court that would have been
tasked with deciding whether a
substitution order constitutes a just and equitable remedy in the
circumstances.
[53]
There are important
reasons for this approach. Where a matter is appealed, delay is
inevitable. Thus assessing delay
with particular reference to
the time between the original decision and when the appeal is heard
could encourage parties to appeal
cases. This, they would do,
with the hope that the time that has lapsed in the litigation process
would be a basis for not
granting a substitution order. Where a
litigant wishes to raise delay on the basis of new evidence, that
evidence must be
adduced and admitted in accordance with legal
principles applicable to the introduction of new evidence on appeal.
Ultimately,
the appropriateness of a substitution order must depend
on the consideration of fairness to the implicated parties.
[54]
If the administrator is
found to have been biased or grossly incompetent, it may be unfair to
ask a party to resubmit itself to
the administrator’s
jurisdiction. In those instances, bias or incompetence would
weigh heavily in favour of a substitution
order. However,
having regard to the notion of fairness, a court may still substitute
even where there is no instance of
bias or incompetence.
[55]
In my view, this
approach to the exceptional circumstances test accords with the
flexibility embedded in the notion of what is just
and equitable.
It is, therefore, consonant with the Constitution while at the same
time giving proper deference and consideration
to an administrator.”
[61]
Applying considerations set out in
Trencon
,
I am of the view that the court should exercise its discretion in
favour of substituting the second defendant’s decision
with
that of allowing the applicant external legal representation,
inter
alia
, for the following reasons:
a.
DJP5.9, in terms, states that where expulsion
from the first respondent is a possibility, external legal
representation must be
allowed.
b.
The first respondent’s Ms Ebrahim stated
unequivocally that expulsion is a possible sanction.
c.
The only function of the second respondent was to
decide whether to allow the applicant external legal representation
(he having
even raised the question of whether he may not have been
functus officio
after
the 30 November 2017 decision).
d.
The second respondent considering that the
sanction will not be expulsion, does not bind the disciplinary
tribunal hearing the matter.
e.
The disciplinary tribunal may find that a
sanction of expulsion is appropriate (notwithstanding the sentencing
guidelines) which
can be the only reason why Ms Ebrahim included the
applicant’s expulsion from the first respondent as a possible
sanction.
f.
The only possible decision that the second
respondent can make in the circumstances set out above is to allow
the applicant external
legal representation.
g.
It
is in the interests of justice that the disciplinary hearing proceed
as soon as possible. In this regard it must be borne
in mind
that the applicant is a final year student who, should he be found
not guilty, is overdue in respect of graduating from
the first
respondent.
COSTS
[62]
The applicant seeks costs against both
respondents on the attorney client scale.
[63]
While I am of the view that the applicant is
entitled to the costs of the application in the circumstances of this
matter:
a.
Since the second respondent is employed by the
first respondent, as an attorney in its refugee rights unit, and
since the second
respondent acted in an official capacity in the
exercise of his duties as Proctor, at the behest of the first
respondent (with
there being no indication that he acted maliciously
or dishonestly), I find no basis for holding the second respondent
liable to
pay the costs of the application;
b.
I
find no grounds for making a punitive costs order against the first
respondent.
ORDER
[64]
I, accordingly, order as follows:
a.
The decision of the second respondent to refuse
the applicant external legal representation in the disciplinary
hearing, instituted
by the first respondent under case number
17/0141/HC, is hereby set aside.
b.
The decision of the second respondent is
substituted therewith that the applicant is entitled to external
legal representation in
the disciplinary hearing, instituted by the
first respondent under case number 17/0141/HC.
c.
The first respondent is to pay the costs of this
application.
_________________________
JH
LOOTS
Acting
Judge of the High Court
Appearances:
For
the Applicant
: M Salie SC, with him Y Abass
(instructed by Rahin Johnson Attorneys)
For
the Respondents
: M O’Sullivan
(instructed by Fairbridges Wertheim Becker Attorneys)
[1]
2002 (5) SA 449 (SCA)
[2]
At paragraph [5].
[3]
Which includes, for example, the university’s legitimate
interest in dealing with the enquiry internally.
[4]
See:
Legal
Aid South Africa v Magidiwana and Others
2015
(6) SA 494
(CC),
CCMA
and Others v Law Society of the Northern Provinces (Incorporated as
the Law Society of Transvaal
2014
(2) SA 321
SCA,
DE
Lange v Presiding Bishop for the time being of the Methodist Church
of Southern Africa and Another
2015 (1) SA 106 (SCA).
[5]
[2016] JOL
36717 (WCC).
[6]
[2004] ZACC 15
;
2004 (4) SA 490
(CC) at pars 44 and 48.
[7]
1999 (3) SA 304 (LAC).
[8]
2007 (1) SA 576 (SCA).
[9]
Act 3 of 2000 (“
PAJA
”)
[10]
2015 (5) SA
245
(CC). See also
Gauteng
Gambling Board v Silverstar Development Ltd
2005
(4) SA 67
(SCA).