About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2021
>>
[2021] ZAWCHC 8
|
|
Dart v Chairperson of the DAC of Stellenbosch University and Others (6501/2020) [2021] ZAWCHC 8; [2021] 2 All SA 141 (WCC) (1 February 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
REPORTABLE
Case
No:
6501/2020
In the matter between:
DEAN
DART
Applicant
and
CHAIRPERSON OF THE DAC
OF
STELLENBOSCH UNIVERSITY
First Respondent
CHAIRPERSON OF THE
FIRST CDC
OF
STELLENBOSCH UNIVERSITY
Second Respondent
CHAIRPERSON OF THE
SECOND CDC
OF
STELLENBOSCH UNIVERSITY
Third Respondent
STELLENBOSCH
UNIVERSITY
Fourth Respondent
RECTOR
OF STELLENBOSCH UNIVERSITY
Fifth Respondent
Court
:
Acting Justice JH Loots
Heard
:
15 September 2020
Delivered
:
1 February 2021
ORDER
Having
read the papers filed of record and having heard counsel for the
applicant and the respondents, it is ordered that:
1.
The application is dismissed.
2.
The parties shall each bear their own
costs.
JUDGMENT
INTRODUCTION
1.
In terms of the provisions of the Promotion
of Administrative Justice Act 3 of 2000 (“
PAJA
”),
the applicant seeks to review and set aside the decisions of the
Disciplinary Appeal Committee (“
the
DAC
”) of the fourth respondent
(“
the University
”):
1.1.
to dismiss the applicant’s appeal;
and
1.2.
to impose a harsher sanction than had been
imposed by the University’s Central Disciplinary Committee
(“
the CDC
”).
2.
In addition to the review and setting aside
of the DAC’s decisions, the applicant wishes this court to
substitute the decision
of the DAC with the finding that the
applicant is found not guilty of a contravention of Rules 9.3 and 9.6
of the Disciplinary
Code for Students of Stellenbosch University
(“
the Disciplinary Code
”).
3.
The respondents oppose the application on
the basis that the DAC’s decision is correct, both procedurally
and substantively.
BACKGROUND
4.
In May 2017, posters appeared around the
campus of the University.
5.
Two of the posters invited the
"Anglo-Afrikaner Student" to a meeting of the "New
Right" and to "Fight
for Stellenbosch / Veg vir
Stellenbosch". These posters were direct copies of Hitler
Youth recruitment posters.
6.
The third poster, reminiscent of
anti-communist propaganda of the 1970’s Chilean military junta,
depicted a person falling
from a helicopter with the tagline "Commies
Deserve Free Helicopter Rides" also containing an internet meme
known as
"Pepe the Frog", said to denote satire.
7.
The applicant, a first year student at the
time, participated in the conceptualisation and production of the
posters although, due
to illness, he apparently did not participate
in them being put up on campus. In this regard it is to be
noted that the fact
that the applicant did not physically partake in
the erection of the posters is of no real moment as he clearly wanted
them displayed
on campus in order to further the agenda of the group
of students of which he formed part.
8.
The publication of the posters, as was to
be anticipated, caused public reaction, media coverage, and the
lodging of complaints
with the University.
9.
Consequent upon the appearance of the
posters on campus the University charged the applicant, together with
two fellow students
who had also participated in one or more aspect
relating to the conceptualisation, production, and display of the
posters, with
the contravention of Rules 9.1, 9.3, 9.5, 9.6 and 9.7
of the Disciplinary Code.
10.
Following a hearing by the CDC, the
applicant and his two fellow students were found guilty of
contravening Rules 9.3 and 9.6 of
the Disciplinary Code.
11.
Disciplinary Rule 9.3 provides that:
“
A
Student shall not act in a manner that is racist, unfairly
discriminatory, violent, grossly insulting, abusive or intimidating
against any other person. This prohibition extends but is not
limited to conduct which causes either mental or physical harm,
is
intended to cause humiliation, or which assails the dignity of any
other person.”
while
Disciplinary Rule 9.6 provides that:
“
A
Student shall not act in a manner so as to disrupt, or potentially
disrupt, the maintenance of order and discipline at the University.”
12.
On 5 September 2017, and in consequence of
the aforementioned conviction of the three students, including the
applicant, the CDC
(as per paragraph 48 of the Condensed Report of
Disciplinary Enquiry attached to the document titled “Result of
the Disciplinary
Enquiry Before the Central Disciplinary Committee
(“CDC”)”) imposed the following sanction in respect
of all
three students:
“
48.1
100 hours community service to be completed before the end of the
first semester 2018.
48.1.1
60 hours must be completed by the end of the 2017 academic year of
which 50 hours must be done at the Transformation
Office and 10 hours
at the Equality Unit. The last 10 hours must include a mediation
session with the witnesses from the CDC.
48.2
The respective students must complete a Restorative assignment of
which the key aspect
must be on how to constructively engage on
campus and address different narratives.
48.3
The first draft must be submitted to the panel not later than the
last day of the third
term 2017.
48.4
The second draft must be submitted to the panel not later than the
last day of classes
in the second semester of 2017.
48.5
The final assignment must be submitted not later than the first
Monday of February 2018.
48.7
If any of the students fail to comply with any of the above, he (the
failing student) will
be expelled from the SU immediately.”
13.
Only the applicant appealed the CDC’s
decision to the CAD.
14.
Following the appeal hearing, where the
applicant was represented by both an attorney and senior counsel, the
DAC dismissed the
applicants appeal against the CDC’s decision,
and increased the sanction imposed by the CDC to one of immediate
expulsion
from the University.
15.
As referred to above, the DAC’s
decisions to uphold the appeal and to impose the sanction of
immediate expulsion from the
University are what the applicant seeks
to have set aside.
RULE
53
16.
Before turning to the merits of the
applicant’s application to review and have set aside the
decisions of the DAC, it is necessary
to discuss the purpose and
function of the provisions of Uniform Rule 53 (“
Rule
53
”).
17.
The reason for this is that, following the
respondents filing what the applicant considered to be an inadequate
record relevant
to the decision of the DAC the applicant, unusually,
rather than seeking to compel the respondents to address the
inadequacies
in the record they had filed, or to utilise the
inadequacies in the record to his own advantage, chose to file what
he considered
to be the complete record.
18.
The applicant seeks to rely on the record
he has filed in preference of the record filed by the respondents in
the same manner he
would have relied on the record filed by the
respondents pursuant to the provisions of Rule 53, had they filed
what he considered
to be an adequate record.
19.
In deciding whether the applicant is
entitled to act in the manner he did, it is important to consider
both the purpose of Rule
53 and the mechanisms it creates for
achieving this purpose.
20.
The
purpose of Rule 53 can succinctly be stated to be to facilitate and
regulate applications for review.
[1]
21.
In order to achieve this purpose Rule 53
adapts the application procedure provided for in Uniform Rule 6
(“
Rule 6
”).
22.
Principal among the amendments of the
application procedure provided for in Rule 6 are that the person
officially in possession
of the record is called upon to:
22.1.
show
cause why the relief sought should not be granted;
[2]
and
22.2.
dispatch
the record of such proceedings sought to be corrected or set aside to
the Registrar of the court hearing the application,
together with
such reasons as he or she is by law required or desires to
provide.
[3]
23.
Thus,
in respect of Rule 53(1)(b) Madlanga J, writing on behalf of the
majority in
Helen
Suzman Foundation v Judicial Service Commission
,
said:
[4]
“
[13]…The
requirement in rule 53(1)(b) that the decision-maker file the record
of decision is primarily intended to operate
in favour of an
applicant in review proceedings. It helps ensure that review
proceedings are not launched in the dark. The record
enables the
applicant
and the court
fully and properly to assess the lawfulness of the decision-making
process. It allows an applicant to interrogate the decision
and, if
necessary, to amend its notice of motion and supplement its grounds
for review.
[14]
Our courts have recognised that rule 53 plays a vital role in
enabling a court to perform its constitutionally entrenched review
function:
'Without
the record a court cannot perform its constitutionally entrenched
review function
, with the result that a
litigant's right in terms of s 34 of the Constitution to have a
justiciable dispute decided in a fair public
hearing before a court
with all the issues being ventilated, would be infringed.'
[15]
The filing of the full record furthers an applicant's right of access
to court
by ensuring
both
that the court has the relevant
information before it
and that there is
equality of arms between the person challenging a decision and the
decision-maker. Equality of arms requires
that parties to the review
proceedings must each have a reasonable opportunity of presenting
their case under conditions that do
not place them at a substantial
disadvantage vis-à-vis their opponents. This requires that —
'all
the parties have identical copies of the relevant documents on which
to draft their affidavits and that they
and
the court
have identical papers before
them when the matter comes to court'.
[16]
In
Turnbull-Jackson
this court held:
'Undeniably,
a rule 53 record is an invaluable tool in the review process. It may
help shed light on what happened and why; give
the lie to unfounded
ex post facto
(after the fact) justification of the decision under review; in the
substantiation of as yet not fully substantiated grounds of
review;
in giving support to the decision-maker's stance; and in the
performance of the reviewing court's function.'
”
24.
Despite what is stated above, it is not
necessarily the entire record that serves as evidence before the
court. Rules 53(3) and
53(4) find application once the record has
been provided to the Registrar in terms of Rule 53(1)(b).
25.
Rule 53(3) provides as follows:
“
The
registrar shall make available to the applicant the record despatched
to him or her as aforesaid upon such terms as the registrar
thinks
appropriate to ensure its safety, and the applicant shall thereupon
cause copies of such portions of the record as may be
necessary for
the purposes of the review to y be made and shall furnish the
registrar with two copies and each of the other parties
with one copy
thereof, in each case certified by the applicant as true copies. The
costs of transcription, if any, shall be borne
by the applicant and
shall be costs in the cause.”
26.
It is therefore the duty of the applicant
to select what is relevant from the filed Rule 53 record to serve as
evidence for the
purpose of the review application. This selection
may, in appropriate cases, be supplemented by the respondent.
27.
The fact that the selected portions of the
record filed pursuant to the provisions of Rule 53(1)(b) serves as
evidence is a further
important departure from the principles that
govern applications in that ordinarily only that which is contained
in, or attached
to, the affidavits filed by the parties constitutes
evidence.
28.
Although,
generally, it is only what is selected that serves as evidence before
the court,
[5]
it has been held
that, should it be considered necessary for the due performance of
the court’s duties, the court may
meru
moto
have regard to any part of the record filed, whether extracted by the
parties or not.
[6]
29.
In the context of this application, it is
the last mentioned right of the court to have regard to the entire
record, which brings
the record filed in this matter pursuant to the
provisions of Rule 53 into sharp relief.
30.
The
record filed by the respondents was, undoubtedly, incomplete in
material respects.
[7]
Therefore,
already in October 2018, the applicant (as aforementioned) filed what
he considered to be the complete record, serving
a copy thereof on
the Cape Town correspondent of the respondents’ attorneys of
record.
31.
Only after the filing of the supplemented
record, did the applicant supplement his founding papers, did the
respondents file answering
papers, and did the applicant file his
replying papers.
32.
The respondents did not object to applicant
filing the supplemented record at the time, or at any time before the
hearing of the
review, despite having had sufficient time and
opportunity to do so.
33.
The provisions of Rule 53 are not
peremptory and the court can condone non-compliance with its
provisions in appropriate circumstances.
I am prepared to do so
in the circumstances of this matter, since I hold the view that it
allows the court to properly fulfil its
function of considering the
review of the decision of the DAC. In view of what is stated above I
also hold the view that there
could be no prejudice to the
respondents. I shall, accordingly consider the application on the
basis of the full record filed by
the applicant, rather than the
truncated record filed by the respondents.
34.
I, immediately, state this should not be
seen as a blanket condonation of the unorthodox method employed by
the applicant to have
the full record placed before the court.
PRINCIPLES
GOVERNING REVIEW
35.
In light of the nature of many of the
applicant’s challenges to the decisions of the DAC, it is
furthermore prudent to restate
the substantive principles governing
reviews, with specific emphasis on the role and powers of the court.
36.
These
principles, governing the court’s function in exercising its
powers of review, have recently been restated by the Supreme
Court of
Appeal in
Bo-Kaap
Civic And Ratepayers Association v City of Cape Town
,
[8]
where, at paragraph 72, the SCA referred with approval to the
following statement by Laws J in
R
v Somerset County Council, ex parte Fewings & others
[1995]
1 All ER 513
(QB) at 515d-g:
“
Although
judicial review is an area of the law which is
increasingly, and rightly, exposed to a great deal of media
publicity, one of its
most important characteristics is not, I think,
generally very clearly understood. It is that, in most cases, the
judicial review
court is not concerned with the merits of the
decision under review. The court does not ask itself the question,
"Is this
decision right or wrong?" Far less does the judge
ask himself whether he would himself have arrived at the decision in
question.
It is, however, of great importance that this should be
understood, especially where the subject matter of the case excites
fierce
controversy, the clash of wholly irreconcilable but deeply
held views, and acrimonious, but principled, debate. In such a case,
it is essential that those who espouse either side of the argument
should understand beyond any possibility of doubt that the task
of
the court, and the judgment at which it arrives, have nothing to do
with the question, "Which view is the better one?"
Otherwise, justice would not be seen to be done: those who support
the losing party might believe that the judge has decided the
case as
he has because he agrees with their opponents. That would be very
damaging to the imperative of public confidence in an
impartial
court. The only question for the judge is whether the decision taken
by the body under review was one which it was legally
permitted to
take in the way that it did.”
37.
This
accords with the following extract from
Wade
and Forsyth Administrative Law
,
also quoted in
Bo-Kaap
Civic
:
[9]
“
The
system of judicial review is radically different from the system of
appeals. When hearing an appeal the court is concerned with
the
merits of a decision: is it correct? When subjecting some
administrative act or order to judicial review, the court is
concerned
with its legality: is it within the limits of the powers
granted? On an appeal the question is "right or wrong?" On
review
the question is "lawful or unlawful?"
. . .
Judicial
review is thus a fundamental mechanism for keeping public authorities
within due bounds and for upholding the rule of law.
Instead of
substituting its own decision for that of some other body, as happens
when on appeal, the court on review is concerned
only with the
question whether the act or order under attack should be allowed to
stand or not.”
38.
I
am also mindful of the dicta in matters such as
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Others
,
[10]
Carephone
(Pty) Ltd v Marcus NO
,
[11]
and
Rustenberg
Platinum Mines Ltd (Rusternberg Section) v Commission for
Conciliation, Mediation and Arbitration
.
[12]
39.
I am, accordingly, 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.
40.
Finally,
it remains advisable to heed the following extract from
Carephone
:
[13]
“
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.”
THE
BASES UPON WHICH THE APPLICANTS SEEKS TO REVIEW THE DECISIONS OF THE
DAC
41.
The applicant advanced the following broad
bases upon which he sought this court to review the decisions of the
DAC (and by necessary
implication the CDC):
41.1.
The DAC was biased, alternatively could
reasonably be suspected of bias.
41.2.
The DAC did not comply with the mandatory
and material procedure prescribed in Rule 40.1 of the Disciplinary
Code.
41.3.
The whole decision of the DAC was
procedurally unfair.
41.4.
The DAC took irrelevant considerations into
account.
41.5.
The DAC did not consider the relevant
consideration that Disciplinary Rule 9.6 can only be contravened
intentionally.
41.6.
The DAC’s decision to dismiss the
applicant’s appeal and to increase the sanction the CDC has
imposed is not rationally
connected to the information before it.
41.7.
The DAC’s decision is so unreasonable
that no reasonable person could have so exercised the function of
deciding the appeal.
42.
For reasons that, if not already apparent,
will become apparent below, I will deal with the DAC’s decision
to dismiss the
applicant’s appeal separately from its decision
to increase the sanction imposed by the CDC to immediate expulsion
from the
University.
THE
DECISION NOT TO UPHOLD THE APPLICANT’S APPEAL FROM THE CDC
Bias
43.
In the first instance, the applicant
complains that the DAC Chairperson refused to order that the audio
recording of the proceedings
before the CDC be transcribed by the
University; and that he was refused permission by the DAC to record
the DAC proceedings himself
on his own device.
44.
This complaint dovetails with the
applicant’s complaint that the DAC did not follow the
prescriptions of Disciplinary Rule
40.1.
45.
Disciplinary Rule 40.1 provides that:
“
Immediately
upon the lodging of an appeal to the DAC, the HSD must compile the
record of the enquiry in the RDC, or the CDC, which
includes the
transcription of any recordings, and supplement the combined file
referred to in clause 27.3.6 accordingly. The combined
file must be
provided to the members of the DAC as soon as practically possible.”
46.
Disciplinary Rule 40.1 must be read in
conjunction with Disciplinary Rule 40.2. Rule 40.2 provides as
follows:
“
Access
to the record of the enquiry may be granted to any party to the
appeal at the discretion of the Chairperson of the DAC who
determines
the manner and extent of the access. Copies or transcriptions, as the
case may be, may be allowed against payment of
reasonable costs
thereof.”
47.
Thus, seen in context, I agree with counsel
for the respondent that there was no obligation on the DAC to have
provided a transcript
of the record of proceedings before the CDC
where the applicant had been provided with a recording of the
proceedings before the
CDC.
48.
I also find that the fact that the Head of
Student Discipline (“
HSD
”)
did not make a transcript of the proceedings did not vitiate the
appeal before the DAC in the circumstances of this case.
49.
Similarly, I find that the fact that the
applicant was not allowed to make his own recording of the
proceedings before the DAC,
in circumstances where the proceedings
were already being recorded by the University, and where he would
have access to the recording,
established neither prejudice, nor
bias.
50.
In
the second instance, the applicant complained about various primary
and secondary factual findings made and conclusions reached
by the
DAC in its report; including complaining about the DAC’s choice
of chronology. Specific primary instances include
the
following:
[14]
50.1.
That the DAC found the outcry caused by the
posters was to be undisputed where, according to the applicant, it
was disputed.
50.2.
That the DAC described the first two
posters as
"Nazi based
posters"
in paragraph 32 of its
reasons, when that was one of the issues to be decided.
50.3.
That the DAC found the posters to be
racially exclusive and associated with the political ideology of
apartheid.
51.
The above complaints, properly considered,
relate to appeal rather than review. This notwithstanding, a perusal
of the record of
the proceedings before the CDC and the DAC shows
that the DAC gave proper consideration to the aspects complained of.
These complaints,
therefore, do not establish bias.
52.
The applicant’s contention that the
DAC was biased due to it having considered that which was not before
the CDC which concerned
the meaning of the third poster –
specifically the historical events in Chile and the meaning of the
Pepe the Frog meme,
must suffer a similar fate:
52.1.
In terms of Rule 25.6 of the Disciplinary
Code, read with Rule 7.13 thereof, the DAC has wide appeal powers and
may "rehear
any Disciplinary Matter on the merits to whatever
extent the DAC considers necessary. Being a wide appeal, the DAC was
therefore
not confined to the record before the CDC and was entitled
consider additional evidence or information.
86
52.2.
As the first respondent explained in the
answering affidavit she deposed to in this application:
"These
symbols have established meanings or
connotations, and
/or are used
in
specific contexts.
The applicant cannot invoke these symbols
for his own benefit to advance his agenda and that of his associates,
and then expect
not to be judged against and held to the meaning of
those symbols."
52.3.
Finally,
it is also important to note that the CDC and DAC are not criminal
courts and their procedures are designed to facilitate
an enquiry
that complies with the rules of natural justice and to arrive at a
just enquiry and decision. This process contains
inquisitorial
elements, which allows them a wider discretion to include contextual
facts in their findings (i.e. they are not required
to decide cases
in a vacuum).
[15]
Therefore,
unless the rules of natural justice were not followed, the fact that
the DAC may have taken into account additional
information, does in
itself not establish bias.
53.
Thirdly, the applicant contended that the
DAC was wrong to find that the CDC process was procedurally fair.
Having considered
the facts advanced in support of this contention
and, having measured them against the Rule 53 record the applicant
has filed,
I do not agree.
54.
Fourthly, the
applicant alleged that
the DAC was biased for
"deliberately ignoring"
evidence of Mr Muller and Mr Kallis
before the CDC which supposedly exculpated him. As argued by Mr de
Jager on behalf of the respondent,
and as appears from the record,
the DAC did not ignore this evidence, rather it considered, and then
rejected it based on the further
evidence before it.
55.
This ground of review, accordingly, fails.
The
challenge based on contentions that the DAC failed to take relevant
considerations into account and took irrelevant considerations
into
account
56.
As the heading suggests, under this ground
of review the applicant raises the two arguments; that the DAC failed
to take relevant
considerations into account, as well as taking
irrelevant considerations into account when deciding the applicant’s
appeal.
57.
This challenge based on the taking into
account of irrelevant information, is in the first instance again
principally founded on
the DAC’s considerations relating to the
posters, addressed above. As already found in the previous
section, this ground
must fail even in its new guise.
58.
The second contention principally revolved
around the DAC not finding that the applicant’s conduct could
be excused on the
basis that he did not have the intention of
breaching the disciplinary code in the manners contemplated by
Disciplinary Rules 9.3
and 9.6, both of which have been reproduced
earlier in this judgment. The DAC interpreted the Disciplinary Code
and held that Mr
Dart’s subjective intention in relation to the
quoted Disciplinary Rules is irrelevant, and that what was relevant
was the
fact that his conduct did breach the Disciplinary Code.
I do not fault the DAC in this regard.
59.
Accordingly
these challenges must fail. It must also be borne in mind that the
DAC rejected the applicant’s version that he
was unaware of the
origin of the posters, and found that the applicant was well aware
thereof that the posters may cause offense
and cause a reaction to
them being put up on campus.
[16]
Alleged
procedural unfairness
60.
Reminiscent of his earlier challenges,
referred to above, the applicant alleges that the DAC acted in a
procedurally unfair
manner by:
60.1.
Not enforcing Rule 40.1 of the Disciplinary
Code; and
60.2.
Taking into account additional information
about the meaning of poster 3 and the Pepe the Frog meme.
61.
The issues raised under this heading have
already been addressed earlier in this judgment. I again find them to
lack merit.
In addition I reiterate that the applicant was well
served by his experienced legal team, both in the hearing before the
CDC and
in the appeal before the CDC who had the full opportunity to
present the applicant’s case before these tribunals.
The
DAC acted irrationally and unreasonably
62.
The applicant's final grounds of review are
that the decision of the DAC to dismiss the appeal in the first
instance not rationally
connected to the information before it, and
the decision was so unreasonable that no reasonable decision maker
could have so exercised
the function of deciding the appeal.
63.
In this regard the applicant, again, relied
on much the same allegations he used in respect of the grounds
addressed above.
64.
As is the case with the grounds addressed
above, a consideration of the record shows that the DAC’s (and
for that matter the
CDC’s) findings were reasonable and
rationally connected to the information before them.
65.
A reasonable decision maker in the position
of the CDC, and the DAC could have made the findings made (and
reached the conclusions
reached) by these bodies.
66.
I, accordingly, find that the DAC’s
dismissal of the applicant’s appeal cannot be impeached, and
that the decision of
the CDC in this regard must stand.
THE
INCREASE OF THE SANCTION
67.
Having found that the DAC’s decision
in respect of the dismissal of the applicants appeal from the
decision of the CDC is
not to be set aside, I now turn to the
sanction the DAC imposed on the applicant.
68.
As is evident from that which is already
contained in this judgment, the DAC increased the sanction the CDC
imposed on the applicant
from the sanction referred to in paragraph
12, above (essentially a suspended expulsion, coupled with
reconstructive mediation
and community service) to one of immediate
expulsion from the University.
69.
A consideration of the Rule 53 record (both
the record filed by the respondents and the applicant’s
supplemented record) revealed
that:
69.1.
the DAC did not advise the applicant that
it was considering increasing the sanction imposed by the CDC;
69.2.
the
University did not cross-appeal the sanction the CDC imposed on
any of the three students sanctioned, including the applicant,
on the
basis that it was inappropriately light (as it was entitled to in
terms of the Disciplinary Code);
[17]
69.3.
because the applicant’s two fellow
students did not appeal, the sanction handed down by the CDC (which,
as aforesaid was identical
to the sanction imposed on the applicant)
stood unaltered in respect of both of them, while only the applicant
was summarily expelled
from the University.
70.
A consideration of the affidavits filed of
record revealed that the applicant raised two specific grounds of
review in respect of
the increase of sanction (which were reminiscent
of the final review grounds in respect of the dismissal of the appeal
on the merits
of the findings of the DCD), these being that the
decision of the DAC to increase the sanction was not rationally
connected to
the information before it, and that this decision to
increase the sanction was so unreasonable that no reasonable decision
maker
could have so exercised the function of deciding the appeal.
71.
The grounds referred to above did not raise
the aforementioned issue of notice of the possible increase of
sanction, nor did they
specifically raise the issue of a disparity
between the sanctions handed down by the CDC and the DAC, either in
light of the fact
that the sanction handed down to the applicant’s
fellow students (who had not appealed) remained intact, or at all.
72.
Before turning to the two questions
foreshadowed above, it is to be noted:
72.1.
that the sanction the DAC imposed on
the applicant fell within its powers as defined by the Disciplinary
Code. To this extent there
would be a rational connection between the
sanction the DAC was imposed, and facts that served before it,
including the fact that
the sanction imposed by the CDC contemplated
expulsion from the University in the event of non-compliance with any
of its other
terms.
72.2.
The attack on the sanction the DAC imposed
appeared to almost be an afterthought in the sense that the applicant
relied on the same
factual grounds it had raised in support of the
attack on the dismissal of his appeal in respect of his conviction
(for want of
a better expression). The applicant, therefore did not
raise independent sanction specific grounds in of review in respect
of the
sanction only.
Notification
of the possible increase of the sanction
73.
The
dicta in
S
v Bogaarts
and
S
v Joubert
[18]
led to the following dictum in
Samons
v Turnaround Management Association Southern Africa NPC and
Another
:
[19]
“
[27]
It is common cause that TMA's appeals committee has wide-ranging
powers and was entitled to revisit the sentence.
[28] The appeals
committee found the applicant guilty of fewer charges but imposed a
harsher sentence. It did so without informing
the applicant of its
intention to do so. In my view this is procedurally unfair and
irrational. A similar scenario can be found
in criminal appeals. The
power of a court of appeal to increase a sentence imposed by the
trial court is well established in our
law. It has become practice
that, if a court of appeal is prima facie of the view that there is a
prospect that the sentence might
be increased on appeal, notice be
given before the F hearing of the appeal to the
interested parties that
such an increase is being considered. This is
done so that the parties, including the appellant, are not taken by
surprise at the
hearing.
[29] In
S
v Bogaards
the Constitutional Court held that, given
the importance of the right to a fair trial and the substantive
notion of fairness which
it embraces, the failure to give notice
constituted a failure of justice, and the appeal was rendered unfair
and the sentence imposed
was set aside. In
S v Joubert
the
court held that a failure to give such notice had materially
prejudiced the accused; a prejudice that goes further than
a mere
lack of adequate opportunity to prepare properly. The court held
that the requirement of prior notice to an accused
person by the
appellate court balances the appellant's right to a fair trial with
the court's duty to ensure that the sentence
is appropriate and,
where necessary, to increase an inappropriate sentence.
[30]
There is no reason why these principles enunciated by the
Constitutional Court and the SCA would not be applicable to
a
disciplinary hearing. The appellant focused his submissions, on
appeal, on the sentence imposed by the disciplinary committee.
There
was no reason for him to reconsider his position or to make
submissions on a possible increase of sentence by the appeals
committee. The appellant, if notified, could even have withdrawn the
appeal. The prejudice is self-evident.”
74.
I agree with the reasoning contained in the
above quoted extract from
Samons
and, likewise, see no reason why the principles enunciated in
S v Bogaarts
and
S v Joubert
should
not find application in respect of disciplinary proceedings, and
therefore why they (subject to what is stated below), in
principle,
should not apply in this matter.
75.
Since the issue had not specifically been
addressed by either of the parties, the day before the hearing I
referred the parties’
legal representatives to
Samons
,
and requested them to address me with regard to the effect of the
DAC’s apparent failure to have notified the applicant
that it
considered increasing the sanction the CDC had imposed.
76.
The applicant aligned himself with the
dictum
in
Samons
.
77.
The
respondents on the other hand adopted the position, that
notwithstanding the fact that there is nothing on the record to
indicate
that the DAC had given the applicant notice thereof that it
was considering increasing the sanction, the court should not rely on
this failure by the DAC, since the applicant did not advance this as
a specific ground of review, and it does not appear from the
affidavits filed of record themselves. In support of this
contention the respondents’ counsel referred to the judgment
by
the SCA in
Fischer
and Another v Ramahlele and Others
.
[20]
78.
The
passages from
Fischer
which have repeatedly been approved by the courts, including the
Constitutional Court,
[21]
are
the following:
“
[13]
Turning then to the nature of civil litigation in our adversarial
system, it is for the parties, either in the pleadings or
affidavits
(which serve the function of both pleadings and evidence), to set out
and define the nature of their dispute, and it
is for the court to
adjudicate upon those issues. That is so even where the dispute
involves an issue pertaining to the basic human
rights guaranteed by
our Constitution, for '(i)t is impermissible for a party to rely on a
constitutional complaint that was not
pleaded'. There are cases where
the parties may expand those issues by the way in which they conduct
the proceedings. There may
also be instances where the court may
mero
motu
raise a question of law that emerges fully from the evidence and is
necessary for the decision of the case. That is subject to
the
proviso that no prejudice will be caused to any party by its being
decided.
Beyond
that it is for the parties to identify the dispute and for the court
to determine that dispute and that dispute alone.”
[22]
and
[14]
It is not for the court to raise new issues not traversed in the
pleadings or affidavits, however interesting or important
they may
seem to it, and to insist that the parties deal with them. The
parties may have their own reasons for not raising those
issues. A
court may sometimes suggest a line of argument or an approach to a
case that has not previously occurred to the parties.
However, it is
then for the parties to determine whether they wish to adopt the new
point. They may choose not to do so because
of its implications for
the further conduct of the proceedings, such as an adjournment or the
need to amend pleadings or call additional
evidence. They may feel
that their case is sufficiently strong as it stands to require no
supplementation. They may simply wish
the issues already identified
to be determined because they are relevant to future matters and the
relationship between the parties.
That is for them to decide and not
the court. If they wish to stand by the issues they have formulated,
the court may not raise
new ones or compel them to deal with matters
other than those they have formulated in the pleadings or
affidavits.”
79.
A court may, therefore, suggest a line of
argument or an approach to a case that has not previously occurred to
the parties (such
as the issue of the apparent lack of notice to the
applicant that the DAC was considering increasing the sanction the
CDC had imposed
on him).
80.
Once suggested by the court, it is then for
the parties to decide whether or not to adopt the suggested approach.
81.
In
respect of a pure question of law emerging from the papers this may
be relatively simple, but in respect of matters which involve
both
questions of law and of fact, the position is more complicated.
As stated by the Constitutional Court in
Molusi
and Others v Voges NO and Others
,
[23]
at paragraph 27:
“
It
is trite law that in application proceedings the notice of motion and
affidavits define the issues between the parties and the
affidavits
embody evidence. As correctly stated by the Supreme Court of Appeal
in
Sunker
:
'If
an issue is not cognisable or derivable from these sources, there is
little or no scope for reliance on it. It is a fundamental
rule of
fair civil proceedings that parties . . . should be apprised of the
case which they are required to meet; one of the manifestations
of
the rule is that he who [asserts] . . . must . . . formulate his case
sufficiently clearly so as to indicate what he is relying
on.'
”
82.
In my view the above principle applies
notwithstanding the fact that the selected portion of the Rule 53
record serves as evidence
before the court, and the fact that the
court may have regard thereto in deciding the review. It would be a
bridge too far to utilise
the Rule 53 record in support of an
argument not raised in, or appearing from, the affidavits filed of
record. To do so would entirely
negate the purpose and import of
filing affidavits in applications for review.
83.
Rule 53 does not purport to replace the
application procedure provided for in Rule 6, but merely to amend it
in order to facilitate
the fair decision in respect of the actions
sought to be reviewed.
84.
Should a party be allowed to simply rely on
the Rule 53 record to support any contention sought to be made, the
other party would
face the impossible task of attempting to prepare
for any issue that may emerge from the Record, whether or not the
other side
had adopted it and relied thereon in the affidavits.
85.
Therefore, while the court may have regard
to the entire selected Rule 53 record, or even the entire Rule 53
record filed, the evidence
that emerges therefrom first, at least,
needs to be foreshadowed in the Notice of Motion and affidavits filed
of record, and must
relate to an issue that emerges from such papers.
86.
In the present instance, because the issue
of notice did not appear from either the Notice of Motion or the
affidavits filed of
record, the applicant, had he wished to adopt the
argument flowing from
Bogaarts
,
Joubert
and
Samons
in the absence of agreement form the respondents, ought to have
sought to amend his papers to properly raise this issue.
In
light thereof that the issue remains absent from the applicant’s
(and the respondents’) papers, the court may, therefore,
not
decide the issue in favour of the applicant, no matter how important
it may be.
87.
That
the determination of an issue may be necessary for the proper
adjudication of the case is, accordingly, insufficient cause
in
itself to allow the court to determine the issue in question. The
issue first needs to have been sufficiently canvassed and
established
by the facts raised in the affidavits, in this case, before its
importance can play a role. In this regard, reiterated
at paragraph
218 in
South
African Police Service v Solidarity obo Barnard
,
[24]
a case decided in the context of a review pursuant to the provisions
of the Labour Relations Act
[25]
:
“
The
point raised
mero motu
by the court must be apparent from the papers in the sense that it
was sufficiently canvassed and established by the facts, and
that its
determination must be necessary for the proper adjudication of the
case.”
88.
In the premises established above, under
the present circumstances the applicant cannot rely on the fact that
the DAC did not give
him notice of the possibility of the increase in
sanction imposed by the CDC.
Disparity
in the sanction ultimately imposed on the applicant and the sanction
imposed by the CDC
89.
Another issue that was canvassed during the
hearing of the matter was the issue of the DAC having, in fact,
increased the sanction
imposed on the applicant to that of immediate
expulsion from the University.
90.
This raised the question of the apparent
disparity between the sanction effectively handed down in respect of
the applicant and
his fellow students, but for the applicant’s
appeal, and the sanction imposed on the applicant because of his
appeal.
91.
In respect of the increased severity of the
sanction, as has been stated above, in increasing the sanction itself
the DAC was acting
within its powers as confirmed by the Disciplinary
Code.
92.
In respect of the issue of the disparity
between the sanctions imposed on the applicant and his two fellow
students by the CDC and
the sanction imposed by the DAC in respect of
the applicant, the situation is akin to that addressed above in
respect of the CDC’s
apparent failure to notify the applicant
of the possible increase of the sanction:
92.1.
The applicant did not, in the affidavits he
had deposed to in this application, contended that the sanction
imposed upon him was
reviewable on the basis that it was markedly
more severe than the sanction originally imposed on him and his
fellow students (whose
sanctions had remained unaltered) where the
only apparent difference between the applicant and the other students
was that the
applicant had lodged an appeal.
92.2.
Although
the disparity may appear to be unfair, there does not appear to be a
general principle that disparity in the sanction handed
down for like
(or even in this case the same) offences in respect of persons with
essentially the same personal circumstances are,
per se, unfair.
In this regard the closest thereto are the rules relating to
consistency, the so-called “Parity Principle”,
as applied
with the necessary caution in respect of misconduct dismissals in the
sphere of labour relations.
[26]
93.
It follows that the same principles applied
above in respect the court taking into account the DAC’s
apparent failure to notify
the applicant that it was considering an
increase in sanction, would apply
a
fortiori
in respect of the issue of the
inconsistency of the sanction imposed on the applicant, measured
against the sanction imposed on
this fellow students.
94.
In the premises, as is the case with the
question of notice, this issue cannot be determined no matter how
important it may be in
the circumstances of this matter.
Conclusion
95.
The applicant’s review of the
sanction imposed by the DAC, accordingly, fails.
SUBSTITUTION
IN RESPECT OF THE DECISION
96.
In light of the above findings it is
unnecessary to address the appropriateness of substituting the
court’s decision for that
of the DAC.
COSTS
97.
As
candidly conceded by the respondents’ counsel in the
respondents’ heads of argument , the principle established by
Biowatch
Trust v Registrar Genetic Resources and Others
,
[27]
by virtue of
Harrietall
v University of Kwazulu-Natal
,
[28]
generally applies in review applications brought against disciplinary
decisions of universities.
98.
Notwithstanding
the concession that the application was not frivolous or vexatious,
with which I agree, I was urged to award costs
against the applicant,
principally on the basis that the applicants affidavits were replete
with irrelevant material which unnecessarily
drove up the
respondents' costs and mostly amounted to an attempt at a further
appeal. This being in pursuance of the statement
in
Affordable
Medicines Trust and Others v Minister of Health and Another
,
[29]
as being “conduct on the part of the litigant that deserves
censure by the Court”.
99.
Despite the respondents’ invitation
to do so, in light of the facts and circumstances surrounding this
case, I am not prepared
to order that the applicant pay the
respondents’ costs.
CONCLUSION
100.
In the premises I make the order set out
above.
________________________
JH LOOTS
Acting
Judge of the High Court
Appearances:
For
the Applicant:
JJS Prinsloo SC
(instructed by Marius Stenekamp Attorneys)
For
the Respondents
: N de Jager (instructed
by Cluver Markotter Inc.)
[1]
Helen
Suzman Foundation v Judicial Service
Commission
2018 (4) SA 1
(CC) at [13].
[2]
Rule
53(1)(a).
[3]
Rule
53(1)(b).
[4]
at
[13] to [16]. Endnotes omitted.
[5]
Venmop
275 (Pty) Ltd and Another v Cleveland Projects and Another
2016 (1) SA 78
(GJ) at [17];
[6]
Vivobet
(Pty) Ltd v Gauteng Gambling Board
2019
JDR 0470 (GJ) at [19]
[7]
The
record filed by the respondents did, for example, not include a
recording or transcript of the proceedings before the CDC
(or for
that matter the DAC), or the Disciplinary Code.
[8]
2020
JDR 0456 (SCA); [2020] 2 All SA 330 (SCA)
[9]
At
[71]. While said in the context of public bodies, equally apposite
in respect of private bodies , the decisions of which are
subject to
review by the courts.
[10]
[2004] ZACC 15
;
2004
(4) SA 490
(CC) at pars 44 and 48.
[11]
1999
(3) SA 304 (LAC).
[12]
2007
(1) SA 576
(SCA).
[13]
At
[36].
[14]
This
is not an exhaustive list. The remaining complaints under this
heading not specifically addressed in this judgment are also
without
merit; especially given the nature of the proceedings before this
court.
[15]
Patensie
Sitrus Beherend BPK v Competition Commission and Others
2003
(6) SA 474
(CAC) at 501 to 502.
[16]
In
this regard guidance may be found in how the courts have addressed
hate speech in relation to the breach of the relevant legislation.
See for example
Qwelane
v South African Human Rights Commission and Another
2020 (2) SA 124 (SCA) at [66] and [67], and
Nelson
Mandela Foundation Trust and Another v Afriforum NPC and Others
2019 (6) SA 327
(GJ) at [166] to [168]
[17]
2014
(6) SA 123
(CC) at [
[18]
2013
(1) SACR 1
(CC) and
2017 (1) SACR 497
(SCA) respectively.
[19]
2019
(2) SA 596
(GJ) at [27] to [30]. Endnotes omitted.
[20]
2014
(4) SA 614 (SCA).
[21]
See
for example
South
African Police Service v Solidarity obo Barnard
2014
(6) SA 123
(CC) at [217 to [221], Third Concurring Judgment (Jafta J
and Moseneke ACJ), and the cases cited there;
Molusi
and Others v Voges NO and Others
2016 (3) SA 370
(CC) at [27] to [29]
[22]
Endnotes
redacted. Emphasis added.
[23]
2016
(3) SA 370
(CC). Endnotes omitted from the quoted passage.
[24]
2014
(6) SA 123
(CC) at [217 to [221], Third Concurring Judgment (Jafta J
and Moseneke ACJ)
[25]
Act
66 of 1995.
[26]
In
this regard see, for example,
ABSA
Bank Limited v Naidu and Others
[2014] JOL 32445 (LAC)
[27]
2009
(6) SA 232 (CC)
[28]
2018
(I) BCLR 12 (CC) at [16].
[29]
[2005] ZACC 3
;
2006
(3) SA 247
(CC) at
[138]