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2024
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[2024] ZAECELLC 2
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Abenta v Walter Sisulu University (EL743/2023) [2024] ZAECELLC 2 (8 February 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, EAST LONDON CIRCUIT COURT)
CASE NUMBER.:
EL743/2023
In
the matter between:
MVELO
ABENTA
Applicant
And
WALTER
SISULU UNIVERSITY
Respondent
JUDGMENT
Beshe
J
[1]
During April 2023, the applicant approached
this court on an urgent basis seeking an order in the following
terms:
1. Dispensing with the
forms and the service provided for uniform rules of the court and
directing that, this application be heard
on urgent basis in terms of
Rule 6 (12) (a).
2. That the rule
nisi
issue with immediate effect calling upon the first respondent to show
cause on
25 April 2023
at
09h30
why the following
orders should not be granted.
2.1 Reviewing and setting
aside the Respondent’s failure to apply its own rules correctly
when deciding to initiate disciplinary
proceedings against the
Applicant.
2.2 Reviewing and setting
aside Respondent’s dismissal of Applicant’s application
to the appeal tribunal that the Respondent
incorrectly applied its
own rules when instituting disciplinary proceedings against the
Applicant.
2.3 Reviewing and setting
aside the respondent’s internal appeal structure’s
decision that the previous Walter Sisulu
University Student
Disciplinary Code of Conduct Policy is not applicable.
2.4 Reviewing and setting
aside the Respondent’s decision to refuse to consider
postponing the disciplinary proceedings pending
the outcome of the
criminal case investigation that had been opened at a South African
Police Service (SAPS) station.
2.5 Further, reviewing
and setting aside the decision by internal appeal body of the
Respondent of failing to overturn the decision
to refuse to postpone
the disciplinary hearing pending the outcome of the criminal
investigation opened by the SAPS.
2.6 Reviewing and setting
aside the decision not to exercise the discretion to advise the
Applicant right to external legal representation.
2.7 Reviewing and setting
aside the standard of proof that the disciplinary tribunal applied
when deciding to expel the Applicant
on allegations of a very serious
criminal offence.
2.8 Reviewing and setting
aside the decision by the internal appeal body of confirming the
standard of proof applied by the disciplinary
tribunal.
2.9 Reviewing and setting
aside the decision to expel the Applicant.
2.10 Additionally,
reviewing and setting aside the decision supporting the expulsion of
the Applicant.
2.11 Declaring invalid,
reviewing and setting aside the decision to deregister the Applicant.
2.12 Reviewing and
setting aside the decision by the disciplinary tribunal and the
appeal tribunal of failing to allow Applicant
right to external legal
representation.
3. That paragraphs
numbered: 2.1; 2.2; 2.3; 2.4; 2.5; 2.6; 2.7; 2.8; 2.9; 2.10; 2.11
shall operate as interim order pending the
finalization of this
application.
4. That the Applicant
resume all academic activities at the University of Walter Sisulu
University including access to campus, campus
residence and student
allowance with immediate effect pending the conclusion of this
application.
5. Costs of this
application.
6. Alternative relief as
the above Honourable Court may deem fit.
Having heard applicant’s
legal representative (Mr Mageleni) on 13 April 2023 Norman J issued a
rule in terms of the notice
of motion. The rule was returnable on the
25 April 2023. When the matter served before me on the extended
return date, there was
no appearance by and/or on behalf of the
applicant. No heads of argument had been filed by the applicant
either. The matter had
previously been on the court roll on the 9 May
2023.
[2]
At the commencement of the proceedings,
counsel for the respondent intimated to court that applicant’s
attorney addressed an email to them on 27 August 2023 requesting that
they consent to a postponement of the matter. Stating that
he was
busy with arrangements for his mother’s funeral. This was
approximately three days before the date of hearing of the
application. He was advised that the respondent was not amenable to
consenting to a postponement of the matter and would like the
matter
to proceed. No substantive application has been filed by the
applicant. Respondent maintained its stance as communicated
to
applicant’s legal representative, that they were ready to argue
the matter having also filed their heads without sight
of applicant’s
heads. I have already pointed out that none have been filed to date.
I made a ruling that the matter should
proceed in the absence of a
substantive application for a postponement. Given also the fact that
the applicant had done very little
to ensure that the matter was
ready to proceed. The applicant had sought and obtained a rule nisi
on an ex parte basis. There was
a lengthy period between the previous
postponement and the date when the matter served in front of me. The
file was last updated
in April. It is not properly indexed and
paginated. No heads of argument have been filed by the applicant
which should have been
the case at least 15 court days before the
hearing of the application.
[1]
The respondent filed its heads as well as its practice note
timeously.
[3]
The applicant is described as an adult male
student who was previously registered with Walter Sisulu
University
(WSU) and as being in his final year of study towards a Diploma in
Analytical Chemistry at the University’s satellite
campus in
East London.
[4]
As the appellation shows, respondent is the
Walter Sisulu University.
[5]
The main issue is whether the applicant has
made out a case for the judicial review of the respondent’s
impugned decisions and therefore entitled to the confirmation of the
rule nisi.
[6]
It is not clear whether the review is sought
under the common law or under the Promotion of Administrative
Justice
Act (PAJA).
[2]
So too are the
grounds upon which the decisions are sought to be reviewed. As it
appears from the notice of motion, applicant seeks
the setting aside
of inter alia, respondent’s failure to apply its own rules
correctly. He also seeks the setting aside of
the appeal body’s
confirmation of the standard of proof applied by the disciplinary
tribunal. Be that as it may, I will be
alive to the principle that
courts have the power to scrutinize administrative decisions that
adversely affect the rights of others
or legitimate expectations of
any person to see if such a decision is procedurally fair.
[7]
Urgency does not seem to be in issue. The
matter was in my view urgent.
[8]
The genesis of the dispute stems from
disciplinary proceedings that were initiated by the respondent
against the applicant. It being alleged that the applicant breached
the Respondent’s Student Disciplinary Code of Conduct
by
allegedly raping a fellow student.
[9]
At the conclusion of the proceedings on 11
February 2022, the Presiding Officer rendered his finding
and found
the applicant guilty as charged. On the 22 May 2022 the Presiding
Officer imposed the following sanction:
‘
Article 11 sub
article 11.6
Expulsion from the
University in which event the respondent shall not be readmitted to
the University, except as provided for in
article 17 sub-article 17.1
of the WSU Student Disciplinary Code of Conduct Policy.
The respondent has a
right to appeal the sanction through the Student Disciplinary Appeal
Committee in terms of Article 13.’
[10]
The applicant availed himself of this avenue by lodging
an appeal against the decision of the Presiding Officer
as well as
the sanction imposed. He filed a notice of appeal on 2 March 2023.
The said appeal was dismissed.
[11]
The difficulty in these proceedings is that I do not
have the record of proceedings sought to be reviewed and
set aside.
[12]
In terms of Rule 53(b) of the Uniform Rules of this
court, a party seeking the review of a decision or proceedings
of
court, tribunal, or board etc, is required to call upon the
Chairperson or Presiding Officer as the case may be, to show cause
why the proceedings or decision concerned should not be reviewed and
set aside. In addition, thereto, the party seeking a review
shall
call upon the Chairperson/Presiding Officer to dispatch, within 15
days of receipt of the notice of motion, to the Registrar,
the record
of proceedings sought to be reviewed.
[13]
No such request was made to the Presiding Officer
of the Disciplinary Hearing and or the Appellate Body.
I have not
been furnished with any reasons why this was not done. All that I
have are the findings and conclusions of the Presiding
Officers in
both Disciplinary Hearings and the Appeal proceedings.
[14]
It is so that the subrule is designed for the benefit of
the applicant and that it is up to him to waive the requirements
of
the subrule. But the record also enables the court to fully assess
the lawfulness or otherwise of the decision-making process.
[15]
The applicant did however provide the following:
Two documents containing
the University’s Disciplinary Code of Conduct Policy.
The findings of the
Presiding Officer’s. (Both in respect of Disciplinary Hearing
and the Appeal.)
The Presiding Officers’
findings are very comprehensive and paint a clear picture of what
occurred during the hearings. In
that way, in my view, they
compensate for the lack of a record.
[16]
Coming to applicant’s ground for review as can be
gleaned from his papers: It is common cause that the applicant
was
charged with acts of misconduct, it being alleged that he contravened
articles 3.1, 3.7, 3.8 and 3.43 of the WSU Disciplinary
Code of
Conduct Policy. These acts were in connection with an allegation that
the applicant wrongfully, intentionally and unlawfully
had sexual
intercourse with a certain Ms Ndlovu without her consent. It is also
common cause, it would seem that Ms Ndlovu was
a fellow student at
WSU.
[17]
Applicant complains that he only learnt of the charges
on the day of the hearing. Respondent contends that applicant
signed
for the charge sheet on the 11 November 2021. The first day of the
disciplinary hearing was 18 November 2021. Annexed to
applicant’s
papers as annexure MA7 is a notice to attend a disciplinary hearing
that is addressed to him.
[3]
He
confirms that he received it on 11 December 2021. He also annexed a
document entitled Disciplinary Charges as Annexure 6. According
to
the respondent, the document containing the charges was attached to
the notice to attend disciplinary hearing. Respondent also
makes the
point that to show that it is not accurate to say he learnt of the
charges on the first day of the hearing, applicant
did not raise this
issue on the first day of the hearing.
[18]
I am of the view that there is no merit to this
complaint.
[19]
Failure by the respondent to initiate a preliminary
investigation: Article 7 of the Code outlines the procedure
to be
followed in the case of a complaint of misconduct coming to light.
Article 7.2 provides for a preliminary investigation for
which the
Registrar will appoint a person to conduct one or conduct one himself
or/herself. No preliminary investigation was conducted
in this
matter.
[20]
The respondent asserts that there was no need to do so.
Article 7.1 provides that:
‘
7.1 NOTIFICATION
OF MISCONDUCT
A student will not be
formally charged with misconduct until a written and signed statement
containing an accusation, complaint
or allegation made against the
student has been submitted to the Registrar or a person authorised by
him/her to receive such complaint,
provided that nothing contained
herein will prevent the Registrar from laying a complaint of
misconduct against a student.’
This sub article in my
view disposes of applicant’s complaint in this regard.
[21]
Failure to exercise a discretion in favour of requiring
proof beyond doubt by the Presiding Officer instead of
proof on a
balance of probabilities in view of the seriousness of the charges.
This is dealt with under Article 6.6 where it is
provided that “A
finding of guilt will only be returned if:
‘
6.6.1.1 the
misconduct charged has, in the opinion of the committee, been proved
on a balance of probabilities
.’
[22]
Failure to avail the applicant an opportunity to be
represented by an external legal representative. I presume
a
practising attorney or advocate. No such request was made as far as I
can glean from the Presiding Officers’ findings.
Besides,
Article 8.3(ii) of the Code makes it plain that a student may
personally conduct his defence but may not be legally represented
by
a lawyer/attorney who is not a student. So too, this complaint seem
to be bereft of merit. Be that as it may, Section 3 (3)
(a) of PAJA
states that: “(3) In order to give effect to the right to
procedurally fair administrative action, an administrator
may, in his
or her or its discretion, also give a person referred to in
subsection (1) an opportunity to‒
(a) obtain assistance
and, in serious or complex cases, legal representation.”
This may have been such
case where the Presiding Officer could have exercised his discretion
in favour of giving the applicant an
opportunity to obtain the
assistance of a legal representative.
[23]
Respondent’s refusal to consider a postponement
pending the outcome of criminal investigation.
[24]
Nowhere, as can be gleaned from the Presiding Officer’s
findings, does it appear as though applicant applied
for postponement
pending the criminal investigation of the matter. What does loom
large however is that applicant through his representative,
in
refusing to open their case, made it clear that this would prejudice
him in respect of the criminal case. It is apposite to
quote from the
Presiding Officer’s finding in this regard who records that:
‘
61. On 12 April
2022, the matter resumed with all the parties present including the
representative of the respondent. Both parties
indicated that they
were ready to proceed.
62. The representative of
the respondent indicated that they were electing not to open their
case. put differently they were not
going to call the respondent nor
any other witness come and ventilate their version in rebuttal of the
complainants version. Stating
that, that is because a criminal case
has been reported to the police and is pending against the
respondent.
63. The representative
stated further that giving evidence before this tribunal will have a
negative effect on the respondents person
when he has to testify
before a court of law and in closing he stated that, as such the
respondent took a conscious decision to
exercise his right to remain
silent before this tribunal.
64. As the chairperson
presiding, of course vested with the power to advise particularly
those who are not well versed with the
legalities pertaining to
complexities of law and potential prejudice in the exercise of any
right. I took time and advised the
respondent and his representative
and further urged them to consult further on the exercise of this
right, pointing out the potential
prejudice that might culminate when
findings are made at the end of the matter, which on their own, if
findings are against the
respondent, would have far negative effect
on his part owing to failure to ventilate his case even though
accorded an opportunity
to do so.
65. Advising further
that, the tribunal will be left with no other option but to consider
the case on the basis of the version of
the evidence tendered on
behalf of the complainant. Further that the indication on their part
was to ventilate their case, in that,
they cross examined witnesses
of the complainant and as such giving an impression that they were
going to present their case and
disclose their defence., which in my
view did not even manifest itself during the cross examination of any
of the complainant’s
witnesses.
66. Despite my advice,
the respondent continued and confirmed on record that the submissions
made by his representative were an
execution of his instructions to
him.
67. I provisionally
adjourned the proceedings for about 30 minutes stating that I was
giving the respondent and his representative
enough to consult on
their intended course of action.
68. On resumption after
the lapse of a 30 minutes indulgence. The representative of the
respondent placed it on record that they
were still maintaining their
earlier position., that, they were not going to open their case and
as such they were closing their
case. The respondent confirmed the
said instructions as he did before the adjournment. That then meant
that, the respondent’s
case is closed.
At this stage both
parties indicated that they were ready to deliver their closing
arguments in the matter, however they just needed
a 30 minutes
indulgence in order to thoroughly prepare and same was granted. On
resumption, the parties delivered their closing
arguments which I
capture hereunder starting with the complainants closing arguments
followed by those of the respondent.’
[25]
In my view, the concern raised by the applicant was
valid. The Presiding Officer should have heeded it rather
than be
concerned only with applicant’s stance not to testify in his
defence, based on a valid concern in my view. In this
way, the
applicant was deprived of a reasonable opportunity to present his
defence. The decision to proceed with the hearing amid
applicant’s
revelation that a criminal charge had been laid against him and how
testifying during the disciplinary hearing
might prejudice him at a
later stage, was in my view unjust and falls to be reviewed and set
aside.
[26]
In the circumstances, I am of the view that the
applicant has made out a case for review in terms of Section 3
(1)
and 3 (3) (b) of PAJA. Namely, that the Presiding Officer failed to
give the applicant an opportunity to present his case and
dispute
information placed before the tribunal on behalf of the complainant.
Applicant made it clear that the only reason he did
not want to
testify was his apprehension that this might be prejudicial to him in
the criminal case in view of the fact that criminal
charges had been
laid against him. Nothing stopped the Presiding Officer from
referring the matter back to the Registrar to consider
the summary
procedure outlined under Article 5 of the Code and holding the
proceedings in abeyance. Article 5 provides that:
‘
5.1 Where a charge
of having committed an offence as defined in these Rules is pending
against as student or when in the opinion
of the Registrar such a
charge ought to be instituted against a student or when a student has
been charged with a serious crime,
as listed in Schedule 1 of the
Criminal Procedure Act 51 of 1977, (as amended) in a court of law,
the Registrar may order that,
until the final disposition of the
charge, the student shall:
i.
Cease attending lectures or tutorials.
ii.
Cease participating in such other activities
of the University.
iii.
Not enter the premises of the University.
iv.
Not bring any motor vehicle onto the grounds of the University.
v.
Cease to reside in any University residence
(including privately
owned residences).
vi.
Cease to hold any leadership position in any university
recognised
structures.
5.2 The Registrar
shall not make any order in terms of Article 5.1 above unless:
i.
The student has been allowed to
appear before the Registrar to show
cause why the order should not be made and;
ii.
The Campus Rector considers it to be in the
interest of the student
community or employees or the University to make the order.’
The impact of applicant
not testifying in his defence for the reason stated is that the
Presiding Officer took a decision without
considering his side of the
story. Based only on the evidence tendered in support of the
complaint or charges that were the subject
of Disciplinary
proceedings.
[27]
It stands to reason that the finding of guilt with the
resultant sanction falls to be set aside by reason of being
procedurally unfair.
[28]
Accordingly, the following paragraphs of the rule nisi
issued on the 13 April 2023 are hereby confirmed:
1. Dispensing with the
forms and the service provided for uniform rules of the court and
directing that, this application be heard
on urgent basis in terms of
Rule 6 (12) (a).
2. Reviewing and setting
aside the respondent’s decision to refuse to consider
postponing the disciplinary proceedings pending
the outcome of the
criminal case investigation that had been opened at a South African
Police Service (SAPS) station.
3. Reviewing and setting
aside the decision by internal appeal body of the respondent of
failing to overturn the decision to refuse
to postpone the
disciplinary hearing pending the outcome of the criminal
investigation opened by the SAPS.
4. Reviewing and setting
aside the decision to expel the applicant.
5. Costs of the
application.
N G BESHE
JUDGE OF THE HIGH
COURT
APPEARANCES
For
the Applicant
No
Appearance
Instructed
by
MO
MAGALENI ATTORNEYS
Office
No. 2
Alberti’s
Chambers
14
Cromwell Street
Market
Square
EAST
LONDON
Ref:
MAG/LCA-E.P 08/23-MO
Tel.:
043 -722 0833 / 071 905 3769
For
the Respondent
Adv:
Kotze
Instructed
by
DRAKE
FLEMMER & ORSMOND INC.
Quenera
Office Park
12
Quenera Drive
Beacon
Bay
EAST
LONDON
Ref.:
AJ PRINGLE/th/MAT58092/W444
Tel.:
043 – 722 4210
Date
Heard
31
August 2023
Date
Reserved
31
August 2023
Date
Delivered
8
February 2024
[1]
Rule
8(e) of the Joint Rules of Practice of this Court.
[2]
Act
3 of 2000.
[3]
At
the bottom of the document is a subheading: Return of Service.