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[2023] ZAECBHC 6
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South African Students' Congress (SASCO), Universit of Fort Hare Branch v University of Fore Hare (609/2022) [2023] ZAECBHC 6 (3 February 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE
DIVISION, BHISHO)
CASE
NO: 609/2022
In
the matter between:
SOUTH
AFRICAN STUDENTS’ CONGRESS
(SASCO),
UNIVERSIT OF FORT HARE BRANCH
Applicant
and
UNIVERSITY
OF FORT HARE
Respondent
REASONS
FOR JUDGMENT
LAING
J
[1]
This was an application that was brought on an urgent basis for
interdictory
and other relief against the respondent. The applicant
sought,
inter alia
, that the respondent be interdicted from
proceeding with the 2022/2023 student representative council (‘SRC’)
election,
previously scheduled for 19 October 2022, pending an
investigation into the lawfulness of a meeting convened earlier that
month.
The applicant also sought an order directing that the election
process be commenced
de novo
.
[2]
Additional relief sought by the applicant pertained to the conduct of
the Dean of Student Affairs in relation to his compliance with the
provisions of the Student Governance Constitution regarding the
appointment of the Independent Electoral Council (‘IEC’)
and its leadership.
[3]
Finally, the applicant sought an order that the terms of both the SRC
and the Institutional Student Parliament (‘ISP’) be
extended for a period to be decided through a consultative process
involving the various structures concerned.
[4]
The matter came before the court on 14 October 2022, whereupon it was
dismissed with costs. The applicant has requested reasons for the
order handed down.
The
applicant’s case
[5]
For the sake of convenience, the subject of the application is
addressed
below in accordance with the themes that emerged from the
papers.
The
ISP meeting of 1 October 2022
[6]
The chairperson of the applicant’s University of Fort Hare
(‘UFH’)
branch, Mr Somila Siphatha, deposed to the
founding affidavit. He alleged that, on 29 September 2022, the ISP
Organiser, a Mr Godfrey
Ganya, informed the members of the ISP by
email that a meeting would be held on 1 October 2022 to discuss,
amongst other things,
the date of the 2022/2023 SRC election. The
members of the ISP comprised various societies and student political
organisations.
[7]
In reaction to the email, Mr Siphatha contacted the ISP Speaker, Mr
Msingathi
Mabhengu, who indicated that the above date had not been
agreed upon collectively. An urgent ISP Secretariat meeting had been
convened
for 30 September 2022 to deal with the matter.
[8]
Consequently, at 23h53 on 30 September 2022, after the meeting of the
ISP Secretariat had been held, Mr Mabhengu sent communication to the
members of the ISP to advise that the meeting had been postponed
until 9 October 2022. This was to accommodate those members of the
ISP who had already departed for the September recess.
[9]
Notwithstanding the above, the meeting did in fact proceed on 1
October
2022. The delegates agreed on a new date for the election.
[10]
The applicant was not represented at the meeting of the ISP,
considering Mr Mabhengu’s
communication, and averred that it
was prejudiced because of not having had an opportunity to
participate. In particular, the applicant
pointed out that it had
previously conveyed its grievances regarding the election process to
the respondent. These had received
no attention.
[11]
Subsequently, the applicant sought legal advice. In the interim, the
Dean of Student Affairs,
Mr Lufuno Tshikhudo, notified students and
staff on 4 October 2022 that the ISP had decided upon 19 October 2022
as the date for
the election. This prompted the applicant to instruct
its attorneys to record its grievances and to place a set of
proposals and
demands before the respondent, including information
regarding the credentials of the delegates at the meeting of the ISP,
as well
as copies of the resolutions taken. The attorneys sent a
letter to that effect on 5 October 2022. This was followed by a
letter
from Mr Siphatha to Mr Tshikhudo on 8 October 2022,
emphasising the outstanding grievances and warning that the applicant
intended
to take the respondent to court.
[12]
Despite Mr Tshikhudo’s response, sent on 9 October 2022, the
applicant resolved to
commence legal proceedings. By this time, it
had obtained information about the delegates’ credentials. The
applicant alleged
that several delegates complained that their
signatures had been forged and that they had not in fact been present
at the meeting
of the ISP. This cast doubt, said Mr Siphatha, on the
credibility of the meeting and the legitimacy of the election itself.
The
respondent had done nothing to address such allegations.
Non-compliance
with the Student Governance Constitution
[13]
The applicant pointed out that section 7 of the respondent’s
Student Governance Constitution
provided that the Dean of Student
Affairs was required to appoint the IEC, consisting of not more than
five members. This had to
be done in consultation with the ISP. The
role of the IEC was to conduct the election of the SRC.
[14]
Furthermore, section 7 stipulated that the Dean had to designate one
of the members as
the Chief Electoral Officer (‘CEO’),
also in consultation with the ISP. The CEO was expected to coordinate
the operations
of the IEC.
[15]
Mr Siphatha
alleged that the appointment of the IEC and the designation of the
CEO were considered at a meeting convened by the
ISP Secretariat on
18 September 2022. The process was not finalised because the
curricula
vitae
(‘CVs’) for the candidates still had to be verified.
Notwithstanding, averred Mr Siphatha, Mr Tshikhudo unilaterally
appointed the IEC and the CEO, without adhering to the applicable
guidelines in relation to the composition of the IEC,
[1]
and without allowing for the verification of the CVs to be completed.
[16]
The respondent had failed to deal with the applicant’s
grievances, contended Mr Siphatha.
Moreover, lying at the core of
many of the disputes between the parties was the respondent’s
failure to have facilitated
the review of the Student Governance
Constitution.
The
respondent’s opposition
[17]
The Deputy Registrar: Governance and Legal Affairs, Ms Ntibi Maepa,
deposed to the respondent’s
answering affidavit. The respondent
opposed the application on four principal grounds.
[18]
The first was that the urgency alleged by the applicant was
self-created. The meetings
that had given rise to the application
took place on 18 September and 1 October 2022, respectively. The
applicant had waited until
13 October 2022 before instituting
proceedings.
[19]
The second was that the relief sought by the applicant was
contradictory. It sought, on
the one hand, that the election be
postponed, pending an investigation into the lawfulness of the
meeting of the ISP on 1 October
2022; it sought, on the other hand,
that the election process be commenced
de novo
.
[20]
The third was that the relief sought in relation to the interdicting
of the election had
become moot because the respondent had placed the
process on hold. The applicant, contended the respondent, had been
aware of this
likelihood prior to the launching of the application.
Ms Maepa had informed the applicant’s representatives of a
meeting
convened for 12 October 2022, at which an election status
update would be presented, and the applicant’s grievances would
be addressed. The applicant had been represented at the meeting. The
Dean of Student Affairs had indicated at the meeting that
he would
request the respondent’s Management Executive Committee (‘MEC’)
that the election be postponed. Early
on the morning of 14 October
2022, the MEC approved Mr Tshikhudo’s request.
[21]
The fourth was that the applicant had failed to identify and assert
the
prima facie
right that required protection. The
application fell to be dismissed on this point alone.
Issues
for decision
[22]
The applicant set out a basis for the urgent nature of the
application in Mr Siphatha’s
founding affidavit. To summarise,
the applicant argued that the respondent had failed to respond
satisfactorily to its grievances,
especially those pertaining to the
meeting of the ISP on 1 October 2022. Its decision to proceed with
the election on 19 October
2022 would result in severe prejudice to
the applicant.
[23]
Notwithstanding the respondent’s strenuous objections to the
timeframe for the delivery
of opposing affidavits and the way that
the proceedings had been conducted, nothing turned on the question of
urgency in the end.
No more needs to be said in that regard.
[24]
The applicant dealt at some length with the requirements for
interdictory relief. As a
member of the ISP, it had been adversely
affected by the decision at the meeting on 1 October 2022, which had
allegedly been characterised
by irregularities. The applicant could
not participate in the election scheduled for 19 October 2022 in such
circumstances and
for as long as the respondent continued to ignore
its grievances.
[25]
At the hearing itself, the applicant abandoned the following relief:
an order interdicting
the respondent from proceeding with the
election; an order postponing the election, pending an investigation
into the lawfulness
of the meeting of the ISP on 1 October 2022; and
an order declaring that the conduct of the Dean of Student Affairs
had been unlawful.
This was done, ostensibly, in reaction to the
MEC’s decision to postpone the election. The applicant
persisted with its application
to seek the remaining relief set out
in its notice: an order directing the respondent, represented by the
Dean of Student Affairs,
to comply with the Student Governance
Constitution in relation to the appointment of the IEC and
designation of the CEO; an order
declaring that the election process
should commence
de novo
; and an order extending the terms of
both the SRC and the Institutional Student Parliament (‘ISP’).
[26]
Ordinarily, the court would have been required to determine whether
the applicant had successfully
demonstrated urgency. If so, then the
court would have proceeded to adjudicate the merits of the matter,
including a determination
of whether the applicant had met the
requirements for the interdictory and other relief sought. Before
doing so, however, the court
raised the point of non-joinder.
Ultimately, this proved decisive, as shall be discussed below.
Non-joinder
[27]
The test
for joinder was clearly stated in
Henri
Viljoen (Pty) Ltd v Awerbuch Bros
.
[2]
The court in that regard affirmed earlier authority to hold that a
person is a necessary party and should be joined if such person
has a
direct and substantial interest in any order that the court might
make; alternatively, if such an order cannot be sustained
or carried
into effect without prejudicing such person, unless he or she has
waived the right to be joined.
[3]
[28]
Where many
parties are involved, the matter can become complicated from a
practical point of view. In
Road
Accident Fund v Legal Practice Council
,
[4]
the parties took steps to notify a multitude of (potentially)
necessary parties about the relief that was sought. The court held
as
follows:
‘
[t]his matter, in
my view, is one where the joinder of the many thousands of parties,
that could be affected by the order of this
court, is unnecessary in
the light of the steps taken by the RAF to notify as many parties of
its application as possible. The
steps taken are adequate. The number
of affected parties is substantial, and the steps taken by the RAF to
notify the sheer volume
of parties that could be affected were
sufficient to effect their joinder. Only the seventeenth to
twenty-third respondents responded
and were joined in these
proceedings. The failure to respond by those who were notified can be
taken to equate to a waiver of the
right to be joined.’
[5]
[29]
It has been
held that informal notification of a necessary party may well suffice
in circumstances where the party has indicated,
unequivocally, that
it will abide by the decision of the court.
[6]
The overriding principle, however, is that notification must be
provided. As this court remarked in
Shine
Africa Financial Services (Pty) Ltd v Buffalo City Metropolitan
Municipality
:
[7]
‘
A necessary party
has a right to participate in the proceedings and must be permitted
to exercise such right by making submissions
before the court
adjudicates the dispute. Notwithstanding the fact that numerous
parties may be involved, if a person has a direct
and substantial
interest in an order that may be given by a court or that cannot be
implemented without causing prejudice to such
person, then he or she
must be joined unless he or she has clearly communicated his or her
intention to abide by the order to be
given or otherwise waived the
right to participate in the proceedings.’
[8]
[30]
The
question of whether a court may,
mero
motu
,
raise the issue of non-joinder has long since been settled. The court
may indeed do so to protect the interests of third parties.
[9]
Application
of the law
[31]
In the present matter, the applicant sought relief that impugned both
the current IEC and
its CEO. The allegation was made that the Dean of
Student Affairs had failed to apply the guidelines in relation to the
composition
of the IEC and had made the appointments and designation
while the candidates’ CVs still had to be verified. The order,
however,
would have had a prejudicial effect on the incumbent members
and individual concerned. Clearly, they had a direct and substantial
interest in the matter. They were simply never joined.
[32]
Similarly, an order directing the election process to commence
de
novo
would have detrimentally affected the interests of any
number of societies, student political organisations and individuals
who
had intended to participate in the election. Whether it was
essential for the applicant to have joined them in these proceedings
was not entirely evident from the papers.
[33]
However, what was clear was that the existing members of the ISP
ought to have been joined.
This was so for at least two reasons.
Firstly, a key component of the applicant’s case was that the
meeting of 1 October
2022 had been unlawful. It was common cause that
there were many delegates at the meeting, including representatives
of several
well-known organisations, such as the Congress of the
People Student Movement (‘COPESM’), the Democratic
Alliance Student
Organisation (‘DASO’), the Economic
Freedom Fighters Student Command (‘EFFSC’), and the Pan
Africanist
Youth Congress of Azania (‘PAYCO’). The above
representatives constituted the decision-makers regarding the
selection
of a date for the election. They had, undoubtedly, a direct
and substantial interest in any order that effectively nullified such
a decision by directing that the election process commence afresh.
Secondly, the applicant sought an order extending the term of
the ISP
for a period that would have been decided upon by the relevant
parties in terms of a consultative process. No fixed timeframe
was
set, meaning that existing members were bound to remain whether they
chose to do so or otherwise. The potential prejudice of
such an order
to the affected societies, student organisations or individuals was
patently apparent.
[34]
The same reasoning applied to the non-joinder of the SRC and its
members. No opportunity
was provided to them to participate in
proceedings where the applicant had made application for an order
that had the effect of
indefinitely extending their term. Once again,
the prejudice was obvious.
[35]
It cannot be disputed that the remaining relief sought by the
applicant would have had
far-reaching consequences. At a practical
level, it would have meant that the course of the election process
would have been altered
in a way that would have had a profound
impact on the incumbent members of the IEC, the ISP and the SRC
itself. None of the parties
in question was invited to participate in
the resolution of a legal dispute regarding which they had a direct
and substantial interest.
Relief
and order
[36]
The issue of non-joinder was sufficient on its own to have persuaded
the court that the
applicant was not entitled to the relief sought.
The court, nevertheless, could not ignore the deficiencies in the
application
itself.
[37]
The allegations made by the applicant were vague and sweeping in
nature, often based on
hearsay, and unsupported by evidence. For
example, no record was filed for the decisions taken at the meetings
of 18 and 30 September,
and 1 October 2022. It would have assisted to
have seen the notices, agendas, reports, and minutes that formed part
of the decision-making
process. No guidelines in relation to the
composition of the IEC were filed. No details were supplied about
how, by whom, and by
when the verification of the CVs of the
candidates for appointment to the IEC was to have been conducted. No
averment was made
to the effect that the Dean of Student Affairs had
failed to consult with the ISP, as required by section 7 of the
Student Governance
Constitution regarding the appointment of members
to the IEC and the designation of the CEO. No indication was given
about the
respective roles and powers of the ISP Secretariat and ISP
Speaker in relation to the convening of meetings. No confirmatory
affidavits
from the delegates who had complained that their
signatures had been forged were filed.
[38]
The applicant’s correspondence to the respondent, attached to
Mr Siphatha’s
founding affidavit, did not cure the above
deficiencies. It was, in any event, not the task of the court to wade
through the accompanying
emails and letters in the vain hope of
finding answers to questions inadvertently created by papers that,
overall, seem to have
been prepared in haste and without proper
regard for the evidentiary burden carried by the applicant. In the
end, the court was
not convinced that the applicant’s case, as
presented on the papers and in argument, warranted the possible
postponement
of the matter to permit the joinder of the numerous
parties who had a direct and substantial interest in the order that
the court
was invited to make.
[39]
Regarding
costs, the usual rule applied; the respondent was entitled to recover
the expenses incurred to oppose the application.
Whereas the
respondent sought an order on a punitive scale, the court was not of
the view that the applicant’s conduct had
reached the point
where a mark of disapproval would have been appropriate.
[10]
The conduct of the applicant was, notwithstanding, far from
satisfactory. The applicant’s urgent institution of legal
proceedings
on papers that were not up to the task, compelling the
respondent to seek legal assistance in immense haste to protect its
interests,
notwithstanding every indication that the election was
likely to have been postponed and that the applicant’s
grievances
had not been totally ignored, ought to have attracted the
criticism of the court, as it did.
[40]
In the circumstances, the court ordered that the application be
dismissed and that the
applicant be directed to pay the respondent’s
costs on a party and party scale.
JGA
LAING
JUDGE
OF THE HIGH COURT
APPEARANCE
For the applicant:
Adv
Sotenjwa, instructed by, Sotenjwa Attorneys, East London.
For the respondent:
Adv
Kotzé, instructed by Smith Tabata Attorneys, King Williams
Town.
Date of hearing:
14
October 2022.
Date of delivery of
judgment:
03
February 2023.
[1]
It
was alleged that the guidelines stipulated that at least 30% of the
IEC was to be comprised of women. No copy of the guidelines
was
attached to the papers.
[2]
1953
(2) SA 151 (O).
[3]
Kethel
v Kethel’s Estate
1949
(3) SA 598
(A), at 610;
Amalgamated
Engineering Union v Minister of Labour
1949 (3) 637 (A), at 659. The principle continues to be followed as
apparent from, more recently,
Watson
NO v Ngonyama
2021 (5) SA 559
(SCA), at paragraph [52].
See,
too, the discussion in
DE
van Loggerenberg,
Erasmus:
Superior Court Practice
(Jutatstat, RS 16, 2021), at D1-124.
[4]
2021
(6) SA 230
(GP).
[5]
At
paragraph [10].
[6]
In
re
BOE
Trust Ltd and others NNO
2013 (3) SA 236
(SCA), at 242A-C.
[7]
[
2022]
JOL 56216
(ECLD, East London).
[8]
At
paragraph [18].
[9]
Amalgamated
Engineering Union v Minister of Labour
(see
n 3, supra);
Selborne
Furniture Store (Pty) Ltd v Steyn NO
1970 (3) SA 774
(A);
Klep
Valves (Pty) Ltd v Saunders Valve Co Ltd
1987 (2) SA 1
(A), at 39I-40B; and see, more recently, the decision
of the Court of Appeal for Lesotho in
Phakisi
v Tlapana
(unreported, case no C of A (Civ)/50/2014, dated 21 April 2016), at
paragraph [2].
[10]
An
order for the payment of costs on an attorney and client scale has
long been held as a mark of disapproval regarding the conduct
of the
unsuccessful party. See the decision in
Orr
v Schoeman
1907 TS 281
, endorsed recently by the Constitutional Court in
Public
Protector v South African Reserve Bank
2019 (6) SA 253
(CC), at 318C-319A.