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[2023] ZAECBHC 19
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Melane v Deputy Registrar: Governance & Legal Services of Fort Hare University and (264/2022) [2023] ZAECBHC 19 (8 August 2023)
FLYNOTES:
COSTS
– Biowatch rule –
University
student
–
Injuring another student with his
vehicle – Charged with misconduct and expelled for one year
– Disciplinary Appeals
Committee deciding that he should be
permanently expelled by the university or be deregistered –
Student obtaining
interim order and then order following agreement
– Issue affected the applicant’s right to education
and qualifies
as a genuine constitutional challenge –
Justice and fairness would best be served if each of the parties
were ordered
to pay their own costs.
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, BHISHO)
OF INTEREST
Case no: 264/2022
In
the matter between:
YAMKELA
MELANE
Applicant
and
THE
DEPUTY REGISTRAR:
GOVERNANCE
& LEGAL SERVICES
OF
FORT HARE UNIVERSITY
First
Respondent
THE
CHAIRPERSON OF THE DISCIPLINARY COMMITTEE
OF
THE UNIVERSITY OF FORT HARE
Second
Respondent
THE
CHAIRPERSON OF THE DISCIPLINARY APPEALS
COMMITTEE
OF THE UNIVERSITY OF FORT HARE
Third
Respondent
THE
VICE CHANCELLOR OF THE UNIVERSITY
OF
FORT HARE
Fourth
Respondent
THE
DEAN OF STUDENTS OF THE UNIVERSITY
OF
FORT HARE
Fifth
Respondent
THE
REGISTRAR OF THE UNIVERSITY
OF
FORT HARE
Sixth
Respondent
JUDGMENT
Govindjee J
Background
[1]
The
applicant (‘Mr Melane’) was involved in an incident at
Cougar Hog Carwash on 24 July 2021. He lost control of his
motor
vehicle while attempting to avoid another individual and collided
with an adult female student (‘Ms Mtsiki’),
causing her
severe injuries.
[1]
He was
charged by the University of Fort Hare (‘UFH’) with
misconduct in contravention of Rules 19(1) and 19(7) of
its
disciplinary code.
[2]
He was
found guilty by the second respondent (‘the DC chairperson’)
and expelled for one year, in addition to being
required to write a
letter of apology to the complainant. His registration for the 2023
academic year was suspended pending payment
of four physiotherapy
sessions for the complainant.
[2]
Mr Melane lodged an appeal against this outcome on
various grounds, including the appropriateness of the sentence
imposed. The Disciplinary
Appeals Committee (‘DAC’) heard
the appeal on 14 March 2022. It rejected the grounds of appeal and
decided that Mr
Melane should be permanently expelled by UFH or
de-registered as a student and removed from its system or database
with immediate
effect.
[3]
Mr Melane launched an urgent application seeking
to suspend the implementation of the findings and outcomes of the DC
and DAC, to
enable him to resume ‘all rights, duties and
privileges associated with being a registered student of the
University of Fort
Hare immediately pending the final determination
of the relief sought in Part B of this application’. During May
2022, and
by agreement between the parties, Mr Melane obtained an
interim order pending the finalisation of the Part B review, which
essentially
challenged the DAC outcome. He has since been able to
continue with his studies via online based learning. The interim
order was,
in addition, ‘subject to the applicant diligently
pursuing Part B of his application, complying with all prescribed
time
periods in terms of the Uniform Rules, alternatively, as agreed
to between the parties and / or as directed by the Court’.
The
determination of the Part B relief was postponed to a date to be
arranged with the Registrar, with costs of the interim relief
application reserved.
[4]
At the commencement of the present proceedings,
counsel reached agreement on the following, to be made an order of
court:
‘
1.
The implementation of the Disciplinary Appeals Committee’s
(‘DAC’)
finding dated 14 March 2022 is suspended pending
the completion of the Applicant’s 2023 academic year.
2.
Pending the implementation of the DAC’s finding referred to in
paragraph 1 above,
the Applicant is allowed to continue as a student
at the University of Fort Hare on the following basis:
2.1
The applicant is permitted to continue his studies via online based
learning, off-campus
only;
2.2
The applicant may only attend campus with the prior written approval
of the first respondent.
Such approval will not be unreasonably
withheld in the event that the applicant’s attendance on campus
is required for purposes
of his academic studies, as determined by
the first respondent. Any approval for the applicant to attend campus
for any other reason
will be in the first respondent’s sole
discretion.’
The issue
[5]
Given
that agreement, the only outstanding issue remains the question of
costs.
Mr
Dwayi
,
for the applicant, argued that ‘the
Biowatch
rule’
(‘the rule’) was applicable, so that each party should
pay their own costs of the application (Part A and
Part B).
[3]
The rule has, in the context of an attack on a statutory provision,
been articulated as follows:
[4]
‘
[O]ne
should be cautious in awarding costs against litigants who seek to
enforce their constitutional right against the State …
lest
such orders have an unduly inhibiting or “chilling”
effect on other potential litigants in this category. This
cautious
approach cannot, however, be allowed to develop into an inflexible
rule so that litigants are induced into believing that
they are free
to challenge the constitutionality of statutory provisions in this
Court, no matter how spurious the grounds for
doing so may be or how
remote the possibility that this Court will grant them access. This
can neither be in the interests of the
administration of justice nor
fair to those who are forced to oppose such attacks.’
[6]
Mr Ackermann
submitted
that the matter did not raise a genuine constitutional issue, so that
the rule was inapplicable, alternatively that Mr
Melane’s
conduct warranted a costs order in favour of UFH. The matter was
argued on the basis that, despite the further settlement
agreement,
Mr Melane was unsuccessful in obtaining the primary relief he had
sought, namely to review and set aside the decision
of the DAC.
A genuine
constitutional issue?
[7]
The
Constitutional Court has confirmed that an unsuccessful litigant
engaged in constitutional litigation against the state ought
not to
be ordered to pay costs as a general rule. The principle clearly
extends to disputes as to whether any conduct is inconsistent
with
the Constitution and, as a result, unlawful and invalid.
[5]
[8]
In
Affordable
Medicines Trust and Others v Minister of Health and Another
(‘
Affordable
Medicines
’
),
[6]
the Constitutional Court explained that costs should not be awarded
against the applicants unless the litigation could be described
as
‘frivolous’ or ‘vexatious’, or if conduct on
the part of the unsuccessful litigant deserved censure
in the form of
a costs order.
[7]
The ultimate
goal is to do that which is just having regard to the facts and
circumstances of the case.
[8]
Further details as to the appropriate balance to be struck, and the
basis for this, have been provided by the Constitutional Court
in
Biowatch
:
[9]
‘
The
rational for this general rule [that if the government wins, each
party should bear its own costs] is three-fold. In the first
place it
diminishes the chilling effect that adverse costs orders would have
on parties seeking to assert constitutional rights.
Constitutional
litigation frequently goes through many courts and the costs involved
can be high. Meritorious claims might not
be proceeded with because
of a fear that failure could lead to financially ruinous
consequences. Similarly, people might be deterred
from pursuing
constitutional claims because of a concern that even if they succeed
they will be deprived of their costs because
of some inadvertent
procedural or technical lapse. Secondly, constitutional litigation,
whatever the outcome, might ordinarily
bear not only on the interests
of the particular litigants involved, but on the rights of all those
in similar situations. Indeed,
each constitutional case that is heard
enriches the general body of constitutional jurisprudence and adds
texture to what it means
to be living in a constitutional democracy.
Thirdly, it is the state that bears primary responsibility for
ensuring that both the
law and state conduct are consistent with the
Constitution. If there should be a genuine, non-frivolous challenge
to the constitutionality
of a law or of state conduct, it is
appropriate that the state should bear the costs if the challenge is
good, but if it is not,
then the losing non-state litigant should be
shielded from the costs consequences of failure.’
[9]
Importantly,
Biowatch
confirms
that courts should not easily find reasons for deviating from the
general approach of not awarding costs against an unsuccessful
litigant in proceedings against the state, where matters ‘of
genuine constitutional import’ arise.
[10]
Different opinions have emerged as to the meaning of this notion in
the context of costs orders against unsuccessful parties litigating
against the State. It is clearly not enough to merely allude to
sections of the Constitution of the Republic of South Africa, 1996
(‘the Constitution’) or to simply allege that the
litigation is constitutional in nature. The issues must be ‘genuine
and substantive’ and ‘truly raise constitutional
considerations relevant to the adjudication’.
[11]
[10]
There
is Constitutional Court authority, albeit in a minority judgment, for
the view that matters that turn only on the facts in
the application
of established legal principles should also not be favoured with this
label. As Madlanga J put it in
Mbatha
v University of Zululand
:
[12]
‘…
in
a scenario where it is clear that the substance of the contest
between the parties is purely factual, it cannot be said to raise
a
constitutional issue purely because an applicant says it does …
a constitutional issue remains one even if it may turn
out to be
unmeritorious. That is not the same as saying that what in essence is
a factual issue may somehow morph into a constitutional
issue through
the simple facility of clothing it in constitutional garb.’
[11]
In
Minister
of Safety and Security and Another v Schuster
,
[13]
the SCA came to the conclusion that suing the police for damages for
wrongful arrest and detention is not the same as testing one’s
constitutional rights, concluding as follows:
‘
This
case turned solely on the facts … To apply the “
Biowatch”
principle in such cases would
open the floodgates for opportunistic claims which may nevertheless
fall short of being categorised
as “frivolous” or
“vexatious”. It would promote risk-free litigation. The
potential consequences are deeply
disturbing. To deprive the
successful appellants, the Minister and the NDPP, and, by extension,
the fiscus itself, of costs in
the present matter would be unjust and
inequitable. It would also lack a rational foundation.’
[12]
By
contrast, in
Harrielall
v University of KwaZulu-Natal
,
[14]
the Constitutional Court bemoaned the failure on the part of courts
to embrace the rule, highlighting that the general rule relating
to
costs in constitutional matters applied in every constitutional
matter involving organs of State.
[15]
The Constitutional Court added the reminder that the rule was
restricted to ‘genuine constitutional matters’ and, with
reference to
Affordable
Medicines
,
subject to limited exceptions.
[16]
[13]
Harrielall
confirms
that the rule must be followed, absent these exceptions.
[17]
On the facts in that matter, the SCA had decided not to follow the
rule on the basis that ‘no constitutional issues were
implicated’, and because the case was simply a review under the
Promotion of Administrative Justice Act
[18]
(‘PAJA’) of an administrative decision of the university.
The Constitutional Court considered that approach to be
incorrect:
[19]
‘
The
constitutional issues raised by the case are two-fold. First, a
review of administrative action under PAJA constitutes a
constitutional
issue. This is so because PAJA was passed specifically
to give effect to administrative justice rights guaranteed by section
33
of the Constitution. Moreover when the University determined the
application for admission, it exercised a public power …
According to jurisprudence of this Court, the review of the exercise
of public power is now controlled by the Constitution and
legislation
enacted to give effect to it. It is not controversial that a review
of administrative action amounts to a constitutional
issue…’
[14]
In
Mandela
v The Executors, Estate Late Nelson Rolihlahla Mandela and
Others
,
[20]
the SCA considered the application of the rule in circumstances where
the relief sought did not appear to be of a constitutional
nature.
The SCA decided that the essence of the matter was a challenge based
on legality and that, as such, it implicated the constitutional
principle of legality (as well as the appellant’s rights to
property in s 25 of the Constitution).
[21]
[15]
This
is not to suggest that higher courts have always adopted such a
generous approach or interpretation. In
Motala
v The Master of the North Gauteng High Court, Pretoria
,
[22]
for example, the SCA held that while the review of a public officer’s
decision was a constitutional issue, this was not the
end of the
matter because the issues at hand had to be ‘genuine and
substantive, and raise constitutional considerations
relevant to
their adjudication’. In refusing to apply the rule, the SCA
considered the review of the Master’s decision
to be ‘no
more than a civil challenge to an adverse administrative action which
the appellant sought to overturn to the benefit
of his own private
pocket’.
[23]
In reaching
this decision, the SCA placed emphasis on the absence of a ‘radiating
impact on other private parties’,
the absence of
‘constitutional imperatives and considerations such as the
interpretation of legislation…’ and
the absence of a
‘discrete legal point of public importance which falls to be
decided…’.
[24]
[16]
In
MEC
for Local Government, Environmental Affairs and Development Planning,
Western Cape & Another v Plotz NO and Another
,
[25]
the SCA refused to apply the rule on the basis that the litigation
was undertaken to assert a commercial interest of the trust,
rather
than to assert constitutional rights.
[17]
It
must also be noted that, in this Division, courts have not always
accepted the applicability of the rule in matters involving
university students, despite the argument that the right to further
education triggered a ‘constitutional issue’.
[26]
By contrast, in
Hotz
and Others v University of Cape Town
,
[27]
the Constitutional Court overturned costs orders issued by the High
Court and SCA in litigation between a university and its students.
[18]
A
recent decision of the Constitutional Court on the issue of ‘a
constitutional issue’ reveals a further complexity.
The
application concerned a claim instituted in a representative capacity
by the mother and natural guardian of a minor child who
was diagnosed
with cerebral palsy as a result of hypoxic ischemic injury during
birth. The Constitutional Court refused leave to
appeal on the basis
that the matter did not raise a constitutional issue. Despite this
finding, a unanimous bench applied the rule
without engaging with the
conceptual differences, if any, between a matter not raising a
constitutional issue for purposes of obtaining
leave to appeal, on
the one hand, and yet falling within the boundaries of the rule for
purposes of costs. This was apparently
based purely on the absence of
exceptional circumstances that would warrant the payment of costs on
the part of the applicant.
[28]
A similar approach appears to have been adopted in
Competition
Commission of South Africa v Mediclinic Southern Africa (Pty) Ltd and
Another
.
[29]
Analysis
[19]
A
court of first instance has a discretion to determine the costs to be
awarded in light of the particular circumstances of the
case.
[30]
The ‘nature of the issues’, rather than the
‘characterisation of the parties’ is the starting
point.
[31]
Here, the issues at
hand relate, generally, to the right to education in terms of s 29 of
the Constitution and the principle of
legality or just administrative
action.
[32]
As
Mr
Dwayi
pointed
out, the founding affidavit, in dealing with the issue of a prima
facie right, placed reliance squarely on ss 29 and 33
of the
Constitution, arguing that an interim interdict ‘will halt the
ongoing infringement of my section 29 and 33 constitutional
rights
…’.
[20]
While
the matter may not have been of concern to other students, the issue
affected the applicant’s right to education and,
on my
understanding of the applicable approach and the available
authorities, qualifies as a genuine constitutional challenge.
[33]
Despite the applicant’s failure to obtain relief, to hold
differently would have a chilling effect on similarly placed
litigants
in the context of constitutional justice.
[34]
The matter is, therefore, properly located in a constitutional
setting.
[21]
It
remains to be decided whether any of the exceptions that justify a
departure from the rule find application given the facts of
the
matter. The exceptions have been detailed in
Lawyers
for Human Rights v Minister in the Presidency and Others
.
[35]
A court must consider the ‘character of the litigation and [the
litigant’s] conduct in pursuit of it’, even where
the
litigant seeks to assert constitutional rights. ‘Vexatious’
litigation is ‘frivolous, improper, instituted
without
sufficient ground, to serve solely as an annoyance to the defendant’.
It is initiated without probable cause by a
person who is not acting
in good faith to annoy or embarrass an opponent. Legal action that is
not likely to lead to any procedural
result is vexatious. A
‘frivolous complaint’ has no serious purpose or
value.
[36]
[22]
Without
engaging with the merits of the matter, it may be noted that the
applicant’s case was premised, in part, on the DAC’s
findings as to his lack of remorse and that, given the available
record, this challenge was not frivolous or vexatious, or brought
in
bad faith.
[37]
Mr
Ackermann
very
properly also brought the decision in
Rennies
Distribution (Pty) Ltd v Bierman NO
,
[38]
in respect of the
audi
principle
and an increase in disciplinary sanction on appeal, to my attention.
This was a further challenge to the DAC decision
and again supports
the conclusion that the application was not frivolous or vexatious or
brought in bad faith.
[23]
I have also given consideration to
Mr
Ackermann’s
argument that the
applicant’s failure to diligently pursue Part B of his
application, in contravention of the interim order,
is sufficient to
justify an exception to the application of the rule. In my view, that
reference in the interim order was linked
to permission for the
applicant to continue his studies online, with limited campus
attendance, pending the Part B application.
The applicant ran the
risk that his failure to diligently pursue the Part B application,
and comply with the prescribed time periods,
might have resulted in
UFH approaching the court for a variation of the interim order.
[24]
That did not occur and, considering the
authorities, the applicant’s failures in that respect do not,
on their own, elevate
his conduct to the kind that warrants the loss
of the protection afforded by the rule. In similar vein, the
applicant’s conduct
that resulted in the charges levelled
against him before the DC, and his failure to review the decision of
the DAC, are irrelevant
for present purposes. Justice and fairness
would best be served if each of the parties were ordered to pay their
own costs.
Order
[25]
The following order will issue:
1.
The implementation of the Disciplinary Appeals
Committee’s (‘DAC’) finding dated 14 March 2022 is
suspended pending
the completion of the Applicant’s 2023
academic year.
2.
Pending the implementation of the DAC’s
finding referred to in paragraph 1 above, the Applicant is allowed to
continue as
a student at the University of Fort Hare on the following
basis:
2.1
The applicant is permitted to continue his studies via online based
learning, off-campus only;
2.2
The applicant may only attend campus with the
prior written approval of the first respondent. Such approval will
not be unreasonably
withheld in the event that the applicant’s
attendance on campus is required for purposes of his academic
studies, as determined
by the first respondent. Any approval for the
applicant to attend campus for any other reason will be in the first
respondent’s
sole discretion.
3.
Each party to pay its own costs, also in respect
of the Part A proceedings.
A GOVINDJEE
JUDGE OF THE HIGH
COURT
Heard
:
27
July 2023
Delivered
:
08
August 2023
Appearances:
Counsel
for the Applicant:
Adv
NT Dwayi
Chambers,
Gqeberha
Instructed
by:
Magqabi
Zeth Zitha Inc Attorneys
Applicant’s
Attorneys
09 St
Georges Road
Southernwood
East
London
Email:
mszattorners@gmail.com
C/O
SZ
Sigabi Attorneys
5
Arthur Street
King
William’s Town
Counsel
for the Respondents:
Adv
LW Ackermann
Chambers,
Cape Town
Instructed
by:
Bradley
Conradie Halton Cheadle
Attorneys
for the Respondents
G04,
The Gatehouse
Century
Way
Century
City
Email:
liezl@bchc.co.za
C/O
Smith
Tabata Attorneys
8
Sutton Square
Queens
Road
King
William’s Town
[1]
Ms Mtsiki was
knocked unconscious and hospitalised for a month, suffering grade
five splenic and kidney injuries, a right arm
radial fracture, a
vertebral body fracture and a bilateral superior public fracture.
[2]
The charge reads
as follows: ‘You, being a registered student, are hereby
charged with misconduct in terms of DR 19(1) and
(7) of the Rules in
that you, without just excuse, engaged in conduct which is improper,
unbecoming or disgraceful and liable
to bring discredit upon the
University in that, on or about the 24
th
of July 2021, at
or about Cougar Hog Car Wash in Alice, you committed the criminal
offense of “hit and run” in that
you ran over Onazo
Mtsiki with your motor vehicle and fled the scene, such conduct
falling within the definition of misconduct
as defined in the
Rules’.
[3]
See
Biowatch
Trust v Registrar Genetic Resources and Others
[2009] ZACC 14
(‘
Biowatch
’
).
[4]
Motsepe
v Commissioner for Inland Revenue
[1997]
ZACC 3
para 30.
[5]
S v Boesak
[2000] ZACC 25
para 14.
[6]
Affordable
Medicines Trust and Others v Minister of Health and Another
[2005] ZACC 3
(‘
Affordable
Medicines
’
)
para 138.
[7]
In
Biowatch
above
n 3 para 24, the Constitutional Court used the term ‘manifestly
inappropriate’ to explain this reason for deviation
from the
typical rule. In
Lawyers
for Human Rights v Minister in the Presidency and Others
[2016]
ZACC 45
para 18, the Court, in addition to ‘frivolous’
and ‘vexatious’, referred to ‘improper motives’
or where there are other circumstances that make it in the interests
of justice to order costs.
[8]
Affordable
Medicines
above
n 6 para 138.
[9]
Biowatch
above
n 3 para 23.
[10]
Biowatch
above
n 3 para 24.
[11]
Biowatch
above
n 3 para 25. Also see
Harrielall
v University of KwaZulu-Natal
[2017] ZACC 38
(‘
Harrielall
’
)
para
11: the rule applies in the case of genuine ‘constitutional
matters’ involving organs of state, rather than only
in the
case where a right in the Bill of Rights is in issue.
[12]
Mbatha v
University of Zululand
[2013] ZACC 43
paras 221, 222.
[13]
Minister of
Safety and Security and Another v Schuster and Another
[2018] ZASCA 112.
[14]
Harrielall
above n 11.
[15]
Harrielall
above
n 11 para 11. It is trite that UFH is a public institution through
which the State discharges its constitutional obligation
to make
access to further education realisable and is an organ of State: see
Harrielall
above
n 11 para 15.
[16]
Harrielall
above n 11 para
12. The exceptions are frivolous or vexatious litigation and conduct
on the part of the litigant that deserves
censure by the court which
may influence the court to order an unsuccessful litigant to pay
costs.
[17]
Harrielall
above n 11 para
14.
[18]
Act 3 of 2000.
[19]
Harrielall
above n 11 paras
17-18.
[20]
Mandela v The
Executors, Estate Late Nelson Rolihlahla Mandela & Others
[2017] ZASCA 02
para 32.
[21]
Ibid. The SCA
added that even though there had been a delay found by the court to
be objectively unreasonable, this did not amount
to frivolous or
vexatious litigation in the sense contemplated by the jurisprudence
of the Constitutional Court.
[22]
Motala v The
Master of the North Gauteng High Court, Pretoria
[2019] ZASCA 60
para 98.
[23]
Ibid para 99.
[24]
Ibid.
[25]
MEC for Local
Government, Environmental Affairs and Development Planning, Western
Cape & Another v Plotz NO
& Another
[2017] ZASCA 175
para 33.
[26]
See
Toyi
and Others v Nelson Mandela University
[2021] ZAECPEHC
17 para 25. Cf
Mbuthuma
and Another v Walter Sisulu University and Others
[2019] ZAECMHC
79;
2020 (4) SA 602
(ECM) para 58.
[27]
Hotz and
Others v University of Cape Town
[2017]
ZACC 10
(‘
Hotz
’
)
para 27 and following.
[28]
TM obo MM v
Member of the Executive Council for Health and Social Development,
Gauteng
[2022]
ZACC 18
para 63.
[29]
Competition
Commission of South Africa v Mediclinic Southern Africa (Pty) Ltd
and Another
[2021]
ZACC 35
para 87.
[30]
Affordable
Medicines
above
n 6 para 138.
[31]
Biowatch
above n 3 para
16. Costs should not be determined based on parties’ financial
position.
[32]
For a similar
analysis, see
Hotz
above n 27 para
31. Also see
Ferguson
and Others v Rhodes University
[2017] ZACC 39
(‘
Ferguson
’
)
para 24.
[33]
See
Hotz
above n 27 para
33.
[34]
Hotz
above n 27 para
34.
[35]
Lawyers
for Human Rights v Minister in the Presidency and Others
above
n 7.
[36]
Lawyers
for Human Rights v Minister in the Presidency and Others
above
n 7 para 19.
[37]
Ferguson
above
n 32 para 27.
[38]
Rennies
Distribution (Pty) Ltd v Bierman NO
(2008)
29
ILJ
3021
(LC).