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[2019] ZAECMHC 70
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Mafungwa and Another v Walter Sisulu University and Another (1485/2018) [2019] ZAECMHC 70 (5 November 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
[EASTERN
CAPE LOCAL DIVISION: MTHATHA]
CASE NO.
1485/2018
Heard
on: 24 October 2019
Delivered
on: 05 November 2019
SIPHESIHLE
MAFUNGWA
1
st
Applicant
YAMKELA
MXOKOZELI
2
nd
Applicant
And
WALTER
SISULU UNIVERSITY
1
st
Respondent
MINISTER
JADEZWENI – RECTOR CAMPUS
WALTER
SISULU UNIVERSITY
2
nd
Respondent
JUDGMENT
ZONO AJ
INTRODUCTION
[1]
Applicant lunched this application, mainly challenging the decision
taken by the second
respondent dated 6 December 2017 suspending the
applicants from the University. Although the Notice of Motion
is divided
into two parts, it appears that all the relief are
consequent upon the granting of relief setting aside applicant’s
suspension.
[2]
The application is opposed by the University and the Campus Rector
(the two respondents).
Notice to Oppose and answering affidavit has
been delivered to meet applicant’s case. Applicants
replied to the answering
affidavit.
[3]
Issues in this application are largely common cause. The
applicants, prior to
their respective suspension by the University on
6 December 2017, were medical students enrolled with the University.
Both
applicants were implicated in the crime of murder allegedly
committed on 12 May 2017. A person who was allegedly killed was
one of the medical students registered with the University. On
this fateful day the University was beset by riot, unrest
and or
violent confrontation between students registered in respondents’
Mthatha Campus. On 14 May 2017 applicants,
together with other
students, handed themselves over to the South African Police
Services, Central Police Station, Mthatha.
They were
subsequently released on bail on 12 June 2017. The Criminal
Case is still not finalised.
[4]
Subsequent to that the applicants went to the University. First
suspension letter
were served upon the applicants by the University.
That suspension was challenged in this court which proceedings
culminated
in an order dated 17 August 2017 taken by consent setting
the suspension aside. It appears that such consent was reached
because the University failed to afford applicants opportunity to
make representations to the Campus Rector, prior to the decision
to
suspend them. Subsequent to that the applicants went back to
the University and resumed their academic activities.
[5]
Pursuant to a number of notices the applicants respectively appeared
before the Campus
Rector and showed cause, why their suspension
orders should not be made as required by Article 6.2(a) of the
University Disciplinary
Code. Subsequent to that hearing a
decision was taken and decision is embodied in the letter of
suspension dated 6 December
2017. In what follows I set out the
contents of the suspension letter.
RE:
SUSPENSION FROM THE UNIVERSITY
“
Having heard
your verbal presentation on 21 November 2017, you are hereby advised
that the University has decided to suspend you
until the final
disposition of the charges. This suspension is issued in terms
of Clause 6.1 of WSU Student Disciplinary
Code which provides for
suspension of a student who has been charged with serious crime, as
listed in Schedule 1 of the
Criminal Procedure Act 51 of 1977
in a
court of law [and also to ensure your safety].
You are forthwith
prohibited from participating in any University activities, attending
lectures, enter the premises of the University,
not bring any motor
vehicle into the grounds of the University, cease to reside in any
University residence, and to hold any leadership
position in any
University recognised structure.
Should you need
specific information regarding the aforementioned, you are to contact
the writer via email on this address:
mjadezweni@wsu.ac.za
.
Yours sincerely
Prof JMM Jadezweni
Rector: Mthatha Campus
It is this decision I set
out to deal with. Perhaps late in the judgment I will deal with
the question of reconsideration
of this decision.
[6]
The applicants impugn this decision on two grounds: namely, that they
were never asked
any questions during their respective hearings and
that the Campus Rector and other officials sitting with him failed to
take record
of what constituted their representations during the
hearings.
[7]
The ardous task I must now embark upon is to decide the lawfulness of
the respondent’s
decision to suspend the applicants.
As a creature of statute and thus a public body with its powers
limited to those
conferred upon it by statute,
[1]
the University duly issued Student Disciplinary Code of Conduct to
promote a culture of learning and teaching in a disciplined
and
dignified environment as an Institution of higher learning.
[8]
In its preamble the code provides that “
The student
Disciplinary Code is the central document on all aspects of
disciplinary conduct at the University. Any policy
pertaining
to student disciplinary issues inconsistent with it shall not be
regarded as valid.”
Article 1.3(a) provides that
“
students are subject to the WSU Student Disciplinary
Code.”
Article 1.3(c) further provides that
“
ignorance of the WSU Student Disciplinary Code, Rules and
Regulations cannot be raised as a defence in disciplinary
proceedings.”
Because students are bound by the code they
are expected to know it by heart, such to include provisions of
Article 6 of the Code.
[9]
Article 6 deals with summary procedure and the following are its
provisions:
SUMMARY PROCEDURE
“
6.1 when a
charge of having committed an offence as defined in these Rules is
pending against a student or when in the opinion of
the Campus Rector
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 Campus Rector may order that, the student shall:
(i)
Cease attending lectures or tutorial;
(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;
(vi)
Cease to hold any leadership position in any University
recognised structures.
6-2 The Campus Rector
shall not make any order in terms of Article 6.1 above unless:
(a)
The student has been given an opportunity to appear before the Campus
Rector to show cause why
the order should not be made and;
(b)
The Campus Rector considers it to be in the interest of the student
community or employees
or the University to make the order.”
[10]
Of importance at the present moment are the provisions of Article
6.2. It is this
article that deals with the procedure
before and during hearing. A question that must be asked and
answered is whether an
opportunity to appear before the Campus Rector
was given to the applicants. It is a common cause that the
applicants were
not only called upon to appear before the Campus
Rector but also asked to narrate a story of their involvement in the
commission
of the alleged murder on 12 May 2017. A version by
the respondents that is admitted by applicants in reply is as
follows:
“
Both applicants in the present matter were
afforded an opportunity to show cause, why a suspension order should
not be made as is
required by Article 6.2(a) of the First
Respondents’ Disciplinary Code.”
From here it
is clear that the hearing was commenced by a question or a probe to
the applicants to show cause, why, a suspension
order should not be
made. At the very least an opportunity was given to them by
casting an invitation to them to explain
how they got implicated in
the murder and show cause why a suspension order should not be made.
[11]
It is only when rights are infringed or threatened that the impugned
conduct becomes the business
of the Judiciary.
[2]
In this case the applicants do not allege that they have a legally
recognised right to be asked questions during the hearing.
Where there is no right no infringement or threat exists,
consequently there is no remedy available. The remedy only
exits
where there is a right.
[3]
[12]
An invitation to show cause was well accepted and opportunity grabbed
by both hands by the applicants.
They narrated a story without
any interruption and in the process of narrating a story, they were
pleading their innocence.
We now know what they said in a
nutshell. They explained to the Campus Rector how
innocent they are, and that they
even went to the extent of stating
that they were the victims themselves of the occasion. Has this
exercise fulfilled the
purpose of Article 6.2 of the code? The
answer is in the affirmative. An opportunity was fully given to
the applicants.
They narrated their story from beginning to the
end. Even the Counsel for applicant confirmed during argument
that the applicants
told the Campus Rector everything they wanted him
known. Even the question that was asked to them to show cause
is a common
cause. The purpose of the hearing was not to ask
questions but to afford applicant opportunity to show cause in terms
of
Article 6-2. Article 6-2 does not require questions to be
asked to the student but opportunity to be given to him to show
cause, and that was done.
[13] Even
the notice dated 16 November 2017, which was a Notice to Attend
Suspension Hearing, put it plain
the purpose of the hearing.
The notice was intended to prepare the applicants for the hearing so
that they may prepare themselves.
The full text of the notice
is as follows:
RE: NOTICE TO
ATTEND SUSPENSION HEARING
“
This letter
serves to notify you, that in terms of Article 6 of the WSU Student
Disciplinary Code of Conduct, the Campus Rector
may order your
suspension if it is alleged that you have been charged with a serious
crime, as listed in Schedule 1 of the
Criminal Procedure Act 51 of
1977
.
As you have been
charged with a serious crime, in terms of Schedule 1 of the
Criminal
Procedure Act, the
Campus Rector, Professor Jadezweni, wishes to
consider whether he should suspend you.
You are accordingly
requested to appear again before the Campus Rector to show cause, why
you should not be suspended. Any
unjustified failure to attend
the inquiry will result in further disciplinary action…..”
From this it is clear the applicants were aware of the purpose of
the inquiry or hearing from the date of receipt of that notice.
(which is the 17 November 2017). Applicants’
complaint about Campus Rector’s failure to ask questions is
unmeritorious.
[14]
It is now known what the applicants said during the hearing.
They championed a cause that
they were innocent. They sought
not to be suspended for that reason. Whether or not that was
relevant for purposes
of issuing a suspension order entirely depends
again on the provisions of Article 6-2(b). Article 6-2(b) deals
with what
must be taken into account by the Campus Rector after an
opportunity to show cause has been given to the students to consider
whether
or not to issue a suspension order. The following is
what need to be taken into account: “
the interest of the
student community or employees or the University.”
Interest of the accused student is not a consideration in the
enquiry. They did not allege that during hearing they informed
the Campus Rector that it will be in the interest of the student
community or employees or University not to suspend them.
On
this score as well I cannot find that the suspension was contrary to
the provisions of Article 6-2 of the Code.
[15]
The fact that the proceedings were not recorded, I find that to be in
dispute. The respondents
are adamant that the proceedings were
being recorded. In that case respondents’ version should
prevail.
[4]
Even if I were
to be wrong on this I still find that this ground is devoid of any
merit on two grounds: Firstly the
applicants are not alleging
any prejudice they suffered or will suffer as a result of failure to
record. The cause they championed
during the hearing and the
narration they made to the Campus Rector is a common cause.
There is no dispute about what happened
and what was said during the
hearing. Lastly Article 6-2 does not provide for any manner of
recording. I accordingly
find that the suspension hearing was
fair and lawful in every respect.
[16]
A matter that should not detain me long is that of a reconsideration
application in terms of
Article 12. Whilst the document
referred to as application for consideration is not dated, it is not
clear as to when it
was served upon the Campus Rector. The date
of receipt of the representations is important so as to determine
whether they
were made within the required time period. It
cannot be determined whether or not consideration application was
made.
It is not known at this stage whether or not those
representations were made within the prescribed time.
[17]
However, what is important and certain is that those representations
were considered by the Campus
Rector. It is a common cause that
a response to the representations was verbally made and that response
confirmed applicants’
suspension. All what applicants are
complaining about is that it should have been made in writing.
There is not basis
laid for that except to submit that if you make
representations in writing it is expected that you will be answered
to in writing.
All the same the response was imparted to the
applicants.
[18]
Article 12-5 provides that “
the Campus Rector may at his/her
discretion revoke a suspension provided that steps have been taken to
proceed with the disciplinary
hearing on the charge of misconduct
against the student.”
Article 12.6 provides that: “
The
Campus
Rector may at his/her discretion confirm the
suspension
.” It is discernible from these provisions
that reconsideration of suspension by the Campus Rector is a matter
of discretion.
The Campus Rector has exercised that discretion
fully.
[19]
Having said the above, I find that the application cannot succeed.
There is no reason why
general rule that costs should follow the
result cannot be applied.
[19]
In the result the following order shall issue:
(a) The
application is dismissed with costs.
___________________
A.S.
ZONO
JUDGE
OF THE HIGH COURT (ACTING)
APPEARANCES:
Counsel
for the applicants
: Adv.
Nyobole
Instructed
by
:
Mgcotyelwa Krewu Inc.
MTHATHA
Counsel
for the respondents
: Adv. De
La Harpe S.C.
Instructed
by
:
Drake Flemmer &
Orsmond Inc.
c/o Fikile Ntayiya &
Associates
MTHATHA
[1]
Nkasa and Others v Walter Sisulu University and Another
(2527/2017)[2017] ZAEMHC23 (11 July 2017; The Institution Statute of
Walter Sisulu University published in Government Gazette 37235 and
Government Notice No.13 of 17 January 2014 (the Statute).
[2]
Vumazonke v MEC for Social Development and Others 2005(6) SA 229
(SE) Para 9.
[3]
Masemole v Special Pensions Appeal Board and Another (CCT 260/18)
[2019] ZACC 39
(15 October 2019) Para 51.
[4]
Plascon – Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984(3) SA 623 at 634.