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[2019] ZAECMHC 79
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Mbuthuma and Another v Walter Sisulu University and Others (3621/2019) [2019] ZAECMHC 79; 2020 (4) SA 602 (ECM) (21 November 2019)
IN THE HIGH COURT OF
SOUTH AFRICA
{EASTERN
CAPE
LOCAL DIVISION, MTHATHA
}
Case
No.
3621/2019
In
the matter between:
ZANDISE
MBUTHUMA
First Applicant
ZUKOLWETHU
MBHOZA
Second
Applicant
And
WALTER
SISULU UNIVERSITY
First
Respondent
THE
VICE CHANCELLOR – WALTER SISULU
UNIVERSITY
Second
Respondent
THE
DIRECTOR OF STUDENT AFFAIRS
Third Respondent
DR
PS JACA – THE ACTING CAMPUS RECTOR
MTHATHA
CAMPUS, WALTER SISULU
UNIVERSITY Fourth
Applicant
JUDGMENT
T
ONI
AJ
Introduction
[1]
The relief sought by the applicants in this application is
four-fold. In the main the applicants seek an order setting
aside the decision of the first respondent, (“the University”)
penned by the fourth respondent on 24 September 2019,
suspending them
from attending their academic activities on the basis that same is
unlawful, unconstitutional and a nullity.
Both applicants are
registered third year students of the first respondent and are
student activists who have been elected as President
and Deputy
President, respectively, under the aegis of the African National
Congress Youth League (“ANCYL”).
[2]
The applicants also seek that their suspension as students of the
first respondent be uplifted so that they could be allowed
to attend
their academic activities pending the final determination of this
application and that the first respondent and / or
anyone acting in
concert with it be interdicted from instituting any disciplinary
hearing against them as a sequel to the events
emanating from the
festival and / or event which was hosted at the Auditorium hall of
the Nelson Mandela Drive campus of the first
respondent. An
order for costs is also sought on a punitive attorney / client
scale.
[3]
The whole conundrum emanates from an event allegedly held without
permission on 21 September 2019 in which the applicants
are alleged
to have facilitated the slaughtering of a cow within the first
respondent’s campus. The applicants are
also alleged to
have broken into the Auditorium without permission and in breach of
the University rules.
[4]
The application is opposed by the respondents and the fourth
respondent has deposed to an affidavit in pursuit thereof.
The
opposition pivots on an allegation that the application falls foul of
rule 53 of the Uniform Rules of court and the provisions
of sections
6 and 7 of Promotion of Administrative Justice Act (“PAJA”)
and is, therefore, incompetent. In support
thereof the
respondents contend that the applicants have not shown such
exceptional circumstances within the meaning and contemplation
of
section 8 (c) (ii) of PAJA as to allow the court to substitute its
decision for that of the first respondent.
[5]
It is common cause that the applicants were suspended by means of
letters dated 23 September 2019 and 25 September
2019,
respectively. The issue lying for determination is whether the
applicants have, on papers before the court, made out a proper
case
for the review of the decision to suspend and discipline.
The
facts
[6]
The dispute at hand was instigated by a letter pencilled by the
Acting Rector of the first respondent, Dr P.S. Jaca, dated
22
September 2019, notifying the applicants of their contemplated
suspension pending ‘
possible
disciplinary action
’.
Embedded in the letter are four allegations of misconduct
against the applicants. Whist brevity is the soul
of wit
[1]
,
it is perchance, apposite to append hereunder in full the content of
the said letter in order to juxtapose it against its outcome.
Such is thus:
“
22
September 2019
Mr
Zandisile Mbuthuma
MTHATHA
CAMPUS
Walter
Sisulu University
Dear
Mr Z Mbuthuma
Contemplation
to suspend pending possible Disciplinary Action
This
letter serves to notify you, that in terms of the WSU Student
Disciplinary Code of Conduct, the Campus Rector may order your
suspension if it is alleged that you are involved in misconduct.
In
this case it is alleged that you:
1.
Brought and facilitated the slaughtering of a live animal, a cow,
inside the University premises and thereby
violating a University
Rule. Pg 111 in the University Prospectus states: It is a rule of WSU
not to allow any slaughtering of animals
in any form on any of our
campuses. This is a serious misconduct as it not only violated the
University Rules but is also violated
the Abattoir Hygiene Act of
1992 that states: No person shall slaughter or cause to be
slaughtered any animal in the municipal
area anywhere else other than
at the Abattoir, except as may be provided by the Minister of
Agriculture by regulation in terms
of Section 3 (2) of the Act.
2.
Following the death of students at the Mthatha Campus during the
Fresher’s Braai in early June 2019 a
directive was issued by
the office of the Vice Chancellor suspending all social events.
In special cases where this has to
be allowed clearly outlined proper
procedures had to be followed. It is alleged that you organised
an event without following
the University procedures. The event
on 21 September 2019 was organised without necessary permission from
relevant authority
and there was no proper and relevant security
arrangements. The act you are alleged to have committed is
viewed as direct
defiance of the Vice Chancellor’s circular and
directive. This is serious misconduct in that organising any
event without
proper and relevant security arrangements put the lives
of students and other university personnel in danger.
3. Used
the University facility, the Auditorium, without applying and
receiving permission from relevant authority
and in so doing you
breached the provisions of Rule 6.2: 2019 WSU Prospectus, pg 100).
4.
Broke-into the Auditorium, vandalising the locking system of that
facility and threatening the security personnel
are viewed as serious
misconduct that cannot be tolerated by the University.
You
are therefore requested to respond in writing to the Campus Rector by
10:00, 23 September 2019 to show cause why the suspension
should not
be enforced. For this purpose, please use the following email
address:
pjaca@wsu.ac.za
.
A failure to respond I will assume that you have no representation to
make and I will therefore make a decision accordingly.
Dr
PS Jaca, Acting Rector
”
[7]
Receipt of letter is not in issue between the parties as the first
applicant conceded having been telephonically contacted
by the
security personnel of the first respondent to uplift the letter and
so he did. On the first applicant’s own
saying, he
collected the letter from the campus security , not so timeously, as
he was not contactable which is the reason why
he only responded in
making written representations to the fourth respondent’s email
address at 19:47 on 23 September 2019.
[8]
I do not understand it to be the applicants’ case that they
were not afforded adequate opportunity to make representations,
the
bone of contention only being that they were not afforded a hearing
before they were suspended. This contention was pursued
with
vigour by Mr Maliwa, for the applicants, during his oral
presentations. Inevitably, the court is enjoined to make a
finding as to whether as a matter of law the applicants are entitled
to a pre-suspension hearing. Put otherwise, the issue
is
whether the first respondent bears legal obligation to invite the
applicants to a hearing before suspension.
[9]
In summation, three contentious allegations stem from the fourth
respondent’s aforesaid letter which are ancestral
to the
applicants’ suspension and these are that:
“
9.1
the applicants brought and facilitated the slaughtering of a cow in
the University campus in
contravention of the University rules and the Abattoir Hygiene Act of
1992;
9.2
the applicants organised an event on 21 September 2019 without
seeking permission from authorities
and without proper and relevant
security arrangements; and
9.3
the applicants used the University facility, the Auditorium, which
they broke into without
permission.”
[10]
Upon receipt of the notice of the contemplated suspension, the first
applicant responded by means of an email on 23 September
2019 at
19:47 in terms whereof he set out quite succinctly the reasons why he
should not be suspended. It is not decipherable
from the papers
what explanation the second applicant proffered. The sum up of
the first applicant’s response is thus:
“
10.1
there is no SRC program that was held on the day and as such he was
unable to account for activities and festivities
of structures he is
not in charge of;
10.2 he
did not slaughter a cow and does not have capacity to do so;
10.3
the first respondent’s security personnel, as custodians of
campus security, should account and have
a duty to ensure that the
University directives are observed; and
10.4 he
required evidence placing him at the scene where either the cow was
slaughtered or where the event was
conducted.”
[11]
The above contentions are a summarised version of the first
applicant’s email response wherein he also states that
he was
not even aware of the slaughtering of the cow on the day in
question. The first applicant further casts a dim view
on the
competence of the campus security which he says were dereliction of
their duties by failing to arrest whoever was involved.
It was
their duty to arrest whoever was involved to ensure protection of
students. Their failure to preserve
campus security
was in breach of their duty, so the applicants say. In a
nutshell, the applicants contend that they are the
victims of
circumstance and are presumed guilty by association.
[12]
The first applicant’s response notwithstanding, the fourth
respondent proceeded with the suspension. The
letters of
suspension
mutatis mutandis
regurgitate the same allegations
made in the letter of contemplated suspension.
In
the letters of suspension the fourth respondent states that he
considered the applicant’s representations but found them
wanting in that the representations do
not
correlate
with the facts before him, the applicants have a case to
answer
and their presence on campus will be detrimental to further
investigation and campus stability.
The
letter of suspension in conclusion contemplates a disciplinary
hearing which it said would commence as soon as possible.
[13]
In approaching this court the applicants placed reliance on the
principle of legality, contending that their suspension
is illegal,
unlawful and unconstitutional and falls to be set aside on the
grounds that it is irrational, unreasonable and arbitrary.
The
applicants also contend that their suspension was not preceded by a
hearing, is an abuse of authority and is in violation of
the
Constitution. They have already been found guilty, so they say
and that in suspending them the fourth respondent placed
reliance on
facts that are at his disposal which he failed to disclose.
Their further complaint is that their disciplinary
hearing has no
definite date and thus they will not be able to participate in their
schooling activities pending an unspecified
uncertain event in
violation of their right to education.
[14]
On urgency the applicants contend that their suspension is disrupting
their learning process and schooling activities.
They are
unable to
do revision in preparation for
final examinations. It is not in dispute that the matter is
urgent, the respondents having
conceded in their answering affidavit
that ‘
the matter must be
disposed of as speedily as possible
’.
I also take the view that the matter deserves to be disposed of as
urgently as possible.
[15]
Two grounds were advanced by the respondents in opposition and these
are that the application should have been
formulated in two
parts with the first part being the interim relief pending the
finalisation of an application to review and set
aside the decision
to suspend the applicants. The second ground is that the
application should have been for a review
of the decision to suspend
the applicants in terms of the Promotion of Administrative Justice
Act in accordance with Rule 53 of
the Uniform Rules of Court.
By seeking a declarator, the applicants are avoiding the provisions
of Rule 53 and the provisions
of sections 6 and 7 of the PAJA.
The relief sought is, therefore, incompetent on this basis.
[16]
The pinnacle of the respondents’ contention is that even if the
applicants were correct in their quest for the
review of the first
respondent’s decision to suspend, they have not shown any
exceptional circumstances as required by section
8 (c) (ii) of the
PAJA such as to entitle this court to substitute its decision for
that of the first respondent.
[17]
The first respondent contends that it has sufficient evidence at its
disposal not only placing the applicants directly
in the scene where
the wrongdoing was committed but also implicating them in the actual
wrongdoing. In proof thereof, the
respondents attached
documents are extract from the police occurrence book (“OB”)
and affidavits of certain security
officers, namely; Siyabulela
Buyeye, “Buyeye”, Somelele Madolo, “Madolo”
and Mokgoba Sereka, “Mokgoba”.
An extract from the
OB, states: “…
GOODMAN FARM HOUSE 083 242 8074
receipt no. 81656. Its where they bought a cow from President
of anc youth league Mr
Mphika (Mabhoza)”
.
[18]
An entry posted in the OB by Mr Dwakisa is to the effect that he saw
students carrying a big pot and big knives at the
back of the
teaching hall. The students were busy slaughtering a cow and
Messrs Xuma and Guquka called the police.
Mokgoba in his
affidavit, alleges to have seen Mabhoza among a group of students who
arrived at the University campus on 20 September
2019 at 19:08 on a
bakkie which had a cow on it. Mokgoba’s affidavit further
alleges that Mabhoza approached the security
guards at the gate and
told them that he wanted to show the cow to the comrades and it is
then that the bakkie was allowed to the
campus. Buyeye in his
affidavit states that on 21 September 2019 at about 09:00 Mbuthuma
Zandisile and another SRC member
came to the campus control offices
and asked that they open the Auditorium for them and after they were
refused entry, they left.
[19]
Mr Mlandu, (“Mlandu”), called Madolo to go and
investigate after receiving a report that there was a group
of
students near the Auditorium. Madolo corroborates Mlandu in his
affidavit and states that he went to the Auditorium and
saw Mbuthuma
and a group of other students breaking the lock of the Auditorium
with a bush knife and thereafter pushed the door
open. The
above implicates the first applicant in the wrongdoing even though,
nothing implicates him in the slaughtering
of the cow.
[20]
The fourth respondent also contends that the applicants were afforded
an opportunity to state reasons why they should
not be suspended and
having considered their written reasons and evidence at his disposal,
he found that they deserve to be suspended
pending the outcome of a
disciplinary proceedings to be instituted. The applicants would
then be given an opportunity to
present their side of the story
before a determination was made. The respondents deny that the
applicants were entitled to
a hearing before they were suspended.
[21]
The fourth respondent conceded he may have referred to an incorrect
legislation when he sought to place reliance on the
Abattoir Hygene
Act of 1992 but retorted that the slaughtering of any animal
outside of an abattoir remains an offence in
terms of section 7 (1)
(a) of the Meat and Safety Act.
[22]
The respondents also averred that the applicants are entitled to and
may write their final examinations should the disciplinary
process
not be finalised and alternative remedies are available. The
respondents did not mention what those alternative
remedies
are. The above is contradicted by the respondents’ later
contention that the applicants are not only suspended
from writing
final examinations but are also suspended from all University
activities and may not enter the University campus.
However,
this allegation was not disputed by the applicants in their replying
affidavit. Neither was it raised as an issue
during the
hearing.
[23]
Reference was also made in the answering affidavit of the second
applicant’s disruptive behaviour of calling mass
meetings on 24
and 25 September 2019 in the face of the intended suspension and the
contemplated disciplinary hearing and
despite an agreement
between the University management and all political formations in the
campus detailing certain protocols to
be followed when organising
campaigns in the campus. Such were done without the permission
of the management as required.
As a result an
unauthorised mass meeting was held and disruptions were experienced
at the delivery sites of the first respondent.
An investigation
report relative to the above disruptions was compiled which evinces
instances of fighting between the ANC Youth
League students and SASCO
members.
[24]
The second applicant’s response to the above pertinent
allegations is less than satisfactory. The second
applicant’s
response to allegations that directly implicate him is as follows:
“
The
contents of these paragraphs are largely irrelevant for the purpose
of this application and therefore warrant no reply.
Anything …”
The
above knee-jerk response to such serious allegations which are said
to be some of the reasons for suspension leaves much to
be desired.
An innocent litigant who is desirous of being re-instated to academic
activities would have rejected such allegations
outright if they were
not true. Lack of outright rejection of such allegations might
lend credence to the respondents’
version that the second
applicant’s conduct was indeed disruptive.
Submissions
[25]
Both parties presented substantive arguments at the hearing of this
matter. In his oral submissions which are foreshadowed
in the
applicants’ heads of argument Mr Maliwa conceded that the
matter should proceed on the basis of a final relief.
According
to Mr Maliwa four issues falling for determination by the court are
whether: (a) rule 53 of the Uniform rules of court
was applicable,
(b) PAJA was applicable, (c) employing the principle of legality, in
case where the court finds that PAJA is not
applicable, was fatal to
the applicants’ case, and (d) the applicants have made a case
for the relief sought.
[26]
Mr Maliwa ruled out the application of rule 53 on two grounds,
namely; that when taking the decision to suspend, the
respondents
were not performing an administrative function and that the
suspension itself was not as a result of any proceedings
and it
could, therefore, not be expected of the respondents to produce any
record of proceedings. PAJA was also not applicable
as,
according to Mr Maliwa, the decision to suspend was not taken in the
exercise of public power and because of the contractual
nature of the
relationship between the parties, the respondents were not performing
a public function in terms of an empowering
legislation. For
one to rely on PAJA in an application, so submitted Mr Maliwa, one
must rely on an empowering legislation
and it was not competent for
the respondents to rely on the Prospectus to suspend the applicants.
Reliance should have been
placed on the empowering legislation.
[27]
He further argued that because of the contractual nature of their
relationship, the review application was correctly
located under the
principle of legality as the suspension was not in keeping with the
University Code of Conduct. He further
submitted that even if
there were two parallel courses of action, it was not open to the
court to prescribe to a litigant which
course of action to follow.
To sum up his argument, Mr Maliwa referred the court to
Klein v
Dainfem and another, Calibre Clinical Consultants v National
Bargaining Council Freight Industry
which are also referred to in
the applicants’ heads of argument. Mr Maliwa further
referred the court to
Brink and others v Diocesan School for Girls
and others
, a judgment of this Division by Roberson J where the
learned Judge said:
“
In the present
case, I have difficulty in seeing how DSG is publicly accountable for
its decisions in disciplinary matters.
The disciplinary code is
there for the benefit of the school, the learners and the parents.
Learners are not obliged to enrol
at DSG and if they are expelled,
they are not prevented from obtaining further education
elsewhere.”
[2]
[28]
Another point that was strenuously argued by Mr Maliwa is that the
first respondent’s decision is irrational, it
being the
applicants’ case that before suspending them, the fourth
respondent should have afforded the applicants a hearing.
For
the decision of the fourth respondent to be rational, he was under
obligation to weigh two rights, namely; the right of the
applicants
to education and the power to suspend. The fourth respondent
does not have authority to suspend and the suspension
is not in
keeping with the first respondent’s code of conduct.
[29]
In argument Mr Hobbs, for the respondents, submitted that a
distinction should be drawn between the reviews under the
PAJA and
those based on the principle of legality and that the application at
hand should have been brought in terms of section
6 of the PAJA.
According to Mr Hobbs the decision to suspend the applicants is an
administrative action as defined in section
1 of the PAJA and the
applicants have no choice as to the pathway to the review. It
is only when other species of public
power are at play that the
principle of legality can find application.
[30]
Mr Hobbs further submitted that the issues at play are governed by
the first respondent’s domestic rules which
are embodied in the
Prospectus which derives its authority from its institutional
statute, the
Higher Education Act 101 of 1997
, which gives the first
respondent legal status. In turn the Council of the first
respondent makes rules which are binding
on both the applicants and
the respondents.
[31]
Instead of basing their application on the PAJA, the applicants
elected to invoke the principle of legality as their
pathway to
review and on that basis the application is ill-conceived. Even
if they could be found to be entitled to legality
review, they have
not made a case and their application should be dismissed. The
submission of a contractual relationship
between them and the first
respondent was not pleaded in the founding affidavit and so their
argument that the Rector did not have
the power to suspend them is
irrelevant. Mr Hobbs also referred to a plethora of cases to
illustrate his point and submitted
that the facts of
Makhanya
[3]
are
distinguishable from the facts of the case at hand.
[32]
Navigating through the respondents’ heads of argument, Mr Hobbs
submitted further that the applicants cannot cry
foul of the
suspension process as they were given an opportunity to make
representations which they made. Their representations
are in
conflict with indisputable facts at the fourth respondent’s
disposal that the applicants were part of the gathering
that
committed the wrongdoing. He further submitted that the
suspension was not indefinite as the Rector contemplated a
disciplinary hearing soon. In conclusion Mr Hobbs submitted
that the applicants are not entitled to the relief sought even
though
he conceded that the relief sought was final.
[33]
In sum total Mr Hobbs submitted that the applicants only have a right
to education and have no right to interdict the
disciplinary
hearing. The applicants have not made a case on papers that
decision to institute the disciplinary action is
irrational.
Their application should be dismissed with costs.
Discussion
[34]
A judicial review is a species of judicial intervention employed by
the courts to keep the repository of public power
under judicial
scrutiny in order to prevent arbitrary exercise of power and curb its
abuse. The import of the judicial intervention
in the
administrative justice arena finds expression from the well-founded
axiomatic expression which stipulates that the
exercise of
public power is only legitimate where lawful
[4]
.
Wade
and Forsyth
put it more lucidly when the learned authors say:
“
Judicial review is
thus a fundamental mechanism for keeping public authorities within
due bounds and for upholding the rule of law.”
[5]
[35]
The bifurcation of judicial review into two
genera
, namely;
the review under the PAJA and the review under the principle of
legality has long been a subject of rigorous debate by
all the
different courts of the land, including the Supreme Court of Appeal
and the Constitutional Court. The application
of each of the
above two review pathways has slowly and incrementally evolved into a
minefield of seemingly arduous and contradictory
judgments. The
issue of which review pathway is appropriate and should be followed
in each case is what always occupies the
uppermost echelons of each
conscientious debate.
[36]
Whilst the above two types of review appear to be conjoined twins in
form in that they are both the cornerstone of our
hallowed and time
honoured principle of the rule of law, they are in substance not.
The real difference between the two review
types lies in the fact
that the review under the PAJA is sourced from the Constitution and
is purpose-built whilst the legality
review has long been regarded as
self-standing review mechanism.
[36]
Adverting to the case at hand, it is apposite to observe that the
real tug of war in this application is which of the
above two review
types, both of which are fundamental in the process of judicial
scrutiny of those in the exercise of public power,
should have been
used by the applicants. The question to be asked is
whether the decision to suspend the applicants
falls within the
complex definition of ‘administrative action’ as defined
in section 1 of the PAJA, Mr Hobbs
says it is and Mr Maliwa
says it is not, or is located within the broader framework of the
legality principle, Mr Maliwa says it
is and Mr Hobbs says it is
not.
[37]
The question of whether or not the PAJA is applicable
in casu
must surely turn on an interpretation of section 33 of the
Constitution to which the PAJA owes its origin. Section
33 provides:
“
(1) Everyone has
the right to administrative action that is lawful, reasonable and
procedurally fair.
(2) Everyone whose
rights have been adversely affected by administrative action has the
right to be given written reasons.
(3) National
legislation must be enacted to give effect to these rights, and must—
(a) provide for the
review of administrative action by a court or, where appropriate, an
independent and impartial tribunal;
(b) impose a duty
on the state to give effect to the rights in subsections (1) and
(2); and
(c) promote an
efficient administration.”
[38]
Administrative action is defined in section 1 of the PAJA as:
“
(i)
“administrative action” means any decision taken, or any
failure to take
decision, by—
(a) organ
of state, when—
(i)
exercising a power in terms of the Constitution or a provincial
constitution;
or
(ii)
exercising a public power or performing a public function in terms
of any legislation;
or
(b) a natural or juristic person, other than an organ of state,
when exercising a public power or performing a public function in
terms of an empowering provision, which adversely affects the rights
of any person and which has a direct, external legal effect,
but does
not include…”
[39]
A primary indicator used by the courts in determining the
nature of power to be exercised by a repository of public power
is
the source of the power. In
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others[199]
[6]
,
the Constitutional Court (per Kampempe J) held that ‘where a
power flows directly from the Constitution, one could deem
the power
to be executive in nature. When a power is sourced in legislation, it
is likely to be administrative in nature. Substantial
constraints on the power would be an indication that the power is
administrative in nature. Finally, the court stated that
the
nature of the power can be determined with reference to the
appropriateness of subjecting the power to the stricter form of
judicial scrutiny represented by the edifice of administrative law
contained in the PAJA.’
[40]
In
Minister
of Home Affairs v The Public Protector
[7]
,
Plasket J said:
“
[27] Review in
terms of both the PAJA and the principle of legality stems from the
rule of law. Section 33(1) and (2) of the Constitution
as well as the
PAJA gives effect to the rule of law in respect of only
administrative action. The principle of legality gives effect
to the
rule of law in relation to all other exercises of public power, such
as executive power. Woolf, Jowell and Le Sueur make
this point when
they say that as a general principle, the rule of law ‘has
provided the major justification for constraining
the exercise of
official power, promoting the core institutional values of legality,
certainty, consistency, due process and access
to justice (foot note
omitted).”
[41]
At para 28 the learned Judge opined:
“
[28] An applicant
for judicial review does not have a choice as to the ‘pathway’
to review: if the impugned action is
administrative action, as
defined in the PAJA, the application must be made in terms of s 6 of
the PAJA; if the impugned action
is some other species of public
power, the principle of legality will be the basis of the application
for review.
[42]
What immediately preoccupies one’s mind is whether the first
respondent is an organ of state within the meaning
and contemplation
of section 1 (a) (i) and (ii) of the PAJA. If the answer to the
above question is no, which it should be,
then the next question to
be asked is whether the first respondent is a natural or juristic
person, other than an organ of state,
when exercising a public power
or performing a public function in terms of an empowering provision,
which adversely affects the
rights of any person and which has a
direct, external legal effect within the meaning and contemplation of
section 1 (b) of the
PAJA. Methinks this where the answer to
the problem at hand lies.
[43]
In paragraph 15 of the applicants’ heads of argument, Mr Maliwa
mawkishly
argues that:
“
For the reasons
stated above, the decision sought to be impugned in these proceedings
does not fall under PAJA even if the Court
was to find that the 1
st
Respondent is an organ of state.
One of ‘
the
reasons stated above
’ referred to by Mr Maliwa is what is
stated in paragraph 12.1 of his heads of argument, stating that: ‘
at
the time the respondents took the decision to be impugned in these
proceedings, they were not performing judicial, quasi-judicial
and/or
administrative functions; and…
’
[44]
I agree fully with Mr Maliwa that the first respondent is not an
organ of state. However, Mr Maliwa did not take
the matter
further in his analysis of section 1 of the PAJA to also deal with
section 1 (b). I think that this is where Mr
Maliwa misses the
target. Section 1 (b) clearly refers to a ‘natural or
juristic person, other than an organ of state,
when exercising a
public power or performing a public function in terms of an
empowering provision, which adversely affects the
rights of any
person and which has a direct, external legal effect.’
[45]
By parity of reasoning and in a sheer coincidence Mr Hobbs also
trashed out the same issue in paragraph 15 of the respondents’
heads of argument. Ironically, it seems that by design
paragraphs 15 of the learned gentlemen’s heads of argument is
what is the nub of the whole problem. Mr Hobbs argued that ‘
the
decision to suspend the applicants is administrative action as
defined in section 1 of PAJA…’
. Mr Hobbs was
referring to section 1 (b) of the PAJA.
[46]
The above leads to a further question that says: what then is the
source of the power that was exercised by the first
respondent when
it sought to suspend the applicants? Mr Hobbs argued this point
very succinctly in paragraph 16 of the respondents’
heads of
argument and so in his oral submissions. He argued that when
suspending the applicants, the first respondent did
not source its
power from the first respondent’s prospectus but ‘from
the rules promulgated in terms of its institutional
statute’,
the Higher Education Act 101 of 1997, “(the Act”)
[8]
.
[47]
Mr Hobbs took the matter further to argue that section 83 of the Act
accords the first respondent legal status.
Shouldn’t the
first respondent be the juristic person referred to in section 1 (b)
of the PAJA then? I think it is.
In sum total I agree with Mr
Hobbs’ analysis of section 1 (b) of the PAJA. Does this not
then resolve the current imbroglio?
I think it does.
[48]
In view of the foregoing debate, I am in agreement with Plasket J’s
sentiments that an applicant for judicial review
does not have a
choice as to the ‘pathway’ to review. This,
in my view, is where the buck stops. I
am of the view that the
applicants should have followed the provisions of the PAJA in
challenging both their suspension and the
disciplinary hearing.
For this reason this application should fail.
[49]
However and lest I am wrong in my above conclusion, I will briefly
discuss the two pertinent issues in what follows hereafter.
The
issues are, firstly, whether the applicant has a right to have their
suspension reviewed and set aside and, secondly, their
disciplinary
hearing. Mr Maliwa argued that the applicants’ suspension and
disciplinary hearing should be reviewed and set
aside on the ground
that the decision to suspend and discipline was irrational, unlawful
and unconstitutional. I am not in
agreement with Mr Maliwa’s
submission.
[50]
The right of a litigant who wishes to permanently interdict a
disciplinary hearing is circumscribed and this should best
be
explained by interrogating a cautionary word of advice from Snyman
AJ. He cautioned:
“
Litigants seeking
to permanently interdict disciplinary proceedings from taking place
need to be warned. The Labour Court will only
entertain such
applications is truly exceptional circumstances and if material
irremediable prejudice or injustice is shown to
exist. As a matter of
principle, that which is provided for the processes under the LRA, in
the normal course, must be allowed
to run its course…”
[9]
[51]
The learned Judge’s above enunciation echoes the sentiments
expressed by the Labour Court in
Zondo
and Another v Uthukela District Municipality and Another
[10]
and
Jiba
v Minister: Department of Justice and Constitutional Development and
Others
[11]
. In
Zondo
the court remarked:
“
The first hurdle
the applicants must successfully clear in this regard is to show that
exceptional circumstances exist. The reason
for this is that the
Labour Court has been consistent in its approach that the court will
only intervene in uncompleted disciplinary
proceedings if such
exceptional circumstances are shown to exist ....”
[52]
In
Jiba
the Court held:
“
Although the court
has jurisdiction to entertain an application to intervene in
uncompleted disciplinary proceedings, it ought not
to do so unless
the circumstances are truly exceptional. Urgent applications to
review and set aside preliminary rulingsmade during
the course of a
disciplinary enquiry or to challenge the validity of the institution
of the proceedings ought to A be discouraged.
These are matters best
dealt with in arbitration proceedings consequent on any allegation of
unfair dismissal, and if necessary,
by this court in review
proceedings ...”
[53]
In
casu
the issue is whether the applicants have satisfied the
exceptional circumstances’ requirement that would enable this
court
to review and set aside the contemplated disciplinary
hearings. I agree with Mr Hobbs that the applicants have not
made out
a proper case for the review and setting aside of the
contemplated disciplinary hearing. The applicants’ attack
against
the respondents on this leg would and should in any event
fail. This then leave this court with one last consideration
which
is whether the applicants are entitled to an order uplifting
their suspension.
[54]
In paragraph 5 of his judgment, the learned Judge also dealt with the
issue of the unlawfulness of a suspension when
he referred to
Manamela
Nnana Ida v Department of Co-Operative Governance, Human settlements
and Traditional Affairs Limpopo Province and Another
[12]
in
which the court said:
“
A suspension would
be unlawful in instances where the right or power of an employer to
effect a suspension is prescribed by specific
regulation and these
regulations are not complied with by the employer. The unlawfulness
is founded in the employer not complying
with its own rules. This
regulation (rules) can be done in the form of a disciplinary code and
procedure, collective agreement,
statutory provisions, or other
regulatory provisions. This kind of regulation is prolific in the
public service ....”
[55]
It seems to me that even with the suspension the threshold is too
high for the applicants to jump over. Mr Hobbs
argued in the
present case that the right to suspend is sourced from the
regulations promulgated under the Act. It has not been
shown that in
deciding to suspend the first respondent did not comply with its
regulations.
[56]
For the sake of completeness, it is well worth to mention something
on the principle of rationality, the so-called ‘means
to an end
principle, as a ground of attack. Unfortunately, the
applicants have not presented a formidable ground of
attack even on
the principle of irrationality. It is hard to believe that the
conduct of the first respondent in suspending
the applicants is not
rationally connected to the purpose. The purpose is the
disciplinary hearing. Certain allegations
that are yet to be
tested in a formal disciplinary hearing have been levelled against
the applicants and it is incumbent upon them
to trash out these
allegations in the disciplinary hearing to prove their innocence.
Even on this ground the application
should fail.
Costs
[57]
Even though the determination of which party pays the costs is
in the discretion of the court, the general rule is that
costs follow
the result. This is the time honoured ‘winner takes all’
rule and it has been followed in a number
of decisions by all
the courts. However, an interesting and binding jurisprudence
has been developed over time that
this principle is not always
applicable in all cases. This was the case in
Biowatch
Trust v Registrar Genetic Resources
[13]
w
here
the Constitutional Court refused to apply ‘the costs follow the
result’ rule for reasons stated therein.
[58]
It is my view that the applicants in this case, even though they are
not successful in their case, should not be mulcted
with a costs
order. The reason therefor is that the applicants are student
political activists who approached this court
to protect what they
perceived as their right to education. It cannot be said by any
stretch of imagination that they were
either frivolous or mischievous
in their conduct. They might have genuinely believed that their
suspension, and so their
disciplinary hearing, were unlawful but it
did not turn out to be.
[59]
In
Niekara
Harrielall v University of KwaZulu-Natal
[14]
the
apex court followed the same principle when it held:
“
Accordingly, the
High Court and the Supreme Court of Appeal should have followed and
applied the Biowatch principle in determining
costs. Their failure to
do so warrants intervention by this Court.”
[60]
In my view it would be just and equitable that there be no order as
to the costs.
Order
[61]
In the result, the following order shall issue:
1. The
application is dismissed.
2.
There shall be no order as to costs
___________________________________
H.
S. TONI
JUDGE
OF THE HIGH COURT (ACTING)
Appearances
Counsel
for the Applicant
:
Adv S.
H. Maliwa
Instructed
by
: Tiya
Pata Inc.
MTHATHA
Counsel
for the Respondent
:
Adv J.
L. Hobbs
Instructed
by
: Drake
Flemmer Inc.
MTHATHA
HEARD
ON
: 15
October 2019
DELIVERED
ON :
21 November 2019
[1]
This
adage was used by William Shakespeare in THE TRAGEDY OF HAMLET,
PRINCE OF DENMARK, 1974 London, Edward Arnold Publishers
(Ltd)
(Edited by Michael Davis Marlborough College Wiltshire.
[2]
(1072/2012)
[2012] ZAECGHC 21 (1 May 2012)
[3]
Makhanya
v University of Zululand (218/08) ZASCA 69 (29 May 2009)
[4]
Fedsure
Life Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council and Others
[1998] ZACC 17
,
1999 (1) SA 374
(CC),
1998 (12) BCLR 1458
(CC)(‘Fedsure’) at para 59.
[5]
William
Wade and Christopher Forsyth Administrative Law (10
th
ed) at 29
[6]
ZACC 1,
200 (1) SA 1
(CC),
1999 (10) BCLR 1059
(CC) (‘SARFU’) at
para 143
[7]
(308/2017)
[2018] ZASCA 15
(15 March 2018)
[8]
See
para 16 op cit et seq
[9]
In
Moroenyane v Station Commander of the South African Police Service,
Van der Bijl Park, Case no. J 1672/2016, a decision of
the Labour
Court, Johannesburg (16 August 2016)
[10]
(2015)
36 ILJ 502 (LC at para 38
[11]
(2010)
31 ILJ 112 (LC) at para 17
[12]
[2013]
ZALCJJHB 225 dated 5 September 2013 at para 20
[13]
[2009] ZACC 14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC)
(Biowatch) at paras 26-7;
See
also Limpopo Legal Solutions and Others v Vhembe District
Municipality and Others [2017] ZACC 14
[14]
[2017]
ZACC 38