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[2017] ZAFSHC 152
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University of the Free State v Dlanjwa and Others (919/2017) [2017] ZAFSHC 152 (18 September 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 919/2017
In
the matter between:
UNIVERSITY
OF THE FREE STATE
Applicant
and
ASIVE
DLANJWA
First
Respondent
MOITSHEPI
THEMBALETHU LIPHOLO
Second Respondent
STUDENT
REPRSENTATIVE COUNCIL
(QWA QWA
CAMPUS)
Third
Respondent
ALL OTHER
INDIVIDUALS OR LEGAL PERSONS
ACTING UNDER OR ON
BEHALF
OF THE 1
ST
AND/OR 2
ND
AND/OR 3
RD
REPONDENTS
OR OTHERWISE DIRECT
OR INDIRECT SUPPORT
OF THE ACTIVITIES
TO
WHICH THIS MATTER
APPLIES
Fourth Respondent
HEARD
ON:
08 JUNE 2017
DELIVERED
ON:
18 SEPTEMBER 2017
MHLAMBI,
J
[1]
On 22 February 2017 a
Rule Nisi
was issued of which paragraphs
2.1, 2.2, 2.3 and 2.4 mentioned hereunder served as an interim
interdict with immediate effect. The
rule nisi
has already
been confirmed against the 2
nd
, 3
rd
and 4
th
respondents. The applicant seeks confirmation in respect of the 1
st
respondent.
[2] Paragraphs 2.1-2.4 of
the
Rule
Nisi
read
as follows:
2.1. The
respondents be prohibited from doing anything which directly or
indirectly obstructs, impedes, disrupts, postpones,
delays or
interferes with the academic functioning of the applicant, as well as
any and residential registration of students and
all welcoming and
other functions at the applicant’s campuses, as well as tests
or examination processes and/or the orderly
academic education,
administration and ordinary student activities of the applicant
and/or blockading of entrances, roads and buildings
and/or damaging
any property situated on the applicant’s campuses, whether
movable or immovable and regardless of who the
owner thereof may be;
2.2.
The respondents be prohibited from barricading of entrances or
buildings, molesting, assaulting, threatening or
intimidating any
student, member of staff, employee, contractor or official of the
applicant, including any person present on the
applicant’s
property who may not fall into one of these categories;
2.3.
The respondents be prohibited from in any manner whatsoever inciting,
taunting, encouraging, instigating, prompting
and/or provoking other
individuals or students to perform any of the acts described in
paragraphs 2.1 and 2.2 above;
2.4.
The Sheriff of this Honourable Court and/or the South African Police
Services be authorised and directed to remove
and expel from the
property and premises of the applicant any respondents who refuse to
comply with paragraphs 2.1, 2.2 and 2.3
above.
[3]
The relief sought against the first respondent is based on the
following:
3.1
He is not cited and singled out as being solely responsible for the
unlawful protest action or to intimidate him but merely
because he
appeared to be the chief proponent of the FEM (Free State Education
Movement) and/or has been identified on security
footage of the
protests
[1]
;
3.2
The first respondent is a portfolio holder of the TSC who is
purportedly believed to be in the leadership of the FEM and
signed a
Memorandum containing a list of demands submitted to the applicant’s
management
[2]
. He is also
suspected to be associated with the FEM
[3]
.
3.3
Even though it is uncertain whether the first respondent effected the
handwritten amendments to the memorandum, it was
the applicant’s
view that by handing over the amended memorandum, the first
respondent clearly aligned himself with the contents.
In so doing,
the first respondent must also have been representing the FEM in
presenting the amended memorandum to the applicant’s
management
[4]
.
BACKGROUND/FOUNDING
AFFIDAVIT
[4]
The applicant and various other Higher Education Institutions across
the country experienced student protest actions as a result
of
dissatisfaction with University fees and the government’s
perceived failure to deliver free education. The protests were
led by
student representative councils and other student formations. During
2016 the Student Representative Council (SRC) elections
could not be
held on the applicant’s campus due to protests. In its stead, a
Transitional Student Council (TSC), having the
same powers and duties
as the SRC, was established pending the election of SRC members by
the general student body.
[5]
In 2017 a number of prospective students experienced difficulty in
applying for student funding from NSFAS. Prospective learners
were
required to register for their course of choice in order to become
the applicant’s students, provided that they had
been
provisionally accepted based on admission requirements. On
Thursday, 16 February 2017, a meeting was held between representative
of the FEM, SASCO, the TSC and the management of the applicant at
which a request was made to grant a further extension of
registration
[5]
. The applicant
did not accede to the request which led to some students entering
various lecture venues and laboratories to disrupt
classes and
intimidated students and lecturers on Monday 20 February 2017
[6]
.
[6]
On Tuesday, 21 February 2017, the applicant arranged an urgent
meeting with the TSC to get them to engage with the student body
and
use their influence to calm the situation and prevent further
uprising and it was decided to reconvene at 17h00 to discuss
the
progress
[7]
. When the meeting
reconvened, a memorandum, on the letterhead of the SRC, was handed to
the applicant’s management containing
a list of demands. The
applicant’s response to the demands was not accepted by the TSC
and the FEM and almost immediately
fresh protest action sprung up
with a large group of protestors gathering at Thakaneng and moving in
the direction of the Sasol
library. This was at about 14h00 on 22
February 2017
[8]
.
OPPOSING/ANSWERING
AFFIDAVIT
[7]
In the answering affidavit, the first respondent stated the
following
[9]
: “I submit
that the situation on campus was diffused before this order was
granted and since then no protests followed. On
22 February 2017, the
day that the
Rule
nisi
was
granted and before we were aware that the Applicant approached court
with this application, I consulted with the students at
about 16h00
and we agreed on a proposal to be made to the applicant. The said
proposal was made to the applicant at about 18h30
on the said day. A
copy of the proposal is attached hereto, marked annexure “AD2”.
The applicant accepted the proposal
with a few recommendations and
the applicant never made mention of the
Rule
nisi.
The
following day on the Thursday, I was shown a copy of the
Rule
nisi
by
the Dean Student Affairs and he informed me that they will not pursue
application as an agreement was reached. I also consulted
with Vice
Rector, Professor Lis Lange, who confirmed that they will not pursue
the application. I was then informed on the following
day, the Friday
that the attorney of the Applicant advised that the application
cannot be withdrawn and that service will be effected.
I received the
application on Monday 27 February 2017. No protest followed, not
because of the
Rule
nisi,
but
because of the agreement that was reached with the applicant.
It
is my submission that the applicant is not entitled to relief against
me in my personal capacity. The TSC is properly constituted
in terms
of a document drafted and accepted by the applicant. The applicant
was able to join the TSC and there was no need to join
me in my
personal capacity. The applicant admitted to me that it was never
their intention to join me personally and I was even
offered public
apologies for the said joinder. These were made by Vice Chancellor
and Rector, Professor Lis Lange. About a week
thereafter I was also
apologized to by the Registrar, Dr. Gift Vinger. Professor Lis Lange
also promised to offer a written apology
and also that they would pay
for my legal representation. This never materialized and the Friday
prior to the return date I was
informed that they would only pay for
one consultation with a legal representative. The email confirming
same is attached hereto,
marked annexure “AD3”. I ended
up having to approach Legal Aid for assistance. As mentioned above
earlier, I never
enticed any protests but was, in fact the person who
diffused the situation on various occasions. This will be evident
from the
footage of the protests. The Dean of Student Affairs
approached me when the protests started and requested me to address
the students.
At that stage I was in my office working when he
requested same. I managed every time to calm the students down and to
make proposals,
thus preventing them from pursuing the protests.
During the protests in front of the Sasol Library all the protesters
intended
entering the library and I advised them that it would
disrupt the students who were busy studying. I advised them to send
in only
a few students who would then invite the students in the
library to join the protests. They accepted my advice and sent in a
few
students. They returned peacefully without any incidents.”
[8]
Parts of annexure AD2 dated 24 February 2017, titled Response to the
Transitional Student Council in relation to the agreement
entered
with the UFS management on 22 February 2017, read as follows:
“
Introduction
On the evening of 22 February 2017,
professor Nicky Morgan, Lis Lange and Prakash Naidoo, together with
the Dean of Students, Pura
Mgolombane, and Vhugala Nthakheni met with
Sekese Rasephei and Asive Dlanjwa as members of the Transitional
Student Council; and
with Siyabulela Lufele as a member of the Free
Education Movement met off campus to discuss students’ concerns
with registrations
and funding for the 2017 academic year.
The
following was agreed upon:
·
Members
of Rectorate and the Finance department staff will stop their daily
operation and functions and focus on students’
concerns on
registration and funding.
Through
this process of engagement with the Transitional Student Council the
UFS has been able to help 55% of the students in the
list in order to
register. We thank the students’ representatives for their
constancy and dedication.”
[9]
Sekese Rasephei’s email on annexure AD3 dated 16 March 2017
reads as follows:
“
Dear
Colleagues,
Prof.
Nicky Morgan and I had a brief conversation with regards to legal
assistance for Mr Dlanjwa for the upcoming court appearance
next week
on March 22
nd
.
We
agreed that Mr Dlanjwa can seek the service of a legal counsel of
which Management will pay for the legal fees of that particular
counsel that will have been sought for such purpose.
Through
this email, on behalf of Mr Dlanjwa who is part of the TSC, we ask
for a written commitment that the aforementioned is in
order and that
Management commits to handing the legal fees of Mr Dlanjwa’s
counsel.”
The
response from Prof Nicky Morgan reads as follows:
“
This
was a follow up of the discussion held with Rectorate colleagues.
I
am in favour on providing financial support for legal advice. Dr
Vinger can assist.
I
have also pointed out the fact that we will avail the footage the UFS
has in support of the request for the order to be made final
and that
out support for legal advice should not be construed as support for
the cancellation of the order.”
Replying affidavit
[10]
Paragraphs 3.79 to 3.85 of the applicant’s replying affidavit
read as follows: “During the meeting of the 1
st
of March 2017 the 1
st
respondent displayed dissatisfaction that he was cited in the
proceedings. I took time to explain the circumstances and reasoning
therefore, which is mainly related to the fact that he was seen as
the leader of the protests. There were Management members who
had
great sympathy with the 1
st
respondent; however it must be stated that those members did not have
sight of the footage nor were they involved in the consultations
as I
have been. He was still not satisfied and requested that the
University should pay his legal costs. It was explained that
the
University will assist by him (
sic)
paying for one consultation for a legal representative to explain the
contents of the interim Court Order and the effect thereof.
The
University did this only in an attempt to assist the 1
st
respondent and for no other reason. The 1
st
respondent was further shown the footage by Mr Masalesa and was the
Management members who had sympathy with the 1
st
respondent satisfied that 1
st
respondent was the leader of the protests. Confirmatory affidavits of
Prof. Lange and Dr. Vinger will also be attached in support
of this.
The emails to which the first respondent refers are taken out of
context deliberately. It was made very clear that the
decision to
provide support for legal fees should not be construed as support for
the cancellation of the order. Finally, there
is no truth to the
averment that the first respondent was found in his office by the
Dean of Student affairs, whose confirmatory
affidavit in this regard
will also be attached.”
Applicant’s
Supplementary Affidavit
[11]
Further affidavits having been allowed, the applicant’s
supplementary affidavit reads as follows: “I depose to
this
affidavit to supplement the replying affidavit as filed before the
above honourable court on 5
th
May 2017. I hereby supplement the applicant’s replying
affidavit with specific reference to paragraph 3.85 of the
applicant’s
replying affidavit when I confirmed that Mr
Mgolombane did not attend the first respondent’s office
personally and found
him to be working is indeed correct, however
subsequent to the filing of my replying affidavit Mr Mgolombane
brought certain aspects
to my attention which the applicant deems
appropriate be placed before the Honourable Court. Mr Mgolombane
advises that although
he did not attend the first respondent’s
office personally he did request his office to contact the
Transitional Student
Council on 22
nd
February 2017 before the protest embarked and before the handing over
of the memorandum. Mr Mgolombane indicated to me that the
first
respondent did in fact attend his office where they had discussion
where Mr Mgolombane requested the first respondent to
address the
students and establish the reason for their unhappiness. That was the
extent of the discussion between the first respondent
and Mr
Mgolombane.”
Opposing Affidavit to
the supplementary affidavit
[12]
The first respondent filed an opposing affidavit, extracts of which
read as follows
[10]
: “I
did not make the amendments to the memorandum and I only signed the
memorandum in my capacity as a member of the TSC.
The Chairperson of
the TSC and I drafted the memorandum but the amendments thereto were
made by the said Chairperson of the TSC.
At the time that the
memorandum was amended the protest was underway and I was tasked with
addressing students, signing the memorandum
and negotiating with the
Applicant. It was not a calm situation where I was afforded the
luxury of perusing the document at my
leisure. I only realised after
signature of the memorandum by myself and the Acting Vice Chancellor
while we were making copies
of the memorandum that “& FEM”
was included in the memorandum. I obviously could not one-sidedly
amend a document
already signed by not only me but also a member of
the Applicant. I am not sure why the Chairperson, Sekese Rasephei,
made amendment
to include the words “& FEM” but I
assume it was because of the fact that the situation was volatile.
The amendments
were made in an effort to manage students. I attach
hereto the confirmatory affidavit of Sekese Rasephei, marked Annexure
“AD
A”. Regarding my attendance of the meeting held on 23
March 2017, I wish to state that I attended this meeting solely in my
capacity as member of the TSC. I want to reiterate that I have never
been part of the management of FEM. There was never an established
leadership of the FEM although there was a Facebook page that I am
aware of. I do not currently have a Facebook profile and have
never
been part of the said Facebook page. The page is administered by
other students. I am not involved in the management, decision
making
or administration of the FEM. One of my TSC functions includes
overseeing the registration of students, as well as all financial
and
NSFAS issues. The meeting of 23
rd
of March was convened by the Black Lawyers Student Association as a
dialogue for the student community. They attempted to clarify
the
issues of NSFAS. This meeting fell in my mandate as stipulated above.
Also I was invited there by the Black Lawyers Student
Association.
Submissions
It
was contended on behalf of the applicant that the first respondent’s
defences that he had acted in an official capacity
and diffused the
situation were far-fetched and implausible. By signing the memorandum
and handing it over to the applicant he
aligned himself with its
contents especially the contents of its paragraph 5 (the paragraph
was hand written and stated that the
student body demanded that there
be a campus shutdown until the above-mentioned demands are
fulfilled). He made inflammatory statements
calling students to
engage in protest action.
It
was contended on behalf of the first respondent that the applicant
failed to show that the first respondent incited the students.
A mere
gathering did not render the meeting violent. The unrest started on
20 February 2017 when student frustrations “boiled
over”
[11]
and they started disrupting classes. The memorandum was handed over
on 21 February 2017 after the protest had already started.
After the
intervention of the TSC and the first respondent, peace and calm
prevailed on the campus. The applicant failed to prove
that the first
respondent was a member of the FEM and that he furthered its
objectives. There was no basis to regard him as such.
Annexure AD2
clearly showed that he was a member of the TSC and acted as such
while one Siyabulele Lufele was a representative
of the FEM.
On
being taxed by the court to indicate where on the papers was it
stated that the first respondent made inflammatory statements,
applicant’s counsel said that one had to look no further than
the hand written words in the memorandum calling for a shutdown
of
the campus. The first respondent should have distanced himself from
the contents of the memorandum. The counsel conceded that
it was
strange that the applicant offered to pay legal costs for the first
respondent against whom it took legal steps. The applicant,
according
to its counsel, could not deny that the first respondent assisted in
quelling the students’ riotous behaviour and
normalised the
situation in the library. Despite allegations in the founding
affidavit and twenty-four photographs on annexure
“C”,
nowhere did the first respondent appear on the footage or photographs
which led to the concession by the applicant’s
counsel that the
only physical conduct on which the applicant held the first
respondent responsible for the protest was the handing
over of the
memorandum by the first respondent to the applicant. In my view, this
submission is, in itself, not sufficient or serves
as adequate
grounds to grant a final interdict as prayed for.
Conclusion
Applying
the test and principles in
Plascon-Evans
Paints Limited v
[1984] ZASCA 51
;
1984 (3) SA 623
(A) and Van Riebeeck Paints
(Proprietary) Limited
having
considered the applicant’s case against the first respondent, I
accept the latter’s version as credible and not
so far-fetched
that it can be rejected on the papers alone. The application for the
granting of the final relief must therefore
fail.
[13]
I make the following order:
Order
The rule nisi is
discharged with costs.
_____________
JJ
MHLAMBI, J
Counsel
for Applicant: Adv. Johnson
Instructed
by:
Phatshoane Henney
BLOEMFONTEIN
Counsel
for Respondents: Ms De Wet
Instructed
by:
Justice
Centre Bloemfontein
BLOEMFONTIEN
[1]
Founding
affividavit, page 13 para 8.9
[2]
Founding
affividavit, page 14 para 8.11
[3]
Founding
affividavit, page 19 para 8.37 and 8.39
[4]
Replying
affidavit, page 113 para 3.15,3.16 and 3.17
[5]
Founding
affividavit, page 16 para 8.25
[6]
Founding
affividavit, page 18 para 8.30 and 8.31
[7]
Founding
affividavit, page 19 para 8.33
[8]
Founding
affividavit, page 21 para 8.47
[9]
Answering
affidavit, page 12 para 2.36
[10]
Para
3.1-3.7, page 148 and 149
[11]
Founding
affividavit, page 18 para 8.30