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[2012] ZAFSHC 144
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Minister of Higher Education and Training and Others v Mthembu and Others, Council of Central University of Technology, Free State v Minister of Higher Education and Training and Others (2776/2012, 2786/2012) [2012] ZAFSHC 144 (13 August 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Application: 2776/2012
In the matter between:-
MINISTER OF HIGHER
EDUCATION
AND TRAINING
….................................................................
First
Applicant
DIRECTOR GENERAL:
DEPARTMENT OF
HIGHER EDUCATION
AND TRAINING
….......................
Second
Applicant
PROF STANLEY RIDGE
N.O.
…..........................................
Third
Applicant
and
THANDWA Z MTHEMBU
…..............................................
First
Respondent
CENTRAL UNIVERSITY
OF
TECHNOLOGY, FREE
STATE
…................................
Second
Respondent
SYLVAN M SEANE
…......................................................
Third
Respondent
AMOS RADEBE
….........................................................
Fourth
Respondent
Application: 2786/2012
In the matter between:
THE COUNCIL OF
CENTRAL UNIVERSITY
OF TECHNOLOGY, FREE
STATE
…............................................
Applicant
and
THE MINISTER OF
HIGHER EDUCATION AND
TRAINING
….....................................................................
First
Respondent
THE DIRECTOR
GENERAL OF THE
DEPARTMENT OF
EDUCATION AND
TRAINING
…................................................................
Second
Respondent
PROF JULIAN SMITH
N.O.
…...........................................
Third
respondent
PROF STANLEY RIDGE
N.O.
…...................................
Fourth
Respondent
_______________________________________________________
HEARD ON:
19 & 20 JULY 2012
_______________________________________________________
JUDGMENT BY:
DAFFUE, J
_______________________________________________________
DELIVERED:
13 AUGUST 2012
_______________________________________________________
INTRODUCTION
[1] The disputes to be
adjudicated by me have been fuelled by the decision of the Minister
of Higher Education and Training (“the
Minister”) dated
18 June 2012 in terms whereof he exercised the powers afforded to him
by
section 41A(1)
of the
Higher Education Act 101 of 1997
, as
amended, (“the Act”).
[2] On 4 July 2012 two
applications were issued on an urgent basis: one by the Minister and
the other by the Council of the Central
University of Technology,
Free State. I shall refer herein to the university as CUT and to its
council as the Council.
[3] As duty judge during
the recent recess, I granted leave that both applications be enrolled
for hearing on 19 and 20 July 2012.
The parties considered the matter
as urgent and as agreed they filed answering and replying affidavits
in the applications and
the matter was ripe for hearing. As
requested, I ruled in terms of Rule 11 of the Uniform Rules of Court
that the applications
be heard simultaneously and that one judgment
only be handed down.
THE PARTIES AND THE
RELIEF SOUGHT
[4] The Minister issued
his application under application number 2776/2012. The following
relief is sought:
“
1.
Permitting this application to be heard as one of urgency, and
dispensing with the ordinary provisions for time periods and notices
prescribed under the rules, to the extent necessary.
2. Declaring that the decision of the
first applicant to appoint the third applicant as Administrator of
the Central University
of Technology (second respondent), in terms of
s 41A
of the
Higher Education Act 101 of 1997
, as published in
Government Notice 476 in Government Gazette 35457 of 20 June 2012, is
lawful and valid.
3. Declaring that the third applicant
is lawfully charged with the duty, responsibility and power:
3.1 to take over the authority of the
Council of the second respondent for a period not exceeding twelve
months;
3.2 to take over the authority of the
management and administration of the second respondent; and
3.3 to discharge the other functions,
duties and terms of reference as set out in the Minister’s
gazette notice as published
on 20 June 2012.
4. Declaring that the persons
previously appointed to the Council of the second respondent have,
upon coming into force of the Minister’s
notice of 20 June
2012, ceased to hold office as members appointed to the Council of
the second respondent and have accordingly
ceased to hold any
authority, powers, functions and duties associated with the office of
members of the said Council.
5. Declaring that the first, third and
fourth respondents acted unlawfully in:
5.1 refusing to recognise the lawful
authority of the third applicant as the duly appointed Administrator
of the second respondent;
5.2 refusing to recognise and, where
applicable, implement the actions and instructions of the third
applicant as the duly appointed
Administrator of the second
respondent;
5.3. (in the case of the first and
third respondents) taking actions, decisions and steps in their
purported capacity as members
of the Council of the second
respondent;
5.4 barring physical access to the
third applicant to the premises of the second respondent;
5.5 preventing the third applicant
from discharging his authority, powers, functions and duties as the
duly appointed Administrator
of the second respondent and obstructing
his efforts to do so;
5.6 communicating with members of
staff, students and other members of the University community of the
second respondent, to the
effect that the third applicant lacked the
legal authority to function as the duly appointed Administrator of
the second respondent;
5.7 instructing or encouraging members
of staff of the second respondent to refuse to cooperate with,
respect and accept the lawful
authority of the third applicant as
duly appointed Administrator of the second respondent, and
instructing or encouraging them
to obstruct him in his efforts to
discharge such authority; and
5.8 utilising funds and other
resources of the second respondent in efforts to challenge, undermine
or obstruct the lawful authority
of the third respondent as the duly
appointed Administrator of the second respondent.
6. Interdicting the respondents from
taking any further action which amounts to or is calculated to:
6.1 undermine the lawful authority of
the third applicant in his capacity as the duly appointed
Administrator of the second respondent;
6.2 interfere with or obstruct any
actions, decisions and steps taken and any instructions issued by the
third applicant in his
capacity as Administrator of the second
respondent;
6.3 issue any communications to staff
of the second respondent or any other person, to the effect that the
third applicant does
not have the authority of the Administrator with
the powers, functions and duties as set out in the first applicant’s
Gazette
Notice of 20 June 2012;
6.4 instruct, advise or urge any staff
member or other person to defy or obstruct the third applicant in his
capacity as the duly
appointed Administrator of the second
respondent;
6.5 bar access to the premises and
other resources and facilities of the second respondent, to the third
applicant in the course
of his exercising his authority, powers,
functions and duties as the Administrator of the second respondent;
6.6 spend any money or otherwise
utilise any financial or other resources and facilities of the second
respondent in any efforts
to challenge, undermine or obstruct the
authority of the third respondent in his capacity as the
Administrator of the second respondent.
7. Directing the respondents to make
full and proper disclosure to the third applicant, in his capacity as
Administrator of the
second respondent, of all relevant information,
documentation and records relating to any steps taken by them to
challenge, resist
or obstruct the third applicant in his efforts to
discharge his authority as Administrator of the second respondent,
and steps
taken by them to prevent access to the third applicant, in
such capacity, to the premises, facilities and resources of the
second
respondent.
8. Alternatively, and in the event
that final relief is not determined immediately in terms of
paragraphs 2 to 7 above, granting
an interim order, in terms of
paragraphs 8.1 and 8.2 below, which interim order shall operate
pending the final determination of
this application of an application
to be brought by the respondents for the review of the first
applicant’s decision to appoint
the third applicant as
Administrator of the second respondent, as published in the Gazette
Notice of 20 June 2012;
8.1 the first and third respondents
and the other members of the second respondent’s Council which
has been dissolved are
interdicted from taking any action or steps in
their purported capacity as members of the Council of the second
respondent;
8.2 the respondents and the other
members of the dissolved Council are interdicted from acting in any
manner as set out in paragraphs
6.2 to 6.6 above.
9. Ordering that the costs of this
application shall be paid, jointly and severally (the one paying, the
other to be absolved) by:
9.1 the first and third respondents in
their personal capacities and out of their own resources (and they
shall not be entitled
to seek payment by or reimbursement from the
second respondent, subject to 9.2 below);
9.2 the second and fourth respondents
only to the extent that they may elect to oppose this application.
10. Granting the applicants further or
alternative relief.”
[5] The applicants in the
Minister’s application are the Minister, the Director-General:
Department of Higher Education and
Training (herein later referred to
as “the DG”) and Prof Stanley Ridge in his capacity as
the Administrator appointed
by the Minister. The respondents are
cited as Thandwa Z Mthembu, the Vice-Chancellor and Principal of CUT
(herein later referred
to as “Prof Mthembu” or “the
Vice-Chancellor”), Sylvan M Seane, the Chairperson of the CUT
Council (“Dr
Seane”) and Amos Radebe, the CUT’s
Head of Security.
[6] The Council brought
its application under application number 2786/2012. The Minister, the
DG, Prof Julian Smith in his official
capacity as the independent
assessor appointed by the Minister and Prof Stanley Ridge in his
official capacity as the Administrator
of CUT appointed by the
Minister are cited as the four respondents in this application.
[7] The Council seeks the
following relief:
“
(a)
Condoning any non-compliance with the Rules of this Honourable Court
in terms of
Rule 6(12).
(b) Reviewing, correcting and setting
aside the report by the third respondent dated 13 April 2012,
published in the Government
Gazette of 11 May 2012 (under GN No.
366), following on his investigation into the affairs of the Central
University of Technology.
(c) Reviewing, correcting and setting
aside the decision by the first respondent on 18 June 2012, published
in the Government Gazette
of 20 June 2012 (under GN No. 476), to
appoint the fourth respondent as administrator to the Central
University of Technology,
following a report of the third respondent
into the affairs of the University.
(d) In the alternative to (c) above,
declaring unlawful and invalid the decision by the first respondent
on 18 June 2012, published
in the Government Gazette of 20 June 2012
(under GN No. 476), to appoint the fourth respondent as administrator
to the Central
University of Technology, following a report of the
third respondent into the affairs of the University.
(e) Interdicting and restraining the
fourth respondent from implementing the above-mentioned decision, any
of the terms of reference
issued pursuant thereto or to involve
himself in any way in the affairs of the Central University of
Technology, its Council, management,
employees or students.
(f) Directing any such respondent as
may oppose the application to pay the applicant’s costs
(including the costs of two counsel),
jointly and severally, the one
paying the other to be absolved.
(g) Granting further or alternative
relief.”
THE
HIGHER
EDUCATION ACT 101 OF 1997
AS AMENDED (“the Act”)
[8] Prior to dealing with
the factual background and the events that led to these applications,
it is apposite to briefly highlight
some of the relevant provisions
in the Act:
8.1 The purpose of the
Act is clearly to regulate higher education, but in doing so, it is
recognised by the legislature as set
out in the preable of the Act
that
“
it is
desirable for higher education institutions to enjoy freedom and
autonomy in their relationship with the State within the
context of
public accountability and the national need for advanced skills and
scientific knowledge”.
8.2 The Minister may,
after consulting the Council on Higher Education established under
section 4
of the Act, by notice in the Government Gazette, and from
money appropriated for this purpose by Parliament, establish a
university,
technikon or college in terms of
section 20
of the Act
and he may also, after consulting the same Council and by notice in
the Gazette, close a public higher education institution
in
accordance with
section 25
of the Act.
8.3
Section 27(1)
of the
Act stipulates that the Council of a public higher education
institution must govern such institution subject to the Act
and its
institutional statute.
8.4 In terms of
section
30
of the Act the Principal and Vice-Chancellor is responsible for
the management and administration of the public higher education
institution.
8.5 The Council of a
public higher education institution may prepare an institutional
statute to give effect to any manner not expressly
prescribed by the
Act, but such statute must be submitted to the Minister for approval.
See
sections 32
and
33
of the Act.
8.6 In terms of
section
34
the Council must appoint the employees of the public higher
education institution and determine their conditions of service,
disciplinary
provisions, privileges and functions.
8.7
Section 41(A)
,
dealing with the appointment of an administrator, is the crucial
section
in casu
and pivotal to the central issue, being the
decision of the Minister. Therefore, it is quoted fully. It reads as
follows:
“
Section 41A
Appointment
of administrator
(1) If an audit of the financial
records of a public higher education institution,
or
an
investigation by an independent assessor as contemplated in
section
47
, reveals financial
or
other maladministration of a serious
nature at a public higher education institution
or
the serious
undermining of the effective functioning of a public higher education
institution, the Minister may, after consultation
with the council of
the public higher education institution concerned, if practicable,
and notwithstanding any other provision
of this Act, appoint a person
as administrator to take over the authority of the council
or
the management of the institution and perform the functions relating
to governance
or
management on behalf of the institution for a
period determined by the Minister, and such period may not exceed two
years.
(2) The Minister may extend the period
referred to in subsection (1) once for a further period not exceeding
six months.
(3) Notwithstanding subsection (1), if
a council is deemed to have resigned as contemplated in
section 27
(8), the Minister must appoint a person for a period of not longer
than six months as an administrator on behalf of the institution
to-
(a) take over the authority of the
council;
(b) perform the council’s
functions relating to governance; and
(c) ensure that a new council is
constituted.”
(emphasis added)
8.8 The present
subsection 41A(1) was substituted by
section 15
of Act 23 of 2001.
The phrase
“
... to take
over the authority of the council or the management of the
institution and ...”
has been inserted and the
period of administration was extended from six months to two years.
8.9 If the council of a
public higher education institution fails to comply with any
provisions of the Act under which an allocation
from money
appropriated by Parliament is paid to the institution, or with any
conditions applicable, the Minister may call upon
such council to
comply with the provision or condition within a specified period and
if such council fails to comply, the Minister
may withhold payment of
any commensurate portion of any allocation appropriated by
Parliament. The Minister must, before taking
such action, allow such
council a reasonable opportunity to make representations. See section
42.
Chapter 6 of the Act
deals with the appointment of an independent assessor from an
independent assessment panel appointed by
the Council on Higher
Education. Section 45 deals with situations where an independent
assessor may be appointed by the Minister.
It reads as follows:
“
An
independent assessor may be appointed under section 44 if-
(a)
the council of
a public higher education institution requests the appointment;
or
(b)
circumstances arise
at a public higher education institution that-
(i) involve
financial or other maladministration of a serious nature;
or
(ii) seriously
undermine the effective functioning of the public higher education
institution;
or
(c)
the council of
the public higher education institution has failed to resolve such
circumstances; and
(d)
the
appointment is in the interests of higher education in an open and
democratic society.”
(emphasis added)
THE CUT STATUTE
[9] The Council has
adopted a statute which was approved by the Minister. Clause 4
thereof deals with all aspects relating to the
Council. The numerous
functions of the Council are set out in clause 4.1. It is
inter
alia
directly responsible for the appointment of the executive
management of the CUT and it may in a manner set out in the
disciplinary
rules suspend or dismiss any executive employee. It may
also order an executive employee whom it has suspended to refrain
from
being on any premises under the control of the CUT and to
refrain from participating in any of the CUT’s activities, or
issue
such other conditions as it may deem necessary.
RELEVANT CONTRAST
BETWEEN THE ACT ON THE ONE HAND AND THE
SOUTH AFRICAN SCHOOLS ACT 84
OF 1996
AND THE
EMPLOYMENT OF EDUCATORS ACT 76 OF 1998
ON THE OTHER.
[10] As indicated above
the Council of a public higher education institution is the entity
responsible for the appointment of the
employees of such institution.
It, and not the Minister or his Department, is the employer of the
Vice-Chancellor and other employees.
The Council is the entity solely
responsible for governance at such an institution.
[11] The school governing
body of a public school is the entity that must govern the school in
terms of section 16 of the SA Schools
Act. In terms of section 16A of
this Act the principal of a public school, he being an employee of
the relevant provincial government,
represents the Head of Department
of Education in the school governing body.
Section 3
of the
Employment of Educators Act stipulates
that the Director-General of
the Department of Basic Education is the employer of educators in the
service of the department in
posts on the educator establishment of
the department and the Head of Department shall be the employer of
educators in the service
of the provincial department of education in
posts on the educator establishment of that department for all
purposes of employment.
The termination of educators’ services
and disciplinary steps to be taken against them in the case of
misconduct are set
out in Chapters 4 and 5 of the last-mentioned Act
and the employer’s duties and functions are clearly spelt out
in these
chapters.
[12] Unlike the position
of educators employed in terms of the
Employment of Educators Act,
neither
the Minister nor any other official of the Department of
Higher Education and Training has any authority over and the right to
discipline employees of a public higher education institution
appointed by its Council. That is the function and prerogative of
the
particular Council.
RELEVANT UNDISPUTED
FACTUAL BACKGROUND
[13] The following facts,
which are common cause, are recorded in order to serve as the
necessary background:
13.1 The CUT is a new
generation university which is in existence for about 30 years.
13.2 Dr Seane has been a
member of the CUT Council since 2004 and as Chairman of the Planning,
Finance and Resources Committee thereof.
In March 2010 he was elected
Chairman of the Council, a position that he has held since then.
13.3 Prof Mthembu is the
Vice-Chancellor of CUT. His turn of office ended in December 2011,
but he was re-elected by the Council
for a further term.
13.4 Prof T Schultz is
the Deputy Vice-Chancellor for Institutional Planning and Marketing
at CUT. It does not appear from the application
papers when he was
appointed in that position.
13.5 During February 2011
an anonymous letter was sent to the office of the Minister by “a
group of concerned staff members”.
Allegations of longstanding
financial, labour law and human rights violations at CUT were made.
The “primary perpetrator”
of these violations was alleged
to be Prof Schultz. The alleged violations included verbal abuse,
racism and sexism, failure to
comply with CUT policies,
victimisation, wasting of public funds to name a few. Prof Mthembu
was attacked insofar as he protected
Prof Schultz and victimised
those employees who had complained to Council. Prof Mthembu was also
accused of being an autocrat who
handpicked favourite staff for
certain positions and engaged in personal vendettas against staff who
dared to question him. In
conclusion a full forensic audit of the CUT
leadership was requested as well as a full investigation into alleged
financial mismanagement
and illegal HR practices. It needs to be
pointed out that
ex facie
the letter the complainants were not
only unidentified, but there is no indication as to their numbers.
Furthermore the allegations
were not only vague, but no supporting
evidential material was presented.
On 24 February 2011
Prof Mthembu was requested in an e-mail from the Minister’s
Department to indicate what action would
be taken to address the
concerns raised in the letter.
The Council instructed
the auditing firm KPMG to investigate the allegations raised in the
letter and to submit a report to
it.
KPMG
inter alia
consulted with Prof Mthembu during June 2011, but at the Council
meeting of 2 September 2011, its report was still outstanding.
Consequently Council resolved to terminate KPMG’s mandate at
this meeting. During this meeting (and after the resolution
was
taken) a letter from KPMG was received indicating that their report
would be finalised by 16 September 2011. The aforesaid
resolution
was not rescinded. Adv J Lubbe SC was appointed with the mandate to
substitute KPMG and to finalise the required
report.
Adv Lubbe submitted two
reports, the first on 20 October 2011 and a supplementary report on
23 January 2012. In between these
reports he
inter alia
consulted with Prof Mthembu.
The Minister requested
Dr Seane on 3 November 2011 in writing to submit the KPMG and Lubbe
reports to him. Having received no
feedback, the Minister wrote to
Dr Seane on 17 January 2012, indicating his intention to appoint an
independent assessor to
investigate the various allegations. It is
only hereafter that Dr Seane provided the Minister with a copy of
Adv Lubbe’s
first report, but not the KPMG report.
At the request of Dr
Seane a meeting was set up, attended by the DG, Dr Seane and other
Council members on 17 February 2012.
Council proposed at that stage
that a commission of enquiry be appointed by them to continue the
process of investigation previously
handled by KPMG and Adv Lubbe.
The Minister found the
proposal unacceptable and appointed Prof Julian Smith as
independent assessor in terms of the powers
granted to him in
section 44(1) of the Act.
Prof Smith conducted
further investigations and eventually submitted a report to the
Minister on 13 April 2012, which report
was published in the
Government Gazette of 11 May 2012. Concerns relating to governance,
financial control management and administration
of the affairs of
the CUT as well as the leadership of the University, including Prof
Mthembu, were raised. He
inter alia
recommended that the
Council be dissolved, Prof Mthembu be placed on special leave, an
administrator be appointed and an investigation
be undertaken into
the alleged misconduct of Prof Schultz. He furthermore recommended
that further investigations be conducted
which would include a
forensic audit pertaining to the alleged irregularities.
Following
correspondence exchanged between Council’s attorneys and the
Minister, Council and Prof Mthembu were given an
opportunity to
respond. An initial written submission was made on 26 May 2012 and
the final revised version thereof dated 31
May 2012 was eventually
forwarded to the Minister.
On 28 May 2012 a
meeting was held between some Council members and the DG, duly
delegated by the Minister.
The Minister eventually
resolved to appoint Prof Ridge as administrator in accordance with
section 41A of the Act. This took
place on 18 June 2012 and the
Minister’s decision was duly recorded in the Government
Gazette of 20 June 2012. On 18
June 2012 Dr Seane, Prof Mthembu and
Prof Ridge were informed of the Minister’s decision in
writing.
Dr Seane immediately
responded on 20 June 2012, disputing the correctness of the
findings and the recommendations of the assessor
as well as the
validity of the Minister’s decision to appoint Prof Ridge.
Further correspondence ensued, but it became
clear that Prof Ridge
would not be allowed on campus to carry out his duties in
accordance with the Minister’s decision.
These events caused
the Minister to launch the present application and the Council to
institute its application for the review
and setting aside of the
Minister’s decision.
THE PLASCON-EVANS
RULE
[14] Both Adv Gauntlett
SC, appearing for the Council with Adv Pelser, and Adv Kennedy SC,
appearing for the Minister with Adv Mahlangu,
argued that the
PLASCON-EVANS
rule should be applied in adjudicating
the two applications. In terms hereof the undisputed allegations in
the founding affidavits,
taken with the allegations in the answering
affidavits that are not clearly untenable, have to be taken into
consideration in order
to find whether a proper case has been made
out by the respective applicants. See
PLASCON-EVANS PAINTS LTD
v VAN RIEBEECK PAINTS (PTY) LTD
[1984] ZASCA 51
;
1984 (3) SA 623
(AD) at 634 H
– 635 C.
In casu
this is a difficult exercise insofar as
the allegations contained in the founding affidavit of the Minister’s
application
are also relied upon by the Minister in his answering
affidavit in the Council application and
vice versa
.
THE ISSUES IN
DISPUTE
[15] The true question
for determination, or put otherwise, the central issue in these two
applications is whether the Minister
exercised his powers afforded by
section 41A of the Act validly and/or in a manner that could have
been expected of the reasonable
decision-maker. However several other
disputes appear from the papers and have been argued before me. For
the sake of convenience
I shall deal with the following disputes in
that order:
15.1 Whether Council has
locus standi
in the review application, bearing in mind the
decision to appoint an administrator and the Minister’s
viewpoint that this
effectively meant the dissolution of Council.
The interpretation of
section 41A(1) and whether or not “or” should be
construed to mean “and/or”.
The attack on the
Minister’s decision based on procedural grounds.
The attack on the
Minister’s decision based on substantive grounds.
Whether or not a proper
case has been made out by the Minister for declaratory orders,
bearing in mind the requisites applicable
with reference to section
19(1)(a)(iii) of the Supreme Court Act, 59 of 1959.
Whether the Minister
has made out a proper case for the interdicts sought.
LOCUS STANDI
OF COUNCIL
[16] The Minister
contests Council’s standing to bring its own review
application. The authority of Council members, such
as Dr Seane, to
litigate in the name of Council and using funds of the CUT is
challenged. It is the Minister’s stance that
the individuals
who were formerly members of Council were entitled to litigate in
their own name and using their own resources
in order to apply for
the review and setting aside of the Minister’s decision, if so
advised.
[17] In the Minister’s
application Dr Seane was cited as respondent, both in his personal
capacity and on behalf of the other
members of Council. This was done
in terms of a specific agreement reached between the parties.
[18] In the Council’s
application Dr Seane placed on record that he was duly authorised by
the Council to institute the application
on its behalf. There is no
indication in the founding affidavit when he was so authorised,
particularly insofar as the application
is brought to challenge the
decision by the Minister “to dissolve the Council and to
appoint in its place an administrator
to exercise all the Council’s
governance functions”. The DG, on behalf of the Minister,
responded that Council had
been dissolved and that it, not being a
corporate body or legal
persona
with capacity to bring legal
proceedings in its own name, did not have
locus standi
.
Furthermore it was pleaded that the founding affidavit did not refer
to the existence of a resolution of Council members authorising
Dr
Seane to act on their behalf or on Council’s behalf. In this
regard it was stated that “various former Council members
have
expressed serious disagreement with other former Council members, in
particular Dr Seane and Prof Mthembu” and in this
regard
e-mails of Council members such as
inter alia
Me Elsabe
Rockman and Judge of Appeal Ponnan were attached.
[19] In the replying
affidavit Dr Seane stated that at its meeting of 23 May 2012 (prior
to the Minister’s decision) Council
noted that its Executive
Committee (Exco) would deal with any urgent situation such as a legal
challenge and in terms of Exco’s
constitution, it had the power
to exercise all powers granted by Council from time to time and to
deal with urgent matters. At
its meeting of 6 June 2012 Exco
unanimously resolved that Council should retain its status until the
expiry of its natural term
and should the Minister decide to dissolve
or suspend Council, CUT would bring an urgent application for
appropriate relief including
judicial review and Council through its
Chairman and Vice-Chancellor would take all necessary steps to give
effect to the above
resolution, including the appointment of
attorneys and legal counsel. On 22 June 2012 (after the Minister’s
decision) Exco
gave effect to its resolution taken on 6 June 2012 by
authorising the Chairperson and the Vice-Chancellor to bring a review
application.
[20] Mr Gauntlett
submitted that
locus
goes to function, i.e. to keep people out
of court that has nothing to do with the case. He also submitted that
one should not
conflate the merits of the matter with standing and
the doors of the court should not be shut
in casu
. He
submitted that Council was the only body that could bring the
application insofar as it is CUT’s governing body responsible
for protecting all legal interests of CUT. He
inter alia
relied
on
JACOB AND ANOTHER V COUNCIL OF UNIVERSITY OF
DURBAN-WESTVILLE AND ANOTHER
1974 (3) SA 552
(AD). However
this case is not relevant, firstly, as no point has been raised about
the Council’s standing and secondly,
because it was not doubted
that the Council was the appropriate body to act on behalf of the
university.
[21] Mr Gauntlett also
referred to the position of a dismissed employee and such employee’s
right to take steps to have the
dismissal reviewed and set aside. In
my view the example is not apposite insofar as the
Labour Relations
Act 66 of 1995
specifically provides for the rights of unfairly
dismissed employees. Mr Gauntlett referred to
DESPATCH HIGH
SCHOOL v HEAD, DEPARTMENT OF EDUCATION, EASTERN CAPE, AND OTHERS
2003 (1) SA 246
(CkH) at para [15] p 251F in support of his argument.
I have already referred to the SA Schools Act and it is merely
confirmed
in this paragraph that a school’s governing body has
locus standi
to bring an application on behalf of the school.
A similar finding was made in several other judgments and also in
IQHAYIYA TECHNICAL COLLEGE v MEMBER OF THE EXECUTIVE COUNCIL
FOR EDUCATION, EASTERN CAPE PROVINCE, AND ANOTHER
1998 (4) SA
502
(CK HC), a matter also referred to me by Mr Gauntlett in terms
whereof it is clear that the governing council of the technical
college was the correct and proper body to act on its behalf. See
paras [26] to [29] p 510 J – 511 H. The above two judgments
confirm the fairly obvious legal position. However they are not
authority for the argument that the Council, being emasculated
to the
extent that it is even argued on behalf of the Minister that it has
been dissolved, has standing to apply for an order that
the decision
of the Minister be reviewed and set aside.
[22] The Minister’s
viewpoint that the councillors should have brought review proceedings
as individual applicants in their
own names does have merit. The
question is whether that is the only way in which the Minister’s
decision could be challenged.
Mr Gauntlett warned against a
circularity of thought and argued that as a matter of principle
Council should have had the right
to attack the Minister’s
decision. Finally he relied on
OUDEKRAAL ESTATES (PTY) LTD v
CITY OF CAPE TOWN AND OTHERS
2004 (6) SA 222
(SCA) para [32]
and the reference to collateral challenge in the English case of
BODDINGTON v BRITISH TRANSPORT POLICE
as well as
BIO
ENERGY AFRIKA FREE STATE (EDMS) BPK v FREEDOM FRONT PLUS
2012
(2) SA 88
(FB). In the last-mentioned judgment the court adopted a
liberal approach to standing in matters concerning constitutional
rights
which would include the right to just administrative action
and education and the principle of legality.
In casu
it cannot
be found that no action is taken on behalf of or for the benefit of
CUT, but solely in order to ensure that the Minister’s
decision
to take away all authority of Council is set aside. It is not only
Council’s functions and its authority to act
that is at issue,
but also the interest of CUT in particular.
[23] Insofar as the
Minister’s decision had the effect of rendering the CUT
entirely impotent to protect its interests and
that of its governing
body, the Council, I find that the Council has
locus standi
to
challenge the Minister’s decision, the merits which will be
considered and adjudicated later herein. It is also clear
as
indicated in the replying affidavit in the Council’s
application that the required resolutions were taken and also on
this
basis the Minister’s attack on Council’s lack of
locus
standi
cannot succeed. Mr Gauntlett filed, without objection from
Mr Kennedy, a conditional application in terms of Rule 15 for Dr
Seane
to be substituted as applicant in the Council’s
application only in the event of a finding that the Council did not
have
locus standi
. Mr Gauntlett did not move his application
and Mr Kennedy responded in submitting that he had to move it for him
to consider how
to address the matter. In the light of my finding it
is unnecessary to consider this aspect any further.
SECTION 41A:
WHETHER OR NOT “OR” SHOULD BE CONSTRUED TO MEAN “AND/OR”.
[24] Sitting as a judge
having to interpret a section in a statute, I am cautioned by the
maxim
iudicis est ius dicere sed non dare/facere,
or put
otherwise, it is the duty of the judge to expound, interpret or
explain the law, but not to make it. The following warning
of Lourens
du Plessis should also be adhered to:
“
At any rate,
tampering with the ipsissima
.
verba
of a statute, though not precluded, should be an exercise in
circumspection and restraint with due deference to one of the
cornerstones
of constitutional democracy, namely the horizontal
division of powers in the state. The wording of a legislative text
bounds state
authority for
trias
politica
purposes.
The interpreter-judge is no legislator and must constantly remind
him-/herself of that. Adaptive interpretation is meant
to make sense
of the legislature’s law as it stands and not to substitute the
judge’s law for it.”
See Du Plessis L,
Re-interpretation of Statutes
, 2002 ed, p 229.
[25] Our judiciary’s
approach to statutory interpretation has undergone certain changes
over several decades. Linguistic formalism
has taken a back seat a
long time ago when the so-called golden rule of statutory
interpretation was adopted. In terms hereof adherence
must be given
to the plain words of a statute, unless it would lead to an absurdity
or a result contrary to the intention of the
legislature. It is now
accepted that theories such as contextualism and purposiveness may be
considered in statutory interpretation.
Schreiner JA’s minority
judgment in
JAGA v DÖNGES NO AND ANOTHER; BHANA v DÖNGES,
NO AND ANOTHER
1950 (4) SA 653
(AD) at 664 H has found wide
recognition in several subsequent judgments. The learned judge stated
his views as follows:
“
But
the legitimate field of interpretation should not be restricted
as a result of excessive peering at the language to be
interpreted
without sufficient attention to the contextual scene.”
In
HOBAN v ABSA
BANK LTD t/a UNITED BANK AND OTHERS
1999 (2) SA 1036
(SCA) at
1044 I – 1045A it was made clear that there is no justification
for the distinction between linguistic context
and legislative
intention and stated:
“
The
moment one has to analyse context in order to determine whether a
meaning is to be given which differs from the defined meaning
one is
immediately engaged in ascertaining legislative intention.”
The purposiveness theory
is widely recognised and utilised in order to interpret statutes. I
accept however that the interpreter
should not read a purpose or
object into a provision in an arbitrary manner, but the purpose or
object has to be established through
interpretation. The so-called
mischief rule should be seen as an integral part of the purposiveness
theory. In applying this rule
the real meaning of a statutory
provision can be arrived at when the following are considered:
(a) what was the law
before the measure was passed; (b) what was the mischief for which
the law had not provided; (c) what remedy
was provided by the
legislature and (d) the reason for the remedy.
See
HLEKA v JOHANNESBURG CITY COUNCIL
1949 (1) SA
842
(A) at 852 - 853.
In
OLITZKI PROPERTY
HOLDINGS v STATE TENDER BOARD AND ANOTHER
2001 (3) SA 1247
(SCA) at par [12] p 1257 C Cameron JA expressed his viewpoint on
statutory interpretation as follows:
“
The factual
question remains one of statutory interpretation…..The process
.... requires a consideration of the statute as
a whole, its objects
and provisions, the circumstances in which it was enacted, and the
kind of mischief it was designed to prevent.”
In
MINISTER OF
DEFENCE v POTSANE; LEGAL SOLDIER (PTY) LTD
2002 (1) SA 1
CC
Kriegler J gave a compelling example as to how section 179 of the
Constitution should be interpreted. He had due regard to the
background and history pertaining to military prosecutions and
simultaneously made use of contextual and purposiveness theories
in
order to come to his conclusion. See paras [26] to [42] of the
judgment.
[26] Section 41A(1)
should be interpreted to adjudicate the dispute between the parties.
It is the Council’s case that section
41A(1) does not provide
for the simultaneous takeover of governance and management powers. Mr
Gauntlett argued that the wording
of section 41A(1) is clear. It
provides for the appointment of an “administrator to take over
the authority of the council
or
the
management of the institution” and to “perform the
functions relating to governance
or
management” (emphasis added). He argued that the
Minister purported to appoint an administrator to take over the
authority
of the council and the management and to perform functions
relating to governance and management which is unauthorised by the
empowering
provision. He submitted correctly that a word-changing
interpretation whereby “or” is read as “and”
is
only competent in extremely limited circumstances where the
inconsistency between the word used and Parliament’s intention
is unmistakable. He submitted that there should be a compelling
reason why “and” should replace “or” or
vice
versa
. Both counsel referred me to
NGCOBO
AND OTHERS v SALIMBA CC; NGCOBO v VAN RENSBURG
1999
(2) SA 1057
(SCA) para [8] in support of their respective arguments.
In
NGCOBO
loc
cit
Olivier JA convincingly argued that,
pertaining to the definition of labour tenant, the word “and”
at the end of paragraph
(b) of the definition was intended to be used
in its usual conjunctive or cumulative sense and in so doing the
result would not
be unreasonable, inconsistent or unjust for the
reasons advanced. However there are case law indicating that the
words “and”
and “or” are inaccurately used by
the legislature. The one has been found to be the equivalent of the
other. See the
remarks of Innes CJ in
BARLIN
v LICENSING COURT FOR THE CAPE
1924 AD
472
at 478
.
[27] In summary Mr
Gauntlett submitted that the word “or” in section 41A(1)
should not be construed to mean “and”
or “and/or”,
the reasons being
27.1 the plain wording
that the legislature used should be given effect to;
27.2 the ordinary meaning
of “or” is disjunctive whilst that of “and”
is conjunctive;
27.3 the purpose of
section 41A(1) and the Act in general supports an interpretation
whereby the governance powers of council and
the management powers of
a university cannot be vested in the same body; also that proper
corporate governance requires that managerial
and oversight functions
be separated and to concentrate these separate powers in one
individual for a period of up to two years
at a time is not supported
by the Act’s purpose;
the legislature used
the word “or” consistently throughout section 41A(1)
whereas in subsection (3) the word “and”
is used and it
is submitted that the legislature’s choice of words was
clearly deliberate.
[28] Mr Kennedy argued
the contrary and submitted that the use of the word “or”
in section 41A(1) was not intended to
indicate that the two terms are
mutually exclusive. He submitted that this is a case where it is
appropriate to interpret the word
“or” to mean “and/or”.
He submitted that the clear intention of the legislature is to deal
with the situation
where an independent assessor’s
investigation has revealed financial or other maladministration of a
serious nature or the
serious undermining of the effective
functioning of a university, whether the problem may be in the
governance by the Council or
in the management of the university or
both. It is appropriate to appoint an administrator for the period
specified in the appointment
to take over either the governance, or
the management, or both. In conclusion he argued that the fact that
the Act provides that
ordinarily governance should vest in Council
and management should vest in other structures and functionaries does
not mean that
both functions cannot be taken over by a single
administrator. This is particularly so in the light of the fact that
the appointment
of an administrator arises where there is effectively
a crisis within the university and it is appropriate to appoint an
independent
outsider for a specified period to take over all
functions which are problematic or have been undermined, such as is
the factual
situation at the CUT.
[29] I have considered
the arguments of both counsel and the case law referred to. I am
convinced that, with particular reference
to the jurisdictional facts
set out in section 41A(1), the legislature did not intend that the
Minister could only act if one of
the following is shown to exist:
(a) financial or other
maladministration of a serious nature;
(b) the serious
undermining of the effective functioning of a public higher education
institution.
Surely it is not
unforeseeable that where financial or other maladministration is
found to exist, there may also be proof of a serious
undermining of
the effective functioning of the institution. These may even tend to
go hand in hand. I have no doubt that the Minister
may act in either
case, or in the event of both situations being shown to exist. It is
incomprehensible that the Minister would
be unable to act where a
university is totally dysfunctional, its governance and management
seriously undermined and fraud and
other financial maladministration
are rife. Such an interpretation would have the effect that the more
serious the situation at
a university, the less (or no) power is
granted to the Minister to act. Such interpretation will lead to an
absurdity and could
never have been the intention of the legislature.
[30] Furthermore and
although it is laudable that governance and management should be kept
separate, it is clear that the legislature
intended the Minister to
appoint a person as administrator, if practicable, to take over the
authority of the Council as well as
the management of the institution
to enable him or her to perform the functions relating to governance
and management for a period
not exceeding two years. If it was
intended to, in such circumstances, to keep governance and management
separate, the legislature
would have provided for the appointment of
two administrators, one to deal with governance and the other to deal
with management
in the event where both have been shown to be in
disarray. In the event of a finding that the jurisdictional facts set
out in section
41A(1) have been met, the Minister’s appointment
of one administrator could not be regarded
ultra vires
or
contrary to the principle of legality. I deal with those issues
infra.
THE ATTACK ON THE
MINISTER’S DECISION BASED ON PROCEDURAL GROUNDS
[31] The Minister has
admitted that the requirements of procedural fairness and the
principles of the
Promotion of Administrative Justice Act 3 of 2000
should apply as his conduct constitutes administrative action.
Therefore, and insofar as the parties are
ad idem
in this
regard, I shall accept for purposes hereof that the Council is
entitled to attack the Minister’s decision on the
procedural
grounds contained in the founding affidavit of its application. I
must point out that the Council is of the view that
the Minister’s
decision can also be reviewed and set aside based on the principle of
legality.
[32] It is the Council’s
case that there are three main grounds or procedural flaws
necessitating the Minister’s decision
to be reviewed and set
aside. These relate to
(a) the assessor’s
report;
(b) the consultative
process required in section in 41A(1) of the Act;
(c) the Minister’s
decision to appoint the administrator.
The alleged flaws
relating to the assessor’s report are in essence that the
report is vague insofar as no findings were made
pertaining to the
current Council, the report was sent to Council without the essential
annexures thereto, the report was published
prior to Council being
provided with a copy thereof and insufficient time was provided to it
to prepare a response thereto. It
is also stated as part of this
attack that the Minister prejudged the stability of CUT. Referring to
the consultative process it
is Council’s case that it was not
provided a fair and adequate opportunity to present a response to the
DG, that there was
no basis for constructive debate insofar as the DG
had, prior to the meeting with Council, already come to a conclusion
that the
assessor’s findings and recommendations were correct.
Council also complains that it did not have sufficient time to
prepare
for the meeting and that the fatal difficulty for the
Minister is that the required consultative process with Council
“clearly
did not mesh with the decision-making process.”
There was, according to the record of decision, no communication or
memorandum
as to what transpired at the meeting with Council which
was passed between the DG and the Minister. The alleged flaws
relating
to the Minister’s decision to appoint an administrator
are that he failed to take the decision himself, that he failed to
provide reasons for his decision and that the record of decision
demonstrates that no attention was given to any less drastic means
of
intervention. Council’s factual allegations pertaining to
procedural unfairness have been dealt with by the DG in the
answering
affidavit. The Minister’s supporting affidavit was not attached
to the answering affidavit in the Council’s
application and an
issue was made thereof in Mr Gauntlett’s heads of argument.
However, during argument it appeared that
the affidavit was by reason
of oversight not attached and it was then handed up with the consent
of Mr Gauntlett. Having in mind
the
PLASCON-EVANS
-rule
and insofar as material factual disputes appear from the papers, the
Minister’s version should be accepted, unless it
can be found
to be untenable or far-fetched.
[33]
There is no express requirement that the Minister had to provide the
report of Prof Smith to Council before publication thereof
although
such requirement may be inferred from a reading of section 47(2) of
the Act. The main thrust of the report is not so vague
that it was
not reasonably possible to respond thereto. The Minister duly
delegated the DG to attend the consultation with the
Council as he
was entitled to do. Council’s attack on the consultation
process might have held water if the Minister made
his decision
directly after the meeting.
In casu
Council was given much more opportunity than could
have been achieved by any meaningful consultation of several hours.
It provided
the Minister with a 71 page written response and three
bundles with supporting documents which contained over 1000 pages.
This
also confirms that although a relatively short time was given to
respond, this cannot be a bone of contention anymore. The Minister
took the decision to appoint an administrator and although he did not
provide any independent reasons at the time his decision
was made it
is apparent from the decision that he accepted the reasoning,
findings and recommendations of Prof Smith. It is a fact
that the
Minister did not consider,
ex facie
the record of decision, less drastic means of
intervention.
[34]
In support of his attack that the Minister failed to provide reasons
for his decision reliance was placed on the full bench
judgment in
WESSELS v MINISTER FOR JUSTICE AND CONSTITUTIONAL
DEVELOPMENT AND OTHERS
2010 (1) SA 128
(GNP) at 135 F –
139 C. That judgment is distinguishable from the situation
in
casu
. In that case the Minister failed to provide reasons for the
appointment of a Regional Court President. She resisted the review
application on the basis that her decision did not constitute
administrative action for purposes of PAJA and that no reasons were
required as she exercised her executive power in the appointment. In
an attempt to justify the Minister’s failure to provide
reasons, her counsel submitted that the Magistrates Commission’s
recommendation qualified as the reasons for her decision.
This
submission was not persisted with during oral argument and the court
correctly found that it was devoid of any substance.
In casu
the Minister stated that he considered the report of Prof Smith, the
Council’s response thereto and an internal memorandum
and
confirmed that he was satisfied with the findings and recommendations
of Prof Smith. Those should be seen as his reasons as
confirmed under
oath. Whether the decision should stand shall be considered later. In
conclusion therefore, I find that no procedural
unfairness, as
alleged, was proven.
[35] Even if I am wrong
in my finding that there was no procedural unfairness, it is apparent
from the papers that the Council was
not prejudiced as a result of
the process followed. The decision-maker who opposes an application
for the review of his decision
must show that the failure to comply
with procedural fairness caused no prejudice. See
GROVE PRIMARY
SCHOOL v MINISTER OF EDUCATION AND OTHERS
1997 (4) SA 982
(CPD) at 996 G – 997 H and the following quotation from
RAJAH
& RAJAH (PTY) LTD AND OTHERS v VENTERSDORP MUNICIPALITY AND
OTHERS
1961 (4) SA 402
(A):
“
(t)he Court
will not interfere on review with the decision of a
quasi-
judicial
tribunal where there has been an irregularity, if satisfied that
the complaining party has suffered no prejudice.”
(from the
headnote)
See also J R de Ville:
Judicial Review of Administrative Action in
South Africa
, Revised 1st ed, p 317 and
further.
ATTACK ON THE
MINISTER’S DECISION BASED ON SUBSTANTIVE GROUNDS
[36] The Council’s
challenge is based on four independent reasons indicating that the
decision was
ultra vires
section 41A(1), i.e.
(a) the Minister had no
power to dissolve the Council;
(b) the Minister was not
empowered to appoint an administrator to simultaneously take over the
governance function of the Council
and management of the CUT;
(c) section 41A(1) does
not authorise the rewriting of institutional statutes by an
administrator appointed in terms of the section;
(d) the jurisdictional
facts contained in section 41A(1) have not be met.
In essence a fifth reason
is also relied upon as it is again emphasised that no reasons were
provided by the Minister for his decision.
[37] The Constitutional
Court has recognised the need to show an appropriate level of
judicial deference to administrative decisions
where the power to
take such decisions have been vested in the executive and where
officials such as the Minister
in casu
have not only the
function, but also the responsibility and the knowledge of the
relevant field, to undertake those functions.
The courts can and will
intervene only if there has been a transgression of the applicable
legal requirements. It is apposite to
quote the following dictum of
O’Regan J, writing for the full court in
BATO STAR
FISHING (PTY) LTD v MINISTER OF ENVIRONMENTAL AFFAIRS AND OTHERS
[2004] ZACC 15
;
2004 (4) SA 490
(CC) at para
[45]
p 513:
“
What
will constitute a reasonable decision will depend on the
circumstances of each case, much as what will constitute a
fair procedure
will depend on the circumstances of each case.
Factors relevant to determining whether a decision is reasonable or
not will include
the nature of the decision, the identity and
expertise of the decision-maker, the range of factors relevant to the
decision, the
reasons given for the decision, the nature of the
competing interests involved and the impact of the decision on
the lives
and well-being of those affected. Although the review
functions of the Court now have a substantive as well as a procedural
ingredient,
the distinction between appeals and reviews continues to
be significant. The Court should take care not to usurp the functions
of administrative agencies. Its task is to ensure that the decisions
taken by administrative agencies fall within the bounds of
reasonableness as required by the Constitution.”
In the following
paragraph [para 46] the Constitutional Court agreed with the remarks
of Schutz JA in the court
a quo
(the SCA) that judicial
deference is called for in reviewing the decisions of administrative
agencies.
[38] Mr Gauntlett has
made a serious issue of the fact that the DG has on numerous
occasions referred to the fact that the Council
was dissolved. Mr
Kennedy, on behalf of the Minister, also contended that insofar as
the Minister had validly appointed the administrator
to take over the
authority of the Council it necessarily followed that Council had
been dissolved. As submitted, once the Council
was deprived of its
authority, there was no basis or purpose for its continued existence.
This submission appears to be debatable
especially insofar as the
administrator has been appointed for a limited period to take over
the Council’s governance functions
temporarily only. Section
41A(1) does not provide for the dissolution of a university council.
The Minister in his decision as
published in the Government Gazette
did not expressly dissolve Council, but the Administrator was
authorised to manage “the
appointment of new Council members,
including the review and establishment of the necessary Council
sub-committees.” It is
apparent that he is of the view that he
could validly dissolve the Council. The Minister has no power to
dissolve. If the sub-section
is compared with sub-section 41A(3), a
stark contrast is apparent. When a council is deemed to have
resigned, an administrator
may be appointed to
inter alia
ensure that a new council is constituted. This is not the situation
in casu.
Mr Kennedy argued that insofar as the consequences of
the Minister’s decision were construed incorrectly by the
Minister,
the DG and even by him, it should not follow that the
Minister’s decision to appoint an administrator as set out in
the published
Gazette necessarily had to be set aside on review. As
mentioned the decision provides for the appointment of councillors by
the
administrator and this lends support for a viewpoint that the
Minister had Council’s dissolution in mind. He does not possess
such authority and he has exceeded his powers.
[39] The next substantive
ground relied upon by the Council is that no simultaneous take-over
of governance and management powers
is allowed. I accept that if the
Act in its entirety is considered there might be sufficient reason to
conclude that governance
and management powers should not be merged
in the hands of one entity indefinitely. I have dealt with section
41A(1)
supra
and indicated how I interpret the section. It
must also be taken into consideration, which I do, that the
appointment of an administrator
is for a limited period only in order
to apply the required remedial measures. If it was the intention of
the legislature that
the Minister was empowered to appoint two
administrators, the one for taking over the governance powers of
council and the other
to deal with management, it would have been
stated clearly. In my view it is unnecessary to provide for the
appointment of two
administrators even if problems were detected
pertaining to both governance and management. Surely an administrator
taking over
governance should be fully equipped to ensure that
management functions are improved if and when so required by making
use of those
senior managers within a university that are willing and
able to co-operate. As submitted by Mr Kennedy, in the event of a
crisis
within a university it is appropriate to appoint an
independent outsider for a specified period to take over all the
functions
which are problematic or have been undermined.
[40] The next point
raised on behalf of the Council is that neither section 41A(1), nor
any other provision of the Act authorises
the Minister to rewrite the
institutional statute of a university. That power is vested in the
council of the university in terms
of section 32 of the Act. The
statute has to be approved by the Minister, but he is not entitled to
make a statute on an
ad hoc
or
ad hominem
basis as he
purports to do by granting such authority to the administrator. Mr
Kennedy argued that the administrator who is given
all Council’s
powers can exercise its authority,
inter alia
to rewrite the
institutional statute. He also argued that should it be found that
the Minister exceeded his power to authorise
the administrator to
adopt or to draft a new statute, this cannot be a knockout blow for
the remainder of the Minister’s
decision and at best for the
Council the fourth decision could be set aside. However, he argued
that there is no basis to find
that the Minister had exceeded his
powers in this regard, specifically referring to the council’s
authority in section 32
which has now been taken over by the
administrator in terms of the Minister’s decision. It is on
record that the Minister
as recently as 2010 approved the statute
adopted by the Council. There might be reasons for amending the
statute with reference
to the findings of Prof Smith and I am
prepared to accept that the express authority granted to the
administrator cannot be faulted
if I ultimately find in favour of the
Minister.
[41] Universities in our
country have a significant role to play and it is desirable that they
enjoy freedom and autonomy in their
relationship with the State
within the context of public accountability. The Minister and his
department must accept the autonomy
of universities and should not be
allowed to intervene in the affairs of a university unless the
jurisdictional facts set out in
section 41A(1) have been shown to
exist. There is no doubt that the step taken by the Minister is a
drastic one.
[42]
No similar application has been considered to the best of my
knowledge. However there is close resemblance with the factual
situation in
MNQUMA LOCAL
MUNICIPALITY AND ANOTHER v PREMIER OF THE EASTERN CAPE AND OTHERS
[2012] JOL 28311
(ECB), a judgment by Van Zyl J dated 5 August 2009.
In that case the municipal council was dissolved as a result of
alleged maladministration
within the local municipality. The court
found that the jurisdictional facts applicable to the exercise of a
provincial executive’s
power were absent and as a consequence
it acted
ultra vires
in dissolving the municipal council. Relying on Corbett J (as he then
was) for authority – see
SOUTH AFRICAN DEFENCE AND
AID FUND AND ANOTHER v MINISTER OF JUSTICE
1967 (1) SA 31
(C)
at 34 A – 35 D, the court found that the existence of the
jurisdictional facts in the subsection to be applied, was not
left to
the discretion of the provincial executive, but was an objective fact
which was independently triable by the court.
[43] Harms JA stated the
difference between the pre-constitutional era and the present era
pertaining to the adjudication of decisions
by functionaries as
follows:
“
In
this regard there is a clear break from the approach adopted in
matters such as security legislation during the pre-Constitutional
era. There, the jurisdictional fact was quite often the opinion of
one or other functionary and, provided the functionary held
the
opinion, courts were rather hamstrung. Here the jurisdictional fact
is not someone's opinion but an objective fact,..... Whether
it is
appropriate can be tested judicially. If the fee does not pass
this threshold requirement, the regulation is
pro
tanto
void
because
it has no legal basis or justification
.
(emphasis
added)
See
PHARMACEUTICAL
SOCIETY OF SOUTH AFRICA AND OTHERS v TSHABALALA-MSIMANG AND ANOTHER
NNO;
NEW CLICKS SOUTH AFRICA (PTY) LTD v MINISTER OF HEALTH AND
ANOTHER
2005 (3) SA 238
(SCA) para [75].
[44]
It
is now trite that every exercise of public power is expected to be
justified. See
DEMOCRATIC ALLIANCE v PRESIDENT OF THE
REPUBLIC OF SOUTH AFRICA AND OTHERS
2012 (1) SA 417
(SCA)
and
the following dictum at para [67] by Navsa JA, writing for the full
bench:
“
Professor
Mureinik explained (in the context of the interim Constitution) the
fundamental change brought about because of a shift
from a 'culture
of authority' to a 'culture of justification'. He described it as —
'a culture in which every exercise of
power is expected to be justified; in which the leadership given by
government rests on the
cogency of the case offered in defence of its
decisions, not the fear inspired by the force at its command'.”
See also
KOYABE AND
OTHERS v MINISTER FOR HOME AFFAIRS AND OTHERS (LAWYERS FOR HUMAN
RIGHTS AS AMICUS CURIAE)
2010 (4) SA 327
(CC) at paras [63]
and [64] p 350. It is expected of the decisionmaker to explain his
decision in such a way that the aggrieved
person would be able to
understand why the decision went against him although he might not
agree therewith. See
MINISTER OF ENVIRONMENTAL AFFAIRS AND
TOURISM AND OTHERS v PHAMBILI FISHERIES (PTY) LTD;
MINISTER OF
ENVIRONMENTAL AFFAIRS AND TOURISM AND OTHERS v BATO STAR FISHING
(PTY) LTD
2003 (6) SA 407
(SCA) at par [40] p 428. It cannot
be gainsaid that the Minister could have spelt out the reasons for
his decision in detail.
Although in a different
context, it is apposite to refer to
INDEPENDENT
NEWSPAPERS (PTY) LTD v MINISTER FOR INTELLIGENCE SERVICES: IN RE
MASETLHA v PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA
AND ANOTHER
2008 (5) SA 31
(CC)
at par [54]
PRESIDENT
OF THE REPUBLIC OF SOUTH AFRICA AND OTHERS v M & G MEDIA LTD
2012 (2) SA 50
(CC)
at par [24] p 60. The mere
ipse dixit
of
the functionary that he or she has duly applied his or her mind in
order to come to a decision is not sufficient.
The
Constitutional Court in
SIDUMO
AND ANOTHER v RUSTENBURG PLATINUM MINES LTD AND OTHERS
2008 (2) SA
24
(CC)
at
p 59 dealt with the standard of review and indicated that the review
for reasonableness as explained by Prof. Hoexter tend to
blur the
distinction between appeal and review. The court took cognisance of
Hoexter’s statement that the danger lies not
in careful
scrutiny, but in “judicial overzealousness in setting aside
administrative decisions that do not coincide with
the judge’s
own opinions”. In accepting the standard adopted in
BATO
STAR
loc
cit
to
be correct, it found that the test is to be applied to administrative
action as well.
Moseneke DCJ stated the
following pertaining to the power of an HOD in accordance with the SA
Schools Act:
“
The power to
intervene and revoke a function of a school governing body is
authorised by the statute itself, provided it is done
on reasonable
grounds and in order to pursue a legitimate purpose.”
See
HEAD OF DEPARTMENT, MPUMALANGA DEPARTMENT OF EDUCATION
AND ANOTHER v HOËRSKOOL ERMELO AND ANOTHER
2010 (2) SA
415
(CC)
at para [68] p 440. Confirming that the
School’s Act devolves power and decision-making on the school’s
medium of instruction
to a school governing body, the court found
that it would
“
be
wrong to construe the devolution of power as absolute and
impervious to executive intervention when the governing body
exercises that power unreasonably and at odds with the constitutional
warranties to receive basic education and to be taught in
a language
of choice.”
See para [78] p 443.
[45] Prof Smith’s
report was accepted by the Minister and it is recorded as follows in
the Minister’s appointment of
Prof Ridge as gazetted in the
Government Gazette of 20 June 2012
“
The Minister
has received and considered the report of the Independent Assessor.
It is evident in the report that there are serious
problems in the
governance and management of the University, which are undermining
the effective functioning of the university.”
This appears to be a
recitation of section 41A(1). The Council filed a 71 page report and
three lever arch files of documents consisting
of over a 1000 pages
in support of its submissions in reply to Prof Smith’s report.
Neither in coming to his conclusion,
nor in any of the affidavits
before me were the factual averments made on behalf of the CUT
challenged in any manner, save for
the issues that I shall deal with
infra
. In fact, an impressive response was tendered to the
assessor’s report and I would have expected the Minister to
deal with
these allegations and documentary proof provided prior to
making his decision or at the very least in his opposition of the
Council’s
application. The only reference to a consideration
and analysis of the Council’s representations appears in a
document compiled
by Pearl Whittle, an employee in the Minister’s
Department and I quote the following
“
11 The
document submitted by Council and its annexures submitted on 1 June
2012, have been analysed by the University Branch. The
response of
Council to the Assessor’s report does not address the substance
of the key findings of the Independent Assessor.
These include the
lack of evidence and/or reasons as to why the KPMG report could not
be availed to the Minister of Higher Education
and Training, human
resourse issues including high staff turnover and disciplinary
processes, alleged abuse of power and victimisation
by the
Vice-Chancellor and Deputy Vice-Chancellor (Institutional Planning,
Partnerships and Communication) and non-adherence to
procurement and
finance policies (annexure “D”).”
The main theme of the
Minister as set out in the affidavits before me is that the anonymous
letter and the allegations contained
therein were responded to
inadequately by the Council and that leaving the matter to be dealt
with by Council was not productive
and it would not achieve within a
reasonable time and at an adequate level an acceptable and meaningful
solution. As a direct consequence
of the vagueness in the Minister’s
affidavits, Mr Kennedy in his written heads of argument as well as in
oral argument was
equally vague in this regard.
[46] The issues raised by
Prof Smith that merit closer attention are firstly, the manner in
which the anonymous letter was dealt
with, the obtaining of the KPMG
and Lubbe reports and the responses thereto, secondly, the manner in
which the Vice-Chancellor
was re-appointed in circumstances where he
was accused of
inter alia
maladministration and improper
management and thirdly the financial policies and
inter alia
the
decrease in reserves. It appears that the KPMG report was available
in the CUT offices when Prof Smith did his investigation.
I accept
that Me Moss, an employee in the office of the CUT Registrar and
Secretary of the Council provided a copy thereof to Me
De Klerk of
the Department who assisted Prof Smith. I take cognisance of Prof
Smith’s version that he was informed in writing
by Adv Lubbe
that both the KPMG report as well as his first report were delivered
personally to the office of the Registrar in
November 2011. This
report was neither sent to the Minister prior to May 2012, nor tabled
at a Council meeting before then. Certain
individuals might be
accused of trying to conceal the contents thereof, but to blame
Council of misleading the Minister or for
improper governance is
taking it too far. Prof Smith’s finding that the anonymous
letter was handled “extremely inadequately
and
unsatisfactorily” was duly dealt with by the Council. KPMG
could not complete its mandate notwithstanding pressure from
Council
and empty promises to file a report. Adv Lubbe was specifically
mandated to take over from KPMG and it is clear from his
first report
that he was in possession of the KPMG report which was finalised
after its mandate was terminated. He reported that
he considered that
report. Immediately after the second Lubbe report of 21 January 2012
the Minister intervened. When the Council
was approached by the
Minister it offered to appoint a commission of inquiry headed by a
retired Judge to do a proper investigation.
The Minister declined. In
his first report of 20 October 2011 Adv Lubbe also confirmed that Me
Snyders of KPMG reported to him
that there was merit in the majority
of the allegations contained in the anonymous letter. This was based
on consultations with
unidentified people and in some instances on
documentary proof. I am of the view that too much was made of the
failure to present
the Minister with the KPMG report earlier. What is
stated therein is confirmed in Adv Lubbe’s report and when the
second
Lubbe report was submitted the Minister started to intervene.
Although Adv Lubbe confirmed that there was clear documentary proof
consisting of official CUT documentation supporting most of the merit
findings, he significantly also stated as follows:
“
It must
however immediately be pointed out that the findings that were made
are not final, not necessarily based on
prima
facie
evidence and the evidence relied upon have not been tested to
establish the truth thereof. Also the persons implicated have not
had
the opportunity to respond thereto.”
The “clear
documentary proof” was not placed before me and it is
specifically not contained in Prof Smith’s report
to the
Minister.
[47] I have referred to
the fact that the Vice-Chancellor was appointed by the Council for a
further term as his previous term expired
at the end of 2011. I have
considered the Council and its EXCO minutes, as well as the quarterly
reports of 2011. I noticed that
the terms and conditions of the
Vice-Chancellor’s further appointment and in particular the
remuneration to be offered to
him were discussed several times. I
could not find any discussion by council or its EXCO to the effect
that the re-appointment
of the Vice-Chancellor should be put on hold
pending finalisation of the investigations. That may be significant,
but
ex post facto
we now know that nothing came from the
allegations of fraud and serious maladministration and the alleged
documentary proof thereof.
The Vice-Chancellor may be regarded as
having an autocratic management style, too assertive and even
arrogant if some of his remarks
in the documentation before me are
considered. His written presentation to Adv Lubbe is one example.
However the Minister has high
regard for the person of the
Vice-Chancellor and it is apparent that the CUT is a university that
is held in high esteem, not only
in this country, but also overseas.
The Minister’s complaint in respect of the re-appointment of
the Vice-Chancellor has
nothing to do with him as a suitable person,
but the process followed. His reliance on Prof Smith’s
so-called finding is
misplaced. A proper approach in line with the
CUT statute was followed and the professor merely mentioned that he
would have expected
Council to refer the issue to
inter alia
the
Senate before a decision was taken.
One will always find in
big institutions, especially where a restructuring process was or is
being undertaken, that some employees
or ex-employees are
dissatisfied with the way they are treated or have been treated in
the past. It appears from both the KPMG
and Lubbe reports, as well as
Prof Smith’s report, that some of the people interviewed feared
retribution and/or victimisation
and Prof Smith even referred to a
“culture of fear” at the CUT. This should be addressed by
Council and this judgment
should not be seen as encouragement that a
solution does not have to be found to reduce or eliminate such fear,
but there was no
justification for intervention in this regard.
[48] Contrary to the
tentative findings and even less than
prima facie
evidence by
faceless complainants set out in the KPMG, Lubbe and Prof Smith’s
reports (the last relying on Mr Bold’s
analysis), the Council
dealt comprehensibly with the allegations. Prof Smith used words such
as “seems” and “seemingly”
several times in
order to come to his conclusions. This is indicative of uncertainty
and perception rather than reality. No positive
and clear finding was
made, save that the KPMG report was in possession of the CUT.
Pertaining to financial matters the CUT reserves
have trebled
recently and its reserves have not decreased as alleged. It has
received clean audits for several years in a row.
The Human Resource
issues, specifically pertaining to disciplinary hearings and high
staff turnover have been explained satisfactorily
by the Council such
as is the case in respect of all other perceptions raised. Even if it
is accepted that there are problems that
need to be ironed out, the
jurisdictional facts of section 41A(1) have not been met and those
can be solved without the Minister’s
intervention in terms of
the section. One does not need a sledgehammer to kill a mosquito. The
reasonable decision-maker would
have expected clear evidence of
financial or other maladministration of a serious nature and/or
serious undermining of the effective
functioning of the CUT before a
drastic decision such as
in casu
is taken
.
No such
proof was placed before the Minister. I find therefore that no
reasonable decision-maker could have come to the decision
arrived at
by the Minister. The jurisdictional facts of section 41A(1) have not
been met. In my view he pre-judged the issue as
he made it clear,
even before the Council’s response was received, that the CUT
should be stabilised. Also, when the Council’s
response was
eventually considered during the afternoon of 18 June 2012 as
alleged, he did not indicate why and on what basis he
accepted Prof
Smith’s version notwithstanding the conflicting reports. When
he was asked to deal with the issue on the 18
th
June, he
was handed pre-printed letters to Dr Seane, the Vice-Chancellor and
Prof Ridge informing them of his decision as well
as the pre-printed
decision to be published in the Government Gazette. He signed these
on that day. This may be indicative of either
a preconceived opinion,
or his rubberstamping of someone else’s decision. However it is
not necessary to base my judgment
on such foundation.
[49] Consequently, I am
of the view that the Council’s application, seeking the review
and setting aside of the Minister’s
decision, gazetted in the
Government Gazette of 20 June 2012, should succeed. No sufficient
justification exists to set aside Prof
Smith’s report or to
grant an interdict as contained in prayer (e) and I do not intend to
grant such orders.
THE MINISTER’S
APPLICATION
[50] As a result of my
conclusion
supra
the declaratory orders sought by the Minister
in prayers 2, 3 and 4 of his Notice of Motion cannot be granted.
[51] The following is
applicable to prayer 5. It is the Council’s case that funds
were transferred to the account of its attorneys
to provide for legal
costs prior to the Minister’s decision. No funds were
transferred after the Minister’s decision.
It is also clear
from a reading of the papers that the Minister was fully aware of the
fact that the Council intended to bring
an urgent application to have
his decision set aside on review. Bearing in mind the university
recess there was really no urgency
to ensure that Prof Ridge takes
over control pending institution of urgent court proceedings. I do
not condone the tactics employed
to prevent Prof Ridge from taking
over control at the CUT. It would be the proper approach to bring an
urgent application to interdict
Prof Ridge from taking over pending
the review application to be instituted. However that would incur
further costs. Both parties
are to be blamed for the inconvenience
caused to Prof Ridge, but in the light of the decision to which I
have arrived in respect
of the review application, I am not prepared
to grant any order in this regard. In the light of the outcome of the
review application
prayers 6, 7 and 8 of the Minister’s
application should also fail.
COSTS
[52] There is no reason
why costs should not follow the event. Both parties have employed two
counsel and the novelty of the matter
warranted the employment of two
counsel.
ORDERS
[53] The following orders
are made:
In respect of
application 2786/2012:
The decision of the
Minister of Higher Education and Training dated 18 June 2012
published in the Government Gazette of 20 June
2012 under GN No 476
appointing fourth respondent as administrator to the Central
University of Technology is set aside.
First respondent is
ordered to pay applicant’s costs, including the costs of two
counsel.
In respect of
application number 2776/2012:
53.3 The application is
dismissed with costs, including the costs of two counsel.
_____________
J.P. DAFFUE, J
On behalf of:
Applicants in case no
2776/12: Adv P Kennedy SC
Respondents in case
no2786/12: Adv N Mahlangu Instructed by:
State Attorney
BLOEMFONTEIN
On behalf of:
Respondent in case no
2776/12: Adv J J Gauntlett SC
Applicant in case no
2786/12: Adv F B Pelser
Instructed by:
Phatshoane Henney Inc
BLOEMFONTEIN
/sp