About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Makhanda
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Makhanda
>>
2024
>>
[2024] ZAECMKHC 95
|
|
Yabo v Rhodes University and Another (1895/2024) [2024] ZAECMKHC 95 (22 August 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MAKHANDA
Not
Reportable
Case
No: 1895/2024
In
the matter between:
MZIWAMADODA
SHEDRICK YABO
APPLICANT
And
RHODES
UNIVERSITY
FIRST RESPONDENT
RAEESA
ASMAL
SECOND RESPONDENT
JUDGMENT
MULLINS
AJ:
[1]
On 27 October 2023 the Applicant, a student at the First Respondent’s
university, was found guilty at a disciplinary enquiry
of having
sexually assaulted a fellow student. The enquiry, which was conducted
by Second Respondent (who plays no part in these
proceedings),
excluded (expelled) the Applicant from the university for a period of
three years.
[2]
While the details of the charges and the proceedings of the
disciplinary enquiry are of no relevance to this application, the
subsequent developments are. Following the finding the Applicant
launched no fewer than three urgent applications in this Court,
all
under the same case number. The first application was opposed and was
struck off the roll and subsequently withdrawn. The second
application was similarly opposed and struck off the roll. The third
application achieved some success and the order granted in
that
matter is central to this application, in which the First Respondent
is the applicant and the Applicant the respondent. (I
will continue
to refer to the parties as they have been cited on the papers).
[3]
On 10 July 2024 Malusi J granted an order, the relevant portions of
which read as follows:
“
2. A
rule nisi
is issued pending the finalisation of part B of the application:
…
2.3 The respondent is
directed to admit the applicant as a student for the 2024 academic
year in accordance with the first respondent’s
requirements and
applicable waivers pending the finalisation of part B.
2.3.1 The applicant and
first respondent are directed to convene a formal meeting within 10
(ten) days of this order to agree on
the academic schedule and
residence of the applicant for the remainder of the 2024 academic
year. In the event of no agreement
is reached, each party is granted
leave to approach the court on [an] urgent basis solely on this
issue.
…
.”
[4]
I pause to mention that the reference to Part B is an application by
the Applicant to review the decision of the disciplinary
enquiry.
[5]
Exactly what is meant by a “formal meeting” is not
stated, but from what occurred thereafter (which dealt with below)
it
appears that the parties understood what was required of them.
[6]
As a result of this order the following events, which are either
common cause or not seriously in dispute, occurred:
(a) On 11 July 2024 the
Applicant sent an email to a Ms Smailes, the director in the office
of the Vice Chancellor, stating that
he would like to see her on 15
July 2024 in order to arrange the formal meeting;
(b) On 12 July 2020 the
First Respondent’s attorney replied that the First Respondent
needed to consult with its legal representatives
to consider the
court order, but that:
“
The University
will revert with a response to your request within the timeframe
allocated in the Court Order.”
(c) Instead of waiting
for a further response from the First Respondent, the Applicant took
it upon himself to approach the student
funding officer, a Mr
Walters, for enrolment as a student. Based on information in his
possession Mr Walters was satisfied that
the Applicant’s
finances were in order to be admitted as a student, but that he did
not qualify for admission to residence.
He duly enrolled him;
(d) The Applicant then
approached the manager of the student bureau, Ms Wicks, who is
responsible for accommodating students in
residence. The Applicant
informed her that he had been financially cleared to register both
academically and for a place in residence.
Ms Wicks checked her
“
system”
(her expression) which confirmed what she
had been informed by the Applicant and duly placed him in a
residence. She adds that
had the Applicant informed her that he had
only been cleared for academic admission she would not have allocated
him a place in
residence;
(e) On discovering these
events, on 19 July 2020 the First Respondent’s attorney wrote
to the Applicant setting out the history
of the matter, in particular
that paragraph 2.3.1 of the Court Order had not been complied with.
It was also pointed out that the
Applicant was still in arrears in
respect of his 2023 residence fees. The Applicant was given until 23
July 2024 to advise the
First Respondent how he was going to pay the
arrears;
(f) The Applicant failed
to respond to this demand and on 12 August 2024 this application was
launched on an urgent basis for an
order that he vacate the residence
within five days.
[7]
The Applicant, who acted in person, opposed the application, which
opposition is dealt with below.
[8]
The Applicant alleges that:
(a) The First Respondent
had failed to exhaust its internal remedies in that it had failed to
arrange the formal meeting as provided
for in the Court Order ;
(b) The matter was not
urgent as this was self-created due to the fact that the Applicant
had failed to arrange the formal meeting;
(c) The First
Respondent’s interpretation of paragraph 2.3.1 of the Court
Order was incorrect (although how his interpretation
differs is not
clear) ;
(d) Finally, he disputes
that he is in arrears with his residence fees and states that he had
made arrangements for the payment
thereof going forward.
[9]
In reply the First Respondent attaches the outcome of the
disciplinary appeal finding, which was handed down on 13 August
2024.,
i.e., after this application had been launched. The
Applicant’s internal appeal was dismissed. As this has no
bearing on
the relief claimed in this application I will have had no
regard thereto.
[10]
Significantly, in reply, the First Respondent states that the
university had decided not to challenge the Applicant’s
academic enrolment, despite the result of the appeal. Thus, the only
issue is whether the Applicant is entitled to remain in residence.
[11]
The Applicant’s allegation that the First Respondent had failed
to exhaust internal remedies is without merit. In approaching
the
First Respondent’s officials the Applicant was himself in
breach of the Court Order and had “
thwarted”
(the
First Respondent’s expression) the very purpose for which the
meeting had been ordered. His own email, dated 11 July
2024,
acknowledges that a formal meeting was a prerequisite for his
admission both academically and for a place in residence.
[12]
There is also no merit in the Applicant’s challenge to urgency.
The parties had 10 days in which to arrange the formal
meeting and
when the Applicant unilaterally took the steps described above, the
time period had not lapsed. The First Respondent
gave the Applicant
an opportunity to vacate the residence, which he failed to do. Only
then was the application launched. The harm
that the First Respondent
alleges is that, firstly, no arrangements have been made for the
payment of the residence fees and, secondly,
given the history of the
matter there is a legitimate fear for the safety of female students.
The urgency is accordingly on-going.
[13]
I am not called upon to decide whether or not the Applicant should be
allowed to take up residence and, if so, the conditions
thereof. That
is for the parties to deal with at the formal meeting which, as a
result of the Applicant’s actions, has not
yet taken place. The
Applicant may well have good arguments as to why he should be allowed
to be admitted to residence and, if
those arguments are rejected, he
has the right in accordance with paragraph 2.3.1 of the Court Order
to approach this Court on
an urgent basis for the appropriate relief.
[14]
All I am called upon to decide is whether the Applicant was entitled
to be admitted to residence in the circumstances described
above.
[15]
The First Respondent alleges that the Applicant misled its officials
in order to gain academic admission (which is no longer
in issue) and
for a place in residence. The Applicant denies this and submits that
the officials should know what they were doing
and would not have
made a mistake. I do not have to decide this dispute because the fact
of the matter is that, even if he does
qualify for a place in
residence, the First Respondent may (I put it no higher than that)
have other valid reasons for not allowing
him into residence. As I
understand it that was the purpose of the formal meeting ordered by
Malusi J, which meeting, it is not
in dispute, the Applicant
side-stepped.
[16]
The Applicant submitted that if I grant the relief he will have
nowhere to stay and this will, in effect, put an end to his
academic
career. One assumes that this issue will feature in the formal
meeting which still has to take place. In any event, the
order I
intend to make hopefully ameliorates this problem.
[17]
I am satisfied that the First Respondent has made out a case for the
relief it seeks, with one amendment: I intend to give
the Applicant
10 days from the date of this order in which to vacate the residence,
which co-incides with the period in which the
formal meeting is to
take place.
[18]
In so far as costs are concerned, the Applicant is the architect of
his own misfortune. The 10 days in which the formal meeting
was to
have taken place had not lapsed when he unilaterally approached the
First Respondent’s officials in the manner described
above. In
the circumstances the First Respondent is justified in having brought
this application and costs should follow the result.
[19]
I make the following order:
1. The Applicant is
directed to vacate his residence room at Winchester House Residence,
Rhodes University within 10 days of the
granting of this order.
2. The Applicant is
ordered to pay the costs of the application, such as cost to be on
scale A.
NJ
MULLINS
ACTING
JUDGE OF THE HIGH COURT
Appearances:
First
Respondent:
Adv
Somandi
Huxtable
Attorneys
Applicant:
In
Person
Heard
on
21
August 2024
Delivered
on
22
August 2024