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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MAKHANDA)
CASE NO.: 2489 A/2024
In the matter between:
MZIWAMADODA SHEDRICK YABO APPLICANT
and
RHODES UNIVERSITY 1ST RESPONDENT
RAE ESA ASMAL 2ND RESPONDENT
JUDGMENT
ROBERSON J:
Introduction
[1] The applicant has applied for a rule nisi to the effect that the first respondent
(Rhodes) should show cause why it should not be declared to be in contempt
of an order issued by Malusi J on 10 July 2024 , and that a sanction of a fine
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and conditionally suspended imprisonment be imposed on Ms Susan
Smailes, the deponent to the respondents’ answ ering affidavit and who is not
a party to this application . He has also asked for an order that Rhodes should
admit him as a student for the 2025 academic year. The application was
opposed. The applicant appeared on his own behalf and Mr Somandi
appeare d for the respondents.
Background
[2] The applicant was registered as a student at Rhodes in 2022. During 2023 , in
disciplinary proceedings, he was found guilty of sexual assault of a fellow
student . The sanction imposed was three years’ exclusion from the university.
The second respondent was the Proctor in the disciplinary hearing (the
Proctor) . An internal appeal was unsuccessful.
[3] In other proceedings, t he applicant has applied to this court for an order to
review and set aside the decision of the Proctor . On 10 July 2024 Malusi J
granted an order , framed as a rule nisi, suspending the decision of the Proctor
pending the finalisation of the review application, Directions were given
pertaining to time frames for an internal appeal. The pertinent part of the
order was:
“The respondent is directed to admit the applicant as a student for the
2024 academic year in accordance with the firs t respondent’s
requirements and applicable waivers pending the finalisation of Part B .
The applicant and the first respondent are directed to convene a formal
meeting within ten (10) 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 no agreement is reached, each party is
granted leave to approach the court on urgent basis solely on this
issue.”
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[4] Rhodes has applied for leave to appeal against these two paragraphs of the
order, which it maintains suspended operation of the order in terms of s 18 (1)
of the Superior Courts Act 10 of 2013 . Nonetheless the merits were argued .
[5] The applicant was enrolled as a student following this order and wrote his final
examinat ions. When he sought to find his examination results on the Rhodes
website, he discovered that he had been excluded from Rhodes as from 2
February 2024.
[6] On 12 November 2024 Norman J, on the application of Rhodes, issued an
order against the applicant, pending the outcome of the review application.
The relevant portion of the order is:
“2.1 The two urgent applications launched by the Respondent
against the Applicant in this Honourable Court (under case
numbers 1895/2024 and 2489/2024) are st ayed;
2.2 the Respondent is interdicted and restrained from launching
and/or instituting and/or issuing and/or pursuing any further
actions and/or applications and/or any other legal process
against the Applicant, without the permission of this Honourable
Court, as contemplated in Section 2 (b) of the Vexatious
Proceedings Act 3 of 1956 ”.
[7] The reference to s 2 (b) of Act 3 of 1956 is to the provision in that subsection
that a court or any judge shall not grant leave to a person to institute
proceedings unless it is satisfied that the proceedings are not an abuse of the
process of the court and that there is prima facie ground for the proceedings.
The applicant initially sought leave to appeal against Norman J’s order but
withdrew such application.
Preliminary points
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[8] The applicant launched a similar application to the present one which was
dismissed by Ntsepe J on 21 January 2025. No reasons are available for this
decision. It was submitted on behalf of Rhodes that this was a judgment on
the merits and is thus res judicat a. The applicant on the other hand said it
was dismissed because he had not applied for leave as contemplated in s 2
(b) of Act 3 of 1956. I prefer to assume without deciding that the merits were
not decided by Ntsepe J. It was further submitted on behalf of Rhodes that
the applicant had not followed the proper procedure to obtain such leave. In
his notice of motion, although not included as a prayer, the applicant did ask
for the court’s permission as contemplated in s 2 (b) of Act 3 of 1956. Again I
shall assume without deciding that he followed the correct procedure and
further that the requirements for obt aining leave were met. It is preferable to
deal with the merits of the contempt application.
Contempt
[9] The requirements for civil contempt were stated in Fakie NO v Civil Systems
(Pty) Ltd 2006 (4) SA 326. In his summing up, Cameron JA (as he then was)
stated at paragraph [42] (c):
“In particular, the applicant must prove the requisites of contempt (the
order; service or notice; non -compliance; and wilfulness and mala
fides) beyond reasonable doubt.”
The applicant’s contention in his founding a ffidavit was that Rhodes was in
breach of Malusi J’s order in that it had refused him residence at Rhodes and
had excluded him from Rhodes .
[10] The question of the applicant’s residence was dealt with in the answering
affidavit, deposed to by Ms Susan Sma iles, who is employed by Rhodes as a
Director in the Office of the Vice Chancellor and Chief of Staff. She stated
that the applicant improperly and unilaterally , and before the ten days for a
meeting had expired, managed to be registered academically and assigned a
place in residence. Rhodes launched an urgent application to evict the
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applicant from the residence. The applicant opposed this application. Mullins
AJ granted th e eviction order on 22 August 2024. (Unreported judgment ,
case number 1895/2024.) In his judgment in relation to costs he stated at
paragraph [18] :
“…… .. the Applicant is the architect of his own misfo rtune. The 10
days in which the formal meeting was to have taken place had not
lapsed when he unilaterally approached t he 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 .”
[11] In his replying affidavit in the present application, the ap plicant did not dispute
Ms Smailes’ evidence relating to his occupation in and eviction from
residence. In the circumstances, there can be no finding that the order of
Malusi J was wilfully and mala fide disobeyed in relation to the alleged refusal
of res idence .
[12] In the answering affidavit Ms Smailes stated that even though the identified
parts of the order of Malusi J were suspended by the application for leave to
appeal, Rhodes nonetheless indulged the applicant and admitted him as a
student during 2024. This was to allow the review to be finalised as
expeditiously as possible. The ord er to admit the applicant for the 2024
academic year, so she stated, was complied with.
[13] Further in the answering affidavit, Ms Smailes stated that the reason why the
applicant had been denied admission for the 2025 academic year was
because he had out standing debts incurred during the 2024 academic year
and that no payment arrangements had been made for the 2025 academic
year. In other words , the reason for denying him admission for 2025 was not
related to the Proctor’s sanction.
[14] The debt incur red during the 2024 academic year was not disputed by the
applicant . The applicant stated that he has been awarded a bursary of
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R40 000.00 by the Legal Practitioners Fidelity Fund for the academic years
2024 and 2025 at Rhodes. He furnished a letter from this body which confirms
the bursary and furnished proof of a payment to Rhodes of R40 000.00 made
on 23 July 2024. He also stated that the National Student Financial Aid
Scheme (commonly known as NSFAS) has awarded him a loan on proof of
registration. However, it is apparent from Ms Smailes’ affidavit that at this
point a decision has been made not to admit the applicant for the 2025
academic year and it is not for this court to interfere with that decision based
on the information provided by the applicant. That is a n administrative
decision for Rhodes to make, based on its own requirements and policies. It
follows that this court cannot order Rhodes to admit the applicant for the 2025
academic year.
[15] The applicant seemed to rely on what was stated on the Rhodes website that
he had been excluded from 2 February 2024. When it was pointed out to the
applicant during argument that Rhodes had not excluded him for the 2024
academic year , he contended that the order of Malusi J that Rhodes admit
him for the 2024 academic year should be interpreted to include the 2025
academic year. In my view, i f the order was to be interpreted in this manner, it
would lead to an absurd result in that if the review was not finalised, Rhodes
should admit the applica nt for years to come pending the finalisation of the
review. The order of Malusi J refers only to admission for the 2024 academic
year. The order directing a meeting re fers only to the 2024 academic year.
There can be no other interpretation.
[16] The a pplicant has therefore failed to establish that there was a breach by
Rhodes of Malusi J’s order that Rhodes admit him for the 2024 academic
year.
[17] In the result the application cannot succeed. Mr Somandi asked for costs on
the party and party scale. I shall make such an order . However, the applicant
is warned that unfounded allegations of lies on the part of Ms Smailes and
some sort of relationship between this court and Rhodes could well have
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resulted in a punitive costs order. Even as a layperson he should know to
moderate his language in a public document .
[18] The following order is made:
The application is dismissed with costs.
__________________________
J. ROBERSON
JUDGE OF THE HIGH COURT
APPEARANCES:
For the APPLICANT : MR M.S. YABO (In Person)
CELL NO.: 0 […]
EMAIL: s[…]
For the RESPONDENTS : ADV SOMANDI
Instructed by : HUXTABLE ATTORNEYS
26 NEW STREET
MAKHANDA
TEL: 046 622 2692 /622 2961
EMAIL: admin@huxattorneys.co.za
REF: O Huxtable/cl/ 02r002114
Matter heard on : 18 February 2025
Judgment delivered on : 20 February 2025