IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Before:
The Hon Mr Justice L G Nuku
Case No: 24729/2024
In the matter between:
JOHANNA HELENA LE ROUX Applicant
and
STELLENBOSCH UNIVERSITY First Respondent
ROCESHIA JOANNE LIHLE FEBRUARIE Second
Respondent
AMBER NIEUWENHYZEN Third Respondent
Date of hearing : 12 February 2025
Date of Judgment : 3 March 2025
JUDGMENT
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[1] The applicant approached this court seeking urgent review of decision s taken by
the first respondent ’s functionaries to disqualify her candidature for election to the
University’s Student Representative Council ( SRC ) for the year 2024/2025 . The first
decision was taken by the University’s Student Court (Student Court ) on 5 October
2024 and the second decision was taken by University’s Student Appeal Court (Student
Appea l Court ) on 11 November 2024.
[2] The applicant raised a slew of grounds of review which have all since been
abandoned leaving only one ground based on section 6 (2) (h) of the Promotion of
Administrative Justice Act 3 of 2000 ( PAJA ) alleging that the Student Court and the
Student Appeal Court were so unreasonable that no person could have so exercised
the power or performed the function . The applicant alleged further that , for the reasons
set out in paragraphs 94 to 105 of the foundi ng affidavit, the Student Court and the
Student Appeal Court ‘ could never have reasonably or rationally found that there was
an endorsement of my campaign or that I was sponsored, nor was there any (nothing,
not a shred) of evidence that this was so …’
[3] In paragraphs 94 to 105 of the founding affidavit, the applicant sets out her
reasons for contending that she did not contravene the provisions of the University’s
Student Electoral Act (Student Electoral Act ). For the present purposes the following
are the relevant paragraphs:
‘100. I submit that S3 3 (7) (a), to the extent that sense can be made thereof,
prohibits the sponsoring of a candidate. On a narrow reading it would have
required a call to vote for me specifically, which the cards and the post by
AfriForum Jeug did not. What the two Courts did in effect was, in the face
of more than one potentially reasonable interpretation, was to choose the
one that would impact the most on my rights. This is irrational and
unlawful and should be reviewed and set aside. It is trite authority that in
the absence of express or clear provisions to the contrary: “where a
section is capable of two alternative constructions, the construction that
should be adopted is the one in favorem libertastis ”.
101. The same applies to s 8 which prohibits mass communication that
endorses or helps them with their campaign, unless they can show that
they had nothing to do with it. Again, the Instagram post – there was no
evidence that it was mass communication and specifically that it had much
traction, not nationally, but at SU – did not actually promote me. And,
there was no evidence that it helped my campaign. Since there was no
endorsement, and no proof of my campaign being helped there could
never be an onus th at shifted to me.
102. The fact that, without doubt, one of two possible interpretations was relied
on in the Appeal Court in [12] finding that the Instagram post “ likely
constitutes an endorsement of the candidate”.
103. The Appeal Court also, incorrectly I submit, held in [13] – not that proof
was required that my campaign was, as a fact, helped – but simply that
“the post was designed to promote or endorse the appellant as a
candidate in the upcoming SRC election , or the very least , help them with
their campaign. The appellant therefore had the privilege of being
promoted or endorsed by AfriForum Jeug’s Instagram page (which has not
only a local but national reach) prior to an election. As the post of the
Women’s Day Event, which included a picture of the appellant, was
coupled with an encouragement to vote for the SRC, it was clearly
intended to persuade to vote for Ms Le Roux.”
104. My campaign was not endorsed . There is no proof that it was helped or
that the intention was to help it. This does away with the privilege
argument because it is anything but “clear” that it was meant to persuade
the electorate to vote for me – as opposed to, and just as plausibly, to vote
for “jou SR”.
105. Lastly, as to 8 (1) (a), the Appeal Court in [14] accepted it as self -evident
that the Instagram post was mass communication which endorsed me or
helped me (not, as it previously held , that it was not enough that it was
designed to help me) with my campaign. Without any of these grounds
proved or established there could be no shift of the burden to me and no
merit in the finding that I was supposed to proffer evidence to show that I
was not involved with the post in question. In any event, I denied it. How
else am I supposed to prove a negative? There was nothing to counter
this. The Appeal Court judgment is so badly reasoned, I submit with
respect, that I am simply unable to determine whether in [15] – [16] it
actually held me liable on this basis or not. At best I can see it did not .’
[4] The first respondent, t he only respondent that opposed the application, noting
that the allegations made by the applicant in paragraphs 94 to 106 were made under
the heading “the merits” took th e view that they were irrelevant because this is a
review application and not an appeal. That notwithstanding , the first respondent
disputed these allegations .
[5] The question that this application raised is whether the applicant has made out a
case for the review o f the first respondent’s decision on the ground that it is so
unreasonable that no reasonable person could have made it or whether, as the first
respondent contends, the applicant seeks to impermissibly rely on appeal grounds in a
review application. Before considering this issue, it is necessary to set out the factual
background.
[6] The applicant submitted her nomination to contest the SRC elections on 2
August 2024. At the time she was a member and a Chairperson of the University’s
AfriForum Jeug student chapter .
[7] On 8 August 202 4, the applicant – along with her fellow AfriForum Jeug student
chapter members were at Ne elsie Student Centre handing out roses accompanied by
cards on which was printed the words “ AfriForum Jeug ”, Gelekkige Vrouedag ” and
“Stem vir jou SR Ɩ 19-27 Augustus 2024 ”. On 9 August 2024 the AfriForum Jeug
posted , on its Instagram page, the applicant’s photograph with another young lady each
holding one of these cards. The caption to the post read: “ AfriForum Youth’s Maties
branch gave a bouquet of flowers to every lady in the Ne elsie on Thursday, 8
August 2024 during the celebration on National Women’s Day. They also used the
opportunity to remind students to vote for their SR from August 19 to 27 .”
[8] On 28 August 202 4, the second respondent submitted a complaint concerning
the applicant’s SRC campaign to the Student Electoral Commission ( Commission ).
The complaint referenced two instances , namely:
‘1. Use of Monetary Funds from a Third -Party Organisation : An allegation that
the candidate utilised additional mone tary funds from a third -party
organisation, which is in violation of Part S1.3, clause 3 (7) (a) of the
Student Electoral Act.
2. Instagram Endorsement by AfriForum Jeug: An allegation that an
Instagram post by “AfriForum Jeug” on 9 August 2024 endorsed the
candidate’s campaign, thereby compromising the electoral process and
providing the candidate with an unfair advantage .”
[9] After having investigated the complaint, the Commission rendered its rep ort
dated 4 September 2024 wherein it recorded, among others, that:
‘The investigation determined that the candidate’s association with AfriForum
Jeug established a direct link to the campaign activities conducted by the
organisation, including the distribution of marketing materials not authorized by
the Electoral Commission and the potential use of third -party funds in making the
card that was visible on the Instagram page
-The Electoral Commission thus confirms that the candidate’s actions violat ed
the Student Electoral Act by providing an unfair advantage, thus jeop ardising the
fairness of the election .’
[10] Despite its finding that the applicant had contravened the Student Electoral Act,
the Commission dismissed the appeal . This was based on the view it held that it would
be unconstitutional to disqualify the applicant because it (the Commission) had taken
more than 24 hours to conclude its investigation , an issue that had been raised by the
applicant’s legal representative s when they made representations to the Commission.
The second respondent was advised that she could either appeal th at decision or refer
the matter to the Student Court in terms of s127 (4) (d) of the University’s Student
Constitution (Student Constitutio n).
[11] The Commission also advised the applicant, in its communication dated 4
September 2024 that “ Your actions violated items 2 (3), 3 (7), and 4 (1) of the
Student Electoral Act , as conduct provided you with an unfair advantage as an
SRC candidate thereby jeopardising the fairness and freedom of the election .”
The communication went on to advise that “ due to the lapsing of time to make a
decision with regards to the complaint, a decision to disqualify you would be
unconstitutional and thus, the Electoral Commission has decided to dismiss the
complaint against you .”
[12] The second respondent referred the matter to the Student Court in terms of s127
(4) (d) of the Student Constitution seeking the following relief:
‘(a) Setting aside of the decision taken by the Electoral Commission on 4th
September 2024, with regards to the complaint …
(b) The invalidation of the results of the SRC candidate Jolene Le Roux, due
to the candidate’s contravention of Part S1.3, clause 3 (7) (a) of the
Student Electoral Act.’
[13] The applicant opposed the application brought by the second respondent
contending that (a) the issue had already been determined by the Student Court, (b) the
Commission ‘incorrectly so and without any factual evidence concluded that ’ she
‘violated section 2 (3), 3 (7) and 4 (1) of the Student Electoral Act …’, and (c) denied that
her conduct contravened any provisions of the Student Electoral Act.
[14] The Student Court delivered its judgment on 5 October 2024 finding that the
applicant had contravened item 3 (7) (a) read with item 3 (8) of part S1.3 of the Stu dent
Electoral Act . As a sanction, the applicant was disqualified from participating in the SRC
elections .
[15] The Student Court gave a detailed judgment that dealt with all the defences that
had been raised by the applicant. The judgment engaged with the interpretation of the
provisions of the Student Electoral Act that the applicant was alleged to have
contravened (Items 3 (7) (a) and 3 (8) ), the evidence that the applicant participated in
an event organised by the University ’s AfriForum Jeug chapter where roses and cards
wishing female students a happy women’s day and reminding them to vote for their
SRC were handed out as well as an AfriForum J eug Instagram post on 9 August 2024
which displayed the applicant together with an unknown female person holding out the
cards that were handed out on 8 August 2024.
[16] The applicant appealed the judgment of the Student Court on the grounds that
the Student Court had failed to properly evaluate the evidence and that her
disqualifi cation was not justified in the circumstances.
[17] The Student Appeal Court dismissed the applicant’s appeal on 11 November
2024 holding that the conduct of handing out cards in celebration of Women’s Day that
also reminded recipients to vote for your SRC and the applicant’s photo on the
AfriForum Jeug Instagram account promoted the applicant’s campaign. Aggrieved by
this outcome, the applicant turned to this court by way of an urgent application that was
issued on 19 November 2024 and set down for hearing on 22 November 2024. The
respondents were given until 12h00 on 20 November 2024 to deliver their notices of
opposition, if any and until 12h00 the following day on 21 November 2024 to deliver
their answering affidavits.
[18] The first respondent delivered its notice of opposition on 20 November 2024, and
on 21 November 2024 it delivered an affidavit deposed to by its attorney of record
requesting that the first respondent be afforded a reasonable opportunity to respond to
the application as the timeframes imposed by the applicant were impossible. The matter
came before S linger s J on 22 November 2022 who struck it off from the roll for lack of
urgency with no order as to costs.
[19] The first respondent delivered its answering affidavit on 4 December 2024
raising, as one of the issues, the applicant’s failure to seek the relief under PAJA as the
decisions she sought to review constitute administrative action. The first respondent
further raised the issue of the applicant’s failure to identify the grounds o f review relied
upon and to link them to the facts.
[20] On 6 December 2024, the applicant delivered an application for leave to file a
supplementary affidavit , the purpose of which was to respond to the issues raised by
the first respondent in its answer ing affidavit, namely, to seek the relief under PAJA a s
well as identifying the grounds of review relied upon and to link them to the facts . In the
supplementary affidavit sought to be admitted, the applica nt raised six grounds of
review based on various provisions of PAJA. In addition, the applicant also delivered
her replying affidavit.
[21] The matter was re -enrolled for hearing on 10 Dec ember 2024 when it came
before Savage J who, again struck it from the roll for lack of urgency and ordered costs
to stand over for later determination. The matter was re -enrolled again for hearing on 12
February 2025 when it came before me.
[22] In argume nt before me, Mr Burke, who appeared for the applicant submitted that
the applicant ’s grounds of review are based on the provisions of section 6 (2) (h) of
PAJA and that in the alternative the applicant relies on a legality review, an alternative
which he abandoned at some stage. The nub of the submissions made on behalf of the
applicant, based as they were on the paragraphs from the applicant’s founding affidavi t
quoted above, were all directed at attacking the correctness of the decisions by the
Student Court and the Student Appeal Court. At some point it was argued that the re
was no evidence on the basis of which the applicant was found to have contravened the
provisions of the Student Electoral Act.
[23] It was submitted o n behalf of the first respondent that the review application has
no merit for the reason that the grounds relied upon by the applicant, in her papers, are
not review grounds but appeal ground s. As to the submission that there was no
evidence on the basis of which the applicant could be found to have contravened the
provisions of the Student Electoral Act, it was submitted that there was, indeed,
evidence (a) about the handing out of cards , (b) the Instagram post, (c) the applicant
being the Chairperson of the University’s AfriForum Jeug chapter and (d) the applicant
being a candidate in the SRC elections. From this evidence, it was submitted, the
Student Court and the Student Appeal Court drew an inference of fact that established
the contravention.
[24] It was further submitted that the inference that both Courts drew is one of
reasonable inferences that can be drawn from the facts . That being the case it was
submitted, that should be th e end of the matter. The applicant was also criticised for the
matter she has litigated starting from the two days’ notice she gave the respondents
when she launched the application, the failure to properly plead her case in the founding
affidavit resultin g in the need for her to apply for leave to file a supplementary affidavit
and the slew of grounds that she raised in her supplementary affidavit most of which
she subsequently abandoned except for one . It was submitted that the applicant, by her
conduct, has forfeited the so-called Bio Watch1 shield because viewed objectively she
has put the first respondent to unnecessary trouble and expense which it ought not to
bear.2
[25] The Student Court found the applicant to have contravened the provisions of item
3 (7) (a) read with item 3 (8) of part S1.3 of the Student Electoral Act . These items
provide that:
‘3. All persons bound by the Student Electoral Act must, during the electoral
period :
(7) spend no money on any marketing .
(a) As a candidate cannot use their own money , this includes
Facebook, Instagram, Twitter sponsored pages, any sponsorship
cannot be utilised .
(8) Refrain from any attempt at misusing power or resorting to
privileges or influence or using any form of coercion intended to
persuade someone to vote for any candidate .’
[26] The applicant, in her own papers , admits that the provisions of item 3 (7) (a) are
capable of two alternative constructions , namely a narrow construction that requires a
call to vote for a particular named candidate and a broader construction that would be
satisfied without naming a particular candidate. She prefers the narrow construction in
1 Biowatch Trust v Registrar, Generic Resources 2009 (6) SA 232 (CC)
2 In re: Alluvial Creek Ltd 1929 CPD 532
that she was not named in any of the marketing material and her case is that both the
Student Court and the Student Appeal Court should have preferred the narrow
construction.
[27] The above admission, in my view is destructive of the applicant’s case and in fact
supportive of the first respondent’s argument that this is not a review ground but an
appeal ground. If anything, this admission points to the reasonableness of the decision s
sought to be impugned in that they are based on a plausible interpretation of the
provisions of the Student Electoral Court. It can never be that preferring one plausible
interpretation over the other can result in that decision being so unreasonable tha t no
reasonable decisions maker could have made. If anything, it points to the fact that the
decision -makers had reasonable options and the preference of one of those options is a
matter that should be left to the decision -maker. The plausibility of the in terpretation that
was preferred by the Student Court and the Student Appeal Court .
[28] The other point that was made on behalf of the first respondent was that the
judicial review court is not concerned with the merits of the decision under review, it
does not ask itself the question “is this question right or wrong ”?3 This court must thus
refuse the applicant’s invitation to enter the merits of the decision s of the Student Court
and the Student Appeal Court under the guise of a review.
[29] The applicant , whether by omission or by design, did not deal at all with the
finding relative to the contravention of item 8 and thus there can be no basis to disturb
that finding . The review thus cannot succeed.
[30] Turing to the issue of costs, there is much to be said about the manner in which
the applicant has conducted these proceedings. The application was served on the first
respondent on 19 November 2024 at 13:40 the first respondent was required to deliver
its notice of opposition less than 24 hours later and its answering papers in les s than 48
3 Bo-Kaap Civic and Ratepayers Association v City of Cape Town [2020] 2 All SA 330 (SCA) at para [72]
hours of service of papers on it. The founding affidavit, with the annexures ran to more
than 300 pages.
[31] To add to the above , the applicant had not properly p leaded her case when it
was in court on 22 November 2024 which prompted the first respondent to raise the
issue in its reply. That, in turn, resul ted in the applicant having to apply for leave to
supplement her founding affidavit by raising a laundry list of review grounds which were
subsequently abandoned on 10 December 2024.
[32] Had this been litigation between privat e parties that had nothing to do with
pursuit of constitutional rights, I would have had no hesitation in granting punitive costs
order against the applicant . The first respondent’s reliance on the decision of this court
in In re: Alluvial Creek Ltd is, in my view an acknowl edgment that the applicant entered
this litigation with the most upright of purpose and most firm belief in the justice of her
cause.
[33] It was not suggested that the application is frivolous or manifestly inappropriate
and as Biowatch tells us it is o nly in circumstances where the application is frivolous or
vexatious or in any other way manifestly inappropriate that an applicant should not
expect th at the worthiness of its cause will immunise it against an adverse costs award.
In my view each party sh ould bear it s own costs.
Order:
[34] In the result the following order shall issue:
The application is dismissed with each party to bear its own costs
___________________ _____ ________
L G NUKU
JUDGE OF THE HIGH COURT
APPEARANCES :
For the App licant : Adv. C L Burke
Instructed by : Hurter Spies Inc, Centurion
C/O : MMH Attorneys, Cape Town
For the First Respondent : Adv. R G Patrick SC
Instructed by : Cluver Marko tter Inc, Stellenbosch
C/O : Walkers Inc , Cape Town
For the Second and
Third Respondent s : No appearance