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Nkhutha and Others v University of Johannesburg and Others (2025/189952) [2025] ZAGPJHC 1056 (22 October 2025)

70 Reportability
Administrative Law
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Brief Summary

Disciplinary Proceedings — Student Suspension — Applicants suspended pending disciplinary inquiry for alleged disruptive protest — Applicants do not challenge the university's authority to discipline for such conduct — Court assesses whether suspension was grossly unfair or unlawful under the "exceptional circumstances" test — University justified in forming reasonable belief that applicants posed a threat to orderly academic process based on presented statements — No breach of university regulations established — Applicants failed to demonstrate grounds for intervention in disciplinary process — Relief sought denied.

Comprehensive Summary

Case Note


Applicants v University of Johannesburg 2025 (GJ) (15 October 2025)


Reportability


This judgment raises questions of considerable public importance concerning the limits of university disciplinary power in the face of student protest and the degree to which courts may intervene in incomplete domestic-tribunal proceedings. It revisits and applies the “exceptional circumstances” threshold first articulated in employment and administrative-law contexts, thereby extending and clarifying its operation in the higher-education sphere.


The decision is also significant because it evaluates precautionary suspension powers under section 36 of the Higher Education Act 101 of 1997 and measures the procedural fairness of such suspensions against constitutional guarantees of assembly, expression and due process. The ruling thus offers authoritative guidance both to universities crafting disciplinary regulations and to students seeking judicial relief while inquiries are still pending.


Finally, the judgment synthesises principles from Constitutional, Labour and Administrative Law authorities, providing a coherent doctrinal framework for future interlocutory challenges to disciplinary proceedings. Its detailed engagement with precedent renders it useful to scholars, practitioners and university administrators alike, justifying full reportability.


Cases Cited


Jiba v Minister: Department of Justice and Constitutional Development 2010 (31) ILJ 112 (Labour Court)


Dyantyi v Rhodes University 2023 (1) SA 32 (Supreme Court of Appeal)


Legislation Cited


Constitution of the Republic of South Africa, 1996 — section 17


Higher Education Act 101 of 1997 — section 36


Rules of Court Cited


The judgment contains no explicit reference to specific Uniform Rules of Court.


HEADNOTE


Summary


The applicants, seven student leaders, sought urgent relief setting aside their precautionary suspensions and interdicting an upcoming disciplinary inquiry instituted by the University of Johannesburg. The suspensions arose from a 8 September 2025 sit-in at the student finance office protesting the withdrawal of government financial aid. While the University initially alleged violent conduct, it later relied solely on allegations of disruptive entry, door-banging and refusal to leave.


Before the High Court they contended that the Vice-Chancellor’s delegate lacked a reasonable basis to believe they posed a threat to the orderly academic process as required by section 5 of the University’s Regulations for Student Discipline. They therefore argued that “exceptional circumstances” existed for judicial intervention in incomplete disciplinary proceedings.


The Court held that the threshold for such intervention was not met. On the documentary material before the Registrar, a reasonable person could conclude that the applicants constituted a disruption warranting temporary suspension. Any factual disputes about exaggeration or motive must, the Court found, be resolved at the disciplinary hearing itself.


Key Issues


The judgment grapples with three principal questions. First, whether a court may intervene in internal disciplinary proceedings prior to their completion and, if so, under what “exceptional circumstances”. Second, whether the Registrar’s decision to suspend the applicants satisfied the objective-reasonableness requirement in section 5 of the University’s regulations. Third, whether the breadth of the suspensions and the continuation of the inquiry itself offend principles of legality and procedural fairness.


Held


The Court dismissed the application in its entirety. It ruled that the applicants had not shown exceptional circumstances warranting judicial interruption: the suspensions were founded on sufficient evidence and the inquiry appeared facially fair and lawful. Any overbreadth in the suspensions was not pleaded, and any future irregularities in the hearing could be remedied on review.


THE FACTS


On 8 September 2025 a group of financially-excluded students entered the University of Johannesburg’s student finance office demanding engagement over the sudden withdrawal of National Student Financial Aid Scheme support. The applicants, all prominent members of the Student Representative Council, led the group. The University’s administrators alleged that doors were banged, staff felt unsafe and retreated into locked offices, and campus security together with the police were summoned.


Following receipt of incident reports from finance-office staff and security personnel, the Registrar—acting under delegated authority from the Vice-Chancellor—invoked section 5 of the Regulations for Student Discipline and issued precautionary suspensions against each applicant. The suspensions barred them from residences, classes, examinations and SRC duties.


A disciplinary inquiry was scheduled for 22 October 2025. The applicants denied staging an occupation or using violence, maintaining they merely sought peaceful dialogue. They launched urgent court proceedings to lift the suspensions and interdict the inquiry, arguing that the University’s belief that they posed a threat to order was unreasonable and therefore unlawful.


THE ISSUES


The Court was required to decide, first, whether it possessed the discretionary power to halt or modify ongoing university disciplinary measures before their conclusion. This entailed determining the applicability and content of the “exceptional circumstances” test emerging from Jiba and similar case law.


Second, the Court had to assess whether the Registrar’s factual predicate for suspension met the standard of reasonable belief stipulated by section 5 of the Regulations for Student Discipline, bearing in mind the disputed facts and the constitutional context of protest.


Third, the Court was asked to pronounce on the lawfulness of the planned disciplinary inquiry itself, including whether the charges were colourable and whether there was any evidentiary indication that the process would be conducted unfairly.


ANALYSIS


The Court commenced by situating its task within the doctrine of judicial deference to domestic tribunals. Referring to Jiba, it underscored that intervention prior to completion of such proceedings is a drastic remedy to be employed only when grave unfairness is manifest. The Court considered this doctrine to apply with equal force to university disciplinary bodies empowered under section 36 of the Higher Education Act.


Turning to the suspensions, the Court emphasised that its role was not to resolve the competing factual narratives but to evaluate whether the Registrar could reasonably have formed the belief required by section 5. It found that staff affidavits describing attempted forced entry, staff fear and police attendance constituted ample material. Even if exaggerated, those statements satisfied the objective component of reasonableness; the truth of the allegations would be tested later at the inquiry.


The applicants’ counsel sought to shift focus toward the breadth of the suspensions, contending that complete exclusion from academic life was disproportionate. The Court acknowledged the potential overbreadth but held that such relief had neither been pleaded nor substantiated on affidavit, thereby rendering it inappropriate for determination. Moreover, with the inquiry date imminent, any marginal prejudice occasioned by the final days of suspension was insufficiently exceptional.


Regarding the interdict against the inquiry itself, the Court noted counsel’s concession that the charges were colourable and supported by evidence. It found no facts suggesting bias, procedural impropriety or irrationality likely to taint the hearing. Consequently, it declined to forestall internal processes, noting that review remedies would remain available should irregularities later materialise.


REMEDY


The application for urgent relief was dismissed in its entirety. The suspensions remained in force until the disciplinary hearing, and the University was permitted to proceed with the inquiry scheduled for 22 October 2025. No costs order was expressly recorded in the excerpt, but the Court’s reasoning suggests it was likely awarded against the applicants on the ordinary rule that costs follow the result.


LEGAL PRINCIPLES


The judgment reaffirms that courts possess a narrow residual power to intervene in incomplete disciplinary proceedings, a power exercisable only in “truly exceptional circumstances” where manifest injustice looms.


It clarifies that the reasonableness of a precautionary suspension depends not on the ultimate truth of the allegations but on the presence of material that could reasonably ground the decision-maker’s belief that the student poses a threat to orderly processes, safety, or property.


Finally, it underscores the principle of institutional autonomy embodied in section 36 of the Higher Education Act: universities are entitled to regulate student conduct and discipline, subject to later judicial review for legality, rationality and procedural fairness, but ordinarily free from interlocutory judicial intrusion.

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which often appear to act towards the students they are meant to care for in
an alienating and hostile manner. It does not surprise me that, caught in these
riptides, students sometimes engage in disruptive protest against what they
perceive to be thoughtless and inefficient university authorities.
2 Some degree of disruption is inherent in any protest. Picketers interfere with
access to the property they picket. Demonstrators may be noisy, obstructive
and sometimes aggressive, but they must be tolerated so long as they remain
peaceful. Sit-ins, occupations and the public formation of other temporary
communities of dissent, such as encampments on or near public or private
property are all time-honoured forms of protest. Depending on the
circumstances, they may all find protection under the constitutional
entrenchment of the right to peacefully assemble, demonstrate, picket, and
petition in section 17 of the Constitution, 1996, even if they disrupt the
activities of others.
3 The applicants in this case all stand accused, in pending disciplinary
proceedings taken by the first respondent, the University of Johannesburg, of
having engaged in disruptive protest contrary to the University’s code of
student conduct. They approach me on an urgent basis to set aside the
University’s decision to suspend them pending a disciplinary inquiry which is
set to proceed on 22 October 2025. They also seek to interdict and restrain
the University from proceeding with that inquiry.
4 Critically, the applicants do not challenge the University’s code of conduct
itself. They do not say that the University may not lawfully sanction
participation in a disruptive protest. I must accordingly decide this case on the

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assumption that the University is perfectly entitled to discipline its students for
participating in disruptive protest – an assumption that I make reluctantly,
while expressly leaving the underlying question open.
5 The protest in which the applicants participated took place on 8 September
2025. It took the form of a sit-in at the University’s student finance office. The
facts surrounding the sit-in are contested. While it initially alleged that the
conduct of some of the protestors was violent or criminal in nature, the
University no longer appears to suggest that this is so. Still, the University
alleges that a group of students, led by the applicants, entered and occupied
the student finance office, banged on doors, attempted to force their way into
offices and refused to leave when directed to do so. The University’s case at
the disciplinary inquiry is that the applicants’ conduct was disruptive enough
to contravene its code of student conduct.
6 The applicants advance a different version of events. They suggest that they
did no more than lead a delegation of students who, while “visibly agitated”
were never actually in occupation of the student finance office, and who
sought no more than an engagement with the University administration about
the fact that their government financial aid had been arbitrarily withdrawn.
7 It forms no part of my function to adjudicate that dispute. The question before
me is whether the applicants’ suspension and the institution of disciplinary
proceedings against them was so grossly unfair and unlawful as to justify my
interference with those proceedings. This is, I think, the nub of the “exceptional
circumstances” test developed in a number of cases in which courts have
been asked to interfere with the conduct of domestic tribunals. For example,

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in Jiba v Minister: Department of Justice & Constitutional Development (2010)
31 ILJ 112 (LC), Van Niekerk J held that the power to intervene in uncompleted
disciplinary proceedings ought only to be exercised in “truly exceptional
circumstances”. The underlying point is that a court is bound to respect the
proceedings of domestic tribunals, such as disciplinary inquiries, generally
only intervening after they have been completed, and the court is asked to
exercise its powers of review.
8 The “exceptional circumstances” test adverted to in Jiba posits a residual
power to intervene in disciplinary proceedings midstream, but only where they
are so unlawful, unfair or otherwise flawed that to subject a person to them
would be manifestly unjust. A good example of such a situation is the conduct
of t he chair of the disciplinary inquiry in the matter of Dyantyi v Rhodes
University 2023 (1) SA 32 (SCA), where the outcome of a student disciplinary
inquiry was set aside on the basis that the chairperson had postponed it to a
date on which the student’s legal representatives could not attend, and then
proceeded in Ms. Dyantyi’s absence to convict her of misconduct without
hearing her version. Although those proceedings were set aside after the fact,
rather than interdicted midstream, they provide a fair illustration of the kind of
manifest injustice that would meet the “exceptional circumstances” test.
9 At the outset of the argument before me, I asked counsel to address me on
whether the exceptional circumstances test applies to this case, and whether,
if it does, it has been met. Although Ms. Mkhwanazi, who appeared for the
applicants, did not explicitly concede that the test does apply, her submissions
departed from the proposition that it does. I think that was a sensible approach.

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It seems to me that the University is entitled to the benefit of the exceptional
circumstances test. It is a higher education institution, which is specifically
empowered, under section 36 of the Higher Education Act 101 of 1997, to
subject its students to “such disciplinary measures and disciplinary
procedures” as it may determine. A court ought not to intervene too readily in
the lawful exercise of those powers.
10 Ms. Mkhwanazi submitted that the “exceptional circumstances” test is satisfied
in this case because the suspension of the applicants was unlawful. The
argument was that the applicants were suspended in breach of section 5 of
the University’s Regulations for Student Discipline, which empower the
second respondent, the Vice-Chancellor, or his delegee, to suspend a student
if and only if there is information which gives rise to a reasonable belief that a
student “poses a threat to the orderly academic process; endangers the safety
of other students or staff of the University; is a risk to the property, facilities,
possessions or buildings of other students, staff or the University; [or] has
disregarded a direct instruction of the Management Executive Committee”.
11 Ms. Mkhwanazi did not suggest that the registrar, who acted as the Vice
Chancellor’s delegee in this case, did not have information on which she
formed the belief that the applicants pose a threat to the orderly academic
process. Ms. Mkhwanazi argued only that, on the information before her, the
registrar could not reasonably have formed that belief.
12 I do not think that is correct. On the statements presented to the registrar, the
applicants had led a large group of “agitated” students in an attempt to force
their way into the student finance office. Administrators at the finance office

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locked themselves in their offices, obviously in fear for their safety. The police
were called and arrived at the scene. This, it seems to me, is more than
enough material on which to form the reasonable belief that the applicants
pose a threat to the orderly academic process. I emphasise that I do not have
to adopt the statements as fact to reach that conclusion. Nor do I need to find
the statements particularly persuasive. In fact, I could adopt the view,
advanced by the applicants, that the statements are exaggerated and that the
threat alleged is overblown, but nevertheless conclude that the University’s
disciplinary process should be left to run its course undisturbed.
13 What I subjectively believe the truth of the situation to be does not matter. All
the University needs to demonstrate is that there was material on which the
required belief could be formed , and that the registrar’s reliance on it was
reasonable. This has plainly been demonstrated. The truth of the material falls
to be tested in the pending disciplinary hearing, but it is more than enough to
justify a precautionary suspension.
14 Nor does it make a difference that the statements were disputed by the
applicants when they were asked to advance reasons why they should not be
suspended. For the purposes of considering whether the applicants should
temporarily be suspended, the registrar was entitled, as she did, to adopt the
material submitted by the staff of the University’s finance and security offices
and reject the applicants’ statements to the contrary. It has not been shown
that her decision to do just that was unlawful or inherently unfair.
15 I need not decide whether a breach of section 5 of the Regulations for Student
Discipline would in itself constitute the exceptional circumstances that would

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justify interfering with the applicants’ suspension. That, it seems to me,
remains an open question. The fundamental point is that the applicants have
demonstrated no such breach.
16 Faced with that reality, Ms. Mkhwanazi turned to criticise the scope of the
suspensions under which the applicants have been placed. They have
effectively been excluded from University life. They may not live in University
residences, go to classes, be on campus, write exams, or discharge their
functions as members of the Student Representative Council.
17 Given the nature of the conduct alleged against the applicants, the scope of
the suspensions seems to me to be overbroad. But the problem is that a case
of overbreadth forms no part of the contentions advanced on the applicants’
affidavits. Nor is it foreshadowed in the relief sought. Had it been, the
University might have been able to adduce facts to justify the scope of the
suspensions. At the very least, I would have been placed in possession of the
material necessary to evaluate that scope fairly. I do not have that material,
and it would be unfair to the University for me to adjust the scope of the
suspensions without it – and without that specific relief having been sought in
the applicants’ founding papers.
18 In any event, the suspensions have almost run their course. The disciplinary
hearing is soon to proceed. It seems to me that any prejudice to the students
I would ameliorate by interfering with their suspensions at this late stage is too
slight to justify my intervention. The amelioration of such prejudice is plainly
not “exceptional” in the sense conveyed by the applicable test.

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19 I now turn to the relief sought in paragraph 4 of the applicants’ notice of motion,
in which the applicants seek an order restraining the disciplinary process itself.
Ms. Mkhwanazi was unable to identify any facts on the papers that would
justify such an order. She in fact conceded that the applicants have been
charged with colourable transgressions of the student disciplinary code, and
that there is an adequate factual substrate to support such charges. The
University’s answering papers are replete with such material.
20 Whether that material can survive interrogation during the disciplinary process
itself, whether the transgressions alleged can be sustained, and what the
ultimate sanction imposed, if any, will be, are of course matters that remain to
be determined. But there is nothing on the papers that justifies the inference
that the disciplinary process will not be fairly, rationally and lawfully conducted.
Even if the process turns out to be flawed, the applicants will have their
remedies on review.
21 It follows that the applicants have failed to establish the facts necessary to
justify my intervention in their disciplinary process – whether by setting aside
or narrowing the scope of their suspensions, or by preventing the disciplinary
inquiry from going ahead.
22 That is not the same as saying that the applicants have actually misconducted
themselves, that the grievances they were pursuing on 8 September 2025
were not real or that their conduct was anything other than reasonable in the
circumstances. All of that remains to be determined.
23 The narrow conclusion I reach here is that it has not been shown that the
applicants stand in peril of unfairness or unlawfulness so clear or egregious

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