About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2015
>>
[2015] ZAWCHC 200
|
|
Maxwele v University of Cape Town and Others (11766/2015) [2015] ZAWCHC 200 (15 September 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NO: 11766/2015
DATE:
15 SEPTEMBER 2015
In
the matter between:
CHUMANI
MAXWELE
..........................................................................................................
Applicant
And
UNIVERSITY
OF CAPE
TOWN
...............................................................................
First
Respondent
MAX
PRICE
N.O
.....................................................................................................
Second
Respondent
KARIN
VAN
HEERDEN
...........................................................................................
Third
Respondent
HEARD
: TUESDAY 25 AUGUST 2015
DELIVERED
: TUESDAY 15 SEPTEMBER 2015
JUDGMENT
Nuku,
AJ
Introduction
[1]
This application concerns the following issues, namely: (a) an
application to review the Third Respondent’s decision
to
issue a provisional suspension order as well as a final suspension
order; (b) an order declaring Rules DJP3.2 and DJP3.3
of the
First Respondent to be unlawful; (c) an order interdicting the
Respondents from proceeding with the disciplinary proceedings
against
the Applicant, pending the finalisation of these proceedings and (d)
an order interdicting the Respondents from issuing
any further
suspension orders against the Applicant arising from the same facts
that gave rise to this application.
[2]
The Applicant is a registered student at the University of Cape Town,
the First Respondent in these proceedings. The Applicant
is studying
towards a bachelor’s degree in political science. The Applicant
is presently subject to a final suspension order
for a period of 100
days, which lapses on 24 September 2015. The Applicant was
represented in these proceedings by Mr Masuku who
appeared with Ms
Long.
[3]
The First Respondent is the University of Cape Town, a higher
education institution as defined in the
Higher Education Act 101 of
1997
. The Second Respondent is Max Price, the Vice Chancellor of the
First Respondent and has been joined in these proceedings in his
official capacity as such. The Third Respondent is Karin Van Heerden
who is the cited in these proceedings in her official capacity
as the
nominee of the Second Respondent. The Respondents were represented in
these proceedings by Mr Jamie who appeared with Ms
O’Sullivan.
[4]
The Application was brought on an urgent basis and was opposed by all
the Respondents.
On 30 June 2015 the matter was postponed by
agreement between the parties to 21 July 2015. On 21 July 2015 the
matter was again
postponed by agreement between the parties to 3
August 2015. The terms of the final suspension order issued by the
Third Respondent
on 19 June 2015 were varied by agreement between the
parties. On 3 August 2015 the matter was removed from the roll and
was enrolled
for hearing on 25 August 2015.
The
facts
[5]
The material facts giving rise to this application can be summarised
as follows: On
1 May 2015 the Applicant went to the Mathematics
Building for the purposes of studying. As the Applicant was
approaching the South
entrance of the building he saw Ms Kirova who
was leaving the building. The Applicant requested Ms Kirova to open
for him.
Ms Kirova asked the Applicant some questions and also
asked him to produce identification which the Applicant did by
producing
his student card. Ms Kirova advised the Applicant
that security had become a serious issue as there was a Head of
Department
who had been killed in that building a few years ago. Ms
Kirova, in her statement also refers to two separate incidents in the
previous year where she was attacked by a young man in her office.
The young man had pretended to be a student when in fact he was
not.
The Applicant puts this slightly different to how Ms Kirova puts it,
in that in the Applicant’s version is that Ms Kirova
said “
the
reason for demanding my identity was because she had previously been
attacked by a savage black man who had entered the building
pretending to be a student and that a lecturer had been killed in the
building also by a barbaric black man
”.
Ms Kirova escorted the Applicant into the building in order to
show him that there were no open spaces which the
Applicant could use
to study. The Applicant did not take kindly to the questions that he
was asked by Ms Kirova and the fact that
she escorted him into the
building. The Applicant felt that he was being racially profiled and
raised this with Ms Kirova. An argument
ensued which resulted in the
intervention by two students and Dr Ebobisse.
[6]
Ms Kirova reported the incident referred to above to the First
Respondent. In her
statement she explained how she felt physically
threatened when the Applicant had raised his voice making reference
to the fact
that the statue of Rhodes had fallen, that he was not
interested in the opinion of whites and that whites should be killed.
[7]
On receiving the report the Third Respondent, acting as a nominee of
the Second Respondent,
issued the first provisional suspension order
which was delivered to the Applicant on 7 May 2015. In terms of the
University rules
a provisional suspension order is valid for 72 hours
and as such the first suspension order lapsed on 10 May 2015. On 13
May 2015
the Applicant attended a suspension hearing when, despite
the fact that the first provisional suspension order had lapsed on 10
May 2015, the Third Respondent issued the first final suspension
order.
[8]
The Applicant appealed against the first final suspension order and
on 10 June 2015
the appeal tribunal upheld the appeal and the first
final suspension order was set aside.
[9]
On 16 June 2015 the Applicant received the second provisional
suspension order arising
from the same incident described above. A
suspension hearing was scheduled for 18 June 2015 and after the
hearing the Third Respondent
issued the second final suspension
order. The Applicant then instituted these proceedings.
Issues
for determination
[10]
In these proceedings the Applicant has challenged the decision of the
Third Respondent on the
basis that:
10.1.
The Third Respondent was biased or there was a reasonable suspicion
that she was biased, as envisaged in Section
6(2) (a) (iii) of the
Promotion of Administrative Justice Act 4 of 2000 (hereinafter
referred to as “PAJA”)
10.2.
The decision of the Third Respondent is not rationally connected to
the purpose for which it was taken and/ or
the information before her
and / or the reasons given for it by her, as envisaged in Section 6
(f) (2) (ii) of PAJA.
10.3.
The decision of the Third Respondent is so unreasonable that no
reasonable person could have taken the decision
that the Third
Respondent took.
[11]
In addition to opposing the review on the merits, the Respondent also
opposed the review on the
basis that the Applicant had failed to
exhaust internal remedies as required in terms of Section 7(2) of
PAJA.
[12]
The Applicant also challenged Rules DJP 3.2 and 3.3 on the basis that
they are unlawful in that
they are vague, overbroad and arbitrary in
violation of Section 33 of the Constitution of the Republic of South
Africa, 1996. The
Respondents, in addition to opposing the challenge
on the merits, also opposed it on the basis that the making of rules
constitutes
an administrative action for the purposes of PAJA and as
such the Applicant is required to base his cause of action on PAJA
and
not to resort directly to section 33 of the Constitution.
[13]
The Applicant has also applied for two interdicts. The first
interdict is to prevent the Respondents
from proceedings with the
disciplinary hearing against the Applicant, pending the finalisation
of these proceedings. The Second
interdict is to prevent the
Respondents from issuing any further suspension orders arising from
the incident of 1 May 2015 which
has given rise to these proceedings.
The
test for bias
[14]
Bias or reasonable suspicion of bias, as a ground for the review of
an administrative action
is dealt with in Section 6(2) (a) (iii) of
PAJA which provides that:
“
A
court or tribunal has the power to judicially review an
administrative action if the administrator who took it was biased or
reasonably suspected of bias
.”
[15]
The Applicant’s case was that he had reasonable suspicion that
the Third Respondent was
biased. At common law the test for
reasonable suspicion of bias was laid down in
BTR
Industries SA (Pty) Ltd v Metal & Allied Workers Union
[1992] ZASCA 85
;
1992
(3) SA 673
(SCA
) at 693 I-694B where
Hoexter JA stated it as follows:
“
I
conclude that in our law the existence of a reasonable suspicion of
bias satisfies the test; and that an apprehension of a real
likelihood that the decision maker will be biased is not a
prerequisite for disqualifying bias. In my opinion the statement in
the Full Court judgment (at 879A-B) that ‘… provided the
suspicion is one which might reasonably be entertained, the
possibility of bias where none is to be expected serves to disqualify
the decision maker…’ fairly reflects the recent
trend in
South African judicial thought, and I approve of it
.”
[16]
In
President of the RSA v South African Rugby Football Union
[1999] ZACC 9
;
1999 (4) SA 147
CC
at paragraph 39 the
Constitutional Court preferred the term “
apprehension
of
bias
” rather that the term “
suspicion of
bias
”. The Court, at paragraph 37 also referred, with
approval to the following passage in
BTR Industries SA (Pty)
Ltd v Metal & Allied Workers Union
[1992] ZASCA 85
;
1992 (3) SA 673
(A)
at 649I-550:
“
The
law does not seek … to measure the amount of his [the judicial
officer’s] interest. I venture to suggest that the
matter
stands no differently with regard to the apprehension of bias by a
lay litigant. Provided the suspicion of partiality is
one which might
reasonably be entertained by a lay litigant a reviewing Court cannot,
so I consider, be called upon to measure
in a nice balance the
precise extent of the apparent risk. If suspicion is apprehended,
then that is an end of the matter
.”
[17]
The test was further clarified in
S v Roberts
1999
(4) SA 915
(SCA)
at 924, paragraph [32] where Howie JA stated it
as follows:
“
Thus
far, the requirements of the test thus finalised are as follows as
applied to judicial proceedings:
(1)
There must be a suspicion that the
judicial officer might, not would, be biased;
(2)
The suspicion must be that of a
reasonable person in the position of the accused or litigant.
(3)
The suspicion must be based on
reasonable grounds.”
[18]
In
Hamata and Another v Chairperson, Peninsula Technikon
Internal Disciplinary Committee, and Others
2000 (4) SA
621
(C)
at para 67 the court explained the difference between
holding certain tentative views about a matter and prejudging the
matter
which constitutes bias as follows:
“
It
is our view that it is not bias per se to hold certain tentative
views about a matter. It is human nature to have certain prima
facie
views on any subject. A line must be drawn, however, between mere
predispositions or attitudes, on the one hand, and pre-judgment
of
the issues to be decided, on the other. Bias or partiality occurs
when the tribunal approaches a case not with its mind open
to
persuasion nor conceding that exceptions could be made to its
attitudes or opinions, but when it shuts its mind to any submissions
made or evidence tendered in support of the case it has to decide. No
one can fairly decide a case before him if he has already
prejudged
it. Thus pre-judgment of the issues to be decided (which is in a
sense prejudice) constitutes bias. The entire proceedings
become
tainted with bias
.”
The
test for rationality
[19]
Rationality, as a ground for the review of an administrative action
is dealt with in Section
6(2) (f) (ii) of PAJA which provides that:
“
A
court or tribunal has the power to review an administrative action if
the action itself is not rationally connected to
(aa)
the purpose for which it was taken;
(bb)
the purpose of the empowering provision;
(cc)
the information before the administrator; or
(dd)
the reasons given for it by the administrator
.”
[20]
The test for rationality was stated as follows by Chaskalson P, in
Pharmaceutical Manufacturers Association of SA and Another: In
re Ex parte President of the Republic of South Africa and Others
2000
(4) SA 674
(CC)
at page 708; paragraph 86:
“
The
question whether a decision is rationally related to the purpose for
which the power was given calls for an objective enquiry.
Otherwise a
decision that, viewed objectively, is in fact irrational, might pass
muster simply because the person who took it mistakenly
and in good
faith believed it to be rational. Such a conclusion would place form
above substance and undermine an important constitutional
principle.”
[21]
In
Trinity Broadcasting (Ciskei) v ICA of SA
2004(3)
SA 346 (SCA)
at 354H- 355A, Howie P stated the rationality test
as follows:
“
In
the application of that test, the reviewing Court will ask: is there
a rational objective basis justifying the connection made
by the
administrative decision-maker between the material made available and
the conclusion arrived at
.”
The
test for reasonableness
[22]
Reasonableness, as a ground for the review of an administrative
action is dealt with in Section
6(2) (h) of PAJA which provides that:
“
A
court or tribunal has the power to review an administrative action if
the exercise of the power or the performance of the function
authorised by the empowering provision, in pursuance of which the
administrative action was purportedly taken, is so unreasonable
that
no reasonable person could have so exercised the power or performed
the function.”
[23]
In
Bato Star Fishing (Pty) Ltd v Minister of Environmental
Affairs and Others
[2004] ZACC 15
;
2004 (4) SA 490
CC
at 512, para 44
O’Regan J approved the reasonableness test which was stated as
follows by Lord Cooke in
R v Chief
Constable of Sussex, ex
parte International Trader’s Ferry Ltd
[1995] 1 All ER 129
(HL) at 157:
“
The
simple test used throughout was whether the decision in question was
one which a reasonable authority could reach. The converse
was
described by Lord Diplock
[1976] UKHL 6
;
[1976] 3 All ER 665
at 697,
[1977] AC 1014
at 1064 as ‘conduct which no sensible authority acting with due
appreciation of its responsibilities would have decided to
adopt’.
These unexaggerated criteria give the administrator ample and
rightful rein, consistently with the constitutional
separation of
powers. … Whatever the rubric under which the case is placed,
the question here reduces, as I see it, to whether
the chief
constable has struck a balance fairly and reasonably open to him
.”
[24]
In
Carephone (Pty) Ltd v Marcus NO
1999 (3) SA 304
(LAC)
at 316, para 36 per Froneman JA, stated the test as
follows:
“
In
determining whether administrative action is justifiable in terms of
the reasons given for it, value judgments will have to be
made which
will, almost inevitably, involve the consideration of the ‘merits’
in some way or another. As long as the
judge determining [the] issue
is aware that he or she enters the merits not in order to substitute
his or her own opinion on the
correctness thereof, but to determine
whether the outcome is rationally justifiable, the process will be in
order
.”
The
duty to exhaust Internal Remedies
[25]
Section 7(2) PAJA provides that:
“
(a)
Subject to paragraph (c), no court or tribunal shall review an
administrative action in terms of this act unless any internal
remedy
provided for in any other law has first been exhausted.
(b)
Subject to paragraph (c), a court or tribunal must, if it is not
satisfied that any internal remedy referred to in paragraph
(a) has
been exhausted, direct that the person concerned must first exhaust
such remedy before instituting proceedings in a court
or tribunal for
judicial review in terms of this act.
(c)
A court or any tribunal may, in exceptional circumstances and on
application by the person concerned, exempt such person from
the
obligation to exhaust any internal remedy if the court or tribunal
deems it in the interest of justice.”
[26]
In
Koyabe and Others v Minister of Home Affairs and Others
2010
(4) SA 327
(CC) at 343, Mokgoro J stated the following regarding the
duty to exhaust internal remedies:
“
[38]
The duty to exhaust internal remedies is
therefore a valuable and necessary requirement in our law. However,
that requirement should
not be rigidly imposed. Nor should it be used
by administrators to frustrate the efforts of an aggrieved person or
to shield the
administrative process from judicial scrutiny. PAJA
recognises this need for flexibility, acknowledging in s 7(2) (c)
that exceptional
circumstances may require that the court condone
non-exhaustion of the internal process and proceed with judicial
review nonetheless.
Under s 7(2) of PAJA, the requirement that an
individual exhaust internal remedies is therefore not absolute
.”
[39]
What constitutes exceptional circumstances depends on the facts and
circumstances of the case and the nature of the administrative
action
at issue. Thus, where an internal remedy would not be effective and/
or where its pursuit would be futile, a court may permit
a litigant
to approach the court directly
.”
[27]
Dealing with the meaning of ‘exceptional circumstances’
in
Nichol v Registrar of Pension Funds
2008 (1) SA
383
(SCA)
at 390 para 16 per Van Heerden JA stated the following:
“
Counsel
for the registrar and the FSB submitted that, while there is no
definition of ‘exceptional circumstances’ in
PAJA, these
must be circumstances that are out of the ordinary and that render it
inappropriate for the court to require the s
7(2) (c) applicant first
to pursue the available internal remedies. The circumstances must in
other words be such as to require
the immediate intervention of the
courts rather than resort to the applicable legal remedy. I agree
with this contention. In the
words of Sir John Donaldson MR in
R
v Secretary of State for the Home Department, Ex parte Swati
[1986]
1 All ER 717
(CA) at 724a-b: By definition, exceptional circumstances
defy definition, but where Parliament provides an appeal procedure,
judicial
review will have no place unless the applicant can
distinguish his case from the type of case for which the appeal
procedure was
provided
.”
The
test whether the rules are overbroad
[28]
Rex v Jopp and Another
1949
(4) SA 11
(N)
established the test for
vagueness at common law where it is claimed that a by-law or
regulation is void for uncertainty: “
In
that case the Court must first construe the by-law or regulation,
applying the usual canons of construction with no bias towards
‘benevolence’. Having ascertained the meaning, the Court
must then ask itself whether the by-law or regulation, so
construed,
indicates with reasonable certainty to those who are bound by it the
act which is enjoined or prohibited. If it does,
it is good; if it
does not, it is bad; that is the end of the matter
.”
[29]
In
Dawood v Minister of Home Affairs
[2000] ZACC 8
;
2000 (3) SA 936
(CC)
at 966, para 47, the Constitutional Court stated that:
[47]
It is an important principle of the rule of law that rules be stated
in a clear and accessible
manner… Moreover, if broad
discretionary powers contain no express constraints, those affected
by the exercise of the broad
discretionary powers will not know what
is relevant to the exercise of those powers or in what circumstances
they are entitled
to seek relief from an adverse decision
…”
[30]
Again in the
Dawood
case the Constitutional
Court stated that:
“
Discretion
plays a crucial role in any legal system. It permits abstract and
general rules to be applied to specific and particular
circumstances
in a fair manner. The scope of discretionary powers may vary. At
times they will be broad; particularly where the
factors relevant to
a decision are so numerous and varied that it is inappropriate or
impossible for the legislature to identify
them in advance.
Discretionary powers may also be broadly formulated where the factors
relevant to the exercise of the discretionary
power are indisputably
clear. A further situation may arise where the decision-maker is
possessed of expertise relevant to the
decisions to be made
.”
[31]
In
Affordable Medicines Trust and Others
v Minister of Health and Others
[2005] ZACC 3
;
2006
(3) SA 247
(CC) Ncgobo J confirmed the decision in
Dawood
and stated
further
at para 34):
“
However,
the delegation must not be so broad or vague that the authority to
whom the power is delegated is unable to determine the
nature and the
scope of the powers conferred. For this may lead to the
arbitrary exercise of the delegated power. Where
broad
discretionary powers are conferred, there must be some constraints on
the exercise of such power so that those who are affected
by the
exercise of the broad discretionary powers will know what is relevant
to the exercise of those powers or in what circumstances
they are
entitled to seek relief from an adverse decision. These
constraints will generally appear from the provisions of
the
empowering statue as well as the policies and objectives of the
empowering statute.” (See also
Dawood
(supra) at para 47)
The
requirements for the interdictory relief
[32]
The requirements for a final interdict are well established: a clear
right, an injury actually
committed or reasonably apprehended, and no
other satisfactory remedy. (See
Setlogelo
v Setlogelo
1914 AD 221
at 227.)
Application
of the requirements of Section 7(2) of PAJA
[33]
The Applicant did not apply for the exemption as required in terms of
section 7(2) (c) of PAJA.
In his founding affidavit, however, he
stated the following in his founding affidavit, namely:
“
I
submit that I have no alternative remedy available to me than to
approach this Honourable Court for relief. I do not consider
the
option of an appeal against the finding of the Third Respondent as an
alternative remedy in that it has been made abundantly
clear that the
University wants me removed from the University precincts by all
means necessary. Furthermore, the University has
failed to consider
the findings made by Professor Leman in the appeal ruling of the
first suspension order. Despite the fact that
pertinent points
relating fairness was raised and despite the finding that the
University rules should be rewritten, the University
still elected to
suspend me. I am convinced that regardless of the outcome of yet
another appeal, the University will issue another
suspension order
against me and it is on this basis that I seek the Court’s
intervention
.”
[34]
This issue was raised by the Respondents as the basis for the review
to be dismissed. In response
to this the Applicant, in his reply
stated that:
“
There
is no point in exempting to exhaust internal remedies in
circumstances where the University appeal body cannot give me any
relief. The appeal body of the University has expressed clear
reservations about the fairness of the process followed by the
University.
It cannot, having expressed those comments, be expected
to grant me any relief in the context of the rules it says should be
revised
and rewritten to inject in them the requirements of fairness.
The University has elected to ignore this ruling. This case presents
very clear exceptions to the principle requiring the exhaustion of
internal remedies. There is no remedy I can be offered by appealing
to the same body that has expressly given its views on the nature of
the rules permitting suspensions
.”
[35]
The above should be understood in the context that the Applicant had
been suspended previously
in respect of the same incident.
He had lodged an appeal which was upheld resulting
in the suspension
order being set aside. The appeal ruling setting aside the suspension
order was made on 10 June 2015 and on 12
June 2015 it was already
reported in the Cape Times that “
UCT
is set to issue a new provisional suspension order on Maxwele on 15
June 2015
.” This is confirmed in
the Respondent’s answering affidavit that the Third Respondent
had decided already on 11 June
2015 that she was going to issue a
provisional suspension order.
[36]
The pursuit by the Applicant of the internal remedies previously
resulted only in the process
of his suspension being repeated and in
my view he was justified in concluding that the
internal
remedy would not be effective and/ or its pursuit would be futile
as
was stated in
Koyabe
case referred to above
.
I
am therefore of the view that exceptional circumstances exist,
justifying the exemption of the applicant from first having to
exhaust the internal remedies.
Application
of the test of reasonable suspicion of bias
[37]
It is the Third Respondent who had issued the first provisional order
and the first final suspension
order. She issued the first final
suspension order after having heard the representations from the
Applicant. At this stage she
would have heard to consider the matter
fully before coming to her decision to issue the first final
suspension order. This is
the suspension order which was set aside on
the basis that by the time the suspension hearing was conducted the
provisional suspension
order had lapsed and as such it could not be
converted into a final suspension order. During the second suspension
hearing the
Applicant applied for the recusal of the Third Respondent
on the basis that the Third Respondent could not be impartial or fair
in dealing with the matter as she had issued the first final
suspension order that had been set aside on appeal. The Applicant
also called into question the fairness and impartiality of the
process as the First Respondent had, after the setting aside of
the
first suspension order, announced in the media that another
suspension order would be issued. The Third Respondent refused
to
recuse herself holding that the Applicant had not made out a case for
her recusal.
[38]
In these proceedings it was argued on behalf of the Applicant that
there was a basis for the
Applicant to have a reasonable suspicion
that the Third Respondent would be biased as she had dealt with the
first suspension order.
It was also argued that what created a
reasonable suspicion of bias on the part of the Applicant was the
fact that the First Respondent
had issued a media statement on 12
June 2015 stating that it was set to issue another suspension
order on 15 June 2015. It
was argued on behalf of the Respondents
that “the fact that a decision maker has already considered the
matter once, is not
a bar to the decision-maker considering the
matter afresh and in this regard I was referred to section 8(1) (c)
(ii) (aa) of PAJA
which permits a court to substitute or vary the
administrative action or to correct a defect resulting from the
administrative
action only in ‘exceptional circumstances’.
I was also referred to the
Hamata
case where it was stated that it is not bias to hold certain
tentative vies about a matter.
[39]
The reference to section 8(1) (c) (ii) (aa) of PAJA does not, in my
view, support the submission
that “
the
fact that a decision maker has already considered the matter once, is
not a bar to the decision-maker considering the matter
afresh
”.
[40]
The
Hamata
case, in my view, supports the Applicant’s case in that the
Third Respondent not only held tentative views about the matter
but
had in fact made a decision, on the same facts to issue the first
final suspension order. In the answering affidavit it appears
that
already on 11 June 2015, a day after the first final suspension order
was set aside she had already made up her mind that
she was going to
issue the second provisional suspension order. In addition to this
the Third Respondent issued a media statement
stating that another
provisional suspension order was to be issued on 15 June 2015. This,
in my view, would give rise to
a suspicion on the part of the
Applicant that the hearing would be a mere formality. As stated in
the
Hamata
case “
no one can fairly decide a
case before him if he has already prejudged it. Thus pre-judgment of
the issues is to be decided (which
is in a case prejudice)
constitutes bias. The entire proceedings had become tainted with
bias
.”
[41]
Considering that the Third Respondent had dealt with the first
suspension order, the fact that
a day after the first suspension
order was set aside she decided to issue another provisional
suspension order and the fact that
this was communicated to the media
the Applicant’s apprehension of bias on the part of the
Third Respondent is not
unreasonable. I am therefore satisfied that
there were grounds requiring the Third Respondent to recuse herself
from the second
suspension hearing and that her failure to do so must
have given rise to the Applicant’s reasonable suspicion of her
bias.
The second suspension hearing was thus tainted with bias.
[42]
It was argued on behalf of the Respondents that the matter had become
moot as the terms of the
final suspension order had been varied by
agreement between the Applicant and the Third Respondent. This
argument misses the point
that the final suspension order that was
issued by the Third Respondent is still in place and it is only its
terms that have been
varied. The fact that the terms of the
suspension order have been varied cannot cure a suspension order that
stands to be set aside.
[43]
The Applicant, having succeeded to establish reasonable suspicion of
bias, I do not deem it necessary
to deal with the grounds of review
based on rationality and reasonableness.
The
unlawfulness of Rules DJP3.2 and 3.3
[44]
In respect of the challenge to Rules DJP3.2 and 3.2 on the basis that
they are overbroad, the
Applicant appears to have based his challenge
on the following passage from the ruling of the University appeal
tribunal, namely:
“
However,
it is further of the view that the SO rules and process need to be
revisited in light of the concerns that have arisen
in the course of
the suspension hearing and this appeal. The Tribunal is of the view
that, having regard to the potential seriousness
of the consequences
flowing from the imposition of a SO, the process should be infused
with an overriding concern for fairness
to all the parties and
compliance with good practice. A rewrite of the rules would also
provide an opportunity to remove uncertainties
in formulation
.”
[45]
These rules confer upon the Second Respondent or his nominee the
power to issue suspension orders
and they read as follows”
“
DJP3.2
If the Vice-Chancellor has reason to believe that the matter
justifies
the execution of a suspension order he or she may make a
provisional order prohibiting the student from:
(a)
attending lectures and classes; and/ or
(b)
participating in specified activities of the University; and/or
(c)
entering the precincts of the University or any such part thereof as
may be indicated by him or her; and/or
(d)
residing in a student housing unit; and/or
(e)
making contact, directly or indirectly, with one or more than one
specified person/s while on campus;
As
may be appropriate for the elimination of a particular threat to good
order and for a period not exceeding 72 hours.
DJP3.3
The Vice-Chancellor may impose any further conditions at the time of
issuing the preliminary order or at any time thereafter
.”
[46]
The Respondent submitted, correctly in my view, that the making
of the rules constitutes an administrative action for
the purposes of
PAJA, and as such the Applicant is required to base his cause of
action in PAJA. The Applicant seeks an order that
Rule DJP3.2 and 3.3
are unlawful in that they are vague, overbroad and arbitrary in
violation of section 33 of the Constitution
of the Republic of South
Africa, 1996. Although the Applicant basis his challenge of the
Constitution unlawfulness is a ground
of review under section 6(2)
(i) of PAJA. Thus, although the Applicant has not made specific
reference to PAJA, he cannot be non-suited
in instances where the
ground for the challenge falls under PAJA. To do so would be to
elevate form over substance.
[47]
Although the Applicant has argued that “
The
Third Respondent may essentially issue a series of suspension orders
on a subjective belief that does not serve the objective
purpose of
the rules
”, the reading of the
rules do not support this submission. The rules appear to be designed
to give the Second Respondent
discretion to issue a provisional
suspension order which is operative only for 48 hours. Before he can
issue such provisional suspension
order he has to have reason to
believe
that the matter justifies the execution of a suspension order, which
involves an objective test.
[48]
The power conferred on the Third Respondent can also be exercised
after receipt of a report from a member of the University
staff or a
student who has reason to believe that the continued presence of the
student against whom there is an allegation of
breach of Student code
is likely to pose a threat to the maintenance of good order within
the University.
[49]
There are thus jurisdictional requirements that have to be met before
a provisional suspension order can be issued.
[50]
In respect of Rule DJP3.3 it merely provides for the Vice-Chancellor
with the power to impose further conditions at the time
of issuing
the preliminary order or at any time thereafter.
The
Interdictory Relief
[51]
The Applicant sought two interdicts, namely:
51.1.
The interdict to operate pending the finalisation of these
proceedings; and
51.2.
The interdict to prevent the Respondents from issuing further
suspension orders in terms of RuleDJP3.2 in relation
to the incident
of 1 May 2015 on the basis that it is irrational and unreasonable.
[52]
The first interdict has become moot as these proceedings have now
been concluded and as such it is not necessary to consider
this
matter any further.
[53]
In respect of the second interdict it has been submitted on
behalf of the Respondents that the final suspension order
is only
valid for 100 days and that it cannot be extended beyond 100 days
unless there are pending criminal proceedings arising
from the same
incident that gave rise to the suspension order. The suspension order
would, thus have expired on 24 September 2015
and cannot be extended
beyond the 100 days as there are no criminal proceedings arising from
the same incident that gave rise to
the suspension order. For that
reason it does not appear that it is warranted to consider an
interdict preventing the Respondents
from issuing further suspension
orders arising from the same incident as if they were to issue
further suspension orders they would
be acting against the University
rules.
Costs
[54]
It was submitted on behalf of the Applicant that in the event of the
Applicant being successful the costs to be awarded should
include the
costs of two counsel. The Respondents were also represented by two
counsel and I cannot find any reasons why the Respondents
should not
be ordered to pay costs including costs of two counsel.
In
the circumstances I make the following order:
1.
The decision of the Third Respondent
to issue the final suspension order on 15 June 2015 is reviewed and
set aside;
2.
The Respondents are ordered to pay costs including costs of two
counsel.
NUKU,
AJ