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IN THE HIGH COURT OF SOUTH AFRICA

[EASTERN CAPE DIVISION, GRAHAMSTOWN]

CASE NO: 1604A/18

Heard on: 04/12/19

Delivered on: 26/03/20

In the matter between:

YOLANDA DYANTYI                                                       Applicant

And

RHODES UNIVERSITY                                                  First Respondent

SIZWE MABIZELA N.O.                                                  Second Respondent

WAYNE HUTCHINSON N.O.                                          Third Respondent

JUDGMENT

NHLANGULELA DJP

[1]        In this matter, the applicant seeks a relief which is framed in the following terms:

“1.        The following decisions of the third respondent’s Student’s Disciplinary Code, are reviewed and set aside -         

1.1         The decision of 10 November 2017, convicting the applicant on charges of kidnapping, insubordination, assault and defamation, in terms of Rules 4.3 and 4.17 (a) and (b) of the first respondent’s Student Disciplinary Code.

1.2         The decision on 17 November 2017, sanctioning the applicant by permanently excluding her from the first respondent, in terms of Rule 7.27 (b) of the first respondent’s Student Disciplinary Code, and making various ancillary orders.

2.         The decision of the first alternatively the second respondent, taken on or about 5 December 2017, refusing to entertain the applicant’s internal review of the conviction and sanction imposed by the third respondent.

3.         The matter is remitted to the first respondent for reconsideration before another Proctor.

4.         The first respondent is directed to pay the costs of these proceedings, in the event that they are opposed.”

[2]        The applicant deposed to a founding affidavit in support of the relief sought.  The applicant’s application is opposed by affidavit deposed to by Ms Susan Chantal Marguerite Smailes. Mr Jason Francis Manyanyeni and Dr Gladwell Sizwe Sixtus Mabizela filed supplementary affidavits.  These affidavits do not constitute the only evidence.  The evidence led in the disciplinary tribunal in which the applicant was convicted and expelled from the first respondent’s institution together with interlocutory proceedings that were heard by Lowe J, and referred to in the affidavits in this matter, constitute additional evidence which ought to be taken into account.

[3]        What led to the launching of the disciplinary proceedings were the charges that the first respondent brought against the applicant.  They read in the following terms:

“Charge 1

Contravening Rule 4.3 of the Student Disciplinary Code which provides that a student may not commit any common law crime.

It is alleged that you committed the common law crime of kidnapping in that on or about 17 April 2006 and at or around Rhodes University, you unlawfully and intentionally deprived Vuyo Myoyo, Luzuko Gcakasi and/or Jason Manyanyeni of his/their freedom of movement and held him/them hostage against their will when you acted in common purpose with inter alia Sian Ferguson, Simamkele Heleni and Zimkhitha Mpanzela.

Charge 2

Contravening Rule 4.17 (a) of the Student Disciplinary Code which provides that a student may not be insubordinate towards any members of the University staff.

It is alleged that on or about 17 April 2016 and at or around Rhodes University, you were insubordinate towards officials of the University including Dr Sizwe Mabizela and/or Ms Susan Smailes in that you unlawfully and intentionally refused and/or failed to adhere to lawful instructions from inter alia the Rhodes University Vice Chancellor Dr Sizwe Mabizela and/or from the Vice Chancellor’s Legal Advisor Ms Susan Smailes who instructed you to release Vuyo Myoyo, Luzuko Gcakasi and/or Jason Manyanyeni from your custody. You committed the said conduct when you acted in common purpose with among others any one or more of the [students cited above].

Charge 3

Contravening Rule 4.3 of the Students Disciplinary Code which provides that a student may not commit any common law crime.
It is alleged that you committed the common law crime of assault in that on/or about 17 April 2016 at Rhodes University, you unlawfully and intentionally manhandled and/or grabbed Jason Manyanyeni by his collar, pushed him continuously and spat in his face.

Charge 4

Contravening Rule 4.17 (b) of the Students Disciplinary Code which provides that a student may not engage in any conduct which is offensive/defamatory of any staff member, student or member of the public.

It is alleged that on several occasions you unlawfully and intentionally wrote, and/or tagged Buchule Madikizela on offensive and/or defamatory material which you and/or others posted on various social media websites, in which you referred Buchule Madikizela, amongst others, as a rapist.

[4]        The applicant tendered pleas of not guilty to kidnapping, insubordination, assault and defamation.  Pursuant thereto a disciplinary hearing took place which culminated in a finding that she was guilty in respect of all four counts.  Such a finding was followed by the following sanction:

(1)      Ms Dyantyi is excluded permanently from Rhodes University, forthwith as of the date of this order;

 (2)      No credit/s that Ms Dyantyi may obtain at any other institution during any period that she was excluded from Rhodes University will count towards any qualification issued by Rhodes University.

 (3)      Ms Dyantyi’s academic transcript shall be endorsed to read “Conduct Unsatisfactory – Student permanently excluded for: Kidnapping; Assault; Insubordination; Defamation.”

 (4)      Ms Dyantyi must vacate Rhodes University premises by close of business on the date of this order and may not attend on the Rhodes University campus for the duration of her exclusion.

  (5)     The order set out in paragraph 4 specifically prohibits Ms Dyantyi from attending the Rhodes University campus for any academic, administrative, social or any other purpose whatsoever, including, but not limited to, the writing of any outstanding examinations;

  (6)     Any examinations, practical or any other means of assessment that Ms Dyantyi may have written or done during the November 2017 examination period, which have not been finalised in terms of the Rhodes University Institutional Rules as at the date of this order, shall be regarded as pro non scripto.

[5]        When the disciplinary hearing commenced on 26 June 2017 the applicant had two other women students, Naledi Moshishi and Dominique McFall, who appeared with her before the Disciplinary Tribunal chaired by the third respondent.  Those women faced only the charges of kidnapping and assault.  Ms Moshishi deregistered as a student of the first respondent during the hearing on 07 August 2017 with the result that the disciplinary action was discontinued against her.  The hearing against the applicant and Ms McFall continued.  However, Ms McFall is not a party in these proceedings.  

[6]        The applicant instituted these judicial review proceedings under the auspices of s 6 (1) of the Promotion of Administrative Justice Act 3 of 2000 (PAJA), contending that the first respondent, through the second and third respondents, took certain administrative actions that materially and adversely affected her right to procedurally fair hearing in that: she was denied legal representation; the evidence adduced against her does not sustain the charges; the sanction imposed on her was inappropriate; she was denied her right to review the decision of the third respondent internally; the decision of the third respondent on the merits was ultra vires and that the decision of the third respondent on the merits was irrational and reasonably suspected of being tainted with bias.  After looking at the grounds for review and hearing arguments, it seems to me that the application is premised on breach of the provisions of s 6 (2)(a)(iii); s 6 (2)(c); s 6 2 (f)(ii)(dd) and s 6 (2) (h) of PAJA which raises various issues under the rubric of unfair administrative action.

[7]        The background facts of the disciplinary hearing sets the context in which the grounds for review have been framed by the applicant, and they derived from the evidence of Mr Jason Manyanyeni, Mr Luzuko Gcakasi, Mr Buchule Madikizela and Mr Arnold Mlandeli.  On 17 April 2016 a vigilante campaign launched by female students in the social media platform referred to as the Rhodes University Reference List named and shamed eleven male students on the allegation that they had committed a series of rapes on the campus with impunity.  The intention of the article was to name and shame those students so that they could be expelled from the University.  Mr Manyanyeni got to know that his name was one of those published in the list.  The publication was so wide-spread that it became a constant talking point on the campus so much so that it generated turbulence that would only be blown out on 17 April 2016 at about 10 pm.  During that fateful night a large group of female students, including the applicant, Ms Naledi Mashishi, Ms Yolanda Zulu, Ms Akhona Maqolo, Ms Noxolo Mpokwa, Ms Dominique McFall, Ms Yvonne Kelly, Ms Simamkele Heleni, Ms Zimkitha Mponzela, Ms Aphile Sololo and Ms Noxolo Mfoco marched to Jan Smuts House where they forcefully took Mr Manyanyeni out of his room.  Mr Manyanyeni testified that at the time the applicant was pointing at him; calling him an animal, a vile beast and a rapist; grabbing him on the collar; kicking, spatting him on the face and pushing him.  The members of the group told him in no uncertain terms that: “You and your fellow rapists are going to pay tonight.”  The video footage show that the applicant did not only shout but she also gave Mr Manyanyeni a shove.  Thereafter, Mr Manyanyeni was kept in custody of the hostile group of these students without his consent, and he was herded to four other University residences for the purpose of getting other alleged rapists male students out of their rooms.   Mr Gcakasi was the next to be taken out of his residence at Goldfields House; followed by Mr Vuyo Myoyo who was fetched from Cullen Bowles House; one Mr Butch who was fetched from Calata House and Mr Alfred Zungu who was fetched from Graham House.  However, Mr Zungu was not one of the persons mentioned in the List.  Mr Butch was not found in his residence.  Although Mr Gcakasi was found and subjected to the control of the members of the group, he launched a successful escape as the group was marching Mr Manyanyeni from his residence to Cullen Bowles House.  Mr Myoyo too managed to escape his capturers between 02 - 03 am of the next day. 

[8]        The herding of Mr Manyanyeni from one House to the other ended on 18 April 2016 at 9h00 when he was still kept in detention by the protesters, including the applicant.   The applicant was present in the crowd of the protesters at all times of the herding of Mr Manyanyeni up and down the residences of male students.  She was also present when the protesters formed a human chain around Mr Manyanyeni during the morning of 18 April 2016 when he was sitting on the ground dejected, exhausted and drowsy.  The protesters threatened to kill Mr Manyanyeni by strangling him with a stocking and necklacing.  It was the police intervention that secured the release of Mr Manyanyeni from the protesters by transferring him to the Police Station for the purpose of charging him for raping a female student.  However, no criminal prosecution materialized due to lack of evidence.  In fact, not a single male student who had been named in the List was prosecuted for raping a female student in Rhodes University.

[9]        Mr Manyanyeni was adamant that Ms Mashishi was part of the group of protesters which abused him for the whole night.  He did not see Mr Mashishi as being a rapist apologist and a traitor in the eyes of the members of her group because she never condemned their unlawful actions.  Mr Manyanyeni had also seen Ms Mashishi engaged in discussing a list of demands that the protesters had planned to deliver to the second respondent.  Ms McFall, of Gender Action Project, had also played a role in the perpetration of abuse upon Mr Manyanyeni.               She had joined the protesters at Cullen Bowles House.  She was there when the protesters struck Mr Manyanyeni on the head with an empty bottle. Mr Manyanyeni saw her in the morning accompanying his rape accuser to the Police Station to open a rape docket.

[10]      The testimonies of Mr Gcakasi and Mr Arnold Mlandeli corroborated the evidence of Mr Manyanyeni in my view.  According to Mr Gcakasi the intention of the protesters was to fetch him from Goldfields House so that he must “fetch other rapists” that the protesters were looking for. Mr Gcakasi heard the applicant saying with reference to him, that: “a rapist had been allowed to escape” and “can rapists control themselves when raping someone?” These utterances were made by the applicant after she and others, had arrived in the room of Ms Gcakasi and took him into their custody.  He later on launched a successful escape that landed him under the bed of a friend (Mr A Stuurman) of Cullen Bowles House.  Mr Mlandeli was not part of the List.  He was in his room when he heard the noise of the marchers to Jan Smuts House.  He woke up and went outside where he saw the protesters removing Mr Manyanyeni from his room and taking him in their custody.  He saw the applicant and heard her saying to Mr Manyanyeni: “How dare call us cock blockers.”   He saw Mr Manyanyeni and the protesters near the Drama Department where Mr Manyanyeni was refusing to sit down, whereupon he was told that he would not be allowed to sleep because: “the girl he raped had not been able to sleep since the day of the ordeal.” He testified that on 18 April 2016 at about 05h30–06h00, Mr Manyanyeni tried to run away, but he was stopped and re-captured.  He saw Ms McFall in a group of protesters that had formed a human chain around Mr Manyanyeni to ensure that he did not launch an escape.  On that occasion McFall had asked the second respondent as to why he was so concerned about rapists. Ms McFall had also recorded a footage of the incident of Mr Manyanyeni’s capture at about 06h38.  Mr Madikizela was a member of the SRC. He and the applicant had been friends who liked to communicate student issues through face book.  His name was not in the Ref. List.  According to him the vigilante campaign was launched under the leadership of the applicant behind the publication of the Ref. List.  He had been confronted by the applicant calling upon him to resign from the SRC by reason that he was a rapist with predatory tendencies towards the women students.  To that extent on 05 May 2016 the applicant posted his name on social media platforms besmirching his name.  He subsequently laid a complaint with the University and the SAPS concerning the conduct of the applicant.  He regarded the applicant as having been a leader in the Ref. List debacle and at the forefront of the vigilante campaign.

[11]      It is common cause that on 17 April 2017 at about 23h30 the second respondent and his Legal Advisor, Ms Smailes, went to Cullen Bowles House, met the protesters and warned them against marching on campus without a permit and taking Mr Manyanyeni and any other student into their custody.  The applicant was on the stairway when these warnings were issued.  The Warden of that House, Professor Gamtsiza, was also present.   The second respondent and Ms Smailes met the protesters again on the following morning and repeated the warnings to the protesters.  All these warnings fell on deaf ears.  Instead, the third respondent’s lawful instructions for the protesters to disperse and Mr Manyanyeni to be released from bondage were rejected for a reason that, allegedly, prior rape reports given to him had not produced some expected outcomes in the nature of expulsions of male students suspected of committing rapes.  Not only was the second respondent rejected, but he was pushed out of the way of the protesters and ridiculed.  Similarly, Professor Gamtsiza was intimidated.

[12]      The witnesses who testified on behalf of the applicant’s co-accused were the following: Ms Colleen Patricia Vassiliou, the Director of Student Affairs testified that she met the protesters on 18 April 2016 at 08h00 when they were encircling Mr Manyanyeni.  The situation there was chaotic to such an extent that the only way out of it was to call for police intervention as the second respondent’s instructions had been rejected by the protesters.  Ms Madison Milton, was a student at Rhodes University on 17 April 2016.  She and Ms McFall were residing together out of the campus.  They confirmed that the behaviour of the protesters was out of order and posed a security risk to the University community, including the second respondent and the male students who were being kidnapped.  Ms Natalie Donaldson was a lecturer in the Psychology Department in 2016.  She together with Ms McFall were the activist against gender based violence who took interest in getting the student’s voice heard.  Ms Donaldson did witness being: “pushed around a little bit by some of the student” at Cullen Bowles House.  Ms Catherine Deiner was a Warden at Graham House when the protesters arrived to evict Mr Alfred Zungu from his room.  She joined Ms Smailes at the time when the protesters were camping near the Drama Department until the police arrived at 08h00 to release Mr Manyanyeni from captivity.  Ms Tartlin Jacobs’ evidence is similar to that of other witnesses in the respect that as the protesters were marching on campus from one residence to the other they took into their custody male students who were suspected of committing rape on the campus.  She was coy about her own role and that of Ms McFall.

[13]      The applicant did not testify.  Neither did she cross examine Ms Deiner, Ms Milton and Ms Jacobs.  She was also not able to partake in the sentence proceedings.  The charges having been drawn-up by the University on 28 March 2017 and delivered to the applicant and her co-accused without delay, the hearing of the disciplinary enquiry commenced on 26 June 2017.   It proceeded in the presence of the applicant from time to time until 11 October 2017 whereafter the applicant decided not to take part in the continuation of the hearing that culminated in her being convicted on 10 November 2017 and sanctioned on 17 November 2017.

[14]      In evaluating the evidence the third respondent, as the Proctor, applied a useful tool drawn from a passage in: The South African Law of Evidence by Zeffert and Paizes, 2^nd Edition which reads as follows at p 97:

“A judgment must be based on a conspectus of all the evidence rather than a compartmentalized enquiry based on a piecemeal consideration of each fact in isolation.”

This approach requires taking into account even the evidence that was adduced in the urgent interdict proceedings under Case No. 1937/2016 that had been lodged against the applicant on 20 April 2016 and finalized by judgment of Lowe J on 01 December 2016. The factual scenario in those interdict proceedings and the current review application dove-tail in a large extent.  On those facts stated in Case No. 1937/2016 the first respondent obtained an order interdicting the applicant herein from kidnapping any member of the University community; destroying any property of the University; and from disrupting lecturers.  The factual findings made by Lowe J, amongst others, were that:

“[13]    In respect of [Yolanda Dyantyi] it seems to me the position is more aggravated.  There can be no doubt that the two men referred to were indeed kidnapped and forced from the residence and held against their will in a volatile crowd situation for a considerable time in fear of what may happen to them.  That this occurred is perfectly clear from the video of them sitting on the ground amongst the crowd, and from the affidavits of the University which fall clearly to be accepted on this aspect.  I am also completely satisfied on a proper approach to the papers that Fifth Respondent was involved in this as a participant, if not a leader, and associated herself closely with the kidnapping concerned.”

[15]      Similarly, the third respondent accepted the evidence of Mr Manyanyeni, and the corroborating evidence of Mr Gcakasi, Mr Mlandeli and Mr Madikizela that the applicant was present during the entire period in which the female students were protesting, and that she played a leading role in the protest in that she was the most vocal, she pointed out the direction of the protesters , she was the spokesperson of the group, she was opinionated and that she was situated in the fore-front of the marches.  To the extent that the applicant did not testify, the third respondent concluded that the evidence of Mr Manyanyeni and other witnesses called to testify on behalf of the University was most probably a true version of what happened on campus between 17-18 April 2016.  The third respondent did not accept the evidence of Ms McFall that she did not participate in the kidnapping and abusing of Mr Manyanyeni because in intervening on behalf of the protesters she addressed the protesters, drew up a list of grievances to be handed over to the second respondent and that she did link her hands with others as they were confining the body of Mr Manyanyeni to prevent him from fleeing.  The evidence of Ms Milton was rejected as she had displayed biasness towards Ms McFall.  The third respondent regarded the seriousness of the offences, which were not mitigated in any way, the propensity of the applicant to commit offences involving physical violence whilst on campus, her failure to show remorse towards her victims and her disregard for the safety of the members of the University community as being proportionate to the sanction that was imposed. That the applicant had previous disciplinary infractions on her record, those being violent and disorderly conduct (2015) and insubordination (2016), were taken into account towards sanction.

[16]      This Court is unable to find fault in the manner in which the third respondent evaluated the evidence in this matter.

[17]      The ground of review advanced against the evidence incriminating the applicant is that it is “plainly suspect” and is an “unsteady foundation” on which to rest the conviction and sanction.  This attack is premised on the evidence of Mr Manyanyeni that he was unable to see the applicant for lengthy periods during which he claimed that about 1500 to 2000 protesters, including the applicant, were holding him hostage; and that Mr Gcakasi failed to mention the applicant in an affidavit prepared contemporaneously with the events leading to her conviction despite having referred to her as a leader of the protesters.   At the same breath Ms De Vos SC, who appeared for the applicant, submitted that this Court is not being invited to enter into the merits of the disciplinary enquiry as the applicant’s case is that the third respondent’s decisions are irrational within the meaning of s 6 (2)(f)(ii)(dd) and s 6 (2)(h) of PAJA.

[18]      The manner in which the applicant went about exercising her constitutional right to be heard in the disciplinary inquiry must be placed in its proper perspective.  It is not correct that the applicant was denied her right either to be heard and/or to be legally represented before and during the disciplinary inquiry as well as after she was convicted.  The events of 17 and 18 April 2016 led to the framing of charges against the applicant that was followed by the commencement of the enquiry on 26 June 2017.  At the commencement of the hearing the applicant brought with her a highly esteemed team of four legal practitioners under the leadership of De Vos SC.  The hearing of the matter took off and it was continued in nine sittings until it was postponed on 11 October 2017 to 26, 27 October 2017 and to 06, 07, and 08 November 2017.  Having resisted such a postponement, albeit unsuccessfully, both the applicant and her legal team decided not to engage in the disciplinary proceedings as they had already formed a view that the refusal by the third respondent to postpone the matter to 29 November 2017 was unreasonable. Consequently, the enquiry proceeded in their absence until it was concluded with a verdict and sanction that are now being impugned by the applicant on the broad basis that her right to fair administrative action was breached.  The specific grounds for review may be enumerated as follows:

(i)          the third respondent erred in ruling that the applicant was not entitled to be provided with witness statements and further particulars to the charges.

(ii)        the third respondent dismissed an application for a relief that the first respondent lacked jurisdiction to prosecute common law crimes of kidnapping and assault as pre-figured in charges 1 (kidnapping)  and 3 (assault).

(iii)       the third respondent dismissed an application for a stay of disciplinary proceedings pending the outcome of an appeal in the SCA against the judgment of Lowe J.

(iv)       the third respondent dismissed a point in limine that it was irregular of him to read the Prosecution Exhibit Bundle prior to the commencement of the hearing and without such documentation being admitted into evidence as exhibits.

(v)        the third respondent conflated his role as the Proctor with that of the University whose sole interest was to secure expulsion of the applicant from the University by pre-judging the applicant as a leader of the group of protesters without a finding having been made in the disciplinary proceedings.

(vi)       the first and second respondents deprived the applicant her right to internal review of the decision of the third respondent.

(vii)      after the hearing on 27 June 2017 the third respondent considered an oral application for a postponement to 07 and 08 August 2017; and to 04, 05, 06 and 07 September 2017 without consulting the applicant’s legal representatives.

(viii)     on 11 October 2017 the third respondent unreasonably refused to postpone the hearing to 29 November 2017 or in early December and thereby excluded the applicant from the disciplinary hearing.

(ix)       the decision of third respondent on the merits was tainted with bias.

(x)        the sanction imposed was grossly disproportionate to the applicant’s proven conduct.

[19]      The submission made on behalf of the applicant that the review is being brought in terms of section 1 (c) of the Constitution, 1996 requires elucidation.

[20]      It was stated in Harrielall v University of Kwa-Zulu Natal 2018 (1) BCLR 12 (CC) at 16 that the University is an organ of State within the meaning of s 1 of the Promotion Of Administration Justice Act 3 of 2000 (PAJA).  The third respondent’s power to preside over the disciplinary inquiry derived from the first respondent which, in terms of s 36 of the Higher Education Act 101 of 1997 (HEA) is a public institution vested with power to discipline students enrolled in it on contract basis to pursue academic programs. Section 36 reads:

“every student at a public higher education institution is subject to such disciplinary procedures as may be determined by the institutional statute on the institutional rules.”

The Rhodes University Student Disciplinary Code of 01 January 2015 (the Code) that governed the disciplinary hearing chaired by the third respondent is such institutional rules.  In terms of Rule 2 thereof the second respondent is enjoined to appoint a suitably qualified person to preside at a disciplinary hearing or review.  The decisions taken by the third respondent are administrative actions within the meaning of s 1 of PAJA and are, therefore, subject to judicial review as is contemplated in s 6 (1) of PAJA.  The jurisdiction of this Court to review the decisions of the third respondent, and by extension the first respondent, derives from s 6 (2) of PAJA.  In other words, to succeed in this application the applicant must bring her case within the purview of s 6 (2) by showing that the decisions of the third respondent were biased or reasonably suspected of bias (s 6 (2)(a)(iii); procedurally unfair (s 6 (2)(c); irrational (s 6 (2)(f)(ii)(dd); and is so unreasonable that no reasonable person could not have so exercised the disciplinary powers as he did (s 6 (2)(h)).              Under s 33 (1) and (2) of the Constitution 1996 the test of reasonableness for review purposes was stated by Van Reenen J in Van Zyl v New National Party and Others [2003] 3 All SA 737 (c) as follows in para [49]:

“The right to just administrative action entrenched in Section 33(1) and (2) of the Constitution consists of three components namely lawfulness, reasonableness and procedural fairness. Hugh Corder in South African Constitutional Law (2002): The Bill of Rights (Editors M H. Cheadle et al) at 614, expresses the view that as the requirements of lawfulness and procedural fairness cover all formal and procedural aspects, it follows that the constitution, by the introduction of the requirement of reasonableness, “demands a degree of review of the substance of the decision” and “represents a significant advance into the area of limited merits review”. In a review of that kind the merits are not considered in order to determine whether the conclusion arrived at by the administrative decision-maker is right or wrong but whether there is a rational basis between the outcome and the material available justifying such a conclusion (See: Carephone (Pty) Ltd v Marcus NO 1998(11) BLLR 1093 (LAC) paragraph 37; Bel Porto School Governing Body v Premier, Western Cape 2002(3) SA 265 (CC) paragraph 84 et seq). Although there is no explicit entrenchment of the right to reasonable administrative action in the AJA, sections 6(2)(f)(ii) and 6(2)(h) thereof give effect thereto through the mechanism of review on the basis of lack of rationality and absence of reasonableness respectively.”

[21]      In Carephone (Pty) Ltd v Marcus NO and Others 1999 (3) SA 304 (LAC) the test of rationality was stated as follows in para [37]:

“Many formulations have been suggested for this kind of substantive rationality required of administrative decision makers, such as ‘reasonableness’, ‘rationality’, ‘proportionality’ and the like (Cf. e.g. Craig, Administrative Law, above, at 337-349; Schwarze, European Administrative Law, 1992 at 677). Without denying that the application of these formulations in particular cases may be instructive, I see no need to stray from the concept of justifiability itself. To rename it will not make matters any easier. It seems to me that one will never be able to formulate a more specific test other than, in one way or another, asking the question: is there a rational objective basis justifying the connection made by the administrative decision-maker between the material properly available to him and the conclusion he or she eventually arrived at? In time only judicial precedent will be able to give more specific content to the broad concept of justifiability in the context of the review provisions in the LRA.”

The Constitutional Court in Bel Porto School Governing Body and Others v Premier, Western Cape and Others [2002] ZACC 2; 2002 (3) SA 265 (CC) gave a stamp of approval to the test of rationality.

[22]      For present purposes reliance directly on s 1 (c) of the Constitution will not be a proper approach to adopt in measuring up the fairness and reasonableness of the decisions taken by the third respondent. It is stated appositely in the case of National Energy Regulator of South Africa v PG Group (Pty) Ltd 2019 (1) BCLR 1185 (CC) at 1211 as follows:

“[112]  Since PAJA is applicable to the present claim, the    applicants for review were bound to rely on the grounds listed in section 6 of PAJA.  Where legislation has been passed to give effect to constitutional rights, the party that seeks to vindicate those rights must rely on that legislation and not directly on the Constitution.  Therefore, it would not have been competent for the review applicants to rely on the principle of legality sourced directly from the Constitution.

[113]    … Litigants should not be allowed to sidestep PAJA where it applies, by relying on the principle of legality.  To permit this would seriously undermine PAJA and the constitutional principle of subsidiarity.  Reliance on the principle of legality must be endorsed where PAJA does not apply.  This approach would bring coherence in our jurisprudence.  As was noted in Democratic Alliance, reliance on procedural rationality was permitted in executive decisions to which PAJA did not apply.”

[23]      In opposing the relief sought the respondents have dealt extensively with the grounds for review to show that the decisions made by the third respondent are sustainable.  To avoid prolix I deal with the bases for opposing the relief sought in the process of evaluating the facts and making a determination whether or not there is merit in the grounds of review.

[24]      The thrust of the applicant’s case on review is that the third respondent should have recused himself from presiding in the disciplinary inquiry because he lacked impartiality and independence that was required of him as the Proctor.      The legal yardstick on which to measure-up the role of the third respondent is articulated in the cases of: President of The Republic of South Africa v S A Rugby Football Union And Others [1999] ZACC 9; 1999 (7) BCLR 725 (CC) [SAFRU II] BTR Industries South Africa (Pty) Ltd and Others v Metal and Allied Workers’ Union and Another [1992] ZASCA 85; 1992 (3) SA 673 (A) at 690A – 695C; S v Basson 2005 (12) BCLR 1192 (CC) (Basson II); Enrico Bernnert v Absa Bank Ltd in Case CCT 37/2010 [201] ZA CC 28 at 605F-606D; 2011 (4) BCLR 329 (CC); 2011 (3) SA 92 (CC) at 100, 101, 102, 111 and 119.

[25]      In Basson II the Constitutional Court sets out the constitutional foundations of impartiality and independence as follows at 644:

“[23]    Access to courts that function fairly and in public is a basic right.  Section 34 of the Constitution of the Republic of South Africa, 1996 states:

‘Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.’

[24]      The impartiality of judicial officers is an essential requirement of a constitutional democracy and is closely linked to the independence of courts.  Section 165 (2) of the Constitution states:

‘The court are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.’”   

[26]      Before the new constitutional dispensation was ushered in the Appellate Division in BTR at 693I-J had the following to say about the test of bias:

“… 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.”

This test was adopted under the new dispensation in SARFU II at 747. 

[27]     In Enrico Bernnert at 100, 101, 102, 111 and 119 the Constitutional Court set out the legal principles that apply when a litigant makes an allegation of bias as follows:

“[28]    It is, by now, axiomatic that a judicial officer who sits on a case in which he or she should not be sitting, because seen objectively, the judicial officer is either actually biased or there exists a reasonable apprehension that the judicial officer might be biased, acts in a manner that is inconsistent with the Constitution.  This case concerns the apprehension of bias.  The apprehension of bias may arise either from the association or interest that the judicial officer has in one of the litigants before the court or from the interest that the judicial officer has in the outcome of the case.  Or it may arise from the conduct or utterances by the judicial officer prior to or during proceedings.  In all these situations, the judicial officer must ordinarily recuse himself or herself.  The apprehension of bias principle reflects the fundamental principle of our Constitution that courts must be independent and impartial.  And fundamental to our judicial system is that courts must not only be independent and impartial, but they must be seen to be independent and impartial.

…

[33]      But as this Court pointed out in both SARFU 11 and SACCAWU, this presumption can be displaced by cogent evidence that demonstrates something the judicial officer has done which gives rise to a reasonable apprehension of bias.  The effect of the presumption of impartiality is that a judicial officer will not lightly be presumed to be biased.  This is a consideration a reasonable litigant would take into account. The presumption is crucial in deciding whether a reasonable litigant would entertain a reasonable apprehension that the judicial officer was, or might be, biased.

[34]      The other aspect to emphasise is the double-requirement of reasonableness that the application of the test imports.  Both the person who apprehends bias and the apprehension itself must be reasonable.  As we pointed out in SACCAWU, “the two-fold emphasis… serve[s] to underscore the weight of the burden resting on a person alleging judicial bias or its appearances.”  This double-requirement of reasonableness also “highlights the fact that mere apprehensiveness on the part of a litigant that a judge will be biased – even strongly and honestly felt anxiety – is not enough.”  The court must carefully scrutinise the apprehension to determine whether it is, in all the circumstances, a reasonable one.

[35]      The presumption of impartiality and the double-requirement of reasonableness underscore the formidable nature of the burden resting upon the litigant who alleges bias or its apprehension.  The idea is not to permit a disgruntled litigant to successfully complain of bias simply because the judicial officer has ruled against him or her.  Nor should litigants be encouraged to believe that, by seeking the disqualification of a judicial officer, they will have their case heard by another judicial officer who is likely to decide the case in their favour.  Judicial officers have a duty to sit in all cases in which they are not disqualified from sitting.  This flows from their duty to exercise their judicial functions.  As has been rightly observed, “[j]udges do not choose their cases; and litigants do not choose their judges.  An application for recusal should not prevail unless it is based on substantial grounds for contending a reasonable apprehension of bias.

…

[65]      …, the test for bias in our law is by now settled.  That test is whether a reasonable, objective and informed person would, on the correct facts, reasonably apprehend bias.

…

[102]   As we held in Basson II, “a mistake on the facts, even if correct, is not ordinarily sufficient on its own to give rise to a reasonable apprehension of bias.  Judicial officers are not super-human beings who do not make mistakes.  That is why there is an appellate process to correct mistaken findings on law or facts.  A mistake on the facts will only give rise to a reasonable apprehension of bias if it is so unreasonable on the record that it is inexplicable except on the basis of bias.  A litigant who relies on bias based on incorrect factual findings bears the onus of establishing this fact.  This is a formidable onus to discharge.”               

[28]      Having read the papers and hearing counsel from both sides, I am persuaded that the presumption that the third respondent was impartial and exercised independence as the Proctor has not been displaced by cogent evidence.  Neither does it appear to me that apprehensiveness on the part of the applicant that the third respondent was biased in favour of the first respondent is a reasonable one.  The reasons are set out below.

[29]      Prior to the commencement of the disciplinary proceedings on 26 June 2017 the applicant alerted the respondents that an application would be made for an order dismissing the disciplinary proceedings for a lack of jurisdiction or alternatively, for the proceedings to be suspended pending the exhaustion of an appeal against the judgment of Lowe J.  The allegations made affidavit were that the first respondent did not have jurisdiction to discipline the applicant for committing common law crimes of kidnapping and assault because they were not specifically mentioned in the Code.  It was contended further that since the issues on appeal are the same as the issues to be canvassed in the disciplinary hearing between the same parties, a final decision by the SCA will render moot any decision that the disciplinary tribunal can make.  On the other hand, if the disciplinary enquiry continues and results in her expulsion from the University the appeal will be rendered moot.  The applicant alleged further that the likelihood of being confronted with two decisions that are premised on the same factual matrix will unfairly place her in double jeopardy.  The applicant sought another relief that she be provided with statements of witnesses that the University intended to call in terms of Rule 7.4 of the Code.

[30]      The third respondent dismissed any contention which seeks to suggest that the first respondent cannot discipline a student alleged to have committed kidnapping and assault for a reason that Rule 4 of the Code, read with s 36 of the (HEA) enjoin the University to exercise discipline for the good of its own students, the victims of such offences, the University community and the University itself.  In terms of Rule 1.4 a contravention of any rule of the Code is a disciplinary offence.  Rule 4.3 stipulates that a student may not commit any common law crime.  The offences of kidnapping and assault are such common law crimes. The technical interpretation of the Code as advanced on behalf of the applicant would only produce unhelpful nuances which do not detract from the simple policy of the University that as an institution it had a prerogative of disciplining unacceptable student behaviour, lest chaos was permitted to reign.  The third respondent found that the appeal against the interdict to stop the applicant from engaging in disruptive conduct on the campus served a purpose that was different from that of disciplining her for offences that she had already committed.  On the issue of witness statements, the third respondent reasoned that the first respondent would not be in a position to provide statements as none had been obtained from the ordinary witnesses that were intended to be called to testify in due course.  Consequently, I can find nothing untoward in the dismissal of the application that was brought on 26 June 2017.

[31]      At the commencement of the second day of hearing on 27 June 2017 the applicant, aggrieved by the dismissal of her application on 26 June 2017 launched an application for a relief that the third respondent must recuse himself as the Proctor.  In such application the applicant alleged that she reasonably perceived that: (i) she was not going to have a fair trial for the reason that the third respondent had read the Prosecution’s bundle of documents before it was introduced into the evidence; (ii) during the hearing of 26 June 2017 the third respondent made utterances that the applicant played a leading role in the violent conduct of the protesters that led to the charges being preferred against her and the interdict proceedings being brought against her in the High Court; and that (iii) the third respondent had failed to distinguish his role when in the midst of a debate whether proceeding with the disciplinary hearing on the face of pending appeal proceedings before the SCA would not be construed as contemptuous conduct on the part of the University, the third respondent made utterances that:  “I am the University” – since the obligation to preside over the disciplinary enquiry lay on the Protoctor, not the University. 

[32]      In deciding the application for recusal the third respondent reasoned that since the parties and himself were served with the Prosecutor’s Bundle of Exhibits that was still to be tested at the hearing it was appropriate for him to study the bundle and acquaint himself with the issues set out in those documents.  The Exhibit Bundle comprised a set of documents such as the affidavits and judgment used in the High Court interdict proceedings.  To the extent that the exhibits were relevant materials for use in deciding the issue of stay of the disciplinary hearing pending the finalization of the appeal, it was necessary for the third respondent to study the exhibits.  And the exhibits emanated from one of the parties rather than the first respondent.  In that sense an issue merging the two roles of the first and third respondents would never arise.  Further, the exhibits contained in Lowe J’s judgment in which a finding of fact was already made that the applicant was a leader of the protesters had to do with an interdictory relief.   For the first respondent to secure expulsion of the applicant the finding of Lowe J would never be conclusive proof in the disciplinary tribunal.   A discussion of the issue during debates pertaining to the application for a stay of the disciplinary hearing that had to be decided would not, in my view, have been a prejudgment of the issue of the applicant’s guilt.  For that reason a perception of bias would not be a reasonable conclusion to be made.

[33]      The third respondent did not view the arrangements of the 28 June 2017 as being an ex parte postponement designed by him to exclude the involvement of the applicant in that as a fact the initial agreement that this matter be postponed to 04-07 September 2017 was inclusive of the participation of the applicant.  Similarly, the addition of 07-08 August 2017 dates for hearing had been ratified by the legal representatives of the applicant.  As a result the disciplinary proceedings, which were commenced in June 2017, were continued on the dates on which they had been postponed.  I am not persuaded that this postponement, together with that of 11 October 2017, deprived the applicant of her right to legal representation.  The difference in the postponement of 11 October 2017 from that of 28 June 2017 lies in the fact that the applicant did not attend the hearing on 26 October 2017 and beyond.

[34]      On 24 October 2017 Counsel for the applicant brought an application for a relief that the disciplinary hearing be proceeded with on 29 November 2017 rather than in late October 2017 and early November 2017 citing reasons such as that one out of four members of the applicant’s legal team had to attend a conference in New York and that another member had work to attend to in other courts.  On the other hand the Disciplinary Tribunal had been constituted to commence its work and finalize it at the very least within the 2017 calendar year of the University.  The legal team for the applicant was not prepared to consider the alternative ways of truncating the proceedings that the hearing continue for longer periods on the days that it runs and that the hearing be scheduled to run on week-ends.  The third respondent decided that a delay in the hearing being finalized will be avoided by refusing the application for postponement, and ordering that the hearing proceeds on 26 October 2017.  But the applicant together with her legal representatives failed to attend the hearing.  Now the applicants contends that the refusal of postponement was meant to exclude her from the disciplinary hearing.  The respondents denies this.  Nevertheless, Rule 7.32 of the Code does allow the hearing to be continued in the absence of the applicant in the circumstances, such as those obtaining here, where the applicant has deliberately and without permission or just cause withdrew her participation from the disciplinary hearing.  The third respondent did not find his decision to be unfair or unreasonable.

[35]      A cursory look at the case of Hamata And Another v Chairperson, Peninsula Technikon Internal Disciplinary Committee And Others 2000 (5) SA 449 (SCA) shows that the third respondent did not violate the principle stated in Hamata that proper legal representation must be allowed in disciplinary tribunals where the charge against the accused is serious, the issues involved are complex in nature and an adverse finding against the accused has serious consequences.  A calibre of highly qualified legal team of four lawyers under the leadership of a Senior Counsel was permitted to represent the applicant from the commencement of the proceedings.

[36]      The ground of review that the first and second respondents denied internal review of the decisions convicting and punishing the applicant does not have a legal basis.  Rule 7.36 of the Code provides to the effect that within seven days of the imposition of a sanction a Proctor shall compile and forward to the affected party the record of the proceedings.  Accordingly, such a record was delivered to the applicant.  The applicant contended that since she wished to rely on the ground that the facts found proved by the third respondent were in conflict with the digital record of the proceedings as envisaged in Rule 8.4 the respondents were obliged to deliver the digital record to allow exercise of her internal review rights.  However, the applicant did not inform the respondents that she wished to exercise her right to internal review within five days of receiving the record as defined in Rule 7.36.  For that reason the right to apply for internal review lapsed and the second respondent rejected the late filing of applicant’s request for internal review.  Neither did the applicant seek condonation for her failure from the second respondent.  The applicant contended that the term: “record” in Rule 7.36 bears the same meaning as “the digital record” in section 8.4.  This court in Dominique McFall v Rhodes University and Another, Case No. 5456/17 (unreported) at para [10] held that the interpretation of Rule 7.36, such as the one advanced by the applicant in this case is:

“… in my view a very strained and self-serving one.  Section 7.36 of the code is unambiguous regarding which documents constitute the record of the disciplinary proceedings… In terms of section 8.5 of the code she was then constrained to exercise her right of review within five days of having received the documents.”

[37]      In Rule 7.36 the term “record of the proceedings” is defined as the recording of charges, pleas, material facts found proved including aggravating and mitigating circumstances, the reasons for the verdict and the sanction imposed including the reasons thereof.  In these review proceedings this Court will follow the judgment in the case of McFall.

[38]      It was contended on behalf of the applicant that the sanction imposed is unreasonable in that it is grossly disproportionate to the offences of which she was sanctioned.  The third respondent found that the sanction imposed was appropriate for the reasons that the offences of kidnapping, insubordination and assault were serious violent offences committed upon defenceless victims who had done no wrong.  Moreso, the applicant did not show remorse for her actions that threatened peace and security on the campus.  She treated reasonable interventions by the second respondent with disdain.  The failure of the applicant and the members of her group to adhere to the instructions of the second respondent that they must desist from committing crimes and their rejection of available channels to lodge complaints both to the University and police was the conduct that was so heinous that it deserved proportionate punishment.  Added to that was the fact that the applicant had two previous records of violent and disorderly disciplinary infractions which means only that the applicant was not prepared to change her unacceptable behaviour.  With these aggravating factors taken into account the third respondent’s decision on sanction served the interests of justice.

[39]      The upshot of these review proceedings is that the applicant has failed to make a case for the grant of the relief sought by her.  Put differently, I find that the third respondent’s decisions were rationally connected to the evidence adduced.  He applied all the institutional rules of the first respondent reasonably, correctly and without prejudice to or bias against the applicant; and that he displayed awareness that he had to discharge his functions in an independent and impartial manner that was required of a Proctor. The application falls to be dismissed.  Consequently, the next, and last, issue for decision is whether the costs should follow the result of the application or not.

[40]      It was argued strenuously on behalf of the applicant that this is not one of the cases in which the general rule that costs should follow the result.

[41]      In an attempt to ward-off an adverse costs order the applicant relied on the case of Biowatch Trust v Registrar, Genetic Resources 2009 (6) SA 232 (CC) in which it was held that as a general rule in constitutional litigation, an unsuccessful litigant in proceedings against the State ought not to be ordered to pay costs; the rationale for this rule being that an award of costs might have a chilling effect on the litigants who might wish to vindicate their constitutional rights.  In Harrielall, supra, the caveat to the general rule was stated in the following terms at 15:

“[12]    However, the rule is not a licence for litigants to institute frivolous or vexatious proceedings against the State.  The operation of its shield is restricted to genuine constitutional matters.  Even then, if a litigant is guilty of unacceptable behaviour in relation to how litigation is conducted, it may be ordered to pay costs. This means that there are exceptions to the rule which justify a departure from it.  In Affordable Medicines this Court laid down exceptions to the rule.  Ngcobo J said:

“There may be circumstances that justify departure from this rule such as where the litigation is frivolous or vexatious.  There may be conduct on the part of the litigant that deserves censure by the Court which may influence the Court to order an unsuccessful litigant to pay costs.””

  [13]    In yet another case of Lawyers for Human Rights, this Court defined the exceptions to the Biowatch rule.  It stated:

“What is ‘vexatious’? In Bisset the Court said this was litigation that was ‘frivolous, improper, instituted without sufficient ground, to serve solely as an annoyance to the defendant’.  And a frivolous complain?  That is one with no serious purpose or value.  Vexatious litigation is initiated without probable cause by one who is not acting in good faith and is doing so for the purpose of annoying or embarrassing an opponent.  Legal action that is not likely to lead to any procedural result is vexatious.”

[42]      It was submitted on behalf of the respondents that this case is one of those that should be decided on the exception to the general rule stated in Biowatch for the reasons that the applicant sought to mislead this Court in many ways, acted in the most obstructive manner throughout the process of her hearing and showed scant regard for rules and procedures; thereby demonstrating a frivolous and vexatious approach to this litigation.

[43]      It is indeed so that the manner in which the applicant conducted herself throughout the litigation process that she unleashed in the Disciplinary Tribunal, in this Court, as well as at the Supreme Court of Appeal and Constitutional Court is evidently frivolous and vexatious.  Therefore, in the exercise of judicial discretion based on the exceptional factors emerging in this matter this Court is bound to decide the issue of costs against the applicant.

[44]      In the result, the following order shall issue:

“The application for review is dismissed with costs.”

______________________________________________

Z. M. NHLANGULELA

DEPUTY JUDGE PRESIDENT OF THE HIGH COURT

MTHATHA

Counsel for the applicant:                         Adv. A.M. De Vos SC,

                                                                  appearing with:

                                                                  Adv. S. Wilson,

                                                                  Adv. O. Motlhasedi

Instructed by:                                             Seri Law Clinic

                                                                   c/o Legal Resources Centre

                                                                   GRAHAMSTOWN

Counsel for the 1^st and 2^nd respondents:   Adv. I.J. Smuts SC,

                                                                    appearing with:

                                                                    Adv. N. Molony

Instructed by:                                               Eversheds Sutherland (SA) Inc

                                                                     c/o Huxtable Attorneys

                                                                     GRAHAMSTOWN 

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