Student Protest - Interim interdict - Grahamstown High Court
SERI represented three students and a collection of concerned staff members of Rhodes University, in opposing an interim interdict granted in the Grahamstown High Court.
The interdict, which was granted on 20 April 2016, intended to address the “discord” at the university. It restrains a wide variety of persons, including the three students and concerned staff, from “encouraging, facilitating and/or promoting any unlawful activities” at the university. The students and staff were concerned about the vagueness and reach of the interdict.
The students, and many others not specifically named in the interdict, embarked upon a peaceful protest to raise awareness of rape and sexual violence at Rhodes University. The protest took place between 17 and 20 April 2016 on the University’s campus and quickly became known as the “RUReference List protest”, in reference to a list posted on Facebook, of the names of 11 current and former male students of Rhodes University who were said to be notorious for aggressively pursuing sexual contact with women on the campus.
Beginning spontaneously and gradually, the protest eventually grew in size and it is estimated that between 200 and 2,000 people, consisting of both staff members and students, participated. The protesters were opposing the perceived pervasive rape culture at Rhodes University and aimed to bring attention to the purported embeddedness of rape culture at both this university and other tertiary institutions across the country.
The protesters picketed outside the male residences at the University and some of them confronted male students. The University claims that these male students were kidnapped, assaulted, and defamed by some of the protestors.
The protesters were interdicted from continuing their protest without any notice that proceedings were being brought against them. Rhodes University's application for the interim interdict was essentially ex parte because none of the concerned students or staff received notice of the application before the interim interdict was granted. The evidence led by Rhodes University was accordingly unchallenged.
The students and staff believe that interdicts that restrain lawful picketing and assembly, as the relief sought by Rhodes University does, were inappropriate, and ought not to be granted. Further, they argued that Rhodes University had not led any credible evidence that any specific individual or group had committed any unlawful acts.
The lawfulness of granting such a far-reaching interdict against an unascertainable class of persons was not tested in the court. Instead, the interdict was granted after the court heard oral evidence from five members of the university’s management and administrative staff.
The matter was heard in the Eastern Cape High Court sitting in Grahamstown on 3 November 2016. The High Court dismissed Rhodes' application for the final interdict on 1 December 2016. A narrower interdict was, however, granted against three of SERI's clients. On 24 April 2017, SERI applied to the Supreme Court of Appeal (SCA) for special leave to appeal this interdict. SERI argued that the three were singled out because they were viewed as the leaders of the protest. On 2 July 2017, the SCA refused the special leave to appeal. On 20 July 2017, SERI filed an application for special leave to appeal to the Constitutional Court. On 7 November 2017, the Constitutional Court handed down a judgment which set aside the cost orders of the High Court and the SCA in the application for leave to appeal.
Dyantyi v Rhodes University
SERI represents Yolanda Dyantyi, a former student at Rhodes University and one of the three students named in the interdict. Yolanda was due to write her final exams in 2017 but was permanently excluded from the University on 17 November 2017 after a disciplinary hearing, before she could sit for her exams.
Exclusion and cost orders
Rhodes University charged Yolanda with “kidnapping”, “insubordination” towards University officials, assault, and defamation on 28 March 2017, almost a year after the protest. The disciplinary hearing sat before Advocate Wayne Hutchinson between 26 June and 11 October 2017 with Yolanda was represented by two advocates. On 11 October 2017, the proctor postponed the portion of the inquiry at which her case was to be lead to a date in which he knew for a fact that her legal representatives were unable to attend, making it impossible for Yolanda to present her case.
On 17 November 2017, Yolanda was convicted in her absence, and permanently excluded from the University. All of her most recent examinations were invalidated and her transcript was endorsed with the words “Unsatisfactory Conduct: Student found guilty of assault, kidnapping, insubordination, and defamation”.
On 18 November 2017, SERI brought an urgent High Court application seeking to interdict her exclusion in an attempt to allow Yolanda to be able to write her final two examinations while she pursued an internal review of the outcome of the hearing. The University’s practice was to permit students undergoing a disciplinary inquiry to nonetheless continue to write their exams. The application was struck off the roll and a costs order was issued. The University then set the matter down on the roll again and argued that they were entitled to all of their costs after which a second costs order was issued. The High Court refused Yolanda’s application for leave to appeal against the first cost order granted and she was ordered to pay the University’s costs, including the costs of two counsel.
On 16 January 2019, SERI filed papers in the Constitutional Court in support of appeals against the two High Court cost orders issued against Yolanda. SERI sought leave to appeal on the basis that the High Court had no or insufficient regard to the Biowatch rule which limits the instances in which a litigant can be ordered to pay costs to an organ of state, in this case, the University. SERI argued that costs orders were inappropriate as the High Court has held that costs in constitutional matters ought not to be imposed to punish procedural missteps or errors in the way litigation is pursued and that only constitutional litigation brought for an improper motive or which is so poorly conceived as to constitute an abuse of process can properly attract a costs order. SERI further argued that the High Court failed to explore whether the Biowatch rule applied before ordering costs and that the High Court mistook reasonable strategic decisions about how to conduct a case as “abuses” of the process of the court.
The petition to the Constitutional Court was, however, dismissed for lack of jurisdiction.
The review application
On 4 December 2019, SERI appeared on behalf of Yolanda in the Grahamstown High Court for an application to review her exclusion from Rhodes University. In June 2018, SERI launched the review application seeking to set aside the outcome of the disciplinary inquiry which resulted in her being permanently excluded from Rhodes University in November 2017.
SERI argued that the disciplinary inquiry was procedurally unfair, in that 1) she was denied the assistance of counsel and consequently of any reasonable opportunity to present her case; 2) that the presiding officer at the inquiry was biased, or reasonably suspected of bias, and 3) that Yolanda was unlawfully denied the internal remedies made available to her in terms of the University’s disciplinary rules. Yolanda also argued that, even if the inquiry was procedurally fair, the conclusions reached by the Proctor were based on material errors of fact and of law and were conclusions that no reasonable decision-maker could have made on the evidence before them.
In March 2020 the High Court dismissed Yolanda’s review application and ordered her to pay the University’s costs. In April 2020, SERI then filed an application for leave to appeal, primarily submitting that the Court erred in failing to consider the argument that the postponement of the disciplinary inquiry to a date when her legal counsel was not available had resulted in an unfair disciplinary process. Rhodes University opposed the application and the matter was then argued on 7 September and 11 September 2020.
On 17 September 2020, the Grahamstown High Court granted Yolanda Dyantyi leave to appeal a decision to dismiss her review application. The appeal was heard before the Supreme Court of Appeal (SCA) on 21 February 2022.
On 29 March 2022, the SCA upheld Yolanda Dyantyi’s application for leave to appeal the decision of the Grahamstown High Court to dismiss her review application and set aside the outcome of a disciplinary hearing process instituted by Rhodes University in March 2017.
In its judgment, the SCA found that:
“In the particular circumstances of this case, a proper balancing of the relevant considerations would have dictated that the inquiry had to be postponed to the dates on which counsel for Ms Dyantyi were available. The failure to do so violated Ms Dyantyi’s right to procedural fairness under PAJA”
The Court said that at common law an individual’s opportunity to present evidence in support of their case and to refute evidence against them ‘…is the essence of a fair hearing and the courts have always insisted upon it’. The SCA reviewed and set aside Rhodes University’s conviction and sanction of permanent exclusion against Ms Dyantyi and remitted the matter to the University “for reconsideration on condition that any continuation of the disciplinary inquiry against Ms Dyantyi shall take place before another proctor”. The SCA also ordered the University to pay Ms Dyantyi’s costs, including the costs of two counsel.
Review application documents: