Today, the Supreme Court of Appeal (SCA) has upheld Yolanda Dyantyi’s appeal against the Grahamstown High Court decision to dismiss her review application. The SCA accordingly set aside the outcome of a disciplinary hearing process instituted by Rhodes University in March 2017. Ms Dyantyi was found guilty of committing kidnapping, assault, insubordination and defamation during the #RUReference List protests in April 2016. She was permanently excluded from the University and interdicted from attending the University for any purpose from November 2017.
In the appeal, SERI argued that the postponement of the disciplinary inquiry to a date when her counsel were not available had resulted in an unfair disciplinary process.
In its judgment, the SCA finds 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’. It acknowledges that “Ms Dyantyi, an impecunious young student, faced grave potential consequences, including three wasted years at the university, the compromising of her ability to obtain admission at another university and dashed dreams and career prospects”. These potentially grave consequences and the complexity of Ms Dyantyi’s matter entitled her to “adequate legal representation for the duration of the inquiry”. The SCA also finds that the proctor’s finding that Ms Dyantyi had no intention of testifying in her own defence was “gratuitous and wrong” given that she had been excused to prepare for her testimony on more than one occasion and had repeatedly made it clear that she would testify.
The SCA has reviewed and set aside Rhodes University’s conviction and sanction of permanent exclusion against Ms Dyantyi and has 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 has also ordered the University to pay Ms Dyantyi’s costs, including the costs of two counsel.
According to Nomzamo Zondo, SERI executive director, “The SCA’s judgment is a vindication of Yolanda’s pursuit of justice and refusal to be silenced. It restores Yolanda’s right to tell her side of the story.”
Download the statement here.