On 29 March 2022, the Supreme Court of Appeal (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. Ms Dyantyi was found guilty of committing kidnapping, assault, insubordination and defamation during the #RUReference List protests in April 2016. She has been permanently excluded from the University and interdicted from attending the University for any purpose since November 2017.

In SERI’s application for leave to appeal to the SCA, it submitted that the High 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.

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 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.

  • Read more about the case here.

SERI Press statement SCA Dyantyi FINAL.docx

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.”

 

Contact details: 

  • Nomzamo Zondo, SERI executive director: This email address is being protected from spambots. You need JavaScript enabled to view it. / 071 301 9676.
  • Amanda Duma, SERI litigation fellow: This email address is being protected from spambots. You need JavaScript enabled to view it. / 073 074 1913.
  • Zolile Shude, SERI candidate attorney: This email address is being protected from spambots. You need JavaScript enabled to view it. / 063 848 9693.

Download the statement here.

Mag court COVEROn Wednesday, 23 March 2022, SERI launches the first output in its Evictions Research Series, Just and Equitable?. The series is concerned with the way in which the courts adjudicated evictions in the Johannesburg inner city between 2013 and 2018. It aims to review the courts’ implementation of relevant legislation (such as Section 26(3) of the Constitution and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (the PIE Act)) and case law. In addition, the series maps the spatial distribution of evictions to highlight any wards in the inner city that face particular vulnerability.

The first research report in the series is entitled An analysis of eviction cases in the Johannesburg Central Magistrate’s Court and their compliance with the law. It analyses eviction cases in 12 wards in the inner city of Johannesburg and its immediate periphery litigated at the Johannesburg Central Magistrate’s Court between 2013 and 2018 and asks whether eviction applications have been examined through the just and equitable lens, as the legislation requires.  

Even with a relatively small sample, the report makes important findings about: the extent to which evictions law is being followed in the adjudication of cases; whether consideration is being given to the personal circumstances of those being evicted and potential homelessness that might ensue; the reasons why people are being evicted; and the legal representation of respondents. The findings illustrate that a more hands-on approach from the judiciary in adjudicating eviction applications is essential to ensure that the legal protections from arbitrary evictions offered to the poor and vulnerable are realised.

  • Download An analysis of eviction cases in the Johannesburg Central Magistrate’s Court and their compliance with the law here.

SERI Press Statement Mag Court Launch

On Wednesday, 23 March 2022, the Socio-Economic Rights Institute of South Africa (SERI) will launch the first output in its Just and Equitable? Evictions Research Series. The series is concerned with the way in which the courts adjudicated evictions in the Johannesburg inner city between 2013 and 2018. It aims to review the courts’ implementation of relevant legislation (such as Section 26(3) of the Constitution and the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 19 of 1998 (the PIE Act)) and case law. In addition, the series maps the spatial distribution of evictions to highlight any wards in the inner city that face particular vulnerability.

The first research report in the series is entitled An analysis of eviction cases in the Johannesburg Central Magistrate’s Court and their compliance with the law. It analyses eviction cases in 12 wards in the inner city of Johannesburg and its immediate periphery litigated at the Johannesburg Central Magistrate’s Court between 2013 and 2018 and asks whether eviction applications have been examined through the just and equitable lens, as the legislation requires.  

Even with a relatively small sample, the report makes important findings about: the extent to which evictions law is being followed in the adjudication of cases; whether consideration is being given to the personal circumstances of those being evicted and potential homelessness that might ensue; the reasons why people are being evicted; and the legal representation of respondents. The findings illustrate that a more hands-on approach from the judiciary in adjudicating eviction applications is essential to ensure that the legal protections from arbitrary evictions offered to the poor and vulnerable are realised.

According to Nomzamo Zondo, executive director of SERI: “The right of access to adequate housing is undoubtedly the most fiercely contested and frequently litigated socio-economic right in South Africa. This has led to the development of a wealth of progressive jurisprudence in respect of housing and evictions law. This report provides a deep insight into how the wealth of jurisprudence is applied in the magistrates’ courts and whether our country’s constitutional imperative reaches the lives of ordinary people.”

 

When: Wednesday, 23 March 2022; 15h00-16h30 via zoom

Register herehttps://bit.ly/35Rfr9o

 

Contact details: 

  • Yvonne Erasmus, SERI senior researcher: This email address is being protected from spambots. You need JavaScript enabled to view it., 083 518 3870.
  • Nerishka Singh, SERI candidate attorney: This email address is being protected from spambots. You need JavaScript enabled to view it., 072 822 1569.

Download the statement here.

SERI Press statement KAAX FINALSERI acts for Kopanang African Against Xenophobia (KAAX), an anti-xenophobia movement. In response to the recent surge in xenophobic movements and rhetoric, KAAX organized a series of national marches scheduled to take place on Human Rights Day, 21 March, to express a public rejection of xenophobia.  KAAX sees the growing xenophobic rhetoric and activities as inimical to the Constitution and a threat to already marginalised groups in society.

The marches in other urban centres are going ahead on Human Rights Day. However, on 17 March 2022, the Johannesburg Metropolitan Police Department (JMPD) prohibited the Johannesburg march, despite KAAX’s adherence to the notification process stipulated under the Regulation of Gatherings Act 205 of 1993 (RGA). The main reasons for prohibiting the march appear to be that other groups, such as Operation Dudula, pose a threat to those intending to march against xenophobia and because one such group has issued fake pamphlets relating to KAAX’s planned march to mislead the public regarding the purpose of the march. KAAX has previously issued statements identifying and disclaiming the fake pamphlet.

The prohibition of the KAAX anti-xenophobia march comes in the wake of recent marches by xenophobic groupings, including Operation Dudula and #PutSouthAfricansFirst, with apparent approval from JMPD and the South African Police Services (SAPS). Disturbing media reports allege that police authorities have been conducting raids and arrests targeted at undocumented foreign nationals during some of these demonstrations.

On 18 March, SERI launched an urgent application in the Johannesburg High Court to overturn the prohibition. The matter is set to be heard on Tuesday, 22 March 2022 or when allocated for hearing by the court. The application seeks to have the decision to prohibit the march set aside in order for the march to take place on the rescheduled date of 26 March 2022.

It will be argued that the prohibition issued by the JMPD fails to comply with the RGA. The reasons provided for the prohibition by the JMPD are unclear, inconsistent with the RGA and the Constitution and provide no reasonable or lawful basis to prohibit the march. It will be argued that the reasons given by the JMPD do not justify prohibiting the anti-xenophobia march.

Contact details: 

  • Asenati Tukela, Attorney: This email address is being protected from spambots. You need JavaScript enabled to view it. / 078 684 7658
  • Nerishka Singh, Candidate Attorney: This email address is being protected from spambots. You need JavaScript enabled to view it. / 072 822 1569

Download the statement here.

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