Statement: Court order dated 13 August 2020
17 August 2020
In the interest of good corporate governance, transparency and accountability, Stellenbosch University (SU) provides context and background to the court order delivered in the Western Cape High Court on Thursday 13 August 2020 according to which a request in terms of the Promotion of Access to Information Act (PAIA) has been granted.
Dr Leon Schreiber, a SU alumnus, requested SU in March this year to make available information that Judge Burton Fourie used in his investigation. The Fourie investigation of November 2019 followed a request from Dr Schreiber to the University Council to investigate his complaint against Prof Wim de Villiers, Rector and Vice-Chancellor of SU. The Fourie investigation found that these allegations were unfounded and Prof De Villiers was absolved of any blame.
The SU Council accepted Judge Fourie’s report on 2 December 2019 and the full Fourie report (Read the accompanying SU statement here) was also published on SU’s website at that stage for the sake of transparency.
The University is convinced that the underlying documents and information now being provided to the DA and Dr Schreiber will confirm Judge Fourie’s finding.
The University refused the initial PAIA request in March 2020 for reasons justified by the institution in terms of Section 44(1)(a) of the Act. According to the Act, “the information officer of a public body may refuse a request for access to a record of the body if the record contains an opinion, advice, report or recommendation obtained or prepared; or an account of a consultation, discussion or deliberation that has occurred, including, but not limited to, minutes of a meeting, for the purpose of assisting to formulate a policy or take a decision in the exercise of a power or performance of a duty conferred or imposed by law”.
It was the University’s judgment that the inquiry by former Judge Fourie, which was intended to serve the Council with a recommendation, as well as the information which he obtained and considered during his inquiry, and included in his report to the Council, falls within the scope of section 44(1)(a). As the University also stated in a media statement at the time, the institution would reconsider this decision – to refuse the PAIA request – if a court application were brought. (Read SU’s statement here.)
A court application did indeed follow, and the University decided not to oppose the application on the strength of legal advice, and taking into account the relevant factors and the legal costs of litigation. This was communicated to Dr Schreiber and the DA’s lawyers, as well as that the University was agreeing to give access to the records of the Fourie investigation.
The following was emphasised in the communique sent to the applicants’ attorneys: “that the respondents permissibly refused to provide the records under Section 2 11(1)(a) of PAIA; and that none of the records reveal any substantial contravention of, or failure to comply with the law. To the contrary, they support the conclusion reached by Judge Fourie in his report ”.
The court order of 13 August 2020 followed the University’s decision not to oppose the application.
Factual errors
A media statement from the DA on 13 August 2020 following the court order, written by Dr Schreiber, contains factual errors and misrepresentations that require correction.
The most important of these is an allegation that the Court would have confirmed that “the management of Stellenbosch University (SU), led by Rector Wim de Villiers, broke the law by trying to keep information of critical public importance secret”. This is untrue. Neither the University nor the Rector violated a law. Prof De Vlliers was not involved in the handling of the PAIA request.
The court did not make any judgment or findings as alleged in the statement. There were therefore no convictions or violation of the law. The PAIA legislation does provide for criminal offenses (section 90), but it is not an offense to refuse a record in good faith, even if it was later found that the reasons for the refusal were unjustified or incorrect. It is therefore not correct that the initial decision to refuse the PAIA request had been “illegal”. There was therefore no question of “breaking the law” and even less of “trying to keep information of criteria public importance secret”.
The court order was necessary to set aside the University’s initial decision and to give the applicants access to the records.
Chancellorship
SU also noted the allegations on social media, through SAfm, that Prof De Villiers would have “offered” the chancellorship to Justice Cameron. It is also devoid of all truth. The Rector is not in a position to offer a chancellorship, as the Chancellor is elected by an electoral college. According to the Fourie report, the evidence at best showed that the Rector, as he was obliged to do, helped to identify suitable candidates for the nomination of candidates for the position of the new Chancellor.
Prof De Villiers put it this way: “There was no attempt at secrecy. It was common knowledge that a number of prominent SU alumni, including members of the SU Rectorate, regarded Justice Cameron as an excellent candidate for the election of a new Chancellor. It is also totally unrealistic to allege that one person yielded so much influence to convince a bench of ten prominent Constitutional Court judges to find in favour of Stellenbosch University, and all but two of this Electoral College to vote for Justice Cameron.” (The Electoral College consisted of 39 people.)
Statement issued by Martin Viljoen, Stellenbosch University, 17 August 2020
