IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE DIVISION, CAPE TOWN)

Case No: 3063/23

2023-02-22

In the matter between:

THEUNS DU TOIT - Applicant

and

S HUMAN N.O. - First Respondent

N H MAENETJE N.O. - Second Respondent

STELLENBOSCH UNIVERSITY - Third Respondent

THE RECTOR AND VICE-CHANCELLOR OF

STELLENBOSCH UNIVERSITY - Fourth Respondent

NOTICE OF MOTION

BE PLEASED TO TAKE NOTICE that application will be made on 18 April 2023, at 10h00 or as soon thereafter as counsel can be heard, for an order in the following terms:

1. Reviewing and setting aside the findings and orders, with the exception of finding 2.b., of the Central Disciplinary Committee of Stellenbosch University of 21 July 2022.

2. In the alternative to the relief being sought in paragraph 2, reviewing and setting aside the findings and orders of the Central Disciplinary Committee of

Stellenbosch University of 21 July 2022 with the exception of findings 1.a and 1.b, and 2.a and 2.b.

3. Reviewing and setting aside the decision on appeal of the Disciplinary Appeal Committee of Stellenbosch University of 13 November 2022.

4. Ordering the Respondents to pay the costs of this application jointly and severally, the one paying the other to be absolved.

5. Granting the Applicant such further and/or alternative relief as this Honourable Court may deem fit.

TAKE NOTICE FURTHER that the accompanying affidavits of Theuns du Toit, Dirk Johannes van Niekerk, Stander Terblanche and Albert van Zyl will be used in support of this application.

TAKE NOTICE FURTHER that the Applicant has appointed DVN Attorneys of Van der Bijl House, 37 Market Street, Stellenbosch, care of TSP Cape Town Inc, 3rd Floor, 42 Keerom Street, Cape Town, as the address at which service of all documents and process in this matter will be accepted. The Applicant furthermore agrees to accept service of all process by way of e-mail at the following address: [redacted]

TAKE NOTICE FURTHER that if you intend opposing this application, you are required –

(a) to notify the Applicant’s attorney in writing within ten (10) days after service of this application on the respondents;

(b) and within fifteen (15) days after you have so given notice of your intention to oppose the application, to file your answering affidavits, if any;

(c) and further that you are required to appoint in such notification an address as referred to in rule 6(5)(b) at which you will accept notice and service of all documents in these proceedings.

If no such notice of intention to oppose be given, or if such intention is given and no answering affidavit is filed as referred to above, the application will heard on the date referred to above and an order might be granted in your absence.

DATED at CAPE TOWN on this the 22 day of FEBRUARY 2023.

DVN ATTORNEYS

Per:

DIRK VAN NIEKERK

Applicant’s attorneys Van der Bijl House 37 Market Street STELLENBOSCH Cell: 082-404-1455

c/o TSP CAPE TOWN INC

3rd Floor, 42 Keerom Street CAPE TOWN

TO : The Registrar of the High Court CAPE TOWN

AND TO : S HUMAN N.O.

First Respondent

c/o Stellenbosch University Ryneveld Street STELLENBOSCH

AND TO : N H MAENETJE N.O.

Second Respondent

c/o Stellenbosch University Ryneveld Street STELLENBOSCH

AND TO : STELLENBOSCH UNIVERSITY

Third Respondent Ryneveld Street STELLENBOSCH

AND TO : THE RECTOR AND VICE-CHANCELLOR OF STELLENBOSCH UNIVERSITY

Fourth Respondent Ryneveld Street STELLENBOSCH

IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE DIVISION, CAPE TOWN)

Case No:

In the matter between:

THEUNS DU TOIT Applicant

and

S HUMAN N.O. First Respondent

N H MAENETJE N.O. Second Respondent

STELLENBOSCH UNIVERSITY Third Respondent

THE RECTOR AND VICE-CHANCELLOR OF

STELLENBOSCH UNIVERSITY Fourth Respondent

FOUNDING AFFIDAVIT

I, the undersigned,

THEUNS DU TOIT,

do hereby make oath and state as follows:

1. I am a 20 year old male and the Applicant in this matter. I am domiciled at Eikenhof Farm, Scherpenheuwel, District Worcester, Western Cape Province.

2. The facts set out in this affidavit are within my personal knowledge and belief or derive from documentation that I hold, unless stated otherwise or the contrary appears from the context, and are true and correct. Where I rely on information given to me by others, I verily believe such information to be true and correct. Where I make legal submissions, I do so on the advice of my legal representatives, which I believe to be correct.

THE PARTIES

3. I am the Applicant in this application to review and set aside the findings and orders of the Central Disciplinary Committee (“CDC”) of Stellenbosch University (“SU”) of 21 July 2022 and of the Disciplinary Appeal Committee (“DAC”) of SU of 13 November 2022; alternatively, finding 3 to the effect that I acted in a racist manner and all the orders.

4. The First Respondent is Professor Sonja Human of SU Law Faculty, in her capacity as Chairperson of the CDC which conducted a disciplinary enquiry into my conduct during the early hours of Sunday, 15 May 2022, the other members of which were –

4.1 Ms G Jansen, a lecturer at SU Law Faculty;

4.2 Mr N Maphumulo, an SU staff member; and

4.3 Mr S Foster, a final year LLB student at SU at the time.

5. The Second Respondent is Adv N H Maenetje SC, in his capacity as Chair- person of the DAC which upheld the findings and rulings of the CDC, the other members of which were –

5.1 Professor W J Kraak, an SU academic staff member; and

5.2 Mr Y Keva, a student member at the time.

6. The Third Respondent is SU, a university and an organ of state as defined in the Higher Education Act, No. 101 of 1997 (“the Act”), with its head office and main place of business at Stellenbosch.

7. The Fourth Respondent is the Rector and Vice-Chancellor of SU, the chief executive and accounting officer of SU in terms of the Act.

JURISDICTION

8. This Honourable Court has jurisdiction by virtue of the fact that I am domiciled within its area of jurisdiction, SU is situated in its area of jurisdiction and the First and Second Respondents functioned as organs of SU within its area of jurisdiction.

URGENCY

9. The matter concerns my expulsion as a first year LLB student from SU, a development which will have profound consequences for the rest of my life and totally unfounded findings and orders in respect of my residence at the time, Huis Marais, and its student leadership, who were not charged at all, on account of my conduct.

10. This is aggravated by the fact that I have unfairly been branded a racist and it is a matter of high importance to me to clear my name as soon as possible.

11. By reason of these considerations; because I would like to resume my studies as soon as possible; and, the matter involves constitutional rights to further education and just administrative action, I respectfully request that it be heard as a matter of semi-urgency.

BACKGROUND

12. This application arises, as I have said, from an unfortunate incident, which I deeply regret, in which I was involved during the early hours of Sunday, 15 May 2022, at Huis Marais, a male student residence of SU, as a consequence of which I was charged in terms of the Disciplinary Code for Students of SU (“the Code”), a copy of which is annexure “TdT1” hereto, and the amended Residence Rules of 7 March 2022 (“the Rules”), a copy of which is annexure “TdT2” hereto.

13. Having been asked to leave Huis Marais on 15 May 2022, I received a Record of Decision to suspend me from the Fourth Respondent, a copy of which is annexure “TdT3” hereto, on 16 May 2022 informing me that I was to refrain from –

13.1 attending lectures, classes and any premises occupied by SU;

13.2 participating in any activity of SU;

13.3 entering SU premises or any other place under its control; and

13.4 residing in any of SU’s residences.

14. I was furthermore informed that the decision to suspend me would remain in force until the CDC decided otherwise.

15. On 17 May 2022 I received a letter by e-mail from Ms F van Rooi, Head: Student Discipline, a copy of which is annexure “TdT4(a)” hereto, informing me that my Confirmation of Temporary Suspension Hearing was going to take place before the CDC on Thursday, 19 May 2022.

16. The CDC, differently constituted at the time than when subsequently chaired by the First Respondent, convened on 19 May 2022 and resolved to uphold my temporary suspension by the Fourth Respondent until the finalisation of the subsequent disciplinary proceedings. Having elected to not oppose the confirmation of the suspension, I did not attend the aforesaid CDC meeting. A copy of the letter confirming my suspension, dated 19 May 2022, is attached hereto as annexure “TdT4(b)”.

17. On 14 June 2022 Ms Van Rooi forwarded a disciplinary bundle (“the bundle”) and video evidence which was going to be used at my disciplinary hearing, a copy of which is annexure “TdT5(a)” hereto, to Mr William Fullard of Gideon Engelbrecht Attorneys, who represented me at the CDC and DAC hearings. Mr Fullard received additional documentation from Mr Bredon Hess (“the evidence leader”) on 17 June 2002, which was also to be used during the CDC hearing, a copy of which I attach hereto as annexure “TdT5(b)”.

18. Earlier, in an e-mail of 27 May 2022, a copy of which is at page 12 of the bundle, I was invited to the CDC enquiry, which was scheduled to take place on 22 June 2022, to answer the allegations of misconduct as set out in the Decision on the Appropriate Disciplinary Channel by the Chairperson of the CDC, a copy of which is at page 7 of the bundle (“the Decision”).

19. The summary of the alleged disciplinary misconduct in the Decision reads as follows:

“1. You entered the residence room 1032 of Bababalo Ndwayana (student number 25887319) without his permission; (referred to by the CDC as the “trespassing charge”)

2. You proceeded to urinate on Mr Ndwayana’s study desk damaging his laptop, a textbook titled ‘The Core Economy’ and three notebooks; (the “urination charge”)

3. When you were asked by Mr Ndwayana what you were doing, you told him ‘Waiting for someone, boy’. And when you were asked why you were urinating on his belongings, you told him ‘it’s a white boy thing’.” (“the statement charge”)

20. In the event the Decision concluded that the alleged conduct, with the exclusion of the “waiting for someone boy” remark, was in breach of clauses 3.1, 9.1, 9.3, 9.6 and 13.2 of the Code and rule 7.2.2 of the Rules.

21. The reasons for the Chairperson’s election to refer the matter to the CDC for a hearing are set out in section D of the Decision as follows:

“Reasons for the decision:

- The allegations against Mr Du Toit are serious;

- it is in the interests of the broader University community that Mr Du Toit answer to the allegations before a CDC hearing panel;

- the interests of the person / persons against whom the alleged misconduct was perpetrated;

- the evidence that was obtained during the initial investigation; and

- the representations/statements from the Equality Unit and the complainant.”

22. Section E of the Decision reads as follows:

“E. Legal Representation

- You may apply for legal representation within 5(five) days of receipt of this notice. Your application will be considered by the chairperson of the CDC. There is no automatic right to legal representation. A generic example is attached.

- You have a right to be represented by a fellow student or staff member employed by the University.”

23. In the next section the nature of the enquiry is described as follows:

“The nature of the enquiry will include oral testimony. A submission of sworn

statements may be considered if applied for by the Parties.” (My emphasis.)

24. The CDC handed down its judgment, a copy of which is annexure “TdT6”

hereto, on 21 July 2022.

25. In the event the following findings were made:

“1. In terms of the Trespassing Charge, Mr. Du Toit is found guilty of contravening:

a. Clause 7.2.2 of the Amended Residence Rules – 7 March 2022

b. Clause 13.1 of the Disciplinary Code for Students of SU 2021.

2. In terms of the Urination Charge, Mr. Du Toit is found

a. Guilty of contravening clauses 3.1, 9.1, 9.3 and 13.2 of the Disciplinary Code for Students of SU 2021.

b. Not guilty of contravening clause 9.6 of the Disciplinary Code for Students of SU 2021.

3. In terms of the Statement Charge, Mr. Du Toit is found guilty of acting in a racist manner in saying a variation of ‘it’s a white boy thing’, and by doing so, contravening:

a. Clause 9.3 of the Disciplinary Code for Students of SU 2021.”

26. The following orders were made:

“1. Mr. Du Toit is hereby expelled with immediate effect from Stellenbosch University in terms of the Urination Charge and the Statement Charge.

2. This judgment is to be made public by the Head of Student Discipline, with a copy being delivered to former Justice Khampepe, as a submission to the Independent Commission of Inquiry.

a. In particular, it is strongly recommended that the attempt to transform Huis Marais be re-evaluated by means of the Independent Commission of Inquiry.

b. This includes, but is not limited to, investigating the reasons as to why the initial transformative decisions were unceremoniously overturned.

3. It is requested that Stellenbosch University endeavours (sic) to investigate the failures by Student Leaders in Huis Marais and actively works (sic) towards establishing meaningful Student Leadership development.

4. It is strongly suggested that Stellenbosch University implement the necessary amendments to alcohol-related policy which includes a zero-tolerance policy for all alcohol/substance-induced trans- gressions which assail the rights of any individuals.

5. It is strongly suggested that Huis Marais design and submit a suitable alcohol policy within 6 month (sic) which encourages responsible alcohol use and has a residential zero-tolerance policy for alcohol- induced transgressions, including the unauthorised possession and consumption of alcohol in banned residential areas.”

27. On 28 July 2022 Mr Fullard filed a Notice of Appeal on my behalf which he had to draft without the benefit of a transcribed record, a copy of which is annexure “TdT7” hereto. I respectfully request that the contents thereof be regarded as having been incorporated herein.

28. A copy of the Heads of Argument filed on my behalf for purposes of the appeal is annexure “TdT8” hereto and I respectfully request that the contents thereof be regarded as having been incorporated herein.

29. In an e-mail dated 20 September 2022, a copy of which is annexure “TdT9” hereto, the Second Respondent invited me to appear before the DAC on 18 and 20 October 2022 to present my reasons for appealing the CDC’s decision.

PROCEEDINGS BEFORE THE CDC

30. The full transcript of the proceedings before the CDC is annexure “TdT10” hereto.

31. The CDC describes its status, function and modus operandi as follows on page 1 of its judgment:

“The CDC is an internal body established and empowered in terms of the Disciplinary Code for Students of SU 2021 (‘Code’). It is inquisitorial in nature, mandated to ‘embark on a fact-finding inquiry and ask questions of clarification to any party appearing before it’. As an administrative judicial body, the CDC must establish guilt on a balance of probabilities, based upon the facts presented to it. It is, however, not a court of law.”

32. At page 5 of the judgment, the CDC furthermore describes itself as “an internal truth-finding administrative body, committed to achieve its purpose as set out in Clause 2 of the Disciplinary Code”. It continues as follows:

“For this to work, each party has a duty in amicably pursuing these outcomes. The CDC needs to be afforded the opportunity to engage with victims and accused perpetrators in a safe, comfortable environment – we want parties to be able to look each other in the eyes and share their stories.”

33. I pause to mention that this approach should have informed the CDC’s response to the victim, Mr Ndwayana’s, refusal to testify, but did not.

34. Clause 2 of the Code sets out the purpose thereof as follows:

“2.1 The purpose of this disciplinary code is to provide a framework for good decision-making within which the University exercises discipline over students. In this way, it aims to foster and to maintain an environment which supports the University’s values.

2.2 For that purpose, this disciplinary code provides clear rules for acceptable Student conduct and sets out disciplinary measures and procedures which ensure that disciplinary action by the University is taken efficiently and in a manner that is reasonable, lawful and procedurally fair.

2.3 The disciplinary code recognises that the restoration and healing of the University Community as a whole and the relationships amongst individual members are at the heart of its purpose. Therefore sanctions imposed in terms of this code will take cognisance of the efforts made to restore relationships and will, in addition to the established aims of punishment and deterrence, serve to rehabilitate and educate offenders and where persons found guilty of misconduct and where appropriate, sanctions will contribute to the restoration and healing of the University Community as a whole, the relationship amongst its Student Communities and individual members of the Student Community.” (My emphasis.)

35. Referring to the conduct of Mr Ndwayana’s legal representatives which culminated in him deciding not to testify and then failing to submit written submissions as they had undertaken to do, the judgment also notes the following at page 5:

“Unfortunately, the UNISA lawyers failed to respect this body, instead treating the CDC as a playground for rouge (sic) legal theatrics. They had an opportunity to be an aid to the proceedings, but instead chose to disrupt and threaten.

The CDC is convinced that their actions costed (sic) Mr Ndwayana the opportunity to speak his truth – a necessity in not only this matter, but also in his own healing process. We believe that Mr Ndwayana’s voice deserves to be heard. It was in the interests of the student community as a whole, alumni and even on a national level to hear his story in this setting. However, his legal representatives, through their actions, robbed him of this crucial opportunity. Their actions can only be summarised as a disservice to their client, but also a stain on the legal profession. Their conduct during the pre-hearing and their dishonest comments to the media following the pre-hearing vindicated the CDC’s Chairperson’s original decision to not allow them to participate as observers.” (My emphasis.)

THE APPLICABLE REVIEW PRINCIPLES

36. In terms of the Code an appeal lies to the DAC against a judgment of the CDC. Should a student be unhappy with the outcome of an appeal to the DAC, there are no further internal remedies open to the student to take the matter further. In such a case he or she will have to approach the High Court.

37. It is well established that the cause of action for the judicial review of administrative action now ordinarily arises from the Promotion of Administrative Justice Act, No. 3 of 2000 (“PAJA”), not the common law as in the past. PAJA gives effect to section 33 of the Constitution of the Republic of South Africa, 1996 (“the Constitution”), which enshrines the right to administrative action that is lawful, reasonable and procedurally fair.

38. It is also well established that universities are organs of state as defined in section 239 of the Constitution which is incorporated by reference in section 1 of PAJA and when it conducts a disciplinary enquiry a university exercises a public power and/or performs a public function in terms of legislation within the meaning of the definition of “administrative action” in section 1 of PAJA.

39. It follows that PAJA applies to this matter and that the review grounds have to be sourced therein. Furthermore, and in any event, the PAJA review grounds relied upon herein are all sourced in the common law.

ASSESSMENT OF THE CDC’S JUDGMENT

40. Despite the CDC’s remarks about the nature of the enquiry, it is apparent from the judgment read as a whole that it approached the matter as if it were something of a contest between SU and I, on the one hand, and Mr Ndwayana and I, on the other.

41. It also evidences patent bias which, in turn, is characterised by clumsy attempts to avoid outcomes favourable to me and attributing import to evidence otherwise incapable of supporting the subsequent findings and orders. In short, the CDC did not allow itself to be guided by the principles of the rule of law as it manifests, inter alia, in the requirements of fairness.

42. This is especially true of its findings and orders in respect of Huis Marais and its student leadership as evidenced by the supporting affidavit of my attorney, Mr Dirk van Niekerk.

43. What follows will illustrate that the CDC –

43.1 was biased or can reasonably be suspected of bias (section 6(2)(a)(iii) of PAJA);

43.2 acted procedurally unfairly (section 6(2)(c) of PAJA);

43.3 committed errors of law which materially influenced the outcome (section 6(2)(d) of PAJA);

43.4 acted for ulterior purposes and motives (section 6(2)(e)(ii) of PAJA);

43.5 took irrelevant considerations into account (section 6(2)(e)(iii) of PAJA);

43.6 acted consistently with the unauthorised and unwarranted dictates of another person or body (section 6(2)(e)(iv) of PAJA);

43.7 acted in bad faith, arbitrarily and capriciously (section 6(2)(e)(v) and (vi) of PAJA);

43.8 took action not rationally connected to the purpose for which it was taken, the purpose of the Code, the information before it and the reasons given (section 6(2)(f)(ii) of PAJA); and

43.9 performed its functions so unreasonably that no reasonable person could have so done it (section 6(2)(h) of PAJA).

44. For example, despite the fact that it cannot be gainsaid that I was severely intoxicated, had absolutely no recollection of having been in Mr Ndwayana’s room and, consequently, of what I did there and supposedly said there, the CDC’s judgment presupposes that I am racist, that I had the necessary intent to act in a racist fashion and that the outcome of my actions was, objectively viewed, racist.

45. All this notwithstanding the fact that it is undisputed that I had no idea of where I was and what I did and the fact that there was credible uncontested evidence to the effect that I am not a racist and have no racist tendencies, evidence which the CDC clearly chose not to attach any weight to whatsoever, and, notwithstanding the fact that the CDC itself found that Mr Ndwayana and I were friendly.

46. The CDC came to the conclusion that the second remark attributed to me, i.e. that I had said, when asked why I was urinating on Mr Ndwayana’s desk, something to the effect that it is “a white boy thing”, was an expression of racism which justified the decision to expel me notwithstanding the fact that:

46.1 A House Committee member, Mr S Boshoff, when asked whether he would welcome me back in Huis Marais, inter alia responded that he would rather see some work being done than to simply remove me from the environment.

46.2 When Mr X, the student who witnessed the incident, was asked whether he thought the incident was racially motivated, he responded by saying that sometimes he thought it was and other times he thought it was not, and when asked whether he would welcome me back in Huis Marais he responded affirmatively.

46.3 Mr B Langa, a senior Huis Marais resident, was generally sympathetic to me and inter alia testified that –

46.3.1 when I was cleaning his room I asked Mr Ndwayana what I did and said;

46.3.2 it seemed like I was drunk when the incident happened;

46.3.3 he did not know whether the statement attributed to me was motivated or whether something motivated me to say what I was accused of saying;

46.3.4 it was very hard for him to put blame on me since he didn’t know the motivation behind the matter.

46.4 Chad Hamman, my roommate, testified that –

46.4.1 although I am white and he is brown, we immediately became the best of mates and he started seeing me as a brother;

46.4.2 we moved in the same circle of friends and were friends with everyone from all races and spheres of life;

46.4.3 he never experienced any racism from me;

46.4.4 when he found out what happened his immediate thoughts were that I had been drunk;

46.4.5 I get very confused and a bit lost when I had too much to drink but he has never experienced me, even at my “drunkest”, as a racist or as a violent person and he didn’t think that that was in my nature;

46.4.6 apart from the races of the perpetrator and the victim, nothing else leads to the conclusion that it was a racial incident or that it was racially motivated.

46.5 A student from Dagbreek, Neo Sello, who was at school with me, testified that he did not believe that the incident was racially motivated. I would not say or do something “that would hurt someone like in a racial way or degrade them”. Even when I was drunk I would not hurt people or try to degrade them or be mean to them.

46.6 When asked whether, given the history of SU, he didn’t think that what happened might have triggered something – obviously a reference to the angry furore triggered by the incident – he said that he really didn’t know much about the history of the university, that it probably triggered some people and made them feel hurt. He continued as follows:

“Like I’ll say, from my experience – no, not experience, by saying how people I know who didn’t know Theuns also just jumped to conclusions and added stuff and posted stuff because they looked at the colour and so, okay, I’m black, so let me be on his side and they didn’t look at it in a factual way, they didn’t – and they also don’t know this man, they don’t know that this is actually just a mistake. This man is not a racist hooligan like it was claimed.”

47. Despite the fact that I was, regrettably, intoxicated to the point where I had no recollection of my whereabouts and what I was doing, the CDC –

47.1 concluded, for example, that I was aware that my friend, Mr Ndwayana’s roommate, was not in the room that evening since I knew that he had gone away for the weekend, overlooking the fact that if I could not even remember that I had been in his room at around 04h30, a fact which militates against the conclusion that I remembered that he had gone away for the weekend;

47.2 furthermore concluded that I was an exponent of a Huis Marais culture characterised by a mindset which does not view the atrocity I committed as the rest of the community saw it and responded thereto seemingly without grasping the true magnitude of the incident and believing that I would be welcomed back into Huis Marais, overlooking the fact that the few students whose conduct presumably triggered this unfair generalised finding, did not regard the incident as having been a racist one;

47.3 attached weight to the finding that I had sought permission to enter the witness, Mr Z’s, room;

47.4 found that the Huis Marais leadership failed atrociously by not being there for Mr Ndwayana without him having made a complaint to that effect and without giving the Huis Marais student leadership an opportunity to respond to such a charge;

47.5 concluded that, despite evidence to the contrary to which I refer hereinbelow, there was a clear crisis within Huis Marais and, arguably, also in other areas of SU with which I was implicitly associated and which justified making an example of me;

47.6 concluded that my conduct was typical of the Huis Marais ethos;

47.7 furthermore concluded that Huis Marais and its residents are notorious for being involved in disciplinary matters, many of them laced with secrecy and racist intentions – a statement which evidences clear bias on the part of the CDC and is entirely inconsistent with Chad’s evidence when asked about his perception of Huis Marais:

“I love the place. At first I wasn’t sure what to expect. I was – it was my second choice for applications last year but I was placed there in the first round of placements and it’s one of the smaller residences on campus, so I wasn’t sure what to expect but from day one, the 2 February this year, I felt a sense of belonging and I also felt that this is - it’s the closest I’m going to get to my school life in terms of the brotherhood between all of us. The fact that no one is excluded, so yes, I enjoyed my time in Huis Marais and I feel that the residence is a good place for building better men for the future.”

48. When asked whether there is a culture of secrecy within Huis Marais, he responded by saying that he didn’t think so and didn’t agree with it and that he has not experienced any bullying either. The CDC went on to find the converse without dealing with his credibility at all despite the fact that his evidence was clearly rejected.

49. Clearly the CDC’s uninformed approach which postulates that Huis Marais had gone through an attempted process of transformation which had undoubtedly failed, a fact which is ostensibly evidenced by a worrying number of disciplinary cases since the transformation process was implemented in 2020, evidences a lamentable lack of specificity, on the one hand, and, on the other, a failure to properly ventilate these issues notwithstanding the erroneous assumption that they were relevant by reason of the fact that they somehow informed my conduct that fateful morning and, conversely, that my conduct was evidence thereof.

50. The CDC’s findings and orders regarding the so-called Huis Marais culture and ethos was sourced in the evidence of Dr Johan Groenewald, the Residence Head of Huis Marais at the time, which was uncritically accepted at face value as a consequence of which I was branded as a carrier without proper ventilation of any of the issues which culminated in unwarranted findings such as that it “is no secret to SU that Huis Marais breeds an unwanted culture” which SU had attempted to change. Apart from the fact that this was unfounded, it could also not have been laid at my door as it undoubtedly was.

51. Four of the five CDC orders concern Huis Marais and SU and involve uninformed and erroneous findings such as that “initial transformative decisions were unceremoniously overturned”.

52. What was not disclosed to the CDC by the Evidence Leader, and what it failed to establish as a consequence of neglecting to discharge its inquisitorial fact-finding duty, was that –

52.1 there was a long history of animosity between Dr Groenewald and successive House Committees attributable to, inter alia, his intransigence, favouritism and dubious methods;

52.2 most recently the Huis Marais student leadership had made concerted and earnest efforts to address SU’s concerns about its so- called ethos as evidenced, inter alia, by a letter dated 22 May 2020, a copy of which is annexure “TdT11” hereto, from Mr Stander Terblanche, the Primarius at the time, to Mr Pieter Kloppers, the Director: Centre for Student Communities of SU, the contents of which I respectfully request to be regarded as having been incorporated herein;

52.3 the outcome of discussions between representatives of SU and of Huis Marais respectively culminated in an agreement of 13 November 2020, a copy of which is annexure “TdT12” hereto, which evidences, amongst others, the following common ground which the parties had been able to reach up to that point:

- “The University acknowledges that HM has made some attempts to reform itself.

- HM will remain a male residence.

- SU and HM shall work together to secure a HM with a thriving future, based on the agreed values.

- HM will receive a number of first year students in 2021.

- A process shall be implemented in order to achieve a unified and integrated HM;

52.4 paragraph 8.a calls for all Huis Marais residents to write and commit to a new Constitution including a new acceptable code of conduct, which was subsequently duly democratically accepted by the Huis Marais residents, a copy of which is annexure “TdT13” hereto.

53. By only presenting Dr Groenewald’s one-sided evidence in the full knowledge that it was an incomplete picture, SU, as represented by Cluver & Markotter’s Mr Brendon Hess, clearly failed to comply with the requirements of clause 2 of the Code which, as we have seen, sets out the purpose thereof, and in failing to test Dr Groenewald’s evidence, sufficiently or at all, the CDC failed in its duty, provided for in clause 37.7 of the Code, to embark on a fact-finding inquiry and ask questions of clarification to any party appearing before it. This duty is facilitated by its power to require the attendance of any member of the University Community whom it wishes to question at an enquiry.

54. It will be recalled that the CDC inter alia ordered that a copy of its judgment had to be delivered to former Justice Khampepe as a submission to the Independent Commission of Inquiry coupled with a strong recommendation “that the attempt to transform Huis Marais be re-evaluated by means of” the Commission.

55. The Independent Commission of Inquiry into Allegations of Racism at Stellenbosch University was appointed by the Rector on 3 June 2022 to conduct an inquiry inter alia into incidents of racism “and to make recommendations to the Rector to assist the University in improving its culture of diversity, equity and inclusion with reference to racism that will safeguard and promote the dignity and self-worth of all students and staff”.

56. The Commission inter alia had to consider “(i)ncidents of racism at the University, with reference to the recent occurrences at Huis Marais and the Faculty of Law’s law dance”. This is not only a clear instance of prejudging my matter but, considering the Rector’s status and the number of SU employees on the CDC and DAC, also of unwarranted dictates of another person.

57. In its Executive Summary the Commission inter alia says the following regarding the Huis Marais culture:

“The relationship between the Residence Head and the students in Huis Marais is the major contributing factor to these problems. Furthermore, it was perspicuous that the Residence Head of Huis Marais was ill-equipped for his role, and ill-suited to the challenging task of transforming Huis Marais.”

58. Despite its vast inquisitorial powers the CDC remained oblivious to the fact that Dr Groenewald was ill-equipped for his role, notwithstanding the fact that the Commission found it to have been perspicuous.

59. Significantly Dr Groenewald has since been replaced, to good effect, as the Residence Head of Huis Marais.

60. The Commission’s finding is one that the CDC should have made but, instead, it uncritically accepted Dr Groenewald’s biased, one-sided and damaging evidence at face value and visited its mindless wrath upon Huis Marais and me.

61. Having concluded that it is no secret to SU “that Huis Marais breeds an unwanted culture” which resulted in an attempt to change that culture which inter alia took the form of not accepting newcomers in 2020 and 2021 and to change the residence from a male only residence to a mixed-gender residence, a proposal which, to the best knowledge of the CDC, was at first accepted, “only for it to be dubiously overturned and retracted a number of days later by SU’s higher decision-makers”, the CDC judgment continues as follows:

“To the best of our knowledge no reasons have been put forward to explain this decision. We view this as a failure to the attainment of transformation of Huis Marais – an incident which the CDC believes must be brought before the current Independent Commission of Inquiry, chaired by retired Justice Sisi Khampepe. One can only speculate as to what the cause of this was, but we certainly believe that had reasons been provided, any rumours to do with SU’s political arena and its heavily invested stakeholders would have been quashed.”

62. If the CDC had done its work properly there would have been no need to speculate since it could, and should, have called for the reasons which ought to have trumped all the CDC’s preconceived ideas and unwarranted assumptions of the Huis Marais ethos.

63. Had the CDC discharged its duty in accordance with its responsibilities in that regard, it would have been able to establish that SU and Huis Marais had, after significant and protracted inter-action and negotiation, concluded the agreement referred to hereinabove.

64. For present purposes the more worrying feature of the CDC’s judgment is that, having embraced the perception of Huis Marais as being a lawless, racist environment, the logical next step was to cast me as the archetypical example of these reprehensible social traits.

65. Significantly the CDC, in respect of the urination charge, inter alia said the following:

“In essence, Mr Du Toit alleged that he lacked capacity and intention. It is here that we wish to note that, although the legal terminology used is identical to that used in a court of law, the CDC is not a court of law and does not need to conform to being satisfied that the elements of a crime or delict have been met.”

66. As authority for this proposition the CDC invokes clause 4.1 of the Code which provides that disciplinary powers exercised in terms of Chapter 3, Part 1 of the Code constitute administrative action and are not judicial in nature. This is clearly not authority for the claim that the CDC does not need to be satisfied that the elements of a transgression have been met. The difference between an administrative investigation such as that conducted by the CDC and a criminal prosecution, concerns the standard of proof. In criminal proceedings proof beyond reasonable doubt is required whereas in proceedings before the CDC clause 37.10 of the Code provides that a “finding on guilt need to be established on a balance of probabilities i.e. which party’s version is more probable. A criminal requirement of a finding beyond reasonable doubt shall not apply”.

67. The CDC’s conclusion that my conduct satisfied the wilfulness component specifically required by clause 9.1 of the Code since it stemmed “from (my) earlier intentional conduct to self-intoxicate, as well as evidenced by (my) failure to stop immediately when (I) could and should have” is not only entirely inconsistent with the evidence, but also wrong in law. This will be elaborated upon during argument.

68. As I have said, the CDC concluded that the statement charge against me was based on two statements that I had allegedly made.

68.1 The first concerned the alleged statement recorded on video by Mr Ndwayana which the CDC concluded was that I “was waiting for someone, boy”.

68.2 The second concerned a subsequent allegation by Mr Ndwayana that I had said “it’s a white boy thing” when asked why I was urinating on his property as I was walking out of the room.

69. Having concluded that, “on the facts and evidence presented, SU has failed to prove, on a preponderance, that the use of the term ‘boy’ was racist or racially motivated”, it turned to consider the non-recorded alleged phrase “it’s a white boy thing” concluding that the “it’s” must, in the context, “relate to the abhorrent action of urinating on Mr Ndwayana’s property”.

70. In this regard the CDC concluded that it first had to determine, on a balance of probabilities, whether the phrase attributed to me, or a close variation thereof, was ever stated and, if yes, it had to determine whether it constituted racism.

71. The first point is that there was an independent witness, Mr X, present in the room when this remark was ostensibly made and that he testified that he did not hear it being said.

72. The second point is that there is no mention of me having made such a remark as I were leaving the room in Mr Ndwayana’s first statement which was made on 17 May 2022, but only in the second statement of 19 May 2022, neither of which was admissible in evidence.

73. The CDC’s conclusion in this regard is all the more suspect by reason of the fact that Mr Ndwayana declined to testify and the CDC had to rely on statements that he had made regarding the events which gave rise to the enquiry which were not on affidavit, which differed from each other in substantive respects and were inadmissible as evidence, as a consequence of which the CDC could not have had regard thereto at all.

74. I say that for the following reasons:

74.1 Clause 30.7 of the Code provides as follows:

“Any Student who is called to participate in an inquiry as a witness may apply to the relevant disciplinary committee to give evidence in writing, by way of closed circuit television, or anonymously. Such application may be granted if the witness is able to show a reasonable fear for the Student’s mental or physical wellbeing, or that the integrity of the inquiry will be undermined, should such witness be called to give evidence in the ordinary course.”

74.2 Mr Ndwayana did not make such an application and there was no suggestion of a reasonable fear for his mental or physical wellbeing, or that the integrity of the enquiry would be undermined in the event of him giving evidence in the ordinary course; on the contrary, the CDC keenly wanted him to give evidence in person.

74.3 In the Decision the Chairperson of the CDC determined the following regarding the nature of the enquiry:

“The nature of the enquiry will include oral testimony. A submission of sworn statements may be considered if applied for by the Parties.”

74.4 It stands to reason that, in circumstances where special rules apply to the admissibility of affidavits, it is farfetched to claim that statements not made on oath are permissible without more. As we shall see, the DAC, in particular, sinned grievously in this regard.

74.5 Furthermore, on 27 May 2022, the SU’s Head: Student Discipline and the First Respondent issued a directive according to which –

74.5.1 witnesses would be confirmed;

74.5.2 where the CDC calls for sworn statements, its directive must set out a timeline for their submission; and

74.5.3 no evidence by sworn statements were envisaged and, should this change, the parties would be informed.

75. There was no application for the submission of evidence to be presented to the CDC by way of affidavit and, for reasons already canvassed, it could not consider statements in writing that were not made on oath. This notwithstanding, and following the announcement of Mr Ndwayana’s decision not to participate in the proceedings, the CDC nevertheless relied on his statements referred to hereinabove as evidence.

76. Following the CDC’s ruling that the hearing would continue despite the fact that Mr Ndwayana had decided not to participate in the proceedings, Mr Hess said the following:

“Yes, Prof, just one thing that I want to ask them based on that ruling, is that, in terms of 30.7 of the code, I would as – because Babalo is a key witness for the witness (sic) and we really want him to participate and really want his version to form part of these proceedings. I would like to make an application that because we are proceeding and the ruling was made that we are proceeding, that we use Babalo’s statements that we have as evidence. Even if we do not have his voice … [intervenes].”

77. After the Chairperson said “Yes, I understand”, Mr Hess continued as follows:

“… we at least have his statement but I see in terms of 30.7 the student must apply but I would like to – I’m not sure if Babalo would make such an application but I would request because of this – the nature of what we are dealing with now. Can I be allowed to please use the statements of Babalo in the proceedings?

Obviously, at the end of the day we will argue if we cannot hear from him but I am sure Mr Fullard will argue to a certain point but I will do the same. But without those statements my hands are tied, so.”

78. The Chairperson responded as follows:

“Ja-no, absolutely. It is part of the evidence … [indistinct] You can most definitely use that. … You can use it on that basis, most definitely yes.”

79. She also said:

“So, Brendon, yes 37 – in terms of 37 you are allowed to use the statements by him. Absolutely.”

80. The Evidence Leader was clearly not allowed to use the statements and the Chairperson’s ruling that he could, was clearly wrong. Apart from the fact that it was not authorised by clause 37 of the Code and Mr Ndwayana made no application for purposes of that clause, the ruling was also inconsistent with the directive referred to hereinabove. This will be elaborated upon during argument.

81. The CDC’s irregular admission into evidence of Mr Ndwayana’s statements is compounded by its “belief that the balance of probabilities must fall in favour of Mr Ndwayana” because “(t)o fail to do so would be to conclude that Mr Ndwayana was, and still is, lying. That is a conclusion that will be ill- established and would in many ways be demeaning”. Apart from the fact that this circular approach evidences bias, it is also wrongful since disallowing the statements as evidence would not have been tantamount to concluding that Mr Ndwayana was lying. It is a complete non sequitur and a better example of bias is hard to imagine.

82. That the CDC prejudged the matter, had preconceived ideas, was biased, did not give me a fair hearing, burdened me with its unfounded perception of the culture at Huis Marais, and Huis Marais with my conduct as an expression of its ethos, are evidenced by generalised statements, without providing any specificity and without having done any comparative analysis, such as the following:

“As the saying goes, the definition of insanity is doing the same thing over and over again and expecting different results. We hope SU takes note of this – for every year there seems to be a protest and an uproar, an inquiry or a commission. This university has become a jack-of-all-trades in damage control and grandiose promises, but ultimately, we question whether it has mastered what is actually expected of it. SU must detach itself from the constraints of its past – which unquestionably includes the influence of status quo-inclined staff and alumni – and focus on building itself to the institution which it decrees it aims to be. We cannot strive towards this envisioned future, with one arm clenching onto the past.”

83. There was no evidence to support this statement, but the real cause for concern is that it had no place in the outcome of an enquiry involving me. It cannot credibly be said that a CDC which harboured such untested views, unsubstantiated by any evidence, and brought them to bear in disciplinary proceedings involving a single first year student, was unbiased or can escape a charge of reasonable suspicion of bias.

84. Apart from the fact that there was no evidence to support this statement, I would point out that according to the Khampepe Commission’s Report prior to what it styled as the Huis Marais incident and the Law Dance incident, “the Office of Student Discipline has investigated only four incidents of alleged misconduct relating to claims of racism since 2011. Two of these incidents led to findings of misconduct and sanctions being imposed on the offending students.”

85. I have already referred to the fact that in disciplinary matters such as this, the standard of proof is a preponderance of probability and not proof beyond reasonable doubt. This does not mean, however, that, as the CDC claims, because it is not a court of law it does not have to be satisfied that the elements of the transgression have been met. In this regard it said the following:

“Albeit, as the CDC does carry out a judicial-like function, we wish to reiterate that it should err on the side of proportionality in carrying out its decision- making process (whatever that may mean). The CDC must accordingly critically interpret provisions of the Code in such a manner as to give effect to the Code – as such, the CDC’s mandate is to deduce whether the conduct of a student conforms to the values and disciplinary standards of SU.”

86. This calls for an approach other than to fairly determine the meaning of the provisions of the Code that have allegedly been transgressed and to fairly and objectively determine, with reference to the proven facts, whether or not those provisions had indeed been transgressed.

87. The approach which it followed, as described by the CDC itself, deviates from the constitutionally provided for requirements of fair administrative action as fleshed out in PAJA.

88. The CDC’s statement that “(t)he dispute pertains to whether Mr. Du Toit’s actions were wilful and without good and lawful reason”, itself postulates that for me to have been guilty of some of the transgressions with which I had been charged, mens rea was an essential ingredient, notwithstanding the fact that the CDC previously disavowed this.

89. It was clearly in an attempt to hold forth that it has complied with the Code’s requirement of a finding of wilful engagement in conduct of the kind described therein that the CDC concluded that its function was to critically interpret provisions of the Code in such a manner as to give effect thereto.

90. This approach is taken a step further where the CDC says that to determine whether my conduct satisfied the wilful component of clause 9.1 of the Code, it had to digress and discuss the abuse of alcohol at SU as if that can possibly have a bearing on whether I acted wilfully or not.

91. It is plain that the subsequent assessment of alcohol use (or abuse) within the SU context should have had no implications for the determination of whether or not I acted wilfully.

92. Clearly to reach a predetermined outcome in my matter, the CDC used the perceived enormity of SU’s alcohol abuse problem, about which assumptions were again made in the absence of evidence, to justify assumption of “the power to guide the interpretation of the Code in determining whether self- inflicted intoxication can be accepted as a defence” and that it (the CDC) “has the power to set a lasting precedent on the matter”. I was clearly destined to be made an example of.

93. Simply put, the CDC’s expressed concern about wide-scale alcohol abuse, and the consequences thereof, plainly informed the statement that “(a)ccordingly, in light of the comprehensible facts on the effects on alcohol (sic) within South Africa and within the SU community – especially pertaining to the lack of substantial and effective alcohol-related policies – we conclude that prior deliberate consumption of an intoxicating substance such as alcohol must satisfy the clause 9.1 criteria”. This is, of course, itself petitio principii since although consumption of alcohol could have commenced wilfully, to continue drinking may well itself at some point cease to be wilful.

94. The CDC’s argument which culminates in its finding of the necessary wilfulness having been present, is so deeply flawed that it also bears testimony to its bias and unreasonableness.

95. For example, the fact that I was found to have been capable of bodily control when the incident occurred, does not negate the undisputed evidence that I was prone to blackouts and memory loss due to excessive alcohol consumption and that I had no recollection of even having been in Mr Ndwayana’s room. More importantly, what happened was, on the probabilities, indicative of exactly the opposite, i.e. that I was not capable of bodily control.

96. The same applies to a finding such as that at no point did I lack the capacity of conducting my own bodily mechanics and continued to urinate subsequent to Mr Ndwayana having turned on the lights and having asked me what I was doing, actions which in fact strongly suggest that I had no capacity to conduct my bodily functions in accordance with my whereabouts, my own perception of right and wrong, and socially acceptable behaviour.

97. In this regard the CDC stated as follows:

“In line with this conclusion, Mr. Du Toit’s conduct must satisfy the ‘wilful’ component to clause 9.1. All of Mr. Du Toit’s actions while he was intoxicated cannot be nullified due to his intoxication – they must be seen as wilful conduct, stemming from his earlier intentional conduct to self-intoxicate, as well as evidenced by his failure to stop immediately when he could have and should have. Therefore, we find Mr. Du Toit guilty of violating clause 9.1 of the Code, with regard to the urination charge.”

98. This conclusion is seriously flawed inasmuch as it assumes that there was earlier intentional (wilful) conduct to self-intoxicate. The Code postulates the “wilful” requirement and for the CDC to negate the requirement because, in its view, to do so would lead to an unacceptable outcome, was unlawful and unfair.

99. Whereas I accept that my action of urinating on Mr Ndwayana’s property was, sadly, utterly deplorable, the CDC’s statement that Mr Ndwayana had “testified through affidavits confirming” undoubted mental harm, is simply not correct since he did not depose to any affidavits and this, too, evidences the eagerness with which the CDC pursued a finding of guilty on all the charges followed by my expulsion.

100. Its statement that under no circumstances should acts like mine carry anything less than the severest punishment in future and that it hoped to set an unequivocal precedent in this matter, also evidences bias and an ulterior motive.

101. However, it was in the context of its dealing with the Statement Charge, which postulates that I had uttered a racist remark, that the CDC sinned most grievously.

102. Again, as with its assessment of alcohol abuse within the South African and SU contexts, the CDC tainted me with its generalised assessment of racism without any evidence in that regard having been led. It inter alia stated as follows:

“SU is no stranger to racism. The university has long been a bubble from the harsh realities of its surrounding climate. It has notably struggled in its attempts to adequately and aggressively address the plethora of racial macro- and micro-aggressions which many of its students’ (sic) experience. On paper, SU’s policies are frank and clear – they are unequivocally against racism. However, the racist agenda which plagues SU roots deep within its fabric. It expresses itself in many manners, from students citing cultural preferences as reasons to not wanting to share a room with a person of colour, to the cliques which form, the passive-aggressiveness which people of colour receive from staff and students to the repulsive and atrocious comments made about the ‘them’s’ and ‘they’s’ – racism hidden by nothing more than a thin veil of unspoken understanding. Despite its best efforts, for many so-inclined families SU is still seen as the final bastion of a desired culture – one where certain belief can be allowed to live in the shadows, exonerated by the bubble which conceal those who choose to look away from the penetrating glare of reality. Rightly, this CDC has a duty to make it clear that SU will no longer be the final stronghold of an undesired culture. There cannot be any room for racism at SU.”

103. Again, this approach proceeds from assumptions not made on the strength of any evidence before the CDC, is devoid of particularisation and implicitly descriptive of me and my family. It was a crusade, blind to the facts and the requirements of the Constitution and PAJA, notably that of fairness.

104. As I have said, no evidence was led to substantiate these findings and neither I, nor the Huis Marais student leadership, were forewarned that recourse was going to be had to such generalisations and untested assumptions, not only to justify findings about Huis Marais’s ethos and that I had uttered a racist statement, but also to justify the harshness of the penalty visited upon me.

105. In the event the CDC stated that there was sufficient testimonial evidence placed before it to accept that the term “boy” was colloquial language and not used racially amongst me and my fellow-students, a finding which suggests that the younger generations are breaking away in part from the racial terminology of the past. It therefore concluded that on the facts and evidence before it, SU had failed to prove, on a preponderance, that the use of the term “boy” was racist or racially motivated.

106. In coming to this conclusion the CDC accepted, as did the Constitutional Court in Rustenburg Platinum Mine v SAEWA (obo Bester) 2018 (5) SA 78

(CC), that words such as “swart man” are not per se racist and derogatory but it is the context in which such words are used that will impute racism upon them, the test for the determination of which is objective – “whether a reasonable, objective and informed person, on hearing the words, would perceive them to be racist or derogatory”.

107. The most unequivocal example of the CDC’s bias is reflected in its dealing with the second component of the Statement Charge which was predicated on the fact that I had allegedly said, when asked why I was urinating on Mr Ndwayana’s property, that “it’s a white boy thing”, in respect of which the CDC said that the issue was to determine whether such a phrase had been used.

107.1 The only non-hearsay averment of me having used words to that effect, is in Mr Ndwayana’s supplementary statement which was inadmissible. The determination as to whether or not, on the probabilities, I used the words should also have been informed by the testimony of witnesses of colour that I am a non-racist individual, of which the CDC said that it failed to be convinced by those testimonies in determining what was said and that “these testimonies cannot hold incredible sway”, whatever that may mean.

107.2 Even if it were assumed that I had said what was imputed to me, that evidence should have informed the determination of whether a racial slur was intended.

107.3 The assessment of Mr Ndwayana’s “written testimony and immediate actions having been of vital importance” according to which “he expressly states that he was insulted”, evidences recourse to inadmissible, untested “evidence” which was inconsistent with the evidence of an independent bystander to boot.

107.4 In this regard it did not take issue with Mr Fullard pointing out that Mr Ndwayana’s recollection of what was said began to differ as time went by and that when the media became involved and Mr Ndwayana was thrust into the spotlight, “his testimony developed variations and, as such, more holes through which to question his reliability”.

107.5 It nevertheless concluded that the later revelations did not and should not detract from the initial statements because Mr Ndwayana became shrouded by external pressure. There was, of course, no evidence of such external pressure at all since neither Mr Ndwayana nor anyone else testified to that effect.

107.6 Furthermore, if there had been such external pressure it might well have manifested by 19 May 2022 when he inexplicably changed his original statement and conveniently claimed that I made the “white boy thing” remark only after he had stopped recording me and as I were leaving the room.

107.7 It also overlooks the fact that the other Huis Marais residents present on the scene in the course of the morning clearly did not regard the incident as racist but, instead, the CDC chose to attribute that to “the culture in Huis Marais”.

107.8 Notwithstanding these facts, and the very important fact that Mr X testified that he did not hear a conversation occurring at the time the alleged phrase was used, the CDC concluded “that the balance of probabilities must fall in favour of Mr Ndwayana” since “(t)o fail to do so would be to conclude that Mr Ndwayana was, and still is, lying” – a “conclusion that will be ill established and would in many ways be demeaning”! This was tantamount to saying that Mr Ndwayana’s statements had to be believed so as not to offend him. I have already pointed out the other shortcomings of this statements hereinabove. Not allowing his statements as evidence is not tantamount to disbelieving them.

107.9 Also, since he declined to testify, the CDC could not possibly credibly conclude that at the time of the hearing Mr Ndwayana’s evidence would have corresponded with his statements.

107.10 The CDC’s bias is equally evident in its determination of whether or not the phrase, assuming that it had been used, was racist.

107.11 The reasoning for its conclusion that “this CDC cannot conclude that this statement is anything but racist, purely racist”, postulates the question whether a reasonable, objective and informed person, on hearing the words, would perceive them to be racist or derogatory.

107.12 In this regard the CDC concluded that it was essentially tantamount to saying that “’[peeing on other people’s / people of colour’s property] is a white boy thing’.”

107.13 This statement itself concedes that the statement, assuming it was made, can be racially neutral from the victim’s perspective. That being the case, the CDC’s statement that it could not conclude that the statement is anything but racist is by no means a logical outcome to its own reasoning.

107.14 The “offence” which I perpetrated against Mr Ndwayana was to urinate on his property. If anything, applying the reasonable, objective and informed person Bester test, the statement is, at best, derogatory of white people, not people of colour.

108. The casual way in which the mitigating factors were discarded, a number without even being mentioned, also bears testimony to the eagerness with which the CDC marched forward to its desired outcome, i.e. of finding me guilty of having uttered a racist remark in order to expel me.

ASSESSMENT OF THE DAC JUDGMENT

109. As I have said, on 28 July 2022 the attorney who represented me at the enquiry, Mr W Fullard of Gideon Engelbrecht Attorneys, gave notice of my intention to appeal to the DAC against the judgment of the CDC of 21 July 2022.

110. Clause 25.6 of the Code provides as follows:

“The DAC has wide appeal powers. It may consider any ground of review contained in legislation giving effect to the right to administrative justice, and it may re-hear any Disciplinary Matter on the merits to whatever extent the DAC considers necessary and in whatever form the DAC may direct. The DAC has the power to substitute its finding for that of the RDC and the CDC in whole or in part, or to set the relevant decision aside and remit the matter to those committees for re-consideration subject to the direction of the DAC.”

111. It is evident that the DAC not only has appeal powers but also significant powers of review and that it could have set aside the CDC judgment on any and all of the PAJA review grounds invoked herein in respect of the CDC judgment.

112. In a Decision on Appeal dated 13 November 2022, a copy of which is annexure “TdT14” hereto, the DAC dismissed the appeal.

113. The central feature of the DAC judgment is that, inasmuch as it clearly sets out to justify the CDC judgment, it has all the shortcomings of that judgment. Put differently, given its wide powers the shortcomings of the CDC’s judgment highlighted herein become the shortcomings of the Decision on Appeal as a consequence of the DAC’s failure to uphold the appeal, embracing instead the CDC’s flawed reasoning.

114. According to the DAC, it is clear from the CDC’s judgment that it identified the key issue as having been whether I had uttered the phrase “it’s a white boy thing” as alleged and that the CDC correctly indicated that Mr Ndwayana was the only person who is said to have heard the phrase.

115. This is followed by paraphrasing the CDC’s judgment in respect of the statement charge and in respect of the sanction.

116. Given its wide powers the DAC should have interfered on any of the PAJA review grounds set out hereinabove and those raised in the application for leave to appeal.

117. Instead it restricted its reasoning to and dealt only with whether or not I had made the “it’s a white boy thing” remark, concluding that the CDC’s assessment of Mr X’s evidence was not susceptible to interference by it on appeal.

118. It simply ignored all the shortcomings of the CDC’s judgment referred to hereinabove.

119. As far as the testimony of Mr X is concerned, the DAC concluded as follows:

“On the contrary, the fact that Mr ‘X’ observed the conversation between Mr Du Toit and Mr Ndwayana at the same time that Mr Ndwayana alleged was the time when Mr Du Toit uttered the ‘white boy’ statement may tend to lend credence to Mr Ndwayana’s version, or is at best neutral. In the circumstances, the CDC’s assessment of the evidence of Mr ‘X’ is not susceptible to interference by us on appeal.”

120. This completely overlooks the fact that at the time when the remark was supposedly made, Mr X was standing right next to me and Mr Ndwayana and that he, Mr X, testified as follows:

“And then Babalo starting taking the video and then he started like interacting with Theuns and then after that I didn’t hear the communication, the conversation between the two. I don’t know whether I was probably not – I didn’t hear – actually I heard Babalo speaking but then I didn’t hear Theuns speaking and then after that, after some while, Theuns was done peeing and then he went out of the room and then that’s when I went back to my room, Chair. Ja.”

121. This gives the lie to the DAC’s version of what happened. Clearly Mr X’s evidence was that although he didn’t hear what was being said between the two of us, the conversation between Mr Ngwayana and I took place while I was still urinating, not subsequent to that when I was leaving the room which contradicts Mr Ngwayana’s second (inadmissible) statement according to which he discontinued making the video recording after I had stopped urinating and after that, when I was walking out I said “it’s a white boy thing”.

122. Having rightly concluded that clause 30.7 of the Code did not avail the Evidence Leader and that Mr Ndwayana did not utilise the clause at all, the DAC concluded that “it is not clear that Mr Du Toit is correct in his contention that Mr Ndwayana’s written statements and documents could not be considered by the CDC”.

123. The first, and obvious, point is that the DAC was called upon to determine whether this could have been done or not regardless of whether the position was clear to it.

124. It sought to detract from my contention in this regard by suggesting that it ignored two important matters without making a definitive finding:

124.1 Firstly, the general discretion of the CDC to consider written documents that formed part of the preliminary investigation bundle presented to it.

124.2 Secondly, it ignored the fact that certain of the witnesses that presented evidence before the CDC gave evidence relevant to the contents of documents and statements. In some cases, these witnesses were questioned by Mr Fullard on these statements and documents without any express objection or reservations regarding the admissibility of their evidence.

125. Although it is correct that the investigation bundle had to be submitted to the CDC, there is no provision to the effect that the contents thereof can indiscriminately be regarded as evidence by the CDC. I refer to what I have said in this regard hereinabove.

126. The fact that hearsay evidence was given by other witnesses relevant to the contents of such documents and statements could not have rendered those documents and statements admissible as evidence and the fact that the CDC has a wide discretion regarding the admission of evidence, does not detract from specific requirements regarding witness statements which were not complied with as I have shown.

127. Given the nature and the facts of this matter, it was absolutely essential for the CDC (and the DAC) not to rely on the Ndwayana statements given the fact that –

127.1 they were not made under oath;

127.2 they were not confirmed by him during oral testimony before the CDC and he did not respond to the DAC’s invitation to testify before it;

127.3 they are substantively contradictory;

127.4 the differences are of cardinal importance since in the second and last statement he made, he alleged that I used the “it’s a white boy thing” phrase after he had stopped making the video at the stage when I was busy leaving the room, an averment inconsistent with Mr X’s evidence; and

127.5 the fact that he declined to give evidence deprived the CDC and my legal representatives of the opportunity to test his version.

128. Particularly given its wide powers and its responsibility to ensure that justice is done and seen to be done, the DAC’s reliance on the failure to expressly object on my behalf against the admission of Mr Ndwayana’s documentary evidence, is misplaced. The simple fact is that the CDC and the DAC should have applied the law and neither did.

129. The DAC’s claim that it was “not persuaded that a negative inference should be drawn against Mr Ndwayana because he declined to participate in the proceedings before the CDC”, evidences a completely wrong approach to the matter as if it were a contest between me and Mr Ndwayana. It should have approached the matter on the basis of the implications of his failure to testify for the balance of probabilities test, and for the duty on SU to prove my guilt on a balance of probabilities. As before, no negative inference would have been drawn against Mr Ndwayana if his statements were excluded.

130. That it, too, predetermined that it was going to uphold the statement finding and sentence is evident from the fact that it set out to justify every single aspect of the CDC’s reasoning notwithstanding the shortcomings which I have highlighted hereinabove, as evidenced, for example, by the attempt to explain Mr Ndwayana’s failure to testify as follows:

“It is clear from the documents provided to us regarding the interaction between Mr Ndwayana’s legal representatives and the CDC that Mr Ndwayana formed the perception, rightly or wrongly, that he would not receive a fair hearing before the CDC. This was connected to his request to the CDC for him to have his representatives present with him to give him support during the hearing, and how this was resolved, including by extending permission to Mr Du Toit to have similar support (by a parent) without having made a request for it. There was therefore an apparent reason why Mr Ndwayana decided not to participate in the hearing before the CDC. In light of that, it would be unfair and unjustified to conclude that he declined to participate because his version would be shown to be untrue.”

131. There was absolutely no basis for the conclusion that Mr Ndwayana in fact formed the perception that he would not receive a fair hearing before the CDC. This was conveyed to the CDC by one of the gentlemen who claimed to be his legal representative and whose conduct was severely criticised by the CDC.

132. The DAC also overlooked, or was unaware of, the fact that the CDC agreed that one of Mr Ndwayana’s legal representatives could have attended to assist him. It also overlooked the fact that I was the accused and he a potential witness and that there is provision for assistance to accused persons but not witnesses.

133. It is also evident from the CDC’s judgment that it is by no means clear that Mr Ndwayana formed the perception, rightly or wrongly, that he would not receive a fair hearing before the CDC as claimed by the DAC and there was no apparent reason why Mr Ndwayana decided not to participate in the hearing before the CDC which could render it “unfair and unjustified to conclude that he declined to participate because his version would be shown to be untrue”. This is pure conjecture which has no place in a definitive judgment the outcome of which has enormous implications for a person’s entire life.

134. The DAC even sought to devalue the right to cross-examination by saying that although it is correct that Mr Ndwayana’s version could be tested during cross-examination, it has to be borne in mind that the right to cross-examine before the CDC is limited in the discretion of the CDC. Given the enormously detrimental potential implications of the second statement in particular, a fair and unbiased CDC would have had to be generous to my attorney in this regard.

135. Facts such as that there are video recordings of Mr Ndwayana where he emphatically denies that I acted in a racist manner and later of interviews with the media with student leaders standing next to him, in which he claimed that I should be suspended and even locked up, would have provided a powerful incentive for him to avoid cross-examination and for the CDC to allow it. In this regard I intend to request, through my legal representative(s), that certain video recordings and/or video material, or excerpts from such videos, be played in and showed to the court during the hearing of this matter. I confirm that all such video recordings and/or excerpts will be made available to the respondents by my attorney simultaneously with the service of this application on the respondents.

136. The lengths to which the DAC went to avoid having to overturn the CDC’s decision is further illustrated by the following statement:

“Furthermore, there was no version that Mr Fullard could have put to Mr Ndwayana that showed that Mr Du Toit have not made the alleged statement. At best for Mr Fullard, he would only have probably put to Mr Ndwayana the fact that Mr X had not heard Mr Du Toit utter the alleged statement. But in fairness to Mr Ndwayana, Mr Fullard might have been expected to disclose to Mr Ndwayana that Mr X confirmed in his evidence that he observed Mr Ndwayana and Mr Du Toit having a conversation and while he could hear Mr Ndwayana, he could not hear Mr Du Toit’s response.”

137. Apart from the fact that this is not consistent with Mr X’s testimony referred to hereinabove, it is certainly not an accurate assessment of what, at best for him, Mr Fullard could have tested Mr Ndwayana on. It is an obvious attempt to downplay the significance of the fact that Mr Ndwayana declined to give evidence for no apparent good reason.

138. A further patent error is the finding that granting the clause 30.7 application was unnecessary and, as a consequence, the CDC did not commit an irregularity in admitting and considering Mr Ndwayana’s documentary evidence. Firstly, there never was a clause 30.7 application and, secondly, the CDC acted irregularly in admitting and considering the documentary evidence since it was not before it as evidence in accordance with the relevant provisions of the Code and the operative directive.

139. The conclusion that even if it were irregular, it was not a material irregularity, is further proof of the DAC’s bias, particularly in view of the fact that the DAC itself concluded that the CDC correctly indicated that Mr Ndwayana was the only person who is said to have heard the “it’s a white boy thing” phrase being spoken by me. This will be elaborated upon during argument.

140. The DAC’s conclusion that a finding of guilt on charge 2 was sufficient on its own to justify the sanction of expulsion, is further evidence of its bias inasmuch as it is a transparent attempt to protect the expulsion order from the possibility of the statement conviction being overturned. In this regard, and at a theoretical level, the reasoning is developed as follows: In order to strive to its envisioned future, SU has to take decisive action and adopt a zero tolerance approach to conduct that causes mental harm, is grossly insulting, hugely humiliating and demeans the human dignity of others.

141. The DAC therefore concluded, as did the CDC, that my conduct undoubtedly assailed the human dignity, integrity and security of Mr Ndwayana and was deeply humiliating and degrading without him having testified to that effect.

142. The conclusion that a finding of guilt on charge 2 was on its own sufficient to justify the sanction of expulsion, presupposes a determination which could only have been made if Mr Ndwayana had testified as to whether he had suffered mental harm and as to how insulting, humiliating and demeaning the experience was to him as well as to whether or not my apology and true remorse served to assuage the negative consequences of my conduct or not.

143. Since there was no such evidence the DAC could not have made this finding.

144. On the probabilities the reason why the DAC concluded that even if it were wrong in respect of the outcome of the statement charge, the sanction of expulsion was not shockingly inappropriate and completely disproportionate to the offence, the offender and the interests of the University Community, was rooted in its bias evidenced by its flawed justification to keep the expulsion order in place at all costs.

145. This is particularly so since it could simply have dismissed the appeal against the sanction of expulsion as a consequence of its dismissal of the appeal against the finding in respect of the statement. That it sought to protect the expulsion order is indicative of the fact that it realised that the statement finding is vulnerable. It should, instead, have allowed the appeal.

146. For all of the reasons set out hereinabove, which will be elaborated upon during argument, the Court is requested to grant the relief prayed for in the notice of motion, with costs.

THEUNS DU TOIT

ENDS