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

CASE NO: 21441/24

In the matter between:

THE WILGENHOF BOND - Applicant

And

STELLENBOSCH UNIVERSITY - First Respondent

COUNCIL OF THE STELLENBOSCH UNIVERSITY - Second Respondent

RECTOR OF THE STELLENBOSCH UNIVERSITY - Third Respondent

THE PANELAPPOINTED TO INVESTIGATE THE CONTENTS OF TWO ROOMS AT WILGENHOF RESIDENCE, CARE OF ITS CHAIRPERSON ADV NICK DE JAGER N.O. - Fourth Respondent

FOURTH RESPONDENT'S EXPLANATORY AFFIDAVIT

I, the undersigned,

NICKY CARL DE,JAGER

make oath and say that -

Introduction

l. I am an advocate of this Court and a member of the Cape Bar, practising as such at Huguenot Chambers, 40 Queen Victoria Street, Cape Town, Western Cape.

2. The facts in this affidavit are within my personal knowledge, except where the context indicates otherwise, and are to the best of my belief both true and correct.

3. I was the Chairperson of the Panel, cited as the fomth respondent in this application, in which the Wilgenhof Bond ("the Bond") is the applicant. The other members of the Panel were Penny van der Bank, the Deputy Registrar: Governance, Ethics and Compliance of the first respondent in the application, Stellenbosch University ("SU"), and Dr Derek Swemmer, the retired Registrar of the University of the Witwatersrand and subsequently of the University of the Free State.

4. The Panel was appointed by the third respondent, the Rector and Vice-Chancellor of SU, Professor Wim de Villiers ("Prof de Villiers" or "the VC") on 12 February 2024, as appears from annexure "WH2" to the application, being the Terms of Reference of the Panel. The Terms of Reference relate to SU's Wilgenhof residence ("Wilgenhof'').

5. The Panel was assisted by Mr Yaseen Cariem, an attorney of the firm VanderSpuy Cape Town, who was appointed by SU to perform secretarial and administrative support functions on behalf of the Panel.

6. Confirmatory affidavits by Ms van der Bank, Dr Swenuner, and Mr Cariem will be filed together with this affidavit.

7. According to the Terms of Reference, the Panel was appointed to conduct an investigation into two rooms discovered at Wilgenhof. At the conclusion of its investigation, the Panel was required to compile and submit a written report and summary of its report to the Rectorate. The initial deadline for submission of the report

was the encl of February 2024, but that deadline was extended to 31 May 2024, and then to 12 June 2024, as I explain below.

8. Save as set out in paragraphs 33 to 38 below, the Panel members did not interact directly with Prof de Villiers or any staff of SU as far as the Panel's activities are concerned. All such interaction occurred via the Panel secretary, Mr Cariem, on the instructions of the Panel.

The Cameron affidavit

9. On Thursday, 24 October 2024, the applicant's attorney in this matter filed a number of confirmatory affidavits, including an unsigned affidavit by former Constitutional Court Justice Edwin Cameron ("the Cameron affidavit"). In his accompanying affidavit, the attorney, Mr von Lieres und Wilkau, states that the Cameron affidavit "highlights troubling questions about the independence of the Panel and the legitimacy of the process as a whole".

10. A signed version of the Cameron affidavit was delivered the following day, Friday, 25 October 2024. I shall deal with the content of the Cameron affidavit hereunder.

11. Over the past weekend, the Cameron affidavit was evidently made available to the media and received wide publication and conunent therein, much of it in sensationalist terms. In this regard:

11.1. On Sunday, 27 October 2024, BizNews reported on the Cameron affidavit. It inter alia said the following:

"Cameron's· affidavit lays bare that:

The investigative panel did not act independently and altered their findings due to the intervention of the Rector Wim de Villiers, as well as the Council Chair Nicky Newton-King. "

11.2. BizNews also quoted the spokesperson of the Wilgenhof Alumni Association (which I understand to be the English name of the applicant) as stating:

"It is our belief that the investigative panel, and subsequent engagements through submissions to the Council, have all simply been window-dressing so that the university can force through a predetermined decision."

11.3. In a News24 report dated Monday, 28 October 2024, extracts from the Cameron affidavit were quoted, as were also comments by the aforementioned Wilgenhof Alumni Association. Among these quotations was one by Justice Cameron to the effect that:

"The Panel, with what seems almost flippant haste, within 24 hours entirely changed the tenor and content of its report."

11.4. In similar vein, and also on Monday, 28 October 2024, Legalbrief reported on the Cameron affidavit. Inter alia it stated, under the heading "Cameron accuses officials of altering Wilgenhof report", the following statement:

"According to Cameron saffidavit, university vice-chancellor Professor Wim de Villiers and council chailperson, Dr Nicky Newton-King allegedly changed a report which recommended Wilgenhof's closure."

12. Given the content of the Cameron affidavit, and the widespread publicity accorded thereto, the Panel considers it necessary to file this affidavit even though the record has not as yet been filed in this matter, and the applicant is yet to file an amended notice of motion and/or supplementary affidavits, in the event that it desires to do so.

13. The Panel has elected to do so for two reasons, viz:

13.1. In order to correct certain incorrect statements or assumptions in the Cameron affidavit, and in the resultant media coverage emanating therefrom; and

13.2. To protect the personal and professional integrity of the members of the Panel, which, as a result of the aforesaid affidavit and the subsequent publication in relation thereto, have been impugned.

14. This affidavit, accordingly, does not constitute the Panel's answering affidavit in the application, which it will file in due course, if advised to oppose the application. It is confined to dealing with the aforementioned matters. In order to address them, I first set out a correct account of what occurred in relation to the publication of the Panel's report dated 31 May 2024, and the changes thereto in the version dated 10 June 2024.

The Panel's mistake in the 31 May report, how it came to light, and how the Panel corrected the mistake

15. On 31 May 2024 at 23h58 the Panel secretary emailed the Panel's report to the VC only.

A copy of this email together with the relevant portion of the report is annexed marked "ND1". As will be seen therefrom, I have attached the covering page, indicating the date of 31 May 2024, the Executive Summary, and Part 8 thereof, which deals with the paragraphs at issue in the Cameron affidavit. I do not attach the entire report, which amounts to 107 pages (excluding annexures), as it would unduly burden this affidavit. It will however be made available to any party requesting same, and to the court at the hearing of the matter.

16. On 1 June 2024, the VC acknowledged receipt of the report and thanked the Panel for their deliberations and recommendations (this email is marked 2 in the email chain annexed marked "ND2").

17. Having submitted its report to the VC, the Panel obviously had, and has, save for what is set out in the next paragraph, no knowledge of, and cannot comment on, the further distribution of the report, or any discussions or interactions between the Rectorate and other SU stakeholders regarding it.

18. During the week of 3 June 2024, Ms van der Bank (who, by vit1ue of her employment, is based on campus at SU) received a number of comments from persons who had seen the report. These included two comments specifically about paragraph 517 of the report, and its apparent incongruity in the context of the Panel's recommendation as to closure of Wilgenhof. Ms van der Bank cannot now recall who the persons were who made these latter comments but recalls them being made on or about 5 June 2024.

19. Ms van der Bank did not respond as she wanted to speak to the other Panel members first. At 10h20 on 6 June 2024, she sent a message on our WhatsApp group saying that she had received these two questions, and that she wanted to have a discussion. I attach hereto marked "ND3" screenshots of the group's WhatsApp exchanges that followed on that day, culminating in confirmation by Mr Cariem on 7 June 2024 that the VC and Mr Naidoo from Legal Services had accepted the proposed changes by the Panel to the report. Ms van der Bank's initial message is at page 1 thereof.

20. I must make it clear that these messages are being disclosed in order to demonstrate that the impetus to correct the 31 May report came from the Panel itself, once alerted to the problem that had been brought to Ms van der Bank's attention. There was no influence, undue or otherwise, from anyone, including the VC, to get the Panel to change its report or recommendation. This is dealt with hereunder. In disclosing these messages, the Panel expressly does not waive any privilege that attaches to its internal communications and discussions, including other messages not disclosed. In fact, such privilege is asserted.

21. The reference on page 1 of "ND3" to "DS'' having raised a "related issue" with me, is a reference to Dr Swemmer, one of the panel members. Prior to receipt of Ms van der Bank's WhatsApp message on 6 June 2024, Dr Swemmer informed me that he had served in a similar capacity on behalf of universities in relation to investigations undertaken by them, and that those panel members had in those circumstances made themselves available to the university authorities to present their reports and deal with queries or provide clarification.

22. In the result, the Panel had a Teams discussion about the questions at 11h00 on 6 June 2024. Ms van der Bank told us that the two persons had questioned how paragraph 517 of the report (which refers to"a truly deep, carefully managed andfaci!itated dialogue on campus" that "appeals to the panel as an alternative to the closure of Wilgenhof') relates to the Panel's principal recommendation in paragraph 512 of the report, namely that Wilgenhof should be closed.

23. The Panel looked at and considered Part 8 of the report once again in light of the questions. The Panel felt that paragraph 517 of the report was open to being interpreted as departing from, or raising an alternative to, the primary recommendation of the closure of Wilgenhof (which is written in bold text in paragraph 512), which was not the Panel's intention. The Panel did not intend to include paragraph 517 as a separate paragraph. Rather, the contents of that paragraph should have formed part of paragraph  511.

Paragraph 511 sets out the alternative courses of action that the Panel considered to address the difficulties it had identified with the Wilgenhof culture and the Nagligte ritual. None of those alternatives mentioned in paragraph 511 of the report (which should correctly have included paragraph 517) was considered by the Panel to be truly viable. Thus, the Panel's recommendation in paragraph 512, namely that the closure of Wilgenhof was the appropriate recommendation.

24. The bulk of the work in drafting the Panel's report occurred during May 2024. The drafting work was particularly time-consuming and intense during the second half of May 2024. The report was submitted to the VC close to midnight on 31 May 2024, which was the deadline for submission of the report. 31 May 2024 was a particularly long working day for the Panel during which we spent most of the day, approximately 14 hours, working together finalising the report. The work of finalising the report was done via Teams meetings, where the document was put up on screen, and changes were made by one or other of us, after consensus had been reached as to any particular point. The Panel members worked on one and the same "live" document, to which they all had electronic access.

25. I believe it was during the second half of May 2024 that I formulated the Recommendations section of the report, including paragraphs 504 to 517 thereof. I need to emphasise the following in this regard:

25.1. The wording of this section, Part 8 of the report, is mine, as were the initial views being expressed therein and the reasons therefor. These had not yet been discussed in any detail by the Panel as a whole when I drafted the section.

25.2. This is particularly relevant in relation to the words "appeals to the panel" in paragraph 517. When I drafted the paragraph the Panel's views had not yet been ascertained.

25.3. In the lead-up to finalising the report, including on 31 May 2024, the Panel gave careful consideration to what its recommendation should be regarding Wilgenhof's future. We exchanged frank views in this regard, and considered the material placed before us, our findings, and settled on our recommendations in relation to the various pai1s of the report.

25.4. The Panel was unanimous in ultimately concluding that Wilgenhof should be permanently closed. That recommendation appears relatively early on in Part 8, at paragraph 502.1, although we say that it will be further dealt with from paragraph 504 onwards.

25.5. After dealing with our recommendations in relation to the various parts of the report, we set out our conclusions in relation to the Nagligte and the Wilgenhof culture in paragraph 504, pose the question in paragraph 505 as to the way forward, and summarise the various views in this regard in paragraphs 506 to 510.

25.6. Paragraph 511 deals with the alternatives to closure of Wilgenhof which the Panel had considered.

25.7. Notwithstanding these, the Panel sets out its conclusion that Wilgenhof should be permanently closed in paragraph 512. Paragraphs 513 to 516 explain this conclusion.

25.8. Paragraph 517 is noticeably not aligned with the rest of the structure of Part 8.

That is because it was not intended to be in that position in the final version of the report. I cannot now recall whether paragraph 517 was always in that position in prior formulations of this section that I originally prepared, or whether its position there is as a result of its having been moved during the editing process.

26. During the finalisation of the report on 31 May it was the Panel's intention that paragraph 517 should be located amongst the other alternative courses mentioned under paragraph 511. That is because it, along with the other alternatives to closure, had been discounted during the Panel's discussion of its ultimate recommendation in respect of Wilgenhof. Under pressure of meeting the deadline, and after a very long day, this was overlooked. It was a bona fide mistake on our part that paragraph 517 was left as the concluding paragraph in the 31 May report. It should not have been.

27. To the extent, then, that the 31 May report appears to reflect paragraph 517 as an alternative to the Panel's principal recommendation in paragraph 512, and elsewhere in the report, that is an honest error. It does not, and did not, represent the Panel's view when it finalised the report.

28. The Panel did not appreciate its error until 6 June 2024, when the Panel met to discuss the two questions raised with Ms van der Bank.

29. Pages 2 to 12 of annexure "ND1" comprise the Executive Summary of the report, which the Panel was required to submit. The Executive Summary, by definition, contains a summation of relevant background and the principal findings and recommendations of the Panel, as contained in the report. The Executive Summary was the last part of the report that was drafted, after everything else was in final form. It was drafted on 31 May 2024. Paragraph 53 of the Executive Summary reads as follows:

"53. The main and most important recommendation of the panel is that Wilgenhof be permanently closed. Other recommendations are also offered pertaining to the other Parts of this report, but they are not set out in this summary." (Emphasis in the original) If it had been the intention of the Panel to present an alternative to closure ofWilgenhof (i.e. the process of dialogue referred to in paragraph 517), then it would have mentioned that in the Executive Summary. The Panel did not do so because that was not its intention.

30. The Panel did not want its recommendations to be misunderstood, which Ms van der Bank's experience indicated was evidently happening.

31. This potential for misunderstanding the recommendations in our report, however, had not been raised with the Panel formally. It was for this reason that the Panel, of its own accord, resolved to invite the VC to raise any issues of clarification in relation to the report, should he wish to do so.

32. On the instructions of the Panel and at 11h39 on 6 June 2024, the Panel secretary emailed the VC to say:

"The panel has asked me to advise that they remain at the Rectorate's disposal to provide any clarification or answer any questions in respect of the Wilgenhof Report, distributed on 31 May 2024, at your convenience."

The email is marked 3 in annexure "ND2".

33. As appears from annexure "ND3", the Panel was concerned that there should be a formal request from the Rectorate for clarification, so that it, i.e. the Panel, could address the issue. As appears from page 3 of "ND3", Ms van der Bank had already spoken to "internal stakeholders", who indicated that the Panel should not unilaterally change the report, but that clarification may be sought in respect of paragraph 517. Ms van der Bank confirms having such a discussion, in all likelihood with Mr Naidoo of Legal Services.

34. It was pursuant to that discussion and position on the part of SU that I suggested, in the message sent at 15h18 and which appears at pages 3-4 of "ND3", that Ms van der Bank "nudge" SU to formally ask us to clarify paragraph 517, in which event we would provide such clarification in line with our earlier discussion.

35. I emphasise that my message concludes with the following statement:

"I would like this to be clarified, because I am not satisfied with the current formulation of the report, that looks like we say "talking" is an alternative to "closing". that is not our recommendation. but that is what para 517 seems to say."

36. The following bears emphasis in this regard. This exchange, and the expression of this view by me, preceded any request by SU, and in particular the VC, for clarification of the report.

37. In response, Ms van der Bank indicated that she was seeing the VC at 16h15.

38. She confirms that she did see the VC later that day, at or about 16h30. He was with the Chair of Council, Dr Nicky Newton-King, but is unsure whether the latter remained for the entire conversation. During the conversation, Ms van der Bank advised the VC that the Panel secretary had sent an email indicating that the Panel remained available to provide any clarification or answer any questions in relation to its report, and that he may wish to take up the offer in light of questions that had been raised concerning paragraph 517. I refer to her confirmatory affidavit in this regard.

39. In answer to the email referred to in paragraph 32 above and at 16h52 on 6 June 2024, the VC emailed the Panel secretary saying:

"Thank you for your email - we appreciate the opportunity. We do indeed have a question - the final paragraph, par 517 - seems somewhat out of place. Could the panel please clarify whether this was indeed the intention?"

The email is marked 4 in annexure "ND2".

40. Having had its discussion about paragraph 517 earlier in the day on 6 June 2024, the Panel was already alive to the misunderstanding that it could create. The Panel therefore instructed the Panel secretary to email the VC on Friday, 7 June 2024, saying:

"Thank you for your email received late yesterday afternoon, in which you raise a point of clarification for the panel regarding paragraph 517 of the Report. I have referred your email to the panel and they have responded with the following clarification.

The final paragraph of the Report (para 517) is indeed out of place.

Paragraph 517 should not be a separate paragraph on its own. It should form part and parcel of paragraph 511.1. Paragraph 511 sets out the main alternatives that the panel considered to address the difficulties it had identified with the Wilgenhof culture and the Nagligte ritual.

The panel holds the view, however, that none of the alternatives mentioned in paragraph 511 (including paragraph 517, which should form part thereof) is truly viable.

In the circumstances the panel recommends the permanent closure of Wilgenhof.

If it would be helpful to the Rectorate, the Report could quickly and easily be amended to effect this clarification. The Report would be amended by: (1) deleting paragraph 517; and (2) replacing the existing paragraphs 511 and 512 with the following (the footnotes are not included for now, but are retained as per the Report) 511. The panel considered various alternative courses to address the difficulties in paragraph 504 above, including-

511.1. A truly deep, carefully managed and facilitated change management process at Wilgenhof, while using the threat of closure of Wilgenhof as something of a "stick" to facilitate real change (i.e. if the process of change fails or is not genuinely undertaken by Wilgenhof stakeholders, the residence will be closed down). The panel cannot comment on how long that process might take. The dialogue would have lo grapple with the difficult issues that maintain the primacy of the dominant culture at Wilgenhof, and members of that culture would have to be prepared not only to see their own blind spots, but also to acknowledge their privilege and make big sacrifices to engender deep and lasting change.

5 11. 2. Engaging in an almost TRC-type, facilitated dialogue on campus in which all stakeholders of the University participate, to grapple with University-wide issues of racism, transformation, diversity, belonging and so forth, with a focus on residences. This would address issues such as "what does it mean to be the beneficiary of generational wealth and privilege?"; "what does it mean to cany a legacy of generational exclusion and marginalisation?"; and so forth. The panel heard that there have not been sufficient opportunities lo really sit down and get to know people across the racial divide, hear their experiences, with a view to transforming SU Perhaps Wilgenhof could be closed up temporarily (for a year or more) while this continues.

511.3. Converting Wilgenhof lo a Co-Ed residence in keeping with SU's residence strategy: some experts felt this option could be feasible, provided that female students are in the majority.

511.4. Ensuring that Wilgenhof is populated by a significant majority of black students. If this occurs, so the expert thinking went, it may create a safe space for black students to speak out and to effect real change in the residence, to break and replace the Wilgenhof culture currently in place.

511.5. Changing the name of the residence (through an inclusive procesJ): it appears to the panel unlikely that this would have any realistic chance of success. The Wi!genhof Association has acquired ownership of the name Wilgenhof, and if the residence continues to be used as a mens residence in the same buildings, there is no reason to think that the Nagligte will not survive and/or resurface again in future, as they have done before.

512. The panel holds the view, however; that none of the alternatives mentioned in paragrnph 511 above is truly viable. Against the long history of resistance to change and reform at Wilgenhof which has brought SU to this point, the panel recommends the permanent closure of Wilgenhof.

This is manifestly an issue of importance, and the panel does not wish to be misunderstood.

Thank you for raising this issue with the panel."

The email is marked 5 in annexure "ND2". As appears therefrom, Mr Cariem copied in Dr Ronel Retief, SU's registrar.

41. Later on 7 June 2024, Mr Neville Naidoo (SU's Director: Legal Services) responded to this email from the Panel secretary, saying:

"Dear Yaseen (Wim and Ronel copied in)

The Rector and myself have engaged on this matter, pursuant to your earlier email hereunder. We are accepting of the proposed amendments, to ensure clarity and limit misunderstanding of the Panel's recommendationscontained in the report.

We kindly ask that you undertake the mentioned changes and provide us with the amended report, in entirety, at your earliest convenience."

The email is marked 6 in annexure "ND2".

42. Pursuant to Mr Naidoo's request, the Panel collectively made changes to the 31 May report as follows:

42.1. The first category of changes made are those proposed in the Panel's email of 7 June 2024 (paragraph 40 above). Paragraph 517 as a self-standing paragraph was deleted, and its contents were incorporated into a reformulated paragraph.

42.2. The reference to the content of the original paragraph 517 appealing to the Panel was deleted as it did not reflect the Panel's view, as explained above.

42.3. The original sentence located between paragraph 511 and 512 (which referred to a consideration of alternative measures "in combination with each other") was deleted, because it was unnecessaiy. The Panel added a sentence to paragraph 512 to state in terms that none of the measures mentioned in paragraph 511 was considered truly viable.

42.4. The second category of changes made comprised minor changes to the report that did not materially affect the substance of the report, its conclusions or recommendations (these changes are all identified in paragraph 48 below). These changes were all made solely on the Panel's own initiative. Inasmuch as the report was to be amended to deal with the first category of changes anyway, this presented an opportunity to make minor changes that had escaped the notice of the Panel in the period leading up to 31 May 2024.

43. On 10 June 2024 at 15h42, the Panel secretary emailed this amended, final report to Mr Naidoo, copying in the VC and Dr Retief. This amended report retained the date of 31 May 2024. Acopy of the email, the cover page of the amended report, and Part 8 thereof is annexed as "ND4".

44. Later on 10 June 2024, Mr Naidoo sent the Panel secretary an email, saying:

"Thank you and extend my thanks to the panel.

As discuss just now, the Panel had decided to retain the report as originally dated 31 May 2024. This to accord to the mandate end date of the panel as per the last extension granted. In the Panel's opinion, an amended date would indicate an extension of the mandate, which is not the case. Such date indicated at page 104. From my immediate cursory perusal, I note altering of the paragraph numbers. In that 511 has changed to 513 with other amendments. These have not been specifically pointed out by yourselves yet accept same would be in keeping with your email of 7 June hereunder, such being points of clarification, with correction of typographical errors."

A copy of this email is aimexed as "ND5"

45. On 11 June 2024 at 08h50, the Panel secretary returned a call from Mr Naidoo. Mr Naidoo referred to his email "ND5", and explained that this was a courtesy call to inform the Panel secretary of the email that he would be sending later that morning.

46. On 11 June 2024 at 09h14, Mr Naidoo sent an email to the Panel secretary, which the latter shared with the Panel. Mr Naidoo's email reads as follows:

"Dear Yaseen

Thank you again for our chat this morning. Again, I do not want to prescribe the content of the proposed memo to the panel yet have provided my insights if they assist.

I am of the view that it would be best for the date of the report to be amended to 10 June, if the Panel effected the changes today. We don't think that the change in the date would create an extension problem.

We also had a brief overview of the amended version of the report. Initially, I thought that the Panel would merely move paragraph 517 to paragraph 511, but I soon realised that there was a bit more to it than just the moving of the paragraph. It appears to us that paragraph 517 was moved and edited. We also picked up changes, although not substantive, at paragraph 160 and paragraphs 246 -248.

In order to avoid people from accusing the rector and the panel unfairly and unjustifiably of collusion or covering up when they learn that the initial version of the report was amended, we are of the view that, apart from changing the date of the report, it is necessary for the panel to explain, by way of an explanatory memo to be written by Yaseen on behalf of the Panel to the rector, what changes had been made, and how it came about that the changes were made.

I don't think it would be necessary for the rector to distribute the explanatory note to Council or to the public, as long as it is on record, and can be disclosed in future, if necessary.

I propose that the Rectorate should obtain a memo from you, which states something along the following lines:

Dear Prof De Villiers

On 31 May 2024, I sent to you the report of the panel established to investigate the contents of the two rooms at Wilgenhof Residence, and on 6 June 2024 I informed you that the panel has asked me to advise that they remain at the Rectorate's disposal to provide any clarification, or answer any questions in respect of the report.

You subsequently wrote to me on 6 June 2024, stating that paragraph 517 seems somewhat out of place, and you asked the panel to clarify whether this was indeed the intention. In answer to your enquiry, the panel, in summary, asked me to inform you that -

- paragraph 517 is indeed out of place, as it should have been included in paragraph 511.1, to form part of the main alternatives the panel considered to address the difficulties it had identified with the Wilgenhof culture and the Nagligte ritual.

- none of the alternatives addressed in paragraph 511 and subparagraphs, including the alternative previously set out in paragraph 517, is truly viable, and in the circumstances the panel recommends the permanent closure of Wilgenhof.

The panel has since corrected the said oversight and at the same time took the opportunity to make the following minor changes to the report:

o The previous subparagraph 160.1 has been numbered paragraph 161.

o Paragraph 248 has been added.

o Typographical changes were made to paragraph 249 (previously paragraph 247).

o The renumbering of paragraph 161 and the addition of paragraph 248 resulted in the renumbering of all subsequent paragraphs.

o Paragraph 517 was moved to - and edited as part of paragraph 511.1.

The panel trusts that the rectorate will find the above changes to the report, dated 10 June 2024, in order.

Yours sincerely"

A copy of this email is annexed marked "ND6".

47. The Panel considered and discussed Mr Naidoo's email and his suggestion of an explanatory memorandum dealing with the changes made to our report. The Panel felt that this was a prudent suggestion, for the reasons given by Mr Naidoo. The list of "minor changes" to the report, mentioned in Mr Naidoo's email above, was however not complete. The Panel was also mindful of the fact that its term of appointment had formally come to an end on 31 May 2024.

48. In the circumstances, and at 16h32 on 11 June 2024, Mr Cariem, on the instruction of the Panel, sent an email to the VC, copying in Dr Retief and Mr Naidoo, saying:

"Dear Prof De Villiers,

1. On 31 May 2024, the panel furnished you with its report of its investigation into the contents of the two rooms at WilgenhofResidence.

2. On 6 June 2024, I consulted with the panel members and was instructed by the Chairperson to inform you that the panel remained at the Rectorate's disposal to provide clarification or answer questions in respect of the report.

3. Pursuant thereto, you addressed a query to the panel seeking clarity on the main recommendation in the report.

4. In response to your enquiry and to address the point which required clarification, the panel provided an email clarifying the issue, and offered to amend the report accordingly. That offer was accepted.

5. The panel amended the report accordingly. At the same time, the panel on its own initiative took the opportunity to make some other small changes, which do not materially affect the substance of the report, its conclusions or recommendations.

6. This amended report was furnished to you on Monday, 10 June 2024.

7. For your ease of reference, the panel has taken the 31 May Report and tracked all changes made to it, as reflected in the 10 June Report. This version (enclosed) shows you all the changes made to the 31 May Report. These changes are stylistic, grammatical and typographical. As a result of these changes some paragraph numbers changed.

8. You will appreciate that the panel's mandate came to an end on 31 May 2024. All these developments since that date are consequently outside the panel's term of appointment. The panel kindly requests an extension of its mandate until 12 June. The panel will then issue its report (in the amended form as already furnished to you on 10 June 2024), but dated 10 June 2024.

9. We await confirmation of this extension from you.

Kind regards"

A copy of this email together with its attachment is annexed marked "ND7''.

49. At 16h48 the VC responded, granting and confirming the extension. A copy of the VC's email is annexed marked "ND8".

50. On 12 June 2024 at 08h34, and as promised in his email to the VC on 11 June, the Panel secretary emailed the Panel's final report to the VC dated 10 June 2024. A copy of the email, the cover page of the report, and Pa11 8 thereof is annexed marked "ND9".

50.1. This version of the report was the same as the amended report dated 31 May 2024 and sent to the VC on 10 June 2024 (as stated in paragraph 43 above), save that the date had been changed.

50.2. The only differences between the report dated 10 June 2024 and the initial report (sent on and dated 31 May 2024, as stated in paragraph 15 above) are the changes shown in "tracked" format in the document attached to the email referred to in paragraph 48 above, and the date.

The Panel's response to the Cameron affidavit

51. The Panel does not consider it necessary to deal in detail with the content of the Cameron affidavit. The facts, set out at some length above, speak for themselves. The Panel does, however, consider it necessary to deal with paragraph 30 of the affidavit, and with annexure "EC7" thereto.

52. In paragraph 30 Justice Cameron says the following:

"In addition, I considered that the public had a legitimate interest in knowing that (a) the VC's intervention had triggered the changes; and (b) the Panel had for its part acceded to the VC's intervention."

53. These statements are incorrect and untrue. I have explained how the problem occasioned by paragraph 517 came to the Panel's attention, and how it sought to address it. The VC did not "intervene", nor did such intervention trigger the changes to the report. Any such suggestion is entirely rebutted by the objective evidence contained in annexure "ND3", being the WhatsApp exchanges between the Panel members on 6- 7 June 2024, and which demonstrate incontrovertibly how the impetus to change the report arose.

54. Moreover, there was no discussion whatsoever with the VC or anyone at SU, save for Ms van der Bank, as to the changes required, and ultimately effected to the report.

55. It is accordingly equally incorrect and untrue, and disparaging and defamatory of the Panel members, to say that they acceded to what would have been grossly improper conduct on the part of the VC. The Panel is comprised of persons whose personal and professional integrity have never before now been called into question. One is a practising advocate, who is required in the exercise of his professional duties to act in accordance with the highest standards of honesty, integrity and independence.

56. Annexure "EC?" is an email sent by Justice Cameron to Prof de Villiers, copying in Ms Joyce Maretha, the VC's executive personal assistant, on 21 June 2024. In relevant part it says the following concerning the Panel:

"6. What is new to me however is how astonishing the conduct of the Panel was.

7. On 31 May 2024 they sent you a FINAL REPORT. That Report remained "Final" only until you queried its last paragraph.

8. Then the Panel, with what seems almost flippant haste, within 24 hours entirely changed the tenor and content of its Report. Now there was no alternative to closure. There was no path to dialogue and amelioration. Only erasure.

9. If the last paragraph was a mistake, as the Panel claimed to you in its message of Friday, 7 June 2024 why was it in the Report at all? And why was it so conspicuously placed? And why did the Panel say the alternative "appeals" to it?

10. This seems to suggest an insouciant, even reckless, approach on the part of a Panel that was entrusted with duties affecting issues of grave importance to the University".

57. These statements, too, are incorrect, untrue, and defamatory of the members of the Panel.

58. Paragraphs 6 and 7 have been addressed in paragraphs 52 and 53 above. So too, incidentally, have paragraphs 1 to 5 of the email, not quoted above.

59. Regarding paragraph 8, the Panel was considering the changes required to the Report before Prof de Villiers requested clarification, as explained above. It needed a formal request before it could however propose any changes. The tenor and content of the report was not "entirely changed'. This is apparent from a reading of the entire document, read in context, particularly the Executive Summary, and paragraph 502.1.

60. Regarding paragraph 9, the cause of the error in the retention of paragraph 517 as a self­ standing paragraph, as opposed to its being included in the alternatives in paragraph 511 that were considered by the Panel but ultimately rejected, has been explained. For reasons not apparent to the Panel, that explanation, provided to him by Prof de Villiers on 20 June 2024, is not accepted by Justice Cameron. Instead, he casts doubt in this paragraph on the veracity of the Panel's explanation provided to the VC. He has and had no basis for doing so.

61. I have explained how the reference to the alternative in paragraph 517 being "appealing" to the Panel was, in fact, not the case, leading to its excision from the reformulated paragraph 511.1.

62. The Panel does not agree that its conduct has been insouciant, let alone, reckless. It admits that it made an error, as explained above. This must be seen in light of the mass of material it had to digest, the complexity of the issues at stake, the serious attention it had to give to the divisive, emotion-laden, implications of any recommendation it made in respect of Wilgenhof, and finally the time pressure under which it had to perform its task.

63. Given the content of this affidavit, the Panel is hopeful that Justice Cameron will see fit to unreservedly withdraw the incorrect, untrue and damaging statements he has made concerning the Panel and its work, and that he will provide it and its members with an apology for having done so.

SIGNED

NICKY CARL DE JAGER

Cape Town, 29 October 2024