Stellenbosch University’s response to allegations of ‘hiding information’

Over the past week Stellenbosch University has been accused in the media of ‘hiding information’, the ‘blunt refusal of a PAIA request’ and an ‘illegal decision’ related to the investigation conducted by retired Judge Burton Fourie in 2019 following the allegations of interference in the Constitutional Court litigation between SU and Gelyke Kanse lodged against Prof Wim de Villiers, Rector and Vice-Chancellor.

These allegations followed after Prof De Villiers in July 2019 requested Justice Edwin Cameron of the Constitutional Court, now retired, to make himself available to be nominated as a candidate for the election of SU’s Chancellor, a position which would have become vacant at the beginning of 2020.

Stellenbosch University refutes these latest inaccurate accusations and provides the following context and clarification:

The Constitutional Court, on 10 October 2019, unanimously found in favour of Stellenbosch University, who opposed an application by Gelyke Kanse to compel the institution to return to its 2014 Language Policy. This Constitutional Court ruling confirmed that the University's multilingual and inclusive 2016 language policy complies with the Constitution and the National Language Policy for Higher Education (2002). Despite these findings it is alleged in a recent media statement that this ruling by the Constitutional Court ‘effectively killed Afrikaans tuition at SU’.

The litigation originated in 2016 when Stellenbosch University reviewed its 2014 Language and adopted a new Language Policy. After the approval of the 2016 Language Policy, Gelyke Kanse brought a court application to review and set aside the policy to force the institution to return to its 2014 Language Policy. In October 2017 the Western Cape High Court dismissed Gelyke Kanse’s application. Gelyke Kanse took the judgment on appeal. After the Constitutional Court last year also found in favour of Stellenbosch University, the allegations of Prof De Villiers’ interference in the legal process started to surface.

Independent investigation finds no evidence of ‘improper conduct’

On October 24, 2019, Dr Leon Schreiber, in his capacity as a SU alumnus, requested the University to launch an independent investigation against Prof Wim de Villiers, following public allegations that De Villiers on “an irregular, unethical and possibly illegal manner interfered in the lawsuit between the SU and Gelyke Kanse about the University's language policy.” These allegations by Dr Schreiber followed a request made by the Rector in July 2019 to Judge Edwin Cameron to make himself available to be nominated as a candidate for the Chancellor's position, which would have become vacant at the beginning of 2020.

After considering Dr Schreiber’s request, the Executive Committee of Council EC(C), decided on 31 October 2019 to launch an independent investigation in the interest of good governance and transparency. The EC(C) appointed retired Judge Burton Fourie to conduct the investigation. It was therefore not, as claimed, an internal investigation by the University.

On 26 November 2019, Judge Fourie, based on the interviews he conducted and the documentation made available to him, found that ‘there was no evidence to support a finding that the conduct of the Rector in regards to the nomination of Justice Cameron for the position of Chancellor of Stellenbosch University, constituted a serious violation of the law or serious misconduct’.

According to the report the evidence at best shows that the Rector, as he was duty-bound to do so, assisted – probably even taking the lead - in identifying suitable candidates for the nomination of a new Chancellor. Justice Cameron, on the other hand, only put his name forward for nomination when the green light was received from Adv Jan Heunis who was acting on behalf of Gelyke Kanse. The evidence as a whole did not, according to Judge Fourie, point to improper conduct on the part of either the Rector or Judge Cameron. Nor had they conducted themselves at any stage in a manner that reasonably conveyed that Justice Cameron was biased in the Gelyke Kanse litigation.

Full report published on SU website

After consideration, Council decided that no further action would be taken against Prof De Villiers pertaining to his request to Justice Cameron to make himself available as a candidate in the election of the SU Chancellor. Council released a public statement on its decisions and also released the full Burton Fourie report on the SU website on 2 December 2019.

The recent accusations – and subsequent threats of legal action – surfaced after SU refused a request by Dr Schreiber for access to the information that served before Judge Fourie during his investigation. Dr Schreiber had submitted the request in terms of the Promotion of Access to Information Act (PAIA) on 9 March 2020.

Dr Schreiber, ‘in his capacity as the person who lodged the complaint which led to retired Judge Fourie's inquiry, lodged a PAIA request for “alle opnames, volledige transkripsies van alle mondelinge verrigtinge, afskrifte van alle dokumente – met inbegrip van geskrewe kommunikasie van watter aard ook al asook besonderhede van alle Whatsapp en teksboodskappe – wat tydens oudregter Burton Fourie se ondersoek na my klagte oor die Rektor se optrede voor die aanhoor van en na die aanhoor van Gelyke Kanse se hofsaak teen die US aangehoor is, voor hom gedien het, ter insae tot sy beskikking was, of aan hom gerig was.”*

SU refused Dr Schreiber's request for reasons justified by section 44 (1) (a) of PAIA. It was therefore not, as alleged, a case of “bluntly refused the PAIA request,” nor an “illegal decision”.

Dr Schreiber (and not the DA or any other person) is at liberty to bring a court application if he believes that SU has not made a correct decision. If such an application is brought, SU will consider it and make an appropriate decision.

*Translated into English: (...”all recordings, full transcripts of all oral proceedings, copies of all documents – including written communications of whatever nature and details of all Whatsapp and text messages – heard during former Judge Burton Fourie's inquiry into my complaint about the Rector's actions before and after hearing Gelyke Kanse’s lawsuit against SU, before him, available for inspection or addressed to him.”)

Statement issued by Martin Viljoen, Corporate Communication Division, Stellenbosch University, 13 May 2020