The Grahamstown High Court in Makhanda has dismissed, with costs, an application by Ms Yolanda Dyantyi for the review and setting aside of her permanent exclusion from Rhodes University.
Ms Dyantyi was permanently excluded from Rhodes University after being found guilty, in an independent Disciplinary Hearing in 2017, of a range of unlawful acts including kidnapping of fellow students, insubordination, assault and defamation.
In her application for review, Ms Dyantyi had also sought the court’s intervention in setting aside her conviction on all the charges and for the University to be ordered to pay the costs of her application proceedings.
She contended that the University had denied her the right to a fair hearing, that she was denied legal representation, that the evidence against her during the hearing was flawed, that the sanction was inappropriate and that she was denied her right to internal review following the hearing.
Ms Dyantyi also claimed that the decision of the independent hearing was “irrational and reasonably suspected of being tainted with bias”. She argued that the decision of the chairperson was beyond his legal power.
Background to unlawful acts
The hearing had heard evidence about a vigilante campaign online, that saw the “naming and shaming” of 11 male students on the allegation that they had committed a series of sexual assaults on the campus with impunity. Despite the far-reaching and serious nature of such allegations, not even one of the 11 male students has ever faced criminal prosecution.
The publication of the names was so widespread that it became a constant talking point on the campus and eventually led to the kidnapping of several male students in April 2016 by a group of students led by Ms Dyantyi.
In his judgment, Deputy Judge President of the Eastern Cape Division of the High Court, Judge Z M Nhlangulela, details the circumstances of the kidnappings where spitting, assault and threats of killing by strangulation with a stocking and necklacing were made against one of the student captives.
“It was the police intervention that secured the release of [the captive] from the protesters…” Judge Nhlangulela wrote in his judgment.
The Judge detailed how “repeated” warnings to the kidnappers, including by the Vice-Chancellor “all fell on deaf ears”. Not only was the Vice-Chancellor rejected, but he was pushed out of the way of the protesters and ridiculed, Judge Nhlangulela wrote.
The hearing had accepted the evidence of several witnesses that Ms Dyantyi played a leading role in the kidnapping and continued deprivation of the captives’ liberty, which included the assault and intimidation of at least one of the captives who was held against his will for some 11 hours.
The chairperson of the hearing “regarded the seriousness of the offences …, the propensity of the applicant to commit offences involving physical violence whilst on campus and her disregard for the safety of the members of the University community as being proportionate to the sanction that was imposed”, Judge Nhlangulela said.
“That the applicant had previous disciplinary infractions on her record, those being violent and disorderly conduct (2015) and insubordination (2016) were taken into account,” he said.
Judge Nhlangulela dismissed the claim by Ms Dyantyi that she “was denied her right either to be heard and/or to be legally represented before and during the disciplinary inquiry as well as after she was convicted.”
The Judge noted that throughout the independent disciplinary hearing, Ms Dyantyi was represented by a “highly esteemed team of four legal practitioners” who, in fact, participated in the disciplinary hearing over nine sittings. Towards the conclusion of the independent hearing, during October 2017, the applicant and her legal team decided to no longer engage in the disciplinary hearing. This, the court found, was unreasonable and did not ground the averment made by Ms Dyantyi that she was denied a right to legal representation. In this regard, the Court pointed out, “[t]he legal team for the applicant was not prepared to consider the alternative ways of truncating the proceedings…” These alternatives included allowing that the hearing runs for longer periods on the days that it ran and for sessions to be scheduled on the weekends. Ms Dyantyi “…deliberately and without permission or just cause withdrew her participation from the disciplinary hearing”.
“Consequently, the enquiry proceeded in their absence until it was concluded with a verdict and sanction that are now being impugned by the applicant on the broad basis that her right to fair administrative action was breached,” stated the Court.
Interests of justice
Judge Nhlangulela said that he was persuaded “having read the papers from both sides” that the chairperson of the Disciplinary hearing was impartial and exercised independence.
He also found that the University, as an institution had a prerogative of disciplining unacceptable student behaviour, “lest chaos was permitted to reign”.
“The offences of kidnapping, insubordination and assault were serious violent offences committed upon defenceless victims who had done no wrong. More so, [Ms Dyantyi] did not show remorse for her actions that threatened peace and security on the campus. She treated reasonable interventions by the [Vice-Chancellor] with disdain,” The Judge expressed.
In doing so and in “their rejection of available channels to lodge complaints both to the University and police was a conduct so heinous that it deserved proportionate punishment”.
“Added to that, was the fact that [Ms Dyantyi] had two previous records of violent and disorderly disciplinary infractions which means only that the applicant was not prepared to change her unacceptable behaviour,” he added.
“With these aggravating factors taken into account the decisions by the chairperson of the disciplinary hearing on sanction served the interests of justice and were rationally connected to the evidence presented. There was no bias against the applicant and the chairperson displayed awareness that he had to discharge his functions in an independent and impartial manner,” Judge Nhlangulela wrote.
Judge Nhlangulela also found that Ms Dyantyi’s litigation against the University was frivolous and vexatious. This was so “throughout the litigation process that she unleashed in the Disciplinary Tribunal, in this Court, as well as the Supreme Court of Appeal and Constitutional Court”. The Court therefore ordered that she pay the University’s legal costs in the review application.
***The facts in the case also warranted the Grahamstown High Court granting an interdict against Ms Dyantyi in 2017. Ms Dyantyi appealed, and lost, against the interdict at the Grahamstown High Court, Supreme Court of Appeal and in a unanimous ruling by the Constitutional Court.
Rhodes University reiterates the seriousness and urgency with which any offences involving sexual and/or gender-based violence are treated by the University. Several students have, in the last three years, been permanently excluded for offences involving sexual violence. These are in the public record. The University recognises and supports the right to peaceful protest, but will not condone serious violent offences in furtherance of such protest.