Rhodes University notes with grave concern the statement attributed to the Economic Freedom Fighters (EFF), today, threatening to ‘unleash the anger’ of the nation ‘without further notice’ in a matter between Ms Yolanda Dyantyi and the University.
Ms Dyantyi was excluded from the University after being found guilty of offences including kidnapping, assault, insubordination and defamation.
The EFF statement contends that the “University tribunal accepted untested evidence of university witnesses against her. She was never given the opportunity to cross-examine her accusers and rigorously test their evidence.”
Ms Dyantyi had earlier made a similar claim in a review application to the Grahamstown High Court where she contended that the University had denied her the right to a fair hearing. She claimed 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.
The High Court dismissed the application with costs.
In his judgment, Justice Z 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 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 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.
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.
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 judgment says.
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.
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. The interdict dealt with the same charges that Ms Dyantyi faced in the independent hearing, namely: kidnapping, assault, insubordination and defamation. 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.
The necessary activism against gender-based violence cannot be used as a cover to operate outside of the Constitution and to violate the rights of other citizens.