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IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION - MAHIKENG

 

CASE NO.: UM 27/2023

 

Reportable:                                        NO

Circulate to Judges:                          NO

Circulate to Magistrates:                   NO

Circulate to Regional Magistrates:   NO

 

 

In the matter between:

 

TLALE THABANG                                                      Applicant

 

and   

 

NORTH WEST UNIVERSITY                                      First Respondent

 

DR BISMARCK TYOBEKA N.O                                 Second Respondent

 

 

REASONS FOR JUDGMENT

 

 

REDDY AJ

 

Introduction

 

[1]      In Webster vs Mitchell, 1948 (1) SA 1186 (WLD) the court vocalized the test for an interim interdict. The test was, posited as follows:

 

“In an application for a temporary interdict, applicant’s right need not be shown by a balance of probabilities; it is sufficient if such right is prima facie established, though open to some doubt. The proper manner of approach is to take the facts as set out by the applicant together with any facts set out by the respondent which applicant cannot dispute and to consider whether, having regard to the inherent probabilities, the applicant could on those facts obtain final relief at the trial. The facts set up in contradiction by the respondent should then be considered, and if serious doubt is thrown upon the case of applicant, he could not succeed. In considering the harm involved in the grant or refusal of a temporary interdict, where a clear right to relief is not shown, the Court acts on the balance of convenience. If, though there is prejudice to the respondent, that prejudice is less than that of the applicant, the interdict will be granted. Subject, if possible, to conditions which will protect the respondent.”

 

[2]      In Webster vs Mitchel supra, reference was made with approval to the passage in Setlogelo vs Setlogelo, 1914, AD, 221 at page 227, by Innes JA, dealing with the peremptory requirement to demonstrate irreparable harm:

 

“That element is only introduced by him in cases where the right asserted by the applicant, though prima facie established, is open to some doubt. In such a case the test must be applied where the continuance of the thing against which an interdict is sought would cause irreparable injury to the applicant. If so, the better course is to grant the relief if the discontinuance of the act complained of would not involve irreparable injury to the other party.”

 

[3]      In National Treasury and others vs Opposition to Urban Tolling Alliance and others 2012 (6) SA 223 (CC) at para [50], it was found the Setlogelo requirements supra in respect of an interdict still found application within a constitutional democracy, wherein the following was stated:

 

“Under the Setlogelo test, the prima facie right that the claimant must establish is not merely the right to approach a Court in order to review an administrative decision. It is a right to which, if not protected by an interdict, irreparable harm would ensue. An interdict is meant to prevent future conduct and not decisions already made. Quite apart from the right to review and to set aside impugned decisions, the applicants should have demonstrated a prima facie right that is threatened by an impending or imminent irreparable harm. The right to review the impugned decisions did not require any preservation pendente lite.”

 

[4]      It is against this legal backdrop, that the applicant, a student at the Mafikeng campus of the first respondent, sought the following relief on an urgent basis. The relief is opposed.

 

[1]  That the application be heard as an urgent application with Rule 6 (12) of the Uniform Rules of this Honourable Court and that the Applicant’s failure to comply with the rules relating to forms and service be condoned.

 

[2]  That it be declared that the first and second Respondents are in contempt of court for failure and/or refusal to comply with the order made by this Court under case number: UM 157/2022 on the 22 August 2022.

 

[3]  That the first and second Respondents be interdicted from imposing/implementing the sanction issued by the second Respondent on the Applicant dated the 24 August 2022 pending the finalization of the review application instituted under case number: M56/2023.

 

[4]  That the first and second Respondents be ordered to enrol the Applicant for the 2023 academic year pending the finalisation of the review application.

 

[5]  That the first and second Respondents be ordered to pay the costs of this application jointly and severally, the one paying the other to be absolved on an attorney and own client scale.

 

[6]  Such further and/or alternative relief as the above Honourable Court deems fit.

 

[5]      A proper introduction of the parties would facilitate an easy flow of reading. The first respondent is the North West University, a duly constituted university in terms of the provisions of section 32 of the Higher Education Act, 101 of 1997. The second respondent is Dr Bismark Tyobeka, the Vice Chancellor of the first respondent’s Mafikeng Campus.

 

Urgency

 

[6]      The legal principles governing urgency is set out in Rule 6(12) of the Uniform Rules of Court (“the Rules”). The Courts have over the years provided guidelines as to the application of this Rule. Rule 6(12) (a) confers a discretionary power on a court seized with an application of this nature to dispense with the forms and service envisaged in the Rules, and to dispense of the application at such time and place and in a manner and to prescribe the procedure as it deems appropriate. The preliminary enquiry is aimed at the determination of whether there must be a departure at all from the usual process. (See Luna Meubel Vervaardigers v Makin and Another 1977 (4) SA 135 (W) at 136H-137F).

 

[7]       In Hultzer v Standard Bank of SA (Pty) Ltd (1999) 20 ILJ 1806(LC) at 1809 the following was stated:

 

“The court will, however, only grant such relief where an applicant is able to persuade the court that extremely cogent grounds for urgency exist.”

 

[8]      Rule 6 (12) (b) renders it peremptory for the applicant to

 

“set forth explicitly the circumstances which is averred render the matter urgent and the reasons why the applicant claims that substantial redress could not be afforded at a hearing in due course.”

 

[9]      In East Rock Trading 7 (Pty) Limited and Another v Eagle Valley Granite (Pty) Limited and Others 2011 ZAGPJHC 196, at para [6] the following was stated:

 

[6] The import thereof is that the procedure as set out in Rule 6(12) is not there for the taking. An applicant has to set forth explicitly the circumstances which he avers render the matter urgent. More importantly, the applicant, must state the reasons why he claims that he cannot be afforded the substantial redress in due course. The question of whether a matter is sufficiently urgent to be enrolled and heard as an urgent application is underpinned by the issue of the absence of substantial redress in the application in due course. The rules allow the court to come to the assistance of a litigant because if the latter were to wait for the normal course laid down by the rules, it will not obtain substantial redress….

 

[10]    In Apleni v The President of the Republic of South Africa and Another 2018 (1) All SA 728 (GP) the Court said:

 

“Where allegations are made relating to abuse of power by a Minister or other public officials, which may impact upon the rule of law, and may have a detrimental impact upon the public purse, the relevant relief sought ought normally to be urgently considered.”

 

[11]    The respondents contend that the applicant was informed that his appeal/review had been unsuccessful on 12 December 2022. The applicant therefore was aware since the 12 December 2022 that as at 1 January 2023, he would no longer be allowed on campus. Seized with this knowledge, no application to suspend the sanction was lodged, pending a review application and no application for a review was lodged. On this basis, the respondents submitted that the threshold of urgency had not been met. Subsumed with urgency is the vexed question of substantial redress. It behoves a court to come to the assistance of a litigant, as in this application, if the applicant were to wait the normal course as set out by the Rules, and the applicant would not obtain substantial redress.

 

[12]    This Court is seized with a judicial discretion to abbreviate the various time frames set out in the Rules of Court to allow for the expeditious ventilation of disputes, based on sufficient and satisfactory grounds as presented by the applicant. Central to truncated times is the vexed question of prejudice. Prejudice manifests itself within the paradigm of urgency on three planes. Firstly, the prejudice that applicant is likely to suffer by having to wait for a hearing in the ordinary course; secondly the prejudice that other litigants may have to endure by what may be perceived as a preferential hearing of a matter; and thirdly prejudice that respondent might suffer by the shortened prescribed times and accelerated hearing.

 

[13]    In PFE International and Others v Industrial Development Corporation of South Africa Ltd 2013 (1) SA 1 (CC) at para [30] the following was stated:

 

[30] Since the rules are made for courts to facilitate the adjudication of cases, the superior courts enjoy the power to regulate their processes, taking into account the interests of justice. It is this power that makes every superior court the master of its own process. It enables a superior court to lay down a process to be followed in particular cases, even if that process deviates from what its rules prescribe. Consistent with that power, this court may in the interests of justice depart from its own rules.”

 

[14]    Afore due consideration of the principles governing the law on urgency, in conjunction with the Practice Directives of this Division, I found that the applicant, had met the threshold of urgency and as such condoned the non-compliance with the Rules of Court.

 

Background facts

 

[15]    The applicant was charged with misconduct in terms of the provisions of section 72(a), (b) and (d) of the Statute of the North- West University, read together with the North West University Policy on Student Disciplinary Policy:

 

 “In that on the 11 January 2019, and at Dibate Village, you manipulated CM in having sexual intercourse with her in return to assist her with the accommodation and protection on campus thereby abusing your authority or office as an SCC member.”

 

[16]    Subsequent to the hearing, the disciplinary committee chaired by Advocate Mphahlane, the disciplinary committee returned a verdict of guilty on 25 July 2022. After the hearing of argument in mitigation and aggravation of a sanction, it appeared that the disciplinary hearing committee had been deadlocked as to the appropriate sanction. It was decided that the sanction to be imposed would be reduced to writing and conveyed to the respective parties by the close of business on 25 July 2022. Advocate Mphahlane was requested to include in the sanction to be imposed, the written reasons that underpinned the verdict of guilty on the merits.

 

[17]    On 10 August 2022 the following sanction was issued, unaccompanied by any written reasons regarding the verdict:

 

 “SANCTION:

 

1.      Expulsion from the NWU, the expulsion shall be suspended for the duration of your studies at NWU on condition that you do not commit a similar misconduct or misconduct involving sexual abuse/harassment during the period of your suspension.

 

2.      You are expelled from the NWU Residences.

 

3.      You are no longer allowed to hold any office in the NWU structures.

 

4.      You are only allowed to access the Campus only for academic purposes until the end of 2022 Academic year.

 

5.      Your academic record shall be endorsed accordingly.”

 

[18]    On receipt of the imposed sanction, the applicant sought clarity from Advocate Mphahlane as to whether the sanction that was imposed was legitimate and whether the reasons sustaining the verdict that had been requested on 25 July 2022, were available. The whereabouts of the written verdict and the sanction appeared undecided as at the date of the filing of the urgent application under Case Number: UM 157/2022.

 

[19]    Dissatisfied with what the applicant perceived to be various irregularities in the disciplinary process, the applicant approached this Court on an urgent basis under Case Number: UM 157/2022, on 22 August 2022. This application found favour with Gura J. Consequently, the following relief was ordered:

 

[1] The forms and services provided for in the rules of the above honourable court are dispensed with and that the matter is treated as an urgent application in terms of the provisions of rule 6 (12) of the Uniform Rules of Court.

 

[2] The sanction which was imposed by the Deputy Vice Chancellor on 10 August 2022 against the Applicant is declared unlawful and is set aside.

 

[3] The Vice Chancellor is ordered to impose the sanction de novo.

 

[4]  The disqualification of the Applicant from participating and contesting the Student Campus Council 2022/2023 Elections is declared unlawful and set aside.

 

[5]  The decision to qualify the Fifth Respondent as the sole candidate eligible for election to the position of Chairperson of the First Respondent’s Mafikeng Campus’s Student Campus Council 2022/2023 elections is declared unlawful and set aside.

 

[6]  The First to Third Respondents are interdicted from permitting voting or elections of the Chairperson of the Mafikeng Campus’ Student Campus Council 2022/2023 until;

 

6.1   A sanction has been passed afresh; and

6.2   If the Applicant takes his case on review or appeal after sentence, then after a judgment or ruling has been given in such review/appeal.

 

[7]  The First Respondent is ordered to pay the costs.

 

[8]  Reasons for judgment are reserved.

 

[20]    On 24 August 2022, the second respondent imposed a sanction de novo which for all intents and purposes mirrored the sanction imposed on 10 August 2022. An appeal/review against the new sanction that was imposed was lodged on 30 August 2022. On 12 December 2022, the applicant was informed that the North West University Appeals Committee for Student Matters found:

 

(i ) No procedural unfairness could be found in the manner in which your

 hearing was conducted and;

 

(ii) That the disciplinary measure/sanction is proportionate to the transgression (the offence as stated in the notice of the hearing)

 

[21]    In terms of the interpretation that was brought to bear by the applicant “consequent to the dismissal of my appeal on the 12 December 2022, the sanction of the 24 August 2022, have been fully implemented by the second respondent and I have been barred from enrolling for the 2023 academic year.” The applicant relies on the wording of the court order dated 22 August 2022 to reinforce his case. The interpretation adopted by the applicant is that the order of Gura J had suspended the imposition of a sanction, pending the finalization of any review and/or appeal as per the order of court. It is on this basis that the applicant proposed that the first and second respondent be held in contempt of this court order. There is no merit in this. It need not be detained further. (See Fakie N.O v CCII Systems (Pty) Ltd 2006(4) SA 326 (SCA), Pheko v Ekurhuleni Metropolitan Municipality (No 2) 2015 (6) BCLR 711 (CC) (Pheko II)

 

[22]    The applicant disclosed that his academic performance for the year 2022 was at best mediocre. The attainment of academic excellence and the completion of the enrolled qualification was hamstrung by the disciplinary processes that he was faced with. In the view of the applicant, he was entitled to re-enrol for the 2023 academic year.

 

[23]    On 25 January 2023, the applicant was confronted by Professor Sonia Swanepoel, the Deputy Vice Chancellor at Mafikeng Campus, as to his presence on the campus. Security was instructed to escort the applicant off the campus, with a specific mandate to prohibit further entry of the applicant. Instantaneously, the applicant’s attorney of record addressed correspondence to the respondents, intimating the applicant’s intention to register for the current academic year, which was legally permissible in terms of the court order dated 22 August 2022. Accordingly, the applicant was enjoined with the full conspectus of his rights as a student, until all review processes have been exhausted. The respondents retorted that the court order by Gura J referred to internal appeals and reviews only and not to any High Court review. Given these divergent interpretations of Gura J’s order the applicant launched a review application under case number: M56/2023 on 8 February 2023.

 

The case for the respondents

 

[24]    The respondents submit that the applicant is no longer a student at the first respondent by virtue of the sanction imposed on 24 August 2022, as the imposition of a sanction was not suspended by Gura J. Further most of the complaints of the applicant are by and large are res judicata. In any event, the respondents will oppose the review. The respondents contend that the applicant has been found guilty of a gender based misconduct and should not be allowed on the campus pending any review application. Only on a successful review application, should the first respondent be required to allow the applicant to return to the university community as a premature return of the applicant would result in a “serious pushback from the students is feared.” The narrative of gender based misconduct is accentuated in opposition to the applicant’s relief.

 

 

[25]    The respondents contend that the applicant is not without any satisfactory relief, as the applicant may pursue the pending review application and once this has been successfully adjudicated on, the applicant is at large to pursue further relief premised on such clearance.

 

[26]    The respondents refute that the balance of convenience favours the applicant. The argument in this regard ran, that should the applicant be allowed to continue his studies at great expense to the State and the review is unsuccessful, all “these efforts and money would be wasted.” The applicant was mandated to have completed his academic studies in the year 2022. His failure to have done so, should be to his own peril. It was contended that the applicant should take up employment, which would result in him earning an income, allowing the review application to run parallel to him being employed as it was anticipated that the review would occupy the major part of 2023.

 

The law on interim interdicts

 

[27]    An interim interdict is a court order preserving or restoring the status quo pending the determination of the rights of the parties. It is important to emphasize that an interim interdict does not involve a final determination of these rights and does not affect their final determination. (See National Gambling Board v Premier, Kwa-Zulu Natal and Others 2002(2) SA 715 CC at para [49]. In this regard the Constitutional Court in National Gambling Board v Premier, Kwa-Zulu Natal and Others 2002(2) SA 715 CC said the following:

 

“An interim interdict is by definition 'a court order preserving or restoring the status quo pending the final determination of the rights of the parties. It does not involve a final determination of these rights and does not affect their final determination. The dispute in an application for an interim interdict is therefore not the same as that in the main application to which the interim interdict relates. In an application for an interim interdict the dispute is whether, applying the relevant legal requirements, the status quo should be preserved or restored pending the decision of the main dispute. At common law, a court's jurisdiction to entertain an application for an interim interdict depends on whether it has jurisdiction to preserve or restore the status quo.”

 

[See Setlogelo v Setlogelo, 1914 AD 221 at p. 227, Eriksen Motors (Welkom) Ltd v Protea Motors Warrenton and Another 1973(3) SA 685 (A) Knox D Arcy Ltd v Jamison and Other 1996(4) SA 348 (A) at 361).

 

[28]    It is trite that the requirements that an applicant must satisfy in order to obtain interim relief are the following:

 

(i)    A prima facie right, even if it is subject to some doubt;

(ii)   A well-grounded apprehension of irreparable harm if the interim relief is not granted;

(iii)   The balance of convenience favours the granting of interim  relief; and

(iv)   The applicant has no alternative remedy.

 

Discussion

 

Prima facie right even if it is subject to some doubt

 

[29]    The pertinent issue is whether the applicant has, notwithstanding the sanction imposed and the pending review application, demonstrated that he has a right to resume with the continuation of the honours program at the first respondent. The applicant submits that he has prospects of success on review given the plethora of grounds that have been raised relating to the review. The respondents hold a contrary standpoint. In my view, the applicant has shown a prima facie right which needs protection pending the review application.

 

[30]    In National Treasury v Opposition to Urban Tolling Alliance 2012 (6) SA 223 (CC) para [48]- [50] the following was eloquently stated with reference to review proceedings:

 

[48] At the outset the high court had to decide whether the applicants had established a prima facie right, although open to some doubt. It examined the grounds of review and was persuaded that they bore prospects of success and that therefore the applicants had established a prima facie right to have the decisions reviewed and set aside. Two comments are warranted. First, we heard full argument on the merits on the grounds of review. I am unable to say without more that they bear any prospects of success. That decision I leave to the review court.

 

[49] Second, there is a conceptual difficulty with the high court's holding that the applicants have shown 'a prima facie right to have the decision reviewed and set aside as formulated in prayers 1 and 2'. The right to approach a court to review and set aside a decision, in the past, and even more so now, resides in everyone. The Constitution makes it plain that '(e)veryone has the right to administrative action that is lawful, reasonable and procedurally fair' and in turn PAJA regulates the review of administrative action.

 

 [50] Under the Setlogelo test the prima facie right a claimant must establish is not merely the right to approach a court in order to review an administrative decision. It is a right to which, if not protected by an interdict, irreparable harm would ensue. An interdict is meant to prevent future conduct and not decisions already made. Quite apart from the right to review and to set aside impugned decisions, the applicants should have demonstrated a prima facie right that is threatened by an impending or imminent irreparable harm. The right to review the impugned decisions did not require any preservation pendente lite.

 

A well-grounded apprehension of irreparable harm if the interim relief is not granted.

 

[31]    It is incontestable that the applicant is an honours student. The respondents’ contention that the applicant would not suffer irreparable harm is without merit. By the respondents own estimation, the pending review proceedings are envisaged to proceed for most of 2023. The applicant has already forfeited a year in his academic life due to his poor performance in the 2022 final examinations, which he attributed to the various processes that he was party to at the first respondent. He has sketched reasonable grounds for his underperformance at the level required by the academia of the first respondent. I am persuaded that the applicant will suffer irreparable harm, if the interim relief sought is not granted. Resultantly this requirement needs no further explication.

 

The balance of convenience.

 

[32]    The "balance of convenience" requirement for interim interdicts essentially relates to the exercise of judicial discretion in terms of which the court must consider the requirements for interdictory relief in conjunction with one another. The court must also weigh the relative prejudice to the applicant and the respondent, respectively, in the alternate situations in which the relief sought is granted or not granted, as the case may be. (See PS Booksellers (Pty) Ltd v Harrison 2008 (3) SA 633 (C). The respondents’ labor the point that the applicant has been sanctioned for gender based misconduct and that should the applicant be allowed to return to the first respondent, “a serious pushback from the students is anticipated.”

 

[33]    This averment is at best disingenuous. There are no primary facts to support this contention. The respondents shy away from the irrefutable fact, that the applicant was part of the student community since the imposition of sanction on 24 August 2022 until the completion of the academic year. No facts support this perceived pushback were presented. It is no more than conjecture.

 

Lack of another satisfactory or adequate remedy

 

[34]    The respondents’ contention that the applicant may track the pending application for review and once his name is cleared, he may he pursue the relief premised on such clearance. This submission is bad in law. The respondents conveniently ignore that the applicant’s academic record has been endorsed as per sanction imposed on 24 August 2022. Given this stain on his academic record, it is unlikely that the applicant would be able to secure employment. The applicant has demonstrated that no suitable alternative remedy is available in order to remedy the conduct giving rise to the harm.

 

[35]    In arriving at a decision, I have considered the affidavits as a whole, and the interrelation of the foregoing considerations, according to the facts and probabilities (Olympic Passenger Service (Pty.) Ltd. v Ramlagan 1957 (2) SA 382 (D) at p. 383D - G.) Viewed against this legal landscape, I find that the applicant made out a case for the interim relief sought.

 

[36]    What stands over is the question of costs. The general rule is that costs must follow the result. Nothing emerges from this matter warranting a deviation from this principle.

 

[37]    In the premises, I reiterate the order handed down on 17 February 2023.

 

[38]    Order

 

(i)        The application is heard as an urgent application in accordance with Rule 6(12) of the Uniform Rules of this Court and the applicant’s failure to comply with the rules relating to forms and service is condoned.

 

(ii)       That the first and second respondents are interdicted from imposing/implementing the sanction issued by the second respondent on the applicant dated 24 August 2022, pending the finalization of the review application instituted under case number: M56/2023.

 

(iii)      That the first and second respondents are ordered to enrol the applicant for the 2023 academic year pending the finalisation of the review application.

 

(iv)      That the first and second respondents are ordered to pay the costs of this application jointly and severally, the one paying the other to be absolved. Such costs to be on a party and party scale. The initial order incorrectly included “on an attorney and own client scale” and is hereby rectified and varied.

 

 

A REDDY

ACTING JUDGE OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG

 

 

APPEARANCES

 

For the Applicant:                Adv C. Z. Muza

Instructed by                       Zisiwe Attorneys

Office 5, Shasons Centre

43 Shippard Street

Mahikeng

Tel: 018 381 1178

 

For the Respondent:           Adv J Pretorius

Instructed by:                      Smit Neethling Inc

29 Warren Street

Mahikeng

2745

 

Date of hearing:             20 February 2023

 

Date of judgment:          20 April 2023

 

 

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