Williams v University of the Western Cape

• Jurisdiction: South Africa
• Judge: Schippers J
• Judgment Date: 06 May 2014
• Citation: 2014 JDR 0966 (WCC)
• Docket Number: 15526/2013
• Court: Western Cape High Court, Cape Town

Schippers J:

[1]

This is an application for an order declaring that a decision taken on 12 September 2013, to remove the applicant as the Chairperson of the second respondent, the Council of the University of the Western Cape ("the Council"),

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was unlawful. The applicant also seeks an order for his reinstatement as Chairperson of the Council.

Factual background

[2]

The affidavits show that over a period of time, differences of opinion arose between the applicant and Prof Brian O'Connell, the Rector of the University ("the Rector"). Since 2012 the relationship between them began to break down irretrievably.

[3]

On 27 July 2012 the Rector sent a letter to the Council in which he questioned the process which led to the applicant appointing an attorney to investigate a complaint against a member of the University's senior management. The Rector was of the view that under the University's Code of Conduct, complaints against senior management had to be submitted to him as their direct line manager. He said that the manner in which the applicant had appointed the external investigator was irregular and requested that a process be set in motion to remedy the situation.

[4]

The Council considered the Rector's letter at a special meeting on 30 August 2011, at which the applicant and the Rector addressed the Council. It declined to rescind its decision to appoint an external investigator, and

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appointed a subcommittee to meet with the applicant and the Rector with a view to restoring their relationship. The members of this subcommittee were Dr L Van Rensburg, Mr M Abel and Mr M Samela.

[5]

At a meeting of the Council on 18 October 2012, the subcommittee informed the Council that in the best interests of the University, it would approach a third party, the Chancellor of the University, Rev Dr Thabo Makgoba, to deal with the issues, allegations and causes of the problems between the applicant and the Rector. The Council agreed to appoint the Chancellor to mediate the disputes and to restore the institutional relationship between the applicant and the Rector.

[6]

At its meeting on 27 March 2013, the Council was informed that the Chancellor had met with the applicant and the Rector; and that he wished to address the Council but would do so only after he had met with the task team (the subcommittee) appointed to work with him. The Council expressed its dissatisfaction with the circumstances then at the University, and noted that very little progress had been made after several months. It decided that the task team should do everything possible to assist the Chancellor in carrying out the mediation mandate of 18 October 2012; and that the matter would be discussed at a special Council meeting within 30 days or soon thereafter, at an external venue.

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[7]

Several mediation meetings followed. At its meeting on 20 June 2013, the Council noted that everything was in place for the Chancellor to carry out his task and that he should be allowed the necessary time to address the matter adequately. The subcommittee would furnish a report to a special meeting of the Council to be convened thereafter.

[8]

Further mediation meetings were held. At a meeting on 22 July 2013, at which the applicant responded to a presentation by the Rector, the Chancellor and the subcommittee agreed that there were three options available for the further progress of the matter. These options were conveyed to members of the Council in a letter dated 23 July 2013. The first was that all issues raised be considered as having been addressed and the parties should try to work together. The second was that a further investigation be commenced concerning the various issues raised. And the third was that a protocol be designed to allow the applicant and the Rector to address issues as they arise on a day-to-day basis and so avoid further conflict. The letter records that in the interests of the University and everyone involved, the Chancellor and the subcommittee preferred the third option; that a protocol would be designed and given to the applicant and the Rector for comment; that more time was needed for the process to be advanced; and that all outstanding issues would be held in abeyance for the protocol process to be completed.

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[9]

A special Council meeting to discuss the final report of the subcommittee was convened for 12 September 2013, to be held after an ordinary Council meeting scheduled for the same day. The applicant received an agenda for the special meeting on 2 September 2013. According to that agenda (the respondents say that it is not correct), the only substantive issue to be considered was the report by the subcommittee.

[10]

Between 2 and 12 September 2013, it became clear that neither the Chancellor nor the Rector would be available to attend the special Council meeting on 12 September 2013. The Chancellor had to attend a retreat until 17 September 2013. The Rector was ill. The applicant says that he held various discussions with Mr de Koker, the Head of the Secretariat of the University and Prof Cornelissen, the Acting Registrar of the University, in which it was agreed that the special meeting scheduled for 12 September 2013 would be postponed; and he accepted that they would convey this to the meeting.

[11]

On 10 September 2013 the Chancellor sent a letter to members of the Council. He said that he did not find any breakdown in the personal relationship between the Rector and the applicant, "but a deep breakdown as Rector and Chairperson of Council." He went on to say, "the trust is broken and this relationship is irrevocably unamendable, so I propose that something

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has to give: either both step down or the Council weighs who of the two brings more quality and service to the university." The Chancellor also referred to the three options decided at the meeting of 22 July 2013. He said that a draft protocol had been prepared in respect of the third option and that the Council should regard it as a work in progress. He raised a fourth option, which he said had not been explored in depth, namely the possibility of the Chancellor taking counsel with the Minister of Higher Education on the matter.

[12]

At the conclusion of the ordinary meeting of the Council on 12 September 2013, the special meeting was convened. Neither the Chancellor nor the Rector was present. The applicant recused himself from the meeting. He says that he was left with the impression that the business of the special meeting would not proceed as the subcommittee's report had not been finalised, and issues of process would be discussed.

[13]

On 13 September 2013 the Department of Institutional Advancement sent a group email to members of the Council, including the applicant, in which they were informed that the Council had elected Dr Raymond Patel as its new chairperson at the meeting on 12 September 2013. The email also states that the appointment followed deliberations between the former Chair, the Vice-Chancellor and the Chancellor as per the recommendation of the Council. By letter dated 13 September 2013 the Acting Registrar and secretary of the

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Council officially informed the applicant of the Council's decision to elect a new chairperson.

[14]

The applicant raises three main issues in this application. The first is whether in the circumstances, the Council has the power to remove its Chairperson. If it does, the second issue is whether the failure to place the applicant's removal as chairperson of the Council on the agenda of the special meeting of 12 September 2013, is fatal to that decision. And the third is whether the applicant was entitled to a hearing before being removed as chairperson.

[15]

However, before considering these issues it is necessary to deal with the respondents' contention that the applicant has failed to exhaust an internal remedy. They say that he should have called for a special meeting of the Council in terms of s 7.32 of the Statute of the University of the Western Cape, published under Government Notice No 427 in Government Gazette No 27556 of 4 May 2005 ("the Statute"), to reconsider the decision to remove him as Chairperson of the Council.

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The failure to exhaust a domestic remedy

[16]

Section 7.32 of the Statute provides that the chairperson of the Council may, after consultation with the vice chairperson, and must at the request in writing by at least ten members of the Council, call a special meeting.

[17]

As to what constitutes a domestic remedy, the Constitutional Court has said that the remedy must be effective; that it will be effective if it is objectively implemented, taking into account the relevant principles and values of administrative justice in the Constitution and the law; and that the remedy must be readily available and possible to pursue without any obstruction. [1] The requirement to exhaust domestic remedies should not be rigidly imposed, nor should it be used by administrators to frustrate the efforts of an aggrieved person or to shield in the administrative process from judicial scrutiny. [2]

[18]

The respondents' argument is unsustainable for at least three reasons. First, on an ordinary construction of the Statute, the ability to call a special Council meeting is not a domestic remedy. Second, the alleged remedy is not readily available to the applicant at his own instance. Section 7.32 provides that a special Council meeting may only be called either by the chairperson of the

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Council or at the request of at least ten members of the Council. To hold that this constitutes a domestic remedy would lead to the absurd consequence that the remedy is available to...