Lukhele & Others v Vice Chancellor & Another (1089/2018) [2018] SZHC 235 (14 February 2020);

 

 

IN THE HIGH COURT OF ESWATINI

 

 

HELD AT MBABANE       Civil Case No. 1089/2018                                                                                    

 

WAKHILE LUKHELE      1ST APPLICANT

 

SIPHESIHLE SIMELANE     2ND APPLICANT

 

NDUMISO NKHAMBULE     3RD APPLICANT

 

 

and

 

 

VICE CHANCELLOR,             1ST RESPONDENT

UNIVERSITY OF SWAZILAND

 

CHAIRMAN, UNIVERSITY COUNCIL   2ND RESPONDENT

 

 

 

 

Neutral citation: Wakhile Lukhele & 2 Others v Vice Chancellor & Another (1089/18) [2018] SZHC 235 (14 December 2018)

 

CORAM    MASEKO J

FOR APPLICANTS: T.R. MASEKO

FOR RESPONDENTS: Z. SHABANGU

 

 

DATE OF HEARING:     28 AUGUST 2018             

 

DATE OF DELIVERY:  14 DECEMBER 2018

Preamble: Administration Law – Whether this court has jurisdiction to review decisions of the University of Eswatini Students Disciplinary Committee proceedings conducted intra vires the Regulations for Student Discipline

 

Held: That the proceedings of Students Disciplinary Committee proceedings were conducted fairly without any misdirections, irregularity and in accordance with the rules of natural justice and in strict adherence and observance of Section 33 of the Constitution of the Kingdom of Eswatini Act No. 1 of 2005.

 

Held further: Consequently the Application is dismissed.

 

[1] On the 24th July 2018, the Applicants who are students at the Respondent institution launched urgent Motion Proceedings seeking the following relief:-

1. Waiving and dispensing with the Rule of the above Honourable Court as to time limits, forms and manner of service and hearing this matter as one of urgency in terms of Rule 25 (a) and (b) of the High Court Rules.

 

2. Reviewing and setting aside, and if necessary correcting the decision of the Respondents taken on June 28, 2018 in respect of the First and Second Applicants confirming the conviction and sanction of the University of Swaziland Disciplinary Committee excluding the Applicant from the University of Swaziland and ordering the University to allow the Applicants to sit for the Supplementary Examinations or such Special Examinations.

3. Ordering the University to urgently consider the appeal of the Third Applicant and to order the University that he be allowed to sit for the Supplementary examination or such Special Examinations whilst his appeal is pending.

 

4. Costs of the Application only in the event it is opposed.

 

5. Further and or alternative relief as this Honourable Court deem just.

 

[2] The matter first appeared before me on the 24th July 2018 and I postponed it with the consent of the parties to the 3rd August 2018 and ordered the Respondents to file their Answering papers on or before the 27th July 2018 and the Applicants to file the Replying papers on or before the 31st July 2018.

 

[3] The Answering Affidavit was only filed on the 31st July 2019, when it should have been filed on the 27th July 2018.  The Replying Affidavit was filed on the 6th August 2018 when it should have been filed on the 31st July 2018.

 

[4] The matter could not therefore proceed on the 3rd August 2018 as originally scheduled and was postponed to the 6th August 2018 whereupon it was again postponed to the 24th August 2018 and eventually postponed to the 28th August 2018 wherein it was then argued.

 

[5] During arguments I only had the Applicants Heads of Argument and the Respondent’s Heads were only filed on 18 September 2018.

 

[6] This history is necessary because it, amongst other things, explain the delay that was occasioned in this matter in particular on the delivery of this judgment.

 

THE APPLICANT’S CASE

[7] Mr. T.R. Maseko for the Applicant submitted before this Court that it was a misdirection on the part of the Respondents to find the three Applicants guilty on the basis of the doctrine of common purpose.  He contended that the Respondents misapplied the law which resulted in an injustice.

 

[8] Mr. Maseko argued further that there was no prior agreement to act unlawfully nor was there any intention of a common purpose to act unlawfully established by the Respondents.

 

[9] Mr. Maseko argued further that the participation by some of the Applicants in the protest was merely to associate themselves with a just cause and this being, lack of payment of allowances, which the Applicants wanted to create an awareness and draw the attention of the Respondents to their grievances.  He argued further that it is unfair to taint some of the Applicants with unlawfulness simply because they were by-standers or part of a crowd or protest in which certain protesters acted unlawfully.

 

[10] Mr. Maseko submitted further that the Applicants were found guilty of misconduct on the basis of uncorroborated evidence.

 

APPLICANTS 1 AND 2           

[11] Mr. Maseko submitted that the evidence of the lecturer Dr. Silavwe who was in the direct vicinity of the fire-extinguisher that was discharged did not positively identify any students.

 

[12] He submitted further that the evidence of the Security Officer Musa Dlamini was not corroborated by any other evidence including that of Dr. Silavwe, and thus Dlamini’s evidence was untrustworthy as it raised significant questions.

 

[13] Mr. Maseko further submitted that the Applicant’s rights to freedom of peaceful assembly and association was guaranteed by Section 25 of the Constitution of the Kingdom of Eswatini Act No. 1 of 2005 which provides as follows:

“25(1) a person has the right to freedom of peaceful assembly and association”.

 

 

[14] Mr. Maseko further argued that the mere presence of Applicants in a protest where unlawful conduct takes place is no basis on which the Applicants can be held liable for that unlawful conduct.  He referred to the case of South African Transport and Allied Workers Union and Another v Garvas and Others 2013 (1) SA 83 (CC) at para 53 where the Court stated –

“[A]n individual does not cease to enjoy the right to peaceful assembly as a result of sporadic violence or other punishable act committed by others in the course of the demonstration, if the individual in question remains peaceful in his or her own intentions or behavior.”

 

 

[15] Mr. Maseko argued further that the Respondents should have followed this principle as set out in the Garvas case supra.  He submitted that the Respondents failed to differentiate between the lawful conduct of the Applicants and the unlawful conduct of other protesters and instead attributed all the unlawful actions of the protesters on everybody who happened to be involved in what he described as a peaceful protest.  I will deal with principle as enunciated in Garvas later in this judgment and whether this was a lawful and peaceful protest.

 

 

[16] The gist of Mr. Maseko’s submission was that the conduct of the Respondents in prosecuting the Applicants for the unlawful acts of others during the protest was aimed at frustrating the rights of the students to express their political or social grievances through protest, by picking the leaders of that protest and hold them liable for anything unlawful done by anyone else in the protest.

 

 

[17] In dealing with the doctrine of common purpose, Mr. Maseko referred this Court to BURCHELL AND HUNT, SOUTH AFRICAN CRIMINAL LAW PROCEDURE VOL 1, GENERAL PRINCIPLES 2ND EDITION at pages 434-435 wherein the learned authors stated the following:

‘Proof, whether by evidence of words or conduct, of agreement to participate in the criminal design, added to proof of participation, and directly or by necessary implication, of contemplation of (possible) consequences, irrespective of the particular means by which they were attained (coupled with recklessness as to, whether those consequences occur or not), provides the proper test in law of the liability of parties to a common purpose.” 

 

 

[18] Mr. Maseko further referred to the learned authors at page 580 where they state as follows still on the doctrine of common purpose:-

‘The dictates of individual blameworthiness require a substantial correlation between the unlawful consequence to which one I reconciled and the actual unlawful consequence that results.”

 

 

[19] He further referred to the Swaziland Supreme Court decision in the case of Ngcamphalala and Others v Rex (2002) where the Court stated as follows:

‘The essence of the doctrine of common purpose is that where two or more persons associate in a joint unlawful enterprise each will be responsible for any acts of his fellows which fall within their common design or object ----  There need not be prior conspiracy.  The common purpose may arise spontaneously.  Nor does the operation of the doctrine require each participant to know or foresee in detail the exact way in which the unlawful result will be brought about.

It is however, necessary for the Crown to establish that each participant had the necessary mens rea ---  It must be shown that he or she knew or must have known that the crime was likely to be committed by one of his associates and either participated therein or agreed, by words or conduct, to associate himself with the act or acts of his associates.’

 

[20] Mr Maseko quoted a number of authorities including referring this Court to the application of the doctrine of Common purpose in the United Kingdom where it is referred to as the “joint enterprise”

 

[21] Mr Maseko also referred to an important extract from MC MANE – THE DOCTRINE OF COMMON PURPOSE IN SOUTH AFRICA where the learned author deals with the subject at length.

 

[22] Mr Maseko also dealt with the sanctions imposed by Respondents and he argued that the sanction meted to the Applicants by the Respondent was disproportionate.  He argued that the Respondent did not bother to quantify the damage but instead went for the jugular by actually excluding the Applicants from the institution and thereby causing a negative impact on their studies and careers.

 

[23] Mr Maseko also implored upon this Court to consider a special examination to be set for the Applicants by the Respondent in the event they are successful.

 

[24] On the other hand Mr Z. Shabangu for the Respondents argued that the Court must first ascertain whether the Applicants have established grounds for review and whether the Respondent’s decision to exclude Applicants temporarily from the University for a specific period as a result of their transgressions is reviewable.

 

[25] Mr Shabangu further argued that the charges of misconduct as preferred against the Applicants were properly framed to accommodate the common purpose. 

 

[26] Mr Shabangu further submitted that the disciplinary committee considered all the evidence presented before it and that the Disciplinary Committee had every right to accept evidence where it felt such was credible and rejected evidence where it felt such was not credible.

 

[27] Mr Shabangu further submitted that disciplinary proceedings conducted by quasi–judicial tribunals like the Respondent’s Disciplinary Committee are not bound to strictly adhere to rules of procedure as it is the case in a court of law.  He argued that in casu, the evidence on record before the Disciplinary Committee justified the decision that was arrived at.  He argued further that the Disciplinary Committee’s decision was based on the evidence on record wherein each of the Applicants were placed at the scenes of the crime as it were and as having committed the said act(s) of misconduct.

 

[28] Mr Shabangu argued further that the sentences imposed on the Applicants are not unreasonable compared to the seriousness of the contraventions committed by Applicants and the need to stop the  scourge of violence, vandalism and disruption of operations of the Respondent institution.

 

[29] Mr Shabangu further referred to the landmark decision of the then Court of Appeal in the case of Takhona Dlamini v President of the Industrial Court and Another Case No. 23/1997 where Tebbut JA, Kotze P and Browde JA laid down the common law grounds for review.

 

[30] Mr Shabangu further submitted that where a decision has been honestly and fairly arrived at upon a point which lies within the discretion of the body or person who decided, then the Court has no reason to interfere with that decision.  Therefore that in casu the decision of the Disciplinary Committee was arrived at honestly and fairly and thus there is no reason for this Court to thus interfere with the Respondent’s exercise of its discretion.

 

[31] Mr Shabangu submitted further that the Respondents’ Disciplinary Committee was based on evidence presented by witnesses during the hearing.  He submitted that all three Applicants were seen by witnesses at the scenes of crime both in Kwaluseni and Luyengo Campuses, and that they were active participants in the commission of the acts of misconduct for which they were charged.

 

[32] Mr Shabangu submitted further that the conduct of the Disciplinary Committee in not stating the reasons for the refusal of the Applicant’s story did not amount to a ground of review of the Disciplinary Committee’s conduct because this is a quasi–judicial body and not bound by the rules of Court in the performance of its functions and thus such actions not subject to review by this Court.

 

[33] Mr Shabangu submitted further that the Applicants were charged for acting individually and or alternatively in the furtherance of a common purpose and that the Disciplinary Committee applied its mind to the fact that the Applicants acted individually or alternatively with common purpose.  Mr Shabangu referred to page 115 of the Book of Pleadings under the heading “Applying the Law” where the chairperson of the Disciplinary Committee stated:

‘The issue to be determined by this Committee is whether the Second Defendant on his own accord or with the First Defendant were acting together in the furtherance of a common purpose’---

 

[34] On the issue of sentence Mr Shabangu submitted that the offences proven before the Disciplinary Committee against the Applicants were by their nature very serious.  He submitted that at Luyengo campus the 3rd Applicant locked the main gate using a padlock to prevent access into and/or out of the campus, and that at Kwaluseni campus the 1st and 2nd Applicants were part of a group of students who disrupted a lecture that was due to proceed for a whole day until 5:00pm and that the 1st Applicant in particular was seen by witnesses literally discharging a fire extinguisher inside the lecture room which resulted in the lecture being disrupted.

 

[35] Mr Shabangu further submitted that the act of discharging a fire extinguisher in a lecture room full of students and the lecturer is a very serious offence and thus the sentence imposed is commensurate with the seriousness of the offences committed.

 

ANALYSIS OF THE MATTER

[36] I must state that the proceedings as contained in the Disciplinary Committee Records of Proceedings filed before court as Annexures SW 2 (Kwaluseni Campus) and SW 5 (Luyengo Campus) respectively, demonstrates the manner and procedure how the Disciplinary Committee conducted the disciplinary proceedings.

 

[37] I must point out that the Chairman in both proceedings conducted at Kwaluseni and Luyengo Campuses respectively conducted such proceedings with impartiality and diligence.  There is a lot of integrity in the proceedings.

 

[38] In order to demonstrate the fair manner in which he conducted the proceedings I will quote an incident where a postponement was requested on behalf of the 1st and 2nd Applicants at Kwaluseni on the 4th April 2018, and I quote from the Record of Proceeding at page 2 –

‘The Committee has applied itself on the application for postponement to tentatively Friday.  The Committee is aware that you need to have sufficient time to ensure that justice is dispensed.  The Committee allows a conditional postponement to tomorrow because we are pressed for time.  The issue of costs said by the Initiator is discretional.  The matter is postponed to tomorrow at 9.30am’

 

[39] I am impressed with the attitude, fairness and patience that was exercised by the chairperson notwithstanding the fact that the Disciplinary Committee was pressed for time owing to the urgency of the matter.  Even the issue of costs which was raised by the Initiator, the Chairperson was quick to exercise his discretion in favour of the Applicants.  As per the Record he never granted costs against them.

 

[40] On the following day the 5th April 2018, the Chairman enquired if everybody was ready and upon confirmation by all parties that they were ready, the charges were then put to the Applicants who pleaded not guilty to all the charges.

 

[41] After the charges had been put to the Applicants and having pleaded not guilty to all the charges (as stated above), the first witness was sworn-in before testifying and he then testified.

 

[42] Witness No. 1 Musa Dlamini, the Supervisor at 4HIM Security testified and put the 1st and 2nd Applicants on the scene of crime where the fire extinguisher was discharged and a class disrupted.

 

[43] After Witness No. 1 concluded his testimony-in-chief, the defence was given the opportunity to cross-examine him.  It was a lengthy and close cross-examination which started at page 35 and proceeded to the middle of page 39 of the Record.  The next witness was Dr. Silavwe (Witness 2) the Lecturer in the Chemistry Department whose lecture was disrupted by the group of about 20 students comprising of the 1st and 2nd Applicants.  He testified in detail about toyi-toying and the discharging of a fire extinguisher inside the lecture room full of students.  He testified that there was also a Technologist and that they were conducting chemistry practicals that were to run from 11:00am to 05:00pm on that day.  This schedule was disrupted and the lectures – chemistry practicals abandoned as a result of the conduct of the protesters.  His evidence corroborated witness no. 1 Musa Dlamini.

 

[44] Dr. Silavwe was also subjected to a lengthy and rigorous cross examination by the Defence.  The cross-examination is on record from page 42 to page 45.  The Initiator then closed the Respondents’ case and the Applicants opened theirs.

 

[45] On behalf of the Applicants Minenhle Mamba was Defence Witness (DW1).  She was followed by 1st Applicant as DW2 and followed by 2nd Applicant Siphesihle Simelane as DW3.  All three were also subjected to a lengthy cross-examination by the Initiator.  After the testimony and cross-examination of the defence witnesses they too closed their case and the parties went on to make submissions in support of their cases.

 

[46] The evidence of the 1st and 2nd Applicants and their witness Minenhle Mamba was in the main an attempt to exculpate them from the charges and contradict the evidence of Respondent’s witnesses.

 

[47] The proceedings were adjourned to the 13th April 2018 to enable the Disciplinary Committee to consider the evidence and prepare the judgment.  Indeed on the 13th April 2018, the Chairperson delivered a lengthy and well-reasoned judgment, wherein he analysed the evidence, quoted legal authorities and also outlined all the Respondents’ statutes and or regulations.  The judgment is found in the Record from page 60 to page 72 and comprising of about 44 paragraphs.

 

[48] As regards the Luyengo campus matter involving 3rd Applicant Ndumiso Nkambule, the Chairperson conducted the proceedings in exactly the same manner as he had done in the Kwaluseni campus matter.  This matter commenced on the 10th November 2017 and was concluded on the 13th April 2018 when the Chairperson again delivered a well-reasoned and lengthy judgment starting from page 107 to 119 of the Record.  There was a separate judgment on sentence from page 120 to 121 of the Record.

 

 

 

PROCEDURE ADOPTED BY THE DISCIPLINARY COMMITTEE

[49] At this stage it is important that I mention the composition of the Disciplinary Committee.  It is as follows:

  1. Lunga Dlamini - Chairperson

  2. Dr. Mashwama - Member

  3. Dr. Sibiya  - Member

  4. Mr. Nkambule - Member

  5. Mr. Nkambule - Member

 

[50] I must also state that the Students’ Disciplinary Committee is established by Regulation 32.0 of the Regulations for Students’ Discipline as amended in 2007.   Clause 32.1 provides as follows:

‘32.1 There shall be a Student Disciplinary Committee, appointed by the Vice Chancellor, which shall consist of:

(a) Five members of academic staff, out of which there shall be appointed a Chairperson who shall be from the Department of Law, which appointment shall be approved by Senate.

(b) Four members of the Committee, including the Chairperson shall constitute a quorum.

(c) In the event that a quorum cannot be formed, the Vice Chancellor has the right to appoint someone to the vacant position.

(d) The Dean of Student Affairs or his/her Representative shall be in attendance.

(e) The Committee shall have a Secretary who shall be appointed by the Vice Chancellor, from the Registrar’s department who shall not be a member thereof’.

 

[51] I must mention that at all material times during the proceedings at both Kwaluseni and Luyengo campuses, the Disciplinary Committee was properly constituted in terms of clause 32.1.

 

[52] I must also mention that I have observed that the Disciplinary Committee executed their mandate in a professional manner and in compliance with Regulation 35.0 which provides as follows:

“When a case has been referred to the Wardens or Student Disciplinary Committee, the following procedure shall be observed” (underlining my emphasis).

 

35.1 The accused student(s) (hereinafter referred to as the defendant) shall be entitled to be present at the enquiry to cross-examine the witness and to conduct his own defence.

35.2 The defendant may seek the assistance of a student member of the University to assist him in his defence.

35.3 Where the defendant intends pleading an alibi, he/she will give notice of such intention to the Secretary of such concerned committee within twenty-four (24) hours of receiving the notice to attend the hearing.

35.4 The committee reserves the right to exclude Counsel for just cause and the defendant is entitled to get other Counsel in his place.

35.5 The defendant shall be called, the charge read to him and he/she shall then be asked to plead to the charge.

35.6 Where the defendant pleads not guilty to the charge, the committee shall call witnesses who may present evidence for the complainant.

35.7 The witness(es) shall be led in evidence by a member of the Committee.

35.8 The defendant or his representative may then cross-examine the witness(es).

35.9 After cross-examination by the defendant, members of the committee may then proceed to ask questions.

35.10 The defendant may then elect to give evidence and/or call witnesses before the committee to give evidence on his behalf.

35.11 Where the defendant is unrepresented by Counsel, a member of the committee may help him/her with his/her witness(es).

35.12 The defendant may lead the witness(es) in giving evidence.

35.13 The defendant witness(es) may then be cross-examined by the members of the committee.

35.14 At the close of evidence given on behalf of the defendant, the complainant or his representative shall be allowed to address the committee.  The defendant or his representative shall also be permitted to address the committee.

35.15 The committee may recall witness(es) at any stage of the proceedings in the interest of justice.  The student, against whom the witness(es) testify, shall have the right to cross-examine the said witness(es)

35.16 At the close of the address of the defendant or his representative, the committee shall consider the issues in the absence of the complainant and the defendant.

35.17 Where the committee decided that the defendant is not guilty of the offence with which he is charged, the committee shall discharge the defendant forthwith.

35.18 The defendant shall then be asked if he has anything to say by way of explanation or mitigation which he would like the committee to take into account before imposing sentence.

35.19 Where the committee has reached a decision on punishment, the defendant shall be informed forthwith, provided that nothing in the section and the next section shall prevent the committee from giving its decision on punishment and reasons therefore at a later date.

35.20 The committee shall consult the previous disciplinary record of the defendant and present record of proceedings to assist on the question of punishment.

35.21 Such decision must be communicated to the defendant within reasonable time after they have been made.

35.22 If the defendant pleads guilty to the charge, the complainant or his representative shall be asked for a brief resume of the facts of the case.

35.23 The defendant shall be asked if he had anything to say by way of explanation or mitigation which he would like the committee to take into account before the sentence is imposed.

35.24 Where the offence is a serious offence and the accused student pleaded guilty the matter shall proceed as though the student had pleaded not guilty.

35.25 The Secretary of the committee shall ensure that an accurate record is kept of all the proceedings of the committee and of all evidence brought before the committee.

35.26 The Secretary of the committee shall have full custody of the records.

 

[53] I must state that I have deliberately reproduced Regulations 35.0 and its sub-regulations solely to demonstrate the comprehensiveness and transparency with which the Respondents conduct its disciplinary proceedings.

 

[54] I must emphasize as well that the Respondents’ procedures of conducting disciplinary proceedings are the same as those of conducting both Civil and Criminal proceedings before our courts of law.  I will not repeat the procedures in both civil and criminal cases because this is clearly demonstrated in these Regulations.  At all material times these Regulations afford the student a fair and impartial trial in accordance with the principles of natural justice.

 

[55] The Respondent has surely invested in its student disciplinary mechanisms with the sole intention of conducting transparent, fair and diligent prosecution of the student offenders. From commencement of the proceedings until the end every critical activity is recorded.  I am mindful of the fact that the Applicants in casu are complaining about the non-disclosure of the reasons for the refusal of their defence by the chairperson of the Disciplinary Committee.  This in my view is not a ground for review and this Court certainly cannot interfere with the Chairperson’s discretion as these are disciplinary proceedings conducted fairly and without any trace of grave4 injustice, irregularity and misdirections.

 

[56] Even the procedure of lodging appeals in disciplinary proceedings is provided for in detail in Regulation 36.1, and again emphasis is on affording the Appellant (student) a fair hearing in accordance with the rules of natural justice.

 

[57] It is trite law that in review proceedings the Court hearing the review proceedings must caution itself against dealing with the merits of the matter for that is the domain of the quasi-judicial body, tribunal and or statutory body as it were.  A quasi-judicial body or tribunal or disciplinary committee exercising administrative functions fairly and intra vires its regulations and statutes cannot have its decisions reviewed and or set aside by courts of law.

 

[58] It is trite law that in review proceedings the Court hearing the review has to concentrate only on determining grave injustice, irregularities and or misdirection in procedure .  In other words a Court hearing a review is limited to dealing and or interrogating procedural processes and fairness and such Court has no jurisdiction to deal in any manner with the merits.  It is only when there is an irregularity, misdirection and or procedural flaws that result to grave injustice that this Court can interfere solely to review, correct and or set aside those proceedings and I emphasize that this is only on the basis of an irregularity, misdirection and or procedural defect having been clearly established in the proceedings and or where gross injustice is established and clearly evident from the Record of Proceedings.

 

DID THE RESPONDENT DISCIPLINATY COMMITTEE COMMIT AN IRREGULARITY, MISDIRECTION AND/OR PROCEDURAL ERROR JUSTIFYING THIS COURT TO REVIEW, CORRECT AND/OR SET ASIDE ITS DECISION?

[59] As I stated above, any Court hearing a review must confine itself to issues of procedures, irregularities and/or misdirections because it is those issues which the Court has jurisdiction to deal with.  It has been pointed out on a number of occasions by courts and legal scholars that this Court does not have jurisdiction to adjudicate on merits emanating from proceedings before a quasi-judicial body because that would be tantamount to usurping the functions of that body.

 

[60] I have carefully perused the Founding Affidavit and Supporting Affidavits of the Applicants and have not found any allegations of procedural errors, irregularities and or misdirections in so far as the conduct of the disciplinary proceedings is concerned.  Instead I have found a lot of allegations on the merits of the proceedings and even challenging the doctrine of common purpose as applied by the Chairman to the merits of the proceedings.

 

[61] In the fourteen (14) paragraphs in the Applicant’s Founding Affidavit from page 8 to page 31 of the Book of Pleadings nowhere is there a clear case being made of any irregularity and/or misdirection and/or procedural error that is clearly demonstrated.  I deliberately reproduced Regulation 35.0 in its entirely to demonstrate the procedural fairness with which the Disciplinary Committee deliberated on the charges of misconduct against the Applicants.

 

[62] The Rules of Procedure adopted by the Respondent to address students’ disciplinary processes and procedures are the same as those of a Court of law.  The manner in which these disciplinary proceedings were conducted was like the Applicants were being prosecuted before a Court of law in a Magistrate’s Court and/or even before this Court.  From putting the charge, to pleading, and to leading evidence, cross-examination etc--- and closure of defence case up until submissions are all features and procedures found in proceedings before our courts of law.  The presence of a full record of proceedings where the testimony was recorded verbatim are all processes and procedures found in a court of law.

 

[63] There is no single allegation that any of the procedures laid down in Regulation 35.0 and its sub-regulations were ever flouted by the Disciplinary Committee.  These are issues which if established will then bestow jurisdiction upon this Court to review if it was shown by the Applicants that the Disciplinary Committee violated its own regulation 35.0, and with due respect  this is not the case in casu.  Instead the complaint on the sufficiency of evidence, corroboration and common purpose by the Applicants relates to the merits and unfortunately this Court does not have the jurisdiction to deal with these on review, since these are not appeal proceedings but review proceedings.

 

[64] I must emphasize say that review proceedings are not appeal proceedings to deal with the facts or merits in any given matter because this Court does not have the jurisdiction to deal with appeals from quasi-judicial bodies, tribunals and statutory administrative bodies.  That function solely rests with those functionaries and in casu appeals are dealt with in terms of Regulation 36.0.  In fact Applicants lodged their appeals and the said appeals were dismissed.

 

[65] As stated above, Mr Maseko referred me to Section 33 of the Constitution of Eswatini Act No. 1 of 2005 which deals with the right to administrative justice.  For ease of reference I will again quote the Section verbatim –

“[1] A person appearing before any administrative authority has a right to be heard and be treated justly and fairly in accordance with the requirements imposed by law including the requirements of fundamental justice or fairness and has a right to apply to a court of law in respect of any decision taken against that person with which that person is aggrieved.

[2] A person appearing before any administrative authority has a right to be given reasons in writing for the decision of that authority.’

 

[66] I hereby observe from the Record of Proceedings of the Disciplinary Proceedings that not only is the Respondent fully equipped to deal with issues of students discipline in terms of having comprehensive Regulations addressing that, in casu these Regulations were invoked to the maximum levels or limits as it were in both the Kwaluseni and Luyengo campuses proceedings.  Further the observation and application of the Regulations by the Disciplinary Committee is in line and in conformity with the provisions of Section 33 (1) and (2) of the Constitution as referred to above in that –

(i) the rules of natural justice were observed, the Applicants were afforded a fair hearing.

(ii) the proceedings were conducted by an impartial chairperson in a fair and just manner in accordance with Regulations 32.0, 35.0 and 36.0.

(iii) the requirements of fundamental justice and/or fairness were fully observed and complied with by the Disciplinary Committee by conducting transparent proceedings in compliance with the Regulations.

(iv) the judgments of the Disciplinary Committee are in writing together with the complete Record of Proceedings, all these were made available to the Applicants.

 

[67] In his submission on behalf of the Applicants Mr Maseko referred to the case of South African Transport and Allied Workers Union & Another v Garvas and Others supra decided by the Constitutional Court in South Africa. 

 

[68] I must point out that the South African Transport and Allied Workers Union case supra was concerned with the interpretation of constitutional validity of Section 11 (1) and (2) of The Regulation of Gatherings Act No. 205 of 1993.  For convenience I hereby quote the said section verbatim –

 

 11(1) If any riot damage occurs as a result of -

‘(a) a gathering, every organisation on behalf of or under the auspices of which that gathering was held, or, if not so held, the convener;

(b) a demonstration, every person participating in such demonstration,

shall subject to Subsection (2), be jointly and severally liable for that riot damage as a joint wrongdoer contemplated in Chapter II of The Apportionment of Damages Act No. 34 of 1956, together with any other person who unlawfully caused or contributed to such riot damage and any other organisation or person who is liable therefore in terms of this subsection’.

 

 Section 11 (2) provides –

‘It shall be a defence to a claim against a person or organisation contemplated in subsection (1) if such a person or organisation proves –

(a) that he or it did not permit or connive at the act or commission which caused the damage in question; and

(b) that the act or omission in question did not fall within the scope of the objectives of the gathering or demonstration in question and was not reasonably foreseeable and:

(c) that he or it took all reasonable steps within his or its powers to prevent the act or omission in question.

Provided that proof that he or it forbade an act of the kind in question shall not by itself be regarded as sufficient proof that he or it took all reasonable steps to prevent the act in question.’

 

[69] The brief interpretation of Section 11 is that subsection 1 provides for occurrence of what is called “riot damage” which occurs to any person or property during riots and or protests, that liability for those “riot damages” rests on the organisation together with any other person who unlawfully caused or contributed to such riot damage.

 

[70] On the other hand subsection 2 provides for a defence to the organisation together with any other person for riot damage if it can be proven that the organisation or person contemplated in subsection 1 did not permit or connive at the act or omission which caused the damage in question, and further that the said act or omission did not fall within the scope of the objectives of the gathering or demonstration in question and was not reasonably foreseeable and also that the organisation or person took all reasonable steps within its or his powers to prevent the act or omission in question.

 

[71] A closer scrutiny of the South African legislation reveals that the Regulation of Gatherings Act permits protest, but that such protest must be peaceful and not be accompanied by violence and damage or injury to people and their properties.  And that where the protest generates violence and injury then that particular organisation together with its people are liable to pay damages as a result of those injuries to person or property unless the organisation or its people can prove that the organisation did not permit the act that caused the damage and further that the said act did not fall within the scope of the gathering or demonstration and was not reasonably foreseeable and lastly that the organisation took all reasonable steps  within its powers to prevent the act or omission in question.

 

[72] I must state that the importance of this South African Trade Unions case supra is that it demonstrates that the legislature allows gatherings and demonstrations, but importantly imposes an obligation or legal duty to that organisation and its people to ensure that the gathering or demonstration is peaceful and does not result to riot damage in the form of damage to property belonging to members of the public, violence and arbitrary deprivation of property, all of which are elements of riot damage

 

[73] I must point out that for the legislature in South Africa to enact The Regulations of Gatherings Act and impose the legal obligations and duties on those organizing a demonstration or gathering to ensure that there is no riot damage was a clear indication that –

1. freedom of expression and assembly is accorded to all citizens.

2. the right to freedom of expression and assembly should not breed or result in violence, arbitrary deprivation of property and invasion of privacy and human dignity to those not participating in the demonstration or gathering.

 

For convenience I will refer to Section 25 (1) (2) (3) of the Constitution of the Kingdom of Swaziland Act No. 1 of 2005 which provides that –

‘1. A person has the right to freedom of peaceful assembly and association.

2. A person shall not except with the free consent of that person be hindered in the enjoyment of the freedom of peaceful assembly and association, that is to say, the right to assemble peacefully and associate freely with other persons for the promotion of protection of the interests of that person.

3. Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision –

(a) that is reasonably required in the interests of defence, public safety, public order, public morality or public health;

(b) that is reasonably required for the purpose of protecting the rights or freedoms of other persons; or

(c) that imposes reasonable restrictions upon public officers

Except so far as that provision or, as the case may be, the thing done under the authority of that law is shown not to be reasonably justifiable in  democratic society’.

 

[74] I must state that there is an amazing similarity between Section 11 (1) (2) of The Regulation of Gatherings Act (supra) and Section 25 (1) (2) and (3) of The Constitution of the Kingdom of Swaziland Act in that –

(i) both pieces of legislation advocate for peaceful demonstrations and gatherings i.e. statutory freedom of assembly and association;

(ii) both pieces of legislation advocate for non-interference with the rights or freedoms of other people not involved in the demonstrations and gatherings;

(iii) both pieces of legislation advocate for public safety, public order and public health;

(iv) both pieces of legislation advocate for protection of the interests of other persons, such interests may be pecuniary, proprietary, human dignity, privacy and or any potential harm of whatever nature.

 

[75] I must point out therefore that in casu whilst this case of South African Transport and Allied Workers case supra was quoted to counter the manner in which the Chairperson of the Disciplinary Committee applied the doctrine of common purpose, this case actually proves to be in line with the manner in which the doctrine of common purpose was applied by the Chairperson because this case is based on the principles governing the liability of organisations and their people involved in gatherings and demonstrations which then result to riot damage.  Section 11 (1) of the Act as referred to in the RSA case provides that organisers of gatherings and demonstrations should be held liable for the riot damage resulting from their gatherings. 

 

[76] I am of the considered view therefore that in casu the doctrince of common purpose was correctly and properly applied by the Disciplinary Committee because the evidence on merits as contained in the record, which this court is not entitled to interfere with in review proceedings, clearly proves the commission of the charges of misconduct as preferred against the Applicants, it being common cause that the charges of misconduct emanate from gatherings and demonstrations by the students which were not peaceful and resulted to riot damage in the following:

(i) malicious damage to Respondent’s property both at Kwaluseni and Luyengo campuses.

(ii) invasion of privacy, human dignity and exposure to extreme threats of violence to other people not involved or participating in the demonstration and gatherings unfortunately which were predicated on violence towards those not participating.

(iii) Disrespect to lecturers, members of administration in both campuses and also to members of the Royal Eswatini Police Service who were denied access at Luyengo Campus because the 3rd Applicant and other demonstrators had locked the gate with a padlock.

(iv) Disruption of lectures in both campuses occasioned by the violent nature of the demonstrations.

 

[77] I have no doubt in my mind therefore that in casu the doctrine of common purpose was correctly applied as stated above that the Record of proceedings of the Disciplinary Proceedings speaks for itself and therefore there is no merit in my view to allege an irregularity, misdirection and certainly no procedural error giving rise to any ground of review of the said Disciplinary Committee proceedings by this Court.

 

[78] The charges of misconduct preferred against the Applicants are spot on.  For ease of reference they are hereby reproduced verbatim:

 

 KWALUSENI CAMPUS – IN RE 1ST APPLICANT AND 2ND APPLICANT

“On or about March 28, 2018, the first and Second Appliants were served with a Notice of Hearing and a Charge Sheet with two counts:

   COUNT 1

ENGAGED IN AN ACT OF VIOLENCE AND INTIMIDATION (2.1 (b))

that on the 6th of February 2018 at the physics/chemistry lab of the Kwaluseni Campus each or both of you acting together and in the furtherance of a common purpose engaged in a violent and intimidating act by discharging a fire extinguisher in contravention of Regulation 2.1 (b) of the Regulations for Students Discipline.

 

   COUNT 2

 In that on the 6th of February 2018 at the physics/chemistry lab of the Kwaluseni Campus each or both of you acting together and in the furtherance of a common purpose engaged in conduct that interfered with the performance of the duties of Dr. Silavwe, a Senior Lecturer of the University, by disrupting a class in contravention of Regulation 1.4 of the Regulations for Students Discipline.

 

Upon conviction 1st Applicant was sentenced to exclusion for the university premises for 1 year whilst 2nd Applicant was sentenced to exclusion for 8 months from the university premises.

 

 

LUYENGO CAMPUS IN RE 3RD RESPONDENT

[79] The charge sheet for the Luyengo Campus matter is not in my Record, however at page 108 of the Record, it appears that the 3rd Applicant was originally charged with a co-accused on three counts of contravening Regulation 2.1 (c) and 4.1 of the Regulations for Student Discipline and that the co-accused student was acquitted and discharged on the one charge of misconduct that he was facing.  On the other hand the 3rd Applicant was acquitted on Count 1 and 2 and convicted on Count 3 whereupon he was then sentenced to be excluded from the University premises for a period of eight (8) months from date of sentence.

 

[80] The charges of misconduct preferred by the Respondent against all three Applicants were classified as serious offences in terms of the Regulations for Student Discipline.

 

[81] For Ease of reference I will refer to Regulation 39.2 which lists all the serious offences as follows:

  ‘Regulation    Misconduct

 2.0  Public disorder and all related conduct.           2.2  Possession of alcohol and other related conduct.

 3.0  Engaging in disorderly conduct and all other related  conduct.

 4.1  Interference with operations of the university.

4.2 Engaging in conduct resulting in the disrepute of the university.

5.0 Insubordination.

6.4 Convening a public meeting or debate without the authority of the university.

7.1 Convening a Student Body meeting without authority.

12.1 Occupying a student room without authority.

13.1 Possession of any weapon.

14.0 Computer offences and all other related offences.

15.0 Sexual offences and all other related offences.

16.0 Unauthorised entry into any university bulding.

19.1 Stealing of another person’s property or unauthorised use.

21.1 Misappropriation of funds.

38.10 Engaging in any criminal act.

49.1 Cooking in any of the university residences’.

 

[82] The Applicants were all charged with misconduct falling within the ambit of Regulations 2.1 (b), 2.1 (c) and 4.1 of the Regulations for Student Discipline.  I will repeat as stated earlier herein that all these charges of misconduct are classified by the Respondent as Serious Offences in terms of Regulation 39.0.

 

[83] I must state that where a student has been convicted of a serious offence as prescribed in Regulation 39.0, the sentences thereof are prescribed in terms of the provisions of Regulation 32.3 which is titled – STUDENT DISCIPLINARY COMMITTEE PENALTIES.

 

[84] Regulation 32.3.1 is found at page 175 of the Book of Pleadings and provides as follows:

“The Student Disciplinary Committee may impose any one or more of the following penalties:

(a) A special sentence within its competence, which may be suspended for a specific period of time, and revived if the student commits a similar violation during that period.

(b) A warning to be noted in the Discipline Committee records and the student’s personal file.

(c) A fine not exceeding One Thousand Two Hundred Emalangeni (E1 200-00).

(d) Rustication for a period not exceeding four (4) weeks.

(e) Suspend a student for more than four weeks, up to a maximum of one year from the university premises.

(f) Dismiss a student from the university.

(g) Order that a student be off-campus for the remainder of the academic year.

(h) Order that a student be off-campus for the duration of his studies at the university.

(i) Exclude a student from the university premises for a maximum of one year.

(j) Order that a student do community service within the university premises of whatever nature for a specified time limit’.

[85] I have deliberately reproduced verbatim all the Serious Offences as listed in Regulation 39.2 and the penalties as listed in Regulation 32.3 of the Regulations for Student Discipline to demonstrate the following:

(i) that the Respondent has invested in extensive and comprehensive statutory mechanisms, procedures and processes to address any form of misconduct that may be committed by students, in casu the Applicants

(ii) that the penalties and or sentences imposed fall within the statutory Regulations for Student Discipline.

(iii) And therefore that the Respondent did not commit any irregularity and or misdirection in the sentences and penalties imposed on the 1st, 2nd and 3rd Applicants which would result to a ground or grounds of review before this court of the conviction and penalties imposed on the Applicants by the Disciplinary Committee.

 

[86] I must emphasize that there are so many options in terms of penalties to be imposed on any student convicted of any serious offence as prescribed by the Regulations for Student Discipline, and that it must be borne in mind by all students that this Court would not review any of the sentences that are prescribed therein because this Court does not have the jurisdiction to do, unless any irregularity or misdirection or gross miscarriage of justice can be clearly demonstrated both at the trial stage and at the sentencing stage before the Disciplinary Committee.

 

[87] In casu, there is no misdirection, gross miscarriage of justice and or any irregularity that was proven by the 1st to 3rd Applicants herein, instead the Record of Proceedings of the Disciplinary Committee sought to be reviewed, clearly demonstrate that the proceedings were conducted in a transparent, fair and just manner and in compliance with the rules of natural justice and without irregularities whatsoever both at trial and sentencing stage by the Disciplinary Committee and its Chairperson.  Nothing therefore in the Record of Proceedings indicate any gross injustice to warrant this Court to review the proceedings of the Disciplinary Committee and even on appeal before the University Council.

 

[88] I feel it is necessary that I list the various Regulations for Student Discipline as contained in the Statutes of the University of Eswatini Act No. 2 of 1983 as amended.  As I stated earlier, the University is a fully fledged statutory institution which is subject to review in terms of administrative law if it can be shown that its actions are ultra vires its statutes and regulations.

 

[89] I have referred to the relevant Regulations as contained in the Regulations for Student Discipline, however, I am of the considered view that in order to demonstrate how much the Respondent in particular the Vice Chancellor as the Chief Disciplinary Officer has invested in this sensitive subject of Student Discipline I must list the 49 Regulations for Student Discipline as sanctioned in terms of the Act.  However before I deal with the 49 Regulations I must first elaborate on this observation on the source of such authority as provided in Section 9 (1) of The University of Eswatini Act No. 2 of 1983 as amended which provides as follows:

‘There shall be a Vice Chancellor who shall be the Chief Academic and Administrative Officer of the University and who shall exercise such powers and perform such duties as may be conferred on him by the statutes’.

 

 The Statutes referred to herein are those that are made by the University Council in terms of Section 15 of the Act.

 

[90] The said Section 15 (1) (a) (b) (c) of the Act provides as follows:

15 (1) Subject to subsection (2), in the performance of its functions, and in the carrying out of its duties under this Act, the Council may make Statutes for –

(a) the government, control and administration of the   University.

(b) the validation of acts or resolutions of the Council or the Senate ----

(c) the better carrying into effect of the objects of this Act;

It is therefore this Act which empowers Council to make the University Statutes for the proper government, control and administration of the institution.  The Regulations for Student Discipline are part of these statutes of the University made by Council and bestowing on the Vice Chancellor the powers of Chief Disciplinary Officer of the University.  This is in terms of Section 4 (2) (b) of the Regulations for Student Discipline as amended in 2007 which provides as follows:

4 (2) ‘That the Vice Chancellor shall be the Chief Disciplinary Officer         of the  University.

Section 4 (2) (c) provides that the Vice Chancellor in carrying out his duties as the Chief Disciplinary Officer of the University, shall appoint a Student Disciplinary Committee to deal with alleged serious breaches of the Regulations of Student Discipline,

Section 20 (1) (m) provides that subject to the Act and Statutes, the Senate shall;

Assist the Vice Chancellor in making and enforcing Regulations for the Discipline of Students.

 

[91] It is therefore opportune for me at this stage to list all 49 Regulations as contained in Regulations for Student Discipline Statute.  They are as follows:

 Regulations     Misconduct

  1.0    Definitions.

  2.0    Public Order and disorderly conduct.

  3.0    Disorderly conduct.    4.0    Interference with the operations of the      University.

  5.0    Insubordination.

  6.0    Publications by Students.

  7.0    Student Body Meetings.

  8.0    Publications by Student.

  9.0    Notices

  10.0    Absence

  11.0    Visitors

  12.0    Unlawful Residence

  13.0    Weapons

  14.0    Computer Offences

  15.0    Sexual Offences

  16.0    Unauthorised Entry

  17.0    Student Conduct in Residences

  18.0    Music on Campus

  19.0    University Property

  20.0    Personal Property

21.0 Misappropriation of funds by student officials of the students representative Council, Club, Societies and any student organisation     

22.0 Illness or Injury

23.0 Relations with University Domestic Staff and Security Staff

  24.0    Procedure for lodging complaints 

  25.0    Special Functions

  26.0    Pregnancy

  27.0    Disciplinary Authorities

  28.0    House Committees

  29.0    Student Judiciary

  30.0    Warden’s Authority in Residence

  31.0    Warden’ Disciplinary Committee

  31.7    Authority of Warden’s Disciplinary   

      Committee                

  31.9    Appeal

  32.0    The Student Disciplinary Committee

32.2 Authority of the Student Disciplinary Committee     

32.3 Student Disciplinary Committee Penalties

32.4 Appeal

33.0 Further Authority of Disciplinary Committee

34.0 Disciplinary Procedures

35.0 Procedure at the Hearing

36.0 Procedure at Appeal Hearing

37.0 Procedure for Destroying/Disposing of Confiscated items

38.0 Criminal Offences

39.0 Serious Offences

40.0 Disciplinary Records

41.0 Prescription of Sentences

42.0 Warden’s House Rules

43.0 House Committees

44.0 Authority of House Committees

45.0 Student Rooms

46.0 Electricity

47.0 Noise

48.0 Prevention of Fire

49.0 Cooking in Residences

 

[92] These are the regulations contained in the Regulations for Student Discipline Statutes.  There is no Doubt that they cover almost every activity that may occur on campus.  I must advise students to read these comprehensive regulations thoroughly in order to avoid contravening them which may result in unwanted and dire consequences.      

 

[93] In fact Article 0.2 of the Preamble of the Regulations for Student Discipline provides as follows:

‘It is the duty of all students to acquaint themselves with statutes of the University and all the regulations and channels of communication, violation of which shall be viewed seriously.  These are contained in the:       

(a) University Act

(b) University Statutes

(c) Academic General Regulations

(d) Faculty Regulations

(e) All documentation pertaining to channels of communication   

(f) General Regulations contained in the Calendar

(g) The Rules and Regulations for Student Discipline

(h) Other Regulations issued from time to time by the University Authorities.

 

[94] Article 0.3 provides that ignorance of the law, rules and regulations shall not be regarded as an excuse for any violation thereof. 

 

 [95] Article 0.4 provides as follows:

‘All students, whether on University premises or not, whether acting in furtherance of University duty or not, are required to act at all times with a sense of responsibility, with courtesy and consideration for others, and with regard for the good name of the University’.

 

[96] Article 0.7 provides as follows:

‘For avoidance of doubt, where the Regulations impose a certain duty and the student does not abide, the student shall be liable to disciplinary action’.

 

[97] I have quoted verbatim the Preamble of the Statute of Regulations for Student Discipline in order to further demonstrate the University’s seriousness and transparency in dealing with the sensitive issues of Student Discipline.  The University makes it clear that it is imperative for all its students to fully acquaint themselves with the University Statutes and Regulations which are listed for the convenience of the students.

[98] I must state that it is of paramount importance to the University that there must be no interference whatsoever with the activities of student and staff members alike.  Regulation 17.0 of the Regulations for Student Discipline provides as follows:

‘Students shall conduct themselves at all times so as to avoid interference with the work of other students and University staff members’.

 

[99] The use of the word shall is a clear indication that this is a mandatory regulation to be observed by students whether they desire or not.

 

[100] In dealing with University property, Regulation 19.2 provides that students are responsible for furniture, fittings, linen and other equipment provided by the University in their rooms, classrooms, hostels and recreational facilities.

 

[101] In dealing with relations with University Domestic Staff and Security Staff, Regulation 23.1 provides that, students shall not interfere with the duties of the Domestic and Security Staff on duty on the campuses.

 

[102] I have selected the regulations referred to above in the preceding paragraphs because they fit squarely into the content and context of the changes of misconduct preferred against the three Applicants, and to caution that it would be in the best interests of all the students to observe the regulations to the letter because when they contravene these regulations, it then becomes the burden of the individual student charged for misconduct who goes through these stressful but fair process of disciplinary proceedings.  At this time it becomes the “every man for himself” scenario as opposed to the mob attitude that prevailed when the misconduct was perpetrated.

 

[103] In order to provide a full and clear picture of the disciplinary mechanisms in existence at the University, it is apposite that I refer to Regulation 27.0 which provides a list of the various Disciplinary Authorities:

 Regulation 27.1 provides as follows:

‘Subject to the provisions of the Statutes, the Disciplinary powers of the University are vested in the:

 (a) House Committees

 (b) Student Judiciary

 (c) Warden’s Disciplinary Committee

 (d) Vice Chancellor

 (e) Student Disciplinary Committee

 (f) Council’.

 

[104] It is crystal clear therefore that the University has invested extensively in its statutes governing and monitoring student conduct and discipline.  As I stated earlier, these statutes and regulations are a creature of The University of Eswatini Act No. 2 of 1983 as amended.  This means therefore that the Disciplinary Authorities are all statutory tribunals exercising administrative justice.

 

[105] Administrative justice is exercised through that branch of the law commonly known as Administrative law.  In casu the Respondent is a creature of Statute and is empowered by the University Act to exercise administrative justice through the Regulations as contained in the Regulations for Students Discipline.

 

[106] All the various disciplinary authorities of the Respondent as contained in Regulation 27.0 exercise quasi – judicial functions.  The Disciplinary Committee therefore exercised its quasi – judicial functions as per Regulation 27.0.  The effect of a quasi – judicial body exercising such administrative justice is that its decisions are final and not appealable before any court of law, however if there is an appeal it then lies within its structures i.e. before the University Council in terms of Regulation 32.4.1 which provides as follows:

‘Any appeal from the Student Disciplinary Committee may be made to the University Council’.

 

 I must point out and repeat that, if the Disciplinary Committee in its quasi – judicial functions adjudicate upon a matter of misconduct, just like in casu, and finds the student guilty of the charge of misconduct and it is  apparent from the Record of Proceedings that the student whilst undergoing the disciplinary proceeding was afforded a fair trial in accordance with the Regulations as contained in the Regulations for Student Discipline and in accordance with the rules of natural justice and is convicted of the charges of misconduct then the following scenario unfolds

1. the conviction cannot be reviewed by a court of law
2. any penalty or penalties imposed in compliance with the Regulation cannot be subject on review and cannot be set aside by any court
3. any appeal to the University Council if dealt with in terms of Regulation 32.4 cannot be reviewable by a Court of law and is in fact final.

 

[107] The emphasis therefore is that where an administrative body or quasi – judicial body exercising administrative justice conducts its proceedings in a fair manner and in compliance with its own regulations and procedures and does not abuse or violate any of its regulations and the rules of natural justice, whatever decision reached therein can never be reviewable by the Court.

 

[108] In order to demonstrate the importance of adhering to the Respondent’s regulations, I hereby refer to the case of Paul Mbingo v The University of Swaziland Case No. 2494/97 heard by Sapire ACJ (as he then was) where the Applicant who had been admitted to study B.Sc First Year and had passed his 1st Year examinations wanted to compel the University to enrol him for a Bachelor of Engineering study in the 2nd Year of study.  At page 2 of the judgment Sapire ACJ stated as follows:

‘The correct approach is to be found in an earlier decision of this Court, Siphiwe Tsabedze v The University of Swaziland Case No. 2505/95.  In that case, dealing with an application by a student for an order requiring the University to register her for a course of study for which she did not qualify Dunn J said “The Respondent has a specific regulation dealing with the standard to be attained for transfer from diploma to the degree programme.  The regulation must be applied uniformly and equally to all students completing the diploma programme.  Students who do not satisfy the requirements of the regulation have no right to transfer to the Fourth Year of study”’

 

[109] The facts of the case of Paul Mbingo supra may be different to the case in casu however, the underlying principle which cannot be ignored and which emphasize the importance of adherence to regulations is that Dunn J in the quoted case of Siphiwe Tsabedze was very instructive and emphatic that the regulations of the University must be applied uniformly and equally to all students.

 

[110] I have no doubt in my mind that in casu, the regulations of Student Discipline have been applied uniformly and equally to all the Applicants contrary to their assertions that only the Applicants who are or were student leaders were victimised because they are well known to the Administration of the Respondents, this is far-fetched because evidence led before the Disciplinary Committee, and again I reiterate and emphasize that such evidence on merits can never be interfered with by this Court, clearly indicated the guilt of the respective three Applicants.

 

[111] In the case of Siima Leona Mushalla & Another v The Vice Chancellor of the University of Swaziland Case No. 2121/2003 SB Maphalala (as he then was) in dealing with the issue of a fair hearing stated as follows at page 11 of the judgment.

‘In my considered view, having regard to the facts of this matter the Senate applied its mind properly to the Applicants’ case and there was nothing irregular about the decision to fail and discontinue the Applicants.  The Senate was entitled to decide the matter in the manner it did to maintain standards and the quality of degrees awarded ----

It will appear to me further, following what was held in the case of Sandile Khoza & Others v The Vice Chancellor, University of Swaziland and Another Civil Case No. 1454/1997 (per Dunn J) that the Applicants were given a fair hearing prior to their appeal being dismissed ----

 

[112] A fair hearing in any adjudication proceedings is the cornerstone of justice.  Where a litigant is denied a fair hearing such proceedings render themselves liable to be reviewable, corrected and or set aside as irregular.  This is not the position in casu, the Applicants were afforded a fair hearing and allowed representation of their choice of Counsel.

 

[113] In casu the Applicants were afforded a fair hearing both at the trial stage before the Disciplinary Committee and at the Appeal level before the Appeal’s Committee.  I am therefore of the considered view that Applicants were afforded a fair  hearing at both levels because the Record of Proceedings speak volumes about the nature of the evidence led, compliance with the appropriate regulations for Student Discipline and utmost observance of the rules of natural justice by the Respondents.  It is on these basis that I observed earlier in this judgment that the proceedings were conducted with utmost diligence and integrity.

 

[114] This Record of Proceedings was transmitted to the Appeals Committee which also afforded the Applicants a fair hearing and then dismissed their appeals.

 

[115] I will repeat and in fact at the expense of repeating myself that as long as the Record of Proceedings demonstrate that the Respondents never committed:

   (i) an irregularity

   (ii) a misdirection

1. a violation of the rules of natural justice
2. grave procedural injustice in the proceedings

This Court has no jurisdiction to interfere with the proceedings and certainly cannot interfere with the merits and factual findings of the Disciplinary Committee and the Appeals Committee of the Respondents.

 

[116] In the case of Tiyamike Rudolph Nduna Maziya v The Senate of The University of Swaziland & Another Case No. 2238/04 KP Nkambule J stated as follows at pages 4-5 of his judgment when dealing with Regulation 011.07 of the University Calendar.

‘From the above regulation the University is given a discretion to either grant the application (allowing student/applicant to write the examination on another day) or refuse.  However such discretion must be used judicially.  When one looks at this regulation it is clear that though the regulation makes an example of ‘ill-health’, the discretion is not confined to specific types of cases, nor is it circumscribed by rigid rules.  Each case must be decided in the light of its own circumstances.’

 

[117] KP Nkambule J went on to grant the application, however due to the fact that order could not be enforceable, he instead awarded the Applicant damages for the actions of the University.  The University appealed under the following citation; The Senate of The University of Swaziland & Another v Tiyamike Rudolph Nduna Maziya Civil Appeal Case No. 51/2004 where Steyn JA sitting with Browde JA and Zietsman JA stated the following at paragraph 21:

‘The Appellant did not – either in the Court below or before us on appeal – challenge the right of a Court to review the decision of the University in casu.  Although there has in the past been differing views in different jurisdictions concerning where the public/private law boundary lay, the development of the law appears to have extended the jurisdictional boundaries to include cases like those in casu within the realm of public law and therefore subject to review by a Court of law.  See in this regard ADMINISTRATIVE LAW IN IRELAND, HOGAN AND MORGAN, 3RD EDITION (1998) under chapter THE SCOPE OF PUBLIC LAW at pages 777-778; BAXTER ADMINISTRATIVE LAW, 1st Edition at page 340.  In South Africa also, even prior to the adoption of its new constitution that puts this beyond doubt, the Court’s have reviewed decisions like those in casu’---

 

[118] Steyn J further proceeded as follows at paragraph 22:

‘In these circumstances we have to examine the decisions of the University and test its processes and its reasoning to see whether it exercised its powers in a manner consistent with the principles of natural justice.  In order to do so we must have due regard to the provisions of its charter as formulated in its statute and in the regulations issued thereunder’---

 

[119] At paragraph 23 the learned Steyn JA continues to state as follows:

‘The University was established by the University of Swaziland Act No. 2 of 1983.  It is in terms of Section 3 (2) a body corporate with perpetual succession and has all the attributes of such a body.  Included in its powers is the right to conduct examinations for granting degrees, diplomas, certificates and other awards.  In Section 5 (2) the University is directed not to discriminate against any person on race, religion, sex and any other ground in respect of (a) the registration of any person as a student of the University, or (b) the appointment of any person to the academic or other staff of the University.

The Act also provided for the appointment of a Council and Senate and sets out their powers and duties.  The Senate is empowered by the statutes of the University to make regulations on matters affecting the academic sphere of the University’s activities.  Under and by virtue of this power the Senate issued academic regulations some of which are relevant for present purposes ----’

 

[120] At paragraph 25 Steyn JA states as follows:

‘What is of significance relevance in this appeal are the regulations that deal with examinations – particularly those that deal with the “absence from an examination”, one of which has been cited in part above ----

The Court below based its decision to grant relief on the ground that it was unreasonable for the University to have refused to re-schedule the paper in question, i.e. either initially pursuant to the student’s request as per his letter of the 5th March 2004, or at a supplementary examination stage as suggested by him in his letter of May 3, 2004.  It held that this request was reasonable, genuine and bona fide.

Clearly Regulation 011:07 confers a discretion on the University.  It has that discretion both generally under its statutes as indicated above and specifically in respect of requests made for purposes of sitting for an examination.  It gives the University the right to grant relief to a candidate on good cause shown, or as the Regulation puts it “good reason”.  This discretion is one to be exercised by the University and the Court will not readily interfere with the exercise of such a discretion simply because it may have a different opinion.  Provided that it appears that the discretion was exercised reasonably and with due consideration of the facts the Court would not be inclined to substitute its discretion for that of the authority charged with the responsibility to adjudicate on the mater.  The administration of a University makes complex and multi – faceted demands on its staff – both administrative and academic.  It knows and understands what is practically possible and what is not and will by and large be trusted by the courts to act sensibly and in a properly informed manner.

Having said that however, it cannot act arbitrarily, dogmatically or inflexibly.  It must also have due regard to all the facets of the problem such a request poses.  There should be no bias and there should be evidence that all the criteria laid down by the Regulations have duly been considered and evaluated.’

 

[121] In the case referred to herein above, the University lost the appeal and this is what Steyn JA stated at paragraph 36

‘For all these reasons I conclude that the Court a quo was right when it found that the University’s decision to deny the student in casu any relief was procedurally flawed, arbitrary, misdirected and grossly unreasonable.  In the result the appeal must fail ---’

 

[122] I have referred to this lengthy case of Timayike Maziya supra simply to demonstrate the importance of complying with the Regulations both by the University and the students.  In that case the University lost the appeal because it was found to have flouted its own regulations in dealing with the matter of Maziya.  In as much as the facts may be different, the underlying principle is that it is the primary duty of all administrative statutory bodies to adhere to their statutes and regulations in dealing with any administrative functions at the particular point in time.  Further that any discretion exercised must be exercised judicially and judiciously.

 

[123] In casu the situation is totally different, the Respondents complied with the Regulations for Student Discipline to the letter.  This is evident from the Records of Proceedings from both campuses.  As stated earlier the charges of misconduct were properly framed and the hearings were conducted in a fair manner and in accordance with the rules of natural justice.  The Chairperson carefully analysed the evidence in a transparent manner and it is not the duty of this Court to interfere with the Disciplinary Committee’s decision, because the Chairperson properly guided the Committee during the proceedings until the  hearings were concluded and the respective sentences were imposed.

 

[124] Authority is legend that decisions of an administrative authority which conducted its proceedings in a fair and just manner and without any misdirections and or gross irregularities resulting in an injustice are not subject to review by the courts.

 

[125] In the case of Takhona Dlamini v President of the Industrial Court, Civil Case No. 23/1997 heard by the then Court of Appeal – per Tebbutt JA, Kotze P and Brocode JA, Tebbutt JA stated the following at paragraph 11 of the judgment –

‘Those grounds embrace inter alia the fact that the decision in question was arrived at arbitrarily or capriciously or mala fide, or as a result of unwarranted adherence to a fixed principle, or in order to further an ulterior or improper purpose or that the court misconceived its function or took into account irrelevant considerations or ignored relevant ones, or that the decision was so grossly unreasonable as to warrant the interference that the court had failed to apply its mind to the matter.’

 At paragraph 13 Tebbutt JA states as follows:

‘From the various decisions he referred to Corbett CJ in Hira’s case at 93A-1 crystalized the present day position in regard to common law as follows:

1. Generally speaking, the non-performance or wrong performance of a statutory duty or power by the person or body entrusted with the duty or power will entitle persons injured or aggrieved thereby to approach the court for relief by way of common-law review.
2. Where the duty/power is essentially a decision making one and the person or body concerned (I shall call it a tribunal) has taken a decision, the grounds upon which the Court may, in the exercise of its common-law review jurisdiction, interfere with the decision are limited.
3. Where the complaint is that the tribunal has committed a material error of law, then the reviewability of the decision will depend, basically, upon whether or not the legislature intended the tribunal to have exclusive authority to decide the question of law concerned.  This is a matter of construction of the statute conferring the power of decision.
4. Where the tribunal exercises powers or functions of a purely judicial nature, as for example where it is merely required to decide whether or not a person’s conduct falls within a defined and objectively ascertainable statutory criterion, then the Court will be slow to conclude that the tribunal is intended to have exclusive jurisdiction to decide all questions, including the meaning to be attacked to the statutory criterion, and that a misinterpretation of the statutory criterion will not render the decision assailable by way of common-law review.  In a particular case it may appear that the tribunal was intended to have such exclusive jurisdiction, but then the legislative intent must be clear.
5. Whether or not an erroneous interpretation of a statutory criterion, such as is referred to in the previous paragraph (i.e. where the question of interpretation is not left to the exclusive jurisdiction of the tribunal concerned), renders the decision invalid depends upon its materiality.  If, for instance, the facts found by the tribunal are such as to justify its decision even on a correct interpretation of the statutory criterion, then normally (i.e. in the absence of some other review ground) there would be no ground for interference.  Aliter, if applying the correct criterion, there are no facts upon which the decision can reasonably be justified.  In this latter type of case it may justifiably be said that, by reason of its error of law, the tribunal asked itself the wrong question, or applied the wrong test, or based its decision on some matter not prescribed for its decision; or failed to apply its mind to the relevant issues in accordance with the behests of the statute; and that as a result its decision should be set aside.’

[126] Considering these grounds for common-law review of decisions of statutory tribunals as clearly articulated by Tebbutt JA, I have no doubt in my mind that it is indeed to extremely difficult to review decisions of statutory  bodies or tribunals where the proceedings were conducted in compliance with the established regulations and further in compliance with the rules of natural justice.

 

[127] In her work of masterpiece titled ADMINISTRATIVE LAW IN SOUTH AFRICA 2010 JUTA – CORA HOEXTER in dealing with the issue of authority of administrative functionaries states as follows at pages 226-227;

‘The first principle of administrative law (and of the rule of law) is that the exercise of power must be authorised by law.  Thus in Fed sure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan Council 1999 (1) SA 374 (cc) in what has become one of the most frequently cited dicta in South African public law, the Constitutional Court explained that it is central to the conception of our constitutional order that the legislature and Executive in every sphere are constrained by the principle that they may exercise no power and perform no function beyond that conferred upon by law.

As noted in Chapter 1, administrators have no inherent powers.  Every incidence of public power must be inferred from a lawful empowering source, usually legislation.  The logical concomitant of this is that an action performed without lawful authority is illegal or ultra-vires that is to say, beyond the powers of the administrator.  A number of grounds of review flow from the idea of authority, and in what follows these are grouped under two broad headings; the requirement of authority and delegation of authority.’

 

[128] It need hardly be emphasized that the Respondent is a fully fledged statutory institution set up or established by an Act of Parliament.  I have demonstrated above the existence of structures and regulations that have been put in place to deal with issues of Students Discipline.  All these structures and processes of the Respondent are duly authorised by law – The University of Eswatini Act No. 2 of 1983.

 

[129] I am therefore of the considered view that for the reasons stated above including the inclusion of the Respondent’s regulations, mechanisms and processes dealing with issues for student discipline, the disciplinary proceedings conducted by the Students Disciplinary Committee together with the Appeals Committee were conducted

  (a) Fairly

  (b) Impartially

  (c) In compliance with the fundamental principles of natural

   Justice

  (d) Without any irregularity

  (e) Without any misdirection

  (f) Without any grave injustice

  (g) Without any mala fide

  (h) Without any capriciousness

  (i) Without any unwarranted adherence to a fixed principle

  (j) Without an intention to further an ulterior or improper

   motive and or purpose

  (k) Without misconceiving its functions, and

  (l) Without taking into account irrelevant considerations and

   ignoring relevant ones.

 

[130] In casu that is not the position, instead as I have demonstrated in the paragraph immediately above the Respondents did not offend any of the twelve observations as derived from the legend of authorities available in cases dealing with reviews of proceedings of quasi-judicial bodies.

 

[131] Consequently I hereby order as follows:

1. The Application in terms of prayers 2, 3, and 4 of the Notice of Motion with the Registrar’s stamp of the 18th July 2018 is hereby dismissed

2. Each party is to pay its own costs.

 

 

NKOSINATHI MASEKO

JUDGE