THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT
Reportable
Case no: 846/2020

In the matter between:

YOLANDA DYANTYI APPELLANT

and

RHODES UNIVERSITY FIRST RESPONDENT

SIZWE MABIZELA NO SECOND RESPONDENT
WAYNE HUTCHINSON NO THIRD RESPONDENT

Neutral citation: Yolanda Dyantyi v Rhodes University and Others (Case no 846/2020)
[2022] ZASCA 32 (29 March 2022)

Coram: SALDULKER, VAN DER MERWE, NICHOLLS AND HUGHES JJA

AND MATOJANE AJA

Heard: 21 February 2022

Delivered: This judgment was handed down electronically by circulation to the

parties’ legal representatives by email. It has been published on the
Supreme Court of Appeal website and released to SAFLII. The date
and time for hand-down is deemed to be 09h45 on 29 March 2022.

Summary: Administrative law – disciplinary proceedings against student at public

higher education institution – Promotion of Administrative Justice Act 3 of 2000 (PAJA)
applicable – procedural fairness and right to particular legal representation under PAJA
– dependent on particular circumstances of each case – in absence of compelling
reasons to contrary procedurally unfair to require student to forgo services of counsel
steeped in part-heard matter and available within reasonable time – decisions flowing
from disciplinary inquiry reviewed and set aside.
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ORDER

On appeal from: Eastern Cape Division of the High Court, Grahamstown (Nhlangulela
DJP sitting as court of first instance):
1 The appeal is upheld with costs, including the costs of two counsel.
2 The order of the court a quo is set aside and replaced with the following:
‘(a) The decision of 10 October 2017, convicting the applicant on charges of
kidnapping, assault, insubordination and defamation, in terms of rules 4.3 and 4.17
(a) and (b) of the first respondent’s Student Disciplinary Code, is reviewed and set
aside.
(b) The decision of 17 November 2017, sanctioning the applicant by
permanently excluding her from the first respondent, in terms of rule 7.27 (b) of the
first respondent’s Student Disciplinary Code, and making various ancillary orders, is
reviewed and set aside.
(c) The matter is remitted to the first respondent for reconsideration on
condition that any continuation of the disciplinary inquiry against the applicant shall
take place before another proctor.
(d) The first respondent is directed to pay the applicant’s costs, including the
costs of two counsel.’

JUDGMENT

Van der Merwe JA (Saldulker, Nicholls and Hughes JJA and Matojane AJA
concurring)

[1] During 2017, the appellant, Ms Yolanda Dyantyi, was in her third and final year of
study for a Bachelor of Arts degree at Rhodes University (the university). As a public
higher education institution the university is a juristic person in terms of s 20(4) of the
Higher Education Act 101 of 1997. It is the first respondent in the appeal. The second
 3

respondent is the vice-chancellor of the university in his official capacity. During 2016 the
university instituted disciplinary proceedings against Ms Dyantyi (and others). The third
respondent, Mr Wayne Hutchinson NO (the proctor), chaired the disciplinary inquiry.
He found that Ms Dyantyi was guilty of the misconduct that she had been charged with
and ordered her permanent exclusion from the university, with effect from 17 November
2017. Ms Dyantyi launched an application for the review and setting aside of the decisions
of the proctor in the Eastern Cape Division of the High Court, Grahamstown.
The university and the vice-chancellor opposed the application. Nhlangulela DJP
dismissed the application with costs but granted leave to Ms Dyantyi to appeal to this
court on the limited ground that I shall allude to. It suffices to say at this stage that the
issue on appeal is whether procedural unfairness tainted the decisions of the proctor in
respect of Ms Dyantyi.

The facts
[2] During the period from 17 to 20 April 2016, the university was affected by student
protests. The protests were precipitated by the emergence, on social media, of a list of
male students and former students of the university who had allegedly committed rape or
acts of sexual assault at the university. The protests were directed at the perceived
‘rape culture’ at the university. The protestors believed that the university failed to
effectively address the existence of pervasive sexual violence on its campus.

[3] During the protests, three male students were physically removed from their
rooms at university residences, manhandled and deprived of their freedom of movement.
Despite calls by the vice-chancellor and other members of the senior management of the
university to release him, one of the students was held against his will for about 11 hours.
The protests continued until the university obtained a comprehensive interim interdict on
20 April 2016. Ms Dyantyi participated in the protests but at all times maintained that she
had done nothing unlawful.

[4] On 28 March 2017, nearly a year after the protests, the university gave written
notice of a disciplinary inquiry to Ms Dyantyi. In terms of the notice, Ms Dyantyi had to
answer to four charges of misconduct. The first was that she had committed the common
 4

law crime of kidnapping in that, acting in common purpose with others, she deprived the
aforesaid three male students of their freedom of movement and held them hostage.
The second charge was one of insubordination, consisting of a failure to adhere to the
lawful instructions of the vice-chancellor and his in-house legal advisor to release all or
any of the three students. In the third place Ms Dyantyi was charged with having
committed the common law crime of assault. It was alleged that she had manhandled
and/or grabbed one of the said three students by his collar, continuously pushed him and
spat in his face. The fourth charge was that Ms Dyantyi had defamed another student (not
one of the three already mentioned) by referring to him as a rapist on social media.

[5] The notice alerted Ms Dyantyi to the provisions of clause 7.1 of the
Student Disciplinary Code of the university (the disciplinary code). It provides for the rights
of representation of a student at a disciplinary hearing, including the right to legal
representation at own cost. It transpired that two fellow female students had to face the
first and second charges at the same disciplinary inquiry.

[6] The vice-chancellor appointed the proctor in terms of the disciplinary code to
preside over the disciplinary inquiry. The disciplinary code spells out the procedure to be
followed at the hearing. It provides that in the event that the proctor finds a student guilty
of a disciplinary offence, he or she has jurisdiction to impose any one or more of a variety
of sanctions, ranging from a suspended fine to permanent exclusion from the university.
In terms of the disciplinary code the university appointed two prosecutors to represent it
before the proctor. They were Mr Sandro Milo and Mr Fundile Sangoni, both attorneys in
private practice.

[7] The disciplinary hearing commenced on 26 June 2017. Ms Dyantyi was

represented pro bono by two counsel, Ms Irene de Vos (not the lead counsel for
Ms Dyantyi before us) and Mr Zweli Makgalemele, as well as an attorney
(Mr Lindokuhle Mdabe) and a candidate attorney. The members of this legal team were
either attached to or instructed by the Socio-Economic Rights Institute (SERI), a
non-profit company registered as a law clinic. Counsel acted for one of the two other
charged students on the instructions of an attorney. After the commencement of the
 5

hearing, she ceased to be a registered student at the university and the disciplinary
charges against her were not proceeded with. An attorney, Mr Justin Powers, appeared
for the third student.

[8] Some preliminary skirmishes, including an unsuccessful application on behalf of

all three students for the recusal of the proctor, preceded the calling of witnesses.
Thereafter, the prosecutors presented the evidence of four witnesses. Two of them were
the victims of the kidnapping referred to in the first charge. One of these two was also the
victim of the assault alleged in the third charge. The third witness observed some of the
events during the protests and the fourth was the complainant in respect of the fourth
charge (defamation). Counsel for Ms Dyantyi cross-examined the witnesses and put to
each of them that she denied any wrongdoing or that she had been a leader of the
protests.

[9] The hearing stretched over several days (26 to 28 June, 7 to 8 August and 4 to 7
September 2017) and was then set down for hearing on 9, 10 and 11 October 2017. After
lunch on 9 October 2017, the proctor excused Ms Dyantyi and Mr Makgalemele to prepare
for her testimony on the following day. On 10 October 2017, however, Mr Powers
proceeded to present his client’s case. This was the result of an agreement between
Ms Dyantyi’s legal representatives and Mr Powers, to accommodate witnesses for his
client that were present. The prosecutors did not object to this. So it transpired that the
case for the fellow student was not concluded by the close of proceedings on
11 October 2017.

[10] In the result, dates for the continuation of the inquiry had to be determined.
It appeared from the discussion on the record that the proctor was available on 25 to
27 October, 6 to 8 November and 13 to 15 November 2017. So, apparently, were the
prosecutors. In respect of these dates, Mr Powers was only available on 26 and
27 October. He said that he had several weeks before proposed these dates to Mr Milo.
There was no indication, however, that counsel for Ms Dyantyi had been involved in any
such discussion. Mr Powers also pointed out that his client was due to write examinations
during the week of Monday 6 November to Friday 10 November 2017. (The same applied
 6

to Ms Dyantyi). Mr Powers was also available on 29 and 30 November and

1 December 2017, which in the circumstances were the first available dates of counsel
for Ms Dyantyi.

[11] Mr Milo proceeded to say ‘. . . we made it very clear that the University’s imperative
is to conclude with these proceedings by 20th October. That is the imperative and we did
make it clear that if we were unable to achieve finality by then, the University would
unfortunately be left with no alternative but to schedule the matter on dates without
reference to the availability of the parties. It’s a step I’m loathe to request that we do but
it’s something which I fear we have to do’. (I accept that the reference to the 20th October
was due to a slip of the tongue and should be understood as 30th October). He did not
say why it was so important for the university to conclude the proceedings before
30 October 2017. However, this statement caused the focus to be placed on continuation
of the hearing on 26 and 27 October 2017.

[12] Ms de Vos said that there was no intention to delay the matter. She explained that
both she and Mr Makgalemele had prior commitments for these dates. Ms de Vos was
engaged in an application in the Gauteng Local Division, Johannesburg to restrain the
deportation of a person who faced the death penalty in Botswana. Mr Makgalemele was
engaged in a matter between the President of the Republic of South Africa and the
Office of the Public Protector, which had many weeks before been set down for the week
of 23 to 27 October 2017. At no stage were these averments disputed.

[13] Ms de Vos said that Ms Dyantyi was a poor student who could not afford other
legal representation and was unlikely to obtain pro bono legal representation at short
notice. She pointed out that through no fault of Ms Dyantyi or her representatives, the
disciplinary hearing commenced more than a year after the protests and that there was
no rational reason why the matter should be concluded by 20 (30) October 2017.
She also mentioned that the practice on the three previous similar occasions had been
that the dates for the continuation of the proceedings were agreed upon.
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[14] Ms de Vos concluded by contending that to set the matter down for dates on which
counsel for Ms Dyantyi were unavailable would in these circumstances constitute a gross
irregularity. Despite similar protestations by Mr Powers, the proctor simply ruled:
‘Mr Milo, I think I must do the dates now. Alright. 26th, 27th, 6th, 7th and 8th November. Thank you.
You can pack up.’

[15] On 20 October 2017 Ms Dyantyi submitted a formal application to the proctor for
the postponement of the hearing that had been set down for the aforementioned dates,
to dates on which her legal representatives were ‘objectively’ able to attend.
The application was essentially based on the same grounds than those that had been put
forward on 11 October 2017. It was submitted in the postponement application that should
the inquiry not be postponed, the proceedings against Ms Dyantyi would be tainted by
procedural unfairness. The university opposed the application.

[16] The proctor made a ruling on 24 October 2017, in these terms:

‘1. I have considered the application by Ms Dyantyi’s representatives for the postponement of
the hearing and the University’s response thereto.
2. On the last sitting of the hearing on 11 October 2017, I duly considered the objections that
were raised by Adv. De Vos to the proposed dates. I overruled her objections.
3. I am not persuaded that my decision should revisited and in the result, the application is
dismissed.’
Thus, the proctor gave no reasons for his rulings of 11 October and 24 October 2017
(the rulings). As a consequence of the rulings, neither Ms Dyantyi nor her representatives
further participated in the disciplinary proceedings.

[17] The proctor produced his judgment on the merits on 10 November 2017. He found
that Ms Dyantyi was guilty of kidnapping, insubordination, assault and defamation as
charged. (He also found her fellow student guilty on the two charges put against her).
On 17 November 2017, the proctor handed down the sanction in respect of Ms Dyantyi,
as follows:
‘9.1 Ms Dyantyi is excluded permanently from Rhodes University, forthwith as of the date of this
order;
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9.2 No credit/s that Ms Dyantyi may obtain at any other institution during any period that she was
excluded from Rhodes University will count towards any qualification issued by
Rhodes University; and
9.3 Ms Dyanty’s academic transcript shall be endorsed to read “Conduct Unsatisfactory –
Student permanently excluded for: Kidnapping; Assault; Insubordination; Defamation”.
9.4 Ms Dyantyi must vacate the Rhodes University premises by close of business on the date of
this order and may not attend on the Rhodes University campus for the duration of her exclusion.
9.5 The order set out in paragraph 9.4 specifically prohibits Ms Dyantyi from attending the
Rhodes University campus for any academic, administrative, social or any other purpose
whatsoever, including, but not limited to, the writing of any outstanding examinations;
9.6 Any examinations, practicals or any other means of assessment that Ms Dyantyi may have
written or done during the November 2017 examination period, which have not been finalised in
terms of the Rhodes University Institutional rules as at the date of this order, shall be regarded as
pro non scripto.’

[18] As I have said, Ms Dyantyi launched an application for the review and setting
aside of both the decisions of the proctor of 10 November and 17 November 2017
(the decisions). The grounds of review were that the decisions had been materially
affected by procedural unfairness and were unreasonable and/or irrational. In a
supplementary founding affidavit filed under Uniform rule 53(4), Ms Dyantyi also alleged
that the decisions were ultra vires the powers of the proctor and that she reasonably
perceived the proctor to have been biased against her. The court a quo found no merit in
any of the review grounds but subsequently granted leave to appeal limited to the
procedural unfairness review ground.

The law
[19] As a public higher education institution, the university is publicly funded for the
purpose of achieving the obligation of the state under s 29(1)(a) of the Constitution to
make the right to higher education progressively available and accessible. It follows that
the university is an organ of state as defined in s 239 of the Constitution and thus in s 1
of the Promotion of Administrative Justice Act 3 of 2000 (PAJA). In terms of s 27(1) of the
Higher Education Act, the university is governed by its council. Section 32(2)(d), inter alia,
provides that the council may make institutional rules regarding disciplinary measures
 9

and disciplinary procedures relating to students. In terms of s 36, every student at a public
higher education institution is subject to the disciplinary measures and disciplinary
procedures determined by its institutional rules. The council of the university approved
and the university applied the disciplinary code under these empowering provisions.

[20] Therefore, in subjecting Ms Dyantyi to a disciplinary inquiry, the university

exercised a public power and/or performed a public function in terms of legislation, within
the meaning of the definition of ‘administrative action’ in s 1 of PAJA. The decisions clearly
affected Ms Dyantyi’s rights adversely by direct external legal effect. It follows that PAJA
was applicable and that Ms Dyantyi had the right to procedural fairness encapsulated in
s 3 of PAJA.

[21] In C Hoexter & G Penfold Administrative Law in South Africa 3 ed (2021) at 501
it is said that:
‘. . . procedural fairness is a principle of good administration that requires a sensitive rather than
heavy-handed application. Context is all-important: the content of fairness is not static but must
be tailored to the particular circumstances of each case. There is no room now for the all-or-
nothing approach to fairness that characterised our pre-democratic law, an approach that tended
to produce results that were either overly burdensome for the administration or entirely unhelpful
to the complainant.’
At common law the opportunity of an individual to present evidence that supports his or
her case and to controvert the evidence against him or her ‘. . . is the essence of a fair
hearing and the courts have always insisted upon it’. See Lawrence Baxter Administrative
Law 1 ed (1984) (3rd impression 1991) at 553. Today this forms part of the reasonable
opportunity to make representations under section 3(2)(b)(1)(ii) of PAJA. In Bel Porto
School Governing Body and Others v Premier of the Western Cape Province and Another
[2002] ZACC 2; 2002 (3) SA 265; 2002 (9) BCLR 891 para 104 Chaskalson P said that
‘what procedural fairness requires depends on the particular circumstances of each case’.
And in Minister of Public Works and Others v Kyalami Ridge Environmental Association
and Others (Mukhwevho Intervening) [2001] ZACC 19; 2001 (3) SA 1151 (CC); 2001 (7)
BCLR 652 (CC) para 102 he said:
 10

‘Ultimately, procedural fairness depends in each case upon the balancing of various relevant
factors including the nature of the decision, the “rights” affected by it, the circumstances in which
it is made, and the consequences resulting from it.’

[22] In accordance with the position at common law, there is no general right to legal
representation under PAJA. Unless a relevant instrument extends the right to legal
representation, it is limited by s 3(3)(a) to serious or complex cases. Even in such cases
there is no general right to the services of a specific legal representative or
representatives. Whether, when and to what extent an affected person should be
permitted or enabled to obtain or retain the services of a particular legal representative
has to be determined by a similar balancing exercise than the one referred to in the
previous paragraph.

[23] Thus, the question in such a case (that is, where the affected person is entitled to
legal representation) is whether in the specific circumstances procedural fairness in terms
of PAJA requires that the affected person obtain or retain the services of a particular legal
representative. A weighing of considerations of timing and delay, prejudice to any affected
party, availability of suitable alternative legal representation together with all other
relevant factors, should provide the answer to this question. And it has to be said that the
answer should seldom be in the affirmative.

Application of the law to the facts

[24] Was Ms Dyantyi’s case such an exceptional instance? The following factors had
to be balanced. On the one hand the university took a predetermined stance that it would
seek the exclusion of all the accused students, including Ms Dyantyi. It made this attitude
clear from the outset and at all stages during the disciplinary inquiry. In the result,
Ms Dyantyi, an impecunious young student, faced grave potential consequences,
including three wasted years at the university, the compromising of her ability to obtain
admission at another university and dashed dreams and career prospects. Presentation
of her case at the disciplinary inquiry was a matter of some factual and legal complexity.
It was, therefore, rightly accepted that legal complexities and potential seriousness of the
consequences of an adverse finding entitled Ms Dyantyi to adequate legal representation
 11

for the duration of the inquiry. See Hamata and Another v Chairperson, Peninsula
Technikon Internal Disciplinary Committee and Others [2002] ZASCA 102; 2002 (5) SA
449 (SCA) para 21.

[25] Ms de Vos and Mr Makgalemele represented Ms Dyantyi over the 12 days of the
disciplinary hearing up to 11 October 2017. The transcript of the proceedings up to then
came to over 700 pages. In such circumstances, the role of the instructing attorney
(and his or her candidate attorney) is usually more of an administrative and logistical
nature. There was no reason to believe that this was not the position in this matter.
Thus, the rulings deprived Ms Dyantyi of the services of two counsel steeped in the
matter. Moreover, they did so at a crucial stage of the proceedings, when Ms Dyantyi was
about to testify and to otherwise present her case. The suggestion of the university that
Ms Dyantyi should have proceeded with only the assistance of Mr Mdabe and the
candidate attorney was quite unreasonable in the circumstances. It would have been
difficult to obtain the services of counsel willing to act pro bono and able to properly
prepare within the 10 working days between 11 October and 26 October 2017. And after
the ruling of 24 October 2017 that was virtually impossible. This caused prejudice to
Ms Dyantyi that could only have been justified by powerful considerations. That was
especially so because all of this could have been avoided by the simple expedient of
setting down the matter for 29 and 30 November and 1 December 2017, which dates
were not unreasonably distant.

[26] What had to be placed on the other side of the scale? Nothing really, apart from
the general principle that student disciplinary proceedings should be finalised with
reasonable expedition. As I have demonstrated, the proctor gave no reasons for any of
the rulings. It was a recurring theme in the answering affidavit in the review application,
deposed to by the in-house legal advisor to the vice-chancellor, that Ms Dyantyi had no
defence to the charges and throughout employed delaying tactics. But the prosecutors
said nothing of the sort at the time, no doubt because they had no justification to say so.
 12

[27] As I have said, Mr Milo did not at the time explain why the university regarded it
as imperative that the proceedings be concluded by 30 October 2017. In the said
answering affidavit, the following explanation was offered:
‘162.1 The urgency to concluding the matter by 30 October 2017 was grounded in the fact that
the University semester was coming to an end and the University would be entering its semester
SWOT week period.

162.2 During this time the University does not generally schedule any events or disciplinary
hearings, but reserves that time for academic engagements and examination preparation. This
ground of urgency is not unique to the applicant’s disciplinary hearing but applies generally to the
University’s disciplinary process.’
But that could only (possibly) have been a reason to not have a disciplinary hearing during
the week from Monday 30 October to Friday 3 November 2017. In the circumstances it
must be accepted that there was no compelling reason to conclude the disciplinary inquiry
before 30 October 2017.

[28] It remains to address two findings that the proctor made in his judgment on the
merits. In the first place, he recorded that Mr Sangoni had contacted Mr Mdabe when the
hearing resumed on 26 October 2017 and that the latter confirmed that there would be
no appearance by and on behalf of Ms Dyantyi. When asked whether ‘there was any
reason that he wished to advance for their absence’, Mr Mdabe said that the reasons
were set out in the postponement application. The proctor proceeded to say:
‘In the result, I was satisfied that Ms Dyantyi and her legal representatives had waived their right
to participate further in the proceedings.’

[29] This finding was plainly wrong. It did not follow from the recordal that Ms Dyantyi
had waived the right to participate further in the hearing. Mr Mdabe’s reference to the
reasons put forward in the postponement application indicated quite the contrary, namely
that the refusal of the postponement tainted the proceedings with fundamental unfairness.
In line herewith, and with what Ms de Vos had foreshadowed in her address on
11 October 2017, the court a quo made the following finding, which was rightly not
challenged before us:
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‘Having resisted such a postponement, albeit unsuccessfully, both the applicant and her legal
team decided not to engage in the disciplinary proceedings as they had already formed a view
that the refusal by the third respondent to postpone the matter to 29 November 2017 was
unreasonable.’

[30] Secondly, the proctor held that from the outset Ms Dyantyi had no intention of
testifying in her own defence. This finding was gratuitous and wrong. Ms Dyantyi’s
legal representatives repeatedly stated without question that she would testify (she was
excused from the hearing on more than one occasion to prepare for her testimony,
particularly on 9 October 2017) and she had not been called upon to answer such a
proposition. Had this motivated the rulings, they would have been affected by a
gross misdirection.

[31] In the particular circumstances of this case, a proper balancing of the relevant
considerations would have dictated that the inquiry had to be postponed to the dates on
which counsel for Ms Dyantyi were available. The failure to do so violated Ms Dyantyi’s
right to procedural fairness under PAJA. It follows that the court a quo should have
reviewed and set aside the decisions. Costs should follow this result in both courts,
including the costs of two counsel.

[32] In accordance with the notice of motion in the review application, counsel for
Ms Dyantyi asked that the matter be remitted to the university ‘for reconsideration before
another proctor’. In the light of the findings of the proctor in respect of credibility and
otherwise, the disciplinary proceedings should not continue before him. In my view,
however, the proposed direction in this regard should allow for the lapse of time and
possible changed circumstances. The matter should be remitted to the university for
reconsideration in its discretion, on the condition that any continuation of the disciplinary
inquiry against Ms Dyantyi should take place before another proctor.

[33] For these reasons the following order is issued:

1 The appeal is upheld with costs, including the costs of two counsel.
2 The order of the court a quo is set aside and replaced with the following:
 14

‘(a) The decision of 10 October 2017, convicting the applicant on charges of

kidnapping, assault, insubordination and defamation, in terms of rules 4.3 and 4.17
(a) and (b) of the first respondent’s Student Disciplinary Code, is reviewed and set
aside.
(b) The decision of 17 November 2017, sanctioning the applicant by
permanently excluding her from the first respondent, in terms of rule 7.27 (b) of the
first respondent’s Student Disciplinary Code, and making various ancillary orders, is
reviewed and set aside.
(c) The matter is remitted to the first respondent for reconsideration on
condition that any continuation of the disciplinary inquiry against the applicant shall
take place before another proctor.
(d) The first respondent is directed to pay the applicant’s costs, including the
costs of two counsel.’

_______________________
C H G VAN DER MERWE
JUDGE OF APPEAL
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Appearances

For appellant: A de Vos SC (with her O Motlhasedi) (heads also

prepared by S Wilson)
Instructed by: SERI Law Clinic, Johannesburg
Webbers Attorneys, Bloemfontein

For 1st and 2nd respondents: I J Smuts SC (with him N Molony)

Instructed by: Eversheds Sutherland (SA) Inc., Johannesburg
Lovius Block Inc., Bloemfontein