Miscarriage of justice is defined as “a failure of a court, tribunal or judicial system to attain the ends of justice” (Good Law Project, 2013., ‘Good Law Guidelines, Principles and Values’).
The fact that we have institutions like Student Court at Stellenbosch University (SU) is surely an admirable thing. But it is one thing to have a court and another to have the officials who run the court system.
The same goes for the fact that we also have a good, progressive constitution in South Africa, but the people who administer the constitution and operates the government system is another thing.
As a postgraduate student on campus, I normally visit the Student Court website of our University so that I may observe how the law is being interpreted and applied by this important student tribunal in cases being adjudicated and settled from time to time.
But honestly speaking, I sometimes get so disappointed with most cases, especially this year.
Especially because this forum is a judicial arm in the trio of student governance, being the executive SRC, the legislative Student Parliament and the judicial Student Court as established by the Student Constitution in Chapters 3, 4 and 5 respectively.
This trio reflects what the 1996 democratic Constitution of the Republic of South Africa provides for: the requirement that the making of laws, the interpretation of laws, and the day-to-day administration of laws should be done by three separate and essentially independent arms of government – the legislature, the executive and the judiciary.
This fundamental principle is followed in all democratic states in the modern world, but ignored consistently in undemocratic states.
The Constitutional Court, in the case of Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution of the Republic of South Africa, 1996 (1996 (4) (SA) 744 paras 106 to 113), has made it clear that this implies a division of powers, even though such a division is not provided for explicitly.
The same goes for the Student Constitution of the SU. In it, the separation of powers is provided for explicitly. The Student Constitution, which is and must be approved by the University Council, requires that there must be three functions of the student government and each with separate and independent powers and areas of responsibility so that the powers of one branch are not in conflict with the powers associated with the other branches.
The typical division has three branches: a legislative branch represented by Student Parliament, an executive branch represented by the SRC, and a judicial branch as represented by the Student Court and the Appeal Court.
This is the trias politica or separation of powers model.
It is meant to prevent abuse of power, ensure checks and balances and ensure the proper constitutional running of student government, transparency, encouraging debates and deliberations among others.
The above model of governance was not unknown in South African pre-constitutional order. It was also applied for in almost all cultures and all countries in the world even earlier, before the civilised modern legal order.
When I studied Legal History modules during my LLB studies, I found that in ancient Greece, Aristotle first mentioned the idea of a “mixed government” or hybrid government in his work ‘Politics’ where he drew upon many of the constitutional forms in the city-states of Ancient Greece. In the Roman Republic, the Roman Senate, Consus and the Assemblies showed an example of a mixed government according to Polybius (Histories, Book 6, 11–13).
In indigenous African customary law, the concept of separation of powers was also known and a good example of this is the Kingdom of Lesotho Government where the king, the prime minister and the chief justice are separate and independent from each other in terms of their functions and responsibilities.
In governments where this basic doctrine is lacking, there is a serious threat to human rights, and such governments are tyrannical and dictatorial.
Even the person who many believe to be the most corrupt president, Jacob Zuma, once said:
“…The principle of separation of powers means that we should discourage the encroachment of one arm of the state on the terrain of another, and there must be no bias in this regard … there is a need to distinguish the areas of responsibility between the judiciary and the elected branches of government, especially with regard to government policy and formulation.”
In this article, I seek to defend the constitutional law’s idea that the role of the judiciary, in our campus’s context the Student Court, is to transform the campus and the student community.
This means that the Student Court judges must be persons with legal background, who follow special procedures as provided in Student Constitution and Rules of Court and who are, above all, independent.
I have noticed in a few Student Court judgements that most students litigants don’t really have confidence in the way Student Court operates.
Some go to the extreme, accusing the Student Court officials of running a kind of a ‘Kangaroo Court’, and some even say the court is biased in favour of the University, as we recently saw on page 1 of Die Matie dated 4 October 2017, where Bernard Pieters of AfriForum accused the recent Court ruling of being “in the interests of SU and not students”.
If this is so, then why do we call the institution a ‘Student Court’ if it is not really for the students?
Before I go too far, let me start by highlighting some important provisions in the Student Constitution about the Student Count. Section 55 of the Student Constitution (version 2014, of which I believe does not really have a good legal basis due to it not yet being approved by Council) provides in paragraph (b) that the Student Court ‘is independent and subject only to this Constitution, which the Court must apply impartially and without fear, favour or prejudice’; subsection (2) further provides that ‘all student bodies must cooperate to ensure the independence, impartiality, dignity and accessibility of the Student Court.’
Compliance and cooperation, OKAY!
Another case that draws much of my attention is Maxwell Mlangeni v Chair of the Student Representative Council and the Executive Committee of the Student Representative Council of which judgement was granted on 4 August 2017, two months before writing this article.
This case judgement was covered in Die Matie on page 3 of issue 10 August 2017 under the title “Student court finds vice-chair suspension invalid: SRC exec ‘abused power”.
In this case, the Court ruled in favour of Mlangeni, but something was terribly wrong with this judgment that could lead any lawyer or reasonable law student to suspect that the judges were somehow biased and acted unfairly and unconstitutionally, since the Student Constitution requires the court to act impartially and with no favour or prejudice, as we read above. Well, the judgment proves the otherwise. In Mlangeni’s case, I believe the applicant, who substantially won this case, was a victim of some judicio-politico conspiracy.
The Court left something in its judgment that resulted in a double victimization of the applicant: no reasonable and certain time clause was included in a judgment!
Such judgment is as if it was never given at all, because no one could comply with it. The judgment contains what in law we call an ‘implicit eternity time clause’, and the applicant is always a victim! Such judgments are normally true manifestations of a conspiracy between the party with a weaker case and the party who can bribe a judge in practice!
There is not even a single civilized court or tribunal ruling on earth where the judge or adjudicator will not give a time clause at the end of his or her judgment so the parties will effectively comply with that court order.
In law of civil procedure, especially in law relating to sentencing and judgments, there must always be a time clause so that the parties could know of the need for timely completion of anything, and in the Mlangeni case, being the time certain for the respondents to issue a public apology as the court ruled.
Mlangeni, by approaching the court, believed that the court will help him obtain justice for the non-patrimonial harm he suffered, and the violation of one or more of his constitutional rights as enshrined and protected in the Student Constitution in Section 14 which provides that:
“Every student whose rights or legitimate expectations are materially and adversely affected by any decision taken by a student body or a member of a student body, has the right to – (a) be notified of the nature and purpose of the proposed action; (b) a reasonable opportunity to make representations; (c) adequate notice of any right of review or internal appeal, where applicable; and (d) request reasons for the decision and to be furnished with written reasons within a reasonable time.’ Also, Section 6 provides that ‘Every student has inherent human dignity and the right to have his or her dignity respected and protected.”
In the Mlangeni case, no time clause was issued in the judgment, and this is a serious error that will render the judgement ineffective and make it difficult to comply with it.
What the court meant was that the applicant, being Mlangeni, must ‘wait for eternity’, and then the written apology will be issued! My goodness, ETERNITY!?
This is a serious infringement of the applicant’s constitutional rights, and, sadly, the right to good administration which includes a right to fair and public hearing within a reasonable time and the right to an effective remedy.
Mlangeni’s ‘implicit eternity time clause’ violated his rights, and the court can be said to have indirectly been in favour of the respondents who technically and substantially lost the case.
The court only ruled that the respondent must issue a ‘written public apology’ to remedy the harm suffered due to the respondents defaming the applicant, and such apology must contain the reasons why he was suspended; but it was never said when the respondents must issue such written apology.
Because of that, today the respondents left the SRC office without complying with the order of the court and this was due to court judgement lacking a reasonable and ascertainable time clause, but instead contained an ‘implicit eternity time clause’ that favoured the respondents who lost the case.
What an appalling denial of justice and a harm the applicant suffered due to the Student Court judgment being an arbitrary, capricious, irrational and senseless decision with no foundational time clause (Mbonani v Minister of Correctional Services and Others 2011 ZAGPPHC 196, 5 October 2011).
The Mlangeni judgement was drafted in bad faith and supposedly with an ulterior purpose or motive, and I so wonder how can the Student Court accuse Mlangeni and his legal representative of something they call an “incoherent and badly drafted” notice of motion and supporting affidavit?
In fact, I believe Mlangeni court documents were drafted much better than a court judgement that lacked such a fundamental thing – a timeframe.
The court, if they were not really biased, were supposed to have placed the respondents on notice that failure to issue a required ‘written public apology’ and ‘written reasons’ in terms of the Student Constitution by a certain date set forth therein court judgement will constitute an incurable breach to Maxwell Mlangeni.
If I were Mlangeni, I would therefore refer the matter to the Appeal Court for proper judgement and argue that ‘time is of essence’ and eternity is a longer period and I won’t then be waiting for eternity.
What a denial of justice Mlangeni suffered!
This is an opinion piece written by Tebogo Sewapa, a Master of Theology research student and a Postgraduate Diploma in Theology graduate at SU. Sewapa also holds LLB degree, and Technikon Certificate in Criminology, TUT, and he worked for the Free Market Foundation of Southern Africa as a legal researcher.