Du Toit v Human NO [2023] ZAWCHC 270
ADMINISTRATIVE – University – Disciplinary findings
Expulsion after urinating on fellow student’s desk and possessions – Effect of alcohol consumption – Testimony on statements made by student to effect that this was what white students do to black students – Procedure followed by disciplinary committee in accordance with Disciplinary Code and meant to be inquisitorial and informal – Procedure adopted by appeal committee also in terms of the Code – Appeal committee did not merely adopt the findings of disciplinary committee but made its own findings in terms of its wide powers of appeal – Application for review dismissed.
Facts: Mr Du Toit (applicant) is a first year LLB student at the University of Stellenbosch and a resident at the university’s residence known as “Huis Marais”. At around 4am one Sunday morning he entered the room where a fellow first year student, Mr Ndwayana, was sleeping. Applicant urinated on Mr Ndwayana’s desk and belongings which were on the desk. When asked what he was doing, he is alleged to have said he was “waiting for someone, boy.” He also allegedly said that “It’s a white boy thing.”
Application: For the review and setting aside of the decisions of the Central Disciplinary Committee (CDC) and the Disciplinary Appeal Committee (DAC) of the university, made against the applicant.
Discussion: The meaning and structure of the university’s Disciplinary Code; the process and notices preceding the CDC hearing; that Mr Ndwayana decided not to testify as a witness; the drinking culture at the university and the testimony that the Huis Marais residents and students were allegedly notorious for being involved in disciplinary matters; whether applicant’s excessive consumption of alcohol on the relevant night and early morning was wilful; that the CDC found that applicant contravened clause 9.3. of the Code in that his conduct was unfairly discriminatory, insulting and caused mental harm and humiliation to Mr Ndwayana; that the CDC expelled the applicant immediately from the university; that the DAC found that the urination charge alone was sufficient for expulsion because it was deeply humiliating, degrading to Mr Ndwayana and also destructive of Mr Ndwayana’s property; and that the DAC found that even if it was wrong on the outcome of charge 3, namely, the alleged racist utterance by applicant, expulsion was the appropriate sanction in terms of clauses 2, 37.11 and 37.12 of the Code.
Findings: The procedure followed by the CDC was in accordance with the Code and was meant to be inquisitorial and informal. The procedure adopted by the DAC was also in terms of the relevant provisions of the Code. The DAC did not merely adopt the findings of the CDC but made its own findings in terms of its wide powers of appeal. Once the DAC found that the admission by the CDC of the written statements by the victim was permissible under clause 37.5 to 37.10 of the Code, there were no remaining rules of evidence that could be used to declare the statements inadmissible in a forum where the CDC was at liberty to adopt an informal procedure not akin to a court of law. The issue of the applicant’s subjective intention is irrelevant to the common cause fact that the urination assailed the human dignity of Mr Ndwayana. Conduct in which a white student used a black student’s desk and possessions as a toilet and with impunity, proceeded to state and imply, that it is in keeping with the conduct of white students towards a black student, causes impairment of the dignity of the black student and must be objectively, racist.
Order: The main application is dismissed.
ALLIE J (CLOETE J in a separate concurring judgment)
* See from para [448] on the fundamental distinction between appeal and review proceedings.
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FAMILY – Maintenance – Variation
Maintenance during divorce proceedings following two court orders – Respondent received inheritance of R1,7 million – Applicant seeking that orders be set aside because respondent no longer required maintenance – Court concerned with means and financial support that respondent was accustomed to for past eleven years – Maintenance as per the two orders not varied – Respondent’s conduct in not disclosing inheritance before second judge deserving of censure – Uniform Rule 43(6).
Facts: The applicant is an ophthalmologist and is married to the respondent, a housewife, who instituted divorce proceedings against him. He is defending the divorce action. The respondent sought and was granted by Collett AJ, by way of Uniform Rule 43 proceedings, maintenance for herself, contribution towards legal costs and various orders relating to the needs of their minor children. The applicant had been paying the respondent R15,748.24 as a stipend or salary on a monthly basis. After the order of Collett AJ for maintenance of R10,000 he paid that instead of the stipend. Respondent approached the court again and Stretch J varied the order of Collet AJ to provide for the monthly payment of R25,748,24.
Application: Seeking to set aside the order of Collet AJ and varied by Stretch J. The variation sought is on the grounds that applicant discovered that respondent received R1,715,802.92 and failed to disclose this information before Stretch J. Applicant contends that the respondent no longer required maintenance after receipt of that large sum. He further submitted that the non-disclosure of that material fact before Stretch J meant that the respondent had received judgment in her favour on falsified facts.
Discussion: That the applicant argues that the maintenance orders are no longer necessary for the upkeep of the respondent and contends that he is in financial distress and unable to afford his day-to-day living; that he contends that the respondent knew that her allegations were false and were made with the intention of misleading the court into believing that she had financial difficulties when in fact she had none; that the respondent admitted that she received R1,715,802.92 as inheritance from her late mother’s land claim which was instituted against the Land Claims Commission; and that she states that she has not been employed for approximately 11 years as she was focusing on raising the minor children born of their marriage, while applicant is an eye surgeon who has considerable wealth and trusts under his control with multiple properties owned by those trusts.
Findings: Stretch J gave effect to what was intended by Collett AJ as evinced in her judgment. This court will have no basis in law to interfere with that order because the payment of a stipend or salary accords with the position prior to the institution of divorce proceedings. The order simply preserved the status quo ante the divorce proceedings. Collett AJ decided that in addition to the stipend the respondent required maintenance in the amount of R10,000. The obligation for the payment of R15,748.24 emanates from the spousal obligation. It has nothing to do with the inheritance that the respondent received. This court is concerned with the means and the financial support that the respondent was accustomed to for the past eleven years.
Non-disclosure of inheritance: Stretch J ordered the applicant to pay the amount of R41,496.48 and it appears that this payment was sought urgently on the basis that the respondent was in financial distress hence it had to be paid within a few days after the order was made. The evidence proves that she was not in financial distress at that point as she was already in possession of the inheritance sum. The respondent was obliged to mention the sum of inheritance especially where she deposed to an affidavit pleading poverty. Her conduct is deserving of censure.
Order: The order of Collet AJ is reinstated and provides for payment of R25,748.24 per month and the order of Stretch J is varied such that the part of the order for payment of the R41,496.48 is set aside and the respondent shall forfeit 50 % of the costs granted in her favour on an attorney and client scale.
NORMAN J
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Road Accident Fund v Madiba [2023] ZAGPPHC 1807
RAF – Writ of execution – Interdict
Fund seeks to stay operation of writs and to interdict sheriff from removing or selling its property – Mr Madiba and his firm represent plaintiffs claiming from Fund – Alleged that Mr Madiba is involved in forgery of claimants’ signatures, representation of claimants without those their knowledge and altering accident reports in order to lodge claims – Pending outcome of Part B Mr Madiba and his firm are interdicted from executing the writs of execution and sheriff is interdicted from removing or selling Fund’s movable property.
Facts: Mr Madiba practices as an attorney under the style and name of Ntshosa Phineas Madiba Incorporated. Mr Madiba and his firm represent plaintiffs who wish to claim damages from the Road Accident Fund (RAF). Writs were executed on court orders obtained by Mr Madiba and his firm, on behalf of their clients, against the RAF.
Application: The RAF seeks urgent interim relief to stay the operation of all the writs issued at the instance of Mr Madiba and his firm. The RAF also seeks to interdict the sheriff from removing its movable property or selling its property pursuant to any writ of execution issued, or which may be issued in future, at the instance of Mr Madiba or his firm against it.
Discussion: That the RAF alleges that Mr Madiba is involved in the forgery of claimants’ signatures, the representation of claimants without their knowledge and the altering of accident reports in order to lodge claims; that the RAF’s motivation is that it administers public funds, which must not be spent fruitlessly and wastefully and it seeks to protect its main function, which is to pay compensation to victims of road accidents and “the money must actually reach those victims”; that in Part B, the RAF asks that the Legal Practice Council (LPC) be directed to launch an application to appoint a curator ad litem and a curator bonis to administer claims of persons represented by Mr Madiba and his firm, pending the outcome of the LPC’s suspension application launched against Mr Madiba; and that the RAF has laid 15 charges against Mr Madiba with the police for, among other things, forgery and impersonation of an attorney.
Findings: The RAF has a prima facie right to protect, as a custodian, public funds from being misappropriated. The RAF is not only a bearer of a right in this regard but also has a public obligation to protect funds from being spent fruitlessly, irregularly or wastefully. The RAF has shown, largely on an uncontested basis, a reasonable apprehension of harm in the event the relief is not granted. The balance of convenience favours the RAF. There is some debate whether importing the principles of an interim interdict is appropriate or, rather, whether it is a discretion in the broadest sense that is being exercised under Uniform Rule 45A. The RAF has made a case under either approach.
Order: Pending the outcome of Part B, Mr Madiba and his firm are interdicted from executing (and issuing instructions to the sheriff to do so) all present and future writs of execution against the RAF, including (but not limited to) the listed cases. The sheriff is interdicted and restrained from removing the RAF’s movable property or selling movable property pursuant to any writ of execution issued, or which may be issued in future, at the instance of Mr Madiba and his firm against the RAF.
DE VOS AJ
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