Benyon v Rhodes University (5351/2016) [2016] ZAECGHC 161; [2017] 4 BLLR 423 (ECG) (21 November 2016) per MJ Lowe J.

 A university lecturer who had resigned sought to interdict a formal disciplinary hearing arising from alleged hate speech, but failed to prove that his contractual rights were breached.  The high court declined an  interdict and refused to halt disciplinary proceedings because the employee alleged there had not been proper compliance with the contractual policies and that the University instituted the disciplinary action in bad faith.  But it was held he failed to provide any factual basis for claims.

With regard to practice and procedure and urgent applications the test for final relief was restated.

Excerpts

. . . . .

[3]        The origin of this matter rests in the fact that applicant is a major male lecturer in Information Systems and a Warden of Piet Retief residence at Rhodes University, Grahamstown, in terms of a contract of employment concluded on 28 September 2007.  That contract of employment is subject to the conditions of service attached thereto, the staff member undertaking to abide by the rules and regulations of the University as articulated in the Policies and Procedures thereof to which he was referred and was bound to abide by the requirements of the Disciplinary Code of the University (“the Code”).

[4]        The Code was annexed to the papers and in relation to disciplinary procedures for dealing with incidents of unfair discrimination and/or harassment (which include hate speech charges) the Code must be read in conjunction with the Policy on Eradicating Unfair Discrimination and Harassment (“the Policy”) which outlines the role of the Fairness Forum (“the Forum”), which is encapsulated in a further document headed “Policy on Eradicating Unfair Discrimination and Harassment”.

[5]        On 14 October 2016 applicant unwisely saw fit to send out two “tweets” on “twitter”, a form of social media reading as follows:

“#FeesMustFall your parents believed the ANC would deliver free stuff.  Now you believe the EFF the same.  Stupidity is clearly hereditary.” (Sic)

and

“Those agitating for free tertiary Education #FeesMustFall are the product of free secondary education.  Clearly you get what you pay for.”

[6]        This event had been preceded by certain incidents at the University between October 2015 and April 2016, in which latter period applicant had been somewhat involved, he maintaining that his life had been threatened and that his family had been prevented from leaving the University campus, he further maintaining that various demonstrators (as he referred to them) had forced their way into his residence.

. . . . .

[9]        In due course on 8 November 2016 applicant was handed a “Notice to attend a disciplinary hearing” by an ad hoc prosecutor for the University, in which he was charged with a single charge being

“Hate Speech”: this relevant to the social media postings referred to above, the thrust of which was the fact that the words utilised “could reasonably be construed to demonstrate a clear intention to hurt, harm or incite hatred or prejudice towards a person or group of people on prohibited grounds including but not limited to race, culture, social origin and ethnicity.”

[10]      Applicant contends that prior to this he had attended a meeting inter alia with second respondent a Mr Peters, the Director of Student Affairs and the Dean of Commerce, which meeting did not raise, so it was alleged, any issue concerning disciplinary proceedings.

[11]      The charge preferred against him was a level 3 offence, being a dismissible offence.

[12]      The disciplinary hearing was to be convened on Monday, 14 November 2016 at 10am, the University appointing an external adjudicator therefore.

[13]      To cut a long story short, this Court was approached urgently, the hearing was temporarily interdicted affording the parties the opportunity of arguing this application as one of urgency, applicant seeking in the application to interdict and restrain the University from holding a disciplinary inquiry in respect of the charges against him without first having complied with the disciplinary Code and particularly without having first complied with the procedures set out in the Policy, and particularly the process envisaged therein in respect of the Fairness Forum.

[14]      To summarise what I regard as the relevant complaints made by applicant in the founding papers, amongst some irrelevant material, applicant avers that at a meeting with the University Vice Chancellor, he had been informed that at a meeting held on Friday, 11 November 2016 and after receipt of applicant’s attorney’s letter, the Vice Chancellor had received advice that the University had no case against him and charges should be withdrawn forthwith but that second respondent was adamant that the charge would proceed against him, she being of the view that there was a valid charge and that the relevant procedures had been completed.

He suggested that the proceedings had been wrongfully and maliciously set in motion by laying an invalid charge against him in breach of the Policy and the Code.  It is alleged that the University is bound by the Code together with the Policy to be read therewith in respect of this charge, and that a Fairness Forum meeting was mandatory in this regard, that he had not been called to lead any evidence before such a Fairness Forum and that the indications were that this Forum had not met and dealt with the social media messages which underlay the charge.

He argued that it was necessary that a formal complaint be lodged, this not having been done, and that complainants had a number of options open to them.  In short it was suggested that the proceedings were invalid as was the charge.

. . . . .

[23]      In argument the University’s Counsel suggested that the basis of his claim was not in fact contractual, the crux of the matter relating either to the proper interpretation of the Code which he referred to as a collective agreement, alternatively to non-contractual complaints.  He conceded however, again correctly in my view, that if the failure relied upon amounted to a Fairness Forum not having been convened in any real sense at all, other than in compliance with the Code, this would amount to a contractual breach of applicant’s entitlement.

He argued, however, that there had been proper compliance or substantial sufficient compliance with the requirements of the Code and the holding of a Fairness Forum preparatory to his having been charged, and that in any event there was no prejudice to applicant having regard to the disciplinary process still to take place, and that he could raise the procedural argument at such hearing.

[24]      I have no doubt, from what follows, that the basis of applicant’s claim, as pleaded, was unequivocally expressed as relying on his contractual entitlement and the breach thereof, and was not based on any other cause of action, let alone fairness.  applicant made no suggestion in his founding affidavit that the matter was based on the issue of fairness or on the basis of the Labour Relations Act 66 of 1995, and disavowed this expressly in reply.

[25]      Further, I am of the view that the claim, as it has been pleaded before me, stands or falls on its contractual basis, and that accordingly this Court has jurisdiction to hear the matter.

. . . . .

The proper approach to final interdictory relief

[26]   The requirements for a final interdict are:

    • a clear right;
    • injury actually committed or reasonably apprehended;
    • no other suitable alternative remedy.

. . . . .

[31]      As in this matter, as neither party has suggested the referral of disputes to oral evidence, I am entitled to deal with the application on the undisputed facts.  Thus if notwithstanding that there are facts in dispute, I am satisfied that applicant is entitled to relief in view of the facts stated by respondent together with the facts in applicant’s affidavits which are admitted or not been denied, I am entitled to make an order giving effect to such finding.  The onus plays no role in this.

In so doing a robust approach may be taken in certain circumstances to decide the issues on the affidavits.  This must be cautiously adopted as the disputes on affidavit in application should not be settled on the probabilities solely.  In practice a robust approach is adopted only while the allegations on one or other side are so clearly false or intrinsically improbable that a court could say that an oral hearing would not disturb the balance of probabilities.  Civil Procedure in the Supreme Court: Harms B56-B-64.

[32]      In this matter, although trite, it is necessary to state that in an application, applicant must in the founding affidavit set out sufficient facts to disclose a cause of action, this forming not only the pleadings but also providing the evidence upon which the applicant relies.  Put otherwise the founding affidavit must contain sufficient facts upon which the court may find in his favour.  This means that the founding affidavit must make out a prima facie case.

Normally an applicant stands by his founding affidavit.  It follows that an applicant is not permitted to introduce new matter in reply except within a very narrow ambit and is entitled to ignore or strikeout matter in the replying affidavit that should have been contained in the founding affidavit.  An important consideration is whether the applicant was in possession of the new facts when the founding affidavit was prepared or whether the answer broadened the issues.  Finishing Touch 163 (Pty) Ltd v BHP Billiton Energy Coal South Africa Ltd and others  2013(2) SA 204 (SCA) at [26].  It is worthwhile stating that the discretion to allow new matter in the reply will be granted only in exceptional circumstances.

[33]      A principle which is on occasion overlooked, however, arises in Administrator, Transvaal, and others v Theletsane and others 1991(2) SA 192 (A).  In this matter the majority in the Appellate Division refused to decide a dispute of fact in favour of the applicants in the court a quo on the basis of the allegations contained in the answering affidavits filed on behalf of respondents.  This was said to be on the basis that to do so would be tantamount to reversing the onus of proof.

The respondents had obtained an order reinstating them in their positions of employment on the ground that they had not been afforded a hearing prior to their dismissal.  On the day after the reinstatement order was made they reported for work and were each subject to an interview and again dismissed for a second time.  Applicants applied to court again for an order declaring their dismissal unlawful on the ground that they had not been afforded a hearing.

A further order of reinstatement was granted by the court below.  The answering affidavits filed on behalf of respondents alleged that the interview had been in the nature of a hearing and set out facts in support of the allegation that this had indeed constituted a proper hearing.

The majority of the court held that respondents in the court a quo should not be prejudiced by having the matter decided against them on the basis of their own affidavit simply because they had chosen to do more than was necessary in order to answer the allegations of the respondents.  The only case made out by applicants had been that they had not been afforded a hearing of any kind at all, an allegation that the court found farfetched and absurd.

. . . . .

[36]      In this context, the Theletsane principle cannot be overlooked.

The following was said by Botha JA at 196F–J:

“In the main judgment it is said that the respondents are entitled to make out a case for relief on the appellants’ own averments if the latter provide a proper foundation for relief.  As a general proposition I accept that that is so.  However, when the proposition is applied to the particular circumstances of the present case, my approach differs fundamentally from that which is reflected in the main judgment.

Part of the reasoning in the main judgment may, for ease of reference, be stated as follows: the appellants were not specifically required to deal with the form of the hearing given, but they chose to deal fully with the events of the day in question, not only to show that the respondents had been afforded a hearing, but also that the hearing had been a proper and fair one; consequently they will not be disadvantaged or prejudiced if their affidavits are relied upon to determine not only whether a hearing took place, but also the nature and ambit thereof; and in considering the appellants’ affidavits the test is whether they are reasonably capable of being interpreted in such a way that they raise a valid defence to the relief sought by the respondents, ie that the respondents were given a fair hearing in relation to why they should not be dismissed.

With respect, I am wholly unable to subscribe to this manner of approaching the appellants’ affidavits.  It was not for the appellants to show that the respondents were given a proper hearing; they were called upon only to meet the specific allegations put forward by the respondents in support of the relief claimed.

The appellants were required to answer a case founded on the allegation of fact that the respondents were not given a hearing; they were not called upon in any other way to raise a valid defence to the relief sought.

In particular, for instance, the question whether the hearing given was unduly limited in its scope was not an issue to which the appellants’ deponents were required to address their minds.  It is not permissible to consider the appellants’ affidavits in isolation, divorced from the context of the case which they were answering.  To the extent that the appellants’ deponents went further than may have been necessary to answer the case as presented, it cannot be postulated a priori that they will not be prejudiced if their affidavits are relied upon to determine the nature and ambit of the hearing that took place.  To do so may be unfair to the appellants and in effect is tantamount to reversing the onus.

Another part of the reasoning in the main judgment may be stated as follows: the fact that the appellants’ affidavits are not consistent and unequivocal concerning the nature of the hearing given does not preclude a consideration of the affidavits with a view to determining the true case being put forward by the appellants; when dealing with the equivocality evident in the affidavits one should adopt ‘a robust, common-sense approach’ in deciding what case is being put forward in them; that involves that due regard must be had to the probabilities; at the same time, due consideration must be given to the possible advantages of viva voce evidence as a means of elucidating or resolving equivocal statements; and regard must be had to the substance and true meaning of the affidavits, disregarding if necessary words or phrases totally inconsistent therewith.

With respect, I again find myself wholly unable to accept this manner of approaching the affidavits.  It negates the incidence of the onus; it fails to give due effect to the contextual setting of the affidavits as being an answer to the case put forward by the respondents; and it may lead to the drawing of conclusions which are unfair to the appellants.

The ‘true case’ put forward by the appellants was that the respondents had been given a hearing before their dismissal; it was no part of the appellants’ case to anticipate and counter possible unstated contentions concerning the supposed inadequacy of the hearing given, with reference to its precise nature and ambit.  It is not permissible to base factual findings regarding such contentions on a mere weighing up of probabilities.  I do not wish to comment on the statement that in considering the affidavits one should adopt ‘a robust, common-sense approach’; there is no need for me to do so.

For my purpose it is enough to say that in motion proceedings, as a general rule, decisions of fact cannot properly be founded on a consideration of the probabilities, unless the Court is satisfied that there is no real and genuine dispute on the facts in question, or that the one party’s allegations are so far-fetched or clearly untenable as to warrant their rejection merely on the papers, or that viva voce evidence would not disturb the balance of probabilities appearing from the affidavits.

This rule, which is trite, applies to instances of disputes of fact (see eg Sewmungal and another NNO v Regent Cinema 1977(1) SA 814 (N) at 818G–821G and the authorities discussed there) and also in cases where an applicant seeks to obtain final relief on the basis of the undisputed facts together with the facts contained in the respondent’s affidavits (see Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd   1984 (3) SA 623 (A) at 634E–635C and the authorities cited there).

It is clear, in my view, that the room for deciding matters of fact on the basis of what is contained in a respondent’s affidavits, where such affidavits deal equivocally with facts which are not put forward directly in answer to the factual grounds for relief on which the applicant relies, if it exists at all, must be very narrow indeed.

Reference was made above to the onus.  I do not think it can be doubted that in regard to the ‘issue’ (raised in argument, but not on the papers) as to whether the hearing that was given was a proper one, the onus is on the respondents to prove that it was not.

Their Counsel sought to argue to the contrary, contending that a proper hearing constituted a ‘jurisdictional fact’ in relation to the Administration’s power to dismiss summarily.

I do not agree with this view of the situation.  The power of dismissal owes its existence to the contract of service, and it exists independently of the manner in which it is exercised.

In the latter respect, a proper hearing is required by virtue of the principles of natural justice, which are imprinted on the contract because of the relevant legislative provisions, but these bear on the manner of the exercise of the power only, and not on its existence as such.

The respondents’ case is that their dismissal was wrongful and unlawful because of the manner in which they were dismissed.  In accordance with ordinary principles they must establish the facts relating to one or more of the three contentions mentioned earlier in this connection, in order to justify a finding that the hearing was inadequate and that, in consequence, they were dismissed wrongfully and unlawfully.”

[37]      In my view and as will appear later, the approach outlined above is of application in this matter.  Applicant raised pertinent issues in his founding papers as outlined above, but attempted to make out a considerably different case in reply relevant to his initial application and particularly relevant to the fact that he had contended in essence that the Fairness Forum had not met at all, and when faced with the inevitable conclusion that at least there had been a meeting thereof contending, as he had done previously, that not only should he have been heard (a complaint originally made), but that having regard to its composition, certain procedural irregularities and that the decision had already been made prior to the meeting being held, that in fact there had been no meeting at all.

In considering this argument I will bear in mind and apply the approach in Theletsane (supra) having concluded that applicant is limited to advancing his original complaints, and must stand or fall on whether the answer discloses that he was correct in contending that there had been no Fairness Forum meeting held at all in reality, it being so defective as to constitute no meeting at all, alternatively that he had been entitled to lead evidence before the Fairness Forum.

[38]      As to malice, I find no rational basis on the papers therefore on the proper approach thereto, applicant facing simply what he has brought upon himself, by way of at best extremely unwise public media messages.  I stress, that it is not necessary or desirable for me to enter upon whether such messages constitute “hate speech” towards a group of persons on grounds prohibited under section 9 of the Constitution of the Republic of Africa including but not limited to race, culture, social origin and ethnicity.  This is a task for another Forum, but clearly raises matters of considerable importance to the complainants, applicant and the University.

The disciplinary process

. . . . .

[48]      The Policy specifically states that it is to be used in connection with the staff disciplinary Code and procedures.  This constitutes the Fairness Forum and it is made clear that the Forum is not responsible for investigation into the allegations, that being the responsibility of the University prosecutor or representative as Chair of the Forum, and that the Forum is not responsible for making decisions as to whether to proceed with the disciplinary action.  Again this is the role of the University representative/prosecutor “after consultation with the rest of the Forum”.

[49]      It is clear from a proper reading of the Policy and from its very terms that the Forum has an advisory role.  Where the University prosecutor/representative chooses a course of action against the wishes of the Forum the only consequence is that reasons in writing must be provided.

[50]      The investigative procedure dealing with allegations of unfair discrimination require only a formal complaint, a meeting between the University representative and complainant and that the University representative present the evidence to the Fairness Forum which must consider the matter, the University representative after consultation with the Fairness Forum determining if there is a prima facie case to proceed with the disciplinary hearing, where after the process as per the Code proceeds (3.1.6).

[51]      As I have concluded applicant was aware of the investigation and is deemed to have been aware of the Policy and the Code as part of his contract, and in the event that he perceived the allegation as false, he was entitled to make a formal counter-complaint.  This he did not do.

. . . . .

[63]      It is clear, from the Code and Policy that the transgressor relevant to a complaint made, is not in terms thereof, required to be informed of the meeting of the Forum nor did he have any contractually expressed entitlement to lead evidence before the Forum, which he expresses as his entitlement in his founding papers.

[64]      In argument Mr Smuts states that applicant was deprived of his Constitutional right to audi alteram partem, the basis here for not being set out in the heads but in argument, it being suggested this was a common-law entitlement.  It must be remembered, that the complaint made was much more precise than that being contended for, that being that he was not called to lead any evidence before the Forum (paragraph 60).  In my view, that complaint must necessarily fail.

[65]      In answer, Counsel for the University contends that the entitlement to be heard vests in applicant at the stage of the disciplinary inquiry being part of the due process, whilst the consultations and advices of the Fairness Forum occur before the decision to charge being taken and before there is any charge for the employee to meet.  It was argued that there is therefore no prerequisite for consultation with him at that stage in order to constitute a procedurally compliant meeting.

[66]      In my view, there is merit in the submission for the University.  Quite apart from this, any entitlement at common-law to a hearing at the Forum would have to vest in the principles of procedural fairness, that is giving a person an opportunity to participate in the decisions that might affect him crucially, put differently a chance of influencing the outcome of those decisions.

In my view, however, this principle does not oblige the University to furnish a transgressor with the opportunity of leading evidence at its meeting (this being the complaint made).  Quite apart from this, upon the basis that affords this court jurisdiction in the matter, this must turn on the contractual entitlements strictly viewed, not principles of fairness which were disavowed necessarily.