SRC Elections – Final Student Appeal Judgement

Hi everyone. I have realised that the final judgement handed down by the Student Appeal Court does not appear on the Student Court archives. I have therefore copied it here so that if anyone wants to read it it is available. In my reading, the effect of this judgement is that the Stellenbosch SRC election process should begin as soon as possible, but the disqualified candidates cannot run. Judgement below:

31 OCTOBER 2016
In the matter between:
B PIETERS First Appellant
A MALOY Second Appellant
T BESTER Third Appellant
F HENNING Fourth Appellant
J MAASS Fifth Appellant
N VAN NIEKERK Sixth Appellant
S CROUS Seventh Appellant
NEIL DU TOIT Second Respondent
On appeal from: The Student Court, Stellenbosch University
1. The appeal of the first to seventh appellants is dismissed.
2. The order of the court a quo on 5 October 2016 is confirmed.
3. The SRC elections must commence as soon as possible after 30th January 2017.
[1] It must be noted that this appeal is an appeal from the decision of the Student Court handed down on 5 October 2016. It is worth beginning this judgment by setting out very briefly the jurisdiction of the court and the finding of the court a quo. According to section 69 of the Stellenbosch University Student Constitution (hereafter “the Constitution”), this court has the jurisdiction to hear appeals from the Student Court which entails in this context, an appeal of the decision taken on 5 October 2016 by the Student Court of the University of Stellenbosch (hereafter “the Student Court”).1 In this matter, the Student Court was asked to review and set aside the decision of the Election Convenor (“EC”) to disqualify the applicants as candidates for the 2016/2017 Student Representative Council Elections (“SRC). The Student Court found in favour of the respondents and held firstly that the application for the setting aside of the decision of the first respondent to disqualify the applicants as candidates for the 2016/2017 SRC be dismissed. Furthermore, the Student Court held that the elections for the 2016/2017 should commence forthwith.2 It is against the Student Court’s decision that the appellants now appeal.
[2] The appellants arguments on appeal turned on democracy and the reasonableness of the EC’s decision. It must be stated here that the appellants heads of argument and grounds of appeal, as put forward in oral argument, were entirely different from each other and this made it difficult to ascertain the exact premise on which they brought this appeal.
[3] In relation to democracy, not much needs to be said, except that true democracy must necessarily mean that the rules and the procedures for an election must be adhered to. It is not, and can never be, limited to an exercise where there is an appearance of democracy in form but not in substance. South Africa’s recent history violently eschews any suggestion from any quarters that an appearance of democracy will ever suffice. Democracy must take place within the purview of wider considerations and is not limited to holding elections for elections sake. In New
1 This court elected to proceed on the same basis as the Student Court and therefore followed the same procedure. This is line with section 71 (read with section 65) of the Student Constitution.
2 Student Court judgment 5 October 2016 para 30.
National Party v Government of South Africa,3 it was stated that “the mere existence of the right to vote without proper arrangements for its effective exercise does nothing for a democracy; it is both empty and useless.”4 The argument that Stellenbosch University students were prevented from voting as a result of the EC’s decision and this has adversely impacted the concept of democracy in Stellenbosch University is dubious at best. As a result, the appellants arguments that democracy will suffer in Stellenbosch University if the appellants are not able to run are not acceptable to this court.
[3] The appellants argued that the EC did not give reasons for his decision to exclude the appellants from the SRC elections. It must be noted that under the Promotion of Admistrative Justice Act 3 of 2000 (or PAJA) section 5, the right to reasons is not necessarily automatic. Such right can be exercised by requesting reasons. Specifically, section 5(1) of PAJA provides that “[a]ny person whose rights have been materially and adversely affected by administrative action and who has not been given reasons for the action may within 90 days … request that the administrator concerned furnish written reasons for the action.” If the appellants did not request, said reasons from the EC, which according to the facts they did not, then the right to reasons has not been infringed.
[4] The appellants argued that the EC did not request further particulars from the appellants before taking a decision. In this regard, it should be noted that the EC’s action must be measured against the administrative-justice standard of procedural fairness as set out in PAJA and that the appellants did not make out a case in terms of that standard that further particulars were necessary in order to allow them a “reasonable opportunity to make representations” as is required by PAJA. Furthermore, in Mhlambi v Matjhabeng Municipality,5 it was stated that a person taking an administrative decision cannot act as though he is investigating a criminal matter and in that light, the EC acted reasonably and fairly.
3 1999 (3) A 191 (CC).
4 New National Party v Government of South Africa 1999 (3) A 191 (CC) para 11.
5 2003 (5) SA 59 (O).
[5] The appellants also argued that the EC did not take all the relevant factors into account, in particular, he did not take into account the rights of the students who wished to exercise their right to vote and he thus trampled on their rights. In addition, it was argued that he did not take into account the delay that will be caused to the election process by his actions.
[6] This is surely not the case. It is on record that he fully considered multiple factors, given that there were multiple complaints against the appellants. In our view, he was best placed to weigh up all the factors relevant to his decison making as well as the consequences thereof.
[7] In Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others,6 it was held that a court should show respect to a decision taken by someone with expertise where such a decision requires an equilibrium to be struck between a range of competing interests. Similarly, in Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex parte President of the Republic of South Africa and Others,7 it was confirmed that a court cannot interefere with a decision that is objectively rational.8 Quinot usefully explains that “[u]nlike appeal, judicial review is not an open-ended procedure in terms of which an applicant can make any argument to show that the administrator erred in taking the decision. In review there are a limited number of causes of action on which an applicant can approach a court to scrutinise an administrative action. An applicant must frame his or her case in terms of one or more of these causes of action, called grounds of review.”9 It should be mentioned that this Court is not here to decide whether the decision, taken by the Respondent (EC) is correct or not. The primary question on appeal is to determine whether there is any reason to overturn the decision of the Student Court to dismiss the application to set aside the decision of the EC upon review. However, as was pointed out in Bato Star, and highlighted by the Appellants that does not mean that a court should simply rubber-stamp a decision that is unreasonable.10 In our view, the
6 2004 (4) SA 490 (CC).
7 2000 (2) SA 674 (CC).
8 Pharmaceutical Manufacturers Association of South Africa and Another: In re Ex parte President of the Republic of South Africa and Others 2000 (2) SA 674 (CC) para 90.
9 G Quinot “Regulating Administrative Action” in G Quinot (ed) Admistrative Justice in South Africa: An Introduction (2015) 111.
10 Bato Star Fishing para 48.
decison of the EC was rational and will not be interefered with. We are also satisfied, on the record before us, that the EC considered all relevant factors in reaching his decision.
[8] The court a quo was tasked with the responsibility of determining whether the decision taken by the first respondent to disqualify the appellants from the 2016/2017 SRC elections was lawful, procedurally fair and reasonable.11 We thus confirm the decision of the Student Court handed down on 5 October 2016 to the effect that the appeal to set aside the decision of the EC to disqualify the Appellants as candidates for the 2016/2017 SRC elections is dismissed.
Voting for the 2016/2017 SRC Election is to commence as soon as possible after the 30th January 2017, to ensure that all students are back on campus and have registered for the new academic year.
11 Student Court judgment 5 October 2016 para 8.


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