Nkosikhulule Nyembezi
CAPE TOWN - In a human rights affirming decision, the Supreme Court of Appeal ruled on Tuesday that the disciplinary process that permanently excluded Yolanda Dyantyi from Rhodes University in 2017 was flawed and had been procedurally unfair after the university proctor heading the process had denied her a postponement when her legal counsel had not been available to attend.
The hearing had continued in her and her legal counsel’s absence - and despite protestations from academics and human rights activist like myself - found her guilty and permanently expelled her from the institution in a disciplinary hearing of kidnapping, assault, insubordination and defamation for leading a protest action aimed at calling for systemic change to the institutionalised rape culture on campus and the perpetual violence against vulnerable and minority groups, mostly women.
As someone who has spent many years in institutions of higher learning, and who has been actively involved in both the disciplinary processes as well as the reintegration of marginalised student #FreesMustFall leaders back into the academic community to help them complete their studies, I am aware of their ordeal through persecution and discrimination inside and outside lecture halls also by liberal academics meant to provide them with tools and wisdom to become successful future leaders in our society. Yet, there are few and far in-between opportunities to hold universities accountable and demand restorative justice. Hence, the celebration of this court decision.
It did not take long for Rhodes University to find their ace victim of the #RhodesReferenceList anti-rape protests in 2016.
In short order, the student leader was led away by the security guards and the police.
Also in short order, the university issued a statement invoking a two-word phrase that has virtually been holy writ in lecture halls around the country for the past quarter of a century: “There is zero tolerance for unlawful acts of any kind in the university.”
Then followed the disciplinary action and cold expulsion.
It is hard to imagine many law-abiding citizens disagreeing that the acceptance level for students acting in violation of the constitutional rights of others should be non-existent. But the concept of zero tolerance for unlawful political acts of resistance to oppression has come to encompass such a broad range of disruptive actions that roughly 900 university students are suspended each year, and approximately half of those are arrested or given criminal citations.
Many students are hauled off to police station houses for anti-social and political behaviour that, a generation or two ago, would have sent them no further than the faculty dean or university principal’s office.
Have get-tough policies gone too far during the student protests that have engulfed institutions of higher learning in the past decade?
Predictably, opinions are divided. Nonetheless, as experience shows during internal university disciplinary hearings and in court proceedings, the pendulum in some jurisdictions is swinging away from hard-nosed, book-them certitudes toward softer let’s-try-to-reason-with-them approaches.
Otherwise, progressive voices ask, how do we cut the oppressive chains of colonialism and mental slavery in our higher education system without directly affirming the gallant student efforts confronting the legal and institutional systems that continue to perpetuate these?
The answer should be straightforward and affirming to all unless you are Yolanda Dyantyi (Rhodes University), Chumani Maxwele, Alexandria Hotz, Masixole Mlandu, Slovo Magida, Zola Shokane (all from UCT), and a handful of others from other institutions of higher learning in the country.
In the judgment, Judge Christiaan van der Merwe – with Judges Halima Saldulker, Caroline Nicholls, Wendy Hughes and Acting Judge Keoagile Matojane agreeing – have, like other judges who have pronounced on similar matters, courageously criticised the harsh university discipline of casting themselves as the scourge of troublemakers, as Rambos making lecture halls safe for overreaching pursuits like those of Rhodes University.
To some degree, university administrators are like generals who go to battle relying on tactics from the last war.
Zero tolerance for politically unlawful acts kicked into high gear and stayed there after student politically related violence had already entered what would become a steep decline.
In response to the court decision, Rhodes University said it would consider the guidance provided by the SCA and act accordingly as the matter has dragged on for too long, adding that ‘this has never been our wish, we view any offence that involves sexual and or gender-based violence in a very serious light, and we deal with such offences with urgency.’
It is in this urgency that most cases have been dealt with on the basis of guilt until proven innocent, instead of the other way around as demanded by the natural law of justice.
It is not lost on researchers like myself across disciplines that students expelled, suspended or arrested on charges like disorderly political conduct are disproportionately black or disabled mentally or physically.
Researchers talk about a “university-to-unemployment prison pipeline” that runs like this: Young people are suspended from lectures for long stretches or are handed over to the police. As a result, they become prime candidates for quitting university entirely.
Dropping out, in turn, makes them less likely to find jobs and more likely to become part of the permanent jobless class, unable to meaningfully contribute to the national economy as productive members of society.
In my personal experience and reading from numerous reports cataloguing cases at UKZN, UWC, UCT, and other universities where colleagues are at the coalface of these issues, students are routinely denied duly-performance certificates to write examinations, their special exams papers are set too high, and they are marked too strictly in a manner that pushes them to fail and repeat courses if they have the courage to endure.
Perhaps not surprisingly, a sense that university systems and police departments went overboard has begun to take root.
Zero tolerance as a philosophy and approach applicable in political settings is contrary to the nature of adolescent and young adult cognition.
In progressive settings spearheaded in some historically disadvantaged universities, rather than being suspended or put on detention, students facing disciplinary action for political activism are subject to a progressive dispute resolution process that also requires them to write a critical paper about their political conduct, which is then used in a carefully curated reconciliation and reintegration process.
This is in recognition of the collective responsibility of the entire university community to finding lasting solutions to societal challenges in an environment where black voices have been systematically silenced.
Also, in recognition of the fact that, if you just treat people in educational settings with empathy, it’s far better than being so punitive.
Courageously, the judges pierced this veil when they condemned these eyebrow-arching moments, saying it was unreasonable not to grant Dyantyi a short postponement so that her two legal counsel, who had already represented her pro bono in the matter for 12 days, could be present.
Van der Merwe said ‘this caused prejudice to Ms Dyantyi that could only have been justified by powerful considerations. The failure to do so violated Ms Dyantyi’s right to procedural fairness.’
Notwithstanding the need for continued vigilance against all sorts of lawbreaking in institutions of higher learning, there are many of us contending that broad changes are essential to get us into decolonised and transformed spaces to make higher education accessible.
Nyembezi is a policy analyst and human rights activist
Cape Times