In March 2017, in a disciplinary hearing overseen by invigilator attorney Wayne Hutchinson, Rhodes University charged student Yolanda Dyantyi with kidnapping, assault, insubordination, and defamation.
It was part of the 2016 edition #RUReferenceList event and an incident in which three male students were held against their will, in which the university discovered that Dyantyi was involved.
In November 2017, in a disciplinary investigation into the same matter, she was found guilty of disciplinary charges and was permanently expelled from Rhodes and banned from attending university. The hearing was held in his absence and that of his legal representatives. However, no criminal case has been opened against her.
At the Supreme Court of Appeals on Monday, lawyer Anna-Marie de Vos, who represents Dyantyi, and lawyer Izak Smuts, who represents Rhodes University and Vice-Chancellor Sizwe Mabizela, argued disciplinary hearings which led to Dyantyi’s exclusion from the university.
De Vos argued that Dyantyi was not allowed to state her case and present evidence at her disciplinary hearing after overseer Hutchinson set dates her attorneys could not set.
“Yolanda was treated unfairly at the disciplinary hearing because the overseer postponed the start of her testimony to a date when the two attorneys who presented her case were unavailable,” De Vos said.
“We also submit that he did so without weighing the harm caused to Yolanda against the harm caused to the other parties if the case awaited his lawyers. The chairman of the disciplinary hearing did not even give reasons for choosing to do so, even after Yolanda filed a formal request for a postponement.
Hutchinson said he was unable to provide information on this.
In defense of the institution’s decision to proceed with Dyantyi’s disciplinary hearing in his and his attorney’s absence, Smuts told the court that time was limited to complete the disciplinary hearing and that Dyantyi’s attorneys were not available because they wanted to go to a conference in New York, which the supervisor considered unacceptable.
“Part of the unavailability was attributed to the fact that there was an attractive conference in New York, the availability of the other respondent was also a relevant concern. The date proposed by Dyantyi’s lawyers was at a time when the university was preparing for Swot week – a week off for students to revise their study materials usually in preparation for exams. Dyantyi chose not to attend the debates and was boycotting them,” Smuts said.
In a counter response, De Vos disputed the allegation that Dyantyi’s lawyers wanted to attend a conference in New York, saying the lawyers were representing Dyantyi pro bono and had other business to attend in Gauteng on the date. set by the supervisor.
De Vos said: “Dyantyi did not boycott the proceedings. It would have been pointless for her to attend without her legal representation.
Dyantyi said she expected the process to allow her to be represented by counsel and to have her right of reply recognized. However, she was never present at the hearing, which led to her subsequent exclusion from the university, which she said was an injustice.
“The university, by order of the vice-chancellor, did everything they could to silence me and hold me accountable for acts that I was not authorized to question. I was sentenced and permanently expelled from the university in my absence and that of my legal representatives. I am fighting for my right to a fair trial,” Dyantyi said.
Since her exclusion, Dyantyi has been determined to defend herself and fight against what her lawyer called “an overzealous university that decided to prosecute her, convict her and expel her, no matter what.”
In December 2019, Dyantyi approached the High Court in Grahamstown to overturn the outcome of the disciplinary hearing in a request for review. This request was rejected in March 2020 and Dyantyi was ordered to pay the university fees.
In April 2020, the Institute for Socio-Economic Rights filed an appeal on Dyantyi’s behalf, echoing his argument that the postponement of the disciplinary hearing to a day when his legal representatives were unavailable resulted in an unfair disciplinary process.
Rhodes University objected to the request and it was to be debated September 7, 2020which was postponed to September 11, then to September 17.
In a judgment of September 17, 2020The Eastern Cape High Court has ruled that Dyantyi’s application for leave to appeal “is granted and it is hereby ordered that it be heard by the Supreme Court of Appeal and that costs shall be in the because of the appeal process”.
The Supreme Court of Appeal reserved its judgment. DM