The acting president and “interim chairperson”
In terms of section 23(2)(d) of the CSG, during any period of absence of the SRC’s president or deputy president, or where there is any inability for them to perform their duties for whatever reason, the SRC secretary assumes the responsibilities of the president. According to the Tribunal report, a literal interpretation of this provision means that under the circumstances the SRC is currently facing, the absence of the president or deputy president “for whatever reason” meant that SRC secretary Donovan du Plooy should have assumed the role of president. The Tribunal further added that it was brought to their attention earlier this year that amendments were made to the CSG. After exhaustive efforts to obtain a copy of the amended version of the CSG, the amendments were eventually provided to Perdeby by the deputy dean of the Faculty of Law, Prof. Anton Kok. Neither the Tribunal nor the SRC could provide a copy of the amendments.

The amendments allowed the SRC to hold an internal election in which an interim chairperson could be elected. After having obtained the meeting minutes from the date of the internal election meeting, it was found that Thabo Shingange, the SRC deputy secretary, was elected as interim chairperson on 25 November 2015, one day after the amendments to the CSG were approved by the university Council. Shingange was also the only person to be nominated. In terms of the amended version of the CSG, the interim chairperson assumes all the responsibilities of the SRC president, including preparing and presenting quarterly reports to the Student Forum. Further to assuming the responsibilities of interim chairperson, Shingange is also required to uphold his responsibilities as deputy secretary.

During an interview with Shingange and du Plooy, it was found that the internal election facilitated through the implementation of these amendments allowed for the election of an “interim chairperson” and not an acting president. However, Du Plooy explained that after the 2015 SRC election, and with no president or deputy president, he assumed the position of president until the internal election occurred. The internal election was subject to ordinary meeting procedures and in the SRC’s official response, which was confirmed by Shingange, 15 of the 17 SRC members were present for the election. Two SRC members were not present for the election of interim chairperson. When asked how they would respond if the amendments to the CSG proved to be invalid, Shingange and Du Plooy refused to give a direct answer, saying that they would only provide an answer if such an event took place. In the Tribunal’s report, they state that “the current acting president was not lawfully elected due to the fact that his election was in contravention of the provisions of the CSG,” and that, “The failure by the SRC to adhere to this provision constitutes a procedural irregularity.”

According to the SRC, the election of the interim chairperson was communicated to the student body via posts on ClickUP and on the UP website, but Perdeby could not find any evidence to substantiate this.

The Tribunal was not made aware of the amendments to the CSG nor the subsequent internal election which had taken place in November 2015.

 

On 5 May during the student forum, the EFFSC-UP expressed their view that the SRC is not legitimate. On 6 May, Daso and Afriforum both informed Perdeby that they do not accept the SRC as legitimate and are boycotting all SRC activities. Image: Daimon Sewell

 

Questionable CSG amendments
According to the Tribunal’s report, the Tribunal was informed that the CSG was amended to make provision for extraordinary circumstances, such as the one that the SRC found itself this year. The amendments were however never communicated to the Tribunal. Prof. Kok explained that the CSG had been amended in November 2015, with the amendments only having effect for the duration of 2016. Shingange told Perdeby that the amendments were, upon the advice of Council, submitted by the SRC to Council for approval. Shingange confirmed that the SRC had submitted the amendment in the second semester of 2015 with the main purpose of accommodating the missing presidential and deputy presidential portfolios.

Section 49(1), which specifically deals with amendments to the CSG, states that the CSG may only be amended by a two-thirds majority vote by the SRC in a meeting specifically constituted for such a purpose, and in consultation with the Tribunal. In its report, the Tribunal stated that it was never consulted on any amendments to the CSG. Furthermore, at the time of Perdeby’s first enquiry with them, the Tribunal had not been provided with a copy of the amended CSG. When asked why the Tribunal was not consulted on the amendments as prescribed by the CSG, Shingnage explained the timing faced by the SRC to make a submission to amend the CSG and that, at the time of submission, the Tribunal was not in the Roosmaryn Building and that there was some difficulty in contacting them.

Shingange added that, because of this reason, the SRC decided to bypass the Tribunal and instead obtained legal advice from a member at the Faculty of Law, whom they did not wish to name. When asked why the 2016 Tribunal had not yet been given a copy of the amendments, Shingange said that he could not answer the question. In an official response from the SRC it was stated that the SRC was not in a position to account for the matter, but that an inquiry had been made.

Upon receiving the amendments, the Tribunal said that they questioned the validity of the amendments as they were not made in compliance with Section 49(1). Prof. Kok explained with specific reference to the CSG that the words “in consultation with” meant that in amending the CSG, consensus would have had to be reached between the SRC and the Tribunal before the amendments could be submitted to Council for approval. Prof. Kok further explained that, in his own interpretation of the UP institutional statute and in line with the CSG being subordinate to the statute, the UP Council could amend the CSG if it saw the need to do so. Prof. Kok added that the bigger question on the matter would be whether Council had the power to condone or ratify noncompliance with the procedure set out in the CSG for amendments to be made on it.

 

Screenshot of the update to the CSG amendments. Image: up.ac.za

 

In addressing the matter of the need to amend the CSG, Shingange explained that in the SRC’s interpretation of Section 23(2)(d), the CSG did not make provision for the current situation where a president and deputy president were never properly elected, and that the CSG only referred to a situation where the presidential and deputy-presidential portfolios become vacant following successful elections. However, the Tribunal stated that in their interpretation of the CSG, the phrase “for whatever reason” applied to this particular situation and that, as originally provided for, the secretary should have automatically assumed the position of president.

The Tribunal further added that their first major concern with the amended CSG was that it was not made available to the greater student body, which is also in contravention of section 15. This section states that every student has the right to be informed within a reasonable time of any decision made by the SRC on any matter that affects the students’ rights and interests. The Tribunal also noted that the amendments to the CSG were only placed on UP’s web page on 3 May 2016, after Perdeby requested these documents on 29 April 2016. According to Shingange, the amendments to the CSG were communicated to the student body, and were specifically communicated via ClickUP.

All reports and related documents to the investigation can be found on Perdeby’s website. Perdeby is continuing its investigation and further findings will be published in our next edition.

 

Screenshot of a part of the amendments made to the CSG. Image: up.ac.za

 

 

During the course of the investigation, Perdeby queried many inconsistencies in the SRC’s conduct with the Constitution for Student Governance (CSG). These queries were accordingly taken up with the Constitutional Tribunal and SRC, respectively. The following is a detailed list of inconsistencies which were inquired upon and proved to be inconsistent with the CSG.

Note that all instances of “section” refer to the relevant section of the CSG.

 

Inauguration irregularities
According to section 28(4) of the CSG, all members of the SRC are required to attend a compulsory ceremony to accept their oaths of office and be sworn in as full SRC members. All compulsory training of newly elected SRC members may only commence after the oaths of office are taken. According to the Tribunal’s report on the inauguration of SRC members (dated 11 January 2016), all except four SRC members were inaugurated on 7 January 2016. Three of the members that were not present at the time were inaugurated at a later stage. However, the Tribunal added that the SRC member with the portfolio for day students and external affairs, Anleo Jansen, had not been inaugurated. Jansen ran for the SRC as an Afriforum candidate. Thabo Shingange, the elected deputy secretary and current interim chairperson, said that although not all the SRC members were inaugurated on the same date, all members were eventually inaugurated before their training had commenced. On 5 May 2016 and after Perdeby’s inquiry into Jansen’s inauguration, the Tribunal informed Perdeby that Jansen was in fact not inaugurated and was only scheduled to be inaugurated on Monday 9 May. In an interview, Jansen explained that he was not at the initial inauguration ceremony because he was abroad at the time. He further explained that he had already signed all the “legal paperwork” in the presence of DSA staff members Mzikazi Noholoza, the head of student governance, and Dr Willem Jorissen, the deputy director of student affairs. In response to a Perdeby query, the Tribunal said, “It remains, however, that he was not inaugurated as an official SRC member, therefore he may not assume the full role of an SRC member until he has been inaugurated.” Jansen said he had not taken his oath of office in the presence of a Tribunal member (as required by the CSG) because the Tribunal had only contacted him on 5 May and that “their side of the work [had] not yet been done.” The Tribunal’s response to this was that “inaugurations, in terms of section 26(4) of the CSG, … [are to be organised] by the DSA, [and] the Tribunal reminded him as a courtesy, and not by obligation.” On 6 May Afriforum confirmed that Jansen had not been inaugurated at the time of going to print.

 

SRC website and communication
In accordance with the CSG, the SRC uses several platforms to communicate with students, of which the SRC website is one. The SRC member holding the portfolio for marketing, media and communications, Nobungcwele Mbem, said, “The SRC is meant to have its own SRC website. However, [I] do not have access to it [as of yet].” Perdeby also found that the current SRC page on the UP website did not reflect the 2016 SRC, but rather the 2015 SRC. In 2015, this issue brought about the #WhosMyPresident Twitter uproar that saw students expressing their concern about the incorrect information placed on the UP website pertaining to the 2015 SRC. Upon inspection of the SRC page on the UP website, it was found that none of the SRC portfolios had been updated to reflect the current 2016 SRC. The SRC’s official response to this was that it did not have access to the website and could therefore not make the necessary updates. However, they added that the SRC was working toward getting access to the website before the 5 May Student Forum. The SRC said that the portfolio member responsible for the website did not receive the necessary training to manage and update the website, although provisions were made to access the website in the meantime. At the time of going to print, the SRC web page on the UP website had still not been updated.

 

Student Forum
Further inquiry was made into the quarterly Student Forum meetings. The CSG mandates that a Student Forum at which the SRC reports back to the student body must be held once per quarter. In terms of section 41(2)(a), quarterly reports for the Student Forum must be made available on ClickUP and notice boards across all campuses two weeks prior to each Student Forum meeting. The first Student Forum meeting was scheduled for 23 April 2016, but was postponed to 5 May 2016. Quarterly reports pertaining to the meeting were not provided two weeks before the 5 May 2016 meeting. The SRC failed to mention the exact dates that these reports were made available, but did say that they were readily available for all students via a Google Drive folder accessible by a link that was shared to social media. Perdeby found that the link to these reports was shared on Facebook for the first time on 1 May 2016, four days before the Student Forum. The SRC further added that invitations to the Student Forum were sent out on 21 April 2016, with an event being created on social media platforms and posters being put up on campus.

 

Complaints procedure
In terms of the CSG, any student may submit a written complaint of alleged breach of the code of conduct by any SRC member to the office of the director of the Department of Student Affairs. The director thereafter requests the Tribunal to investigate the matter and submit a report to the director. After receiving the Tribunal’s report, the director makes a decision based on the following:

• If the complaint is clearly unfounded, the director may dismiss it and informs the complainant as such.

• If the director makes a finding that a serious breach of the code of conduct was committed, the director may make an appropriate order which may include a fine.

The person may be requested to vacate their seat.

• If the director considers the breach to be a transgression of the university’s Disciplinary Code, they may refer the matter to the University disciplinary committee for students, which will act in accordance with its power.

 

 

SRC legitimacy questioned: context surrounding the issues
Due to the complex nature of the above investigation, the following context is given with regard to several matters concerning the SRC, its election, the CSG, and the Constitutional Tribunal.

 

The CSG
The Constitution for Student Governance, commonly referred to as the CSG, is the internal governing legislation for all students and student structures at UP. All student conduct, including that of the SRC, must adhere to the CSG. Furthermore, all constitutions, regulations, rules, codes, documents, motions and decisions adopted by any student body are subject to the CSG. Any inconsistency with the CSG renders such conduct invalid and void. The CSG reinforces the vision, mission, UP’s 2025 strategic plan and value of UP and the code of conduct for all students. Among other objectives, the CSG aims to establish a platform that is open to every student to participate in student governance, to uphold the values of commitment, excellence, fairness, integrity and respect within the student body and student structures, and to promote a culture of academic excellence, diligent leadership, and student participation in all facets of student governance. Finally, the CSG is subject to the Higher Education Act, the institutional statute of UP, and the authority of the university Council.

 

The Constitutional Tribunal
The bench of the Tribunal is composed of undergraduate law students (who are at least in their penultimate year of their LLB degree) and postgraduate law students. It comprises a Chief Justice, Deputy-Chief Justice, Registrar, one senior judge, and 12 other judges. The Tribunal was established in terms of the CSG and replaced the Student Court on 1 January 2008. The Tribunal exercises its powers in terms of the CSG and its own internal constitution. Any student or student structure may approach the Tribunal, which can align any constitution of a student structure with the CSG, give non-binding advisory interpretations of the CSG, adjudicate any disputes arising from the CSG, and investigate any alleged breach of the code of conduct as set out in the CSG.

 

The 2015 SRC elections
The election for the 2016 SRC was held on 1 September 2015. The election was marred by controversy surrounding the election process and, in particular, the election of the 2016 SRC president. In late 2015, Perdeby reported that when the preliminary results of the election were announced, Sasco, EFFSC-UP and Afriforum Youth protested against the results on the basis that the correct procedure was not followed. On 2 October, the Independent Monitoring Body (IMB) declared the elections free and fair, but added that there would be a re-election held for the portfolios of president and deputy president. The election was initially scheduled to take place on 27 October 2015, but was deferred to 4 November 2015 and then postponed to early 2016. No re-election for these portfolios has been held.

 

Current structure of the SRC
Due to irregularities, the portfolios for SRC president and deputy president were left vacant. Although there have been numerous attempts to hold a second election for these portfolios, the election has not yet occurred. The SRC currently consists of the eight elected portfolio members and excludes the SRC president and deputy president portfolios. The responsibilities of president are currently being performed by the SRC deputy secretary, Thabo Shingange. As a result of this, the current SRC executive committee comprises of only three portfolios (instead of four): the secretary, Donovan du Plooy, the deputy secretary, Thabo Shingange (currently also serving as interim chairperson), and the treasurer, Nomtha Gobe.

 

Official Documents and Reports:

Constitutional Tribunal Report: Investigation into alleged contravention of the Constitution for Student Governance by the Student Representative Council

Constitutional Tribunal Report: Perdeby Inquiry

CSG amendment provisions – approved by Council on 24 November 2015

Report of the Constitutional Tribunal on the inauguration of the 2016 SRC

SRC meeting minutes dated 25 November 2016 (election of interim chairperson) 

 

Image: Stefan Stander