CSG amendments
In order to clarify the process followed in amending the CSG in November 2015, Perdeby inquired with various sources, including several former SRC members, multiple experts on legal interpretation and the Constitutional Tribunal.

In accordance with section 49(1), the CSG may be amended by a two-thirds majority vote by the SRC in a meeting duly constituted for such a purpose and in consultation with the Constitutional Tribunal.

According to another advisory opinion by the Tribunal, when amendments are made to the CSG, the provisions of section 49(1) must be followed. The Tribunal also explained that the two-third majority vote on the amendments must have been taken by the 19 SRC members in office in 2015. The Tribunal concluded by saying “The amendments approved by Council on 24 November 2015 did not follow this process therefore they are, in our opinion, invalid.”

Perdeby consulted with Prof. C. J. Botha, a professor in public law and lecturer of legal interpretation at UP’s Faculty of Law for his legal opinion on the matter. Although Prof. Botha said he didn’t have the necessary time to have an in depth look at the matter from a legal perspective, he explained to Perdeby as the matter appeared on face value. Prof. Botha said that the CSG is part of a larger structure of legislation that governs the functioning of UP. The Higher Education Act that prevails over subordinate legislation empowers the Minister of Higher Education to set out institutional statutes in consultation with universities. UP’s institutional statute in turn gives rise to UP’s institutional rules and the CSG. Any amendments made to the CSG, and in particular by the SRC, must be done by the procedure set out in the CSG and must first and foremost be followed for the amendments to be valid. Prof. Botha further explained that because the procedures for the amendments to the CSG were not followed, the approval of these amendments by Council was invalid.

Further to this, Prof. Botha also referred to UP’s institutional statute and said that according to section 59 of the statute, Council does not have the power to amend the CSG. The Tribunal also added that in their opinion “an interpretation based on the wording of this section [section 59] does not state that Council has the power to amend the CSG at whim [and that] it merely states that every amendment that is made (following the correct procedure as set out in section 49(1) of the CSG) must be approved by Council for it to have legal effect.”

Consulting Prof. Anton Kok, the deputy dean of the Faculty of Law, he explained that Council approved the amendments of the CSG in November 2015, with the specific aim of accommodating the current SRC situation and with the amendments only having effect for the duration of 2016.

Prof. Kok further elaborated on the use of the words “in consultation with”, saying that consensus would have had to be reached between the SRC and the Tribunal in order to send submissions of the amendments to Council for final approval. When asked about the amendment process specifically relating to the powers conferred on Council through UP’s institutional statute, Prof. Kok explained that in his own interpretation of the Statute, and in line with the CSG being subordinate to the statute, this meant that the UP Council could amend the CSG if it saw the need to do so, after consultation with the SRC, and without involving the Tribunal. In Prof. Kok’s view, it would obviously be preferable if all the requirements for amending the CSG as set out in the CSG itself (two thirds majority decision of the SRC in consultation with the Tribunal) were adhered to, but as long as at least the requirement in the statute (consultation with the SRC) was adhered to, Council could validly amend the CSG.

 

Timeline of events: Image: Daimon Sewell

 

 In order to determine the process followed in amending the CSG last year, Perdeby consulted with several 2015 SRC members. According to four former SRC members, the 2015 SRC never intended to amend the CSG. This was confirmed by 2015 SRC members and 2016 SRC presidential candidates, Tumelo Duke Rasebopye and Henrico Barnard. Accordingly, the 2015 SRC never held any meetings for the purpose of amending the CSG. This was confirmed by two other 2015 SRC members, including Karabo Sekhukhuni, the SRC member for academics, and Liezl Aylward, the 2015 SRC deputy secretary.

Rasebopye said that any recommendations submitted by the 2015 SRC were solely on a way forward following unsuccessful elections for the president and deputy president, and not for the purpose of amending the CSG.

Another 2015 SRC member, who wished to remain anonymous but is known to Perdeby, explained that the 2015 SRC had many meetings to discuss the SRC elections. The first meeting of such a nature occurred between the 2015 SRC, the 17 elected 2016 SRC members and UP’s Vice-Chancellor and Principal Prof. Cheryl de la Rey. They said that the follow up meetings never reached full quorum and that the 2015 SRC had varying views on the matter. “These views were all submitted to the DSA for consideration.” The member speculated that only one of those views made it to the Council meeting that took place on 24 November 2015 and that “the reason this view made it to [the Council] meeting was because the elected 17 “2016 SRC” were consulted and they gave a similar view and this was then considered by the [then] Deputy Principal (Prof. Themba Mosia) as the most sound and popular view to submit to Council.”

Perdeby was able to see the recommendations submitted to the DSA on behalf of the 2015 SRC. Out of the three recommendations provided, only one was ultimately reflected in the amendments to the CSG.

According to a UP official, “the process followed in amending the CSG complied with the necessary requirements of the UP’s institutional statute. In amending the CSG, both the 2015 and 2016 SRC were consulted and as such, on 24 November 2015 Council approved the amendments, which were valid in their entirety. The Vice-Chancellor and Principal, Prof. Cheryl de la Rey met with both the full 2015 SRC and the 17 elected 2016 SRC members as well as other student leaders, and after consultation, a way forward was proposed, which resulted in the necessary amendments to the CSG.” Prof. Kok confirmed that the CSG is subject to the authority of Council and therefore Council could amend the CSG if it saw the need to do so, bearing in mind that consultation had taken place with the 2015 and 2016 SRCs.

The UP official stated that “It should be emphasised that the election of 17 of the 19 members of the 2016 SRC was declared free and fair [and that] the voter turnout was 7 455… which is much higher than in previous years.”

The Council, as the highest decision-making authority in the University, again considered the matter of student governance on 16 March 2016 and a Standing Committee of Council will deal with the way forward for student governance in 2016.

 

SRC president and deputy president re-election
According to the amendments made to the CSG, the re-election of the presidential portfolio was to be deferred to early 2016. However, due to the protest action which disrupted activities on campus this year, the re-election could not be held. With examinations only three weeks away it is not likely that it will be possible to conclude the re-election of a president and deputy president in the first semester. A UP official indicated that the “SRC was seen to be functioning well under their acting chairperson, Mr Shingange, who was legitimately elected by the SRC in November 2015.”

 

Meeting minutes
On 11 May 2016, a notice by Prof. Tinyiko Maluleke, advisor to the Vice-Chancellor and Principal, was posted on ClickUP that sought to clarify the status of the 2016 SRC. The statement said that the SRC had been mandated to elect from their ranks an acting chairperson and deputy chairperson to assume the duties of the president and deputy president until such a time a re-election took place. “Accordingly, on 25 November 2015, Mr Thabo Shingange (Deputy Secretary) was elected as acting chairperson and Mr Donovan du Plooy (Secretary) as acting deputy chairperson…” In an interview with Shingange and Du Plooy, it was confirmed that Shingange was elected and assumed the role of acting chairperson.

However, according to a 2016 SRC member who wished to remain anonymous, the meeting to elect the chairperson and deputy chairperson never took place in 2015, but rather, only happened in 2016. The member added that the agenda for the 25 November 2015 meeting were issues that were only discussed in 2016 and that the minutes could have been altered or a mistake could have been made as “the minutes and the content of the minutes of this meeting did not take place on 25 November 2015.” Although the member could not give an exact date on which Shingange was elected as interim chairperson, they suggested that the meeting minutes dated 25 November may have actually been minutes taken on 25 January 2016. The SRC member did confirm that Shingange was the only SRC member to be nominated for the chairperson portfolio. Finally, the member said that although the deputy chairperson was never specifically elected by the SRC, the SRC assumed it to be Du Plooy as he was the secretary and would have ordinarily taken up the position.

The SRC meeting minutes dated 25 November 2016 contain several discrepancies, including the adjournment of the meeting and reconvening of the next meeting dated 26 January 2016. The SRC was not available for comment on the discrepancies in the meeting minutes.

The Department of Student Affairs was also not available for comment on the matter.

 

READ MORE: SRC legitimacy questioned: exclusive investigation into constitutional amendments and CSG transgressions: part 1

 

Related documents:

UP statement clarifying status of the SRC

Constitutional Tribunal advisory opinion on process to amend the CSG

2016 SRC meeting minutes 25 November 2015

 

Image: up.ac.za