The
three applicants are students at the second respondent university
with the first applicant being a final year student of Politics and
Public Management while the second and third applicants are second
year students majoring in Development
Studies.
On 22 April 2016 they were each served with a letter of suspension
from the university dated 11 April ...
The
three applicants are students at the second respondent university
with the first applicant being a final year student of Politics and
Public Management while the second and third applicants are second
year students majoring in Development
Studies.
On 22 April 2016 they were each served with a letter of suspension
from the university dated 11 April 2016 and signed by the first
respondent.
The
suspension letters, which are worded the same, read:
“RE:
SUSPENSION FROM MIDLANDS STATE UNIVERSITY
It
has come to my attention that you breached Ordinance No.2 of 2000 in
that you are alleged to have posted a message on a Social Medial
Platform, Whats App, calling on other students to go on an illegal
demonstration. In terms of section 8(3)(d) of the University Act, I
do hereby suspend you from the University pending your appearance
before the Student Disciplinary Committee to answer the above stated
charges. During the period of your suspension you are not allowed to
visit any of our campuses without my permission and a breach of this
condition shall constitute another act of misconduct for which you
will be duly charged.
Yours
sincerely
Professor
N. M Bhebhe
Vice
Chancellor.”
That
way the three applicants were excluded from the University and have
not attended any lectures or participated in any activity pertaining
to their University education. Significantly, there is no indication
in the suspension letters what the duration of the suspension is and
when the Disciplinary Committee will sit to determine their cases. A
month has since lapsed since the administrative action was taken and
still nothing has happened. The applicants remain on suspension.
Meanwhile, life on campus goes on with the other students enjoying
the benefit of education to the exclusion of the three applicants who
have now filed this urgent application seeking the following relief:
“TERMS
OF THE FINAL ORDER SOUGHT
IT
IS HEREBY ORDERED THAT (SIC)
That
you show cause to this Honourable Court why a final order should not
be made in the following terms;
FINAL
ORDER (SIC)
1.
That the decision of 1st
respondent, in his capacity as the Vice Chancellor of the second
respondent, to suspend all the three applicants, be and is hereby
declared unlawful and is accordingly set aside.
2.
That the letters of suspension be and are hereby declared null and
void and of no force or effect and are hereby set aside.
INTERIM
RELIEF GRANTED
That
pending the confirmation of the Provisional Order, the applicants are
granted the following relief (sic);
1.
That the decision by the 1st
respondent to suspend all three applicants, dated 11th
April 2016, for alleged breach of unspecified sections of Ordinance
No.2 of 2000 be and is hereby suspended.
2.
That the decision to bar the applicants from visiting any of the
respondent's campuses be and is hereby set aside.
3.
Pending finalization of this matter, 1st
and 2nd
respondents be and are hereby ordered to allow all three applicants
to sit and write their end of semester examination(s).”
The
applicants admit having received a WhatsApp message encouraging
students to attend a protest in Zvishavane at the beginning of the
semester, on 17 February 2016, to express displeasure at the
University's decision to open a satellite campus in Zvishavane for
a number of reasons set out in the message. The message had gone
viral on social media and they say all that they did was to pass it
on to their friends.
This
was in February 2016.
When
the semester commenced there was no such protest and nothing really
came out of that message. Indeed, the University authorities also did
not act upon it until 22 April 2016, more than two months later, when
they served suspension letters on the applicants, which suspensions
have not been prosecuted. As it is now, end of semester examinations
have commenced having started on 19 May 2016. The suspensions mean
that the applicants cannot take those examinations which is
prejudicial to them in a big way. Failure to take the examinations
would mean that they would have to repeat and would be unable to
progress to the next stage of their studies. In the first applicant's
case, he will not graduate.
Section
8(3)(d) of the Midlands State University Act [Chapter 25:21]
provides:
“Subject
to sub-sections (4) and (5), the Vice Chancellor may expel or
suspend, indefinitely, or for such period as he may specify, any
student or group of students.”
Subsection
(4) of that section, which is of peremptory application, makes it
clear that the Vice Chancellor shall not expel a student for
misconduct unless the student has been found guilty of misconduct by
the Student Disciplinary Committee in terms of section 27, while
subsection (5) requires any decision of the Vice Chancellor, made in
terms of subsection (3), to be ratified by the University Council.
We
have not been told if such ratification was done….,.
I
have already made reference to the provisions of section 3(1) of the
Administrative Justice Act [Chapter 10:28] which require
administrative authorities to act lawfully, reasonably and fairly at
all times and to section 68(1) of the Constitution which makes it a
Constitutional imperative for every person to receive prompt,
efficient, reasonable and impartial decisions in administrative
conduct. As stated by MAKARAU JP…, in U-Tow
Trailers (Pvt) Ltd v City of Harare and Another
2009 (2) ZLR 259 (H)…., it is no longer business as usual for all
administrative authorities as there has been a seismic shift in
Administrative Law.
In
any event, apart from the right to administrative justice being a
fundamental right enshrined in the declaration of rights, Chapter 4
of the Constitution, the right to further education, contained in
section 75 of the Constitution, is also a fundamental right. What has
however occurred in this matter is that those rights have been
negated through the conduct of the first respondent.
While
the first respondent has power to suspend a student, that power must
be exercised within the framework of the law, a law which recognizes
the right of the applicants to administrative justice, a concept
which is now embedded in our Constitution. Its elements are that
official decisions must be lawful; rational, in that they must comply
with the logical framework created by the grant of power under which
they are made; consistent, fair in that they should be arrived at
impartially in fact and appearance giving the affected persons an
opportunity to be heard; and be made in good faith in the sense that
the official making the decision must act honestly and with
conscientious attention to the task at hand having regard to how the
decision affects those involved. See Telecel
Zimbabwe (PVt) Ltd v Potraz and Others
HH446-15.
It
was never the intention of the framers of section 8(3)(d) of the
Midlands State University Act [Chapter 25:21] that the first
respondent would merely suspend students on unproven allegations and
then do nothing about the suspension even though the section would
seem to allow a suspension “indefinitely”. Surely, an indefinite
suspension without a hearing cannot be lawful. This is particularly
so where the suspension is to facilitate the convening of a
disciplinary committee to deal with the student.
In
my view, the power of suspension should be exercised in accordance
with administrative justice. The delay in bringing the applicants
before a disciplinary committee offends against the element of
administrative justice requiring prompt, efficient and reasonable
conduct. This is so because you do not just send a student home
indefinitely while others are learning and in the process prevent him
or her from taking examinations. There was a failure of
administrative justice which has greatly prejudiced the applicants.
The
moment his preliminary points failed, counsel for the respondents
conceded that the applicants are entitled to relief on the merits. He
added that the respondents would like a final order to be made as a
provisional order would not serve any useful purpose in the
circumstances; a position which counsel for the applicants also
embraced. For that reason, the grant of a final order is by consent
of the parties.
In
my view, the concession by counsel for the respondents was properly
made.
It
occurs to me that there is a discernible readiness to unnecessarily
pull the trigger and in the process play havoc to the Constitutional
rights of students. To begin with, the whatsapp message complained of
cannot possibly be said to be offensive at all even if it had been
generated by the applicants, of which it was not. What the author was
doing was to mobilise support among students to protest against what
was considered as an unreasonable decision by the University
authorities to shift students to Zvishavane a little town with
inadequate infrastructure and the scarcity of accommodation.
So
what?
The
decision which was being resisted was not made by God but by humans
who had not consulted the affected individuals. Zimbabwe, being a
democratic country, it was therefore the democratic right of those
affected to protest and demonstrate their revulsion at such a
decision. How then could it be said that the mobilistaion was
“illegal”? Section 61 of the Constitution guarantees freedom of
expression, that is to say, that individuals have the freedom to
seek, receive and communicate ideas and other information. Why then
should a University be seen to be working to stifle student rights
when it was established with progressive objectives including:
“…,
the advancement of knowledge, the diffusion and extension of arts,
science and learning, the preservation, dissemination and enhancement
of knowledge that is relevant for the development of the people of
Zimbabwe through teaching and research, and, so far as is consistent
with those objects, the nurturing of the intellectual, aesthetic,
social and moral growth of the students at the University.”
The
second respondent should not only be a doyen for intellectual
interaction but also a wonderful laboratory for freedom of expression
and free flow of information. Those values are suppressed if the
authorities remain engrossed in a time capsule propagating archaic
controls and methods of instruction where students are removed from
campus for expressing their views. It is unthinkable that someone can
still sleep soundly at night after excluding a student from school
and sitting for an examination when that student has not been found
guilty but is accused of sending a harmless whatsapp message.
In
the result, it is ordered that:
1.
The decision of the first respondent to suspend all the three
applicants, by letters dated 22 April 2016, for alleged breach of
sections of Ordinance No.2 of 2000, is hereby suspended.
2.
The decision to bar the applicants from visiting any of the
respondents' campuses is hereby set aside.
3.
The first and second respondents are hereby directed to allow all the
three applicants to sit and write their end of semester examinations.
4.
The first and second respondents are directed to allow the applicants
to take those examinations which they have already missed during the
holding of the university supplementary examinations.
5.
The first and second respondents may continue with the disciplinary
action against the applicants, if any, not before the expiration of a
period of 14 days after the completion of the supplementary
examinations.
6.
Each party shall bear its own costs.
