Speech by JC Heunis SC, President of the Convocation of the University of Stellenbosch, on the occasion of the 2019 Annual General Meeting of the Convocation
Toespraak deur JC Heunis SC, president van die Konvokasie van die Universiteit Stellenbosch, by geleentheid van die Algemene Jaarvergadering van die Konvokasie, 2019
“If you have tears, prepare to shed them now.” – Julius Caesar, William Shakespeare
From a governance perspective, these are dark days indeed for Stellenbosch University.
From the perspective of the administration of justice at the highest possible level, these are dark days for South Africa.
It was with a sense of utter disbelief and astonishment that we had to learn that the rector had telephonically contacted, on a number of occasions, one of ten judges who presided over a matter in which the rector himself was the first respondent, to discuss with him the possibility of making himself available as a candidate for the position of chancellor of the university before the matter was argued and after it had been argued but before judgment was handed down.
The rector’s response to the appointment of Judge Burton Fourie to investigate the matter, as reported in Die Burger of 24 October 2019, that he had accepted Judge Cameron’s initial response that he was not available for the position and that there was no further contact between them until after Judge Cameron was informed in writing that his nomination as chancellor was acceptable to the applicants in the Constitutional Court case against Stellenbosch University, is not correct.
For example, he called me on the morning of 26 August 2019 and during the course of the conversation and in response to a question by me, told me that he had spoken to Judge Cameron a couple of times during the past two weeks. That was the reason why I reported the matter to his legal representatives. If he denies this, then the question is why did he make the call? If the answer is to tell me that Judge Cameron would be available if the applicants had no objection – they never gave their approval – then how did he know that?
In any event, the contact between him and Judge Cameron subsequent to Judge Cameron’s acceptance of the nomination but before judgment was handed down in the matter was also highly irregular.
“But Brutus is an honourable man.” (Julius Caesar, William Shakespeare)
It was also with a sense of shock that we learnt that the judge in question not only took the phone calls from the rector but, while the case was pending and before judgment was handed down, arranged to meet, and met, with the rector.
All of this is significantly aggravated by the fact that the judge was responsible for the Constitutional Court’s unanimous judgment in that matter and that even before judgment was handed down, he was elected as the next chancellor of this university.
It gets worse. Not only did the rector seemingly approach Judge Cameron with the blessing or knowledge of one or more members of his management team and one or more members of the University Council, itself the second respondent in the matter before the Constitutional Court, but one of the members of the Council similarly spoke to Judge Cameron while the matter was pending and judgment awaited about his possible candidacy for the position of chancellor, on which occasion, as is apparent from a letter which he subsequently wrote to Judge Cameron, he was seemingly given the green light by the judge to go ahead and attempt to persuade him to accept the nomination.
Of course we raised this matter, serious as it is, with the Chief Justice, saying, as we did, that the developments evidenced irregular and inappropriate conduct on the part of the judge who wrote the Court’s judgment, and requested him to indicate what he intended to do about it. After eleven days the Chief Justice responded nonchalantly and non-specifically that “(t)he procedure to be followed whenever a Judge finds himself or herself in a potential conflict of interest situation were complied with in this matter”.
Of course this raised more questions than answers. In fact, it was no answer at all.
We accordingly wrote to the Chief Justice and Acting Chief Justice asking for particulars of the procedure of which it was said that it had been followed and of how and when the aforesaid procedure was complied with in the matter. This letter was dated 6 November 2019 and we have yet to receive a response thereto. Hopefully we will get one when someone on Constitution Hill mercifully realises that the boil has to be lanced and the facts have to be faced.
I say this because article 13 of the Code of Judicial Conduct provides as follows:
“A judge must recuse him- or herself from a case if there is a –
real or reasonably perceived conflict of interest; or
reasonable suspicion of bias based upon objective facts, and shall not recuse him- or herself on insubstantial grounds.”
Significantly note 13(i) provides that recusal is a matter regulated by the constitutional fair trail requirement, the common law and case law.
Note 13(iv) provides that if a judge is of the view that there are no grounds for recusal but believes that there are facts which, if known to a party, might result in an application for recusal, such facts must be made known timeously to the parties, either by informing counsel in chambers or in open court, and the parties are to be given adequate time to consider the matter.
According to Die Burger of 24 October 2019 the rector responded as follows:
Ek het beslis nie met die regsproses ingemeng nie. Ek is tevrede dat ek in absolute goeie trou opgetree het en dat die verkiesingsproses korrek verloop het. Trouens, regter Cameron se nominasie vir Kanselier het voortgegaan met die instemming van Gelyke Kanse.
This is simply not correct. The judge’s nomination as chancellor did not proceed with Gelyke Kanse’s approval.
The first point that has to be made is that the fact that he had variously been approached by at least the rector and a member of the Council of the university was never disclosed to Gelyke Kanse by Judge Cameron. It was disclosed to me during the rector’s ill-advised telephone call, a development which I virtually immediately reported to the university’s lead counsel that very same morning.
The fact that Judge Cameron had requested an indication as to whether there would be an objection from the applicants in the matter if he were to be nominated as a candidate for the position of chancellor was conveyed to me by my opposite number, not the judge, a day or two later, and with his knowledge and consent I informed the judge as follows:
- It so happens that a number of alumni who have links with Gelyke Kanse themselves considered nominating you as a candidate for that position but, in the final analysis, decided against it because we concluded that it would not be appropriate to approach you in that regard in view of the fact that you are a member of the Court who is seized of the matter involving Gelyke Kanse, on the one hand, and the University, on the other.
- Be that as it may, this serves to inform you that there will be no objection from the parties which I represent in that case to your acceptance of a nomination as candidate for the position of Chancellor to Stellenbosch University.
Article 13 of the Code of Judicial Conduct was clearly not complied with in the present instance, particularly if regard is had to the fact that the legal representatives of the applicants in the matter were never informed by the judge himself, or the Chief Justice, of the fact that the former had been approached by respondents in the matter. We found that out only after the case was argued, before judgment was handed down, because it was naively brought to our attention, clearly without the knowledge of his own legal representatives, by the rector himself in an obvious attempt to advance Judge Cameron’s candidacy.
These developments are particularly serious, especially if one bears in mind that the public at large and the applicants in the court proceedings learned the full extent of the contact between De Villiers and Cameron and Cameron and Meiring only after the Constitutional Court judgment, authored by Judge Cameron, was handed down.
It was, after all, only when the judgment had been delivered and it became apparent that the judge had dismissed very powerful facts and arguments put up by the applicants on very flimsy grounds indeed, that the correspondence between him and the rector and Advocate Meiring was called for.
Only then did the full extent of the contact between the rector and the judge and a Council member and the judge became apparent.
To provide some perspective as to exactly how inappropriate this conduct was, I would mention that on occasion before the matter was argued, both lead counsel enquired whether they could have a telephonic discussion with Judge Cameron regarding aspects of the logistics of the case, the reason for attempting to speak to him about it being the fact that he was previously appointed by the Chief Justice, as senior judge, to attend to some aspects of the administration of the matter. Judge Cameron declined to take the call from the two advocates of the opposing parties, yet, on the rector’s own showing, he took several calls from him, a party to the proceedings, while the case was pending, and also arranged for a meeting between the two of them.
This will not go away. It cannot be swept under the carpet. It has all the makings of a major scandal embroiling not only the university but the highest court in the land.
Of course it is to be welcomed that Judge Burton Fourie was appointed to investigate the matter; if anything his brief should have been wider to include the possibility that other members of the rector’s management team knew of the approaches as well as Council members who approached, or knew of approaches to, Judge Cameron since the Council was, after all, a party to the proceedings by virtue of the chairman being the second respondent.
Of course, the upshot of this is that the court’s judgment is irredeemably tainted. We will not accept that justice was done and it certainly was not seen to be done. This means, of course, that these developments, in conjunction with the myopic decisions of the Senate and the Council to effectively dispense with Afrikaans as a language of instruction, have now finally resulted in Afrikaans no longer being a language of instruction at this university, except, of course, in the Afrikaans Department, much like French in the French Department.
Ten spyte van al hierdie gebeure het die rektor in Die Burger van Saterdag 19 Oktober 2019 onder meer soos volg geskryf: "Ons glo ons kan die land ten beste dien as 'n nasionale bate wat toeganklik vir almal is, nie 'n insulêre enklawe wat agter 'n taalgordyn toegetrek is nie."
Waarvan praat die rektor? Niemand wil die universiteit agter 'n taalgordyn toetrek nie. Al wat verlang word, is dat die taal van die meerderheid van die bevolking van die Wes-Kaap en van die meerderheid van die meerderheidsbevolkingsgroep van die Wes-Kaap 'n primêre taal van onderrig met gelyke status aan Engels aan die Universiteit Stellenbosch sal wees.
Hy sê ook:
"Aan die US bly Afrikaans een van ons twee onderrigtale – om grondige pedagogiese redes. Sowat 8 000 studente dui jaarliks steeds aan Afrikaans is die medium wat hulle ten beste toegang tot die US se kennisbronne gee, en dit is hoekom ons ons aanbod daarin voortsit – op innoverende maniere wat niemand uitsluit nie."
Hierdie veralgemening is gewoon nie waar nie. Hoekom luister die rektor nie na wat Frederick van Dyk, verlede jaar se primarius van Helshoogte, en Tiaan Alberts, vanjaar se primarius van Dagbreek, sê en skryf nie? Daar kom van Afrikaans as onderrigtaal, soos ons voorspel het, in die praktyk niks tereg nie.
Nogtans sê die rektor, hierdie keer by geleentheid van die bekendstelling van die Eerste Leerstoel vir Afrikaans by die universiteit, dat dit “loutere snert” is dat die universiteit Afrikaans die rug toegekeer het en dat die geleentheid 'n herbevestiging daarvan is dat die universiteit voortgaan om Afrikaans as onderrigtaal te bevorder.
Hierdie tipe stelling is soortgelyk aan die bewerings in die voorsitter van die Raad, George Steyn, se eedsverklaring in die Konstitusionele Hof-saak waar hy by herhaling sê dat die nuwe taalbeleid nie 'n beduidende afskaling van die gebruik van Afrikaans as onderrigtaal aan die universiteit te weeg sal bring nie.
Dit is nie wat die Konstitusionele Hof sê nie. Regter Cameron sê byvoorbeeld in paragraaf 6 van die uitspraak onder meer die volgende:
Although the University disputed that the 2016 Language Policy “invariably” reduces Afrikaans tuition – claiming “it merely reconfigures it” – this is not so. The 2016 Language Policy effectively gives preference to English in circumstances the Policy specifies.
In die daaropvolgende paragraaf sê hy die volgende:
The practical effect is that, while undergraduate classes are still generally offered in Afrikaans, Afrikaans has lost its position of primacy. Instead it is placed on a sandy footing where the deluge of English predominance, both local and global, could well destabilise and eventually topple it.
Of course, if he had regard to the replying affidavits, which he declined to do, he would have known better still. He would have known, for example, that the rector told Council member Johan Theron that the university was destined to become an English university.
Volgens Regter Froneman beteken die uitspraak in praktiese terme onder meer dat eerstetaal-Afrikaanssprekendes wat Afrikaans verkies, voorgraads afgewaterde onderrig in Afrikaans in verskillende variasies sal ontvang. Andersins sal dit in Engels wees. Op nagraadse vlak sal hulle onderrig slegs in Engels ontvang.
Die hof wou nie na getuienis kyk wat in repliek, en nadat die nuwe Taalbeleid in werking getree het, aangebied is nie en waarvolgens dit duidelik blyk dat vir alle praktiese doeleindes Afrikaans, afgesien van in die Departement Afrikaans, nie meer 'n taal van onderrig aan die universiteit is nie.
Elders sê regter Froneman dat hierdie standpunt landwyd herhaal word en dat “(e)erstetaal-Afrikaanssprekendes wat Afrikaans verkies, [...] by die Universiteit Stellenbosch afgewaterde onderrig in Afrikaans [sal] ontvang en onderrig in Afrikaans met Engelse vertaling by die Potchefstroom-kampus van die Noordwes-Universiteit”.
Dit volg hy op met die volgende stelling:
Mens benodig nie internasionale studies nie, waarvan daar vele is, om te besef dat hierdie stand van sake Engels as dominante taal bevestig, nie net op tersiêre vlak nie, maar, soos ons sal sien, ook vanaf laerskool na hoërskool tot by universiteit. Menings mag wissel oor die wysheid hiervan, maar dit is seer eienaardig dat hierdie Hof, die uiteindelike bewaker van minderheidstaalregte ingevolge die Grondwet, sy goedkeuring daaraan gee.
Vervolgens sê hy ook:
Die derde, mees kommerwekkende, gevolg is vir die hoofsaaklik swart en bruin mense op die laagste sosio-ekonomiese skaal van ons samelewing. Hulle woon die swakste toegeruste skole by, beide in befondsing en personeel, in die landelike en stedelik gemarginaliseerde gemeenskappe en word die meeste benadeel deur slegs Engels as hul keuse van onderrig. Hulle ontvang onvoldoende moedertaalonderrig wanneer hulle hul opvoeding begin en die Engelse onderrig is ook dikwels van ‘n swak gehalte.
He continued as follows:
The evidence before us shows that Afrikaans is the home language of a significant proportion of brown people in the Western Cape (and also the Northern Cape). It also shows that they are predominantly working-class people and that many of them are not proficient in English. Statistically they are the smallest of all population groups proceeding to tertiary education. Poverty means that it is more difficult for them than for most even to aspire to tertiary education. And if they do get that far, they have only one university to go to in the Western Cape where Afrikaans may be chosen as a medium of instruction. Now, when they arrive at Stellenbosch, they will find that their choice of medium of instruction is not as comprehensive as those more privileged students who choose English. The grim message that seems to be sent to this segment of extremely marginalised brown people is that, if they are to be accommodated, they need to grow out of poverty and learn English fast.
There is something deeply disturbing and wrong about this.
And yet he agreed with the outcome of Cameron’s judgment!
World-renowned expert on universities, Phil Altbach, posed the question: What is an academic community? He responded as follows to his own question: “It includes a sense of generally shared academic values along with the commitment to a university, to colleagues and to students.”
If this is true, then at governance level Stellenbosch University is the antithesis of an academic community.
For example, I cannot use the university’s database to communicate freely with alumni or members of the Convocation, because everything that I may want to communicate has first to be approved by the rector and the chairman of the Council. Censorship in the 21st century in an open democracy at a universitas magistorium et scholarium.
The last time I spoke to the latter and asked him how he was, he swore at me, said that he was not obliged to tell me how he was and walked away, subsequently to deny when the press asked him about it, what he had said to me.
More recently, I requested a copy of the Executive Committee of the Council’s resolution to appoint Judge Burton Fourie, also since I had to testify before him and wanted to know first-hand what his brief was. The Registrar of the university responded to me this morning by saying that she had discussed my request with Mr Steyn and that Committee reports do not get put in the public domain as a rule, since they are regarded as internal Council documents. Accordingly my request was turned down.
I am the duly elected President of the Convocation of the University of Stellenbosch. I was elected as a Council member on two occasions by members of the Convocation with the most votes. I have remained true to the position adopted by my immediate predecessors in respect of languages of instruction at this university, as I have stayed true to the popularly expressed views of the Convocation itself.
I shall not sit down and keep my own counsel because the mythical king can do no wrong.
However, if the Chairman of the Council and the Rector do not resign their positions in the near future, and if Judge Cameron is sworn in as the next chancellor of this university, I will no longer be prepared to remain President of its Convocation and I shall resign.