REPORTABLE

CASE NO:   384/2000

In the matter between

MAX HAMATA
First Appellant

FREEDOM OF EXPRESSION INSTITUTE                     Second Appellant

and

CHAIRPERSON, PENINSULA TECHNIKON
INTERNAL DISCIPLINARY COMMITTEE
First Respondent

CHAIRPERSON, PENINSULA TECHNIKON
COUNCIL DISCIPLINARY COMMITTEE

Second Respondent

CHAIRPERSON, PENINSULA TECHNIKON
COUNCIL

Third Respondent

PENINSULA TECHNIKON

Fourth Respondent

CORAM:                     HEFER AP, HOWIE, MARAIS, NAVSA et NUGENT JJA

DATE HEARD:
28 FEBRUARY 2002

DATE DELIVERED:   17 MAY 2002

Domestic tribunal – legal representation – discretion to allow.
_______________________________________________________________

JUDGMENT

_______________________________________________________________

MARAIS JA/

MARAIS JA:
[1] The factual background to this appeal (before us by
virtue of leave granted by the Court a quo – Hlophe JP and Brand J) is fully
described in the reported judgment of the Court a quo.1  In the view I take of
the matter it is neither necessary  nor appropriate to itemise and give
consideration to all of the many grounds of attack upon the proceedings and
decisions of the three bodies which culminated in the expulsion of the first
appellant from the Peninsula Technikon (“Pentech”).
[2] One of the first appellant’s complaints, if upheld, will have so pervasive
and fatal an effect upon all phases of the disciplinary proceedings that took
place, that this Court will be obliged to set them and the decisions reached in
them aside.  The complaint relates to a refusal to allow the first appellant to be
represented by the lawyer of his choice and the insistence, if he desired to be
represented, upon him being represented by either a student or a member of
the staff of Pentech.  The refusal was based, as will appear, upon a particular

2000 (4) SA 621 (C)

construction placed upon the relevant rule regulating representation at
disciplinary  proceedings.
[3] The rule2 (“the representation rule”) reads:

“The student may conduct his/her own defence or may be assisted by
any student or a member of staff of the Technikon.  Such representative
shall voluntarily accept the task of representing the student.  If the
student is not present, the Committee may nonetheless hear the case,
make a finding and impose punishment.”

[4] If the refusal of the Internal Disciplinary Committee (the “IDC”) to
allow, or even to consider allowing, the first appellant to be represented by a
lawyer who was neither a student at Pentech nor a member of its staff
stemmed from an erroneous belief that it was prohibited by the representation
rule from allowing such representation, and if the first appellant was entitled
to have his request considered on its merits and, conceivably, granted, it would
follow inexorably that the ensuing enquiry would be vitiated at its inception
and that all subsequent phases of the disciplinary proceedings would suffer the

10.2.11 (1) (viii)

same fate.  A fortiori is that the case where, as happened here, the first
appellant did not acquiesce in the ruling and participate in the proceedings.
Instead, he withdrew from them.  The consequence was that the witnesses who
then testified against him were not cross-examined, and the first appellant
neither gave evidence himself, nor called witnesses, nor addressed any
submissions on the merits to the IDC.
[5] Entitlement as of right to legal representation in arenas other than courts
of law has long been a bone of contention.  However, as the court a quo
correctly observed, in Dabner v South African Railways and Harbours 1920
AD 583 at 598 more than eighty years ago this Court categorically denied the
existence of any such absolute right.  South African courts have consistently
accepted the correctness of that view.  It is not entirely clear from the
judgment in Yates v University of Bophuthatswana and Others3 whether the
court was holding otherwise or whether its recognition of a right to legal

1994 (3) SA 815 (BGD) at 834 G-J, 835 C-D, 844 D.  The ambiguity arises from the passage at 835
C-D:  “Apart from a recognition of the right to legal representation, what is generally accepted as an
essential aspect of cases before tribunals in this country is the principle of a fair hearing.”

representation in that case was grounded solely upon an implication arising
from the terms of the conditions of service applicable to the applicant.  If the
former, the decision would have to be regarded as, with respect, an aberrant
one.  Indeed, counsel for the appellants laid no claim to any such general and
absolute entitlement and declined to submit that legal representation,
whenever sought, is a sine qua non of any procedurally fair hearing.  The
submission was less bold and infinitely less productive of the potential tyranny
of artful forensic footwork and heavy accompanying costs to which all manner
of organizations, institutions, voluntary associations and individuals might
become exposed no matter how mundane the issue which arises.  The
submission was that in the particular circumstances of this case and, more
specifically, the nature of the charges and the first appellant’s intended
reliance in his defence upon constitutionally entrenched freedoms, fairness
required that he be allowed “outside” legal representation and that the IDC
was vested with a discretion to allow such representation.

[6] The IDC took the view that the rules prohibited it from exercising any
such discretion.  If it was right in so thinking, and because admission as a
student of Pentech entails a contractual submission to its rules,4 questions
could arise as to the validity of such an absolute prohibition or the
enforceability  of any waiver (inherent in admission as a student) of even the
right to have the IDC exercise a discretion in that regard.  If it was wrong in so
thinking, those questions would not arise.  I turn therefore to that issue.
[7] There are only three conceivable objects which the rule may have been
intended to achieve.  They all conflict with one another to a greater or lesser
degree.  They are, whatever the nature of the charge and the possible
consequences of it being upheld:

(a)
to prohibit absolutely, any form of representation other than that
for which provision is made in the rule;  or

(b)
to grant tacitly, an absolute right to be represented by a lawyer of
one’s choice and to extend expressly the right to representation to
encompass representation even by a non-lawyer, provided only that
such non-lawyer is a student or a member of the staff of Pentech;  or

4   Regulation 10.1.1 of the General Regulations.

(c)
to grant, an absolute right to representation by a student or
member of staff of Pentech irrespective of whether such person is a
lawyer; to deny an absolute right to representation by a lawyer of one’s
choice if the latter is neither a student at, nor a member of the staff of,
Pentech; but to allow the IDC, in the exercise of its discretion, to permit
representation by such a lawyer.

[8] Which of these three objects the rule should be held to have achieved
entails an interpretive exercise which is governed by long established
principles and must also be informed, to the extent to which the language in
which the rule is couched reasonably permits, by any relevant values
enshrined in the Bill of Rights.5  As to the latter, it is significant that while the
Bill of Rights expressly spells out the right “to choose, and to consult with, a
legal practitioner”6 and “to choose, and be represented by, a legal
practitioner”7 it does so only in the context of an arrest for allegedly

s 39 (2) of the Constitution of the Republic of South Africa Act 108 of 1996.  The rules are not of
course “legislation” but the obligation “when developing the common law --- (to) promote the spirit,
purport and objects of the Bill of Rights”  presumably requires the various presumptions which have
evolved in the common law as aids to the interpretation of written instruments to be supplemented by
a further presumption, namely, that conformity rather than non-conformity with the spirit, purport
and objects of the Constitution was intended
s 35 (2) (b)
s 35 (3) (f)

committing an offence8 and the right to a fair trial which “every accused
person” has.9  Neither in s 33 nor in item 23 (2) of Schedule 610 which are
devoted to “administrative action” is there any comparable recognition or
bestowal  of  such  a  right.  If  it  was  intended  to  be recognised or bestowed
I would have expected it to be expressly done as was done in s 3511.
[9] Moreover, in the national legislation12 enacted, as required by s 33 (3),
to give effect to the right to administrative action that is lawful, reasonable and
procedurally fair and to the right to be given written reasons where rights have
been adversely affected by administrative action, there is, once again, what
can only be construed as a deliberate omission to accord or recognise such a
right.  Instead,  s 3 (2) (a) recognises and reaffirms what had long been
axiomatic in the common law, namely, that a “fair administrative procedure

s 35 (1)
s 35 (3)
A transitional provision which was to remain in force until the national legislation required by s 33
(3) to be enacted to give effect to the right to lawful, reasonable and procedurally fair administrative
action was enacted.  It was applicable when this case arose.
Cf the analogous comment in Bel Porto School Governing Body and Others v Premier of the
Province, Western Cape and Another, 2002 (3) SA 265 (CC) at 291 H.
Promotion of Administrative Justice Act, No 3 of 2000.  It was not in operation at the time.  The date
of commencement was 30 November 2000 but s 4 has still not been brought into operation.

depends on the circumstances of each case”13.  S 3 makes provision for legal
representation only in a “serious or complex” case in which, “in order to give
effect to the right to procedurally fair administrative action”, an administrator
decides, in the exercise of a discretion, to grant an opportunity to obtain “legal
representation”.
[10] There is a marked contrast between certain rights spelt out in s 3 (2) (b)
which “must” be given and the “opportunities” spelt out in s 3 (3) which
“may, in (the administrator’s) discretion, also” be given.  The opportunity of
obtaining legal representation is one of the latter.  What is more, neither these
rights nor the opportunities are cast in stone.  “If it is reasonable and justifiable
in the circumstances” s 3 (4) (a) allows an administrator to depart from them.
[11] This constitutional and statutory position comes as no surprise.  There
has always been a marked and understandable reluctance on the part of both
legislators and the courts to embrace the proposition that the right to legal

“What procedural fairness requires depends on the particular circumstances of each case”.  Per
Chaskalson CJ in Bel Porto School Governing Body Western Cape and Another, supra, at 295 G.
See, too, the cases cited in support of the propostion in note 23 to par 104 at p 295 of that judgment.

representation of one’s choice is always a sine qua non of procedurally fair
administrative proceedings.14  However, it is equally true that with the passage
of the years there has been growing acceptance of the view that there will be
cases in which legal representation may be essential to a procedurally fair
administrative proceeding.  In saying this, I use the words “administrative
proceeding” in the most general sense i e to include, inter alia, quasi-judicial
proceedings.  Awareness of all this no doubt accounts for the cautious and
restrained manner in which the framers of the Constitution and the Act have
dealt with the subject of legal representation in the context of administrative
action.  In short, there is no constitutional imperative regarding legal
representation in administrative proceedings discernible, other than flexibility
to allow for legal representation but, even then, only in cases where it is truly
required in order to attain procedural fairness.

See, for example, Dabner v SA Railways and Harbours 1920 AD 583 at 598;  Maynard v Osmond
1977 QB 240 (CA) at 255H-256B;  Lamprecht and Another v McNeillie 1994 (3) SA 665 (AD) at
672A-G;  De Smith, Woolf and Jowell,  Judicial Review of Administrative Action, 5th ed, p 450-451.

[12] There may be administrative organs of such a nature that the issues
which come before them are always so mundane and the consequences of their
decisions for particular individuals always so insignificant that a domestic rule
prohibiting legal representation would be neither unconstitutional nor be
required to be “read down” (if its language so permits) to allow for the
exercising of a discretion in that regard.  On the other hand, there may be
administrative organs which are faced with issues, and whose decisions may
entail consequences, which range from the relatively trivial to the most grave.
Any rule purporting to compel such an organ to refuse legal representation no
matter what the circumstances might be, and even if they are such that a
refusal might very well impair the fairness of the administrative proceeding,
cannot pass muster in law.
[13] The range of issues which could conceivably arise in disciplinary
proceedings at Pentech and the consequences of the findings which could be
made in such proceedings are such that there is plainly a need for the kind of

flexibility to which I have alluded in paragraphs [11] and [12].  That flexibility
is, as I have said, now a constitutional imperative.  Not, I emphasise, in every
conceivable kind of case in which an administrative organ may have to make
decisions but only in those in which the administrative organ may be faced
from time to time with making decisions which on a conspectus of all the
relevant circumstances cannot fairly be made without allowing legal
representation.  Consequently, with that imperative in mind, I approach the
task of deciding which of the three conceivable interpretations of the
representation rule I have postulated in paragraph [7] is the correct one.
[14] There is no doubt something to be said for the interpretation suggested
in paragraph [7] (b).  In as much as the fellow student or member of staff who
may be asked to represent the person arraigned before the IDC may be a
qualified lawyer, it is not possible to conclude that the rule was intended to
prohibit altogether representation by lawyers in disciplinary enquiries.  And in
as much as the fellow student or member of staff chosen need not be a lawyer,

to that extent the provision may be seen as one extending rights of
representation rather than curtailing them.  But such an interpretation takes
insufficient account of what seems to me to be the manifest purpose of the
representation rule when seen in the context of other rules governing the
proceedings of the IDC.
[15] Rule 10.2.11 (1) (vi) reads:  “The hearing shall take place in camera.”
Rule 10.2.11 (1) (viii), as we have seen, obliges the student or member of staff
of Pentech who is asked to represent the student to do so “voluntarily” (sic).
The student’s parents are to be notified of any adverse decision within seven
days of the hearing.15  There is no requirement that they be given any prior
notification of the hearing.  The provision made for subsequent appeals to the
Council Disciplinary Committee (“the CDC”) and the Council itself makes no
reference to the subject of  representation.  As far as the CDC is concerned,

Rule 10.2.11 (1) (xi)

the student may make written submissions in support of the appeal16 and,
unless the Council itself decides otherwise, “the appeal shall be based solely
on the record of the proceedings of the IDC”.17  The student shall be entitled to
be present when the appeal is being considered”18 and the CDC “may, when
considering the appeal summon the appellant to offer evidence in
substantiation of the written contentions in relation to his/her grounds of
appeal”.19  It may also, “if it deems it necessary, summon persons to give
evidence at the appeal hearing”.20
[16] In contradistinction to the position at the hearing before the IDC where
the “Judicial Officer” (a legally qualified person in the employ of Pentech)
discharges what amounts to a prosecuting function and is entitled “to address”
the IDC “after the evidence is led”,21 no equivalent right exists when the
appeal is considered by the CDC.  The Judicial Officer is restricted to

Rule 10.2.15 (1)
Rule 10.2.15 (3)
Rule 10.2.15 (4)
Rule 10.2.15 (5)
Rule 10.2.15 (6)
Rule 10.2.15 (1) (ix)

appearing before the CDC and presenting “a summary of facts, judgment,
reasons for judgment and the grounds of appeal”.22  Somewhat unusually, the
chairperson of the IDC “may appear before the Council Disciplinary
Committee and may submit argument or explanation in substantiation of his
(sic) judgment or of the penalty imposed on the appellant”.23
[17] It appears from all this that, save where the Council itself (and not the
CDC) directs otherwise, or the CDC invokes the power conferred by Rule
10.2.15 (5), the appellant must rest content with the written submissions made
in support of the appeal.  That accounts no doubt for the absence of any
specific provision in the rules regulating representation of a student before the
CDC.  What the position is intended to be where the Council directs that the
appeal shall not be confined to the record of the proceedings before the IDC or
the CDC invokes its powers under Rule 10.2.15 (5), is far from clear.  But
what is clear, I think, is that the provisions relating to appeals to the CDC

Rule 10.2.15 (7)
Rule 10.2.15 (8)

provide no evidence of any desire to confer even greater rights of
representation than those (if any) which might ordinarily exist.  On the
contrary, they point in the opposite direction.  The same is true of the further
appeal to the Council itself where the student is confined to lodging an appeal
in writing to the Council and no provision whatsoever is made for the
student’s appearance when the appeal is considered.  The point is that no
support can be found in the rules governing appeals for interpreting Rule
10.2.11 (1) (viii) as a generous broadening of a  right to representation.
[18] The overall picture presented by these related provisions is of a desire to
exclude outsiders, be they lawyers or laypersons, from the domestic
disciplinary procedures of Pentech.  That seems to me to be the manifest
purpose of the rule restricting a student (at least ordinarily) to representation
by either a fellow student or member of the staff of Pentech.  The total
exclusion of lawyers as such cannot have been its object.  As I have pointed
out earlier, the use of lawyers as such is not precluded, provided only that they

are students or members of the staff at Pentech.  Furthermore, there is an
entitlement to be represented by such a person no matter how simple the
resolution of the issue or how great the lack of seriousness of the potential
consequence of an adverse finding may be.  In that regard the IDC certainly
has no discretion.
[19] However, once one concludes that the purpose of the
representation rule is to exclude representation as of right by “outsiders”
whether or not they be lawyers, can one say that the IDC also has no
discretion to allow representation by a lawyer who is neither a student nor a
member of the staff of the Technikon?  The IDC is a legal construct and it can
only exercise those powers which those who brought it into being intended it
to have.  A power to allow representation of a kind other than that which has
been deliberately restricted to achieve a particular purpose may of course
result in that purpose sometimes being frustrated and there is certainly no
express conferment of such a power.  But, if the correct point of departure

when interpreting the rules is that, constitutionally, the law requires the
flexibility to which I have referred in paragraphs [11] and [12] (as I believe to
be the case), the absence of any express provision in the rules conferring a
discretion does not matter.  The question is rather whether there is sufficient
indication in the rules that any such residual discretion on the part of the IDC
was intended to be excluded.24   The answer, in my opinion, is that there is not.
[20] The fact that a student’s entitlement to representation has been
qualified to achieve the purpose referred to in paragraph [19] is not of itself a
sufficiently strong indication of an intention to exclude a residual discretion
to allow representation of a different kind in appropriate circumstances.  In a
clash between Pentech’s understandable desire to conduct domestic
disciplinary proceedings within the family, as it were, and the need, because of
the exigencies of a particular case, to allow outside legal representation in
order to achieve procedural fairness, it can hardly be supposed that the IDC

Cf Libala v Jones NO and the State 1988 (1) SA 600 (C) at 604A-F;  Dladla and Others v
Administrator, Natal, and Others 1995 (3) SA 776 (N) at 775J-776B and 776J.

was intended to have no power to achieve that fairness and was intended
instead to be compelled to sacrifice fairness and to accord higher priority to
keeping the conduct of the proceedings “within the family”.  I conclude
therefore that the IDC did indeed have a discretion to allow “outside” legal
representation.
[21] That does not mean, of course, that permission to be represented by
a lawyer who is neither a student nor a member of the staff of Pentech is to be
had simply for the asking.  It will be for the IDC to consider any such request
in the light of the circumstances which prevail in the particular case.  Such
factors as the nature of the charges brought, the degree of factual or legal
complexity attendant upon considering them, the potential seriousness of the
consequences of an adverse finding, the availability of suitably qualified
lawyers among the student or staff body of Pentech, the fact that there is a
legally trained “Judicial Officer” presenting the case against the student, and
any other factor relevant to the fairness or otherwise of confining the student

to the kind of representation for which the representation rule expressly
provides, will have to be considered.25  In doing so, Pentech’s legitimate
interest in keeping disciplinary proceeding “within the family” is of course
also to be given due weight but it cannot be allowed to transcend all else no
matter how weighty the factors in favour of allowing of “outside” legal
representation may be.
[22] That the IDC considered itself bound by the relevant rule to refuse
to even entertain a request to be permitted to be represented by an outside
lawyer is patently clear both from the transcript of the proceedings before it
and the affidavits filed in these review proceedings.  The appellant was
entitled to have that request considered by the IDC.  It follows that the
proceedings of the IDC and all subsequent proceedings before the CDC and

“Ultimately, procedural fairness depends in each case upon the balancing of various relevant factors,
including the nature of the decision, the ‘rights’ affected by it, the circumstances in which it is made,
and the consequences resulting from it.”  Per Chaskalson CJ in Minister of Public Works and Others
v Kyalami Ridge Environmental Association and Another (Mukhwevho intervening), 2001 (3) SA
1151 (CC) at 1184 E.

the Council must be set aside.  It follows too, that the findings of those bodies
and the expulsion of the appellant from Pentech must also be set aside.
[23] I have dealt with the question of the existence of a discretion as if
the bodies concerned were engaging in “administrative action” within the
meaning of the Constitution because it was on that premise that counsel on
both sides argued the matter.  It may be questionable whether that premise is
correct but it is neither necessary nor desirable in the absence of argument to
decide the point because I am satisfied that an application of the principles of
the common law in existence in the pre-constitutional era also lead to the same
conclusion.  They, too, require proceedings of a disciplinary nature to be
procedurally fair whether or not they can be characterised as administrative
and whether or not an organ of state is involved.26  If, in order to achieve such
fairness in a particular case legal representation may be necessary, a

“Item 23 (2) (b) seems to me to encapsulate and in some respects extend the well-known common
law grounds of judicial review as they have developed over the years in England and South Africa –
legality, procedural fairness and rationality.”  Per Chaskalson CJ in Bel Porto School Governing
Body, supra (note 11) at 291 F-G.

disciplinary body must be taken to have been intended to have the power to
allow it in the exercise of its discretion unless, of course, it has plainly and
unambiguously been deprived of any such discretion.27  If it has, the validity
in law of the deprivation may arise but, in my opinion, there is no such
deprivation in these rules.  In short, the point of departure when interpreting
the rules remains the same in this case whether the procedural fairness of the
proceedings of these particular disciplinary bodies is regulated by the
Constitution or by the common law as subsumed under the  Constitution.
Such a point of departure (the assumed existence of the discretion) would of
course be consistent with the values embodied in the Constitution.  In future
cases the Promotion of Administrative Justice Act will also have to be
considered.
[24] In their notice of motion the appellants applied for a number of
ancillary declaratory orders.  In my view, it would be neither desirable nor

This approach to the matter is substantially the same as that adopted by Didcott J in Dladla and
Others v Administrator, Natal and Others 1995 (3) SA 776 (N) at 775J-776B and 776J.

appropriate to grant them.  The first declarator sought was that subparagraphs
(vi) and (viii) of rule 10.2.11 (1) “permit students to be represented by outside
legal representatives in matters such as the present matter ----- both before the
Internal Disciplinary Hearing (sic) and the Council Disciplinary Committee,
alternatively that the said subparagraphs ----- are unconstitutional”.
[25] In so far as the declarator sought purports to declare the rights of
students generally (as opposed to the appellant specifically) it is not germane
to any existing dispute to which students generally are parties.  The concept of
“matters such as the present matter” is far too vague to delineate those matters
in which outside legal representation should be permitted and those in which it
should not.  In any event, that is an ad hoc decision to be made by the IDC in
the exercise of its discretion and it is not for this Court to dictate to it in
advance what its decision should be.  In so far as the declarator is sought to be
confined to the present case, the same applies.  The IDC has not yet
considered the question and it is entitled to do so unfettered by specific

directives given in advance by this or any other court.  The fact that its
decision in that regard may be subsequently potentially amenable to correction
in review proceedings provides no warrant for usurping the exercise of its
discretionary power before it has even been exercised.
[26] As for the Council Disciplinary Committee, it is an appellate body.
If a rehearing of the charges results in a finding which is not adverse to the
appellant or the imposition of a penalty which he is not disposed to appeal
against, the declarator will have been academic as between the appellant and
Pentech.  And even if it be assumed that the CDC has the same discretion as I
have concluded the IDC has to allow outside legal representation (a matter
which I leave open), the other objections set out in paragraph [25] to the grant
of a declarator would apply.
[27] As for the alternative declaration of unconstitutionality, that cannot
be made in respect of the IDC if the view I have taken in paragraph [20] that
the IDC does have a discretion to allow outside legal representation is correct.

In so far as the declarator of unconstitutionality is asked for with reference to
the CDC, I am not disposed to decide whether the CDC has or has not the
same discretion as the IDC when the question may be academic as between
the appellant and Pentech and the considerations I have raised in paragraphs
[15], [16] and [17] of the judgment were not addressed by counsel in their
written heads of argument nor adequately debated during oral argument.
Their implications had plainly not been considered.
[28] For the same reason I am not disposed to grant the second
declarator sought, namely that rule 10.2.15 “permits students, or their legal
representatives, to present argument on appeal before the Council Disciplinary
Committee as of right, alternatively that the said rule is unconstitutional”.
[29] The third declarator sought is too vague to be legally effective and
in addition relates to something which is not in issue.  An order is sought
directing “that regulation 10.1.14 ----- be interpreted in a way that is consistent
with Respondent’s obligations to respect the constitutional right to freedom of

expression”.  The respondents have at no time disputed that there is a
constitutional right to freedom of expression.  Their case against the appellant
is, inter alia, that that right does not extend to protect him against the
consequences of originating and publishing highly defamatory statements
known to him to be false and that, even if he was not the originator of the
knowingly false statements, his reporting of those false statements by others
without taking reasonable steps to verify them amounted to an abuse of the
right to freedom of speech.
[30] In the event of the appeal succeeding (as it has) counsel for the
appellants asked for the costs of two counsel and the costs of an application
(Case no 6749/99) brought by the first appellant and M & G Media (Pty) Ltd,
trading as The Mail and Guardian Newspaper, to have first appellant
reinstated as a student pending the review of the disciplinary proceedings.  In
that matter it was agreed without prejudice to reinstate first appellant and that
the costs of that application should stand over for determination in the review

application and an order to that effect was made by the court seized with the
matter.
[31] First, the costs in this Court.  Subject to what is said in paragraph
[36] there is no reason why the costs of the appeal should not follow the result.
However, I do not believe that the costs of two counsel are justified.
Respondents have not been represented at any stage by two counsel and the
appellants were not represented in the Court a quo by two counsel.   On appeal
the appellants were represented by two counsel both of whom were junior
counsel.  Counsel who addressed oral argument to this Court was in fact the
same counsel who had appeared on his own in the Court a quo.
[32] Although the case was said to involve difficult constitutional
questions relating to freedom of expression and freedom of the press, it had in
fact virtually nothing to do with either.  The Mail and Guardian was not being
taken to task for having published the article.  The first appellant’s status as a
student of journalism did not ipso facto relieve him of his obligation to abide

by the rules of Pentech and his personal right to freedom of expression was
obviously not absolute.  Whether or not it had been abused was a largely
factual enquiry.
[33] At the hearing before the IDC the right to freedom of expression
could of course have become of importance if the evidence had shown that
without indulging in misrepresentation as to the purpose for which he wanted
the information, the first appellant had been told these things by third parties,
that he had no reason to doubt their veracity, and that he acted in good faith.
And because the right of freedom of expression could have potentially become
a factor it was legitimate  for the first appellant to ask the IDC to take that into
account in deciding whether to allow him outside legal representation.  But
once that was refused and he absented himself from the proceedings as a
consequence, and after it had been found on the evidence that he had
deliberately misrepresented his purpose in talking to interviewees and had
fabricated many of the allegations in the article, it should have been obvious

that the merits of those findings could not be successfully challenged on
review and that, consequently, any invocation of the right to freedom of
speech and to freedom of the press would ring hollow indeed.  Indeed, it was
conceded before the Court a quo that those factual findings had to be accepted
as correct in considering the review.  To imagine that the constitutional issues
of freedom of the press and freedom of speech would loom large or at all in
either the review or in this appeal was therefore no more than wishful
thinking.
[34] The costs in case no 6749/99 which were reserved for decision by
the court hearing the review present some problems.  The papers in that
application are not before this Court and it is not apparent why M & G Media
(Pty) Ltd were co-applicants.  It is, on the face of it, difficult to see what legal
interest it would have had in securing the temporary reinstatement of an
expelled Pentech student.  It did not attempt to participate as a co-applicant in
the review proceedings and while it seems clear that the order of the Court a

quo that it should be jointly and severally liable for the costs of the application
for the first appellant’s temporary reinstatement (case no 6749/99) must be set
aside, there is no apparent reason why the respondents in the review and this
appeal should be ordered to pay its costs in that application and there will be
no such order.
[35] Nor is there any justification for an order that all the respondents in
the review and this appeal should jointly and severally pay the first appellant’s
costs in those proceedings for temporary reinstatement.  The first, second and
third respondents in both the review and the appeal were not respondents in
that application for the appellant’s temporary reinstatement.  Only the fourth
respondent was cited and it is only against fourth respondent that an order for
costs should be made.
[36] The second appellant (Freedom of Expression Institute) also chose
to enter the fray when the review proceedings were launched because of its
interest in freedom of expression and freedom of the press.  Its well-

intentioned participation was misguided.  For the reasons I have given, the
review proceedings and this appeal had little to do with either.  It was ordered
by the Court a quo to pay respondents’ costs in that court.  That order cannot
be allowed to stand now that the review has succeeded but here again I see
scant reason for ordering the respondents to pay the second appellant’s costs
in either the Court a quo or in this Court.  Objectively regarded, there was no
justification for its participation in the litigation.  It did not engage other
counsel to put its own independent submissions before the court and contented
itself with the submissions which counsel for the first appellant would make.
The respondents should not be ordered to bear its costs.  The review has
succeeded but on a ground which has nothing to do with freedom of speech or
freedom of the press.
[37] It is ordered:

(a) that the appeal is upheld and the decision of the Court a quo
including its orders as to costs in both the review proceedings and case
no 6749/99 are set aside;

(b) that the decisions of the Internal Disciplinary Committee of 17/18
November 1998, the Council Disciplinary Committee of 14 April 1999,
and the Council of 15 June 1999 are set aside;

(c) that the costs of the review proceedings in the Court a quo and the
first appellant’s costs of appeal shall be paid by the respondents jointly
and severally, the one paying the other to be absolved;

(d) that the second appellant bear its own costs in both the Court a quo
and in the appeal;

(e) that fourth respondent pay the costs of first appellant in case no
6749/99;

(f) that M & G Media (Pty) Ltd bear its own costs in case no 6749/99.

[38] In as much as the orders as to costs were not fully debated at the
hearing, the parties are given leave to file written submissions in that regard
within two weeks of the date of this order, failing which the costs orders will
become final.

R M MARAIS

JUDGE OF APPEAL

HEFER     AP )
HOWIE    JA  )
NAVSA     JA  )
NUGENT JA   )     CONCUR

REPORTABL
E

CASE NO:   384/2000

In the matter between

MAX HAMATA
First
Appellant

FREEDOM OF EXPRESSION INSTITUTE                        Second
Appellant

and

CHAIRPERSON, PENINSULA TECHNIKON
INTERNAL DISCIPLINARY COMMITTEE
First
Respondent

CHAIRPERSON, PENINSULA TECHNIKON
COUNCIL DISCIPLINARY COMMITTEE
Second
Respondent

CHAIRPERSON, PENINSULA TECHNIKON
COUNCIL

Third
Respondent

PENINSULA TECHNIKON

Fourth
Respondent

CORAM:
HEFER AP, HOWIE, MARAIS, NAVSA et NUGENT JJA

DATE HEARD:
28 FEBRUARY 2002

DATE DELIVERED:     9 SEPTEMBER 2002
_______________________________________________________________
_

JUDGMENT

_______________________________________________________________
_

MARAIS
JA/

MARAIS JA:
[1] The only parties who have sought to have the
provisional orders as to costs varied are the respondents.  In their submission,
each of the parties should be ordered to pay their own costs, both in the Court
a quo and on appeal.  The contention is founded upon two propositions:  first,
that the appellants succeeded on a point not raised by them in either court;
secondly, that instead of confining their attack to the point upon which they
succeeded, they traversed unnecessarily a number of issues which resulted in
the incurring of considerable extra expense in conducting the litigation.
[2] As to the first proposition, it is not accurate.  The failure of the IDC to
exercise a discretion to allow outside legal representation was raised
pertinently in the founding affidavit at paragraph 27.3.  It also formed the
basis of the declaratory order sought in the first part of prayer 3 of the notice

of motion.  Moreover, in paragraph 30 of the heads of argument in the Court a
quo the appellants argued:  “The rule relating to the IDC does not expressly
permit outside legal representation;  but nor does it expressly prohibit it.  It is
silent on the subject.  The IDC, however, interpreted it as entailing an absolute
prohibition on representation by an attorney.  In construing the provision in
this way, it is submitted that the IDC, and the other committees, again
misconstrued the nature of the discretion conferred by the regulation.”  The
Court a quo considered and rejected the argument.  This Court took a different
view.
[3] As to the second proposition, the considerations which apply in a trial
action when a timeously taken exception to a pleading would have averted the
trial cannot be applied indiscriminately to motion proceedings.  In motion
proceedings the applicant is obliged to set out in its entirety his, her or its case
in the notice of motion and accompanying affidavits.  The piecemeal
advancing of contentions in a series of motion proceedings successively

launched as the forerunner of each fails, is potentially productive of litigatory
tyranny and is not to be encouraged.  In any event, if there is indeed a
separable issue which could be decisive of the case, it is open to any of the
parties to motion proceedings to apply for the separate adjudication of the
issue.  The respondents made no such application .
[4] Finally, this is not a case in which all the other grounds of attack raised
in the motion proceedings have been found to be entirely devoid of merit.  In
my view, no good cause for the variation of the existing orders as to costs has
been shown and the orders are hereby made final.

__________________

R M MARAIS

JUDGE OF APPEAL

HEFER       AP)
HOWIE       JA)
MARAIS     JA)     CONCUR
NAVSA       JA)
NUGENT AJA)