Gauteng Deputy Judge President Aubrey Ledwaba has advised aggrieved Unisa staff and students to consider lodging a formal application to join a pending case that seeks to review a report advocating for the university to be placed under administration.

This, after the aggrieved parties sent a petition to Ledwaba’s office on Sunday, 8 October 2023, raising a number of concerns including the Pretoria High Court’s order, which was in favour of Unisa on Friday, 5 October.

The aggrieved also questioned the timing of the decision taken by Unisa bosses to confer honorary degrees on Constitutional Court Chief Justice Raymond Zondo and his deputy Mandisa Maya, on 27 and 28 September 2023.

Neither Unisa nor the office of the chief justice responded to questions sent on Monday, 9 October.

Ledwaba said he could not respond on behalf of Zondo and Maya about doctorates that were conferred on them.

The petition

The aggrieved stated in the petition that the court was inconsistent in the granting of orders and that the latest order [5 October] against Higher Education, Science and Innovation Minister Blade Nzimande was made, despite there being pending matters before court that were not treated with the same urgency.

Unisa bosses filed an urgent application to the Pretoria High Court on Thursday, 4 October, to interdict Nzimande’s planned decision to announce the next day who will take over control of the university.

Pretoria High Court Judge Harshila Kooverjie made an order on Friday 5 October, prohibiting Nzimande from making his announcement.

Nzimande, through the State Attorney’s office, had filed a “notice of intention to act” to the high court on Wednesday, 4 October, against Unisa and he intended to “publish and implement his decision regarding the council of Unisa” on Friday.

In that notice, the State Attorney’s office cited two cases that Unisa had lodged against Nzimande and Unisa independent assessor Professor Themba Mosia.

In the first case, Unisa council is an applicant seeking to interdict Nzimande from appointing an administrator.

The second case was lodged by Unisa vice-chancellor Professor Puleng LenkaBula, seeking to set aside Mosia’s report, which recommended that Nzimande appoint an administrator and relieve administration, led by LenkaBula, of their duties.

Read more in Daily Maverick: Unisa bosses block Minister Nzimande from announcing administrator decision for embattled university

In her order, Kooverjie stated that Nzimande was in breach of another order issued by Judge Leicester Adams on 24 August 2023, which prohibited the minister from acting on Mosia’s recommendations until the cases relating to his report had been finalised.

Inconsistencies and implications

The aggrieved said their argument emanated from Koovorjie’s order to entertain Unisa’s urgent application, despite there being two pending matters filed by Unisa, which were deemed urgent, but have not been heard.

The dragging cases, the aggrieved said, have ripple effects on their lives, and implications on the academic life of students.

It has been a month, they said, since Unisa’s 24 August urgent application [which led to Adams’ order] has not been enrolled and heard.

“The interest of justice warrants that citizens be protected including the Minister himself, and prejudice does not only apply to applicants but also applies to respondents,” the petition read.

Delays in enrolling the applications by Unisa, the aggrieved said, does not only prejudice Nzimande, who has powers to make such decisions in accordance with the Higher Education Act, but prejudices staff members of Unisa, students and communities.

They said taxpayers who cough up money to pay for Unisa legal bills, are also prejudiced.

Judge Aubrey Ledwaba. (Photo: Gallo Images / Beeld / Herman Verwey)

Selective decision

The aggrieved said it was worrisome that the court remembered the urgency that was brought by Unisa on 4 October and neglected that Nzimande had waited for more than a month for the court to enrol pending cases.

“Justice must not only [be] seen to be done, but also must be seen to be fair and just.”

They said the way urgency was being applied remains a concern.

Unisa council and management, the aggrieved said, were afforded a special privilege on Friday when their matter was enrolled and heard less than 24 hours.

This, they said, was despite the court being shown a historical efficiency in light of other urgent applications not being afforded the same privileges.

They cited an urgent application that was filed by dismissed Unisa registrar Stewart Mothata and five union members, which has not been heard.

Mothata filed papers urging that the council could not quorate due to resignation of some of its members, and therefore was an illegitimate structure.

Council, not employees

Friday’s order against Nzimande, the aggrieved said, was surprising because it focused on the interests of council members – who are not employees of Unisa – and neglected to safeguard those of 400,000 students and more than 7,000 employees.

Students, they said, are at risk of poor service delivery. The aggrieved said staff also face a risk of their job security.

“On whose interest are these people defending their stay in the university council? It has become clear that it is not that of students and staff, but their personal interest at all costs.”

The court, the aggrieved said, ought to consider that students and staff are suffering because of poor decisions and mismanagement of funds.

They said it was they who had marched to Nzimande’s office to appeal for him to pay attention to Unisa’s situation.

Eliminate unnecessary appeals

The aggrieved then asked Ledwaba to consider enrolling Unisa applications as soon as possible to enable Nzimande to exercise his powers; and possibly take the cases before the full bench to eliminate unnecessary appeals that might occur.

They said it does not have money to defend the Ministerial Task Team (MTT) and Mosia’s report, and to appear in court to give evidence.

“Our plea is that we let the court provide a ground to deal with the challenges that engulf our institution,” the petition read.

Cases consolidated

Ledwaba said the pending cases have been consolidated.

He said these have not been enrolled because it transpired during a judicial management meeting between parties that they were not ready for hearing.

The issue of urgency, Ledwaba said, was argued during Kooverjie’s court case, and she regarded the matter as urgent.

“I cannot comment on the reasons set out in the petition regarding urgency because the matter was argued in court by the Minister’s Senior Counsel,” Ledwaba said.

If a party was dissatisfied with the outcome of judgment, he said an application for leave to appeal may be lodged.

Kooverjie judgment

Kooverjie stated that Unisa’s 4 October application was instituted at the eleventh hour.

She said Nzimande’s notice affected LenkaBula’s case.

The 4 October application, she said, was centred around the 24 August case, which was granted by agreement between parties.

Paragraph eight of the 4 October order, she said, stated that Nzimande undertook not to take any decision, pending the finalisation of the application.

The order made provision for the consolidation of both Unisa cases and that Mothata’s intervention case is scheduled to be heard, together with the two.

She said it was common cause that Unisa and Nzimande approached Ledwaba’s office and sought a special allocation and an appropriate date after Adams’ order [24 August case] was granted.

The case management meeting was convened with Ledwaba on 4 September 2023.

Although papers were eventually filed, Kooverjie stated that Ledwaba had not come back to the parties with a preferential date.

The parties made a follow-up on 14 and 22 September.

“At all relevant times the Minister was party to the arrangement with the office of the DJP [Ledwaba],” the judgment read.

Despite this arrangement, Kooverjie stated that Nzimande issued a notice.

Nzimande’s argument

Unisa, Kooverjie stated, reminded Nzimande about Adams’ order and said that his notice would be in contempt of court.

“The Minister’s response in the papers and in argument were premised on various grounds. Firstly, that the Minister was not bound to the undertaking as per the order. Prayer [8] of the Adams J order merely recorded that the Minister undertook not to take action in respect of the [Mosia] report. The Minister’s view is simply flawed,” the judgment read.

Kooverjie stated that an undertaking recorded in a court order is binding and has the same force and effect as an order of court.

In part, she stated that Nzimande’s second argument was that his undertaking was given on the basis that the urgent application was to be disposed expeditiously.

“It was contended that the applicants did not wish for this to happen. Since a date for the hearing has not been canvassed by the applicants, the Minister was entitled to proceed with his statutory obligations regarding the affairs of Unisa.”

But argument is untenable

Kooverjie said this argument is untenable.

She said Nzimande was clearly a party to the arrangements made with Ledwaba’s office and aware that the date of the hearing was not communicated to the parties.

“If an administrator is appointed, the management, governance and administration of Unisa would be taken over. The applicants’ positions would become redundant and the council would inevitably be dissolved. Most evidently, their credibility and reputations would be at stake,” the judgment read.

Unisa’s right to institutional autonomy, she stated, would be further threatened.

In part, Kooverjie’s judgment stated: “In my view, the harm that the applicants may suffer if the Minister is left to his decisions, by far outweighs the Minister’s inconvenience if he is not allowed to make a decision at this stage. The Minister has failed to demonstrate any prejudice he may suffer if he is restrained from acting in terms of the notice.” DM