Fanele Maqele and Others v Vice Chancellor, Professor N.M Bhebhe N.O and Another

The three applicants were students at Midlands State University. On 22 April 2016, they were each served with suspension letters dated 11 April 2016 signed by the Vice Chancellor. The suspensions were based on allegations that they had posted a message on WhatsApp calling on other students to go on an illegal demonstration. The alleged WhatsApp message, sent in February 2016, encouraged students to protest against the University's decision to open a satellite campus in Zvishavane. The applicants admitted receiving the message and passing it on to friends, but no protest actually materialized. The suspension letters provided no indication of duration or when a disciplinary hearing would be held. More than a month elapsed without any disciplinary committee being convened. Meanwhile, end of semester examinations commenced on 19 May 2016, which the suspended applicants could not attend. The first applicant was a final year student who would be unable to graduate, while the second and third applicants were second year students who would have to repeat the year.

• Whether the matter was urgent or whether the applicants had created their own urgency by delaying 26 days before filing the application
• Whether the applicants had failed to exhaust domestic remedies before approaching the court
• Whether the indefinite suspension without a disciplinary hearing constituted a breach of administrative justice as required by section 68(1) of the Constitution and section 3(1) of the Administrative Justice Act
• Whether the suspension violated the applicants' constitutional right to further education under section 75 of the Constitution
• Whether the suspension violated the applicants' right to freedom of expression under section 61 of the Constitution

1. The decision of the first respondent to suspend all three applicants by letters dated 22 April 2016 was suspended. 2. The decision to bar the applicants from visiting the respondents' campuses was set aside. 3. The respondents were directed to allow all three applicants to sit and write their end of semester examinations. 4. The respondents were directed to allow the applicants to take those examinations they had missed during the university supplementary examinations. 5. The respondents may continue with disciplinary action against the applicants, if any, not before the expiration of 14 days after completion of the supplementary examinations. 6. Each party to bear its own costs.

The binding legal principle established is that while administrative authorities such as university vice chancellors have statutory power to suspend students, even indefinitely, such power must be exercised in accordance with the constitutional right to administrative justice as enshrined in section 68(1) of the Constitution and section 3(1) of the Administrative Justice Act. Administrative action must be lawful, prompt, efficient, reasonable, proportionate, impartial, and both substantively and procedurally fair. An indefinite suspension without convening a disciplinary hearing within a reasonable time constitutes a failure of administrative justice and violates the affected students' constitutional rights to education and administrative justice. The power of suspension, particularly where it is to facilitate the convening of a disciplinary committee, must be exercised promptly and students cannot be left in indefinite limbo while their educational progress is prejudiced.

The court made several important non-binding observations: (1) Litigants should not be expected to "eat, move and have their being in filing court process" and courts should appreciate that parties have other matters to attend to. (2) The court criticized the "discernible readiness to unnecessarily pull the trigger" by university authorities in suspending students, thereby playing havoc with their constitutional rights. (3) The court observed that the WhatsApp message in question could not possibly be considered offensive even if generated by the applicants, as it was merely mobilizing support to protest against a university decision. (4) Zimbabwe being a democratic country, it was the democratic right of affected students to protest and demonstrate their opposition to university decisions. (5) Universities should not stifle student rights but should be institutions for intellectual interaction and freedom of expression. (6) 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." (7) Universities should not remain "engrossed in a time capsule propagating archaic controls and methods of instruction where students are removed from campus for expressing their views."

This case is significant in South African and Zimbabwean jurisprudence for several reasons: (1) It emphasizes that administrative justice is now a constitutional imperative embedded in the constitution, requiring administrative authorities to act lawfully, promptly, efficiently, reasonably, and fairly. (2) It establishes that universities, as administrative authorities, must exercise disciplinary powers in accordance with constitutional rights, including the rights to administrative justice, education, and freedom of expression. (3) It limits the exercise of indefinite suspension powers, holding that such powers cannot be exercised arbitrarily or indefinitely without convening disciplinary hearings. (4) It recognizes that the doctrine of self-created urgency should not be applied rigidly where the respondent's own delay contributed to the urgency. (5) It affirms that universities should be bastions of freedom of expression and intellectual interaction rather than institutions that suppress student rights. (6) It demonstrates the court's willingness to protect fundamental rights even in the context of internal university disciplinary matters.