Yolanda Dyantyi v Rhodes University and Others

Ms Yolanda Dyantyi was a third-year student at Rhodes University in 2017. During April 2016, she participated in student protests directed at "rape culture" at the university, precipitated by social media lists of alleged perpetrators of sexual violence. During the protests, three male students were forcibly removed from residences and held against their will, one for approximately 11 hours. Nearly a year later, on 28 March 2017, the university initiated disciplinary proceedings against Ms Dyantyi, charging her with kidnapping, insubordination, assault, and defamation. She was represented pro bono by two counsel (Ms Irene de Vos and Mr Zweli Makgalemele) from the Socio-Economic Rights Institute (SERI), along with an attorney and candidate attorney. The hearing stretched over several days between June and October 2017. On 11 October 2017, the proctor (third respondent, Mr Wayne Hutchinson NO) set down the continuation of proceedings for 26-27 October and 6-8 November 2017, despite objections from Ms Dyantyi's counsel who were unavailable due to prior commitments (deportation matter and matter involving the President and Public Protector). The first available dates for her counsel were 29-30 November and 1 December 2017. The proctor refused to postpone despite Ms Dyantyi's impecuniosity and inability to obtain alternative counsel at short notice. Ms Dyantyi and her legal team did not participate further. The proctor found her guilty on all charges on 10 November 2017 and permanently excluded her from the university on 17 November 2017.

• Whether the Promotion of Administrative Justice Act 3 of 2000 (PAJA) applied to disciplinary proceedings at a public higher education institution
• Whether the refusal to postpone the disciplinary hearing to dates when the student's counsel were available constituted procedural unfairness under PAJA
• What factors should be considered in balancing the right to particular legal representation in disciplinary proceedings
• Whether a student could be compelled to proceed without counsel who were steeped in the part-heard matter when alternative dates were available

The appeal was upheld with costs, including costs of two counsel. The High Court order was set aside and replaced with an order: (a) reviewing and setting aside the decision of 10 November 2017 convicting Ms Dyantyi; (b) reviewing and setting aside the decision of 17 November 2017 permanently excluding her from the university; (c) remitting the matter to the university for reconsideration on condition that any continuation of the disciplinary inquiry take place before another proctor; and (d) directing the university to pay Ms Dyantyi's costs, including costs of two counsel.

The binding legal principles established are: (1) Public higher education institutions are organs of state and their disciplinary proceedings constitute administrative action under PAJA, requiring procedural fairness under section 3; (2) While there is no general right to legal representation or to particular legal representatives under PAJA (except in serious or complex cases per section 3(3)(a)), procedural fairness may in particular circumstances require that an affected person be permitted to retain specific legal representatives; (3) Whether procedural fairness requires retention of particular legal representatives depends on balancing factors including: the seriousness of potential consequences, complexity of the case, the extent to which existing representatives are steeped in part-heard proceedings, the stage of proceedings, availability of the representatives within a reasonable time, availability of suitable alternatives, prejudice to parties, and the strength of reasons for not accommodating the request; (4) In the absence of compelling reasons to the contrary, it is procedurally unfair to require a student facing serious consequences in complex disciplinary proceedings to forgo the services of counsel who are steeped in a part-heard matter and available within a reasonable time, particularly where the student is impecunious and unable to obtain suitable alternative representation at short notice.

The Court made several non-binding observations: (1) The role of instructing attorneys in complex disciplinary hearings is usually of an administrative and logistical nature, making the loss of experienced counsel particularly significant; (2) The suggestion that Ms Dyantyi should have proceeded with only her attorney and candidate attorney (without counsel) was "quite unreasonable in the circumstances"; (3) The proctor's finding that Ms Dyantyi had "no intention of testifying" was described as "gratuitous and wrong" - had this motivated the rulings, they would have been affected by gross misdirection; (4) The proctor's characterization of Ms Dyantyi's non-participation as a "waiver" was incorrect - it was rather a principled stance based on perceived unfairness; (5) The answer to whether particular legal representation should be retained "should seldom be in the affirmative" - indicating that such cases are exceptional; (6) The Court noted the "recurring theme" in the university's answering affidavit that Ms Dyantyi had no defense and employed delaying tactics, observing that the prosecutors said nothing of the sort at the time and had no justification to do so.

This case is significant for establishing important principles regarding procedural fairness in student disciplinary proceedings at public higher education institutions. It confirms that PAJA applies to such proceedings and that universities, as organs of state, must comply with administrative law principles. The judgment provides guidance on when an affected person is entitled to retain particular legal representatives in administrative proceedings - emphasizing that while there is no general right to specific counsel, in exceptional circumstances (serious consequences, complex matters, counsel steeped in part-heard proceedings, availability within reasonable time, no compelling contrary reasons) procedural fairness may require accommodating the affected person's existing legal representation. The case reinforces that procedural fairness is not a mechanical application of rules but requires context-sensitive balancing of relevant considerations. It also establishes that administrative decision-makers must provide reasons for decisions affecting fundamental rights and cannot arbitrarily impose deadlines without justification.