PRIVILEGED AND CONFIDENTIAL

To: The Council of the University of Stellenbosch

In re: COMMISSION OF INQUIRY INTO THE HANDLING BY THE UNIVERSITY OF STELLENBOSCH OF THE INCIDENT AT HEEMSTEDE RESIDENCE ON 4 FEBRUARY 2016 AND THE EVENTS SUBSEQUENT THERETO

Prepared by:

Renata Williams SC

Chambers Cape Town

22 August 2016

Introduction

1. The University of Stellenbosch (“the university”) mandated me to conduct an inquiry into the university’s handling of the incident at the Heemstede Residence (“Heemstede” or “the residence”) on or about 4 February 2016 and the events which unfolded thereafter. The written instruction in which I was specifically requested to address the following is reproduced below:

“1.1 US amptenare se reaksie en kommentaar op die gebeure;

1.2 US amptenare se besluit om tydelike skorsing van Christine Briedenhann en Jo-Anne Cloete uit Heemstede Koshuis;

1.3 US se tydelike opskorting van Christine Briedenhann as mentor;

1.4 US amptenare se dissiplinêre ondersoek na die gemelde gebeure;

1.5 US Eenheid vir Gelykwaardigheid se ondersoek;

1.6 onreëlmatighede en/of gebreke, indien enige, in die US amptenare se hantering van die gebeure; en

1.7 enige andere relevante aspekte met betrekking tot die gebeure wat tydens die ondersoek aan die lig mag kom”.

2. Prior to the commencement of the inquiry I had a preliminary meeting with the instructing attorneys Mesdames M Koen, H Beviss-Challinor and B Markgraaff of Cluver Markotter Inc (“Cluver Markotter”), and the client’s representative Mr Gerhard Lipp who is the Director: Legal Services. The documents made available at the time included:

2.1. the written mandate;

2.2. a provisional report prepared by the Student Disciplinary unit (“the SD unit”) with accompanying statements;

2.3. a set of photographs;

2.4. a letter of complaint from the Student Representative Council (“the SRC”);

2.5. a retraction and apology from Open Stellenbosch;

2.6. a report from the SU Equality Unit (“the Equality Unit”);

2.7. articles prepared by the university which were either uploaded onto its website and/or released to the media;

2.8. extracts from various mainly Afrikaans publications carrying reports on the incident;

2.9. a submission to the university Council from Mr Etienne Roodt, an alumnus and the father of Ms Demi Roodt who was the the Primaria of Heemstede at the time;

2.10. a chronology ostensibly prepared by Mesdames Christine Magdalene Briedenhann and Jo-Anne Cloete (“the chronology”), and issued by AfriForum Youth (“AfriForum”) on 19 February 2016, together with a Twitter feed by Mr Matthew Smorenburg. The SRC statement referred to on page 7 of the chronology was not attached;

2.11. correspondence addressed to Mr Lipp by AfriForum dated 19 February 2016 enclosing the aforementioned chronology and the SRC’s response to the alleged “Blackfacing” incident; and

2.12. letters exchanged between Cliffe Dekker Hofmeyr and the university.

3. The inquiry has its origins in a housewarming party held at Heemstede on 4 February 2016 for new and returning students. The dress code was “Stellar Space”. Ms Beauty Mazibuko, a member of the Heemstede Committee (“the HK”) who holds the portfolio for social affairs and her committee which comprised of three other students in addition to Ms Mazibuko, settled on the theme after a brainstorming session. It was referred to the IC Heemies Committee (“the IC Heemies”) and was given its imprimatur.

4. Heemstede is a university residence for female students and is headed up by Ms Sherrill Anthea February. She was aware of the theme, questioned what it entailed and also googled it. After doing so, she too gave it her approval. Ms February explained that IC Heemies was formed in 2015 to foster inclusivity in the residence. This was necessary because some students felt marginalised. The “IC” in the title is an abbreviation for inclusive communication.

5. For the sake of brevity and without meaning any disrespect, the students are referred to by the first names.

6. It is convenient to place the following on record at this stage:

6.1. Christine who goes by the nickname “Poekie” and Jo-Anne declined to participate in the inquiry. Their attorneys communicated as much on 20 April 2016. This was unfortunate since the statements, including those in the media pertaining to the event, are not entirely consonant. It would have been most helpful had they assisted in clarifying the situation;

6.2. the statements prepared by their attorneys for purposes of the internal investigation by the university were included in my brief. Christine’s statement is fairly detailed and comprehensive, and confirmed by Jo- Anne;

6.3. the internal investigations by the university were conducted separately by the SD unit and the Equality Unit. The SD unit produced a provisional report dated 10 February 2016 which predates the receipt of the aforementioned statements. Unsigned statements were emailed to Mr Paul Beresford on the evening of 11 February 2016, the day after the provisional report was signed off. Signed copies were delivered by Christine’s father, Dr Briedenhann, on Friday, 12 February 2016;

6.4. the Equality Unit in an unsigned and undated report recommended that any processes and provisional actions taken against the two students be withdrawn. It claimed to have followed the “full protocol and due process” contained in its draft policy, a copy whereof was provided on request;

6.5. as with the SD unit which brought out a report without any input from Jo-Anne and/or Christine, the Equality Unit reached a conclusion on fundamental issues such as discrimination, victimisation and harassment seemingly also without input from the two students and with scant regard to their draft policy. I adumbrate on this in greater detail below;

6.6. as regards the statements prepared with the assistance of their legal representatives and submitted to the university in unsigned form on 11 February 2016, the following portions of Christine’s statement (which Jo-Anne confirms) bear emphasis:

6.6.1. she records in paragraph 10 that the university had not furnished them with “access to the full factual details of all the allegations underpinning the charge against us”. She asserts in paragraph 11 that she could only “speculate” what the allegations are but nonetheless adds in paragraph 12 that Mr Paul Beresford of the university’s Legal Services had advised that she and Jo-Anne had breached clause 2.18 of the Student Disciplinary Code by bringing the name of the university into disrepute;

6.6.2. clause 2.18 is recounted in paragraph 13 of the statement and she adds that the charge was based on an alleged incident of “blackfacing”. She denied having engaged in “blackfacing” or that they breached the Student Disciplinary Code;

6.6.3. Christine acknowledges in paragraph 16 that the “unfortunate set of circumstances, culminating in this investigation, seems to be a direct result of a distortion of certain photographs displayed on various social media platforms”. She explained that they dressed up for the stellar space party and decided to go “all-out”. When they were ready, a friend used Christine’s cellphone to take a photograph of them. This was done in their room at the residence. According to Christine, the photograph was not well lit and appeared to be the reason for the events that followed (paragraph 28);

6.6.4. at about 08h00 on 5 February 2016 she uploaded the photograph, as well as another photograph taken at the event, to her Instagram account (paragraph 32). Her account was on a private setting which meant that only her followers had access to her photographs. It was not her intention that her private photographs should be publicly disseminated (paragraph 34);

6.6.5. Christine explained that the charge against them was based upon a distortion and misrepresentation of the facts which she explained as follows:

“38. A person whose identity is unknown to me took a “screenshot” of my Instagram photo and disseminated it on Facebook and Twitter without my permission and unbeknownst to me. This led to the traumatic media storm that engulfed us, our parents, and our extended family.

39. This photo has been misinterpreted as an incident of blackfacing because the paint appeared darker in the poor lighting of the photograph.”;

6.6.6. she had knowledge that “blackfacing” constituted a discriminatory and racist practice whereby white persons paint their faces black and impersonate a black person in order to perpetuate negative stereotypes and to imply that black people are inferior. She added in paragraph 44 of the statement that it was an offensive act “associated with the history of slavery and racial discrimination” and they (she and Jo-Anne) condemned it “unreservedly”;

6.6.7. according to Christine, “blackfacing” consists of two elements viz. the act of painting oneself black and the intention to racially discriminate. She asserts however that they only became aware of the concept of “blackfacing” as a result of this matter;

6.6.8. both she and Jo-Anne denied that they engaged in “blackfacing” and/or any other racist practice. They also denied bringing the university's good name into disrepute and stated that no offence had been committed;

6.6.9. Christine reiterated in her concluding remarks that they had not been granted access “to all the allegations and documents” submitted to the university and they were therefore not apprised of all the facts. They reserved their right to make further representations once further information and/or documents came to hand;

6.6.10. notably, and contrary to the chronology issued by AfriForum referred to above, save for their complaint that they had not been apprised of all the relevant facts and documents, not a single member of staff is accused of any wrongdoing or inappropriate behaviour;

6.6.11. a further statement by Christine was submitted to the inquiry with a request that it be placed before the Council when it considers this report;

6.6.12. the statement is undated but was made available under cover of a letter from Cliffe Dekker Hofmeyr dated 19 May 2016, the salient provisions whereof are highlighted below:

6.6.12.1. the stated purpose thereof was to provide further facts and her first statement should be regarded as if therein set out and repeated;

6.6.12.2. the statement was submitted in respect of herself and Jo-Anne who would provide a confirmatory statement, as would their parents. Cluver Markotter have requested these further statements but to date they remain outstanding and I accept for purposes of this report that they will not be forthcoming;

6.6.12.3. she states in paragraph 12 that she has since been informed by the university that a charge was never formally laid against her or Jo-Anne and that the investigation against them “was withdrawn”;

6.6.12.4. paragraph 15 contains a reservation of their rights to make “further submissions before the commission of inquiry”. As previously stated, they were repeatedly invited to participate but declined to do so. None of the other interviewees had access to the transcript and/or documents made available to me for purposes of conducting the inquiry yet they had no difficulty stating their version;

6.6.12.5. the university refused them access to these documents and legal privilege was expressly asserted in the correspondence from Cluver Markotter dated 26 April 2016 with comprehensive reasons provided. At that stage there was a threat of legal proceedings and one of the witnesses made much of the fact that meetings with university officials had been recorded by Dr Briedenhann;

6.6.12.6. no explanation is tendered as to why an amplified statement has now been placed before me. It is all the more puzzling in light of the fact that the statement included in my brief was prepared with the assistance of legal representation;

6.6.12.7. Christine states in paragraph 21 of her supplemental statement that no member of staff suggested that their parents or legal advisors should be informed or could be present at the meeting at Russel Botman House on 5 February 2016. She doesn’t indicate why this was considered necessary;

6.6.12.8. both Jo-Anne and Christine’s parents were contacted on 5 February 2016 and attorneys were also instructed to represent them;

6.6.12.9. Christine acknowledged the backlash which followed her posting of the pictures on Instagram and the threatening comments received as a result. She was concerned by this and immediately deleted the offensive photograph (see paragraph 16 to 18 of the supplementary statement);

6.6.12.10. after the meeting on the Friday morning attended by Dr van Rooi, Mr Smorenburg, Christine, Jo-Anne, Demi, Beauty and Natanje van Niekerk, Jo-Anne and Christine returned to Heemstede and remained in their room. Christine’s cell phone number was shared online by an unknown person and they received “constant threatening messages and phone calls.” (paragraph 33 of the supplementary statement);

6.6.12.11. she confirmed that a group of protestors had gained access to the residence and walked through the passages looking for them but were told by the HK members that they were not there. They found this “severely distressing and we feared for our safety”. (op cit paragraph 33);

6.6.12.12. the statement also recounts the SRC’s response. A media statement was released condemning the incident and calling upon the university “to take harsh measures against us”. (additional statement paragraph 34);

6.6.12.13. she reiterated that they did not understand “the concept of blackfacing. We once again state that we were never informed at school nor at university about blackfacing and did not know about this racist and unacceptable practice.” (paragraph 26);

6.6.12.14. the statement portrays Mr Smorenburg in a poor light and is incongruent with the versions related by other witnesses;

6.6.12.15. it is not clear from the supplementary statement why it took some three and a half months to level these allegations against Mr Smorenburg. Signally, they differ toto caelo from Dr van Rooi’s and Demi’s version of events during the meeting. Beauty arrived late at the stage when Mr Smorenburg was composing a text message and confirms the above accounts. There is no suggestion of any impropriety on Mr Smorenburg’s part in their version of events;

6.6.12.16. apropos the remainder of the supplementary statement, the contents are traversed to the extent necessary in the account that follows;

6.7. although Christine and Jo-Anne did not participate in the inquiry, they did have a lawyer present during the first three days of the hearing;

6.8. several officials were unaware of the inquiry and did not know what the ramifications would be if they participated and what would happen should they decline to do so;

6.9. there were also concerns about officials articulating their views on the university’s handling of the matter with potential adverse consequences;

6.10. there was a perception among some officials that it was a disciplinary inquiry;

6.11. certain officials attended together with legal representation which I permitted;

6.12. the inquiry commenced on 16 March 2016 and the last of the witnesses were interviewed on 22 July 2016. The final supplementation of the brief was on the 28th instant. In addition to the documents handed in during the inquiry, I was also given further correspondence including

the letter from the Human Rights Commission, Cluver Markotter’s response and Mr Roodt’s letter after my questioning of Demi at the inquiry;

6.13. the delay in finalising the inquiry is attributable inter alia to the unavailability of witnesses, the intercession of two university term breaks, my unavailability for part of the mid-year court recess and the fact that the completion of the report took longer than anticipated given the length of the inquiry and volume of information gathered during this process.

7. It is against the above background that I turn to address the issues arising in this matter. This report is structured as follows:

7.1. first, the witnesses interviewed are listed;

7.2. next, the material facts are outlined together with a timeline of events;

7.3. I then turn to address the issues which I’m required to consider in terms of the mandate from the university;

7.4. finally, and in conclusion, recommendations are made on the further conduct of the matter and the aspects which should be addressed by the university.

The witnesses

8. Several witnesses were interviewed during the inquiry and I state at the outset that each and every witness was fully co-operative and gave of their time unstintingly. Appointments were rescheduled to accommodate the interviews and every request made by me was complied with. A few witnesses returned to complete their interview or to deal with matters which arose while the inquiry was underway and which required clarification.

9. The witness line-ups, venues and transcription services were arranged by Cluver Markotter. This was done in an efficient and diligent manner with no delays and the attorneys who sat in at the hearing, particularly Ms Herna Beviss-Challinor and in her absence, Ms Beatrice Markgraaff, had no hesitation in starting early and sitting for extended periods with short breaks. Transcripts and other requested documents were provided upon receipt after each sitting. On the exceptional occasions where there was a delay on the part of an interviewee in delivering documents, this was followed up and attended to. The inquiry would not have progressed as smoothly as it did without the assistance and support from Cluver Markotter coupled with the accessibility and willingness of the witnesses to participate and contribute towards a satisfactory outcome, for which I extend my gratitude.

10. There was an extensive line-up of witness as recounted below who were interviewed on the following dates:

10.1. on 16 March 2016

10.1.1. Prof. Nico Koopman, the acting Vice-Rector for Social Impact, Transformation and Personnel. Various heads report to him, including Dr Antoinette Smith-Tolkin, the Head of Social Impact; the Head of Transformation, Ms Monica du Toit; the Head of Personnel, Prof. Tobie de Coning and of Legal Services, Mr Lipp;

10.1.2. Mr Danie Roux of the SD unit and who reports to Mr Lipp;

10.1.3. Mr Paul Beresford, the investigating officer in the SD unit and who also reports to Mr Lipp;

10.1.4. Mr Pieter Kloppers, the Director of the Centre for Student Structures and Communities within the division for Student Affairs and the Line Manager for the heads of the residences. Mr Kloppers reports to Prof. Schoonwinkel;

10.1.5. Ms February, a human resources practitioner in the employ of the university and the residence head of Heemstede;

10.2. on 18 March 2016

10.2.1. Prof. Nico Koopman, who returned to complete his interview;

10.2.2. Mr Mathew Smorenburg, who raised a number of concerns and was excused from attending to afford him an opportunity to address the issues raised and to take legal advice;

10.2.3. Ms Vanessa Melato, a resident at Heemstede;

10.2.4. Prof. Arnold Schoonwinkel, Vice-Rector: Learning and Teaching, who heads up five divisions at the university, including Recruitment and Student Affairs. Prof. Schoonwinkel is also responsible for the Centre of Student Counselling and Development under which the newly established Equality Unit resorts. He attended the inquiry with an attorney, Mr Abrahams from Bowman Gilfillan;

10.2.5. Ms Amanda Keli, a resident at Heemstede;

10.3. on 22 March 2016

10.3.1. Dr. Leslie van Rooi, a Deputy Director in Student Affairs and the Head of the Van Zyl Slabbert Leadership Institute. He is also the head of Simonsberg Residence;

10.3.2. Ms Susan van der Merwe, the Director for Communications and Public Liaison;

10.3.3. Ms Thabile Mofokeng who lives in Johannesburg and was interviewed telephonically. She is a former student at the university and was resident at Heemstede while enrolled there;

10.3.4. Mr Bernardus Lambertus Pieters of AfriForum, the Campus Co- ordinator: Maties. He was accompanied by Mr Toulan André van der Walt who sat in as an observer and did not contribute;

10.4. on 29 March 2016

10.4.1. Mr Tledima Desmond Moeketsi Mosomothane (“Yeki”), a multicultural co-ordinator and educator who joined the university in September 2015. Prior to that he was at the University of the Free State for six years where he was in charge of Institutional Student Governance. His role at the university is to work with staff and students to foster a spirit of inclusiveness and to work with them in programmes which facilitate cultural diversity;

10.4.2. Axolile Qina, the SRC Chairperson for 2015/2016;

10.4.3. Ms Beauty Mazibuko, a member of the HK and a resident at Heemstede;

10.4.4. Dr Munita Dunn-Coetzee, who manages the Centre for Student Counselling which comprises five units, viz. one for academic counselling and development, the second for students with special needs, the third focuses on career development to prepare students for employment, the fourth renders psychotherapeutic and support services, and includes a 24/7 crisis line. The fifth centre is the Equality Unit to which both students and staff have access in matters concerning discrimination, harassment, sexual harassment and victimisation. The Equality Unit has similar objectives to those contained in the Promotion of Equality and Prevention of Unfair Discrimination Act, No.4 of 2000 (“Pepuda”);

10.4.5. Ms Demi Roodt, the head student of Heemstede who is referred to inter alia as “the Primaria”, “the Primarius” or “the Prim”;

10.5. on 8 April 2016

10.5.1. the interview with Demi continued;

10.5.2. a further interview was conducted with Ms February;

10.5.3. Mr Kloppers requested a further hearing to which I acceded;

10.5.4. Ms Fanele Ngcobo, a resident at Heemstede;

10.5.5. further questions were put to Dr Dunn-Coetzee;

10.6. on 25 May 2016

Mr Mathew Smorenburg accompanied by Adv. Pieter-Schalk Bothma. Adv Bothma was instructed by Falcon & Hume Attorneys of Johannesburg. Mr Smorenburg is the Head of LLL for the institution and also the Head of Russel Botman House. LLL is an acronym for Listen, Live and Learn, a flagship residential programme for the university at senior student level;

10.7 on 8 June 2016

Mr Smorenburg’s interview continued with Adv. Bothma in attendance;

10.8 on 22 July 2016

10.8.1 the continuation of Mr Smorenburg’s interview in the absence of Adv. Bothma who could not be present. Mr Smorenburg did not want to delay the inquiry and elected to continue without his legal representative being present;

10.8.2 a telephonic interview with Mr Jaco du Plessis who does computer searches on electronic posts relating to the university;

10.8.3 Mr Martin Viljoen who runs and co-ordinates the media office and reports to Ms Van der Merwe;

10.8.4 Prof. Antonio George (“Tobie”) de Coning, the Chief Director: Strategic Initiatives and Human Resources at the university.

The facts and timeline of events

11. The party was held at Heemstede residence on 4 February 2016. It was scheduled to begin at 18h30 but started later. Several pictures were taken that evening which depict the students dressed up in line with the theme. Glitter and foil accessories are evident from the photographs. Some students also had splodges of paint on their faces and bodies. The only students who covered their bodies in paint were Christine and Jo-Anne.

12. It is evident from the photographs that the students were enjoying themselves and that Christine and Jo-Anne were wearing purple paint. Several students were impressed with the lengths to which they had gone to fit in with the stellar space theme. Not everyone felt this way however. Vanessa Melato and her friend Amanda Keli arrived at the party at around 20h00. Vanessa paid the entry fee to Demi who took the money from her. Vanessa said that she was standing with Amanda when she saw Jo-Anne and Poekie who were not far from them. In her words: “So I looked at Demi and I’m like, okay, she sees them, but the paint that moment looked brown to me. So I was feeling a bit offended, so I looked at Demi and just like, okay, she can see them clearly. She could have done something. So she gives back my money saying, no, you don’t need to pay as the punch ... is finished.” 1

13. According to Vanessa it was dark at the time and she wondered why they were painted dark brown and thought are ‘they trying to make fun of my people or something”.2 She did not stay at the party for long and left after about fifteen or twenty minutes because she felt very uncomfortable. Amanda left before her because she did not like what she was seeing.3

14. I asked Vanessa why she didn’t raise the issue with Demi then and there to which she responded she did not want to seem oversensitive and decided to go through the IC Heemies which is what she did.4

15. Two members of the IC Heemies, Olona and Alundrah addressed a text message to Demi at around 22h00 complaining about the fact that Jo-Anne and Poekie were painted brown and why she (Demi) had allowed it. Demi responded that she wanted a meeting with them the following day.5

16. Vanessa was not happy about Demi only requesting a meeting the next day.6 There were exchanges between Vanessa and Demi in the days following the party which appears to have had its roots in a media interview. Vanessa lodged a complaint against Demi at the Equality Unit and requested that they keep it on record in case Demi does something else. Demi was unaware of the report made to the Equality Unit.

17. Vanessa informed the inquiry that Demi apologised to her. The reason volunteered by Vanessa for the apology was because Demi made her feel victimised in her own room and for also making her feel threatened.7

18. Vanessa did not know that it was purple paint and only heard this on the Friday. According to Vanessa, she saw brown and it didn’t really help if someone told you after the event that it was purple. Vanessa reasoned that if Demi had a meeting with them “then she would have asked the girls to paint off, it was like brown and it was going to be solved at that moment and it wouldn’t have reached social media, because she would have told them, do not post pictures about it. People might see the wrong colour. If these two girls can see this colour, probably some other people on social media could also get it confused, because it is a big thing to Black people, honestly, if you are going to post such a thing. So if you are going to post a picture like that, obviously it is going to get a lot of negative comments and everything. ... So that’s why I wanted them to respond at that moment. And I was like, it could have been solved in res, it didn’t have to go on media. It didn’t have to become big like it did. It was not necessary.” 8

19. Amanda Keli confirmed Vanessa’s version. When they arrived at the party she “saw brown and I was kind of surprise (sic) to see brown in the quad, because it was an alien, an Interstallar theme. So I was offended, because it is not a nice brown. It was brown almost like a human defecation and the way it was painted, it was smeared. So it kind of looked disgusting.” 9 Amanda thought that it was a first year student who was new to the residence and not used to Black people, and did not know that the colour might give offense.10 She confirmed that she left the party after five to ten minutes and having reported the matter to Alundrah. Amanda was upset during her interview and stated that as a result of the fall-out over the incident, her father’s sugar levels shot up to 36 while Vanessa’s hovered around 1 and 3.11

20. Beauty and several other students interviewed or who submitted statements to the SD unit found nothing offensive about the fact that Christine and Jo- Anne had painted themselves purple for the party. Beauty was also unaware of any complaints that were lodged on the evening of the party but felt that had those students who were affronted by the paint reported it immediately, the matter would have been resolved much sooner, possibly that evening. 12

21. Beauty stated that the photo had been “blasted on Facebook”.13 I interpose to mention that it had been seen on Twitter by Thabile Mofokeng. She did not know who had posted the picture originally but it had been transferred from the Instagram account to Twitter. Thabile took a picture of the photograph which she saw on Twitter and posted it to Facebook “enquiring what this looks like”.14 She did not want to “jump the gun and say this is blackface” hence her posting it onto a different social media platform and posing the question.15 When she first saw the picture her immediate reaction was that it was an instance of blackfacing. It had already been perceived as such on Instagram and Twitter. The responses to Thabile’s question on Facebook confirmed her initial thought.16 Thabile saw the tweet between 8 and 9 am that morning and the moment she saw it she was offended.17 She also saw the apology posted

on Facebook but did not think that it went far enough. It merely apologised for how the picture was perceived without explaining the circumstances of the posting. According to Thabile it constituted no more than “a general apology to please the public.”18

22. She had no difficulty with Christine and Jo-Anne being exonerated but felt that dialogue between them and her would help to address the situation.19

23. Thabile acknowledged that they were in fact painted purple but pointed out that the photograph “posted on social media gave the impression that they were partaking in blackface, and because of that, it caused an uproar.” 20

Although she accepted that it was not an instance of blackfacing, she

remained firmly of the view that “the implication of that photo on social media gave the impression that they were partaking in blackface”. 21

24. Reverting to the party on 4 February 2016, Demi could not recall seeing Poekie. She did see Jo-Anne’s face and described what she saw, viz. purple, glitter and ears which accorded with the theme.22 She described the lighting in the quad and added that it was enhanced by the lights from the rooms at the residence.23

25. They had to clean up after the party and she returned to her room shortly before 23h00 when she saw a WhatsApp message from Olona.24 Olona messaged Demi at 22h06 but she only saw the message when she returned to the room and responded at 22h58. Her cell phone was in her room on

charge during the party. Consequently, it was just before 23h00 when Demi saw the complaint. Prior to that she had no inkling that anyone had been offended. Given the lateness of the hour she responded by asking Olona to see her the next day together with the other students who were concerned by

what they had seen. She did not know the identity of the complainants.25

26. Demi prepared a chronology at my request and made a copy available. The following recordals appear therefrom. At between 07h00 and 07h45 on the morning of 5 February she spoke to the HK to obtain information relating to the complaint that some students were unhappy by Christine and Jo-Anne having painted themselves black/brown. The HK responded that it was purple. She also made enquiries from the IC Heemie’s and was trying to arrange a meeting with Olona who had messaged her the night before.

27. At between 08h00/08h20 she went to look for Mr Kloppers but forgot that he was conducting interviews with prospective employees. Her house mother, Ms February was also sitting in on these interviews. Demi thereupon contacted her parents apprised them of the situation and asked for advice.

28. She attended class at 09h00 when her phone “went crazy with msgs and phone calls”. She asked to be excused from class and returned to her residence and asked the IC Heemies to meet with her. She also sent text messages to Christine and Jo-Anne and asked them to see her immediately. While waiting for them, she had conversations with Fanele and Kaybee both of whom are members of the IC Heemies. At around 10h35-10h40 Christine came to her room and a few minutes later Mr Smorenburg called her to come to the Russel Botman residence.

29. She and Christine walked across to this residence and she also tried reaching Jo-Anne again, but was unable to make contact. They arrived at House Russel Botman at approximately 11h05 and Mr Smorenburg and Dr van Rooi arrived 5 minutes later.

30. Demi explained that Poekie had posted a picture on Instagram which, according to Demi went everywhere.26 One Wenzile sent her a screenshot of the picture and enquired whether she had seen it. Similar enquiries were made by other people and that is why she wanted to speak to Mr Kloppers early the Friday morning. 27

31. The meeting at the Russel Botman residence commenced at about 11h12 and Jo-Anne arrived a few minutes later. Beauty and Natanje also attended the meeting. Demi confirmed that Mr Smorenburg asked what happened and that Poekie and Jo-Anne explained that they had painted themselves purple. Demi confirmed that it was purple paint. Matthew took Demi’s cell phone and started to compose a text message but her phone kept ringing whereupon he returned her phone and typed it on his. After preparing the message he sent it to Demi so that it could be distributed to Whatsup groups and posted on the Heemstede Facebook page.28

32. Demi pointed out to Matthew that perhaps the word “alleged” should be used in the text message “because it is not proved as a Blackface incident”.29 Mr

Smorenburg disagreed with the use of the word alleged. He also prepared a message for Poekie and Jo-Anne without using the word alleged.30 I asked Demi why Mr Smorenburg did not want to insert the word alleged. She could not recall his exact words but he explained that by inserting the word alleged it would make things worse because it was a blackface incident.31

33. Demi was told to post it on all social networks and the Heemstede facebook page. She explained that Mr Smorenburg is a senior and a person in authority.

34. Demi confirmed that after Mr Smorenburg prepared the statements he read it aloud and that this occurred in the presence of Dr van Rooi.32 Mr Smorenburg also indicated amongst others that:

34.1. it was classified a blackfacing incident;

34.2. Google doesn’t forget;

34.3. anything can happen from nothing to an expulsion;

34.4. it was going to be investigated;

34.5. it was a serious matter.33

35. At approximately 12h30 Demi and Matthew walked to Heemstede where he spoke to the House. After addressing the students he left the residence.34

36. The HK members then met in Demi’s room where she and Beauty briefed them on the meeting held earlier that day. While they were discussing the matter, somebody knocked on her room door and advised that there was a stranger in the residence. They all went out to look and observed “people in the quad singing and screaming and demanding myself, Poekie and the house mother.” They did not know Jo-Anne’s identity at that stage. One of the first year students struck the fire alarm. A second year student swiped herself in and they then stood between the door keeping it open and allowing everyone into the residence.35 The people who had forced their way into Heemstede were looking for Jo-Anne and Demi.36

37. One girl by the name of Jody asked Demi a couple of questions and wanted to know whether Jo-Anne was going to be released from her duties as a mentor and whether they were going to be expelled from the residence and also from the university to which Demi replied that she had absolutely no authority to answer any of those question. She was questioned about Jody’s identity and responded that she did not know her at all but that she was also a protestor or she had also “invaded the res”.37 Ms February also made reference to one, Jody Williams during her interview.

38. The protestors demanded a discussion concerning the incident. Monica and Yeki were at the residence at the time and asked Demi about it. She explained that she was struggling to reach the house mother. According to Demi she does not have the authority to make any decisions herself, but knew that Ms February was usually at the residence at 16h00 or 16h30 and so would be able to attend the discussion at 18h00.38 Demi was under the impression that the situation would be resolved at the meeting later that evening by advising that “it was an absolute miscommunication or it was purple, here is our side, please understand our side, to get our facts out, that was the purpose”.39

39. When agreeing to have the meeting at 18h00 on the Friday evening, Demi had not managed to make contact with Ms February and they were not expecting the mass crowd that attended.

40. The protestors remained at the residence and only left after there was agreement on the meeting at 18h00. After they left Heemstede Demi called an emergency house meeting.40

41. She explained that most of the residence went home on a Friday but the girls were also scared as a result of what had occurred at the residence and there were far fewer residents present than usual.41 When the house mother, Ms February arrived after 16h00, the students were still in discussion. Ms February checked on Demi’s wellbeing and asked to be filled in on what had happened at the residence and about the meeting earlier that day with Mr Smorenburg and Dr Van Rooi.42

42. Demi was not involved in the decision to release Jo-Anne of her mentorship duties. This decision was taken by the head mentor and the house mother.43

43. Jo-Anne was saddened by this and was in tears. The head mentor informed Demi that Jo-Anne mentored a very diverse group of first years and the decision to release her of those duties was to protect them as well.44

44. At 17h00 a meeting was held in Ms February’s flat attended by Ms February, Dr Van Rooi, Mr Kloppers, Demi and Ilse Coetzee, the head mentor. While the meeting was underway Yeki and two vice-rectors, Profs. Schoonwinkel and Koopman also joined the meeting. Demi explained that Mr Kloppers asked Ms February whether she was going to expel the students or what is going to happen or are they going to be expelled temporarily. Ms February decided that she would do so and asked Ilse to call Christine and Jo-Anne so that Ms February could speak to them. Demi added that they had a conversation about it and in light of what happened at the res and also for Christine and Jo-Anne’s sake, Ms February felt that it would be best then to have them expelled temporarily pending the investigation. This was done for safety reasons, that is, for their own safety and for the safety of the other residents. Mr Kloppers conveyed the temporary expulsion to them and asked them whether they had a place to stay. Jo-Anne responded that her mother lived in Stellenbosch. Mr Kloppers then asked Christine if she had a place to stay. She indicated that she would stay with Jo-Anne because her parents lived in Namibia. They were not given an opportunity to explain why they should not be expelled. After the decision was communicated to them, they were taken to the crisis centre at the university.45

45. Demi could not recall whether Christine and Jo-Anne were informed why they were temporarily expelled, but did say that they were not given notice of a complaint. By the time the vice-rectors arrived at Ms February’s flat where they were meeting at the time, the temporary expulsion had already been communicated to Jo-Anne and Christine.46

46. Jo-Anne initially wanted to address the meeting scheduled for 18h00 to explain her innocence, but about ten minutes before the meeting was due to commence, decided against doing so. Christine was too scared to speak at the meeting.47

47. Demi proceeded to describe the meeting which was volatile and various demands were made including that Poekie and Jo-Anne be expelled, they wanted an Oscar Pistorius trial, they wanted Demi and the whole HK as well as the house mother to be fired or expelled or released from their duties. They also wanted a full expulsion, not just an expulsion from the residence.

They also requested that an enquiry be undertaken to which the vice-rectors, Profs. Koopman and Schoonwinkel acceded. The vice-rectors left while the meeting was in progress. The meeting carried on until about 20h30 but the crowd remained at the residence for another hour or so.48

48. Demi’s description of the meeting accorded with that of the vice-rectors and Ms February. Dr Van Rooi attended for a short while. Mr Smorenburg was also in attendance for some of the time. Members of the EFF and Open Stellenbosch were also in attendance. The meeting was heated, insults and demeaning language was employed. Beauty was called a coconut and “Kill the Boer” song was sung. Yeki who was meant to facilitate the meeting was unable to do so. After Yeki stood down as facilitator, the meeting continued in the same fashion with the HK and residents of Heemstede being demeaned, insulted and shouted down. They were also powerless and unable to put their version across.

49. Nothing was resolved at the meeting. The students were not permitted an opportunity to state their side and explain that matters had been taken out of context.

50. Ms February thought that it was inappropriate that the vice-rectors left during the meeting. The situation was volatile and the students were being treated in an abusive manner. Mr Smorenburg was of the view that the presence of Professors Koopman and Schoonwinkel was unwise since it served to inflame the crowd even more. Beauty confirmed that a lot of anger was directed at them because the crowd was dissatisfied with the manner in which the 2014 incident was handled by the university.49

51. Demi explained that the situation was new to her. There was no one to call upon since Mr Kloppers and Ms February were conducting interviews and were not accessible on the Friday. The students were fearful when their residence was stormed at lunchtime on the Friday. This was another foreign situation. Anika and Yeki were present and gave their support. When the protestors came into the residence, she contacted Matthew out of desperation because she could not reach Ms February and Mr Kloppers and had no idea who to call.

52. A meeting was held at the residence on the Sunday evening. Students were traumatised and Demi did not appreciate some of the statements made by Mr Kloppers.50

53. Mr Danie Roux is responsible for Student Discipline and reports to Mr Lipp.

Their department was only requested to investigate the incident on Monday, 8 February 2016. According to Mr Roux all the complaints are supposed to come to him and he would then decide whether to investigate or not. Mr Paul Beresford who was formerly a member of the South African Police Service then gathers the relevant evidence. Once Mr Beresford had done so, he and Mr Roux would decide on how to deal with the matter. For example, a more serious matter such as the one in issue should go to Mr Lipp, but not the normal run-of-the-mill matters. Mr Roux decides whether a matter should go to the Disciplinary Committee or whether it should be referred back to the department, etc. He explained what was meant by less serious or smaller matters as those where the university’s image was not at stake. He explained the disciplinary process.

54. According to Mr Roux he was not informed of what had occurred on the Friday. On the Saturday evening somebody told him that there was a black facing incident on campus. According to Mr Roux, at that stage the damage was done as “Pieter Kloppers and his people actually jumped in and they did their thing on their own steam”.51 Mr Roux was informed on the Monday that they were asked to leave the residence because it was not safe for them to stay there. Mr Roux pointed out that when Mr Smorenburg previously had an incident at the residence in respect of which he is in charge, he contacted Mr Roux to ascertain whether the student should be suspended or not and he found it strange that the Heemstede incident was not handled in the same way.

55. He confirmed that Mr Kloppers asked Mr Smorenburg to attend to the incident on the Friday, but felt that Mr Kloppers should firstly have ascertained what had happened and if they were of the view that the two students should be suspended from the residence, they should at least discuss it. The students should also be given an opportunity to make representations.

56. He appreciated the need to ensure Christine’s and Jo-Anne’s safety, but after speaking to the girls and their parents, allegations were made “that the university didn’t care for the kids, nothing was provided for their safety or wellbeing or whatever”.52 The report prepared by Mr Roux excluded the statements from Jo-Anne and Christine because they were waiting for copies from their attorneys. The report is dated 10 February 2016. On the Thursday evening Mr Beresford sent Mr Roux a message to say the statements had been received from their attorneys and that Mr Briedenhann delivered the signed statements just after 07h00 the Friday morning.

57. Mr Roux was upset about the manner in which the matter was handled because at 09h00 a.m. on the Friday morning he and Mr Beresford had a meeting with the prosecutor, Mr Hess of Cluver Markotter who advised that a meeting had been held at 07h00 that morning, attended by Messrs Hill, Hess and Lipp, and he believed that the girls were back in residence. Mr Beresford was concerned by this discussion because when he took delivery of the statements from Mr Briedenhann, he was unaware that the girls had already returned to Heemstede on the Thursday evening and was on the point of telling him that the matter would be discussed with management and would then let him know when the girls can go back. Mr Beresford confirmed Mr Roux’s version. He received word of the incident late the Friday evening when Mr Kloppers advised him thereof. Mr Beresford informed the inquiry that Christine posted two pictures on Instagram, which someone then posted onto Facebook. He had sight of the pictures which were posted onto Instagram and was of the view that there were no grounds for a prosecution or a disciplinary hearing.

58. Dr Dunn-Coetzee is responsible for the recently established Equality Unit at the university. She spoke frankly about the shortcomings of the unit and outlined during her interview where there was room for improvement.

59. The following was evident in the course of my interview:

55.1. the Equality Unit lacks representivity;

55.2. this would however be addressed when two vacant positions were filled;

55.3. there was a failure to have properly investigated the matter, despite receiving two complaints on 5 February 2016, including one from Mr Smorenburg;

55.4. the protocols in the draft policy were not followed;

55.5. no documents and/or information were produced which were ostensibly “reviewed”;

55.6. the report asserts that this was not a blackface incident, yet there was no contact with the students implicated in the matter and it is not known how this conclusion could be reached given the picture which went viral, and which Christine immediately removed;

55.7. due process could not have been followed, as alleged;

55.8. the report relies on the findings of the SD unit but this too has shortcomings to which I’ve already adverted;

55.9. the recordal of the complaint made by Vanessa is inconsistent in parts of the pro forma complaint document. One cannot investigate in the absence of knowing what the complaint is;

55.10. although Vanessa lodged the complaint for record purposes, it raises serious matters which should perhaps have been considered by the Equality Unit and measures put into place to prevent a recurrence;

55.11. while it is well and good to have policies, it does not help if they are not adhered to and if the objects of the unit are not met;

55.12. the equality provisions in the Constitution and Pepuda seek to vindicate important rights.

56. I accept however that the Equality Unit was in its infancy when this incident occurred and that Dr Dunn-Coetzee is committed to redressing issues that require attention. The unit has made strides since its inception inter alia by training facilitators, recognising the need to train more, putting protocols in place, employing more staff and will in all probability fulfil the functions of such a unit if it has not already achieved this purpose.

57. Mr Smorenburg testified on his involvement in the matter. It came to his attention that the pictures which Christine posted on her Instagram account had gone viral and reported this to Mr Kloppers who is his line manager. Mr Kloppers was conducting interviews at the time and requested Mr Smorenburg to attend to the matter, together with Dr Van Rooi, the head of Simonsberg Residence where students were implicated in a similar event which occurred off campus during 2014. Mr Kloppers asked Mr Smorenburg to attend to the matter given his experience and knowledge of social media.

58. Mr Smorenburg explained that the matter was trending on social media which, in essence, means that it was the subject matter of many posts. He was concerned about the reputational damage to the university, given the rapid escalation in the postings and thought that it would be of assistance to also post a message on social media in the hope that the spiral would decline and that the matter would enjoy less prominence. Mr Smorenburg explained the use of hashtags on social media. They are denoted by “#” and are used to organise messages on a social network platform. It facilitates searches and the grouping of messages and does no more than to refer to the name of an incident. He also made available a text authored by Emma Sadleir and Tamsyn de Beer titled “don’t film yourself having sex”. This book was also referred to by other witnesses. It contains a number of useful definitions relevant to Web 2.0. Facebook is defined as a social network that allows users to build communities of friends and to share content with them.53 The authors describe Instagram as a smartphone application that allows users to edit photographs and videos which may be published to either a closed or open network of followers.54 Twitter is described as a micro-blogging platform which limits tweets or posts to 140 characters or less which is publicly available and retweeting means to forward or repost the tweet of another Twitter user. According to the authors, this is analogous to forwarding an email.55

59. The use of the hashtag is a convenient search tool on various social media platforms. Some sample searches undertaken during the inquiry included “#blackfacing University of Stellenbosch”, “#blackfacing Facebook University of Stellenbosch” and “#blackfacing Twitter University of Stellenbosch”. All these sites carried reports on the incident under consideration.

60. Mr Smorenburg explained the circumstances under which he prepared the text messages on Friday, 5 February 2016. He was instructed to handle the situation by his superior, Mr Kloppers together with Dr Van Rooi, both of whom had previous experience of students at the university who attended a 21st birthday party as Venus and Serena Williams. When doing various hashtag searches into the University of Stellenbosch, reference was made to the last-mentioned incident. The blackfacing incident at the University of Pretoria involving two white students who were disciplined for blackfacing also surfaced. These illustrations fortify Mr Smorenburg’s statement that Google does not forget.

61. As regards the formulation of the statement, this was done in the presence of Dr Van Rooi, Demi, Beauty, Christine, Jo-Anne and Natanje. Save for the fact that Demi was of the view that the word “alleged” should be inserted into the messages which were to be posted, no one appears to have had any issue with the contents. Dr Van Rooi was specifically asked whether Mr Smorenburg instructed the students to post the statement and he responded that he thought “Matthew advised them”56 and he expanded by stating that the students were worried when they realised what the implications of their actions could be. Dr Van Rooi also adverted to the aforementioned book which dealt with the implications of social media posts and the legal consequences “for a number of us to be more aware of the ramifications of our involvement in and on social media”.57

62. Christine’s parents travelled to Cape Town and had a number of interactions with Mr Smorenburg. I was provided with printouts of the electronic exchanges between Dr Briedenhann and Mr Smorenburg. It was clear that Mr Smorenburg was facilitating as far as he was able to and there was no suggestion in this exchange that there was any unhappiness with Mr Smorenburg’s involvement in the matter. An indisputable fact is that after Christine and Jo-Anne left campus following the decision taken on Friday, 5 February 2016, the protest action on the campus ceased.

63. Following a publication in the Rapport newspaper on 14 February 2016, widespread personal attacks were made on Mr Smorenburg. He was personally threatened, vilified and persecuted. Not only was his personal safety threatened, but also that of his family. A complaint was lodged with the Press Ombud concerning the accuracy of the reporting in the Rapport on 14 February 2016. The complaint was lodged by Mr Kloppers and, not unsurprisingly, the Press Ombud upheld the complaint relating to the apology.

Before the article was published in the Rapport newspaper, the university was presented with a list of questions to which it responded notwithstanding the somewhat unreasonable period allowed for a response and the nature of some of the questions such as why Open Stellenbosch was allowed to attend.

64. To put the Press Ombud’s ruling into context, it is necessary to recount the text message which Mr Smorenburg prepared on 5 February 2016, viz.:

“We are aware that our actions in the #blackfacing incident last night at the Heemstede stellar space party where painting our bodies dark purple and cover with glitter appeared as black and thus as attempt to demean and exotify blackness. We apologise for any offence occurred and take full responsibility for this. We are working with the university and other role players in this regard. We thank those who are trying to support us knowing we had no bad intentions but request that you do not try to defend the indefensible practice of #blackfacing”.

65. The Press Ombud in a considered ruling given on 23 March 2016 accepted that the journalist, Mr Malan, who authored the article in Rapport had the full text of the SMS at his disposal. The Press Ombud also noted “that it is rather strange that Rapport did not respond to Klopper’s complaint on this issue – this is the heart of his complaint…”.58

66. The Press Ombud was required to consider whether the reporter had quoted the SMS correctly; and whether omission of parts of the text would have made any difference to his story. In this regard the Press Ombud held:

 “As far as the content of the SMS goes, Malan only stated that the students thanked those who tried to support them and requested their friends not to try and pardon the inexcusable”.

67. This quote does not conform to the journalistic standard set by the Code of Ethics and Conduct, as:

- the omission of the words “knowing we had no bad intentions” (after having thanked their friends who tried to support them) left the reader with no indication as to the students’ intentions – and, in fact, it may easily have been interpreted that the students admitted that they were guilty (read: that they in fact had tried to blackface themselves); and

- even worse, the second part of the SMS stated the “the students requested that their friends should not try to defend indefensible practice of #blackfacing”. Malan omitted these last three words. Again, the context of what was really said was lacking.

68. When read in conjunction with the fact that the quote did not cover the intentions of the students (or lack thereof), the second omission most probably would have exacerbated the impression that the “inexcusable” (or “indefensible”) referred to their behaviour – while, in fact, it pointed to the practice of blackfacing (which they were accused of on social media, but which they did not intend to do).

69. Given the fact that Smorenburg formulated this text, I need to conclude he accepted that the students did not intend to blackface themselves and that the caution not to justify referred to blackfacing and not to their actions. Clearly Smorenburg’s intention was to rectify any false perceptions in this regard. Unfortunately, this attempt was not reflected in the story.59

70. The second issue which the Press Ombud was required to rule on was whether the omission of the rest of the text message would or should have made any difference to Malan’s story, and also answered this in the affirmative. He emphasised that the SMS contained the words that the paint appeared black, which clearly it was not (emphasis supplied). The position was succinctly summarised as follows:60

“This is what happened:

- Malan quoted selectively from the sentence on which he chose to focus, leaving the false and unfair impression that the students admitted they were guilty, and that they requested people to stop defending them (while they were appealing to people not to defend the practice of blackfacing); and

- The omission of important parts of the rest of the SMS aggravated the situation – the matter would have been put in a different light if Malan had reported that he (Smorenburg):

o did not state that the students blackfaced themselves – rather, that he accepted they did not intend to do so; and

o tried to rectify the situation, inter alia, by explaining that blackfacing may be offensive to many people.

My conclusion is inevitable – by selectively quoting from a sentence, and by omitting material information from the rest of the text, the reporting on this matter was unfair, out of context and one-sided. It unnecessarily put Smorenburg in a bad light – and with that, of course also SU”.

71. Radio Sonder Grense also held interviews with Dr Briedenhann, Mr Kloppers and Prof Schoonwinkel. Mr Briedenhann acknowledged during his interview that he had sympathy for Mr Smorenburg. He went to meet him and appreciated that he found himself in a very difficult position. He nonetheless stated that Mr Smorenburg had no right to make an apology. The transcript of this interview also reveals that he was upset by the Rector’s failure to contact the parents.

72. Mr Du Plessis, who monitors electronic posts relating to the university, explained that this is done by using different acronyms and by monitoring social media platforms such as Twitter and Facebook. Any postings which may have an impact on the university are reported to a WhatsApp group comprising, inter alia, Ms Van der Merwe, Martin Viljoen, Christine Bombal, Phumzile Mmope, Desmond Thompson, one Rene whose surname was not provided and Jean van den Berg.

In Mr Viljoen’s interview he explained the hierarchy at the university that the Vice-Chancellor would be the main spokesperson for the university, that he delegates powers to the Senior Director: Corporate Marketing, who in turn delegates to him and to Ms Van der Merwe. Mr Viljoen was asked why the text message prepared by Mr Smorenburg did not go through the media office and whether it should have gone via their office, to which he responded “not necessarily. I was informed that that as a message for social media, not necessarily main stream media” and Mr Viljoen thought that the circumstances were such that Mr Smorenburg was acting to the best of his abilities “to alleviate the situation at that stage”.61

Mr Viljoen underlined that it was a serious emotional issue. He advised that it was mainly driven in the social media sphere and stated that “it was very emotionally driven”.62

73. He also emphasised that there were problems with the mainstream media in that you give a version which does not necessarily get published or is not published in the context in which it was written.63 The Afrikaans media persisted with the view that Christine and Jo-Anne were thrown to the wolves. I drew Mr Viljoen’s attention to the public outcry against Mr Smorenburg after 14 February 2016 and enquired what the university had said and/or done to protect an official being vilified and castigated in the social media.

Mr Viljoen responded that in his personal opinion “more could have been done to support him, to get the message out that he acted in the best interest of all parties concerned”.64 He also adverted to the list of some 25 question which Rapport sent to the media office on Friday afternoon but said that they were not interested in the university’s response. Mr Viljoen was also questioned on the fact that officials may not speak to the press other than through the media office and I pointed out the undesirability of being vilified, etc. in the media and not being able to defend oneself. That was exacerbated when the media office also failed to come to his defence.

74. A further question put to Mr Viljoen related to why Mr Smorenburg came under attack when Dr Van Rooi who was present when the SMS was drafted without demur, appears not to have received the same treatment. Mr Viljoen responded that it was “very unfortunate that Matthew came in to the firing line. Personally I sincerely believe that he did his best. Between himself, Leslie, Pieter Kloppers, the others involved, Nico Koopman, they have got a lot – they have got so much experience of handling protest action and I think that’s what they – I think they just did their work; they tried their best”.65

75. Prof de Coning who was the final witness emphasised the need for people to have the necessary competencies to deal with the situation at hand. He gave an example of a hostage negotiator who wasn’t equipped to do so.

76. It falls to be emphasised that this matter should be viewed on a number of planes. Firstly, there was the actual event on 4 February 2016 which several residents did not attend. Two took offence to what they perceived to be brown/black paint. Christine’s posting of two photographs on the Instagram account caused the matter to escalate to a different level since it was now in the public domain and went viral in record time.

Christine realised and appreciated that the one photograph was hugely problematic hence her immediate deletion thereof. Unfortunately, this was too late. Some of the witnesses interviewed were of the view that had the matter been resolved on the Thursday evening, the photograph would not have been published and gone viral. This is purely speculative. There is no suggestion that Demi, or any other person, save for Christine, Jo-Anne, Natanje and Renette Opperman who took the photograph using Christine’s cell phone, had knowledge thereof.

77. While there can be no doubt that Christine and Jo-Anne in fact used purple paint, the colour of the one photograph which Christine removed from her Instagram account, was problematic and found to be offensive. As Mr Smorenberg correctly pointed out, the Internet does not see context. Consequently, it comes as no surprise that this photograph was perceived to be tantamount to blackfacing.

78. I have considered the contents of the two statements prepared by Christine and the statements provided by their fellow Heemstede residents and accept that there was no intention to partake in blackfacing. The nature of the photograph and its rapid dissemination in the public domain was such, however, that the university could not remain supine and was required to investigate the incident. Matters were unfortunately exacerbated on 5 February 2016 on account of Demi’s inability to make contact with the house mother and Mr Kloppers. She did not know who else to contact in the circumstances and eventually took advice from her parents. Much of the response by the university on 5 February 2016 was reactive with instantaneous decisions having to be made.

The fact that one official handled a matter in a particular way, whereas another may have handled it differently does not necessarily render the former’s conduct wrongful or irregular. I am in agreement with Mr Viljoen that everyone involved in the matter acted in what they perceived to be in the best interests of all concerned, including the university. This matter had a number of ramifications. It engendered rage on the part of the student community and users of social network platforms. It created a danger, not only to Christine and Jo-Anne, but also to the other residents of Heemstede and it is with a measure of relief that no physical harm befell any of the students as a result thereof.

79. I now turn to address the issues raised in the mandate.

The reactions to and commentary on the events by the officials of the university

80. I have set out a chronology which documents the events prior to the party and subsequent thereto. On the facts of this matter, the university officials were required to act. The matter did not only concern Jo-Anne and Christine who had painted their faces purple for the party on the Thursday evening, the real impact was the picture which Christine posted on Instagram at 08h00 on Friday, 5 February 2016. On Christine’s version the picture was not well lit. It was perceived as blackfacing by some of the persons who saw it.

81. It was precisely for this reason that Thabile took a screenshot of a picture which had by then moved from Christine’s private Instagram account to Twitter which can be accessed worldwide, and posted it on Facebook. The photograph offended and provoked people, hence the negative outburst which called for a response.

82. It would have been inappropriate for the university not to have reacted to the social media storm that surrounded the publication of the photograph which was later removed.

83. Having carefully considered the versions presented during the inquiry, I have no reason to doubt that Mr Smorenburg sought to quell the mounting storm by preparing the aforementioned text messages. In my view, the Press Ombud’s findings as regards the SMS prepared for Jo-Anne and Christine has completely vindicated him.

Had the Press Ombud not become involved, the SMS condemning racism was still the correct route in the circumstances. While I appreciate and understand the constraints under which the media office operates, in the sense that an article may be prepared, but may not be published or that words may be taken out of context, more could have been done to keep the public apprised of developments and to come to the defence of the officials.

84. It is unacceptable that an official should come under fire but that protocol prohibits that member from defending him or herself. The fact that media releases of this nature should go through the media office is wholly inimical to the constitutionally protected freedom of speech.

The decision to temporarily suspend the two students from the residence

85. Their suspension was suggested by Mr Kloppers and agreed to by Ms February. In terms of the Student Disciplinary Code, this decision has to be taken by Ms February, but as she correctly pointed out during her interview, she was under no obligation to accede to Mr Kloppers’ suggestion.

86. The university bears a responsibility in respect of all of the students and officials on its premises. The storming of the residence at lunchtime was unsafe and constituted a potential risk not only to Jo-Anne and Christine, but all other residents of Heemstede. It was foresight on the part of the students to advise the protestors that the students who were being sought were not at Heemstede at the time.

87. Christine also underlined her and Jo-Anne’s fear and concern for their safety.

It was untenable that they remained in the residence and their temporary suspension pending the investigation is thus supported. It is also important to take cognisance of the fact that matters settled down thereafter.

88. Christine acknowledged in her statement that racism and blackfacing are unacceptable. Had they not been removed from their residence, this would undoubtedly have raised the ire of the other students and may have resulted in further incidents at the residence or elsewhere on campus. Before their temporary suspension was made known, temperatures were running high at the university.

The university’s temporary suspension of Christine Briedenhann as mentor

89. As pointed out above, Jo-Anne and not Christine was the mentor. She was responsible for mentoring a diverse group of first year students and there was concern for the safety of these students.

90. Both Jo-Anne and Christine were aware that they were being accused of blackfacing on social media. While there is no dispute about the fact that they in fact wore purple paint, one of the pictures uploaded onto Christine’s Instagram account did not show this and appeared black.

91. In my view, the university was duty-bound to investigate the matter and to suspend her from the mentoring position while this process was underway and it had been resolved.

The disciplinary investigation by the SD Unit

92. I have already outlined the shortcomings. It was unacceptable to make a finding without even speaking to the main protagonists. Their statements only came to hand after the provisional report was signed off.

93. The investigation was also flawed since none of the material role-players among the officials were consulted, save for Ms February.

94. The manner in which the investigation was conducted also gives rise to concern. The students were invited to submit statements. Consequently, some statements are fairly detailed but most are skeletal. Some students made negative reports which were never followed up.

95. The investigation appeared unduly rushed with no attempt to delve into the social media impact or the suggestion that perhaps the picture had been tampered with.

96. It would have been preferable to have given the students question sheets identifying those aspects that they were required to focus on.

97. There also appears to be some dissent as to who should have been involved on the staff side on the Friday.

The investigation by the Equality Unit

98. The Instagram picture prima facie bears the characteristics of blackfacing.

99. Christine acknowledged that it amounted to racism and was unacceptable.

Jo-Anne supported her initial statement.

100. These facts in and of themselves justified a thorough investigation on the part of the Equality Unit. However, and as I’ve outlined above, this did not occur.

101. Dr Dunn-Coetzee is aware of the challenges facing this unit, as recorded above.

Irregularities and shortcomings, if any, in the officials’ handling of the events

102. I have documented the handling of the events by the officials in some detail and have not been able to find that they acted irregularly.

Aspects which came to light during the commission

103. There are a number of institutional shortcomings which should be addressed.

These are listed under my recommendations below.

Recommendations

104. The university requires a social media policy. Students need to be apprised of the dangers of posting contentious material in whatever form and cautioned against it since it may leave an indelible stain on their integrity, and impact adversely on employment prospects.

105. Officials need to be equipped on how to deal with situations of this nature or similar incidents.

106. Officials need greater support from the university which should come to their defence and/or permit them to defend themselves without going through the time consuming process of the media-office with no control over what is eventually published.

107. A matter such as this should have been escalated to the top management of the university much sooner, not on the Friday afternoon. The vice-rectors should also have taken greater responsibility in directing the events of the day.

108. There should perhaps be a central reporting unit to which all matters which may potentially hold reputational risks for the university are reported. This unit should direct who attends to the matter and monitor what is happening at all times. It should also be accessible to students and officials around the clock to avert a situation such as the one with which Demi was confronted on 5 February 2016 when she was unable to raise her house mother or Mr Kloppers.

109. Disharmony among the staff was evident during the inquiry. They would benefit from one or more sessions whereby any ill-feelings, disagreements etc. are ventilated and, if necessary, facilitated.

110. There should be better communications systems put in place. Some officials had no inkling what the nature and purpose of the inquiry was. Another example is the fact that the SD unit was unaware that the students had returned to their residence.

111. I am aware that counselling was offered to certain officials, but this should be with a private psychologist and/or psychiatrist and not anyone attached to the university.

112. Mr Smorenburg and his family came under threat. I gained the impression that a lot more could have been done to ensure his safety and security. This is an aspect which should be looked into, not only in his case, but also other officials who are threatened.

113. The Disciplinary Code is outdated and in the process of being revised. Some of the issues arising out of this inquiry should perhaps be incorporated therein.

114. Some of the contents of this report may be relevant to the complaint lodged with the SA Human Rights Commission.

I advise accordingly and would be willing to clarify any aspect of this report, if necessary.

Renata Williams SC

Chambers Cape Town

22 August 2016

Footnotes:

1 Record, vol.1, p 320.

2 Ibid.

3 Record. vol.1, p 321.

4 Record, vol.1, p 321.

5 Record, vol.1, p 323.

6 Record, vol.1, p 326.

7 Record, vol.1, p 328.

8 Record, vol.1, pp 334-335.

9 Record, vol.1, p 408.

10 Ibid.

11 Record, vol.1, pp 422-423.

12 Record, vol.3, p 736.

13 Record, vol.3, p 727.

14 Record, vol.2, pp 541-543

15 Record, vol.2, p 543.

16 Record, vol.2. pp 543-544.

17 Ibid. pp 550-551.

18 Record, vol.2, p 553.

19 Record, vol.2, pp 551-552.

20 Record, vol.2, p 547.

21 Record, vol.2, pp 547-548.

22 Record, vol.3, p 833.

23 Ibid. pp 835-836.

24 Record, vol.3, p 839.

25 Record, vol.3, pp 842-843.

26 Record, vol.3, p 848.

27 Record, vol.3, pp 848-849.

28 Record, vol.3, p 860.

29 Record, vol.3, p 861.

30 Record, vol.3, p 861.

31 Record, vol.3, p 862.

32 Record, vol.3, p 866.

33 Record, vol.3, pp 869-871.

34 Record, vol.3, p 872.

35 Ibid. at pp 872, 873 and 875.

36 Record, vol.3, p 876.

37 Record, vol.3, p 879.

38 Record, vol.3, pp 879-880.

39 Record, vol.3, p 880.

40 Record, vol.3, p 882.

41 Record, vol.3, p 883.

42 Record, vol.3, pp 884-885.

43 Record, vol.3, pp 885-886.

44 Ibid. p 886.

45 Record, vol.3, pp 887-890.

46 Record, vol.3, p 892.

47 Record, vol.3, pp 892-893.

48 Record, vol.3, pp 892-896.

49 Record, vol.3, pp 752-753.

50 Record, vol.3, pp 912-914.

51 Record, vol.1, p 38.

52 Record, vol.1, p 47.

53 Ibid, p 1.

54 Loc cit.

55 Ibid.

56 Record, vol.2, p 497.

57 Ibid, p 498.

58 Ruling of Press Ombud p 4.

59 Ruling of the Press Ombud supra at p 4.

60 Ibid, p 5.

61 Record, vol.8, p 1454.

62 Ibid.

63 Record, vol.8, pp 1454-1455.

64 Record, vol.8, pp 1462-1463.

65 Ibid at p 1478. See also p 1494 where this was restated.

Issued by Stellenbosch University, 2 October 2016