UNIVERSITY OF CAPE TOWN

In the matter between

THE DASO SRC ELECTION CANDIDATES 2012 -Appellants and

STUDENTS' REPRESENTATIVE COUNCIL OF THE UNIVERSITY OF CAPE TOWN -Respondent

Being an

APPEAL TO THE VICE-CHANCELLOR IN TERMS OF PARAGRAPH 11.2 OF THE BY-LAWS PROMULGATED IN ACCORDANCE WITH THE CONSTITUTION OF THE STUDENTS' REPRESENTATIVE COUNCIL OF THE UNIVERSITY OF CAPE TOWN

DECISION

Prepared and written by Professor Hugh Corder (Vice-Chancellor's Nominee)

1 THE BACKGROUND

1.1 The process of electing a new Students' Representative Council (SRC) at the University of Cape Town (UCT) for the year 2012/13, under the auspices of the SRC Elections Committee (EC), began with the call for nominations on 14 August 2012. After the usual preliminaries, campaigning began on 10 September, followed by five days in which voting took place (the Vote Week, 17 to 21 September).

The most relevant event for this appeal which occurred during that week was that the EC, having received complaints about the use of portable electronic devices to cast ballots, ruled on the late afternoon of Wednesday 19 September that all electronic ballots cast before that time would be nullified, and that from then on till the end of the voting period, the use of portable electronic devices would be prohibited. Provisional results were published on Tuesday 25 September, with a notice that final results would follow provided that there were no objections, that all complaints had been resolved, and that campaign spending had been reported and approved.

Final results were duly published on Wednesday 3 October, showing the names of the 32 candidates in descending order of the total number of votes which each had attracted, indicating that just less than 35% of fulltime students had cast a vote, and noting that several complaints received during Vote Week had been resolved, that questions relating to campaign spending had been dealt with, and that no objections to the provisional results had been received.

1.2 This rather bland description of the electoral process hides any number of issues that had arisen during the election period, some of which are pertinent to the appeal of which this decision disposes. In particular, the publication of the steps taken against one of groups of candidates which contested the election, that of the Democratic Alliance Students' Organisation (DASO), in respect of its campaign spending, elicited an immediate flurry of complaints and objections, directed both at the EC and at the SRC.

As the EC had effectively reached the end of its mandate, the SRC decided at a meeting on Thursday 4 October that it would set up a sub-committee, subsequently known as the Commission of Enquiry (CE), to work speedily to gather information, interview as many of those involved as possible, and then to report its findings, with recommendations, to the SRC at its next meeting, on 10 October.

At this meeting, the SRC considered and debated the Report of the CE, and agreed with its findings on the various complaints, but not with its recommended sanctions. Instead, in order to indicate its displeasure, the SRC voted to disqualify all eleven candidates (one withdrew at the onset of the election, leaving ten effectively in the race, of whom seven had been declared elected among the 17 members of the new SRC) who had stood under the umbrella of the DASO.

1.3 This decision was notified to the campus community and to the DASO at 15h00 on Thursday 11

October, and the DASO submitted its appeal on any number of grounds to the Vice-Chancellor within the stipulated 24 hours, by late on Friday afternoon, 12th October. The Vice-Chancellor duly nominated Professor Hugh Corder, Professor of Public Law at UCT, to decide the appeal, within the ten university days allowed for in the By-Laws (paragraph 11.9). This decision is the outcome of the appeal.

2 THE APPELLATE PROCESS

2.1 There is no process laid down for an appeal such as this. On Monday 15 October, I was supplied with extensive documentation, such as the Constitution of the SRC, the electoral By-Laws, the Code of Conduct for candidates, the reports of the EC and CE, the appeal on behalf of the DASO, and so on.

After perusal of this "record", I asked several of those most centrally involved in these events to answer several questions posed to each of them through the good offices of an assistant, Mr Shannon Bernhardt (Bernhardt), put at my disposal by the Department of Student Affairs (DSA).

Once I had had the chance to read these answers and to review the documentation as a whole again, I identified seven people and invited them to attend an oral interview of 20 minutes each on Tuesday 23 October, to give me the opportunity to clarify a number of aspects of the process which remained opaque.

2.2 Those who attended in this manner were: Ms Emma Selfe (DASO candidate); Ms Edwina Brooks (Chief Electoral Officer and senior administrator in the DSA); Ms Insaaf Isaacs (current President of the SRC); Ms Marissa van Rensburg (South African Students' Congress [SASCO] candidate, who topped the poll and who was one of those who complained about DASO's campaign spending); Ms Alex Swanepoel (DASO candidate who scored the highest total of votes among all the DASO candidates, but who withdrew from the DASO group on 3 October); Mr Ross Hare (DASO campaign manager); and Mr Kwadwo Owusu (current independent SRC member, and also Chair of the CE). I requested Bernhardt to attend to take notes of the questions and answers, and Ms Moonira Khan (Executive Director, DSA) to attend as a silent observer, in essence to reassure those interviewed, and to ensure fair process. I notified each person interviewed that they could be accompanied by a friend, in support, but not a legal representative, but only Ms Selfe availed herself of this opportunity.

2.3 By way of introduction to each interviewee, after explaining the role of those present, I expressed the view that this appeal concerns more than the interpretation and application of the "law" which applies to this dispute, and that I regarded it as my role, in pursuit of a just outcome, to reach a decision and to fashion a remedy which would promote reconciliation and take the cause of student governance forward. It was in that context that I asked the questions which I posed. I have reached this decision on the basis of the written "record" and the oral interviews. I would like to thank all those who assisted me in this urgent task, especially Bernhardt and Ms Khan, who were unfailingly efficient and helpful.

2.4 It is appropriate at the outset that I mention the limitations of this appellate process.

First, it was not possible, within the time and resources at my disposal, to conduct an inquiry going into the type of detail which some may think appropriate, but is in my view not required by an appeal of this nature. This is especially the case, considering that the EC and the CE had each, in their own way, made such factual enquiries and compiled generally coherent and useful reports, on which I have relied, supplemented by my own enquiries above. I regard this as the appropriate way to proceed in a matter of this type.

Secondly, it was almost immediately apparent to me that the regulatory regime in "law" suffered from many shortcomings, and it became apparent during the oral interviews that for several years campaigning practices had been tolerated which, on the face of it, went counter to the electoral by-laws. This led me to the approach adverted to in the preceding paragraph. Thirdly, and perhaps most importantly, the appellate process grants a relatively wide discretion to the appellate authority to pursue a "just and equitable" remedy, within the limits of reasonableness. In this instance, I assume that the objective of promoting representative, responsible and good governance in the student sector within the university is something worth striving for, particularly given the constitutional values set out in section 1 of the 1996 Constitution of South Africa, which prize "accountability, responsiveness and openness" as the hallmarks of our participative democracy. Any electoral process is an essential part of such an objective, and I have attempted to enhance such values in the remedial part of this decision.

3 THE RULES

There are three levels of written regulations governing the conduct of SRC elections at UCT.

3.1 The Constitution of the SRC (Approved by the University Council on 2 June 2004, as amended) provides for the establishment of the Elections Committee (Article 4.1.6), and that "SRC Elections must take place annually in the manner prescribed in SRC by Laws" (see Chapter 10). The only other aspect of the Constitution of relevance to this appeal is Article

1.6.3, which states that the SRC is empowered to "extend recognition to or withdraw recognition from any student society or organizations in a manner prescribed in the Standing Rules of this Constitution..".

3.2 The By-Laws which seek to regulate elections, which are deemed to be a part of the Constitution of the SRC (see by-law 1). The following by-laws are relevant to this dispute and appeal:

3.2.1 by-law 2, which details the membership of the EC, its powers and functions (including the receipt of complaints regarding irregularities [2.4.7], arranging meetings with candidates to explain the rules to them *2.5.4+, and "presenting a full report to the SRC as soon as possible after the election, including an account on how funds were spent" *2.5.9+);

3.2.2 by-law 6.1.6, which requires all candidates to communicate all campaign plans to the EC before implementing them;

3.2.3 by-law 6.5, limiting each candidate to a maximum amount of expenditure "... whether this expenditure is incurred personally or on behalf of the candidate by others and /or by student organizations"-failure to register any expenditure "shall be liable to disqualification from the election.";

3.2.4 by-law 6.6, which prohibits the acceptance by candidates of any goods for use in their campaigns from anyone "at token or unreasonably low cost. In the event of such occurrence, the *EC+ shall assess the value of such goods ... and debit the candidate's election account accordingly."

3.2.5 by-law 6.7, which allows political associations to spend up to a maximum amount set by the *EC} on "media in support of any...group of candidates.";

3.2.6 by-law 6.8, which stipulates that a "candidate may be held responsible for the conduct of his/her support team members";

3.2.7 by-law 10.2, which provides that election results are final 24 hours after provisional results are declared if there are no objections or as soon as any objections are disposed of;

3.2.8 by-law 10.3, which allows EC decisions on objections to be appealed;

3.2.9 by-law 10.4, which requires the EC to report to the SRC within a month after an election of the conduct thereof, "together with an account of all election expenses incurred and any recommendations which it may wish to make.";

3.2.10 by-law 11.1, which provides that any irregularities in the electoral process must be reported to the EC "which must take steps as it deems necessary. These might include disqualification of candidates or submission to the University Tribunal.";

3.2.11 by-law 11.2, which requires that any appeal from a decision of the EC must be to the SRC and ultimately to the Vice-Chancellor, "whose decision shall be final."; and

3.2.12 by-law 11.3, which provides that objections to any election must be in writing and must reach the Chair of the EC within 24 hours of the declaration of the provisional results; that heads of argument must follow within the next 48 hours(11.4); and that the decision of the EC is subject to appeal to the SRC (11.5), which appeal must be lodged with the SRC Secretary General within 24 hours of the publication of the EC decision(11.6); that the SRC must dispose of the appeal within five university days (11.7); that an appeal against the SRC decision must be lodged within 24 hours accompanied by heads of argument with the Vice-Chancellor (11.8); and that The Vice-Chancellor duly nominated Professor Hugh Corder, Professor of Public Law at UCT, to decide the appeal, within the ten university days allowed for in the By-Laws (paragraph 11.9).).

3.3 The 2012/13 SRC Elections: Candidates' Code of Conduct, relevant clauses of which are:

3.3.1 clause 1.3, which binds all candidates to the Code;

3.3.2 clause 2.2, which repeats the requirement in the By-Laws that campaign plans must be approved in advance by the EC;

3.3.3 clause 2.3, which warns the candidates not to exceed the maximum spending allowance of R600 each, and clause 2.4 which requires candidates to provide proof of spending, "including the market value of sponsored goods...";

3.3.4 clause 4.4, which stipulates that candidates may not handle ballot boxes "and will not be allowed within 1.5 metres " of any ballot box, except when casting their own vote (similar to by-law 6.9, except that the latter gives the distance as 5 metres); and

3.3.5 clause 6.1, which outlaws any harassing or pressuring of students to vote, by anyone.

3.4 It became clear during the oral interviews that this set of written regulations governing the SRC Elections had a number of gaps, contradictions and imperfections, and is in urgent need of review and probable revision and amendment. For example, despite the fact that voting through VULA by electronic means has been in place for three years, there is no express reference at all to this possibility in the By-Laws. It also became clear, as will be seen below, that electoral practices had become established over the years which, at best, observed the letter rather than the spirit of this regulatory regime. Furthermore, the current Chief Electoral Officer, Ms Brooks, returned to this role after a break of some years, during which business may have been conducted differently.

4 THE FACTS

In what follows, I set out the salient facts relevant to the deciding of this appeal, within the broad picture sketched in part 1 above. In doing so, I mention only as much detail as I deem necessary to justify the conclusions reached.

4.1 As can be anticipated in most elections, a fair number of complaints was made to the EC almost from the beginning of the electoral process. Interestingly, given what transpired subsequently, almost all the complaints received by the EC up until the beginning of voting on 17 September emanated from DASO, and were aimed at conduct by SASCO candidates.

Some of these were found to be justified, and the EC then ordered the parties concerned to remedy their behaviour. For example, the EC upheld a complaint of early campaigning against Ms Marissa van Rensburg, a SASCO candidate, on 24 August, a full 15 days before permissible opening of campaigns, and fined Ms van Rensburg half of her allowance for the campaign, subsequently reduced to one quarter ( ie R150).

4.2 During the election week itself (17 to 21 September) the EC received a number of complaints about aspects of the conduct of the DASO candidates and their campaign. These can be allocated, for ease of reference, into four groups: first, several allegations of unfair or unseemly, even intimidating, behaviour by DASO candidates (Ryan Frame and Tarryn Naude), or someone purporting to campaign on their behalf ( a mass email from one "Lerato Pumi"), all of which were dismissed for various reasons; second, complaints relating to the extensive use by the DASO of mobile electronic devices (such as laptops and i-Pads) to encourage students to vote electronically, almost invariably in the close presence of one of the DASO candidates; third, complaints relating to the failure by the DASO to divulge, as part of the campaign plan whose disclosure in advance to the EC was mandatory in respect of each and every group or candidate, the presence on the campus during the Vote Week of Ms Helen Zille, national leader of the DA, and Ms Lindiwe Mazibuko, Parliamentary leader of the DA, which it was argued would have unfairly advantaged the DASO; and fourthly, complaints about campaign overspending by the DASO.

4.3 All such complaints were brought to the attention of the DASO, through its campaign manager, Mr Ross Hare (Hare), by means of a memorandum dated 21 September, which was aimed at giving the DASO an opportunity to respond. Hare responded a week later, and the EC ruled on all the complaints through a further memorandum dated 2 October.

Details of the last three groups of complaints will be dealt with below, but it is appropriate at this stage to record the overall assessment by the EC of the DASO campaign: "We have found DASO's actions in this election unacceptable. Even more regrettable has been DASO's unwillingness to acknowledge wrongdoing or to express remorse." (‘Closing Remarks' on page 2 of the EC memo to Hare, dated 2 October 2012).

4.4 It is important to note that some complaints were also made about minor aspects of the SASCO campaign, such as the use of a gazebo, a sign, a banner, and a loud hailer, none of which had been declared in its campaign plan. Each of these complaints was dealt with by the EC, and it costed all such undeclared expenditure, except for the loud hailer.

In this instance the EC found that Ms van Rensburg , a SASCO candidate, had deliberately flouted the rules of the election because she had gone ahead and used the instrument, after expressly being refused permission to do so by Ms Brooks herself. Ms van Rensburg denies having applied for permission in advance, but Ms Brooks clearly remembers the conversation, and is likely to have a better recall of this event. Although it is likely that this deliberate disregard of instructions only lasted a few minutes, the EC nevertheless mentioned it in their decision on SASCO Campaign Spending of 1 October , on page 2.

4.5 Subsequent to the completion of voting, vote counting and the publication of provisional results, the EC turned its attention to finalising the issue of campaign spending. The accepted approach of the EC in this election was that every candidate was entitled to spend up to R600 on their campaign, and that groups of candidates were allowed to pool such allowances, meaning for example that the DASO (with eleven candidates) was entitled to spend a total of R6 600. Expenditure of such campaign funds is regulated by By-laws 6.5 to 6.7 (above). Although By-law

10.4 requires the EC to report to the SRC within a month of the conclusion of the election, together with a report on all expenditure incurred, which must include campaign spending, this year the EC decided that it would be salutary to publish a report on campaign spending more widely. This initiative was a response by the EC to a suggestion by a student, Geoffrey Kilpin, who had no ostensible interest in the matter, other than, one must assume, the pursuit of good governance and transparency. (He also raised some questions on 6 October about alleged undeclared expenditure by both the DASO and SASCO, which remained unresolved at the time of this appeal process, but is not of a relevant nature.)

4.6 Thus a Summary of 2012 SRC Election Campaign Spending Report was issued by the EC on 4 October. This provided a full summary of the expenditure of every candidate or group of candidates, and noted that, where candidates received or used goods which they possessed, the EC assessed the cost using a reasonable formula in order to arrive at an amount spent. The summary report is divided into declared expenditure, market value of such expenditure, undeclared expenditure, the extent of any overspending, and any sanction imposed.

This report indicates that the EC had to estimate the market value in only one case (DASO), that only three instances of undeclared expenditure(DASO, SASCO, and The Way) were encountered, and that only two cases of overspending were identified (DASO and an Independent candidate, who overspent by 72 cents).

Both of the latter instances incurred a fine in the amount by which expenditure had exceeded the allowable amount, being R 7145.71 in the case of DASO, and 72 cents in the other case. At my request, the Chief Electoral Officer (CEO), Ms Brooks, provided me with a much more detailed document, which shows the breakdown of the summary figures presented here, and this bears testimony to the care and consistency of the EC in discharging this vital part of its mandate.

4.7 At the end of the Summary Report, the EC invited students "who wish to lodge an objection or complaint in connection with this report" to do so in writing to Ms Brooks within 24 hours of its publication. This apparently elicited about 27 responses, sent both to the CEO and to the Secretary General (SG) of the SRC, generally expressing regret that the DASO contraventions on the campaign expenditure front had attracted only a fine, and because they were substantially similar, they were regarded as appeals to the SRC.

4.8 The Commission of Enquiry (CE) The next step in this saga is the meeting of the SRC on 4th

October, the setting up of the CE, its investigations and reporting back to the SRC on 10th October, and the SRC's debate and recommended sanctions, as outlined in para 1.2 above. There are, however, several aspects of this series of events which are relevant to this appeal, and which should be noted. Some of them were contained in the documentation supplied to me initially, some formed part of the answers to questions which I posed in writing, and still others were disclosed in the oral interviews which I conducted. In no particular order of importance, the salient points are as follows:

4.8.1 Before setting up the CE, the SRC considered an opinion drafted in haste by its Deputy Secretary General, Mr Alex Spoor. Having noted that some eleven objections had reached the SRC regarding the final SRC results (which had contained the reference to DASO infractions of both campaign process and spending), in his view there was a prima facie case for the SRC to consider. Before it could do this, however, it was necessary to determine whether the SRC was entitled to hear such appeals. He argued that it was, citing as authority By-law 11.2, which provided for an appeal to the SRC "from any decision or ruling given by the EC", which was the case here. Spoor did, however, recommend that this aspect receive further attention. He then argued that, in order for the SRC properly to consider the substance of the complaints, it should form a working group, as the SRC as a whole was too large and cumbersome a body to do this. Thus the CE came into being, through a resolution of the SRC, adopting Spoor's opinion.

4.8.2 The recommended mandate of the CE was to determine whether the SRC had legal standing to consider the appeals, and their substance. The membership of the CE, as decided by the SRC on 4 October, was to be up to four of its own members, and up to three members of the Law Students' Council (LSC). In the event, the four members of the SRC chosen to serve on this body were drawn from diverse political viewpoints, one from SASCO, one from DASO, and two independents, neither of whom was affiliated to either of the former groups. Only one member of the LSC was invited to serve, the incoming President, Mr Singh, making five members in total. The CE was chaired by Mr Owusu, an independent member of the SRC.

4.8.3 In the event, the CE did not expressly discharge the first part of its mandate: when questioned on this, Owusu reasoned that this aspect had in fact been covered during the SRC debate which preceded its establishment. Perhaps it is fair to assume that the CE regarded the by-laws as a whole as granting the SRC the jurisdiction to hear such appeals.

The CE attempted, on the other hand, within the five working days at its disposal, to investigate as much of the factual background to the substantive complaints as possible, in the course of which it invited all candidates, the DASO campaign manager (Hare), the CEO, the Chair of the EC, Professor Leiman, and the Senior Proctor, Professor Rycroft, to interviews, all at short notice.

Of the candidates, only five accepted the invitation, and all DASO candidates refused to attend, due to the brief period of notice (even though, on Owusu's testimony, they were given a longer period of notice than any other candidate). The DASO candidates did, however, through an email sent by one of their number, Ms Selfe, raise in writing many of the arguments and objections which subsequently formed part of their arguments on appeal, which are set out below.

4.8.4 The Commission produced a 25-page report, Commission of Enquiry into the 2012/2013 SRC Elections, in which it traversed the main issues which arise in this appeal, and more, as follows: allegations of mass marketing by a non-student, undisclosed campaign plans, portable electronic devices, the nullification of all VULA votes cast before a certain time on Wednesday 19th September, incidents of alleged intimidation, and overspending.

All of these matters were either admittedly the conduct of the DASO campaign, or alleged to be so. The report expressly states that the SRC "is the ultimate decider" of the appeals, and that the role of the CE was advisory. At the outset, it makes several important recommendations: that offences leading to different sanctions should be defined, that there be a greater range of sanctions from which to choose, and that a way needs to be developed for holding campaign managers and support teams liable. [I respond to these recommendations in my Order below.]

4.8.5 In each case of alleged infractions of the electoral by-laws and code of conduct investigated by the CE, it recommended that the decision of the EC be upheld. In two cases, however, it recommended that the SRC either impose a sanction (in the case of undisclosed campaign plans) where none had been imposed, or impose a different sanction (in regard to overspending) appropriately more severe in its effect (the fine to be replaced by the suspension of the DASO from participation as a group in the 2013/2014 SRC elections, and the imposition of community service on all the successful DASO candidates) .

In reaching these conclusions, the CE expressly considered but rejected the sanction of disqualification of the DASO candidates, as it argued that this "should be reserved for the most egregious of violations e g electoral fraud, or if a formal warning is given. The impact of disqualification is to fiddle with the will of the voters even more than might have been done to provoke a sanction in the first place, further undermining the democratic process. In any event, the infringements need not necessarily lead to disqualification.

The candidates are merely liable to disqualification." ( See section 9, p 23 of the CE report, emphasis in the original.) In his oral interview, Owusu added that the CE had also been influenced in this respect by the Maharaj appeal (2005), see below, and that this recommendation had been the unanimous view of the members of the CE. When asked on what authority the CE had recommended community service, Owusu said that it was trying to be creative; and that, in any event, there was no express authority that he knew of for the imposition of a fine by the EC, but that there was precedent for this in past elections.

4.8.6 In addition, the CE recommended that the SRC ensure that in future the EC responded more quickly to contraventions of the electoral by-laws and the code of conduct, "which might require a stronger... monitoring and observation team"(see p 11), and that the by- laws and code be amended to include modern technological changes (see p 15). [Again, I respond to these points in my Order below.]

4.9 The SRC Meeting on 10 October The SRC duly considered the CE report when it next met.

Again, several aspects of this meeting and the decisions taken should be noted:

4.9.1 On the basis of information supplied to me by the SG at my request, the SRC had before it twelve appeals from individuals, and one from an organisation (the ANC Youth League UCT). The names of eleven of the complainants, and the texts of the emailed complaints were likewise provided to me at my request. They do indeed show substantial similarity, often in particular phrases and wording, as almost all call for stronger sanctions against the DASO and its candidates on the grounds of overspending.

4.9.2 Eleven members of the SRC attended this meeting, including three members of the CE.

Four members recused themselves (three because they had been members of the EC, including James Olivier [I mention this expressly because in para 44 of its appeal submissions the DASO candidates question whether he had in fact recused himself] and one who was a candidate in the election under review), and two members were absent. The Chair of the CE tabled and spoke to his report.

4.9.3 After debate, the following motion ( as communicated to me, duly proposed and seconded, was put to the Council: "The SRC is in agreement with the findings of the Elections Committee (commission of enquiry/ working group and election committee) as they pertain to the breaches of the election by laws and the candidate's code of conduct. The SRC overrules the findings of the SRC Elections Committee regarding sanctions.

The SRC agrees with the elections committee regarding their findings and the (commission/working group) regarding breaches of the election by laws and the code of conduct by the DASO SRC candidates in the 2012/2013 elections. In this respect the SRC finds that the appropriate sanction for such conduct for all DASO candidates in the ... election is disqualification from the ... elections". This motion was carried by six votes to three, one member having absented himself, and the President having cast no vote (all above information supplied to me on request by the SG of the SRC, Ms Basani Mkhize).

4.9.4 The SRC then communicated this, and other information related to it, to the broader campus community in a statement released at 15h00 on Thursday 11 October. The statement noted that, as a judicial body in this instance, the SRC had tried to maintain its commitment to "democratic practice, accountability and truth". It summarised its agreement with several findings of the EC, and argued that "DASO, its candidates and their campaign teams" had violated "multiple SRC election rules".

It noted the findings and recommendations of the CE as to sanction, but was of the view that the imposition of community service was arbitrary and "unrelated to the matter of elections". The statement went on to explore the moral blameworthiness of individual candidates as opposed to that of the party to which they were affiliated, but then concluded that the maximum permissible sanction should be imposed, viz disqualification, in the hope that this would show that "subversion of the electoral process would not be tolerated". The SRC thus ruled as follows:

"1. The SRC overturns the decision of the... Elections Committee regarding the sanctions concluded on the over expenditure of the DASO election campaign.2. The SRC finds that the appropriate sanction for the misconduct detailed in this report and supporting documents is the disqualification of all DASO candidates from the election process and the results thereof."

4.10 One further fact which should be recorded at this point is that the DASO candidate who had received the highest number of votes in the election, Ms Alex Swanepoel, had resigned from the DASO group (she had apparently never been a member of DASO, as she mentioned in her oral interview) on 3rd October, citing deep unhappiness for some time with the manner in which the DASO campaign had been run, lack of transparency, the overexpenditure reported in the EC's final report, the intrusion of national politics into the student sphere, and so on.

I was given a copy both of her email of resignation, in which she acknowledges that she has "no doubt that one of the reasons I made it onto the SRC in 5th place was due to DASO and our visible, engaging campaign", for which she was grateful, as well as an email to the Vice-Chancellor (dated 12 October) in which she appealed "as an individual and independent candidate not to be disqualified". Later in her appeal she argues that "DASO as a campus organisation should be duly punished for denying their fellow students the right to vote in a free and fair election."

4.11 The resignation of Swanepoel was raised in my oral interviews with Ms Selfe (DASO), Ms van Rensburg (the candidate who topped the poll, standing for SASCO) and Ms Isaacs (outgoing SRC President). The last two argued, somewhat uncomfortably, that despite the fact that Swanepoel had had the benefit of all the alleged misdemeanours committed by the DASO during its campaign, an exception as regards disqualification should be made in her case.

This was argued on the basis of her resignation, but also misgivings she had apparently expressed to both Van Rensburg and Isaacs about such conduct during the campaign and the Vote Week. Selfe, on the other hand, alleged that Swanepoel had resigned because she had been offered a "better deal" in negotiations between various factions on the incoming SRC.

When I asked Swanepoel to respond to this claim she freely acknowledged that she had talked to successful SASCO and independent candidates after she had resigned from the DASO group, and that she had then been offered the Secretary Generalship in the incoming SRC.[ In the light of my findings below, it is not necessary to take a position on any of the issues relating to Swanepoel.]

5 THE ISSUES ON APPEAL (and some responses and findings)

The DASO duly submitted an appeal against the decision of the SRC to the Vice-Chancellor in terms of By-Law 11.8 within the 24-hour period which followed the release of the SRC statement described above. It runs to 51 paragraphs over fifteen pages, and it is neither possible nor necessary within the scope of this decision to detail all the submissions made on behalf of the candidates disqualified and the DASO. Again it suffices to note the salient features of the appeal document, as follows:

5.1 the appeal document was sent to the Office of the Vice-Chancellor attached to an email from the National Youth Coordinator of the Democratic Alliance (DA), Ms Aimee Franklin, "*o+n behalf of DASO UCT, with no mention in its authorship that the candidates themselves had had any role in its drafting. Indeed, in her interview Ms Selfe responded to a question on this from me that, the appeal had been drafted by [DA] lawyers; and later on Mr Hare expressed surprise that Ms Franklin had submitted the appeal, because he was under the impression that the current DASO Chair, Ms Jones-Philipson, would have done so. In my view, little hangs on this point, although it does emphasise the strong link between the DASO and the DA, which raises the question of the desirability of such links in campus politics, which was itself raised by several of those interviewed by me.

5.2 the appeal document traverses a wide number of allegations of unlawfulness in the processes followed by the EC, the CE and the SRC in the events summarised above. Very helpfully, the essence of the arguments is listed in a concluding paragraph (48). I repeat them here, followed by a response from me, in italics, and to assist in resolving this appeal, as follows:

5.2.1 The decision of the [EC] was final and binding. This argument is based on one reading of the various, admittedly confusing, by-laws relating to appeals from decisions of the EC and from its publication of results (see by-laws 11.2 to 11.6). in my view, there is at least an equally plausible alternative interpretation of those by-laws, in particular 11.2, which I take to have been the route followed here. In any event, this matter does not have to be finally resolved in this appeal.

5.2.2 Complaints against DASO have been prosecuted with vigour, while complaints by DASO have been ignored. This is a patently unfounded allegation, seen in the light of my recounting of the work of the EC above. However, it is so that the full picture only emerged after I had requested it specifically, and the EC would do well to take note of this perception for its future conduct.

5.2.3 No other person or party had a right to appeal the factual findings of the Elections Committee, or had any legal right or interest in the sanction imposed. In my view, this takes an overly legalistic and formal view of what is a process aimed at achieving as much procedural fairness as is possible within the context of a student election. Having said that, the SRC presumably had the right of its own volition to question and to even reopen issues raised in the report of the SRC Elections Committee, which is one of its Standing Committees, as provided for in Article 4.1.6 of the SRC Constitution; but again, this is a matter which ought to be reviewed, along the lines which I order below.

5.2.4 The SRC's decision to establish the Enquiry was unlawful and ultra vires. I cannot accept this argument. The SRC has the authority to establish ad hoc committees and working groups in order to assist it to discharge its functions, and this was surely a circumstance which cried out for such a mechanism to gather and interrogate information and evidence, and to recommend a way forward to the plenary body. The CE was quite clear that its role was not to usurp the authority of the SRC. In the event, the SRC upheld all the decisions of both the EC and the CE, but differed on sanction. This argument is thus rejected.

5.2.5 The proceedings before the Enquiry were procedurally unfair and violated the principles of natural justice. Again, I am unable to accept this point. As I mentioned above , the CE did its best within an unrealistically demanding time-span, to accord everyone a degree of procedural fairness, Indeed, when I confronted him on this point in our oral interview, Owusu stated that the DASO candidates had had the longest period of notice given to them, when compared with all the other people to whom they had spoken.

5.2.6 The sanctions recommended by the Enquiry were unlawful and incompetent. I agree , as I have said above, that the SRC (on whose behalf the CE was acting) had no authority to impose community service: that is a punishment which can be lawfully imposed only after due process has been observed within the student disciplinary system. On the other hand, the SRC does play a role in granting and denying recognition to all student and sporting bodies (see its Constitution Article 1.6.3), and so it was quite in order for the CE to have raised the matter with them. As it happens, the SRC declined to accept this recommendation of the CE, although I will return to it below.

5.2.7 The SRC's decision indicates a reasonable suspicion of bias and was motivated by ulterior political motive. [I will deal with this argument below]

5.2.8 The SRC compounded the procedural unfairness to date. This argument relates to a set of concerns raised in the appeal about selective attention to complaints by the EC, by the short deadlines being given by the CE to allow responses and attend at an interview, about the failure to divulge details of the complaints lodged with the SRC and to identify the complainants, about the manner in which the EC had calculated the costs of the campaign, and so on. I will deal with some aspects of this below. In general, however, I find that the EC and CE did their best under trying circumstances to act with due regard to procedural fairness, and that good grounds existed for the various steps which they took to investigate and decide questions raised with them about the conduct of all candidates (in the EC's case) and the DASO candidates (in the CE case).

On occasion the impression could have been gained that the EC's attention was selective, but when challenged by me on this aspect during her oral interview, Ms Brooks was able to explain why the EC had acted as it did. Put as simply as possible, in reality the sequence in which complaints were received meant that most of the complaints made before the beginning of voting were registered by the DAO, while most of those lodged during Vote Week came from various quarters and were aimed at conduct of the DASO. In addition, the DASO was the last group or candidates to respond to requests for detailed accounting of campaign expenses, which in effect delayed the final publication of the results of the poll, and meant that the EC's summary comment about the DASO expenditure featured large when the results were published (although not alone, because the undeclared expenditure attributed to SASCO, of R 53.17, was also included).

On the other hand, the SRC SG should have provided more details to DASO about the nature of the complaints received on 3 and 4 October, and the identity of the complainants, as requested by the DASO, and this was a denial of procedural fairness, though not of a critical order, in my view. In this regard, the approach followed by Ms Brooks as CEO, in writing to Mr Hare on 21 September, requesting DASO's responses to any number of complaints against it which had been registered with the EC, is exemplary: it sets out a summary of the allegations clearly, and attaches the actual emails through which the complaints were communicated, with the identity of the complainant removed where this had been requested. This is the kind of approach which the SRC SG ought to have followed, in my view.

5.2.9 The DASO candidates were never advised of the possibility that the SRC could or would radically increase the sanction imposed by the Elections Committee. This is a true statement, but it has no bearing on the outcome of this appeal. In any such situation, the

decision-maker may impose any of the sanctions at its disposal, and the by-laws clearly authorise the possibility of disqualification of candidates, and particularly by reference to problems with campaign expenditure (see By-laws 6.5 and 6.6). The DASO candidates should have taken this possibility into account. I find that this argument has no merit.

5.2.10 The sanction of disqualification was imposed as a collective punishment, in

circumstances in which the SRC was not in a position to make any factual determinations to justify the sentence. I will deal with this argument below; however, I find it hard to accept that the SRC was in no position to make " factual determinations", given that two bodies which reported to it, the EC and CE, had both extensively investigated and reported on the factual basis for the most important complaints. It could hardly be expected, given the size of the SRC, the part-time availability of its members, and the time-frame within which it had to reach a decision, that it undertake yet another fact-finding enquiry before exercising its discretion. Indeed, given the limits of time and capacity which attend on this appeal process, there was no way in which I could do more than the exceptionally limited further enquiries that I have spelt out at the start of this decision.

5.2.11 In addition, the sanction was shockingly excessive and inappropriate. It results in the disenfranchisement and punishment of a significant portion of the student electorate at the University. This is a critical point, with which I deal below in more detail.

6 THE MAIN COMPLAINTS AGAINST THE DASO

Although the SRC's sanction, against which this appeal is directed, refers only to unauthorised campaign expenditure, it would be unrealistic not to see it in the context of at least two other aspects of the DASO campaign which provoked controversy and elicited complaints. These allegations of electoral misconduct were dealt with by the EC, after providing the DASO with an opportunity to put its side of the story in each and every case, and were found to be valid. As a result , the final results were accompanied by the statement that the EC "takes an exceedingly dim view of DASO's conduct", although it "found itself in the unfortunate position of having limited reasonable sanctions" available to it to penalise DASO, and none was in fact imposed for the first two sets of complaints. I deal with each in turn.

6.1 The use of portable electronic devices to cast votes

Electronic voting through VULA has been possible for three years now. The EC provided me with a copy of the arrangements which are made to secure this voting medium, how the ballots are cast and counted, etc. I have no doubt that this possibility enhances accessibility to the exercise of the democratic franchise, which is to be encouraged.

Regrettably, as pointed out above, the By-laws have failed expressly to adapt to this means of voting, there being no reference whatever to electronic voting in them, only to the traditional use of ballot boxes. I was informed during the oral interviews that in the past there have been instances of the abuse of this medium, through candidates and their supporters even entering computer labs and asking students using the machines to interrupt what they were doing to cast their vote.

This year, however, the first days of the Vote Week were characterised by the apparent widespread use of what the EC viewed as "roving or independent ballot boxes" (my terms), inasmuch as candidates or their supporters would approach students in public spaces and ask them to cast their ballot, using a laptop or i-pad provided to them by the former, who would then, naturally , stand by until the ballot had been cast. In addition, the DASO provided laptops on which to vote immediately outside the venue at which the national leader of the DA, Ms Helen Zille, gave a public lecture during Vote Week. The potential for pressuring, intimidating, or influencing the vote is abundantly clear.

The DASO campaign manager, Hare, was frank in his statement to me during his oral interview that he had encouraged his candidates and their supporters to use this means of gathering support and boosting the poll, assuming that there was no direct problem with this activity, as it was not prohibited in the By-laws. He also alleged, as did Selfe, which was confirmed by the CEO Brooks, that the use of such devices was certainly not confined to the DASO campaign, a fact that he mentioned to the Chair of the EC, Professor Leiman, when confronted on this issue on Wednesday 19 September.

Others, however, viewed this as an abuse of the electoral process, and complained to the EC on Tuesday 18 September, the second day of voting. The EC immediately asked all candidates not to use laptops or I-Pads for online voting. DASO duly submitted an amended campaign plan to the EC on the same day, in which the authorisation of the use of portable electronic devices was expressly sought. The CEO advised that the EC would only be able to consider this application the next day, and that no such devices should be used in the interim.

The EC refused such an amendment to the plan on 19 September, arguing that the use of portable electronic devices in this manner contravened By-laws 6.9, 9.1 and 9.3, which all related to the security of physical ballot boxes and the official demarcation of polling booths by the EC. The EC also took the drastic step of declaring all electronic ballots cast before 5pm on 19 September to be null and void, because it could not be established what electronic means had been used to vote, and decreed that electronic voting by means of portable electronic devices would remain prohibited. In this manner, a total of 2312 votes was nullified, while 3360 votes were subsequently cast electronically.

Responses to these steps varied. Some candidates claimed unfair disadvantage as a result, in that they would have to again persuade students to vote for them. The DASO likewise objected, claiming that they would be unduly disadvantaged, presumably because they had been the most active group using such devices.

This is likely to have been the case, although there is naturally no concrete evidence for such an argument. DASO's conduct in this regard drew criticism from the EC, which is partly why it expressed itself so forcefully in the manner set out above, when declaring the final results. DASO's response (as communicated to the EC and to me through the interviews) was that they had no reason to believe that what they were doing went counter to the By-laws, and that they themselves had not complained about other candidates using such devices because they viewed this as lawful.

While this view of the By-laws is strictly correct, in my view the potential for unlawful harassment of voters should have alerted the DASO to its possibly falling foul of the By-laws. Indeed, the EC should probably have foreseen this difficulty in advance, and even acted more speedily to stop the practice, which would have had a lesser impact on the process.

In all the circumstances, however, DASO did not contravene the By-laws as they stand, and they were not sanctioned for acting as they did. Their only admitted contravention was the failure to include this method of campaigning as part of their campaign plan (in terms of By-law 6.1.6), for which they deserved censure. I do not accept, however, that they gained an unfair advantage in the voting as a result, given that all votes cast while they were using portable devices were nullified, and that there is no evidence that they continued with this practice thereafter.

6.2 The Visit to campus of national leaders of the DA during Vote week

As mentioned before, Ms Helen Zille delivered a lecture on the UCT Campus on Monday 17 September, the first day of voting. The title was "Education as a Form of Redress", and the lecture was formally part of the Liberty Lecture series organised by the DASO. The lecture had originally been scheduled for 15 August, but Ms Zille had had to postpone to either the campaign week or the Vote Week.

Hare states that as campaign manager he was not consulted as to the fixing of the postponed date, although he mentioned that Selfe was at least the co-convener of the lecture series and, as perhaps the leading candidate of the DASO in the elections, she must have been well aware of the potential complications but also beneficial effects of the presence on campus of such a powerful figure as Ms Zille during Vote Week.

Indeed, laptops were made available outside the venue for the lecture, and at least one report indicated that Ms Zille had, in the course of her lecture, endorsed the DASO candidates in the election. When this event came to the attention of the EC, it enquired of Hare as DASO campaign manager why he had not included it in his campaign plan. His response was that the lecture was not formally part of the campaign, that it had been planned well before the schedule for the elections had been fixed, and that its postponement and subsequent rescheduling was not part of his brief.

However, there was a further visit by high-profile DA politicians to campus during Vote Week that was very much of Hare's devising. As early as 5 August, at a campaign meeting, on Selfe's account, the possibility of a visit by Ms Lindiwe Mazibuko had been mooted, but no decision had been reached because of a difference of opinion among the team. However, on Friday 14 September, in his campaign schedule distributed to candidates by Hare, such a visit was indicated for 19 September.

Ms Mazibuko duly arrived, accompanied by the national spokesperson of the DA, Mr Maimane, and they stayed on campus for at least an hour, greeting students, handing out leaflets and so on. Once more, Hare was challenged by the EC as to why this visit had not been part of his campaign plan, and his response was that the visit was very much a "last-minute" arrangement, so that he had not been able to include it. When, in his oral interview, I asked him how this statement could be reconciled with his admission that he had informed the candidates about it five days before (as Selfe had acknowledged), he continued to claim that Ms Mazibuko's arrival was in doubt till the last moment.

Now it must be clearly stated that the invitation to such high-profile politicians as part of an SRC campaign is not, in itself, a problem, a stance clearly shared with the CE which makes the same point strongly in its report (see p 9). What is a problem here is the failure of Hare to mention either of these visits, about which as campaign manager and as then Chair of DASO on campus he must have known, in his campaign plan, or a revision to it.

This is an appropriate point at which to say a few words about such plans, which are required by By-law 6.1.6, for very good reason, as this allows the EC to anticipate possible points of tension or difficulty arising. In her oral interview, the CEO, Brooks, mentioned that the EC had prescribed no firm dates for the submission of such plans, which was probably a mistake, and that the EC had had to pressure all candidates and groups not only to submit their campaign plans but also their spending reports after the election.

This is a clear indication that all candidates failed to some extent to take their obligations under the By-laws and the Code of Conduct seriously. For example, the Campaign Spending Report compiled by the EC mentions about five instances in which SASCO failed to disclose its activities in its campaign plan, including serious infractions, such as that they "failed to inform the *EC+ of their plans to campaign on line...".

Paradoxically, in this election the DASO campaign team had been the first to submit its plan, and had been commended by the EC on the detail contained in it, according to both Brooks and Hare. Given this fact, however, as well as the fact that the laptop issue had caused the submission of a revised plan by the DASO on Monday 17 September, the failure to include at least the visit by Ms Mazibuko was inexcusable, and the planned lecture by Ms Zille should have been included in the original plan--- it is disingenuous to claim, as Hare did, that it would have had no influence on the election, especially as mobile devices were set up outside the lecture to facilitate the casting of votes.

I therefore agree with the decision of both the EC and the CE that this amounted to a contravention of By-law 6.1.6, a factor which I have taken into account in determining the sanctions included in my order below.

6.3 Campaign Expenditure

This is perhaps the most vexed aspect of this appeal, symptomatic of many of the other issues that have been discussed above. I have set out the general financial regime above, including noting the fact that the DASO was assessed as having overspent by more than double the amount allowed to it. I emphasise the word "assessed", because the DASO reported having spent its total allowance to the limit (ie R6 600).

It did so because it seems that in administering that part of its campaign, there was a strong presence from the DA itself, notably in the person of Mr Dean Horwitz, who is apparently "Community Operations Manager" for the DA in the Western Cape. Hare stated that what he as campaign manager did was to compile a list of the campaign needs and to submit it to Horwitz, who then supplied an invoice for R6 600, made up as follows: R 3 600 in total to cover posters, manifestos, pens, design work, and pencils, none of which was contested by the EC in its review of campaign spending. Hare stated that he saw no reason to question the invoice as presented by the DA for what it had supplied.

What was contested was the allocation of R 1000 each by the DASO to the provision of T-shirts, a candy floss machine and a hot chocolate dispenser (both hired), including the cost of the ingredients required to dispense hundreds of cups of hot chocolate and sticks of candy floss over the course of Vote Week.

Thus the DASO calculated its expenditure as a total of R 6 600, whereas the EC, using the formula which it applied to such estimates across the board where necessary, estimated the cost of the candy floss at R 2674.80 (for 100 per day), of the hot chocolate at R 2468.70 (for 100 cups per day), and of the 100 standard DA T-shirts at R 4 500 (@ R45), all of which estimates seem reasonable. This made a total attributed expenditure of R 13 243.50 which, together with the "undeclared" expenditure of R 502.21 (which accounted for the use of existing table cloths, a banner, a material sign, and four laptops and one i-Pad), made a total expenditure of R 13 745.71, which exceeds the allowance by R 7145.71, which amount was then levied on the DASO as a fine.

In one respect, as pointed out by the DASO, the By-laws may provide a potential loophole for groups of candidates on the expenditure front, as By-law 6.7 provides that "... political associations... may spend up to a maximum amount set by the [EC] on media in support of any candidate or group of candidates."

In the event, the EC laid down no such maximum for this election. This might have meant, in the DASO case, that about R2000 which it spent on media could have been notionally paid for by the DASO as a separate body, in support of its group of candidates, but it was not an argument which was strongly advanced, and it would not have removed the fact that the DASO overspent its campaign allowance.

It was this aspect of the conduct of its campaign by DASO which has drawn the most vociferous reaction, with claims that it treated the caps on expenditure with disdain, and thus effectively "bought" the election of its candidates. Van Rensburg, although admittedly the leading SASCO candidate in this election, expressed the view in her interview that such overspending allowed the DASO campaign to impress naive voters unduly.

The DASO attempt to explain its accounting practices by citing the invoice is hardly credible, especially as it breaches By-law 6.6, which prohibits the provision of goods at token or unreasonably low cost. Significantly, DASO failed to appeal the imposition of this fine by the EC, responding in a letter of 3 October that "despite serious reservations about the findings" it would not appeal them. The reason given was that "the new SRC should be allowed to commence its duties without carry-over animosity from the elections", and it tendered payment of the fine. This stance seems to me to be disingenuous at the very least, and I find that the DASO clearly contravened the applicable By-laws, and should be sanctioned for this misconduct.

There is a further disturbing aspect of campaign expenditure which became apparent during this appeal, and appears to apply to teams or groups of candidates, and perhaps even to independent candidates. It certainly was the case with regard to both SASCO and DASO, according to the oral testimony of Van Rensburg, Swanepoel, Hare and Selfe. I refer here to the practice of campaign managers to instruct their candidates to get on with campaigning and the political side of things, while they (the managers) look after the administration and financial aspects.

Indeed, Swanepoel claimed that when she had asked Hare questions about the expenditure, he had refused to divulge it and had told her not to worry, or words to that effect. This practice seems widespread, despite the very clear injunctions contained in By-laws 6.5, 6.8 and 7.5, and clauses 2.3 and 2.4 of the Code of Conduct.

This is very worrying, as it effectively creates a zone of irresponsibility around those who are bound by the electoral regulatory regime, while those who take charge of the planning and financial aspects, are not directly subject to the By-laws and Code of Conduct. As it was expressed to me, the candidates have to suffer for the misdemeanours of the campaign managers, while the latter escape sanction.

While the Rules for Student Discipline do provide for offences which coincide with common law criminal activity, such as fraud (see RCS 3.1), and also for the personal liability of office-bearers of student societies for the misconduct of the members of their societies when acting in the name of their societies (see RCS 14.2), in my view attention needs to be given to revising the Rules to make allowance for electoral misconduct.

Furthermore, it seems to me to be appropriate that I ask questions, at the very least, about the apparently longstanding practice during SRC elections of the provision of inducements to cast ballots, mostly in the form of food and drink. Without having checked recently, to my knowledge such inducements are prohibited by law in all national, provincial and local government elections in this country, for the very good reason that they could be seen, if provided by a party and not the independent electoral body running the elections, as unlawful persuasion to vote for a particular candidate or group. This comment is certainly not aimed solely at the DASO provision of candy floss and hot chocolate, but again in my view this aspect of the electoral process at UCT needs reviewing.

Finally, this issue raises pertinently the desirability of the relationship between external political parties and groupings, and internal university student societies. I was informed by Selfe that the "legal link" between the DA and the DASO was severed some months ago, but that the DASO remained tightly bound to the external party by ideology and organisation, and this was very clear in regard to campaign finances.

I was also told (by Swanepoel) that DASO candidates had been selected by a panel which included DA Members of Parliament. Other candidates or groups of candidates are clearly aligned with external political alliances, and it would be strange were this not to be so. We do, of course, enjoy the rights of freedom of association and expression and certain political rights (see the Constitution, sections 18,16 and 19 respectively).

The University is also a public space and performs a public function, so that it can be expected that the controversy presently under appeal would attract public comment (see a statement by Mr Marius Fransman, Western Cape leader of the ANC, for example, in which he lambastes the DA on the basis of the EC's findings against the DASO, and also calls upon the University authorities to levy a stern sanction on the "guilty parties"). It seems to me, however, that this aspect of student politics is ripe for some review and, if necessary, regulation.

7 FINDINGS AND REMEDIES

At the outset of this decision (see para 2.4 above) I sketched the limitations but also the principles that I regarded as binding on me as the decider of this appeal. In essence, I see my role as going beyond the strict letter of the regulations, especially given their manifest shortcomings, in an endeavour to do justice and seek as fair an outcome to all the parties as can be achieved in troubled circumstances. This has been by no means a simple process, especially under the pressure of time and expectation, but I am fortified by the many expressions of sympathy from all quarters of the University which have come my way over the past week.

In summary, I have found that the DASO did indeed breach two aspects of the regulatory regime applicable to the recent SRC elections, being the non-disclosure in the campaign plans of the intended use of portable electronic devices and the visits of Ms Zille, Ms Mazibuko and Mr Maimane to the campus during Vote Week, and the reporting of insufficient costing of campaign activities. What sanctions should these infractions attract?

The EC imposed no sanction for the first but a substantial fine for the second count of misconduct. The CE focussed its recommendations only on the matter of campaign spending, argued that a fine was inappropriate given the fact that it would not impact directly on the candidates who may have benefited from the excess expenditure, and   recommended community service for the candidates, and the withdrawal of recognition of the DASO during next year's SRC elections campaign, to reflect its culpability in the above situation. As we know, the SRC also focussed only on the financial aspect, and decided that all the DASO candidates (those elected and those not) should be disqualified, a sanction considered and rejected by both the EC and CE.

The following factors, in no particular order of importance, have weighed heavily with me in my very anxious deliberations over an appropriate sanction.

6.4 First, the notion of a collective punishment, while understandable and a beguilingly simple approach, militates against personal accountability, does not distinguish between differing levels of culpability, and ignores the fact that the DASO candidates attracted support ranging from 1982 votes (Swanepoel) to 1367 votes (Jones-Philipson, whom I understand to be the incoming branch Chair), a discrepancy of over 500 votes. This implies that despite the electoral infractions, the student electorate nevertheless exercised a measure of political judgement in casting their votes.

Thus it appears that votes were cast for individuals, even within groups, and this is also seen clearly in the varying degrees of support for the SASCO and Independent-The Way and Independent -Think Different groups of candidates. Given the problems with individualising punishment, and given the respective roles on the financial and planning aspects of the DASO campaign set out above, how fair is it to punish all the candidates as a group? The subsequent actions of Swanepoel, in resigning from the DASO group, exemplifies the problem, as both Van Rensburg and Isaacs argued.

6.5 Secondly, one has to weigh the proportionality of the sanction of disqualification against the gravity of the misconduct. In this regard, I cannot but agree with the views of the CE, that disqualification should be reserved for the most serious misconduct, such as electoral fraud or violent behaviour.

Whenever disqualification is applied in the circumstances of an election it also militates directly against the principle of representative democracy which is enshrined in section 1(d) of the national Constitution, in that all those who voted for a candidate or group of candidates will lose their voice in the body for which the election was held. [This was a point strongly raised in three emails, copies of which were supplied to me, sent to the Vice-Chancellor by concerned students immediately after the SRC's announcement of its resolution to disqualify all the DASO candidates.]

Furthermore, if one takes into account that the nullification of the VULA votes fully three days into the campaign is likely to have affected the DASO more than the other candidates, given the fact that it was their conduct which was complained of, the effective disenfranchisement of part of the electorate may be greater. Proportionality has been adopted and developed by the Constitutional Court of South Africa as one of the prime guidelines for the assessment of the lawfulness and constitutionality of the exercise of public power, and should inform decisions such as the present.

Indeed, in the only similar dispute which I could find, that of Maharaj v SRC (UCT) and the SRC Elections Committee, of early 2005, Professor Thandabantu Nhlapo used precisely this notion in order to grant the appeal, so there is precedent for its use in the University's electoral precedent. The EC noted this, and was not satisfied in the present circumstances that disqualification was an appropriate or proportional sanction, "particularly given the confusion that existed about the ambit of the rules contravened (definitionally)" (see the Report of the CE, at p 16). I therefore find that disqualification in these circumstances was disproportionate to the gravity of the misconduct found to have been committed.

6.6 Thirdly, I cannot close my eyes to the practical political impact of such disqualification. Absent the DASO candidates, an alliance of SASCO and independent candidates would be very likely to form a majority, which immediately raises the spectre of a reasonable apprehension of bias or self-interest, in that SASCO currently, as I understand it, holds the majority in the outgoing SRC.

Having noted this, it is also striking that the size of the majority vote, even within the current SRC, in favour of disqualification was six to three, out of a total membership of 17. While an extrapolation of this majority to the whole complement of the SRC would likely produce a decision along the lines of 11 or 12 in favour, I cannot ignore the fact that only six members of the SRC voted in favour of disqualification.

6.7 Fourthly, I also cannot ignore the fact that many of the By-laws are, to say the least, capable of more than one interpretation, that certain conduct may have been tolerated in the past (such as entering computer labs to seek electronic votes), and that the person who fills the office of CEO has changed this year, which may also account for a difference in approach to the enforcement of the By-laws and Code of Conduct. I make no specific finding in this regard, but it is at least a distinct possibility, based on what I read in some of the documentation and heard in some of the interviews.

In addition, the EC published its spending report for the first time this year, a laudable step in my view, but one which directly sparked the outcry which led the SRC to adopt the resolution disqualifying the DASO candidates. These factors may have worked to create an atmosphere in which candidates took risks, or even behaved in ways which they thought were acceptable, when in reality they were not. This does NOT of course make them innocent of the charges against them but it does come into consideration when determining sanction.

6.8 Fifthly, for whatever motive, and I make no finding in this regard, DASO chose not to appeal against the decisions of the EC, and has, on this appeal, argued that the decisions and sanctions of the EC should be reinstated. I need to take this into account.

6.9 Finally, however, and vitally importantly, in my view, I need to recognise the voices of the many students who expressed deep anger and frustration at the DASO's apparent flaunting of the regulations governing the election. Indeed, as mentioned above, it seems to me that the complaints are in many instances directed less at the candidates than at the DASO itself. Again, I must endeavour in determining sanction, to give expression to these concerns.

In the final part of this decision, I set out the order which flows from all the above facts, arguments, considerations, findings, and analysis.

8 ORDER

To the extent that the DASO appeal argues for the reinstatement of the decisions made and sanctions imposed by the EC, I confirm that it succeeds. This is most clearly to be seen as regards sanction, in the sense that the decision by the SRC to disqualify all the DASO candidates in the election is set aside, for the reasons given immediately above. Other aspects of the appeal have been dealt with seriatim above, and I make no attempt to repeat or summarise them here, except as appears in what follows.

To repeat, the decisions reached and sanctions imposed by the EC are confirmed viz that the DASO's conduct in failing to amend its campaign plans to reflect its extensive reliance on mobile electronic devices, and the visit of Ms Zille, Ms Mazibuko and Mr Maimane to the campus, which was aimed at boosting the electoral attraction of the DASO candidates, is to be deprecated, and that its failure to disclose the full cost of its campaign should result in the imposition of a fine to the extent of R7145.71. [It should be noted that the proceeds of any fines levied are applied by the DSA directly towards the costs of holding the elections.]

But in determining sanction I must apply my mind independently to other steps which may be entirely appropriate in the circumstance described above.

Secondly, therefore, in addition to the fine imposed, to express the strong disapproval of the electoral authorities and the SRC of such conduct, and in order to encourage the DASO to comply fully with the regulatory framework within which it operates on this campus, recognition of the DASO as a society is withdrawn for a period of twelve months, with effect from 1 November 2012.

The enforcement of this sanction is itself suspended, however, on the condition that the DASO, its office bearers and members commit no breach of any aspect of the regulations applicable to it, its office bearers or members within the full period in which such recognition is withdrawn, which includes the next SRC election. In imposing this sanction, I seek to balance the legitimate interests of the many who complained about DASO's conduct with the constitutional rights to free expression and association, which are of course limitable in a reasonable and justifiable manner.

Thirdly, the DSA together with the incoming SRC must, as a matter of urgency, review, revise and propose amendments to the By-laws and Code of Conduct governing SRC elections. This matter must be pursued by an ad hoc committee, chaired by the Chief Electoral Officer, Ms Brooks, and enjoying a diverse spread of representation from across the spectrum of student opinion, drawn from both the SRC and the Student Assembly.

Expert assistance should be sought from within the DSA and the rest of the University. As I regard this matter as of the utmost importance, I require regular reports on progress made, by the following dates: 31 January 2013; 31 March 2013; and 31 May 2013. The amended rules must be in place by 30 June 2013.

While the By-laws in totality must be reviewed, the following points need particular attention with a view to express and detailed regulation:

• the means of ensuring fair and proper use of electronic devices for casting votes;
• the relationship between student societies and groupings of candidates with any body external to the University, particularly political parties and alliances active in party politics;
• the role of the SRC Elections Committee in regulating the fairness of campaigning practices, in particular its ability to require compliance with its orders by the candidates or groups of candidates, and to react speedily to complaints or requests, implying an increase in its capacity;
• the separation of the logistical from the complaints role of the EC, in order to facilitate the efficient discharge of its duties;
• the desirability of the continued practice of providing food and drink and other incentives to vote: if this is allowed to continue, as a means of countering voter apathy, then perhaps the sustenance should be offered by the EC, and NOT by any one candidate or grouping of candidates;
• the desirability of seeking guidance as to best electoral practice from the Independent Election Commission of South Africa; and
• the wisdom of authorising the Chair of the EC to act as the convener and Chair of the constitutive meeting of the incoming SRC.

Fourthly, the Senior Proctor should be requested to turn his attention to the necessity of drafting and introducing a rule or rules within the Rules for Student Discipline relating to electoral misconduct, not only by candidates but also the campaign managers and those who support them. These rules should address both personal behaviour as well as financial aspects.

In this regard, I also order that a copy of this decision should be supplied to the Senior Proctor forthwith, so that he can review its contents and decide whether to investigate the institution of disciplinary process against anyone named in this decision, in terms of the current Rules.

A final word seems appropriate. In my experience of this University, we have been privileged by being able to rely on a generally outstanding quality of student leadership. Part of my enquiries of those to whom I spoke was focussed on the reconciliation of differences and a willingness to find common ground so that a viable and responsible SRC could be put in place to serve students over the next year. Nothing which was said to me indicated that this was not likely.

Indeed, while humility, sensitivity, and a willingness to compromise are not the human characteristics which spring readily to mind when one thinks of those ambitious for political power, I have every reason to believe that those elected in the 2012/2013 SRC elections will be able to rise above whatever unpleasantness may have occurred during the campaign. I very much hope that this decision will assist that process. I order accordingly.

Hugh Corder

Professor of Public Law Rondebosch 25 October 2012

Source: University of Cape Town

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