The following is a timeline - with extracts from relevant documents - setting out the chronology of the events leading up to the controversy over Justice Edwin Cameron’s nomination for and election as Chancellor of Stellenbosch University, while the Constitutional Court was hearing the Gelyke Kanse vs Stellenbosch University matter.
The case concerned the highly sensitive issue for many Afrikaans speakers of the university’s 2016 decision to downgrade Afrikaans as a medium of instruction in favour of English. The Western Cape High Court upheld the policy in October 2017 and Gelyke Kanse lodged their appeal with the Constitutional Court in 2018. The case was delayed as the court record had to be translated from Afrikaans into English for the benefit of a number of the judges on South Africa's highest court.
A point to keep in mind in reading the following is that the closing date for nominations for the position of chancellor was the 4th September 2019. The Chancellor serves for a five year term.
Email from Stellenbosch University on behalf of Rector Wim de Villiers to the Constitutional Court for the attention of Justice Edwin Cameron, 2 July 2019
From: Kok, Wildre
Sent: 02 July 2019 09:43 AM
To: Elizabeth Moloto
Subject: Contact details for Edwin Cameron lmportance: High
Prof De Villiers would like to get in touch with Justice Cameron. Could you please provide me with his mobile number?
Vriendelike groete / Kind regards Wildre Kok (Ms/Me)
Email from Edwin Cameron to Wim de Villiers, 2 August 2019
Fri, 2 Aug, 13:28 - Kanselierskap
Goeie dag, Wim
Ek hoop dat jy en jou gade 'n heuglike reis na ltalie en elders geniet het, en veral dat die Europese hittegolf slegs die somerprag vir julle verskerp het.
Sedert ans gesprek twee weke terug het dit ongelukkig vir my onteenseglik duidelik geword dat enige moontlikheid om die Kanselierskap te oorweeg tans prakties nie denkbaar is nie.
Ek sit juis omring van die dokumentasie in die saak wat ans volgende week aanhoor, en, watter kant toe ook, sal my posisie in die beregting daarvan hopeloos gekompromiteer word sou ek die nominasie aanvaar. Eweneens sou my posisie as genomineerde waarskynlik onder gebillikte bevraagtekening kom terwyl die saak nog hangende is.
Dit spyt my dat ons aangrypende bespreking van die identiteits- en ander issues wat op die Kanselierskap betrekking het op hierdie bot wyse moet eindig, maar ek sien nie enige realistiese wyse waarop ans die gesprek kan voortsit nie.
Dit behoef nie beklemtoning dat ek geerd en ook aangedaan is om genader te gewees het.
Met mooi wense
[Constitutional Court’s hearing on the Gelyke Kanse vs Stellenbosch University matter is held on 8th August 2019]
Email from Wim de Villiers to Edwin Cameron, 10 August 2019
Sat, 10 Aug, 11:28
Baie dankie vir jau skrywe en verskaning vir die vertraagde antwaard. Ek het gister teruggekeer van 'n nagal uitdagende en uitmergelende dag pragtige staptag in die Visrivier Canyan am my 60ste lewensjaar mee afte sluit...alles heeltemal die maeite en inspanning werd.
Ek is uiteraard teleurgesteld aar jau en die Kanselierskap maar verstaan jau pasisie heeltemal; ek is tag bly datjy dit deeglik aarweeg en deurdink het.
Wees verseker van my valgehaue andersteuning vir 'n taekamstige verbintenis met die Universiteit Stellenbasch wanneer die tydsberekening meer gepas is.
Met groat waardering Wim
Statement issued by the Constitutional Court, 19 August 2019:
Justice Edwin Cameron Retires
19 August 2019
A long, illustrious judicial career is coming to an end. Justice Edwin Cameron of the Constitutional Court is retiring from active service with effect from 20 August 2019. He first graced the Bench as an acting Judge of the High Court on 20 August 1994. The acting stint lasted until the end of December of the same year. The late President Mandela appointed him permanently to the same Court with effect from 1 January 1995.
Whilst on the High Court Bench, he also served as a Judge of the Labour Appeal Court for a few years. He was next appointed to the Supreme Court of Appeal by President Mbeki with effect from 1 January 2001. On 1 January 2009 he joined the Constitutional Court after being appointed by President Motlanthe. He served there for ten years eight months.
At 10:00 on Tuesday, 20 August 2019 the Constitutional Court will honour Justice Edwin Cameron at a formal sitting that will take place in the courtroom.
Extracts from email from Advocate Jean Meiring to Edwin Cameron, 19 August 2019
Jean Meiring Mon, 19 Aug, 18:08 Stellenbosch Dear Edwin,
lt was a pleasure, as ever, to see you and Nhlanhla on Friday evening. lt was a delightful party and very KameeI. I believe Hans' memorial gathering was well-attended and rich.
Edwin, I write reluctantly since I do not want to burden you with more onerous decisions at a time when you are no doubt thinking about doing things that are important to you and that you might have neglected because of your heavy load at the CC. Yet, in light of the green light you gave me an Friday and in light of the importance I attach to the matter of SU's new chancellor, l'm taking the plunge.
In short, I believe that you would be a transformative chancellor…
In short, however, I think it would be a devastating loss to SU, especially at these difficult crossroads, to lose out on an Edwin Cameron chancellorship. At base, I have in mind how you, with your habitual uber-dedication, remarkable skill at communicating across ravines of misunderstanding and, frankly, chutzpah would assist enormously in our efforts to bring about some sort of desperate alchemy at SU, against considerable odds.
Yes, there is some drama here, although, l'd venture no real hyberbole. But, in a sense, that is the point. A chancellor, a good one, at any rate, will bring a bit of drama to an Institution like SU.
I repeat that I could say much more. Yet, I believe you get my drift, so to speak.
I trust your valedictory court session tomorrow will be memorable and gratifying. With deep admiration,
Letter from DJ Roussouw of Attorneys West & Rossouw, attorneys for Gelyke Kanse, to Cluver Markotter Inc, attorneys for Stellenbosch University, 27 August 2019:
RE: GELYKE KANSE AND OTHERS / UNIVERSITY OF STELLENBOSCH AND OTHERS (CASE NO. 1750/2016) / CC CASE NUMBER 311/2017
1. This serves to inform you that during the course of the morning of Monday, 26 August 2019, Prof Wim de Villiers, the Rector of the Stellenbosch University ("SU"), and the First Respondent in the abovementioned matter, called Adv Jan Heunis SC seemingly to ask him to cause Mr Christo van der Rheede, who had been nominated by members of the SU Convocation as a candidate for the position of Chancellor, to withdraw as a candidate and, by so doing, contributing to secure the unopposed election to that position of Constitutional Court Judge Edwin Cameron.
2. We do not propose to recount the entire conversation for purposes hereof, but will do so if you consider it necessary.
3. For present purposes, we would like to bring to your attention the fact that during this conversation -
2.1 Adv Heunis told the Rector that the alumni who initiated the nomination of Mr Van der Rheede originally wanted to nominate Justice Cameron themselves, but decided against it because he is a member of the Court which has reserved judgment in the abovementioned matter;
2.2 it transpired that the Rector had discussed his nomination as a candidate for the position of Chancellor of the SU with Justice Cameron on a number of occasions during the past two weeks;
2.3 Justice Cameron was said to have responded by saying that he was greatly honoured by the proposal; and
2.4 other, unidentified persons, who may or may not be attached to the SU, similarly spoke to Justice Cameron about the matter.
4. Shortly after the conversation Adv Heunis told Adv Jeremy Muller SC what had transpired.
5. We hasten to assure you that we do not think for a moment that the aforementioned conversations with Justice Cameron were conducted with your approval or even your knowledge. We have no doubt that you will share our view that it was utterly inappropriate and irresponsible for the Rector, and any other SU employees or office-bearers, to have approached Justice Cameron as they did and that the fact that this was done may have particularly serious implications for the administration of justice in this matter.
6. We know too little of what actually transpired to know whether something should be done about this matter or not.
7. We would therefore greatly appreciate it if you would inform us at your earliest convenience - the Rector told Adv Heunis that time was of the essence - exactly who were involved in approaching Justice Cameron, what was said to him, when the conversations took place and what the outcome of the various conversations was. Furthermore, we would appreciate being informed what, if anything, you propose should be done about the matter. lt may, for example, be necessary for the two lead counsel to request a meeting with the Chief Justice and, thereafter, also one with Justice Cameron.
8. To the extent that we may fairly be called upon so to do, we shall use our best endeavours to resolve this matter in line with what the public interest and the requirements of justice and fairness demand.
9. We await your reply.
ATTORNEYS WEST & ROSSOUW
Email from Jean Meiring to Edwin Cameron, 29 August 2019
Thu, 29 Aug, 17:20
I trust you are well and are feeling aptly light and responsibility-free. We'II see one another on Saturday.
Please find enclosed a missive from Wim de Villiers - with an attached letter from Jan Heunis SC. All best wishes,
Advocates Group 621
Rex Welsh House
Cnr Maude Street & Gwen Lane SANDTON
Attached email from Wim de Villiers to Jean Meiring, 29 August 2019
Subject: Wim de Villiers: Urgent letter to Justice Cameron
Date: 29 August 2019 at 4:30:40 PM SAST
To: Jean Meiring
Sien asb die aangehegde brief van Jan Heunis aan Edwin Cameron - ek glo dit gee die groen lig vir die nominasieproses soos bespreek.
Ek vra hiermee ook vir Ronel om aan jou die besonderhede van die nominasievorm ens. te stuur. Ek sluit ook die webskakel in.
Vriendelike groete en ek hoor graag weer van jou.
Text of web page linked to:
Nominations for the Office of Chancellor
The term of office of the Chancellor of Stellenbosch University, Dr JP (Johann) Rupert, expires towards the end of 2019. Dr Rupert is not eligible for re-election.
In accordance with paragraph 3 of the University's Statute, members of the Convocation are hereby invited to submit written nominations of suitable candidates for the office of Chancellor for the term 1 January 2020 to 31 December 2024.
Each nomination has to be signed by at least 20 (twenty) members of the Convocation, and has to be accompanied by a statement certifying that the nominee accepts the nomination. The completed nomination form can be sent by email to the Registrar at [email protected].
All SU graduates, all permanent academic staff members, as well as people who received a diploma after 2010 at Stellenbosch University, are members of the Convocation.
According to paragraph 3(1) of the Statute, the Chancellor shall be elected from the nominees by an electoral college consisting of the members of Council, the members of the Executive Committee of Senate and the President and the Vice-President of the Convocation.
Attached email from Jan Heunis to Constitutional Court for Edwin Cameron:
From: Jan Heunis
Sent: Thursday, 29 August 2019 09:59 AM
Subject: Urgent letter to Justice Cameron
Dear Ms Moloto,
Please be so kind as to hand the attached letter to Justice Cameron and confirm that you have done so. lt is quite urgent and important, thank you.
Kind regards, Jan Heunis
Text of the letter as attached:
29 August 2019
Justice E Cameron
Judge of the Constitutional Court of the Republic of South Africa Constitution Hill
1 Hospital Street BRAAMFONTEIN
Dear Judge Cameron
RE: NOMINATION AS CANDIDATE FOR THE POSITION OF CHANCELLOR OF STELLENBOSCH UNIVERSITY
1. Adv Jeremy Muller SC, lead counsel for the Respondents in the matter of Gelyke Kanse and Others v Chairman of the Senate of Stellenbosch University and Others in which the Constitutional Court has reserved judgment and who has knowledge of the facts and content of this letter to you, has requested me to indicate to you whether there would be an objection from the Appellants in the aforementioned matter if you were to be nominated as a candidate for the position of Chancellor of Stellenbosch University.
2. lt so happens that a number of alumni who have links with Gelyke Kanse themselves considered nominating you as a candidate for that position but, in the final analysis, decided against it because we concluded that it would not be appropriate to approach you in that regard in view of the fact that you are a member of the Court who is seized of the matter involving Gelyke Kanse, on the one hand, and the University, on the other.
3. Be that as it may, this serves to inform you that there will be no objection from the parties which I represent in that case to your acceptance of a nomination as a candidate for the position of Chancellor of Stellenbosch University.
Jan Heunis S.C.
Email from Edwin Cameron to Wim de Villiers, 30 August 2019
Fri, 30 Aug, 07:42
In die lig van die positiewe verwikkelinge is ek nou wel beskikbaar vir nominasie, en bedank ek jou en andere vir die vertroue wat julle in my plaas en vir die geleentheid wat sou kon kom.
Donderdagmiddag 12 September is ek vlugtig op Stellenbosch om 'n uitstalling te open by julle galery.
Sou jy dalk beskikbaar wees vir 'n halfuur as ek inloer?
Email from Wim de Villiers to Edwin Cameron, 30 August 2019
Fri, 30 Aug, 09:02
Hierdie is fantastiese nuus vir die instelling as 'n geheel, maar natuurlik ook vir my persoonlik!
Ek weet dat Jean Meiring besig is met die "nuts and bolts" van die nominasieproses om alles regte kry teen die sluitingsdatum (4 Sept om 12:00).
Ek vertrek Dinsdag na Europa vir besoeke aan universiteite, stigtings, donors en alumni en sal ongelukkig eers die 16de September terugkeer - ek het wel 'n USAf-vergadering die 17de by OR Tambo-lughawe en kan dan ontmoet vir middagete. Ek hoor graag van jou.
Mooi wense Wim
Email from Edwin Cameron to Jean Meiring, 29 August 2019:
Thu, 29 Aug, I7:29
Thank you for the intensity and urgency and deeply personal feeling with which you wrote.
Receiving this fetter, after your personal injunction to me on the Friday evening not to close my decision, has been pivotal to the events that have followed.
With great respect and and appreciation.
Letter from the Registrar of the Constitutional Court to both parties in the Gelyke Kanse vs Stellenbosch University court case on behalf of Edwin Cameron, 2 September 2019
CCT 311/17: GELYKE KANSE V CHAIRMAN OF THE UNIVERSlTY OF STELLENBOSCH AND OTHERS
Justice Cameron has asked that the following be drawn to the parties' attention:
1. While the litigation was pending and before the hearing on 8 August 2019, he was approached by various persons to accept nomination as Chancellor of the University, which he declined because of the pending litigation and other reasons.
2. The approaches continued and, after the hearing, he indicated that he might reconsider subject to an indication from Gelyke Kanse and its Senior Counsel, Dr Jan Heunis, SC, that there would be no objection.
3. Dr Heunis so indicated on behalf of Gelyke Kanse by letter dated Thursday 29 August 2019.
4. Arising from paras 1 and 2, the parties are invited to examine and consider -
(i) the email correspondence between Justice Cameron and the Rector of the University, Professor de Villiers, and between Justice Cameron and a member of its Council, Adv Jean Meiring, and
(ii) the names of the persons who approached Justice Cameron, which will be furnished on request.
MR KGWADI MAKGAKGA
REGISTRAR CONSTITUTIONAL COURT
[Note: This material was only ultimately requested by the attorneys for Gelyke Kanse, and provided by Edwin Cameron via Stellenbosch University, after the Court handed down its judgment. The emails are documented above, while the persons who had approached Justice Cameron were given as:
1. The Rector, Professor de Villiers
2. Professor Marius de Waal, Faculty of Law
3. Adv Jean Meiring
4. Mr Chris Otto
5. Mr Michiel le Roux
6. Mr Koos Bekker]
Extract from statement from Stellenbosch University, 25 September 2019
Edwin Cameron new Stellenbosch University Chancellor
Justice Edwin Cameron, academic, jurist, author and recently retired Constitutional Court judge, was elected to the office of Chancellor of Stellenbosch University (SU) today (25 September 2019).
An electoral college comprising members of Council, members of the Executive Committee of Senate as well as the president and vice-president of the SU Convocation gathered this morning to elect the institution's 15th Chancellor.
An SU alumnus and a recipient of an honorary doctorate from the institution in 2015, Justice Cameron was elected by an overwhelming majority.
“I am honoured and humbled to have this chance to serve SU and its communities, and look forward to my new tasks," Justice Cameron said.
Prof Wim de Villiers, Rector and Vice-Chancellor, and chairperson of the electoral college, said: “It is a privilege to have someone of the stature of Judge Edwin Cameron as Chancellor of the University. He is a champion for human rights and boasts a distinguished legal career. I look forward to working with him. We also thank our current Chancellor, Dr Johann Rupert, for his hard work and assistance during his term, which expires at the end of the year."
Mr George Steyn, SU Council chair, too welcomed Justice Cameron's election, while Ms Carli van Wyk, outgoing Students' Representative Council (SRC) chair and Council member, described the announcement as very good news and highlighted the fact that Justice Cameron had served on the SRC during his student days at SU.
Extract from a statement of the media summary of the Constitutional Court on the judgment in the Gelyke Kanse vs Stellenbosch University case, 10 October 2019:
In a unanimous judgment penned by Cameron J, the Court dismissed the appeal. The Court found that the 2016 Policy was constitutionally justified. “Reasonably practicable” in section 29(2) involves both a factual and normative (constitutional) element. The constitutional criterion of reasonable practicability is to be judged objectively, and requires an approach founded in evidence.
In this case, the University’s judgment on the cost of preserving Afrikaans tuition at the level in the 2014 Policy satisfies both the factual and normative elements in section 29(2). The University showed that, near-universally, brown and white-Afrikaans-speaking first-year entrants to the University are able to be taught in English. Though most entrants are able to receive tuition in Afrikaans, a significant minority cannot. The 2014 Policy created an exclusionary hurdle for specifically black students. The University also showed that classes conducted in Afrikaans, with interpreting from Afrikaans into English, made black students not conversant in Afrikaans feel marginalised, excluded and stigmatised.
This Court found that the University’s process in adopting the 2016 Policy was thorough, exhaustive, inclusive and properly deliberative. The University’s determinative motivation for introducing the new Policy was to facilitate equitable access to its campus, its teaching and learning opportunities by black students not conversant in Afrikaans. The University’s decision-making structures, with a scrupulous eye on racial equity, access and inclusiveness, judged that a downward adjustment of Afrikaans, without by any means eliminating it, was warranted. The University also determined that the cost of avoiding down-adjustment of Afrikaans was too high. This evidence established that continuing with the 2014 Policy was not “reasonably practicable”.…