"You have been vindicated" - Omar Moosa SC to Makgoba

Letter from UKZN lawyer to the university vice chancellor, November 26 2008


P.O. Box 6024
Durban 4000 2nd Floor
26 November 2008

Professor M W Makgoba
Vice-Chancellor and Principal
University of KwaZulu-Natal

Per Email

Dear Professor Makgoba


The above matter refers.

On 4 September 2008, the University instituted disciplinary proceedings against Professors John van den Berg and Nithaya Chetty. The charges against them were:-

1. They failed to follow standing orders or procedures. On 2 August 2006, the Senate of the

University laid down a standing order which provides that members of the University community (including clearly members of Senate) should exercise due care when communicating with the media so as not to bring the University into disrepute. Despite the standing order it was alleged that the Professors did not exercise due care in communicating with the media thereby bringing the University, your office and your person into disrepute.

2. They disclosed confidential information. It was alleged that they made statements to the press which were subsequently published in certain media articles and that they posted articles on an internet website titled "[email protected]" and that both the statements to the press and the postings aforesaid included confidential deliberations of Senate meetings.

3. They acted dishonestly and/or grossly negligently by alleging that you were not entitled to keep the item "academic freedom" off the Senate agenda in circumstances where you were entitled to do so regard being had to the quorate resolution of Senate adopted at its meeting of 1 August 2007.

They were notified that the charges against them were serious and that, if proved, could result in their dismissal.

It is regrettable that the charges that the University was constrained to bring against the Professors arising from the salutary principles of good governance were portrayed in the media as being something which they were not. The media presented the issue as being one relating to academic freedom and freedom of expression as this was the line that was fed to the press. This in circumstances where the disciplinary charges had nothing to do with academic freedom and freedom of expression but rather with breaches of the University's disciplinary code.

In preparation for the disciplinary hearing and during the course of consulting with potential witnesses on behalf of the University, consisting primarily of very senior members of the University staff, it became evident that, almost without exception, all these senior employees were in agreement that:-

4. All members of the University community were bound by the Senate resolution of 2 August 2006 requiring employees of the University to exercise due care when communicating with the media so as not to bring the University into disrepute. Furthermore, that it was to be regretted that Professors van den Berg and Chetty had failed to exercise such due care.

5. The deliberations of Senate, with the exception of the minutes of Senate which are posted on the University's Local Area Network, are confidential and such confidentiality must be respected. Professors van den Berg and Chetty had been wrong in failing to respect such confidentiality.

6. The explanation tendered by you at the Senate meeting of 27 February 2008 as to the reason why you had kept the item "academic freedom" off the Senate agenda had been accepted by Senate which had resolved that you had been perfectly entitled to have done so.

As indicated earlier, it was imperative that the charges be brought against the Professors in the interests of good corporate governance at the University. The University management would have been remiss not to have done so as, left unchecked, these breaches of University rules and procedures have the potential to cause irresponsible and ill-disciplined conduct within the University community.

In the end result, Professor van den Berg has entered into an agreement with the University in terms of which he, inter alia:-

7. Expresses his regret and apologises unreservedly to the University, the Council, the Senate and to you for any harm that he may have caused, reputationally or otherwise.

8. Undertakes to abide by all the rules and policies of the University, in particular those relating to exercising caution when communicating with the media and respecting the confidentiality of the deliberations of Senate, the Council and other University bodies.

9. Accepts the resolution of Senate that you were entitled to keep the item "academic freedom" off the Senate agenda. As against this acceptance, the University accepts that Professor van den Berg did not act dishonestly and/or grossly negligently in alleging that you were not entitled to keep the item "academic freedom" off the Senate agenda.

10. Undertakes to respect the University as well as your office and person and to refrain from engaging in conduct of the kind set out in the charges levelled against him and from making any defamatory or disparaging remarks about you whether in the public media, on the website "[email protected]" or otherwise.

11. Acknowledges that the University will issue a final written warning against him and in so doing will bring the disciplinary proceedings against him to a close.

12. Agrees that the agreement will serve, inter alia, before the University Council.

On the other hand, Professor Chetty has resolved to resign from the University and has done so by way of letter dated 26 November 2008.

In the circumstances, it is my respectful view that both you and the University have been vindicated in the decision taken to pursue disciplinary charges against the Professors.

I conclude by thanking you for your instructions in this matter and for all the very useful assistance rendered to the legal team by your office during the course of drafting the charges and preparing for

the disciplinary hearing.

Yours faithfully