The SU, Gelyke Kanse and ConCourt controversy

Jan Heunis SC writes on Rector Wim de Villiers' approaches to Justice Edwin Cameron while case was being heard

The correspondence and discussions between the Rector of the University of Stellenbosch (SU) and former judge of the constitutional court Edwin Cameron – while the case between Gelyke Kanse and the university was being heard in the constitutional court – has enormous implications for the university as well as the judiciary.

That is why Thursday’s decision by the university Council’s executive committee – to appoint retired judge Burton Fourie to investigate the allegations – must be welcomed. It is indeed in the public interest that all the facts of the matter come to light and that nothing is withheld or concealed.

Prof Wim de Villiers has to date tried to excuse himself chiefly on the grounds of two arguments. The first is that, after Cameron had refused the initial request that he make himself available for election as chancellor, there was no further correspondence between the two.

His second argument is that Gelyke Kanse had given permission that Cameron make himself available for election.

The first of these defences is incomplete and misleading, and the second is incorrect.

Geyke Kanse’s application to have the university’s language policy declared unconstitutional was heard in the constitutional court on 8 August. Cameron had already written to De Villiers on 2 August that, since their last conversation two weeks before, it had become clear to him that he could not accept the nomination because it would hopelessly compromise his position as judge. In this e-mail, Cameron expressed his regret that “our compelling discussion on identity and other issues relating to the chancellorship had to end in this abrupt way, but I do not see any realistic way in which we can continue this discussion.”

The mere fact that such a discussion had taken place between De Villiers, as first respondent in the pending court case, and one of the presiding judges, is highly irregular.

De Villiers replied eight days later to say that he was disappointed by Cameron’s decision, but that he understood his position. On 30 August Cameron wrote to De Villiers again that “in the light of the positive developments” (that is to say the “permission” from Gelyke Kanse) he had indeed become available for the nomination.

From the further correspondence it is clear that there was also a personal meeting (there is even a reference to a meal) between the judge and the rector. To meet personally with a judge while he is writing a judgment to which you are a party is – needless to say – highly irregular. The other point that should be made is that Gelyke Kanse had no idea of the correspondence and attempts to meet.

The Rector’s further defence, that Gelyke Kanse had agreed to Cameron’s candidacy, is equally problematic.

I had heard of Cameron’s candidacy for the first time when De Villiers phoned me on 16 August (nearly three weeks after the case was heard, but before the judgment was delivered). During this call he led me to believe that various people supported Cameron’s candidacy and that it was clear that Cameron would be elected chancellor. It was also my impression that he expected me to use my influence to ensure the withdrawal of the candidacy of Christo van der Rheede, who had been nominated by me and other members of the SU convocation. In the conversation De Villiers also for the first time referred to discussions between himself and the judge, which prompted me to ask when these discussions had taken place. He responded: “Quite a few times over the last two weeks.”

This was such a significant admission that I conveyed the fact to the leader of the university’s legal team that same morning. Needless to say, I also did not ask Van der Rheede to withdraw his candidacy.

My discussion with the university’s advocate was followed a day later by a letter from Gelyke Kanse’s lawyer, Danie Rossouw, to the university’s lawyer in which Rossouw asked who had been in touch with Cameron, what he had been told, when the discussions had taken place, and what the outcome had been. In addition, Rossouw wanted to know what, if anything, the SU lawyers thought in their judgment should be done about the matter. According to Rossouw’s letter, it could necessitate the leaders of the respective legal teams requesting a meeting with the chief justice and with Cameron.

The letter closed with the assurance that Gelyke Kanse would like to settle the matter in accordance with what public interest required and the requirements of justice and fairness. The university’s lawyers did not respond.

After Rossouw’s letter, the university’s senior counsel asked me to, at Cameron’s request, indicate whether we would have any objection if the judge was nominated as a candidate for the chancellorship. I wrote to Cameron that there would be no objection to his acceptance of a nomination – and not that permission or approval was given, as De Villiers now pretends. The second paragraph of that letter states exactly what Gelyke Kanse’s view on the matter was.

It reads as follows: “It 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.”

On 2 September – more than a month before the Constitutional Court delivered its judgment – the registrar of the constitutional court wrote a letter to the lawyers of the two parties on behalf of Cameron in which he stated among others things that he had been approached by a number of people to accept a nomination as chancellor of SU, which he had refused as a result of the pending litigation and for other reasons.

These requests, wrote Cameron, had continued and, after the matter had been heard, he had indicated (without indicating to whom) that he would reconsider his decision on condition that Gelyke Kanse had no objection. (Please note that Cameron never personally made such a request to Gelyke Kanse).

In the registrar’s letter, the parties were invited to further investigate and consider the correspondence between Cameron and De Villiers, and Cameron and Adv. Jean Meiring, a member of the university Council. For a number of reasons, the legal team of Gelyke Kanse decided not to accept the offer.

When Cameron’s judgment was eventually delivered on 10 October and it became clear that the basis of the judgment, in which the appeal of Gelyke Kanse was denied, was substantially defective, Rossouw wrote a letter to the registrar on 14 October, in which he requested that the correspondence on the matter be made available.

After he refused, the registrar of the University of Stellenbosch, at Cameron’s request, made the correspondence available.

On 18 October, Rossouw sent a letter to Chief Justice Mogoeng Mogoeng in which the developments as set out above were brought to his attention. Rossouw wrote that there was no indication that he (Mogoeng) had been informed of the matter beforehand and that this surely attested to the irregular and unsuitable conduct by a judge of the court who delivered the judgment in the Gelyke Kanse case – not to speak of the conduct of the rector, a litigant himself. Rossouw closed by saying that his client would appreciate an indication of what the chief justice planned to do about the matter. Mogoeng has to date not responded to this letter, although a spokesperson of the court responded dismissively to media enquiries.

As Rossouw however indicated to Mogoeng, it should be clear that the behaviour of the parties involved had irrevocably tainted the outcome of the case.

All that remains is for the university to launch its own investigation to ascertain to what extent De Villiers’s conduct had been unethical and irregular and whether he under these circumstances can continue to serve the university as rector.

Adv. Jan Heunis SC is president of the SU convocation and leader of the legal team of Gelyke Kanse. This article first appeared in Rapport and is published with permission.