Procedural Fairness In Disciplinary Enquiries: The Importance Of Being Heard

At the heart of the matter of Yolanda Dyantyi v Rhodes University & Others (846/2020) [2022] ZASCA 32 (29 March 2022) is the procedural fairness of a disciplinary enquiry.

In this matter, during the period from 17 April 2016 to 20 April 2016, the university was affected by student protests directed at the alleged ‘rape culture’ at the university.  As the protests gained momentum, three male students were removed from their rooms at the residence.  They were allegedly manhandled and deprived of their freedom of movement.

Although Ms. Dyantyi had participated in the protests, she maintained that she had not misconducted herself nor acted unlawfully.

Ms. Dyantyi, on 28 March 2017, was charged with “kidnapping, insubordination, assault and defamation”, and the disciplinary enquiry commenced on 26 June 2017.  During the disciplinary enquiry, Ms. Dyantyi was represented by two counsels, an attorney and a candidate attorney.

The disciplinary enquiry spanned several days between June 2017 and October 2017, and Ms. Dyantyi was due to present her evidence on 10 and 11 October 2017, however, due to an agreement between her counsel and that of a co-accused, Ms. Dyantyi did not testify on 10 and 11 October 2017.

The presiding officer of the disciplinary enquiry unreasonably postponed the enquiry to a date of which he was fully aware that Ms. Dyantyi’s counsel was not available (for more than legitimate reasons), and at the insistence of the university that the matter be resolved by 30 October 2017.

A formal application for postponement was filed by Ms. Dyantyi, which was unsuccessful, and the disciplinary enquiry proceeded in Ms. Dyantyi’s absence.

On 17 November 2017, the presiding officer of the enquiry found Ms. Dyantyi guilty on the charges preferred, and handed down a sanction, which included the permanent exclusion of Ms. Dyantyi from the university.

A review application was launched seeking to set aside the outcome of the disciplinary enquiry, and after many years and various applications, the matter came before the Supreme Court of Appeal (SCA) on 21 February 2022.

The SCA determined that, in subjecting Ms. Dyantyi to a disciplinary enquiry, the university exercised a public power and/or performed a public function within the meaning of ‘administrative action’ in terms of the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”), and Ms. Dyantyi had the right to procedural fairness, as stipulated in section 3 of the PAJA.

According to Baxter Administrative Law, the right of an individual to respond to allegations against them “is the essence of a fair hearing” (audi alteram partem rule).

Having regard to the facts of the matter, the SCA found that there was no compelling reason for the university to conclude the enquiry by 30 October 2017, and that by not participating in the enquiry further, Ms. Dyantyi had not waived her right to participate in the disciplinary enquiry, taking the circumstances of the matter into account.

Accordingly, the SCA reviewed and set aside the outcome and sanction of permanent exclusion of Ms. Dyantyi from the university and remitted the matter to the university for “reconsideration on condition that any continuation of the disciplinary inquiry against Ms. Dyantyi shall take place before another proctor”.

Employers are cautioned that, as much as section 3 of the PAJA grants rights to procedural fairness, so does schedule 8(4) to the Labour Relations Act 66 of 1995 (“LRA”), which clearly states that “The employee should be allowed the opportunity to state a case in response to the allegations” (the audi alteram partem rule).

Therefore, in the absence of a disciplinary code and procedure, or even where a disciplinary code and procedure provides for continuing a disciplinary enquiry in the absence of an employee, where an employee, for a legitimate reason, seeks a postponement of the enquiry, employers ought to consider the reasons objectively and fairly.

In the matter of Ms. Dyantyi, the SCA held that the relevant considerations would have dictated that the disciplinary enquiry should have been postponed to dates suitable to Ms. Dyantyi’s counsel, and the failure to do so violated Ms. Dyantyi’s rights to a fair procedure.

The disciplinary enquiry was determined on a one-sided version, as a result of the failure to have any regard to the audi alteram partem rule.

The decision was made without a full and reasonable ventilation of all the facts and the result of which was a foundation for injustice.

The finalisation of disciplinary enquiries is sometimes burdened with delaying tactics, often regarding the unavailability of representatives.   There are merits in some of the delays, and on the other hand, certain delays are baseless.  However, employers are cautioned to approach postponement applications with a degree of objectivity and reasonableness, in order to ensure that not granting a postponement does not render an enquiry as procedurally unfair.