Serrie
Perdeby
Tuks se amptelike studentekoerant / Official Tuks student newspaper / Kuranta ya baithuti ya semmušo ya Tuks
16May2016
year78issue10
SRC legitimacy questions answered
Exclusive investigation into constitutional amendments and CSG transgressions XANDER JANSE VAN RENSBURG AND MARKO SVICEVIC Following the publishing of Perdeby’s investigation into the SRC, amendments to the Constitution for Student Governance (CSG) and CSG transgressions, further investigation has revealed some answers on the matter. Note that all instances of “section” refer to the relevant sections of the CSG. CSG amendments In order to clarify the process followed in amending the CSG in November 2015, Perdeby inquired with various sources, including several former SRC members, multiple experts on legal interpretation and the Constitutional Tribunal. In accordance with section 49(1), the CSG may be amended by a twothirds majority vote by the SRC in a meeting duly constituted for such a purpose and in consultation with the Constitutional Tribunal. According to another advisory opinion by the Tribunal, when amendments are made to the CSG, the provisions of section 49(1) must be followed. The Tribunal also explained that the two-third majority vote on the amendments must have been taken by the 19 SRC members in office in 2015. The Tribunal concluded by saying “The amendments approved by Council on 24 November 2015 did not follow this process therefore they are, in our opinion, invalid.” Perdeby consulted with Prof. C. J.
Botha, a professor in public law and lecturer of legal interpretation at UP’s Faculty of Law for his legal opinion on the matter. Although Prof. Botha said he didn’t have the necessary time to have an in depth look at the matter from a legal perspective, he explained to Perdeby as the matter appeared on face value. Prof. Botha said that the CSG is part of a larger structure of legislation that governs the functioning of UP. The Higher Education Act that prevails over subordinate legislation empowers the Minister of Higher Education to set out institutional statutes in consultation with universities. UP’s institutional statute in turn gives rise to UP’s institutional rules and the CSG. Any amendments made to the CSG, and in particular by the SRC, must be done by the procedure set out in the CSG and must first and foremost be followed for the amendments to be valid. Prof. Botha further explained that because the procedures for the amendments to the CSG were not followed, the approval of these amendments by Council was invalid. Further to this, Prof. Botha also referred to UP’s institutional statute and said that according to section 59 of the statute, Council does not have the power to amend the CSG. The Tribunal also added that in their opinion “an interpretation based on the wording of this section [section 59] does not state that Council has the power to amend the CSG at whim [and that] it merely states that every amendment that is made (following the correct procedure as set out in section 49(1) of the CSG) must be
approved by Council for it to have legal effect.” Consulting Prof. Anton Kok, the deputy dean of the Faculty of Law, he explained that Council approved the amendments of the CSG in November 2015, with the specific aim of accommodating the current SRC situation and with the amendments only having effect for the duration of 2016. Prof. Kok further elaborated on the use of the words “in consultation with”, saying that consensus would have had to be reached between the SRC and the Tribunal in order to send submissions of the amendments to Council for final approval. When asked about the amendment process specifically relating to the powers conferred on Council through UP’s institutional statute, Prof. Kok explained that in his own interpretation of the Statute, and in line with the CSG being subordinate to the statute, this meant that the UP Council could amend the CSG if it saw the need to do so, after consultation with the SRC, and without involving the Tribunal. In Prof. Kok’s view, it would obviously be preferable if all the requirements for amending the CSG as set out in the CSG itself (two thirds majority decision of the SRC in consultation with the Tribunal) were adhered to, but as long as at least the requirement in the statute (consultation with the SRC) was adhered to, Council could validly amend the CSG. Continued on page 3.