UP student interviews
Spin -page 7 Kingz
Hearts of literature
Lunacy with Aston
Perdeby -page 6
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Tuks se amptelike studentekoerant / Official Tuks student newspaper / Kuranta ya baithuti ya semmušo ya Tuks
9May2016
year78issue9
SRC legitimacy questioned Exclusive investigation into constitutional amendments and CSG transgressions XANDER JANSE VAN RENSBURG AND MARKO SVICEVIC Controversy surrounding the legitimacy of the 2016 SRC and its election has been a persistent issue throughout their term in office. A Perdeby investigation into the current structure and legitimacy of the SRC has revealed numerous transgressions of the Constitution for Student Governance (CSG), procedural irregularities, and questionable amendments to the CSG. In the course of the investigation, Perdeby lodged an inquiry with UP’s Constitutional Tribunal for clarification on the current structure and functioning of the SRC and possible transgressions of the CSG. The Tribunal submitted a non-binding advisory report on the matter to Perdeby, which formed the basis for further investigation. After additional inquiries with the Tribunal and the SRC, further irregularities were uncovered. Note that all instances of “section” refer to the relevant section of the CSG. The acting president and “interim chairperson” In terms of section 23(2)(d) of the CSG, during any period of absence of the SRC’s president or deputy president, or where there is any inability for them to perform their duties for whatever reason, the SRC secretary assumes the responsibilities of the president. According to the Tribunal report, a literal interpretation of this provision means that under the circumstances the SRC is currently facing, the absence of the president or deputy president “for whatever reason”
meant that SRC secretary Donovan du Plooy should have assumed the role of president. The Tribunal further added that it was brought to their attention earlier this year that amendments were made to the CSG. After exhaustive efforts to obtain a copy of the amended version of the CSG, the amendments were eventually provided to Perdeby by the deputy dean of the Faculty of Law, Prof. Anton Kok. Neither the Tribunal nor the SRC could provide a copy of the amendments. The amendments allowed the SRC to hold an internal election in which an interim chairperson could be elected. After having obtained the meeting minutes from the date of the internal election meeting, it was found that Thabo Shingange, the SRC deputy secretary, was elected as interim chairperson on 25 November 2015, one day after the amendments to the CSG were approved by the university Council. Shingange was also the only person to be nominated. In terms of the amended version of the CSG, the interim chairperson assumes all the responsibilities of the SRC president, including preparing and presenting quarterly reports to the Student Forum. Further to assuming the responsibilities of interim chairperson, Shingange is also required to uphold his responsibilities as deputy secretary. During an interview with Shingange and du Plooy, it was found that the internal election facilitated through the implementation of these amendments allowed for the election of an “interim chairperson” and not an acting president. However, Du Plooy explained that after the 2015
SRC election, and with no president or deputy president, he assumed the position of president until the internal election occurred. The internal election was subject to ordinary meeting procedures and in the SRC’s official response, which was confirmed by Shingange, 15 of the 17 SRC members were present for the election. Two SRC members were not present for the election of interim chairperson. When asked how they would respond if the amendments to the CSG proved to be invalid, Shingange and Du Plooy refused to give a direct answer, saying that they would only provide an answer if such an event took place. In the Tribunal’s report, they state that “the current acting president was not lawfully elected due to the fact that his election was in contravention of the provisions of the CSG,” and that, “The failure by the SRC to adhere to this provision constitutes a procedural irregularity.” According to the SRC, the election of the interim chairperson was communicated to the student body via posts on ClickUP and on the UP website, but Perdeby could not find any evidence to substantiate this. The Tribunal was not made aware of the amendments to the CSG nor the subsequent internal election which had taken place in November 2015.
“The current acting president was not lawfully elected.”
On 5 May during the student forum, the EFFSC-UP expressed their view that the SRC is not legitimate. On 6 May, Daso and Afriforum both informed Perdeby that they do not accept the SRC as legitimate and are boycotting all SRC activities. Image: Daimon Sewell
Questionable CSG amendments According to the Tribunal’s report, the Tribunal was informed that the CSG was amended to make provision for extraordinary circumstances, such as the one that the SRC found itself this year. The amendments were however never communicated to the Tribunal. Prof. Kok explained that the CSG had been amended in November 2015, with the amendments only having effect for the duration of 2016. Shingange told Perdeby that the amendments were, upon the advice of Council, submitted by the SRC to Council for approval. Shingange confirmed that the SRC had submitted the amendment in the second semester of 2015 with the main purpose of accommodating the missing presidential and deputy presidential portfolios. Section 49(1), which specifically deals with amendments to the CSG, states that the CSG may only be amended by a two-thirds majority vote by the SRC in a meeting specifically constituted for such a purpose, and in consultation with the Tribunal. In its
SRC interim chairperson Thabo Shingange and Constitutional Tribunal Chief Justice Mia Labuschagne. Photo: Stefan Stander
report, the Tribunal stated that it was never consulted on any amendments to the CSG. Furthermore, at the time of Perdeby’s first enquiry with them, the Tribunal had not been provided with a copy of the amended CSG. When asked why the Tribunal was not consulted on the amendments as prescribed by the CSG, Shingnage explained the timing faced by the SRC to make a submission to amend the CSG and that, at the time of submission, the Tribunal was not in the Roosmaryn Building and that there was some difficulty in contacting them. Shingange added that, because of this reason, the SRC decided to bypass the Tribunal and instead obtained legal advice from a member at the Faculty of Law, whom they did not wish to name. When asked why the 2016 Tribunal had not yet been given a copy of the amendments, Shingange said that he could not answer the question. In an official response from the SRC it was stated that the SRC was not in a position to account for the matter, but that an inquiry had been made. Upon receiving the amendments, the Tribunal said that they questioned the validity of the amendments as they were not made in compliance with Section 49(1). Prof. Kok explained with specific reference to the CSG that the words “in consultation with” meant that in amending the CSG, consensus would have had to be reached between the SRC and the Tribunal before the amendments could be submitted to Council for approval. Prof. Kok further explained that, in his own interpretation of the UP institutional statute and in line with the CSG being subordinate to the statute, the UP Council could amend the CSG if it saw the need to do so. Prof. Kok added that the bigger question on the matter would be whether Council had the power to condone or ratify noncompliance with the procedure set
out in the CSG for amendments to be made on it. In addressing the matter of the need to amend the CSG, Shingange explained that in the SRC’s interpretation of Section 23(2)(d), the CSG did not make provision for the current situation where a president and deputy president were never properly elected, and that the CSG only referred to a situation where the presidential and deputy-presidential portfolios become vacant following successful elections. However, the Tribunal stated that in their interpretation of the CSG, the phrase “for whatever reason” applied to this particular situation and that, as originally provided for, the secretary should have automatically assumed the position of president. The Tribunal further added that their first major concern with the amended CSG was that it was not made available to the greater student body, which is also in contravention of section 15. This section states that every student has the right to be informed within a reasonable time of any decision made by the SRC on any matter that affects the students’ rights and interests. The Tribunal also noted that the amendments to the CSG were only placed on UP’s web page on 3 May 2016, after Perdeby requested these documents on 29 April 2016. According to Shingange, the amendments to the CSG were communicated to the student body, and were specifically communicated via ClickUP. All reports and related documents to the investigation can be found on Perdeby’s website. Perdeby is continuing its investigation and further findings will be published in our next edition. Continued on page 3.