A decision by the Peninsula Technikon to expel a journalism student who co-authored a Mail&Guardian article on the sex trade on campuses was set aside by the Supreme Court of Appeals on Friday.
Judge Robin Marais ordered a high court review of Max Hamata’s expulsion. An internal disciplinary committee (IDC) of Pentech expelled Hamata in 1998 after the story, headlined ”Sex for sale on campus”, appeared in the Mail&Guardian. The article said the flesh trade was rife on campuses across the country, including Pentech.
A council disciplinary committee (CDC) confirmed the expulsion. Hamata claimed the IDC’s decision to refuse him outside legal representation was unconstitutional. He also said the expulsion infringed his constitutional right to freedom of expression.
The Cape High Court dismissed his application for a review of the expulsion decision. In his judgment, Marais said: ”Although the case was said to involve difficult constitutional questions relating to freedom of expression and freedom of the press, it had in fact virtually nothing to do with either.
”The Mail and Guardian was not being taken to task for having published the article.”
Hamata’s status as a journalism student did not mean he was exempted from Pentech’s rules. His personal right to freedom of expression was obviously not absolute, Marais said.
But the IDC should have at least considered Hamata’s request for legal representation at its hearing. Under the technikon’s rules, a student may only be represented by a staff member or another student.
Marais said there was no constitutional right to legal representation in administrative proceedings, but the Constitution did require flexibility to allow for it in cases where it was truly required to attain procedural fairness.
”In a clash between Pentech’s understandable desire to conduct domestic disciplinary proceedings within the family, as it were, and the need… to allow outside legal representation in order to achieve procedural fairness, it can hardly be supposed that the IDC was… compelled to sacrifice fairness and to accord higher priority to keeping the conduct of the proceedings ‘within the family’.
”I conclude therefore that the IDC did indeed have a discretion to allow ‘outside’ legal representation.”
That did not mean legal representation was just there for the asking. Factors which should determine whether or not this would be allowed included the nature and complexity of the charges, the potential seriousness of an adverse finding, the availability of qualified lawyers among the student or staff body, and the fact that there was a legally trained ”judicial officer” presenting the case against the student.
Hamata was entitled to have his request for legal representation considered by the IDC.
”… the proceedings of the IDC and all subsequent proceedings before the CDC and the council must be set aside. It follows too, that the findings of those bodies and the expulsion of (Hamata) from Pentech must also be set aside.”
Marais said the right of freedom of expression could have potentially become a factor, therefore Hamata acted within his legal rights by asking the IDC to take that into account in deciding whether or not to allow him legal representation.
”But once that was refused and he absented himself from the proceedings as a consequence, and after it had been found on the evidence that he had deliberately misrepresented his purpose in talking to interviewees and had fabricated many of the allegations in the article, it should have been obvious that… any invocation of the right to freedom of speech and to freedom of the press would ring hollow indeed.
Marais said the Freedom of Expression Institute (FXI) also chose to enter the fray when the review proceedings were launched because of its interest in freedom of expression and of the press.
”Its well-intentioned participation was misguided.”
He ordered that the FXI and the Mail & Guardian, bear their own legal costs. The respondents — Pentech and the chairpersons of its council, IDC and CDC — were ordered to pay the Hamata’s costs for the review and appeal proceedings.
Judges Joos Hefer, Craig Howie, Mohamed Navsa and Robert Nugent concurred. – Sapa