A long-standing, bitter racial battle for control of the University of Pretoria is going to the Equality Court.
A 3 000-member lobby group, the Higher Education Transformation Network, has filed a complaint, based on an alleged lack of transformation at the university, with the court which sits in the Pretoria Magistrate's Court.
But the hostile exchanges in the North Gauteng High Court this week suggest that a peaceful resolution is a distant prospect. One of the respondents in the Equality Court case is a member of the minority rights organisation AfriForum, Willie Spies, who brought an urgent application to interdict the network from making "defamatory" statements about him.
Recently elected to the university's council, Spies denied that his court action had anything to do with the network's pending litigation in the Equality Court. He declined to comment, except to say: "We have asked for an extension to file responding papers. We will respond [before February 28]."
In this action, Spies is both the second respondent, in his capacity as chairperson of the powerful Tuks Alumni Board, and the fourth, in his own capacity. The vice-chancellor, Cheryl de la Rey, is the first respondent, representing the university as a whole, and the council chairperson, Futhi Mthobi, is the third.
Slow pace
The overall aim of the network's approach to the Equality Court is to challenge what it claims is the slow pace of racial change in the governing structures of the university. There is a "lack of equality and diversity in the representation of black alumni" on both the council and the alumni board, the network's court papers claim. In addition, the university is "not compliant" with either the Employment Equity Act or the Higher Education Act regarding transformation.
The network's application asks the court to declare last year's council election "invalid" and to find that some of the university's "rules, policies and regulations" are unconstitutional. It also specifically asks the court to "disqualify" Spies as a council member.
The Equality Court action follows two years of bitter fighting involving the network, and Spies has been prominent throughout it.
Eighteen months ago, the Mail & Guardian reported on the network's claims that elections to the alumni board are "conducted in secret", are "not open to scrutiny" and are "undemocratic" ("Race row at Tukkies hots up", November 25 2011). This, the network continues to claim, gives Afrikaans alumni an advantage in board elections, especially those aligned to AfriForum.
The alumni board is influential because it elects four members to the university's council, the institution's highest governing body, and its chairperson automatically becomes a member of council. Spies became chairperson of the alumni board last October.
Hampering transformation
The network will argue that AfriForum's influence at the university has hampered transformation. "The ultimate aim [of our fight] is to break this bond that AfriForum enjoys with the university," said Lucky Thekisho, president of the network.
Its application to the Equality Court comprises documents the network claims show the university's failure to effect transformation and to comply with the Employment Act. These include a December 2011 letter in which the National Society of Black Engineers of South Africa voices its support of the organisation for its "work in condemning victimisation and harassment of black staff" at Tukkies.
In another document, the network says that, between 1994 and 2009, the university appointed only three black senior executives. "The employment equity plan of the university has remained unchanged, black academics and professors are vilified and made redundant."
"We will not back down in our fight for transformation of the university," Thekisho said. "This time it has to happen."
The network's action comes three weeks after Higher Education and Training Minister Blade Nzimande announced a permanent committee to oversee transformation at universities, a move the network strongly backed, calling it both "welcome and long overdue".
The M&G understands the network will soon lobby the committee's chairperson, the University of KwaZulu-Natal vice-chancellor Malegapuru Makgoba, to look into transformation at Tukkies.
Tukkies spokesperson Nicolize Mulder said the university was "aware of the ill-informed allegations" the network had levelled in the Equality Court. It had been making such "spurious" claims since Thekisho failed to be elected to the council in last year's elections.
On the election process itself, Mulder said: "An independent verification by [audit company] PricewaterhouseCoopers has confirmed that [it] complied with all statutory and approved processes."
She would not comment on the details of the Equality Court case until it had been finalised but added: "It is a matter of record that the University of Pretoria is one of the best managed institutions in the country. [It] will deal with the claims made by the network in the Equality Court during the legal process."
Judge under fire in hearing
I'm not a member of anything — let's get the facts straight," an irate Judge Cynthia Pretorius exclaimed during heated exchanges in the North Gauteng High Court this week.
The judge found herself under fire from the Higher Education Transformation Network, which was defending itself against the AfriForum leader Willie Spies's urgent application to interdict the network from making "defamatory" public statements about him.
Spies is a member of the influential Tuks Alumni Board and recently became a member of the University of Pretoria's council.
The black lobby group's first move on Tuesday morning was to ask that Pretorius recuse herself. As an Afrikaans-speaking alumnus of the University of Pretoria, she faced a conflict of interest and could be biased, the group argued.
She had also previously been supervised by now retired judge Isaac William Brunt de Villiers, an executive member of the Tuks Alumni Board and honorary president of Afrikaans lawyers' association, the Vereeniging van Regslui vir Afrikaans, the group said.
In a letter to Gauteng Judge President Dunstan Mlambo before the hearing on February 12, the network's leader, Lucky Thekisho, wrote: "Based on the track record of AfriForum's legal victories in the high court, potential judicial sympathy for the Vereeniging from white judges and the fact that our case alludes to allegations of racism and discrimination, which are at the core of our legal application [see "Tukkies racial battle on the boil", Page 12], we hereby kindly request for the appointment of a black judge or a team of judges to hear our matter."
But Pretorius remained unpersuaded. "The suspicion [that I will be biased] is not good enough," she told the network's advocate, Sibongile Nxumalo, in court. De Villiers had not been her supervisor, she said. "He was my colleague as a judge." She also said she was not aligned with any organisation. When Spies's lawyer, Quintus Pelser, quoted from a network press release explaining why it wanted a black judge, Pretorius commented: "That's racist."
"Absolutely," said Pelser. "They [the network] are saying this division has [some] objective judges and those that are not. They tell the world … a white judge is not objective."
On February 13, Pretorius rejected the network's recusal application and attention turned to Spies's application.
"What I'm trying to do is to protect my own dignity and my reputation as a lawyer," Spies told the M&G.
His application centred on claims the network has made since 2011 that he has hindered transformation at Tukkies because of his association with organisations pursuing Afrikaans-only interests.
In responding affidavits, Reginald Legoabe, the network's executive director, said he had known Spies in past years "as an active member and chairperson of the Afrikaner Studentewag, a student wing of the Afrikaner Volkswag, as well as a member of the Konserwatiewe Party [Conservative Party]".
The organisations Spies had been associated with all had a "common goal to resist the enrolment of all non-Afrikaans students and keep the University of Pretoria as an Afrikaans-only institution". They used to "violently disrupt" political and other meetings black students convened.
Spies approached the court to refute these "untrue, defaming" claims, he told the M&G.
Pretorius issued an interim interdict in his favour pending a full court hearing of his application.