Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
14 November 2008

Freedom of expression and our Universities

What is happening at our Universities? Why do some of these institutions, who are supposed to be at the forefront of debate and academic freedom, seem so eager to stifle dissent?

First it was reported that the University of Cape Town (UCT) has instituted disciplinary action against Paul Ngobeni, its Deputy Registrar, allegedly because of an article he wrote in June this year in Business Day about Judge President John Hlophe’s dispute with the judges of the Constitutional Court over allegations that he sought to influence two of them to find in favour of Zuma.

Then, last week it was reported that the University of KwaZulu/Natal (UKZN) has instituted disciplinary proceedings against two of its professors, Nithaya Chetty (Physics) and John van den Berg (Mathematics), following statements they made which were reported in the media and in an e-mail posting and which were highly critical of the conduct of Vice Chancellor Professor Malegapuru Makgoba.

If these allegations are true they represent a worrying trend among institutions of higher learning to stifle criticism and debate. Moves to stop academics and other employees of universities from criticising their institutions or taking part in broader political debates in society send out a signal that the right to freedom of expression, which includes the right to academic freedom, is not appropriately respected by institutions of higher learning.

I have had quite heated arguments with Mr. Ngobeni (who once called me a racist!) and I believe that his views on John Hlophe and the Constitutional Court are misguided and even dangerous, but if UCT really is instituting disciplinary action against him because of something he wrote in his personal capacity relating to an issue of extreme public importance, I would be the first to argue that the university has completely overstepped the mark.

Ngobeni might well have been an unwise choice as Deputy Registrar, given the serious professional misconduct which led to him being disbarred as a lawyer in three states in the USA, but it would be constitutionally untenable for a University to try and discipline one of its employees for taking part in a debate of public interest which is unrelated to his job.

Freedom of expression is not absolute, of course, and an employee who engages in racist, sexists or homophobic attacks or who shows a callous disregard for proven facts and for the basic dignity of others may well be disciplined by an institution for breach of a code of ethics adopted by that university. But an institution can surely not discipline an employee because he made statements which they thought were controversial or with which they disagreed – even when these views were viewed as incendiary and stupid.

Such a move would have a chilling effect on other employees, who would think twice before engaging in public debates if they knew their own views did not accord with that of the University management. But Universities are supposed to be hotbeds of arguments and contestation and I would have thought employees at universities must be afforded some extra leeway in debating the issues of the day and even criticising their own institutions.

Earlier this year the Constitutional Court in SANDF Defence Union v Minister of Defence and Others made it clear that even soldiers had a right to take part in protest action in their private capacity as long as such protest did not affect the good order and military discipline. Universities do not require the same kind of discipline for its staff and for the institution to operate maximally, so employees of higher institutions should be given far more leeway to debate and criticise.

That is also why the actions of the University of KwaZulu-Natal seems worrying to me. Is the Vice Chancellor there so thin-skinned that he has to resort to disciplinary action merely because some Professors criticised his actions? For argument’s sake, if my institution engaged in unconstitutional discrimination against women or people living with HIV, I would be the first to criticise it and would not expect to be disciplined for uttering such criticism. If I am disciplined I sure as hell will take my case all the way to the Constitutional Court.

The best way to deal with criticism is to deal with it; that is, to rebut the criticism if it is wrong or to acknowledge the problem and to correct the mistakes if mistakes were made. This is how public institutions, funded by taxpayers, in a democracy ought to operate. Such institutions are required to adhere to values of openness and transparency as set out in our Constitution and cannot be run like secretive little fiefdoms merely because its leadership does not like to be criticised.

One would hope that in both these cases reports in the media had not given an accurate portrayal of what was going on because if these reports are correct it would reflect very badly indeed on our institutions of higher learning.

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