Kota v National University of Lesotho (CIV/APN 130 of 97) [1997] LSHC 65 (18 August 1997)

1 CIV/APN/130/97 Applicant IN THE HIGH COURT OF LESOTHO In the matter between S E K E K E K O TA and THE NATIONAL UNIVERSITY OF LESOTHO Respondent JUDGMENT Delivered by the Honourable Mr. Justice M M. Ramodibedi On the 18th day of August 1997. In this matter the Applicant has Sled a Notice of Motion on an urgent basis seeking an order in the following terms:- "1. Dispensing with the Rules of Court pertaining to modes and periods of service. 2. A Rule Nisi be and is hereby issued returnable on the date and time to be determined by this Honourable Court calling upon the respondent to show cause (if any) w h y) : (a) The Registrar of the respondent shall not be ordered to dispatch to this Honourable Court within seven (7) days of service upon her of this documents and an order of court, the record of proceedings in the disciplinary matter involving the respondent for this Honourable Court to review and set aside such proceedings. (b) The disciplinary proceedings of the respondent against the applicant shall not be declared null and void for failure to comply with the disciplinary procedure of the respondent. © Applicant shall not be given such further and/or alternative relief as this Honourable Court m ay deem meet. (d) The respondent shall not be directed to file their opposing papers within five (5) days of receipt hereof (e) Respondent shall not be ordered to pay costs hereof 3. Prayers 1, 2(a) and (d) operate with immediate effect as an interim court order." On the 18th April 1997 my Brother Monapathi J duly granted the Rule Nisi sought and ordered that prayers 1, 2(a) and 2(d) operate with immediate effect. The matter was then placed before me on the 4th August 1997 when it was in turn postponed to 11th August 1997. Seeing that there was still no record of proceedings filed as on that date 1 specifically instructed Mr. Moiloa for the Respondent to ensure that such record was duly despatched to the Court in terms of Rule 50 (l)(b) of the High Court Rules 1980. What then happened is that on 7th August 1997 the Respondent's attorneys filed with the Registrar of this Court a document entitled "Filing Sheet" bearing one sentence as follows: "Herewith Report of Senate Committee on Discipline presented for filing by Messrs. Webber Newdigate." The "report" in question is in type form and is duly attached to the Filing Sheet. Significantly it is both undated and unsigned. Indeed the Court was left with the distinct impression that this "report" is what it professes to be namely a mere report and not the actual record of proceedings envisaged by the aforesaid Rule 50 (l)(b) of the High Court Rules. Mr. Rakuoane for the Applicant was then faced with a dilemma whether to ask for a further postponement of the matter to enable the Respondent to furnish the record of proceedings as ordered by the Court. Such postponement would have meant further delay in the prosecution of the matter with the resultant prejudice to the Applicant, In the end therefore Mr. Rakuoane opted to proceed with the matter in the absence of the record. This was a wise decision in the circumstances. For reasons which will become apparent in the course of this judgment the Respondent probably relished the idea of a postponement as it would fit in its decision against the Applicant. This is h ow the Court views the Respondent's consistent failure to furnish the record of proceedings in the matter as ordered by the Court. N ow for the story of the litigation. The Applicant is a student of the Respondent University. As will more fully appear hereunder the Applicant was charged with breach of discipline arising from an incident that allegedly took place on the 27th September 1996. It is c o m m on cause that the Respondent did not institute disciplinary action against the Applicant until on the 8th November 1996 when the Acting Dean of Student Affairs forwarded a M e m o r a n d um Annexture " A" to the Acting Vice Chancellor in the following terms:- MEMORANDUM FROM: ACTING DEAN OF STUDENT AFFAIRS TO : ACTING VICE-CHANCELLOR CC : SENIOR ASSISTANT REGISTRAR - ACADEMIC DATE: 8TH NOVEMBER, 1996 RE: ATTEMPTED ATTACK WITH A GUN BY LEREKO SHALE - (9600632) AND SEKEKE KOTA (9300031) I submit herewith my growing concerns over the free carrying of weapons ranging from guns to shambocks by the students of the National University. It is quite disturbing to hear cases of assault, harassment of females and the subsequent fear to report for fear of ostracism and possible further harassments almost ever weekend. Ever since the payment of lump sum monthly allowances to students, there are parties attended by fights several of which are not reported. I wish to recommend quite strongly that a few cases which will be reported be taken quite seriously in order to bring to a halt this growing state of anarchy which will bring this institution in to disrepute I n ow recommend that immediate action be taken in respect of the following cases:- 1) Lereko Shale - (9600632) is reported to have carried around a gun which he brandished all over the show in the process of which he threatened to shoot (to kill) Makibinyane Thoso - 9300440 - a student at N U L. In a session with us, Lereko claims he was just joking. This is quite serious. I recommend that Lereko Shale be suspended from the N UL forthwith in terms of Statute 7 (j). Again he should be charged for keeping and threatening to use a weapon in terms of Regulation 1.5 under General Regulations as contained in the Students' Handbook. 2) Sekeke Kota - (9300051) (sic) should be charged for contravention of Regulation 1.5 of the Student Hand Book "Keeping a weapon on Campus". This is the student w ho had been keeping the firearm and who finally gave it out to Lereko - mainly to brandish around. In the meantime, I am submitting reports to the Registrar (Academic Office) for processing by the Senate Disciplinary Committee. Thank you. M. T. MOROJELE PS. I am sorry that this submission is made after a rather long time. Owing to the reluctance of students to report, we had problems piecing together information and finally bringing students together to go through preliminaries." It proves convenient to refer to Respondent's disciplinary procedure as laid d o wn in the Student Handbook. Regulations 4.1.1 - 4.1.5 thereof provide as follows:- "4.1.1 Disciplinary cases or complaints m ay be brought before the Student Judicary (sic) by student, members of staff or any other member of the University or the campus community. The normal channels shall inform the Dean of Student Affairs, w ho shall inform the President of the Student Judiciary. Such complaints shall normally be made within two weeks of the incident concerned. 4.1.2 Serious breaches of discipline which are deemed to be beyond the scope of the student Judiciary shall be brought before the Disciplinary Committee of Senate. The normal channel shall be to direct the matter to the Dean of Student Affairs, w ho shall recommend to the Registrar whether or not to bring the matter before the Student Judiciary or Disciplinary Committee of Senate. 4.1.3 Either the Student Judiciary or the Disciplinary Committee m ay refer cases to the other body if they consider this appropriate. During academic session, disciplinary cases shall normally be heard within four weeks of the date of the report of the incident and not later than six weeks. 4.1.4 For cases to be brought before the Disciplinary Committee the Registrar shall call the committee to meet, hear and decide the case. 4.1.5 The Disciplinary Committee in each case will evaluate the case and give a written decision and grounds for disciplinary action." Judged against these Regulations I am satisfied that the above mentioned M e m o r a n d um Annexture " A" contained two fundamental flaws namely (1) the Acting Dean of Student Affairs ought not to have directed the M e m o r a n d um at the Vice-Chancellor but at the Registrar in terms of Regulation 4.1.2; (2) In my calculation the six weeks period within which to hear the disciplinary case actually expired on the same day the memorandum was issued namely the 8th November 1996. Indeed as it turned out the disciplinary case was only heard on the 2nd day of December 1996 which was far beyond the period stipulated in Regulation 4.1.3. I have accordingly considered this factor in favour of the Applicant as I am of the firm view that time is of the essence in disciplinary cases involving students at Respondent's university. Indeed a delayed disciplinary hearing must surely lose its meaning and effect in a school set up. I can also conceive of potential prejudice to the affected student in a number of ways resulting from such delays. It is for these reasons that I feel Regulation 4.1.3 serves a good purpose which must therefore be given effect to. This brings me to 'Maseabata Ramafole v National University of Lesotho and others 1980(2)LLR412 at 428 in which Cotran CJ stated the following remarks:- "The N UL in its wisdom had its own regulations and rules decreed that disciplinary action against a student before the Committee be governed almost parallel to court proceedings with all the safeguards that an accused person enjoys before a judicially constituted body. Firstly a complaint has to be received, secondly a decision has to be m a de on the forum, thirdly a charge has to be laid with sufficient particularity, fourthly that a trial be held expeditiously, fifthly that time be given to prepare for defence, sixthly that there is a right to representation, seventhly that the case be presented by a prosecutor w ho should alone (with the Vice Chancellor) be familiar with the facts and other reports, eighthly that a full record of the proceedings by kept, and lastly but most importantly that the Committee enters upon its task at the date of the hearing with complete detachment." I find myself in respectful agreement with these remarks. The disciplinary charge that the Applicant faced was also not without its o wn hiccups which merit comment here. The initial charge sheet Annexture " C" which was served on the Applicant on the 18th November 1996 reads as follows:- "NATIONAL UNIVERSITY OF LESOTHO SENATE COMMITTEE ON DISCIPLINE CASE NO 96/8 DISCIPLINARY CASE AGAINST : SEKEKE KOTA (95:00619) COMPLAINANT: NUL CHARGE: Y ou Sekeke Kota are charged with offence of Breach of discipline contrary to the National University of Lesotho's Discipline Regulation 1.5 and 1.7 (a) (b) and (c). In that on or about Friday 27th September 1996 near or at the Guilbeault Hall within N UL Campus you wrongfully and intentionally did by violent conduct assault and threatened to kill one Makibinyane Thoso with a gun. You are required to attend the meeting of Senate Committee on Discipline at Senate R o om 602 on November 22nd 1996 at 9:00 a.m. Served on Mr. S. Kota this 18th day of November 1996. Signed: S. Kota. NB. You are entitled to be present at the hearing to present your case or either to seek assistance of a member of N UL Community. S. P E E TE Disciplinary Counsel." I observe straightaway that this charge is in sharp contrast to the above mentioned memorandum Annexture " A" from the Acting Dean of Student Affairs which was specifically confined to "keeping a weapon on campus." Yet on the 2nd day of December 1996 when the disciplinary hearing actually commenced the Applicant was confronted with an amendment for the first time in the following terms:- "You Sekeke Kota are charged with offence of breach of discipline contrary to the N UL discipline regulation 1.5. In that on or about Friday 27th September 1996 you wrongfully and intentionally kept a firearm in your room" (my underlining). Nobody remembered to inform the Applicant whether the original charge had been deleted or not. Be that as it m ay it is c o m m on cause that the Applicant pleaded guilty. Mr. Moiloa for the Respondent, in an able and spirited submission, has submitted that having pleaded guilty it does not lie in the mouth of the Applicant to complain about the disciplinary hearing in question. With respect, I cannot accept this argument. This is so because firstly Regulation 4.3.4 provides as follows: "4.3.4 The guilt or innocence of the accused student shall be decided solely on the basis of the evidence before the Committee" (my underlining). In my view it is envisaged that some form of evidence will be placed before the committee before the latter can decide the matter. At any rate there is no provision for a plea of guilty in the Regulations. I consider therefore that a plea of guilty where such be the case does not relieve the committee from determining the matter on the evidence before it. To hold otherwise would lead to miscarriage of justice such as for example where a student pleads guilty out of ignorance or where the charge itself does not disclose an offence. Secondly Regulation 1.5 reads as follows:- " No student shall keep and/or use a firearm or any other offensive weapon on the campus, or threaten to use any other object as a weapon" (my underlining). I have underlined the words "campus" to indicate my view that the disciplinary offence only arises if a student keeps and/or uses a firearm on Respondent campus and not in an undisclosed or unidentified room unless same be on campus as well. I have taken note of the admitted fact that Applicant resides at " R o m a" which is a township comprising many residences other than the Respondent campus. I should imagine therefore that a number of students of the Respondent university do reside in such residences. In the circumstances I am driven to conclude that by referring to an unspecified room and not to Respondent campus the charge sheet was fatally defective. Accordingly the Applicant's plea of guilty has no force or effect. In reaching this conclusion I have also considered the admitted fact that the Applicant was not served with any attested statements contrary to Regulation 4.2.4 which reads as follows:- "All attested statements will be served on the defendant w ho will be ordered by D. S. A. to respond within seven (7) days of the receipt thereof by making a written statement." The Applicant's complainant in this regard is contained in paragraph 7 of his founding affidavit in the following words:- "7. I respectfully submit that the disciplinary proceedings against me were procedurally irregular as no attested statement (sic) were ever served on me, nor was I ever ordered by the D. S. A. to respond within seven (7) days of the receipt thereof by making a written statement. I w as thus never given an opportunity to prepare for the evidence of the nature that ought to have been brought to my attention prior thereto. This was in violation of the letter and spirit of Regulation 4.2.4 of the Disciplinary Procedure." I think there is merit in Applicant's complaint. After all he was not to k n ow that the charge would take a completely different last minute turn, perhaps for the worse, as stated above. I should mention that Respondent's wisdom in making the Regulations, particularly Regulation 4.2.4 is not hard to justify. As Cotran CJ rightly pointed out in 'Maseabata Ramafole v National University of Lesotho and others (supra) it is to ensure that disciplinary action against a student is governed "almost parallel to court proceedings with all the safeguards that an accused person enjoys before a judicially constituted body." This must obviously be so in keeping with the status of the Respondent University as an institution of higher learning. In this regard it is necessary to bear in mind the remarks of Prof. S. De Smith in his Judicial Review of Administrative Action 3rd Ed, Second Impression 1976 at page 199: "It is n ow clear that disciplinary proceedings in higher educational institutions have to be conducted in conformity with natural justice provided at least that the penalty imposed or liable to be imposed is severe." I respectfully agree. The Applicant's next complaint is contained in paragraph 8 of his founding affidavit wherein he states that he was never given an opportunity to mitigate as contemplated by Regulation 4.3.6 and 4.3.7. He avers that he only learned for the first time that he had been convicted by the Committee when he received a letter Annexture " D" from the Acting Senior Assistant Registrar (Academic). More about this later. Amazingly these damaging allegations by the Applicant have not been challenged or denied. Accordingly I proceed on the basis of the correctness thereof. See Plascon Evans Paints v Van Riebeeck Paints 1984 (3) S. A. 623 (A) at 635. N ow Regulations 4.3.6 and 4.3.7 provide as follows:- "4.3.6 If the committee finds the student guilty, it shall inform the student forthwith, and the student shall be asked if s/he (sic) has anything to say by w ay of explanation. 4.3.7 W h en the committee has found the student guilty, it shall at this stage, but not before, look at the accused student's previous disciplinary record before making decision." Accordingly I am satisfied that Respondent committed gross irregularity by failing to accord the Applicant an opportunity to be heard in mitigation of sentence. I pause here to consider the above mentioned letter Annexture " D" addressed to the Applicant. It reads: " T HE N A T I O N AL UNIVERSITY OF L E S O T HO P. O. Roma 180 Lesotho Afica Telephone: Roma 340601 Telegrams: Uniter, Roma, Lesotho Telex: 4304 LO Fax: 340000 Ref.: Ref:STU. NO 93:00051 6 December 1996 Mr. Sekeke Kota, c/o National University of Lesotho P. O. Roma 180. Dear Mr. Kota, RE: DISCIPLINARY A C T I ON A G A I N ST M R. S. K O TA Senate Committee on Discipline met on Monday 2nd December, 1996 to decide on your case which was heard on the same day. After due consideration of evidence and facts relating to your case, the Committee found you guilty of breach of discipline by keeping a firearm contrary to discipline regulation (1.5). 1. Y ou are therefore rusticated from the University for the whole of 1996/97 academic year. This means you forfeit all benefits and rights accorded students of the University. Your study record for this academic year is also nullified. 2. Your readmission to the University, will not be automatic, but will follow normal admission process of this University. Yours sincerely, J. M. H L A L E LE Ag. SENIOR ASSISTANT REGISTRAR ( A C A D E M I C) JMH/cmc cc: Vice-Chancellor Pro-Vice-Chancellor Registrar Chairman - Senate Committee on Discipline Dean of Student Affairs." N ow the Applicant avers (paragraphs 9 -12 of his founding affidavit), in what 1 consider to be the crux of his case, that neither the Senate Committee nor the Acting Senior Assistant Registrar (Academic) had power to rusticate or expel him as the case m ay be. He relies on Regulation 2.4.3 which provides as follows:- "2.4.3 The Senate Committee on Discipline m ay impose one or more of the following penalties: I) An official warning; ii) An official reprimand; iii) A fine not exceeding Ml50.00; iv) Suspension from the University for period of two weeks and v) Recommend suspension or expulsion as the case m ay be, from the University to Senate." Because of the importance of the allegations made by the Applicant in paragraphs 9 - 12 of his founding affidavit it is necessary to reproduce the full text thereof which is as follows:- "9. The Senate committee on discipline may impose various penalties in terms of Regulation 2.4.3 of the handbook. It cannot impose rustication or expulsion as the case m ay be, from the University for more that (sic) two (2) weeks. Any purported rustication of a student from the University by the committee is an illegality. 10. The Acting Senior Assistant Registrar (Academic) has no disciplinary power to rusticate a student pursuant to a discussion of the Senate committee of Senate as he has purported to do so as per Annexure "D". 11. It is respectfully submitted that only the Vice-Chancellor can rusticate a student for more than two (2) weeks and not the author of Annexure " D" nor the Disciplinary Committee of Senate. 12. Neither the Senior Assistant Registrar (Academic) nor the committee can rusticate a student for more than two (2) weeks, let alone order as purportedly done in terms of paragraphs 1 and 2 of Annexure "D". Both penalties should be reviewed, set aside and declared null and void." Significantly these allegations are admitted by the Respondent in paragraph of the affidavit of'Masefinela Anne Mphuthing w ho deposes thereat as follows:- Ad paragraphs 6,9.10.11 and 12 "6 Contents of this (sic) paragraph (sic) are admitted. But Respondent avers that in rusticating the Applicant from the University, Respondent did not act in terms of Annexure " D" to the Founding Affidavit. Respondent avers that it recognised that Senate Committee on Discipline had miscontrued (sic) its powers in regard to punishment. Respondent's Council therefore in dealing with the Applicant's case, regarded Annexure " A" as a recommendation only. Applicant was rusticated for one academic year by Respondents (sic) Council. I annex hereto marked "'Masefinela Anne Mphuthing 1" being true and faithful copy of the extract of minutes of the Respondents Council taken on 13 March 1997 and the letter notifying Applicant that his appeal to the Council has been dismissed." I find it strange and unacceptable however for the Respondent to deny that in rusticating the Applicant from the University it did not act in terms of Annexture " D" which is self explanatory in that regard. The question must therefore be asked, if the Respondent did not act in terms of Annexture " D" then in terms of which decision did it act? The deponent 'Masefmela Anne Mphuthing suggests that the Respondent Council acted in terms of Annexture " A" which it regarded as "a recommendation only." I cannot accept this explanation. I think the deponent 'Masefmela Anne Mphuthing has tried too hard (unsuccessfully for that matter) to run away from the obvious namely that (as the Respondent itself concedes) the Senate Committee misconstrued its powers in regard to punishment. That is the stark reality of the matter. As earlier stated Annexture " A" is not a decision or recommendation from Senate but clearly a memorandum from the Acting Dean of Student Afrairs to the Acting Vice-Chancellor leading to the formulation of a disciplinary charge. Nor do I find that Annexture " D" is itself a recommendation by Senate to Council. It seems to me beyond question that the Senate Committee itself made a decision rusticating the Applicant from the Respondent University for the whole of 1996/97 academic year contrary to the disciplinary powers that are given to the Committee by Regulation 2.4.3 as stated above. Hence the Respondent's concession (which was properly made in the circumstances) that the Senate Committee on Discipline had misconstrued its powers in regard to punishment. As they say it never rains but it pours. Seemingly the Respondent's catalogue of errors have continued unabated. Annexture " 1" to 'Masefinela Anne Mphuthing's affidavit contains Council Minutes of 13th March 1997. O ne of the items discussed was "Appeal By a Rusticated Student C. P. 97/13 Sekeke Kota (S. T. P. T50005)." Under this heading is the following minute: "Paper C. P.97/13 was received and considered. The Vice-Chancellor presented the paper. 1. N O T ED that 1.1 that student S. Kota was charged of (sic) a breach of Senate Discipline Regulation 1.5 (Handbook) by keeping a firearm. 1.5 The case was dealt with by Senate Executive and ratified by Senate to which he had appealed. 1.6 Since Senate had no jurisdiction and competence to deal with the appeal, the appeal had been submitted to Council in terms of Student-Handbook Senate Disciple (sic) Regulation 4.4. 2. R E S O L V ED 2.1 to reject the appeal and uphold Senate decision to rusticate him for the academic year 1996/97. 2.4 To inform the student S. Kota that the decision relayed to him by the S AR (Academic) on 18th December was upheld." It is quite clear from this Annexture therefore that, contrary to 'Masefinela Anne Mphuthing's allegation, nowhere did Council treat Applicant's appeal as a recommendation. What Council did was simply to reject Applicant's appeal and to uphold "Senate decision to rusticate him." More about this later. I am satisfied from a close reading of Annexture I that the Applicant was never given hearing when his appeal was determined by Council. It is said that the Vice-Chancellor "presented the paper". In my view this is, with respect, not only novel and outrageous but it is also a clear violation of natural justice and the principle audi alteram partem Rule. I hold therefore that Respondent's decision was both manifestly wrong and unfair. Nor has this court lost sight of the fact that Senate itself does not seem to have had any occasion at all to deal with the decision of the Senate Committee be it as a recommendation or not. Indeed Annexture " J M H 3" attached to 'Masefinela Anne Mphuthing's affidavit makes this abundantly clear. This Annexture contains the Minutes of Senate meeting held on 27th February 1997. Under the heading "Committees Reports" the following minutes appear:- "S. M. 97/11 - Senate Committee on Discipline: Paper S. P. 97/9: Paper S. P. 97/9 was received and considered. Appeal against O ne Year Suspension form the University: Student VS Kota. Noted the appeal of student Sekeke Kota but agreed that it be passed on to Council pursuant to the provisions of disciplinary regulations and procedures." It is clear therefore that what was presented before Senate was the Applicant's appeal and not Senate Committee's decision. Once more this was in violation of Regulation 2.4.3 (v). Be that as it may Senate clearly declined to deal with the appeal which it then "passed on to Council." The decision to rusticate the Applicant remained that of Senate Committee up to that stage. Accordingly I am satisfied that Council's resolution in Annexture I to uphold "Senate decision to rusticate" the Applicant is not only a grave misdirection but is clearly a non starter: Indeed it is, with respect, still-bom in as much as Senate itself never made such a decision in the first place. N ow the powers of Senate in so far as discipline over students is concerned are defined in Section 2 4(1) (2) (s) (t) of the National University of Lesotho Order, 1992 in the following terms:- "24 (1) The Senate shall have and may exercise such powers and authority and shall discharge and perform such functions as m ay be prescribed by the statutes. (2) Subject to this Order and the statutes, and without prejudice to the generality of subsection (1), in addition to all other powers vested in it, the Senate shall have the following powers and duties, (a) regulate and control all teaching programmes and courses of study and the conditions under which persons m ay qualify for the grant of the various degrees, diplomas, certificates and other awards and distinctions of the University: Provided that regulations relating to any programme or course of study shall be confirmed by the Council; (s) regulate the discipline of the students in accordance with ordinances and regulations m a de by the Council; (t) expel any student guilty of grave misconduct after giving him an opportunity to appear personally and to be heard by a committee of the Senate to be established under the ordinances: Provided that, without prejudice to the execution of the penalty, a student m ay appeal to the Council or to any body to which the Council has delegated its powers to hear such appeal" Statute 7 (j) of the Respondent University statutes in turn provides as follows:- "Subject to the Act the Senate shall have the following powers and dudes: (j) to regulate the discipline of the students of the university." I am satisfied therefore that the power to expel a student from Respondent University vests in the Senate and no one else. The argument before me then predictably turned on whether the Applicant was expelled or merely suspended. In its action against the Applicant the Respondent has used the word "rusticate". The Concise Oxford Dictionary ( N ew Edition) defines the word rusticate as "send d o wn (a student) temporarily from University." I accept therefore that the word rusticate has the same meaning as the word "suspend". The only difference is that the former is exclusively used in relation to a University student. I am satisfied that what the Respondent purported to do was not to expel the Applicant from the university but merely to suspend him only for the whole of the 1996/97 academic year. This conclusion leads me to the next pertinent question namely w ho has power to rusticate or suspend a student from Respondent's University? O ne must look to the National University of Lesotho Order, 1992 for an answer. Section 16 (1) (7) (8) (a) of the National University of Lesotho Order, 1992 provides for the powers of the Vice-Chancellor in the following terms:- "16 (1) There shall be a Vice-Chancellor w ho shall be the chief academic and administrative officer of the University. In that capacity he shall also act as accounting officer of the University. (7) The Vice-Chancellor shall, subject to this Order and the statutes, have a general responsibility to the Council for maintaining and promoting the efficiency and good order of the University. (8) In pursuance of his powers under subsection (7) the Vice- Chancellor may, (a) suspend any student from any programme or course of study, or from the use of university facilities, teaching materials, or services; (my underlining) (b) ; Save that in the case of any student the Vice-Chancellor shall report any such suspension or exclusion to the next meeting of the Council or to any committee established by the Council for that purpose." There can be no doubt that the Legislature in its o wn wisdom has decided that the power to expel a student be vested in the Senate while the power to suspend or rusticate be vested in the Vice-Chancellor. The reason for this separation of powers must be obvious. Expulsion is such a drastic step that should ordinarily call for participation of a fully fledged body such as Senate is. Suspension on the other hand is not so drastic and final in nature. Moreover it m ay often be necessary to order immediate suspension of a student from university for various reasons. In that event it would be impractical to wait for a fully fledged meeting of Senate to effect the proposed suspension. Convenience decrees therefore that the Vice-Chancellor would be the best person on hand suited to effect such suspension. In the circumstances, I have come to the conclusion therefore that the power to suspend or rusticate a student from Respondent University is specifically vested in the Vice-Chancellor. It is c o m m on cause that the latter never exercised such power against the Applicant in this matter. Mr. Moiloa has also submitted that the Applicant was guilty of failing to make full disclosure of facts such as the following: (a) That he pleaded guilty to the charge put to him. (b) That he appealed to Council which in rum dismissed his appeal. Mr. Moiloa submits therefore that the application should be dismissed for non disclosure only With respect, while 1 admit that the Applicant has failed to make full disclosure as stated by Mr. Moiloa, I do not agree that this is the type of case where the dismissal of the application should follow as a matter of course. The Court has a discretion in the matter which it must however exercise judicially and not arbitrarily or capriciously. I have considered the importance and nature of the case as being such that the dismissal thereof on technicalities would lead to a miscarriage of justice. The Respondent has flouted the University Order and also bungled its o wn Regulations. This does not augur well for an institution of higher learning such as Respondent is. The Court is certainly not amused. For the reasons which I have endeavoured to explain, I have reached the conclusion that the Applicant has succeeded to make out a case for the relief sought. Accordingly the Rule is hereby confirmed and the application granted in terms of prayer 2(b) of the Notice of Motion with costs. For the avoidance of doubt the rustication of the Applicant by the Respondent is hereby set aside. M . M. Ramodibedi JUDGE 18th August 1997 For Applicant : Mr. Rakuoane For Respondent : Mr. Moiloa