A University of Fort Hare (UFH) student, who was expelled after a “hit-and-run” incident that injured a fellow student, has won the right to attend virtual classes for the rest of the year.
Yamkela Melane’s woes started in July 2021 when his vehicle hit the student, injuring her severely. She spent a month in hospital.
The high court in Bisho has now ruled in favour of Melane, who sued UFH to challenge his expulsion, determined by the institution’s disciplinary appeals committee (DAC).
Judge Avinash Govindjee said on August 8 that Melane “was involved in an incident at the Cougar Hog Carwash on July 24 2021”. His vehicle went out of control and “collided with an adult female student ... causing her serious injuries”.
UFH then slapped Melane with misconduct charges.
“You, being a registered student, are hereby charged with misconduct in that you, without just excuse, engaged in conduct which is improper, unbecoming or disgraceful and liable to bring discredit upon the university in that, on or about July 24 2021, at or about Cougar Hog Car Wash in Alice, you committed the criminal offence of ‘hit and run’ in that you ran over [the victim] with your motor vehicle and fled the scene, such conduct falls within the definition of misconduct as defined by the rules,” the UFH charge sheet read.
According to the judgment, the victim was “knocked unconscious and hospitalised for a month, suffering grade five splenic and kidney injuries, a right radial fracture, a vertebral body fracture and a bilateral superior pubic fracture”.
The disciplinary committee (DC) found Melane guilty, expelled him for one year and ordered him to write a letter of apology to his victim. His registration for the 2023 academic year was suspended pending payment of four physiotherapy sessions for her.
Things got worse when he appealed the decision to the DAC. He took issue with the appropriateness of the sentence imposed, among other things. But the DAC, which heard his appeal in March 2022, dismissed it saying he “should be permanently expelled by UFH or deregistered as a student and removed from its system or database with immediate effect”.
Melane then lodged an urgent application to “suspend the implementation of the findings and outcomes of the DC and DAC, to enable him to resume all rights, duties and privileges associated with being a registered student of the University of Fort Hare immediately”.
Melane’s counsel argued that his expulsion infringed on his constitutional right to education.
“While the matter may not have been of concern to other students, the issue affected [Melane’s] right to education and, on my understanding of the applicable approach and the available authorities, qualifies as a genuine constitutional challenge,” said Govindjee.
Before the high court heard the matter, the parties reached an agreement. They agreed that pending the implementation of the DACs’ finding, Melane would be allowed to continue his studies “via online based learning, off-campus only”. He could only “attend campus with the prior written approval” of the UFH deputy registrar for governance and legal services. The order was granted pending the finalisation of the second part of Melane’s court action which sought to review the DAC’s outcome.
The order had stringent conditions instructing Melena to “diligently” pursue the second part of his application “complying with all prescribed time periods in terms of the uniform rules, alternatively, as agreed between the parties and/or as described by the court”. But “despite the further settlement agreement, Mr Melane was unsuccessful in obtaining the primary relief had sought, namely to review and set aside the decision of the DAC.
“Despite [Melane’s] failure to obtain relief, to hold differently would have a chilling effect on similarly placed litigants in the context of constitutional justice. The matter is, therefore, properly located in a constitutional setting,” said Govindjee.
“Without engaging with the merits of the matter, it may be noted that [Melane’s] case was premised, in part, on the DAC’s finding as to his lack of remorse and that, given the available record, this challenge was not frivolous or vexatious, or brought in bad faith.”
Govindjee ordered that the DAC's finding be suspended to allow Melane to complete the 2023 academic year, online. The court also ordered him to seek prior approval from the deputy registrar to visit the campus.
“Such approval will not be unreasonably withheld in the event that [his] attendance on campus is required for purposes of his academic studies, as determined by the [deputy registrar],” Govindjee ruled.
“Any approval for [Melane] to attend campus for any other reason will be [the registrar’s] sole discretion.”
Govindjee spared him the legal costs.
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