Higher education minister Blade Nzimande has suffered another defeat in the courts — this time losing an application for leave to appeal a judgment ordering him to withdraw his notice of intention to place the University of South Africa (Unisa) under administration.
On Monday Pretoria high court judge Harshila Kooverjie dismissed with costs Nzimande’s application for leave to appeal the judgment she handed down on October 6.
In that ruling, she found that Nzimande’s notice of intention was “in breach” of an order of the court granted by judge Leicester Adams on August 24.
On August 24, Adams ordered Nzimande not to act on the recommendations of independent assessor Prof Themba Mosia’s report until two separate applications challenging it are finalised.
One application was brought by the chair of Unisa’s council James Maboa, who sought an order to interdict Nzimande from appointing an administrator.
In a separate application, Unisa’s vice-chancellor Puleng LenkaBula launched an application for an order to review and set aside Mosia’s report.
Kooverjie ordered Nzimande on October 6 “to immediately cease and desist from taking any steps to publish and implement the notice or to take any steps of whatever nature to implement the notice”.
“The minister is interdicted from taking any action in respect of his notice and is ordered to pay the costs.”
Meanwhile on November 1, acting judge Andre la Grange, from the same high court, ordered Nzimande to immediately retract a government gazette notice that announced the appointment of an administrator for Unisa.
La Grange ruled that Nzimande’s decision was in breach of judge Adams’s order granted on August 24.
Nzimande appointed the former vice-chancellor of the University of Johannesburg, Prof Ihron Rensburg, to act as administrator for two years after dissolving Unisa’s council.
La Grange granted the parties leave to approach the deputy judge president of the North Gauteng high court, Aubrey Ledwaba, for a date and time for consideration of the issue of contempt.
According to Adams’s ruling, Nzimande was ordered not to take any decision based on Mosia’s report until two applications challenging it were finalised.
La Grange said: “The minister, however, claims this paragraph was a mere ‘undertaking’ and not an ‘operative order’ and was disregarded by the minister. Considering this defence, this court could not but wonder if we have reached a state in our democracy where a minister’s word and undertaking means nothing.”
He said the order of Adams remains and is operative.
“As the minister has gone beyond his intention and acted by appointing the administrator, a similar question arises before this court. This court is considering the order of judge Adams and questioning whether the minister is contemptuous and in breach with his appointment of the administrator.”
La Grange said the court “cannot find otherwise than that the act of appointing the administrator was and is in direct conflict and breach of the order of judge Adams and unlawful”.
“The proper functioning and authority of the courts would be considerably undermined if functionaries are allowed to disregard direct orders with the conception and belief that its decision remains in place until it be declared unlawful again.
“Any and all actions that flow from this (already declared) unlawful decision are void and unenforceable, to be met with contempt of court proceedings.”
La Grange said it had been strongly suggested by the Unisa council that the court should grant an order calling on Nzimande to show cause why he should not be held in contempt of court.
“The court is therefore willing to grant the parties leave to approach the deputy judge president for a date to properly deal with the issue of contempt.”
Nzimande’s spokesperson Ishmael Mnisi did not respond to media queries.
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