In the event of irreconcilable conflict, everyone is entitled to their day in court. Trial by media should not attempt to influence the outcome of legal proceedings.

In this article I deliberately refrain from commenting on the veracity or the integrity of the parties’ views as set out in the affidavit of Justice Edwin Cameron and the opposite view of Advocate Nick de Jager; that task is for other adjudicators on another day. 

There are however wider concerns and unanswered questions that should be addressed.

I was encouraged by the commendably candid admission made by De Jager on oath, that the alteration of the report was an “honest mistake”. Whether or not that is true, that confession in itself held the key to resolution between the US and Wilgenhof Bond (WB). Had it stood alone the parties could probably have agreed that the Panel findings should be set aside without further ado.

Unfortunately, reading through De Jager’s 191-page affidavit, the motive is clearly articulated in the final paragraphs, this being that the affidavit was to protect the reputation of the Panel and the administration of the US personnel responsible for managing the process.

De Jager, by introducing those issues, has made the dispute, up close and personal, a regrettable turn of events.

The process is key

Gathering controversial information is a difficult task. However detailed and thorough it is, if the process is flawed, the product is contaminated and worthless.

The Panel has performed its function. It does not behove the Panel in some informal form to revisit its decision and try to explain, contrary to the ordinary grammatical meaning of words in the document, that there was some other subjective intention.

If De Jager is of the view that a subsequent subjective explanation is persuasive, I would beg to differ. In my view it is more likely that the issue will be judged objectively, that is, having regard to the words in the document.

The conclusion is common ground, namely, the recommendation was altered materially after a discourse with the Rector. That alone is an attack on the integrity of the report. The subjective explanation, in a less than adequately drafted affidavit, is synonymous with Hamlet’s “doth protest too much methinks”, an expression that surmises that excessively strong and persistent views undermine the credibility of the statement.  

Secondly, my understanding is that the Panel was to be an “Independent Panel”. There was no provision for an interim report. The Panel makes a decision and compiles a report, then communicates the decision to the Rector, after which its function is exhausted.

The so-called invitation to provide “clarification”, even if it was done in good faith, is again a breach of the process, which could itself render the process invalid, because it makes the Rector party to the decision, and so undermines, at the very least, the independence of the Panel decision. Some would argue that it is evidence of collusion on a pre-set agenda, but, again, that is for the court to decide.

The personalisation of the dispute in which De Jager becomes an advocate in his own cause, is again a misconstruction of the process, and its most significant contribution is to close the door on amicable resolution. This again illustrates a lamentable lack of foresight into the peace process, reminiscent of the approach in the “final” report in which dialogue as an option was dismissed, having been encouraged in the “draft report”. There is a very old but trusted adage in the legal profession: “A lawyer who acts for himself has a fool for a client.”

Beyond dispute

Finally, while the students suffer, the parents of the students suffer, the alumni are incensed and while the facts are controversial and difficult to absorb, one aspect appears beyond dispute.

The management of the dispute was incompetently dealt with and caused a great deal of harm to the university, and traumatised many others. 

The continued presence of De Villiers, Van der Bank and Newton-King is an obstruction to a proper process and a bar to amicable resolution. They should resign.  

From De Jager one would have expected more considered conduct. His duty is done, he will have his chance to explain his “honest mistake “in court, a process he must now know all too well, having become by his conduct and confession a victim of his own profession. 

[Image: Suffy69, https://commons.wikimedia.org/w/index.php?curid=111404201]

The views of the writer are not necessarily the views of the Daily Friend or the IRR.

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Martin Luitingh is a barrister at the Sydney Bar in Australia. He was a human rights advocate in South Africa. Advocate Luitingh was counsel for victims in the Harms Commission of Inquiry into Death Squads, representing among others, the deceased estate of Anton Lubowski and the murdered David Webster. He was the lead counsel in the Queenstown Six case, in which, on a re-trial, the sentences of the six accused were reduced from death to 60 months’ imprisonment, of which 40 months were suspended for five years. Luitingh was the lead counsel, assisted by Advocate Eric Dane and advocate Gys Rautenbach SC of the Johannesburg Bar, in the indictment of 18 South African Transport Services (SATS) employees accused of murdering co-workers who had crossed the picket line after a large-scale termination of employment by SATS. Before leaving for Australia, Luitingh gave evidence in the inquest into the death of David Webster, who was killed by a shotgun blast outside his home in Johannesburg. Apartheid hitman Ferdi Barnard was convicted and jailed for murdering Webster.