After being expelled from Stellenbosch University for urinating on another student, Theuns du Toit has failed in his bid to set his expulsion aside.
In a lengthy judgment, two judges of the Western Cape High Court dismissed his claim that during the incident he was too intoxicated to know what he was doing.
Du Toit was a first year LLB student at Stellenbosch University, staying in the “Huis Marais” residence in 2022. Du Toit entered the first floor room of another student, Babalo Ndwayana, who was asleep at the time. After being woken up by Du Toit, Ndwayana says he watched Du Toit walk to a desk and urinate on his belongings. Ndwayana recorded Du Toit.
When Ndwayana asked what he was doing, Du Toit allegedly said “waiting for someone, boy”. When asked why he was urinating on Ndwayana’s things, Du Toit allegedly said “it’s a white boy thing”. He then left Ndwayana’s room.
Minutes after, Ndwayana alerted relevant university authorities .
Du Toit returned later and apologised but Ndwayana felt an apology was insufficient to address the trauma and indignity he inflicted.
After a disciplinary committee hearing, the committee concluded Du Toit had consumed one-and-a-half bottles of brandy between 7pm and 3am on the night in question. Further, the video footage showed “undisputed evidence” that Du Toit urinated on Ndwayana’s possessions. Du Toit accepted this.
The committee ruled Du Toit was guilty of numerous charges including trespassing and destruction of property. It also said self-inflicted alcohol abuse could not be used as a defence to escape improper conduct. It also found his utterances racist because it presumed he had the right to “use a person of colour’s possessions as a toilet”.
Despite him being a first-time offender, who showed remorse, the committee expelled him “immediately”. He appealed to an appeal committee but it basically confirmed the first committee.
As a result, Du Toit asked the High Court to review these findings.
Western Cape High Court judges Rosheni Allie and Judith Cloete dismissed Du Toit’s case last Thursday.
Allie noted the committees relied on written statements and placed little weight on the explicit details of the video itself. Though the video proved Du Toit’s conduct, the specifics — such as what was said — were primarily gleaned from other evidence. The university had a basis to expel Du Toit on the urination charge alone. The other charges Du Toit challenged would not have changed this, even if the court ruled in his favour.
Du Toit and his attorney, Dirk van Niekerk, also said statements made by the university’s leadership “prejudged” Du Toit. Allie found this allegation “astounding” based on “conjecture” and “presupposition”.
“A court of review,” she wrote, “would not be concerned with whether the decision taken was correct but rather with whether the decisionmaker was permitted to make the decision in the way it did.”
The committees had conducted themselves as they were empowered to do and thus the court had no basis to overturn their findings.
Allie also took issue with Du Toit’s legal team using this as an opportunity “to rail against the university … unduly”, when there was no legal standing to do so. She found it “abusive of this court’s process”, using this as a “platform [for Du Toit’s attorney] to air his grievances with the university”.
Allie wrote: “There could be no question that [Du Toit’s] misconduct in fact did so affront the human dignity of Mr Ndwayana.”
Judge Cloete agreed, noting Du Toit had not advanced any argument to warrant the High Court overturning the committees’ findings.
Though the committees could have been clearer or done things more efficiently, their findings were in keeping with what evidence was before them. Cloete confirmed that review courts would only overturn such findings if there were clear grounds the committees were wrong.
There was no such finding.
The judges dismissed Du Toit’s case, with costs.
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