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Jeenah, Na’eem (2006) FXI letter to Vice Chancellor Makgoba . Freedom of Expression Institute : -.

The Vice Chancellor
Professor Malegapuru William Makgoba
University of KwaZulu Natal
King George V Avenue, Glenwood
Fax Number: 262 2192

Dear Professor Makgoba

We write to you because of a growing concern that the Freedom of Expression Institute has had over the recent past regarding the state of freedom of expression and of academic freedom at the University of KwaZulu Natal. We believe that free expression and academic freedom are in severe decline at your university and urge you to act expeditiously to stem this trend which is already derailing your vision of being “the premier university of African scholarship”.

The latest incident that has caused us to stand up and take notice and which has raised the level of our concern is the matter of Fazel Khan, a lecturer in Sociology and Social Studies on the Howard College campus of UKZN. Khan gave interviews to certain media that had approached him regarding the publication of an article in the latest issue of ukzndaba (Vol. 3, No. 6/7, June/ July 2006), the newsletter published by your Public Affairs and Corporate Communications Department. The article is about a film that Khan co-directed, but the article makes no mention of him or his involvement in the film, while mentioning his co-director as the director. The article was accompanied by a picture showing Khan’s co-director. The original picture had included Khan but he was cropped out in the version that appeared in your newsletter. As a result of his being excluded in this manner, an aggrieved Khan, when approached to comment by a few newspapers, was quite critical of the newsletter. These criticisms (detailed in the charge sheet presented to him by your university and supplied to us by one of the staff unions) will now be used against Khan in a disciplinary hearing where he faces possible dismissal.

We find the action of the university in hauling this academic before a disciplinary hearing in such a manner – and for such comments – to be appalling. Only in the most authoritarian societies do universities prevent academics from speaking to the media about their work, their research and their opinions and criticisms on the development of society and of their own institutions. South Africa, fortunately, is not such a society, though one might not realise that fact if one were to base one’s understanding on the state of free expression at UKZN.

From the charge sheet and from examining the newspaper articles referred to, we are convinced that Khan simply acted on the basis of his constitutional right to free expression and was neither ‘dishonest’ nor ‘reckless’ in the statements he made – as the charge sheet alleges. In our opinion any disciplinary action taken against Khan would constitute an unreasonable limitation on Khan’s right to freedom of expression and thus unconstitutional.

Khan would moreover have the right to review any disciplinary action taken by UKZN in any competent court. Our courts have consistently upheld the right of workers to engage in speech critical of their employers, most famously in the 1999 Constitutional Court case of SANDF Union vs Minister of Defence. In the 2006 case of Costa Gazidis vs The Minister of Public Service and Administration, the Pretoria High Court found that Dr Gazidis’ criticism of government’s policy in the media, including his utterance about the Minister of Health, did not amount or constitute prejudice to the administration of the department. Dr Gazidis was therefore reinstated.

This year the FXI successfully intervened as amicus curiae in the CCMA case of Vusi Sibeko, a member of the Commercial, Services and Allied Workers' Union (Cosawu), who was dismissed for writing an article in the newspaper of the Democratic Socialist Movement that was critical of working conditions at Superspar. Sibeko won his case for unfair dismissal at the CCMA. His employer, the Royal Ascot Superspar in Cape Town, was ordered to reinstate Sibeko and pay 5 months of back pay. The case became a cause celebre for labour organisations both locally and internationally and Superspar attracted much criticism in the media.

Should disciplinary action be taken against Khan, UKZN will face a similar barrage of local and international condemnation. The FXI undertakes to intervene in all legal processes as a witness or amicus curiae, as well as launch a media campaign in support of Khan.

However, the fact that we believe that the charges cannot hold up in a court are irrelevant to the main issue of concern for us: that this is an example of the manner in which freedom of expression is being eroded at UKZN.

Professor Makgoba, in your statement on the UKZN website, you say: “A critical prerequisite for human development is the creation of a humane and enabling institution; one that is based on respect for human rights, dignity, diversity and sound ethics.” Having spoken to a number of academics at the university over the past year, however, we are convinced that the “respect for human rights, dignity, diversity and sound ethics” that you aspire to for the university is being severely compromised. Indeed, we believe that, particularly in the past six months, a climate of fear has taken root at the university, where academics, workers and students are afraid of, in any way, challenging or criticising the university administration. Such a climate is disastrous at any academic institution and very seriously threatens the spirit of enquiry and academic freedom. It also can have a chilling effect on freedom of expression more generally at the institution – something any university should be vigorously guarding against. A number of incidents over the past year have led us to this conclusion and we mention some of them below.

The recent report by Leana Uys and Charlotte Mbali that found that, “The executive management of the University of KwaZulu-Natal is not trusted by a significant number of faculty and staff to follow through on its promises or to honour its commitments,” as reported by The Mercury (25 September 2006). The report also found that there was, at the university, a lack of consultation and a lack of meaningful communication; an authoritarian attitude; the privilege of position; intimidation and bullying; a lack of transparency and democratic procedures. The fact that such perceptions exist among staff should be extremely worrying – whether they are true or not. It is disconcerting when an institution that is supposed to be a bastion of free thinking is regarded by those who have the responsibility to foster such free thinking believe it to be authoritarian and bullying.

Your refusal, yesterday, to meet with representatives of the Student Solidarity Counselling and Appeals Committee and the Socialist Student Movement to discuss student exclusions simply because they had spoken to the media.

An email notice from Professor Dasarath Chetty, on the 2 March 2006, to the university community informing members of the community of the university’s intention to prevent them from speaking to the media about the impending strike action by staff.

An academic from Rhodes University, Professor Jimi Adesina, being sued by your Professor Dasarath Chetty for defamation for an email that Adesina had sent out wherein he had criticised Chetty’s email notice to the university community (referred to in 2. above). (See summons served on Adesina on the 17th May 2006.)

An email notice from yourself to the university community on the 4 August 2006, informing the community that, “Senate resolved that all members of the University Community should exercise due care when communicating with the media, so as not to bring the University into disrepute.”

The issue of the banning of Dr Ashwin Desai has still not been resolved by UKZN – months after a national public debate about the matter and months after you had promised that the matter would be resolved.

The UKZN “Electronic Communications Policy”. We note that Professor Ahmed Bawa wrote to the university community on the 3 October 2006 that the policy is still in draft form and has not been adopted yet. However, the document itself states that it is effective from the date stated thereon – the 12th January 2006. This policy is a gross violation of academic freedom and freedom of expression more generally. Apart from allowing the university to spy on individuals’ email correspondences, it also allows the university to read documents on staff members’ personal computers (that belong to the university). Further, it makes “illegal” any email and web content that “contains material that is unlawful or in violation of any University Policy including but not limited to pornographic, oppressive, racist, sexist, defamatory against any User or third party.” This is a severe restriction on academics conducting research on various aspects of racism, sexism, feminism, freedom of expression, etc.

The recent incident (The Mercury, 28 September 2006) when an academic at the university was prevented by software installed on his computer from sending out emails because he had not assented to the “Electronic Communications Policy”.

In the May 2006 issue of ukzndaba, Professor Dasarath Chetty writes about the newsletter: “Views inimical to management’s have never been excluded from ukzndaba but we have now decided to give these a regular slot in the interest of stimulating debate and building a more open Institution.” Referring to a new column that had been published for the first time in that edition of the newsletter, Chetty remarked: “It is a column aimed at soliciting contributions from members of the University community who occupy leadership positions, those who are outspoken, controversial and provocative, but who enhance the quality of the debates on transformation and other University issues.” These are noble intentions and in keeping with the spirit of academic freedom and freedom of expression that should be fostered in South Africa. It is such a pity that UKZN has, rather, fostered an environment of fear, apprehension and uncertainty among many of its staff and students. It is a climate, the impression is given, where “those who are outspoken, controversial and provocative, but who enhance the quality of the debates on transformation and other University issues” have to be silenced. Why else would Jimi Adesina be sued? And why else would Fazel Khan be hauled before a disciplinary hearing?

If allowed to go unchallenged, this decision will set an extremely negative precedent for freedom of expression in South Africa’s academic institutions, because it will create a climate of self-censorship at the very heart of policy-making and intellectual life in this country. It will mean that academics will have to refrain from any form of commentary on or reasonable criticism of their universities out of fear of being dismissed. This is surely not what a democracy is about. As workers and citizens of this country, these academics have an inalienable right to engage in political speech about matters of public interest, and should be able to do so freely. By attempting to stifle healthy criticism and debate, especially amongst its own workers, UKZN has been exposed as intolerant and censorious.

Professor Makgoba, while we respect internal institutional procedures regarding disciplinary actions against staff, we do believe that the impending action against Fazel Khan is unnecessary. We therefore urge you to withdraw all charges against Khan and to begin the process of transforming the fearful environment that has been created at the university that you head. We are seeing attempts to attain good short-term publicity for the institution which will ultimately result in the very purpose of the university being subverted. If we allow UKZN to continue sliding into the abyss of a complete disregard of academic freedom and freedom of expression, we will end up with the kind of university that only dictators can be proud of, the kind of university that is not concerned with fostering academic enquiry but thought control. We doubt that this is the kind of institution you will like to be known to have presided over.

Yours faithfully
Na’eem Jeenah
Head: Anti-Censorship Programme

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