Policy On Racism And Racial Harassment

DRAFT POLICY ON RACISM AND RACIAL HARASSMENT

PREAMBLE

The University of Cape Town recognises the divisive impact of our colonial and apartheid past on the ethos of our society and on higher education in particular. In its endeavour to address the implications of our historical location, the university community is committed to moving beyond this racialised past toward a social ethos that nurtures respect for our common humanity, and an intellectual ethos that confronts the racialised nature of knowledge and knowledge production.

This calls for constructive engagement with the challenges of our transition through critical reflection and corrective practices, as individuals, and as an institution. Mindful of the persistent social dislocation and fragmentation caused by this legacy, in particular, racial and economic polarisation, we commit ourselves to the values and principles of the South African Constitution which underpin the vision and mission of the University. In this way we acknowledge the right to live, work and study in an environment free of discrimination and harassment.

The University of Cape Town is committed to:

 The elimination of racism, racial prejudice and unfair discrimination in its corporate conduct at every level of institutional governance;

 Engendering, through its policies, procedures, processes, practices and structures, an anti-racist and rights-based culture, which includes respect for human dignity and diversity;

 Planning for and promoting equity, equal opportunity and fair treatment through inclusive policies and practices in all spheres of university life;

 Being an institution where all members of staff, students and the broader community that we serve and with whom we do business see themselves valued and reflected within the university;

 Promoting a climate that acknowledges and appreciates our social diversity;

 Research, teaching and social responsibility that promotes staff and student awareness of their social position and responsibilities towards building an anti- racist society;

 Academic freedom, critical scholarship and free and creative enquiry, in an environment that is anti-racist and anti-discriminatory;

 Modelling anti-racist practices in our institutional and personal behaviour;

 Providing ongoing opportunities for training and education in anti-racism;

1  Implementing measures to redress the disadvantages experienced by designated groups, in order to ensure their equitable representation and treatment in all spheres of university life.

 Ensuring that all perceived violations and complaints of racial discrimination and harassment are considered seriously and dealt with in a manner that is fair, urgent, expeditious and consistent.

 Ensuring that complainants do not feel that their grievances are ignored or trivialised, and that they will not suffer any retaliation or victimisation.

 Pursuing all of the above in ways that value all members of staff, students and the broader community that we serve and with whom we collaborate.

As such the University prohibits all forms of racial discrimination and harassment (except in those cases where University policy is formulated specifically to redress past discrimination), and will act against any manifestation or incidence thereof through staff or student procedures outlined in this policy/ and or other disciplinary channels. It is not considered unfair discrimination to pursue measures consistent with national and institutional guidelines to redress disadvantage.

The purpose of the policy

The policy seeks to inform UCT’s approach to:

1 Race and racism in South Africa; 2 Related policies and procedures that seek the achievement of equity in all aspects of University life; 3 Enhancing social integration in the University; 4 Processes in dealing with discrimination and harassment

The scope of the policy

All employees, students and third parties are subject to this policy and are expected to observe and comply with its terms.

Violation of this policy, either through commission or omission, and failure of supervisory or managerial employees to observe and implement its terms is regarded as serious misconduct. In these instances, it is required that the complaint procedures outlined in this policy are observed. Failure thereof may result in disciplinary action.

Any person found guilty of racial harassment and/or discrimination could be discharged from employment (in the case of a staff member) or expelled from the University (in the case of a student). In the case of a third party, the termination of a contract may ensue.

Subsequent to the exhaustion of available internal remedies, all parties retain their rights to pursue the complaint in a court of law.

2 INTERPRETATION

In this policy, the following terms should be interpreted as such, unless the context indicates otherwise,

 Complainant’ refers to the person alleging that conduct constituting racial discrimination or harassment as defined in this policy, has occurred. This person may or may not be the victim and is not necessarily a student or employee of the University

 ‘employee’ means an employee of the University.

 ‘ RELEVANT OFFICE’ [this office does not exist in terms of current University structures and the functions of this office may be allocated to existing structures during the implementation phase].

 ‘ HOD’ and ‘managers’ refer to employees with line-function responsibilities.

 ‘PASS’ means Professional Administrative Support Staff.

 ‘Respondent’ refers to the person against whom the complaint has been made.

 ‘ADA’ means Anti-discrimination Advisor.

 ‘Student’ means a registered student of the University;

 ‘Third Party’ refers to an individual or company who is neither a student nor an employee of the University involved in the University and/ or its related activities,

 ‘University’ means the University of Cape Town

 ‘ University community’ refers to staff, students, Council members and associates.

 Victim’ refers to a person against whom an act or acts of racial discrimination or harassment have allegedly been perpetrated as defined in the policy.

A. DEFINITIONS

Equity and Redress

The principle of equity requires fair opportunities to learn and work in higher education institutions and to succeed in them. Applying the principle of equity implies, on the one hand, a critical identification of existing inequalities which are the

3 product of policies, structures and practices based on racial, gender, disability and other forms of discrimination or disadvantage, and on the other, a programme of transformation with a view to redress. Such transformation involves not only abolishing all existing forms of unjust differentiation, but also measures of empowerment, including financial and other support to bring about equal opportunity for individuals. (Based on White Paper 3, 1997. Framework for the Transformation of Higher Education).

Corrective Measures

These refer to practices, measures and actions taken to redress both past and present injustices, and to promote the achievement of substantive5 equality. For the purposes of this policy such measures are understood to be a means to an end, rather than an end in itself.

Diversity

Diversity is the contribution all our differences make to building a university that is conscious of its shared values and of how power relations might be used both to discriminate and enable. It refers particularly to differences that have the most serious social and political impact such as race, gender, (dis)ability, sexual orientation, health status, socio-economic status, unequal opportunity, education and employment.

‘Race’

‘Race’ is a social construct which draws on both visible physical characteristics and invisible, socially defined cultural competencies, to categorise, classify and rank individuals and groups for the purposes of producing racialised hierarchies of power and social worth. Defining ‘race’ as socially constructed necessarily demands cognisance of, and confronting, reified concepts of ‘race’ and their attendant inequalities, rather than their denial and trivialisation.

Racism

While it can take different forms, all racism draws on racialised ideas and beliefs which shape cultures and practices that sustain the unequal treatment of groups and individuals. Systemic racism is supported by deep-rooted institutional processes, practices and structures which perpetuate unearned privilege and disadvantage. Individual racism draws on the power of group membership to discriminate unfairly against groups and individuals perceived to be either inferior or not to belong.

Racial prejudice

Racial prejudice refers to attitudes and practices that consciously or unconsciously draw on the power of individuals and groups to discriminate unfairly against individuals and groups perceived to be different. This is the belief that ‘a particular race or racial group’ is inferior to ‘another race or racial group’ in respect of one, or usually many, qualities or attributes.

4 Racial discrimination

This policy is specifically focused on unfair racial discrimination, as opposed to constitutionally mandated measures of redress.

Racial discrimination translates into practise racialised ideas and beliefs that have the effect of sustaining unearned privilege and disadvantage, and impeding groups or individuals from performing to their potential. Such discrimination might not be intentional, but must be assessed on the basis of its consequences for those adversely affected.

Racial slurs

This is the use of language that demeans or insults individuals or groups on account of their perceived ‘race’.

Racial harassment

Racial harassment is an exercise of power (including racial slurs, threats, jokes, name- calling, insults, discourteous gestures, verbal or physical abuse) that undermines human dignity and adversely affects an individual’s or group’s rights and well- being. It includes social behaviour (whether intentional or not) that coerces, manipulates, intimidates, humiliates or takes advantage of persons by using racial meanings both implicitly and explicitly. Racial harassment creates a disabling environment that undermines the ability of individuals or groups to execute their responsibilities and fulfil their aspirations. Typically, but not always, such behaviour occurs in situations where unequal power and authority relations prevail between those who harass and those who are harassed.

Anti-Racism

Anti-racism is an action-orientated approach that challenges reified concepts of ‘race’, their attendant positionings of privilege and disadvantage, and their institutionalised expressions in social life and practice. This approach seeks to create a university community that is both cognisant of these effects, and willing to act against the violence, discrimination and prejudices produced by racism. It advocates institutional and systemic change through ongoing critical dialogue and self-reflection, engenders a revision of practice, and cultivates an inclusive environment. This requires special attention to how positionings such as hegemonic whiteness operate.

Retaliation / victimisation / collusion

These occur when the respondent (who may become the accused), individuals associated with the respondent, or any other member of the University community negatively affect the complainant, or other individuals involved with the investigation or grievance procedure. This includes but is not limited to the following: intimidation, threats, obstruction or contribution to the obstruction of the investigation, and/or related processes and outcomes.

5 Transformation

The university views transformation as a multifaceted and integrated process by which the University continuously renews itself in an ongoing effort to represent in all aspects of its life and functions the vision and ideals of its mission and values. In this effort, UCT strives to redress past injustices, promote equal opportunity for all, reflect in the profile of its students and staff the demographics of South Africa, safeguard human rights and ensure that its system of governance, its teaching and learning, and its research and service uphold the inherent dignity of all and meet the development needs of South Africa's emerging democracy. Transformation must, therefore, permeate the University and involve all members of the University community.

Reporting

A complainant (or person acting on behalf of the complainant) must endeavour to report only instances where there is a bona fide belief that an act of racial harassment or racial discrimination has occurred.

Anonymous complaints will not be entertained or acted upon. The rights of complainants will be protected, as will the rights of those complained against.

Third Party Third party refers to individuals and groups who are not members of the broad University community but are involved as third parties in the provision of services.

B. THE ROLE OF ALL STAFF WITH SUPERVISORY AND LINE- MANAGEMENT RESPONSIBILITIES (MANAGERS)

University employees with supervisory and/or managerial responsibilities are obliged to take all reasonable steps to create and maintain a working and learning environment that is free from racial harassment, discrimination and prejudice. In their respective areas of responsibility, managers are required to:

1. familiarise themselves with the terms of this policy; 2. assume responsibility for understanding and implementing the policy; 3. communicate the policy, including amendments to the policy, to all employees and students; 4. attend training and educational sessions on this policy offered by the University; 5. act by example with respect to behaving in inclusive, affirming and enabling ways and refraining from committing acts of racial harassment; 6. discourage unacceptable behaviour on the part of others; 7. ensure that third parties are not subjected to racial harassment, prejudice and discrimination within the University;

6 8. take appropriate action in accordance with this policy when instances of racial harassment, prejudice and discrimination occur; 9. ensure that complaints of racial harassment remain confidential outside of appropriate channels of communication (as outlined in the procedure section of this policy); 10. take measures, when appropriate, and in consultation with the RO, to prevent racial harassment, prejudice and discrimination from re- occurring by, for instance, altering workplace and/or student arrangements, whilst at the same time observing the rights of such employees and students; 11. ensure that employees and students remain informed of the terms of this policy; 12. effectively oversee and monitor the implementation of, and the adherence to the above requirements, and 13. report on issues arising from the above requirements, when requested to do so, by the RO and/or a more senior manager.

C. DISSEMINATION

The University, in meeting its legal requirements to disseminate this policy effectively, will take all reasonable steps to communicate and create on-going awareness of its contents to all employees and students. In order to achieve this:

1. The University shall dedicate a website to this policy and related issues.

2. The Vice-Chancellor, after the formal adoption of this policy, and/or subsequent amendments to it, shall issue a public statement on its adoption and implications; and maintain regular communication with the university community on related issues.

3. The Executive Directors of Student Affairs:

4.1 shall ensure that this policy is fully outlined during the orientation of students entering the University for the first time.

4.2 shall communicate by written means the existence of this policy and the seriousness of racial harassment and discrimination to students who register for accommodation at the residences of the University.

4. The Executive Director of Human Resources:

4.1 shall ensure that this policy is fully outlined in the staff induction programme.

4.2 shall ensure that Human Resources Advisors and staff members responsible for employee relations are trained in the effective dissemination of this policy.

7 5. The Relevant Office (hereafter referred to as the RO)

The RO:

5.1 shall establish and maintain the University website on racial harassment; 5.2 ensure that the University media regularly address issues relating to racial harassment, or discrimination in general, and the specifics of this policy; 5.3 ensure that the existence of this policy and the seriousness of racial harassment and discrimination are effectively communicated throughout the University; 5.4 In addition to the aforementioned activities, the University may develop further protocols to: 5.4.1 ensure that those responsible for communicating information on the policy do so in an accurate and consistent manner; 5.4.2 ensure that contact details of ADAs are easily accessible and disseminated to all sections of the University community; 5.4.3 raise awareness about racial harassment and this policy through ongoing education and training; 5.4.4 monitor the implementation of this policy; 5.4.5 ensure, facilitate and manage the effective functioning of investigations, informal and formal procedures; 5.4.6 submit annual reports to the Institutional Forum, Council, Senate, the Vice-Chancellor and the relevant Deputy Vice- Chancellor on the cases of racial and other kinds of harassment managed with an appropriate analysis of the information and action taken; 5.4.7 Annual report to the Vice-Chancellor on the communication of this policy for the purpose of reviewing the effectiveness of the communication of this policy.

D. EDUCATION

6. The University is committed to developing and supporting scholarly understandings of race and racism. As a learning organisation, it aims to provide, in its teaching, learning, research and support activities, ongoing education that  makes visible racism in all its forms;  engages with the gravity and consequences of racial harassment and discrimination, and  works towards their elimination.

6.1 Within 3 months of the adoption of this policy, the Relevant Office shall identify and train all ADAs and members of the Relevant Office with respect to the policy. This training will be repeated for all new ADAs and members of the Relevant Office within the first three months of every calendar year.

8 6.2 In addition to the initial training, all ADAs and members of the Relevant Office should attend refresher and update training sessions annually.

6.3 Within six (6) months of the adoption of this policy the Relevant Office must present a workshop on this policy that shall be attended by: 6.3.1 The Senior Leadership of the University; 6.3.2 The Human Resources department; 6.3.3 The Department of Student Affairs; 6.3.4 Campus Protection Services; and 6.3.5 All departmental heads.

6.4 In addition, the following representative bodies will be entitled to nominate a maximum of six persons to attend the workshop referred to in 6.3: 6.4.1 Student Representative Council; 6.4.2 UCT Employees’ Union; 6.4.3 Academics’ Association; and 6.4.4 National Education, Health and Allied Workers’ Union.

6.5 The RELEVANT OFFICE shall repeat the workshop referred to in 5.3 at least once a year after the initial workshop to enable employees newly appointed to the positions or departments listed in 5.3, and those who could not attend the initial workshop, to attend.

E. ANTI-DISCRIMINATION ADVISORS 7 The Relevant Office will appoint and train Anti-Discrimination Advisors (ADAs), drawn from academic and administrative employees and will ensure that active, trained and committed ADAs are appointed and available at all times. 7.1 The general task of the ADA is to provide support and advice for the victim. The ADA is not tasked with psychological counselling but may inform the victim about the availability of such services. An ADA will have the following responsibilities: 7.7.1 Receive complaints of racial harassment and/or discrimination assigned from the relevant office; 7.7.2 Assist, support, consult and liaise with victims, respondents, alleged perpetrators and/or those initiating complaints into racial harassment throughout the process, in consultation with the Director or designated officer of the relevant office; 7.7.3 Provide reports and records to the relevant office on all referred cases; 7.7.4 Provide relevant information and represent the best interests and wishes of the complainant at the Advisory Panel. (A different ADA will represent the alleged perpetrator, if so requested); 7.7.5 In the event of the matter having been referred to the Advisory Panel by the Director, the ADA will provide feedback and advice from the Advisory Panel to the victim within 10

9 working days of the complaint having been lodged with the RO; 7.7.6 In the event of the matter not having been referred by the Director to the Advisory Panel, the ADA will provide the victim with advice with respect to his/her options, including the pursuit of either the formal or informal route. This should be done within five (5) working days of the complaint having been lodged with the RO; 7.7.7 Provide all relevant parties with detailed information on the procedures and options available; 7.7.8 Advise, support and accompany the complainant both in/outside disciplinary hearings, and only avail her/himself to give evidence in such hearings in extraordinary circumstances; 7.7.9 In consultation with the RO, liaise with the relevant stake holders in relation to the on-going implications and responsibilities arising from disciplinary hearings or the informal procedure, where necessary; 7.7.10 To support the educational work of the RO where practical and reasonable.

General

7.8 ADAs will be formally contracted by the RO, and must reflect the University’s diversity. An annual honorarium will be paid to all ADAs.

7.9 While the victim will always be entitled to ask that another ADA be assigned to the matter, every effort should be made to ensure that the same ADA deals with the matter throughout.

7.10 The Director of the Relevant Office, or a person delegated by the Director, will: 7.10.1 provide general support and guidance to the ADAs; 7.10.2 monitor cases; 7.10.3 ensure that the ADAs are appropriately and continuously trained;

F. PROCEDURES

8. Complaints of racial harassment and/or discrimination must immediately be brought to the attention of the Relevant Office. 8.1 “Immediately” shall mean as soon as is reasonably possible in the circumstances. Late reporting on the part of the victim will not necessarily have negative consequences for the process of decision- making relating to the merits of the case.

8.2 Racial harassment may be brought to the attention of the Relevant Office by the victim or any other person aware of such harassment, for example, a friend, colleague, Human Resources official or student representative acting on the request of the victim. If the racial

10 harassment is of a particularly serious nature, the victim should be encouraged to inform the Relevant Office in person.

8.3 Any complaint of racial harassment will be recorded in writing by the Relevant Office, and as soon as is possible assigned to an appropriate and available ADA. In instances where the racial harassment is brought to the attention of a supervisor or manager, that person is required to refer the complaint to the Relevant Office immediately.

8.4 When a complaint of racial harassment has been brought to the attention of the Relevant Office, the Director will take all reasonable steps to ensure that such a complaint is dealt with expeditiously and appropriately.

8.5 The Director may be assisted in this process by an Advisory Panel, where the function and main purpose of this Panel will be to:

8.5.1 consider information and expert advice to enable the victim to make an informed decision; 8.5.2 provide information and support for a complainant who is not him- or herself a victim; 8.5.3 participate in a process that is enabling, supportive and educational for the staff and structure of the RO; 8.5.4 assist in the formulation of a memorandum of complaint based on the written statement of the victim); 8.5.5 advise and assist, in general, the RO in taking the necessary steps to eliminate racial harassment.

8.6 The Advisory Panel will consist of the following persons:

8.6.1 the ADA representing the victim; 8.6.2 an ADA, if so requested, to represent the respondent; 8.6.3 a person (who could be a staff member or student, depending on the choice of the complainant) representing DSA, if the complainant or respondent is a student; 8.6.4 any other person chosen by the complainant, other than his or her legal representative; 8.6.5 an appropriately trained person representing The Human Resources Department, if the complainant or respondent is a staff member; 8.6.6 a person (not necessarily a staff member of the University) with expert knowledge in the field, as deemed necessary by the Director.

8.7 The purpose of the Advisory Panel will NOT be to make decisions on behalf of the victim, or to give advice in a manner that may be construed as being prescriptive to, binding on, or unduly influencing the complainant. The choice to proceed with a complaint in either the

11 formal or informal route remains the prerogative and choice of the victim.

8.8 The Advisory Panel will meet on request of the Director, and as regularly as s/he deems necessary.

Advice and assistance to complainant

8.9 The steps to be taken by the Relevant Office on receipt of a complaint should include, but are not limited to, the following:

The Relevant Office (and/or ADA assigned to assist) shall advise the victim: 1.0.1 of the formal and informal procedures, and that he/she can choose either; 1.0.2 that the University may, in certain circumstances, be obliged to follow the formal procedure, even if the victim does not wish to pursue this route (see 8.5.10 and 10.2); 1.0.3 that the ADA assisting him/her may not be called as a witness during any formal procedure; 8.9.1 that she/he retains the right to withdraw from any stage of the process; 1.0.4 that she/he is not bound by the outcome/recommendation of the informal procedure, and retains the right to make an appeal directly to the VC, within 14 days after the conclusion of that process; 1.0.5 that the matter will be dealt with confidentially, particularly during the advisory phase; 1.0.6 that late reporting will not necessarily have negative consequences for the process of decision-making relating to the merits of the complaint; 8.9.2 of the availability of psychological, medical, legal or trauma counselling (including during any disciplinary enquiry that may be instituted) as well as how to access independent counselling services and 8.9.3 of her/his right to obtain further legal advice (outside of the University), if necessary.

1.1 The Relevant Office shall follow the procedures suggested by this policy, in a manner that is procedurally and substantively fair.

8.10 If a victim, after consultation with the ADA, does not wish to pursue the matter at all, and the complaint appears to be of a serious nature, the Director must refer the matter to the Advisory Panel.

8.11 The Director, in consultation with the Advisory Panel, shall consider all relevant information, including but not limited to the following: 8.11.1 the risk to other persons in the University;

12 8.11.2 the severity of the case; 8.11.3 the history of the respondent with regard to previous cases/complaints of racial discrimination and harassment.

8.12 If it appears that there is a significant risk of harm to other persons, the Advisory Panel may advise the University to follow a formal procedure, irrespective of the wishes of the victim, who must then be advised accordingly.

8.13 In such an event the RO, assisted by the Advisory Panel, shall prepare a written report and recommendation to the Vice-Chancellor. The statement shall include (but not be limited to ) the following: 8.13.1 The victim’s reasons for choosing not to pursue the matter, and not to be called as a witness in the matter; 8.13.2 Compelling reasons in support of the pursuit of a formal procedure.

8.14 This report and recommendation shall be forwarded to the Vice- Chancellor as soon as is possible. A copy of the statement shall also be given to the victim. The matter shall thereafter proceed in terms of 10.4 of this policy.

Advice and assistance to the respondent

8.16. While the aim of this policy is to assist a victim, a respondent may at any stage approach a ADA for advice. If the ADA is the same person assigned to the victim, the respondent shall be referred to an ADA, other than the one assisting the victim.

This ADA shall advise the respondent that:

8.16.1 the matter will be dealt with confidentially 8.16.2 there are formal and informal procedures which could be followed; 8.16.3 the victim may choose the procedure to be followed, except in certain limited circumstances, (see 8.5.10 and 10.2), where the University may choose to follow a formal procedure even if the victim does not wish to do so; 8.16.4 the ADA assisting him/her and that of the victim may not be called as witnesses during any formal procedure; 8.16.5 the procedures suggested by this policy will be followed in a procedurally and substantively fair manner; and 8.16.6 irrespective of the wishes of the victim, formal procedures may nonetheless be followed if it appears that there is a significant risk of harm to other persons in the University.

INFORMAL PROCEDURES

9. The main objectives of the informal procedures are to provide the following:

13  A supportive and compassionate process that aims to restore damaged work and social relationships;  An environment that recognises and supports the experiences and personal circumstances of the victim;  A procedure that focuses on a mutually acceptable resolution of the complaint, rather than fact-finding and apportionment of guilt;  A style and manner of facilitation that encourages and supports respect for the apologies and acknowledgements offered in this process,  Facilitators and or panellists that are trained to be sensitive and to uphold the dignity of the victim, as well as respectful of the intentions and circumstances of all parties involved in this process.

1.2 A victim may wish to pursue the informal process as the preferred intervention to resolve a complaint, provided that all parties have expressed consent.

1.3 The availability and appropriateness of the informal process shall be clearly and comprehensively explained to the victim by the appointed ADA before proceeding with this process.

1.4 Preparatory interviews may be held with the respondent and with any other person or persons that may provide information to assist the facilitator with the informal process. These interviews may be conducted in the absence of the victim, but require his/her consent.

1.5 The structure, procedure and facilitation of any informal procedure will be agreed upon beforehand by the victim, respondent, ADA and the Director or his/her nominee.

1.6 Informal interventions may include one or more of the following three routes: 9.5.1 With the consent of the victim, an appropriate person assigned by the RO, approaches the respondent/s to explain the context and nature of the complaint with a view to obtaining an amicable resolution. The identity of the victim may or may not be disclosed to the respondent, depending on the wishes of the victim. 9.5.2 Where the respondent acknowledges responsibility for his/her conduct, a process will be facilitated to allow an opportunity for him/her to offer an apology. The terms, conditions and acceptance of such an apology will be facilitated, determined and agreed upon in a manner that is appropriate to the circumstances. 9.5.3 Where the terms, conditions and acceptance of such an apology are of a more complex nature, a discussion may be facilitated by the RO, as in 9.5.2. In this instance, the matter will be presented to a panel of not more than three persons to consider suggestions and discussions, and to make a recommendation(s). This panel will not in any way be construed as a disciplinary hearing, nor will its recommendations be binding. The aim of this process is to achieve a resolution based on agreement. The choice of panelists will be at the discretion of the Director or his/her delegate. 9.5.4 The victim will retain her/his right to pursue the formal route. This right will remain intact and available throughout the informal

14 procedure. The victim’s choice to pursue the informal route shall not in any way diminish her/his original complaint.

9.1 The respondent will have the right to refuse participation in the informal route, and no negative inference shall be drawn from such refusal in any subsequent procedures.

9.2 A written report containing a brief summary and outcome of the informal procedure will be kept by the RO, and will not be made available outside this office except to the VC upon his/her request, should this become necessary in his/her consideration of the need for further action.

9.8 Every endeavour must be made to conduct the informal procedure within 14 days of the complaint being referred to the ADA.

9.9 Confidentiality regarding the process, participants and report will be maintained throughout this process, or any other process that may have ensued as a result of the informal process.

9.10 No part of the informal procedure referred to in sub-paragraph 9.5, whether verbal or written, may be adduced as evidence in a subsequent hearing following the outcome of this process.

9.11 At the end of the informal process, the RO should ascertain whether the victim requires any further advice, counselling or support.

FORMAL PROCEDURES

10. A victim may choose to initiate formal proceedings with or without first following an informal procedure. The purpose of formal proceedings is to ensure that appropriate disciplinary action is taken against any violation of this policy.

The formal procedures to be used for managing a complaint of discrimination and racial harassment at the University are to be understood as part of the Disciplinary Codes and Procedures for Staff Pay-classes 1 -12, and for Pay-classes 13-15, the Rules on Student Conduct, and the Disciplinary Procedures for Academic Staff.

Where any incongruence exists between the provisions of this policy and those of any other University disciplinary codes or procedures, the provisions of this policy must be applied.

10.1 If a victim does not wish to follow a formal procedure, and where the director of the RO has established a likelihood of risk to the victim, other members of the University community and to the reputation of the University, an Advisory Panel will be convened. The Panel will assess all relevant factors, including the severity of the complaint and whether there have been previous complaints against the respondent.

15 If it appears that there is a significant risk of harm to other persons, an Advisory Panel may recommend to the V-C that the University initiate formal procedure, irrespective of the wishes of the victim. If this happens, the victim must be advised accordingly.

In such an event, the RO director, assisted by the ADA, shall prepare a written statement containing the information on the alleged racial harassment available to them. The statement shall state whether or not an informal procedure has been followed, that the victim has declined to follow a formal procedure and shall state the reason why the Advisory Panel for the case believes a formal procedure should be followed. This statement shall be forwarded to the Vice-Chancellor. A copy of the statement shall also be given to the victim.

Process of initiating a formal procedure, through the RO

10.2 If the victim wishes to proceed with a formal procedure, he or she should clearly advise the ADA of this, and prepare and sign a written statement providing full particulars of the alleged racial harassment.

10.2.1 An Advisory panel will be convened by the RO to discuss all relevant information. This advisory panel will provide advice and support for the victim, and assist in the formulation of a memorandum of complaint based on the written statement of the victim. The memorandum of complaint shall be forwarded to the VC, for information, and to the RO Director.

10.3 The formal processes for investigation, for the presentation of the victim’s case within University Disciplinary Processes for staff and for students, will be initiated through the RO, and with all appropriate consultation.

10.4 Every endeavour must be made to ensure that the disciplinary procedures commence and are concluded as a matter of urgency.

10.5 The Presiding Officer for the disciplinary hearing shall be appointed by the Vice-Chancellor. 10.5.1 The Presiding Officer may be a staff member of the University. 10.5.2 The appointment must be handled in liaison with the RO, and any fees associated with such appointment are to be drawn from budget directly linked to the V-C’s Office. 10.5.3 Appointment of Presiding Officers must take into account the following: 10.5.3.1 the need for experience in the management of disciplinary processes, experience in the area of anti discrimination,, 10.5.3.1 experience in the processes required to protect the victim, respondent, and all possible witnesses for during the disciplinary proceedings, and 10.5.3.2 reasonable knowledge of the nature and implications of racial harassment or discrimination.

16 10.5.3.3 The list of potential Presiding Officers available for a three-year cycle shall be drawn up by the Director of the RO, in consultation with appropriate colleagues both on and off the University Campus, for submission to the V- C, and for formal approval by Council.

10.6 ADAs may not be called as a witness during the formal proceedings.

10.7 During the formal proceedings, the case will be presented by an expert appointed by the RO, who may or may not be a member of the University community. This person shall hereafter be referred to as the Hearing Officer. Appointment of the Hearing Officer must take into account the following:

10.7.1 their experience in the presentation of complaints of racial harassment or discrimination; 10.7.2 qualifications and experience in legal and disciplinary processes; 10.7.3 experience in the management of evidence and cross- examination

10.8 The respondent and the victim must be given reasonable time, but at least seven (7) working days’ written notice of the disciplinary hearing.

10.8.1 The notice period can be waived upon mutual agreement between the respondent and the Hearing Officer and the victim must be informed accordingly; 10.8.2 The notice must be in writing and provide reasonable and sufficient information with regard to the following: 1. The complaint (A memorandum of complaint) to enable the respondent and the victim to prepare for the hearing, as well as the date, time, and venue of the hearing; 2. The right to be assisted or represented at the inquiry. (Any form of representation is permitted at the formal procedure, at the respondent’s own expense.) 3. The right to the services of an interpreter, if required (to be provided and paid for by a budget directly linked to the OVC).

10.9 The formal disciplinary hearing should be finalised within a period of 30 working days from the date of commencement of proceedings. 10.10 The RO will be responsible for: 1. Arranging a venue, date and time for a disciplinary hearing or appeal proceedings;

17 2. Notifications, up-dates and report-back correspondence to relevant parties, or relevant departments, faculties and/or units; 3. Making available a Recording Officer, as well as arranging for the safe- keeping of the record. Transcripts of the record will be made available on request only, and at the discretion of the Director of the RO. The Recording Officer will be appointed and remunerated on an ad hoc basis, from the budget of the V-C’s Office; 4. Making available an interpreter, if requested by a party to the proceedings. The interpreter will be appointed and remunerated on an ad hoc basis, from the budget of the V-C’s Office.

Representation

10.11 Both the victim and the respondent have the right to be represented during the disciplinary proceedings

10.11.1 The respondent may appoint any one to represent him/her at the Disciplinary or subsequent appeal hearing, including but not limited to: a union official; a fellow employee; a legal representative (a person admitted to practice as an advocate or lawyer in South Africa).

10.11.2 The victim may appoint any one to represent him/her at the Disciplinary or subsequent appeal hearing, including but not limited to: a legal representative a paralegal or other person with experience in legal or disciplinary proceedings an individual identified by the Relevant Office

Persons present at the disciplinary hearing:

10.12 Disciplinary hearings and subsequent appeal hearings are confidential and shall be held in camera. The persons mentioned hereafter should be present in Disciplinary Hearings: 10.12.1 Presiding Officer the person appointed in accordance with section 10.5 10.12.2 Victim’s Representative the person appointed in terms of section 10.11.2. 10.12.3 Hearing Officer- the person appointed in terms of section 10.7 10.12.4 Victim- where the victim wishes to be present he/she must be called as the first witness and needs to be advised accordingly. 10.12.5 Respondent- the failure of the respondent to be present at this hearing and/or the appeal proceedings, either personally or through a representative, without valid and sufficient

18 reason shall not invalidate the proceedings. The hearing may then take place in the absence of the respondent and the record will reflect this. 10.12.6 Respondent’s Representative- the person appointed in section 10.11.1 10.12.7 Interpreter- By the commencement of hearing the Presiding Officer shall establish the necessity of an interpreter. The interpreter will be acceptable and available to all parties at the disciplinary hearing. 10.12.8 Recording Officer- A competent person to record the proceedings in audio- electronic format, as well as keeping written minutes to accurately reflect appearances, sequence of proceedings and arrangements particular to the hearing. 10.12.9 Witnesses – who may only be present when testifying,

Recusal of the Presiding Officer: 10.13 The Presiding Officer may be requested by the respondent or the victim (or their representatives) to recuse him/her from presiding in a disciplinary or appeal hearing. Good cause must be shown by the applicant why perceptions of impartiality will be materially influenced under the circumstances. In the event of the Presiding Officer having recused him/herself, the VC shall appoint an appropriate replacement as soon as reasonably possible.

The pre-hearing meeting: 10.14 A pre-hearing meeting may take place between the Hearing Officer and the respondent (or his/her representative) in an attempt to exchange information, clarify charges and any matter relevant to the disciplinary hearing, and to eliminate aspects that may obstruct the flow of the hearing. The content of these preliminary discussions is without prejudice, and may not be adduced as evidence during the hearing, unless consented to by the relevant parties.

The Disciplinary Hearing:

10.15 The Presiding Officer shall conduct the hearing in a manner that is procedurally and substantively fair, and in accordance with the principles of natural justice. The Presiding Officer shall be obliged to consider relevant legal precedent or expert evidence if necessary and appropriate under the circumstances. 1. Before the commencement of the hearing the Presiding Officer shall first consider pre-hearing matters such as legal or other representation, whether an interpreter is required, and availability of witnesses. Applications for postponements will be considered on merit, and only allowed if failure to allow will result in substantial disadvantage to the applicant.

2. At the commencement of the hearing the Presiding Officer shall read the memorandum of complaint and request the respondent to answer to

19 the allegations. The response shall be entered into the record of the proceedings.

3. The Presiding Officer may ask clarifying questions to the Hearing Officer, the respondent (or his/her representative) or any witness, at any stage of the proceedings.

4. The Presiding Officer may re-call any witness that has given evidence, or request the presence of any witness, or expert witness that has not been called by the Hearing Officer or respondent (or his/her representative), if such evidence is deemed necessary by the Presiding Officer.

5. After the Hearing Officer and the respondent have concluded the presentation of evidence and final arguments, the Presiding Officer must come to a finding on the balance of probabilities and give reasons, within a reasonable time.

The judgment and reasons must be in writing and available to the Hearing Officer as well as the respondent as soon as possible after the hearing.

6. The Presiding Officer may postpone the case to consider the evidence before giving a finding and reasons for the finding.

The Hearing Officer shall lead evidence and present the case against the respondent.

The Hearing Officer has the right to: 1. Make an opening statement to outline or clarify the case against the respondent; 2. Call witnesses and introduce admissible evidence; 3. To raise and respond to objections; 4. Re-examine witnesses after cross-examination by the respondent or representative; 5. Cross-examine witnesses called by the respondent or representative; 6. Make a closing statement before a finding is made; 7. Call witnesses and introduce admissible evidence after a finding in violation of this policy to assist the Presiding Officer to consider the most appropriate sanctions; 8. Appeal against the finding where good cause can be shown that aspects of the procedure, finding and or sanction were unfair. The respondent (or his/her representative, on his/her behalf) has the right to:

1. Make a statement to respond to the opening statement of the hearing officer, or clarify the case against him/her; 2. Give evidence him/herself, and call witnesses in support of his/her defence, as well as introduce other forms of admissible evidence;

20 3. Re-examine witnesses after cross-examination by the hearing officer; 4. Cross-examine witnesses called by the hearing officer. Where the respondent is not represented, questions to the victim can only be directed through the presiding officer; 5. Make a closing statement before a finding is made; 6. Call witness (es) and introduce admissible evidence after a finding of guilty, in mitigation of sentence; 7. Appeal against the finding where good cause can be shown that aspects of the procedure, finding and or sanction were unfair.

The Victim’s Representative has the right to:

1. Be present throughout the disciplinary proceedings; 2. Advise and assist the Hearing Officer, or when necessary, address the Presiding Officer directly; 3. Provide the victim with legal advice, when appropriate, throughout the course of the disciplinary proceedings.

The Victim has the right to:

1. Present evidence without undue interruption; 2. Avoid face to face interaction with the respondent. The presiding officer shall ensure that the victim is shielded or otherwise protected from facing the respondent.

APPEALS

10.17.1 The grounds for appeal against the findings of University disciplinary procedures are stated with the Disciplinary Codes and Procedures for Staff Pay-classes 1 -12, and for Payclasses 13-15, the Rules on Student Conduct, and the Disciplinary Procedures for Academic Staff . According to these policies, an appeal is processed through one or two routes, following the procedures of the University Tribunal of Appeal (UTA) or those of the Council’s Standing Tribunal (CST). The identity of the appellant as staff member, third party, or student will determine the most appropriate tribunal body for the hearing of the appeal. This determination will be made by the V-C’s Office, in consultation with the RO and other relevant parties. 10.17.2 A party found in contravention of this policy, or the victim or the University has the right to appeal against the finding and sanction imposed in a disciplinary hearing. The bases for appealing against the finding and/or sanction must be stated in the notice of appeal. 10.17.3 The appeal process will be determined by the current procedures governing the UTA or the CST. Each tribunal has the right to appoint its members, according to its current rules concerning membership and quorum.

21 10.17.4 In the case of hearing appeals from cases on racial harassment or discrimination, such appointees shall have experience in the area of anti-discrimination litigation and reasonable knowledge of the nature and implications of racial harassment or discrimination.

10.17.5 An appeal shall usually be lodged in writing within 14 days of the disciplinary finding and sanction being notified to the staff member in writing. Condonation of late notice of appeal will only be granted on good cause shown.

10.17.6 No person involved in the original inquiry or investigation shall be a member of any committee hearing the appeal.

10.17.7 Unless substantial injustice would otherwise result, an appeal shall be heard on the basis of the record, and any additional argument developed in relation to Tribunal members’ request for additional information from relevant parties.

10.17.8 The UTA or the CST shall consider both procedural and substantive questions, and make a finding on the finding and the sanction, where the appeal is against both, or sanction, where the appeal is against sanction only.

COUNCIL'S POWERS OF REVIEW

Notwithstanding anything contained in these rules, Council retains the power to review all cases in which a staff member or student is disciplined in terms of these procedures. The existing rules of the University with regard to appeal and review will be applicable unless otherwise stated by this policy.

Measures to be applied where a respondent is found to have contravened this policy

10.18 In the event of the respondent being found in contravention of this policy, the University shall consider the means to: 10.18.1 restore any inequities to the victim that resulted from the racial harassment or discrimination 10.18.2 make good any loss or damage suffered by the victim as a consequence of the racial harassment or as a consequence of making the complaint about racial harassment or discrimination 10.18.3 ensure that the victim is not disadvantaged or subjected to reprisals of any kind by any person because of having made the complaint or because the respondent has been found to be in contravention of this policy

10.19 The disciplinary body must consider sanctions that are proportionate to the seriousness of the racial harassment or discrimination in question. Sanctions may include 10.19.1 warnings

22 10.19.2 implementation of protection orders, which impose conditions on movement, behaviour, communication, occupation of particular spaces, and/or participation in particular activities or organizations. 10.19.3 dismissal (of employees), termination of contract or partnership (for third parties), exclusion (for students) 10.19.4 suspension of tenure of a position (for employees) a contract or partnership (for third parties), of registration (for students), for membership of a university organization, for residential or occupational status in a university building. Such suspensions may carry other penalties (such as loss of income, access to opportunities, access to resources). 10.19.5. transfer (of employees) to another position in the University in appropriate circumstances

10. 20 The disciplinary body may recommend that the person found to be in contravention of this policy be encouraged to participate in programmes designed to educate and assist him or her in learning different ways of engaging with issues of diversity.

10.21 Nothing in this policy prevents either the victim or the perpetrator from taking civil action as a result of the alleged racial harassment in terms of the common law or equality legislation or from referring the matter to any State Institution supporting constitutional democracy. Furthermore, should the matter not be satisfactorily resolved by the internal procedures outlined under F, the victim (if an employee) may refer the dispute to the CCMA. Similarly a respondent (if an employee) may refer a dispute arising from disciplinary action taken by the University to the CCMA.