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Dean of the Law Faculty of the University …

Dean of the Law Faculty of the University of North West and Others v Masisi (297/2013) [2014] ZASCA 2; 2014 (6) SA 61 (SCA) (20 February 2014)

80 Reportability

Constitutional Law

Brief Summary

Equality Law — Discrimination in Higher Education — Appeal against Equality Court ruling regarding university's refusal to grant credit for courses completed at another institution — Respondent claimed discrimination based on unequal treatment compared to students from the same university — Equality Court struck down university rules and statutory provisions without affording relevant parties, including the Minister of Education and other universities, an opportunity to participate — Appeal upheld; orders set aside and matter remitted to Equality Court for reconsideration with all interested parties included.

Full Judgment Text (Click to expand)

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[2014] ZASCA 2
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Dean of the Law Faculty of the University of North West and Others v Masisi (297/2013) [2014] ZASCA 2; 2014 (6) SA 61 (SCA) (20 February 2014)

IN
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
CASE
NO: 297/2013
Reportable
In
the matter between:
DEAN
OF THE LAW FACULTY OF THE
UNIVERSITY
OF NORTH WEST
….............................................................
First
Appellant
VICE
CHANCELLOR OF THE UNIVERSITY
OF
NORTH
WEST
...................................................................................
Second
Appellant
NORTH
WEST UNIVERSITY STATUTORY
BODY
REPRESENTED BY THE RECTOR OF THE
MAHIKENG
CAMPUS
..............................................................................
Third
Appellant
and
MORAMANG
SIMON
MASISI
........................................................................
Respondent
and
HIGHER
EDUCATION SOUTH AFRICA
NPC
........................................
Amicus
Curiae
Neutral
Citation:
Dean of the Law Faculty of
the University of North West & others v Masisi
(297/2013)
[2014] ZASCA 2
(20 February 2014).
Coram:
NAVSA, MHLANTLA and PETSE JJA, VAN ZYL
and SWAIN AJJA
Heard:
20 February 2014
Delivered:
20 February 2014
Summary: Appeal
from Equality Court – complaint in Equality Court concerning
university’s refusal to give credit for
more than 50 per cent
of courses completed at another university – university rules
and policy with statutory underpinning
set aside by Equality Court –
failure to provide Minister of Education and other universities or
their collective voice with
opportunity to participate in proceedings
– orders set aside and matter remitted.
ORDER
On
appeal from
: The Equality Court of
South Africa (North West High Court, Mahikeng) (Lacock J sitting as
court of first instance).
The
following order is made:
1.
The appeal is upheld to the extent reflected in the paragraphs that
follow.
2.
The order of the Equality Court, North West High Court is set aside;
3.
The dispute is referred back to the Equality Court, North West High
Court to be dealt with
de novo
;
4.
The respondent shall ensure that he will serve a copy of this order
and founding papers stating the relief he seeks on all interested

parties including (but not limited to) the Minister of Education, The
Council on Higher Education, Higher Education South Africa
(HESA) and
affording them an opportunity to join the dispute and make
representations thereon;
5.
Any party so identified must respond within the time periods provided
in Rule 6 of the Uniform Rules;
6.
The Equality Court, North West High Court shall take steps to ensure
that the dispute is determined as expeditiously as possible,
and may
issue directions for the conduct of the proceedings;
7.
The costs of the proceedings in the Equality Court and in this Court
shall be costs in the cause.
JUDGMENT
The
Court:
[1]
This is an appeal against a judgment of the Equality Court, Mahikeng
(Lacock J). Simply put, the litigation leading up to the
present
appeal arose because the respondent, Mr Moramang Simon Masisi, was
aggrieved that the three appellants, the Dean of the
Law Faculty of
the University of North West, the Vice Chancellor of the University
of North West and the North West University
Statutory Body
represented by the Rector of the Mahikeng Campus, refused to give him
academic credit for all the courses he had
completed in obtaining his
B.Proc degree from the University of the North in pursuance of his
LLB degree for which he had latterly
registered at the University of
North West (UNW). Essentially, the respondent complained that he was
being discriminated against
and that his constitutional right to
equal treatment had been violated. The reasoning on which this was
based appears to be as
follows: students who began and completed
their B.Proc degrees at the UNW were given credit for all their
courses or modules completed
in attaining the degree, whilst those
who obtained their B.Proc degrees from other universities were
treated differently and only
obtained credit for 50 per cent of the
courses completed in obtaining their B.Proc degrees. This
discriminatory treatment, so it
was alleged, was contrary to the
provisions of the Promotion of the Equality and Prevention of Unfair
Discrimination Act 4 of 2000
(the Equality Act).
[2]
In refusing to recognise more than 50 per cent of the courses or
modules completed by the respondent at the University of the
North.
the University of the North West considered itself bound by its own
General Academic Rules to that effect. Furthermore,
the University of
the North West considered itself bound by s 18(2) of the Joint
Statute of the Universities in the Republic of
South Africa approved
by the Minister of Education, Arts and Science under the Universities
Act 61 of 1955, the relevant provisions
of which require a minimum
period of attendance at the university to which he has applied for
exemption and which in addition stipulates
that a student has to
complete at least half of the courses prescribed for the degree at
such university.
[3]
The respondent took his complaint to the Equality Court, established
in terms of s 16 of the Equality Act, which made the following
order:
‘
1.
The provisions contained in the paragraphs 15.1.1, 15.1.3, 15.2.1 and
15.2.3 of Rule G15 of the General Academic Rules of the
North West
University are hereby struck down and declared null and void.
2. The proviso to
Rule A5.7.1 of the General Academic Rules of the North West
University reading,, “provided that exemption
shall not be
granted for more than half of the number of modules required for the
curriculum” is hereby struck down and declared
null and void.
3. Section
18(2)(b)(i) and (ii) of the Joint Statute of the Universities in the
RSA approved by the Minister of Education, Arts
& Science under
the Universities Act no 61 of 1955 (the Joint Statute), is hereby
struck down and declared null and void, except
to the extent that
section 8(2)(b)(ii) apply to candidates writing the degree of
Bachelor of Education (B.Ed) or Bachelor of Physical
Educaiton
(B.Ed.Ph.) a Bachelor of Philosophy (B.Phil.).
4. The first to
third respondents are directed to grant exemption to the applicant
for purposes of writing the LLB degree of all
those applicable
courses and/or modules successfully completed by the applicant at the
University of the North (presently the University
of Limpopo) for his
B.Proc degree.
5. The first to
third respondents are directed to jointly and severally pay the
applicant’s costs of the application.’
[4]
The breadth of the order referred to above is such that the Joint
Statute of the Universities in South Africa, which has statutory

underpinning and is consonant with The Higher Education
Qualifications Framework, published by the Minister of Education
acting
within her statutory powers has been set aside. The order
clearly affects all universities in South Africa and impacts on
government
policy. It is necessary to point out that, although the
Minister of Education was cited as a party to the litigation in the
Equality
Court, the respondent ultimately indicated that no relief
would be sought against the minister. As a consequence the minister
did
not participate in the preceedings in the Equality Court. None of
the other universities was cited as a party.
[5]
Before us the Higher Education South Africa NPC (HESA), a non-profit
company registered in terms of the Companies Act, appeared
as amicus
curiae. HESA represents 23 South African universities and asserts
that it is the voice of South Africa’s university
leadership.
HESA referred to the joint statute referred to earlier in this
judgment, which is delegated legislation and remains
in force in
terms of
s 74(6)
of the
Higher Education Act 101 of 1997
and
contended that all universities in South Africa are required to
comply therewith and that the policy underlying the joint statute
is
supported by it. The Higher Education Qualifications Framework
published in October 2007 by the Ministry of Education has the
same
underlying policy.
[6]
In its application to be admitted as amicus curiae in this court,
HESA provided the following justification for the policy referred
to
in the preceding paragraph:
‘
By
conferring a degree, a university represents to the public that the
graduate concerned received the training offered by that
university
and met its applicable requirements.
Section 18(2)(b)
of the Joint
Statute has the effect that a student must complete at least half of
his or her university courses at the university
conferring the
degree. This enables the university conferring the degree to have
confidence that the student does indeed meet the
standards which it
proclaims and on which its reputation rests. . . .in passing that in
certain prestigious foreign universities,
no recognition whatsoever
is given to courses passed at other universities, no doubt for much
the same reason.’
[7]
HESA was not a party to proceedings in the Equality Court. Its
contentions are not evidence and evidence in this regard was
not
presented in the Equality Court nor were any representations made in
that regard. It is necessary to point out that the University
of
North West was very brief in its opposition to the relief sought by
the respondent and did not make submissions or present evidence
on
the issues raised by HESA.
[8]
In the Equality Court a directions hearing in terms of
s 10(5)
of the
rules of the Equality Court, resulted in the issues to be tried
dubiously being narrowed as follows:
‘
4.1
Whether the First Applicant has a justifiable cause of action against
the Respondents, and whether any of the Respondents are
liable for
payment of damages to the First Applicant.
4.2
Whether any claim for the payment of damages – if any –
had become prescribed.’
[9]
The order set out above in para 3 went well beyond what was
contemplated in the preceding paragraph. This was probably due to
a
lack of proper thought being given to whether those issues could
viably be delinked from the statutory underpinning for university

policy. Before us questions were raised about the power of the
Equality Court to issue the order referred to above. The appellants

also contended that it was not competent for the Equality Court to
decide issues beyond those identified at the directions hearing.
[10]
It is undesirable and inappropriate for courts to make orders
declaring statutory provisions and policy directives thereunder

invalid without providing relevant organs of state an opportunity to
intervene. Indeed, it is undesirable for courts to make orders

affecting any party without affording such party an opportunity to
oppose the relief being sought. In the present case, the Minister
of
Education has a direct abiding and crucial interest in the issues
that arise from the respondent’s complaint and which
are
affected by the order referred to above.
[1]
In similar vein
Rule 10A
of the Uniform rules of Court provides:
‘
10A.
If any proceedings before the court, the validity of a law is
challenged, whether in whole or in part and whether on constitutional

grounds or otherwise, the party challenging the validity of the law
shall join the provincial or national executive authorities

responsible for the administration of the law in the proceedings and
shall in the case of a challenge to a rule made in terms of
the Rules
Board for Courts of Law Act, 1985 (Act. No. 107 of 1985), cause a
notice to be served on the Rules Board for Courts of
Law, informing
the Rules Board for Courts of Law thereof.’
[11]
Other universities or its collective voice, HESA, have a vital
interest in the litigation and a possible result. They too were
not
cited nor involved in the litigation in the Equality Court. The
Minister and HESA were both interested parties and ought, at
the very
least, to have been afforded an opportunity to deal with all the
issues raised by the respondent’s complaint, including
the
question of the competence of the Equality Court to make an order
setting aside legislation. The parties might be well-advised
to
consider whether it is not in everyone’s interest that the
litigation be shifted to the high court to obviate any further

uncertainty. In this regard the provisions of s 20(3)
(a)
of the Equality Act are relevant. It should be borne in mind that
this case is of vital importance to tertiary education in South

Africa.
[12]
Having regard to what is set out above, the parties were agreed and
we are inclined to make the order that follows:
1.
The appeal is upheld to the extent reflected in the paragraphs that
follow.
2.
The order of the Equality Court, North West High Court is set aside;
3.
The dispute is referred back to the Equality Court, North West High
Court to be dealt with
de novo
;
4.
The respondent shall ensure that he will serve a copy of this order
and founding papers stating the relief he seeks on all interested

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