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[2019] ZAECPEHC 19
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Yame v Nelson Mandela University and Others (3489/2018) [2019] ZAECPEHC 19 (2 April 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
Case
No.: 3489/2018
Date
Heard: 28/29 March 2019
Date
Delivered: 2 April 2019
NOT
REPORTABLE
In
the matter between:
YOSHIHITO
MAVUNGA YAME
Applicant
and
NELSON
MANDELA UNIVERSITY
First Respondent
ANDREW
PHIRI
Second Respondent
ROONEY
NCWADI
Third Respondent
CHANTAL
VAN HEERDEN
Fourth Respondent
NOLUTSHA
GAYIYA
Fifth Respondent
SHAMEIN
MADATT
Sixth Respondent
NOMATHAMSANQA
BULEMBU
Seventh Respondent
BUYISWA
YAYA
Eighth Respondent
NELSON
MANDELA UNIVERSITY TRUST
Ninth Respondent
NATIONAL
FINANCIAL AID SCHEME (NSFAS)
Tenth Respondent
LEGAL
AID SOUTH
AFRICA
Eleventh
Respondent
BANKSETA
Twelfth
Respondent
SERVICES
SETA
Thirteenth Respondent
DEPARTMENT
OF HIGHER EDUCATION (DHET)
Fourteenth
Respondent
DEPARTMENT
OF JUSTICE (DOJ)
Fifteenth
Respondent
JUDGMENT
BEYLEVELD
AJ
[1]
The applicant, a former student at the Nelson Mandela University (the
first respondent) fulfilled the requirements towards a degree of
Bachelor of Commerce: Economics and Statistics.
[2]
In a relatively prolix notice of motion he seeks a variety of
divergent
orders which are formulated in such a manner that it is
difficult to ascertain the essential import of the relief which is
sought
against the first respondent.
[3]
Various other respondents are cited including various employees of
the
first respondent university, the National Financial Aid Scheme
(NSFAS) and Bankseta.
[4]
The affidavit filed in support of the application suffers from a
similar
deficiency in that the factual basis substantiating the
applicant’s cause of action is set out in such a manner that it
is
difficult to establish the basis for his various claims.
[5]
The formulation in the notice of motion as well as the affidavit is
disjointed
and for the most, unintelligible.
[6]
This application is proceeded by a variety of prior applications
brought
by the applicant more particularly urgent applications
seeking similar relief against the first respondent. None of
such
applications were successful.
[7]
In
addition, the applicant instituted proceedings in the equality
court
[1]
seeking similar relief
as sought in these proceedings and making similar allegations as are
made in the founding affidavit.
[8]
Understandably,
the first respondent as a point
in
limine
raised the defence of
lis
alibi pendens
[2]
.
[9]
At the commencement of the hearing of this application, the
applicant,
on being confronted with the elements of
lis pendens
and the particular facts pertaining to this matter and the
equality court proceedings deliberately elected to abandon the
proceedings
in the equality court and elected to proceed with this
application only.
[10]
Accordingly the point
in limine
raised by the first respondent
relating to
lis pendens
fell away.
[11]
The first respondent raises two further points
in limine
namely:
(i)
That the notice of motion is fatally defective and non-compliant
with
the provisions of Rule 6(5)(a).
(ii)
That the affidavit fails to set out the necessary facts required
to
establish a sustainable cause of action
[12]
More particularly, inasmuch as [11](i) is concerned it is contended
that the applicant
was obliged to serve the application upon every
party to the proceedings and as the application was only served on
the first to
sixth respondents and not the remaining respondents the
application is defective.
[13]
It could also be said that service for instance on NSFAS and Bankseta
who have a material
interest in the outcome of these proceedings, is
essential and that by virtue of a lack of service, there is a
material non-joinder.
[14]
The first respondent further complains that the relief set out in the
notice of motion
is not formulated with sufficient clarity that one
is able to discern what order was prayed for an accordingly redounds
to the
prejudice of the respondents.
[15]
In respect
of [11](ii) above, it is contended that facts should be set out
simply, clearly and in chronological sequence without
argumentative
commentary and that the applicant is not entitled to “throw a
mass of material” at the other litigant
and expect such
litigant to discover for himself an obscure cause of action which may
be lurking somewhere
[3]
.
[16]
It is trite
law that in motion proceedings the affidavits serve not only to place
evidence before a court but also serves to define
the issues between
the parties
[4]
.
[17]
At the commencement of argument, I invited the applicant, who was
unrepresented and who
appeared himself, to articulate in layman’s
language the relief that he seeks as it was, as indicated, difficult
to discern
from his notice of motion exactly what relief was sought.
[18]
Following upon my invitation, the oral formulation of the relief
sought was the following:
(i)
The failure to confer the B.Com Degree Economics and Statistics on
the applicant
[5]
.
(ii)
The obligation of the first respondent University to reimburse him
with funds he
received from a Bankseta bursary.
(iii)
An obligation on the first respondent University to pay over to him
funds received from
NSFAS and not utilised.
(iv)
A reimbursement of the costs of a laptop that he pledged and which
was ultimately sold
so that he was able to pay the costs of a summer
school module.
(v)
Funding required by the applicant for further post-graduate studies.
(vi)
A further dissatisfaction with a mark in respect of one of the
modules in the degree that
was conferred upon him.
(vii)
Damages loosely formulated as contractual and delictual damages.
(viii)
An order that the first respondent University be compelled to offer
the applicant an apology for
the manner in which he had been treated.
[19]
Leaving
aside the difficulties I have alluded to above relating to a clear
and concise formulation of the facts relied upon and
the relief
sought, it is apparent from a cursory reading of the affidavits
[6]
that whatever relief is being sought, such relief cannot, if
sustainable in law, be adjudicated and decided upon by way of motion
proceedings.
[20]
Applying
the Plascon-Evans rule
[7]
I do
not believe that it is necessary for the purposes of this judgment to
set out the various disputes that exist on the papers.
An
illustration thereof is the contention by the applicant that in
respect of a loan funded by Bankseta, he is entitled to be reimbursed
for an amount of R14 305,74. Bankseta in terms of a
bursary agreement
[8]
undertook
to provide funds for the benefit of the applicant such funds relating
to the provision of food, text books and other
material and tuition
fees.
[21]
In this
regard, the first respondent produced the entire account which ends
at November 2018 with a nil balance indicating all the
debits and
credits on the account. Although the applicant disputes two of
the entries
[9]
, he contends not
only that he is entitled to a payment of the aforesaid amount which
he claims is a surplus of the funds provided
by Bankseta but also
lays claim to an amount of R6 951,78 which was a refund to NSFAS
in respect of funds provided by them
for the benefit of tuition and
other fees and disbursements relating to the applicant.
[22]
Besides the
fact that the bursary agreement relied upon by the applicant contains
a provision that a student will not be required
to pay back any
portion of the bursary allotted to them (and his misplaced
interpreation that this clause should be interpreted
to convey an
entitlement to be paid any portion of the bursary not utilised), the
factual dispute relating to the debits and credits
on the account are
such
[10]
that it is impossible
to reach any definitive finding on the affidavits.
[11]
[23]
At the
commencement of proceedings, and by virtue of the fact that the
applicant was unrepresented, I explained to him the difficulties
encountered where factual disputes appeared from the affidavits.
He was invited to direct a request, if he so chose, that
the issues
be referred to trial and that the application papers then stand as a
simple summons with pleadings to follow thereof
[12]
.
[24]
He deliberately elected not to seek such a directive and elected to
stand or fall on the
allegations as contained in the founding
affidavit.
[25]
Cumulatively, for the reasons set out above, which includes the
points
in limine
raised in respect of the notice of motion and
affidavits and the inability in any event to resolve any of the
issues in motion
proceedings, I have no other option but to dismiss
the application.
[26]
All that
remains is the question of costs. The applicant implored me not
to make an adverse costs order against him whilst
the first
respondent contended that it would be appropriate not only to make an
adverse costs order against the applicant but to
order that such
costs payable by the applicant be on the scale as between attorney
and own client. The first respondent contended
that the
application, together with the preceding applications, were
unsubstantiated and in fact vexatious. In this regard
it was
argued that even in the written heads of argument filed by the
applicant, it is self-evident that the proceedings are malicious
and
vexatious. In this regard I was referred to defamatory comments
in the heads which described the respondents
[13]
as delusional and persons who “will preserve their egos at the
expense of another, even the innocent and vulnerable”
and even
goes to the lengths of suggesting that I order as part of my judgment
that the respondents all be subjected to psychometric
testing.
[27]
One must, weigh up the deficiencies in the papers drafted by the
applicant against his
lack of knowledge and experience with regards
to litigation.
[28]
However, as
submitted by Ms
Desi
who appeared on behalf of the first and other respondents
[14]
such latitude cannot be limitless and unbridled.
[29]
Ms
Desi
in response to me pointing out that on the available
evidence, any prospect of recovering from the applicant is so remote
that
it would effectively mean that any cost awarded against him
would be meaningless argues that at the very least a cost award would
serve as a deterrent against the applicant to persuade him not to
embark on future proceedings relating to issues he has with first
respondent University.
[30]
Besides the fact that the applicant made a conscious decision not to
refer the matter to
trial and would, in all probability be hard
pressed if he subsequent to these proceedings attempted to institute
an action against
the first respondent, I am not convinced that the
purpose of awarding costs in favour of a respondent is designed for
the purpose
of deterrence.
[31]
However, I cannot prevent the first respondent University from
electing what to do in respect
of a cost award made in its favour.
[32]
It is unfortunate, but I am unable to discern any reason why the
respondents, as the successful
litigants, should not be placed in a
positon where they are entitled to attempt to recover their costs.
[33]
I express
the hope
[15]
that the
applicant as a former student and a person who is self-evidently
indigent, be treated with compassion with regards the
adverse costs
award which I intend to make.
[34]
In the circumstances I make the following order:
The
application is dismissed with costs which include the costs reserved
by order of this court dated 20 November 2018.
[16]
A
BEYLEVELD
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For
Applicant:
In person
For
Respondent: Adv Desi instructed by
Joubert Galpin Searle, Port Elizabeth
[1]
In the Magistrates’ Court for the district of Port Elizabeth
[2]
The requirements for a defence of
lis
pendens
or
res
iudicata
are
well-known. See in this regard
Caesarstone
Sdot-Yam Ltd v The World of Marble and Granite 2000 CC and Others
2013 (6) SA 499
(SCA);
Nestle
(SA)(Pty) Ltd v Mars Inc
2001 (4) SA 542 (SCA)
[3]
Reynolds
NO v Meckenburg (Pty) Ltd
1996 (1) SA 75
(W);
Harms
Civil Procedure in the Superior Courts
B-48
[4]
MEC for
Health, Gauteng v 3P Consulting (Pty) Ltd
2012 (2) SA 542
(SCA) at para 28;
Stiegelmeyer
Africa (Pty) Ltd v National Treasury of South Africa
[2015] 2 All SA 110
(WCC);
Kwa-Sani
Municipality v Underberg-Heimville Community Watch Association
(180/2014)[2015]
ZASCA 24 (20 March 2015) at para 18
[5]
This relief the applicant conceded became moot by virtue of the fact
that at a subsequent graduation ceremony in December 2018
the degree
in fact was conferred upon him.
[6]
Exacerbated by arguments advanced by the applicant during the
hearing of the application
[7]
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A);
Meyer
v Iscor Pension Fund
2003 (2) SA 715
(SCA) at para 29
[8]
Bankseta the sponsor paid funds over to the University for the
purpose of sponsoring and/or funding the applicant for the
particular
year.
[9]
In the sense that he disputes not the arithmetical correctness
thereof but the underlying basis
[10]
The underlying validity thereof
[11]
The clause in the bursary agreement relied upon by the applicant
properly interpreted does not in any event afford him the right
to
claim payment to him of bursary funds not utilised and which were
never paid over to him.
[12]
Declaration, plea etc
[13]
More particularly the functionaries who were cited with the
University
[14]
Those respondents who oppose the application
[15]
Which of course does not bind the respondents
[16]
I have declined to make a costs order against the applicant relating
to the equality court proceedings. He abandoned such
proceedings and the respondents, may if so advised, set down such
proceedings which were postponed
sine
die
for the purpose of seeking a cost award.