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[2021] ZAECPEHC 17
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Toyi and Others v Nelson Mandela University (476/2021) [2021] ZAECPEHC 17 (30 March 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
Case No: 476/2021
Date heard: 4 March 2021
Date
delivered: 30 March 2021
In
the matter between:
CEBO
TOYI
First
Applicant
NSOVO
MTILENI
Second Applicant
NKOSINATHI
MKANSI
Third Applicant
LUTHO
MADLANGA
Fourth
Applicant
HLULANI
RIVISI
Fifth
Applicant
BANDILE
NDZIMANDE
Sixth
Applicant
TSEBO
NKOMO
Seventh
Applicant
MGANGANTO
SHIKOZA
Eighth Applicant
ZIKHONA
SABHIZA
Ninth
Applicant
IGENCIOUS
NETHAVHANI
Tenth
Applicant
and
THE
NELSON MANDELA UNIVERSITY
Respondent
JUDGMENT
ZIETSMAN
AJ:
[1]
Nelson Mandela has rightly said that
“Education is the most powerful weapon which you can use to
change the world”.
The necessity of education cannot be
overstated. But, the world as we know it has been tipped on its head
and everyone, including
universities and students alike, had to adapt
to all the various challenges brought about by the Covid-19 pandemic.
It has caused
unprecedented disruption and uncertainty, which, has in
turn, forced universities and students to adapt very quickly. As
might
be expected, this has not been an easy ride at all.
[2]
The Applicants are students at the Nelson
Mandela University (‘the University’). They are enrolled
for degrees in either
Construction Management or Quantity Surveying.
However, First Applicant is not authorised to depose to the founding
affidavit on
behalf of the Sixth to Ninth Applicants. The only
Applicants properly before court are the First to Fifth and Tenth
Applicants
(‘the Applicants’).
[3]
The
Applicants launched an application, on an urgent basis, in terms
whereof they seek orders interdicting the University from proceeding
with an examination which was scheduled to take place on 24 February
2021, and further interdictory and review relief. By the time
the
application was served on the University, the examination had already
been conducted. That being so, at the hearing of the
matter the
Applicants abandoned the urgent relief.
[1]
The remainder of the relief is set out as follows in the notice of
motion:
“
1.
…
2.
…
2.3
That the decision of the respondent:
2.3.1
to refuse the applicants access to their marked scripts in respect of
the 20
th
January 2020 Accounting 1 examination;
2.3.2.
to direct them to submit themselves to a re-examination, which is to
take place at 14h00 on the 24
th
of February 2021 be reviewed and set aside;
2.3.3.
that the applicants be allocated marks in respect of the examination
scripts of Accounting 1 (as they appear
on their marked scripts),
which were written on the 20
th
of January 2021, and such marks be published and taken into account
in respect of the completion of the degrees of all the students
who
wrote Accounting 1 on the 20
th
of January 2021;
2.3.4
that the marked papers (of the 20
th
January 2021) be kept in safe custody pending any possible later
review, disciplinary, criminal or other proceedings.
”
[4]
At the hearing of the matter Mr Nobatana,
who appeared on behalf of the Applicants, applied for a postponement
of the application
on the basis that the Applicants are entitled to
the record of proceedings and will supplement their papers in due
course. After
hearing argument, I dismissed the application for
postponement and stated that my reasons will follow in the judgment.
Application
for postponement
[5]
In
Persadh
and Another v General Motors South Africa (Pty) Ltd
[2]
Plasket J (as he then was) summarised the principles applicable to an
application for a postponement follows:
“
[13]
The following principles apply when a party seeks a postponement.
First, as that party seeks an indulgence he or she
must show good
cause for the interference with his or her opponent's procedural
right to proceed and with the general interest
of justice in having
the matter finalised; secondly, the court is entrusted with a
discretion as to whether to grant or refuse
the indulgence; thirdly,
a court should be slow to refuse a postponement where the reasons for
the applicant's inability to proceed
has been fully explained, where
it is not a delaying tactic and where justice demands that a party
should have further time for
presenting his or her case; fourthly,
the prejudice that the parties may or may not suffer must be
considered; and, fifthly, the
usual rule is that the party who is
responsible for the postponement must pay the wasted costs.
”
[6]
It
has also been held, although in the context of a trial it is equally
applicable in this instance, that a postponement will not
be granted
in circumstances where the postponement is occasioned by a happening
or circumstance which applicant, at the time of
set-down, could have
or should have foreseen.
[3]
The
Applicants, at the time that the application was served, on 25
February 2021, not only could or should have foreseen, but in
fact
knew that the interdictory relief which they seek pertained to an
examination which had already taken place on 24 February
2021. In
respect of the remainder of the relief, Mr Nepgen, who appeared on
behalf of the University, submitted that the Applicants
have not made
out a case for a final interdict and the application was otherwise
premature since no decision has been taken yet.
I held a similar
view.
[7]
I cannot see how it can be in the interest
of justice to postpone an application which bears no prospects of
success on the merits.
I deal with this in greater detail below. This
is not a case
where
justice demands that the Applicants should have further time for
presenting their case.
On
this basis the application for postponement was refused.
Background
[8]
All of the Applicants are enrolled in the
accounting module RSS102: Accounting for Construction Students –
Accounting 1 Special
(‘the Module’) in respect of the
2020 academic year. This Module is offered by the Accounting Science
Department (‘the
Department’) of the University.
[9]
Following
the declaration of the National State of Disaster under the Disaster
Management Act
[4]
on 15 March
2020, the national lockdown commenced at midnight on 26 March 2020,
to contain the spread of what is now commonly known
as the
Coronavirus. The Covid-19 pandemic was upon us. Due to the national
lockdown, and in keeping with having to adapt to the
various
challenges as quickly as possible, the University found it necessary
to extend the academic year and change to an online
platform for
learning through an electronically based Moodle learning management
site (‘Moodle’).
[10]
All students are registered on Moodle,
which allows them to access learning material; write online tests;
and upload written tests
and examinations on a remote based approach.
How it works for examinations is that students are required to sign
an examination
protocol and ethics declaration (‘Ethics
Declaration’) before accessing the examination paper, in terms
whereof they
make certain declarations,
inter
alia
that the answers submitted are
entirely their own. Thereafter, the exam paper is released; students
write the examination by hand;
scan in their written manuscripts; and
upload same before the stipulated cut-off time.
[11]
With regard to students’ performance
during the year, the Department had previously required that a due
performance requirement
be met in respect of weekly assignments.
Given that many students were struggling with connectivity issues,
the Department took
a decision that it would not be necessary for the
students to meet the due performance threshold to qualify for the
final examination,
but instead encouraged them to submit their
assignments. In my view, again, adapting to the times we live in, and
in order to accommodate
the students as far as possible, this
decision was fairly taken. The students were however required to work
through their assignments
in accordance with the memoranda provided,
and prepare and retain a self-reflection, as stated, it was not
compulsory for the students,
in the ordinary course, to submit same.
Where such self-reflections were submitted, it enabled the lecturer
and module co-ordinator
to identify and assist those students who
were in need of assistance.
[12]
With the above background in mind, the
year-end examination in respect of the Module was conducted on 20
January 2021. All the Applicants
completed the Ethics Declaration and
wrote the examination, whereafter their scripts were uploaded and the
lecturers attended to
the marking of the papers. The class and
semester marks determine the year mark. The year mark determines
whether the student passes
of fails, with the examination mark being
the heavier in weighting.
[13]
The University picked up a significant
discrepancy between certain students’, including the
Applicants’, class marks
and examination results. The
discrepancy is not what was expected, which is usually a decrease
from class mark to exam results
(due to the increased learning
volume), but a significant increase above the class marks. The
increase was of concern to the Department
and the identified
students, including the Applicants, were requested to submit their
self-reflections. The Applicants elected
not to do so, stating that
it is not compulsory and for students that are not coping, and
instead insist that they had passed the
examination. On closer
inspection it appeared that the students answered the questions with
identical wording and layout, and made
identical errors.
Consequently, the Department concluded that sufficient evidence
existed to require the legal department of the
University to
investigate whether a disciplinary inquiry into the examination
irregularities and conduct of the students should
follow. The
investigation is ongoing and only once it is finalised, a decision
will be taken whether to award the Applicants with
their 20 January
2021 examination marks or to pursue disciplinary proceedings against
them to decide whether there was misconduct.
[14]
The
Department realised that the Module could leave the students with a
last outstanding credit
[5]
should they be found guilty. Since the investigation or potential
disciplinary process would take time to finalise, and most likely
would not be finalised before the two re-examinations, the Applicants
were allowed an opportunity to re-write the exam and avoid
facing the
last outstanding credit dilemma. Clearly, the University acted in the
best interest of the students, including the Applicants,
in giving
them an opportunity to rewrite the examination on 24 February 2021.
As submitted by the University, the re-examination
was offered as a
‘compassionate’ gesture and an act of good faith on their
part. I agree. It is a pity that the Applicants
elected not to make
use of the opportunity, but rather remained steadfast in their view
that they passed the examination. To make
matters worse, there was
also one final opportunity available, to final year students, to
avail themselves for another re-examination
during the week of 8 to
12 March 2021. Accordingly, and in the event of a guilty finding in
the disciplinary proceedings, the Applicants,
even if not sanctioned
with expulsion, will at the very least have to redo the relevant
Module as a consequence of having been
stripped of their January 2021
result/s. Once again, the Applicants elected to rather proceed
with this application. Against
this background, the relief which the
Applicants seek must be determined.
The
relief
[15]
With
regard to disputes of fact in motion proceedings, the time-honoured
Plascon-Evans
[6]
rule applies.
[16]
Prayers 2.3.1 to 2.3.3 constitute, what
appears to be, review relief, whereas in prayer 2.3.4 the Applicants
seek relief in the
form of a final interdict. The requirements for a
final interdict are (1) a clear right; (2) an injury actually
committed or reasonably
apprehended; and (3) the absence of similar
protection by any other ordinary remedy.
[17]
The
Applicants allege that the University refused to give them access to
their marked scripts. According to the University’s
General
Prospectus the Applicants have a right to view their examination
scripts on application to the examination office
[7]
.
The Applicants have not availed themselves of such application and
accordingly no such application has been refused.
[18]
The Applicants seem to labour under the
misapprehension that they were directed by the University to submit
themselves to re-examination
on 24 February 2021. To the contrary,
there was no decision that the Applicants submit themselves to
re-examination as contended
for by them. The University explains, in
detail, the status of the re-examination, and that it was a
concessionary and precautionary
allowance, in respect of the
Applicants, should they in future be pursued in disciplinary
proceedings and found guilty of cheating,
and thus stripped of their
20 January 2021 marks. As stated by the University, it was an effort
to avoid prejudice being suffered
and offered as a ‘compassionate’
gesture and an act of good faith on their part. There was no
obligation on any of
the Applicants to write the re-examination.
Furthermore, the final year students (including the Applicants) who
did not write on
24 February 2021 were offered one final opportunity
to avail themselves for a re-examination during the week of 8 to 12
March 2021.
Accordingly, in the absence of a decision, on behalf of
the University, requiring the Applicants to submit themselves to the
re-examination,
there is nothing to review. Even if there was such a
decision, the investigation and process to follow thereafter, if any,
have
not yet been finalised.
[19]
The
Applicants not only seek an order that they be awarded their final
results, in respect of the relevant examination in terms
of the 20
January 2021 marks, but also that such marks be published and taken
into account in respect of the completion of the
respective degrees
for all students who wrote the examination on this date. Leaving
aside the issue of non-joinder of the other
students,
[8]
the University sets out in various instances that the decision as to
which mark to award to the Applicants can only finally be
made either
once the disciplinary process is complete, or when the investigation
is complete and no charges are pursued against
one or more of them.
Simply put, the relief which the Applicants seek is premature.
[20]
The Applicants also seek relief that their
marked papers be kept in safe custody. It is not disputed that the
University’s
Records Retention Policy provides that exam
scripts must be retained in its Electronic Records and Documents
Management Repository
for a period of five years, and the originals
for a period of one year after the exam. The Applicants do not allege
that the University
will dispose of the marked papers. The Applicants
have therefore not satisfied the requirements for a final interdict.
In fact,
First Applicant’s examination paper is attached to the
University’s answering papers.
[21]
Mr
Nobatana also submitted that the matter is on all fours with the
judgment of
Spies
and others v The Minister of Basic Education and others and related
matters
.
[9]
It bears mention that the facts in
Spies
are entirely distinguishable from the facts of this matter. In
Spies
,
the decision was taken by the Minister that the Maths II and Physical
Science II papers had to be re-written by all matric pupils
enrolled
for those two subjects, in circumstances where only a number of
learners had access to the aforementioned papers. In this
matter the
converse is true. It is only a handful of students that had the
option to write the re-examination. They were not compelled
to do so.
Conclusion
and costs
[22]
In light of the conclusion that I have
arrived at, no purpose would be served in dealing with and expressing
a view on the issue
of non-joinder. The Applicants have not made out
a case for interdictory relief. With regard to the remainder of the
relief, the
Applicants were neither refused access to their scripts
nor were they directed to submit themselves for re-examination.
Lastly,
the decision as to which marks to finally award the
Applicants has not yet been taken. As previously stated, as there is
no decision,
there is nothing to review.
[23]
With
regard to costs, Mr Nobatana submitted that the
Biowatch
principle
[10]
ought to apply
and in this regard referred to the judgment in
Ferguson
and Others v Rhodes University
.
[11]
In my view the facts in
Ferguson
is distinguishable from the facts at hand. The applicants in
Ferguson
were asserting their constitutional right of freedom of expression
and association in challenging the interim interdict, which
was
ultimately found to be overly wide.
[12]
The Court held that those proceedings activated the principle
enunciated in
Biowatch
with regard to costs. It was further argued that this matter raises a
constitutional issue, being the Applicants’ right to
further
education. It was submitted that each party should be ordered to pay
their own costs; alternatively, that costs be reserved,
and that the
applicants that are not properly before court should not be ordered
to pay any costs.
[24]
Mr
Nepgen on the other hand referred to the matter of
Harrielall
v University of KwaZulu-Natal
[13]
and submitted that this matter is not a genuine constitutional matter
since there is no infringement of the Applicants’ right
to
further education. Further, referring to
Harrielall
,
that legal action that is not likely to lead to any procedural result
is vexatious and the Applicants cannot escape liability
for costs. It
is true that in
Harrielall
[14]
the caveat to the general rule was stated in the following terms:
[15]
“
However,
the rule is not a licence for litigants to institute frivolous or
vexatious proceedings against the State. The operation
of its
shield is restricted to genuine constitutional matters. Even
then, if a litigant is guilty of unacceptable behaviour
in relation
to how litigation is conducted, it may be ordered to pay costs.
This means that there are exceptions to the rule
which justify a
departure from it. In Affordable Medicines this Court
laid down exceptions to the rule. Ngcobo
J said:
‘
There
may be circumstances that justify departure from this rule such as
where the litigation is frivolous or vexatious. There
may be
conduct on the part of the litigant that deserves censure by the
Court which may influence the Court to order an unsuccessful
litigant
to pay costs.’
”
[25]
In my view, the Applicants’
constitutional right to further education has not been infringed in
any way. Even if I am wrong,
one has to look at how the litigation
was conducted. In this regard, I have taken into account the
following facts. The Applicants
launched the present application, on
an urgent basis, and prematurely I might add, after the
re-examination had already been conducted.
They elected not to write
the re-examinations and wait for the investigation and/or
disciplinary process to be finalised. The decisions
which the
Applicants seek to challenge are in any event either moot or have not
yet been taken. I can therefore find no reason
why there should be
any deviation from the rule that costs follow the result.
Order
[26]
In the result, the following order is
issued:
[26.1]
The application is dismissed.
[26.2]
The First to Fifth and Tenth Applicants are
ordered to pay Respondent’s costs jointly and severally, the
one paying the other
to be absolved.
______________________
T. Zietsman
ACTING
JUDGE OF THE HIGH COURT
Appearances:
Obo the Applicants:
Adv MW Nobatana
Instructed
by: MLN
Law Incorporated, Port
Elizabeth
Obo Respondent:
Adv J Nepgen
Instructed
by: Joubert
Galpin Searle, Port
Elizabeth
[1]
Prayers
2.1 and 2.2 (inclusive) of the notice of motion.
[2]
2006
(1) SA 455
(SE) at para [13] (I have omitted the references to
authorities).
[3]
Greyvenstein
v Neethling
1952 (1) SA 463
(C) at 466A – D.
[4]
57
of 2002.
[5]
In
terms of the University’s Last Outstanding Credit (LOC) rule,
a student with only one outstanding module preventing him
or her
from qualifying for a degree is afforded an opportunity for a
re-examination, during the re-examination period. According
to the
University, this measure is aimed at seeking to avoid prejudice to a
student who otherwise may be compelled to enrol for
a single module
over the course of a further year to complete his or her degree.
[6]
Plascon-Evans
Paints (Pty) Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634H – 635C.
[7]
See
G1.15.1 of the General Prospectus of the University which provide as
follows: “
A
student has the right to view his/her examination scripts and
associated memoranda on application to the Examination Office
provided that the student account is not in arrears by any of the
payment dates and subject to the following time frames…
”
[8]
Who
most definitely have a direct and substantial interest in the
subject-matter of the litigation which may prejudice them. Cf.
ABSA
Bank Ltd v Naude NO and others
2016 (6) SA 540
(SCA) at para [10].
[9]
[2020]
JOL 49157 (GP).
[10]
Recently
summarised by Nhlangulela DJP in
Dyanti
v Rhodes University and Others
(1604A/18) [2020] ZAECGHC 34 (26 March 2020), at para [41], as
follows: “
Biowatch
Trust v Registrar, Genetic Resources
2009 (6) SA 232
(CC) in which
it was held that as a general rule in constitutional litigation, an
unsuccessful litigant in proceedings against
the State ought not to
be ordered to pay the costs; the rationale for this rule being that
an award of costs might have a chilling
effect on the litigants who
might wish to vindicate their constitutional rights.
”
[11]
2018
(1) BCLR 1 (CC).
[12]
At
para [24].
[13]
2018
(1) BCLR 12
(CC) at paras [11] to [13].
[14]
At
para [12] (footnotes omitted).
[15]
Borrowing
from Nhlangulela DJP in
Dyanti
supra at para [41].