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[2023] ZAFSHC 415
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Morudu v University of the Free State (5797/2022) [2023] ZAFSHC 415 (20 October 2023)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Reportable: YES/NO
Of Interest to other
Judges: YES/NO
Circulate to Magistrates:
YES/NO
Case No: 5797/2022
In
the matter between:
JONAH
MORUDU
Applicant
and
THE
UNIVERSITY OF THE FREE STATE
Respondent
HEARD
ON:
20 July 2023
JUDGMENT
BY
:
MHLAMBI, J
DELIVERED
ON:
20
October 2023
[1] The applicant
seeks an order compelling the respondent to confer upon him the
qualification of a diploma in Construction
Science and Building
Surveying at its next graduation ceremony. The orders sought are
couched as follows in the notice of motion:
“
1.
The respondent is ordered to perform all such acts as may be
necessary in order to confer and bestow upon the applicant,
at its
next graduation ceremony or at such other time as may be convenient,
the Diploma in Construction Science and Building Surveying.
2.
Concomitant with such conferring, to issue to the applicant a Diploma
confirming that the applicant had completed
the said course and has
qualified for conferral of such Diploma upon him.
3.
That the respondent be ordered to pay the costs of this application.
4.
Further and or alternative relief.”
[2]
The respondent opposed the application on the basis that the
respondent could not lawfully or practically award the diploma
as
such an act would be in contravention of the provisions of the Higher
Education Act.
[1]
The respondent
pleaded
in
limine
that
there was a material non-joinder because the Minister of Higher
Education and Training, the Council on Higher Education and
SAQA had
not been cited as parties.
[3]
In his founding affidavit, the applicant stated that he enrolled with
the university as a full time student at the beginning
of 2002. He
registered for the degree of Bachelor of Science, majoring in
Quantity Surveying (B.Sc. (QS) and started his studies
in January
2002.
[2]
At the time he enrolled
for the degree, the university also offered a Diploma in Construction
Science and Building Surveying, subject
to the requirement that the
prescribed modules stipulated by the Faculty of Natural and
Agricultural Sciences of the university
be passed.
[3]
[4]
The diploma was only available on request to a student who completed
the prescribed and applicable modules of the first
three years of
study for the B.Sc. (Q.S.) or B.Sc. (Construction Management
degrees), or the open learning programme for the B.Sc.(Q.S.)
or the
B.Sc. (Construction Management), and has completed a minimum of 240
credits, but because of academic or other reasons, could
not complete
the prescribed study programme. This presented a university
qualification to a student in recognition of modules that
had been
completed which were applicable and acceptable in the labour market.
A student could not register for this diploma first-off.
Registration
and acceptance thereof must be for the degree course. Application to
be allowed to enter and qualify for the diploma
must be submitted to
the Registrar, student academics service.
[4]
[5]
The applicant completed all of the modules which were required to
enable him to qualify for a diploma in Construction
Science and
Building Surveying by completing sufficient modules to obtain 376
credits whilst the minimum requirement for the Diploma
was 240
credits.
[5]
[6]
In 2017 and 2019 he attempted to re-enrol for the degree of
B.Sc.(Q.S.) and was informed that he had exceeded the maximum
residential period allowed for enrolment in the programme. The
curriculum that he previously enrolled for, was no longer valid
and
he would not receive recognition of the credits for the modules
completed.
[6]
[7]
On 23 November 2021, the applicant addressed a letter to the
respondent through his attorneys communicating his wish not
to enrol
for the B.Sc.(Q.S.) course but, as he qualified for a diploma in
Construction Science and Building Surveying, enquired
whether the
respondent would be prepared to issue the diploma to him.
[7]
In response, the respondent advised that the diploma was discontinued
and the qualification could therefore not be awarded.
[8]
[8]
The respondent stated that the applicant started his studies in 2001,
had an incomplete record for 2002 and resumed his
coursework from
2007 to 2012.
[9]
For students
enrolled for the B.Sc.(Q.S.) degree in 2012, the maximum study period
was 6 years.
[10]
By the end of
2012, the applicant was accommodated beyond the maximum study period
of 6 years for the degree B.Sc. (Q.S.).
[11]
When the applicant left the university at the end of 2012, he
should have been aware that he could not resume and complete
his
B.Sc. (Q.S.) degree at a later stage. it was, therefore, necessary
for him to have applied for the exit diploma.
[12]
[9]
By the time the applicant decided to apply for the diploma, it was no
longer offered.
[13]
A
considerable period of time had lapsed since the applicant passed his
modules and wanted the respondent to consider his application
for the
diploma.
[14]
The respondent
was not unwilling to assist the applicant but it could not lawfully
or practically award the diploma, nor would
it be competent for the
court to order the respondent to do so in the circumstances.
[15]
The respondent could not confer historic qualifications
retrospectively.
[16]
[10]
According to the respondent, qualifications such as the diploma were
generally registered with the South African Qualifications
Authority
(SAQA) for a period of 3 years at a time.
[17]
The diploma in question was first registered with SAQA in 2006 and
was re-registered in 2009, 2012 and again in 2015.
[18]
The university was not responsible for the registration or removal of
qualifications with SAQA and the diploma’s accreditation
had
fallen away on 31 December 2014 which made it impossible in law for
the diploma to be conferred.
[19]
[11]
The respondent attached to its answering affidavit annexure “OA7”
which was a printout of the diploma’s
information obtained from
the SAQA’s official public website. The printout stated that
the diploma was a registered qualification
that had passed the end
date. The registration status is recorded as “Passed the End
Date-Status ‘RE-registered’”
and the SAQA decision
number was SAQA 06120/2018. The registration start date was
2018/07/01 and the registration end date was
31 December 2018. The
last date for enrolment was 31 December 2019 and the last date for
achievement was 31 December 2023.
[20]
[12] OctoberIn paragraphs
2.60 to 2.62 of the answering affidavit, the respondent stated the
following:
“
2.60
Based on information obtained from SAQA, all qualifications
registered on the NQF remain valid even if they have reached
the end
registration date and that the Diploma could still be conferred.
2.61
However, as the university understands the legislative requirements
after the Diploma’s accreditation status
fell away with effect
from 31 December 2014, the Diploma cannot be conferred.
2.62
Considering the above I respectfully submit that it was moot for the
Diploma to be on SAQA’s website.”
[13] It is also
recorded in Annexure “OA7” that the respondent was the
originator; the CHE or the Council for
Higher Education the primary
or delegated Quality Assurance functionary and the HEQSF (Higher
Education Qualifications Sub-Framework)
the NQF Sub-Framework. It was
recorded that the qualification did not replace any other
qualification and was not replaced by any
other qualification. The
purpose and rationale of the qualification are succinctly set out and
the qualifiers would practise as
assistants to a quantity surveyor
and perform the basic functions of an on-site Building Surveyor in
business, industry and responding
to the needs of the community.
[14]
It is common cause that the applicant complied with all the
requirements for the diploma in Construction Science and
Building
Surveying while enrolled with the respondent.
[21]
It is clear that the respondent’s resistance to the applicant’s
claim is based largely on its interpretation of the
Higher Education
Act (HEA).
[22]
Relying on
section 65 (D)(1) of this Act, it stated that “
The
University interprets Section 65(D)(1) to mean that only
qualifications which are accredited and registered can be offered and
awarded.
[23]
From
the above, it seems that the Diploma lost its accreditation with the
CHE on the HEQSF system with effect from 31 December 2014
and should
was(sic) thus rendered moot with SAQA.”
[24]
[15]
Section 65(D)(1) provides that no person may offer, award or confer a
degree, or a higher education diploma or a higher
education
certificate,
provided for on
the HEQSF unless such degree, diploma or certificate is registered on
the sub-framework for higher education on
the National Qualifications
Framework contemplated in section 7
(b)
read
with section 13 (1)
(h)
of the
National Qualifications Framework Act (NQFA)
[25]
.
[16]
The respondent then came to the conclusion that directing the
respondent to confer the diploma would result in compelling the
respondent to contravene the clear prescripts of the Higher Education
Act.
[26]
The respondent might
have to answer to the CHE and/or the Minister and endanger its
accreditation as an institute of higher learning.
[27]
Furthermore, the respondent would be guilty of an offence for
contravening section 66(1) of the HEA and liable on conviction to
a
sentence that might be imposed for fraud.
[28]
[17]
This is clearly wrong. The particular section neither affects the
respondent nor the applicant in any negative way whatsoever.
What it
does, is accentuate the position of SAQA and the relevance of the
National Qualifications Act. In terms of this Act, SAQA
must advance
the objectives of the National Qualifications Framework (NQF)
contemplated in the Act, oversee the further development
and
implementation of the NQF, and coordinate the sub-frameworks. Its
functions are, amongst others, to develop and implement policy
and
criteria, after consultation with the Qualifications Councils (QC’s),
for the development, registration and publication
of qualifications
and part qualifications, to register a qualification or part
qualification recommended by a QC if it meets the
relevant criteria;
and to develop policy and criteria, after consultation with the QCs,
for assessment, recognition of prior
learning and credit accumulation
and transfer.
[18]
On the other hand, the QC must, in order to achieve the objectives of
the NQF, perform its functions subject to the Act and
collaborate
with the SAQA and other QCs with regard to qualifications for its
sub-framework and ensure the development of such
qualifications or
part qualifications as are necessary for the sector, which may
include appropriate measures for the assessment
of learning
achievement; and recommend qualifications or part qualifications
to the SAQA for registration.
[19]
On 31 December 2014, when the accreditation was withdrawn, the
respondent admitted that the applicant had complied with the
academic
requirements for the diploma.
[29]
However, the applicant failed to comply with the condition that he
had to apply to the registrar of the first respondent to receive
the
diploma. The applicant’s counsel correctly pointed out that the
agreement between the parties did not contain a time-bar
clause which
stipulated that the applicant would be required to direct a request
to the respondent within a specific timeframe
for the conferring of
the diploma; and that the respondent appeared to have accepted that
such a request was made.
[20]
The contents of Annexure “OA7” are in line with the
provisions of section 13(h) of the NQF Act and, on the face
of the
document, the indications are that the registration of the
qualification or part-qualification was recommended by the
appropriate
quality council, i.e. the CHE. The respondent conceded
that all the qualifications registered on the NQF remain valid even
if they
had reached the end registration date and that the diploma
could still be conferred, based on the information obtained from
SAQA.
If that be the case, no reason exists why the SAQA, the
Minister and the Quality Council should be joined as parties to the
application.
[21]
Counsel for the applicant argued that the HEQSF could not be applied
with retrospective effect which would be the result if
the
respondent’s interpretation of section 65(D)(1) of the HEA is
accepted. That section should be interpreted not at the
date when the
relevant qualification is conferred, but on the date that the student
became eligible to be awarded such qualification.
Any other manner of
interpretation would lead to an absurdity. The general rule is that a
statute is to be construed as operating
only on facts that come into
existence after its passing. Relying on
Veldman
v Director of Public Prosecutions, Witwatersrand Local Division,
[30]
he submitted that, generally, legislation is not to be interpreted to
extinguish existing rights and obligations unless the statute
provides otherwise or its language clearly shows such a meaning. That
legislation will affect only future matters and not take
away
existing rights, is basic to notions of fairness and justice which
are integral to the rule of law, a foundational principle
of the
constitution.
[22]
I am in agreement with this proposition and that when the NQFA and
HEQSF were published on 14 December 2012 and 17 October
2014
respectively, the applicant had already complied with the
requirements of the diploma. The legislation did not take away his
existing rights. A perusal of the NQFA shows clearly that one of its
aims is the advancement and recognition of learning as an
essential
attribute of a free and democratic nation and a prerequisite for the
development and well-being of its citizens. To refuse
the applicant
recognition of his achievements and his compliance with the
requirements of the diploma (an aspect that is admitted
by the
respondent) would be acting contrary to the rule of law.
[23]
I am persuaded that the respondent’s resistance to the orders
sought by the applicant is without merit and should be
rejected. The
application should therefore succeed. It is trite that the successful
party is entitled to the costs.
[24]
I, therefore, make the following order:
Order:
The application succeeds
with costs.
MHLAMBI, J
On
behalf of the Applicant:
Adv.
R van der Merwe
Instructed
by:
Badenhorst
Attorneys
15
Groenvlei Avenue
Bloemfontein
On
behalf of the respondent:
Adv.
JMC Johnson
Instructed
by:
Phatsoane
Henney Attorneys
35
Markgraaff Street
Westdene
Bloemfontein
[1]
101 of 1997.
[2]
Paragraph 9 of
the Founding Affidavit.
[3]
Paragraph 13 of
the Founding Affidavit.
[4]
Annexure “FA2”
on page 25 of the Index Papers; Paragraph 14 of the Founding
Affidavit.
[5]
Paragraph 17 of
the Founding Affidavit.
[6]
Paragraph 19 of
the Founding Affidavit.
[7]
Paragraph 25 of
the Founding Affidavit.
[8]
Paragraph 26 of
the Founding Affidavit and annexure “FA8” on page 151 of
the Indexed Papers.
[9]
Paragraph 2.4 of
the Answering Affidavit.
[10]
Paragraph 2.72 of
the Answering Affidavit.
[11]
Paragraph 2.73 of
the Answering Affidavit.
[12]
Paragraph 2.74 of
the Answering Affidavit.
[13]
Paragraph 2.77 of
the Answering Affidavit.
[14]
Paragraph 2.78 of
the Answering Affidavit.
[15]
Paragraph 2.82 of
the Answering Affidavit.
[16]
Paragraph 2.81 of
the Founding Affidavit.
[17]
Paragraph 2.55 of
the Answering Affidavit.
[18]
Paragraph 2.56 of
the Answering Affidavit.
[19]
Paragraph 257 of
the Answering Affidavit.
[20]
Paragraphs 2.58
and 2.59 of the Answering Affidavit.
[21]
Para
16.1 of the AA.
[22]
101 of 1997.
[23]
Para 2.64 of the
AA.
[24]
Para 2.65 of the
AA.
[25]
67 of 2008.
[26]
Para 2.66 of the
AA.
[27]
Para 2.67 of the
AA.
[28]
Para 2.68 of the
AA.
[29]
Paras 14.1 and
16.1 of the AA.
[30]
2007(3) SA 210
(CC) para 26.