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2023
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[2023] ZAECBHC 5
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Silimela v University of Fort Hare and Others (136/2023) [2023] ZAECBHC 5 (28 March 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, BHISHO)
CASE
NO. 136/2023
NOT
REPORTABLE
In
the matter between:
MBALI
SILIMELA
Applicant
and
UNIVERSITY
OF FORT HARE
First Respondent
SENATE
Second Respondent
NJABULO
ZUMA
Third Respondent
VUSUMZI
MNCUBE
Fourth Respondent
JUDGMENT
HARTLE
J
[1]
The applicant was a student registered in his
final year at the University of Fort Hare in 2022 in the faculty of
teaching and learning
(Education).
[2]
He approached this court acting in person on the
basis of urgency to judicially review a “decision” of the
Senate of
“disallowing to capture (his) actual marks for EDW
401 module” and for further orders directing the respondents
(who
I shall collectively refer to as the University) to finalize the
correction of his marks and to issue a “confirmation letter”
to him, and further compelling it to furnish him with the minutes of
Senate that concern the so-called decision. (Although
he asked
exhaustively for the minutes to be provided to him, they were only
furnished to him after the issue of the present application
under the
guise that a formal adoption process had to ensue, which took almost
seven weeks to unfold.)
[3]
In the founding affidavit, he avers that the
application is for the review and setting aside of a decision taken
by the Senate of
the University on 2 February 2023 “to
withdraw/revoke (his) EDW 401 marks of 57%, which had been conferred
on him by (the)
Faculty of Education and Faculty board of the first
respondent on 12
th
January 2023” and, in the alternative, he “contends”
that the senate’s decision on 2 February 2023, in
terms of
which his marks for EDW 401 “was withdrawn or revoked,”
be declared of no force and effect.
Further,
in the concluding paragraphs of his founding affidavit he requests an
order directing the University “to finalise
the correction of
(his) marks” and to review and set aside the decision of the
Senate for rejecting the correction of (his)
marks (for the) EDW401
module”.
[4]
Whichever way one looks at the
“problem” that he believes falls to this court to be
resolved since he claims he has
exhausted every avenue open to him,
it is clear that his concern resides in the fact that notwithstanding
his own Faculty supporting
the pass mark of 57% in respect of course
work that was admittedly submitted late after a successful “appeal”,
he has
not been cleared to pass his course.
[5]
It is not in contention that the absence of a
confirmation letter stands in the way of him graduating from the
course and harms
his career prospects. (This goes to urgency which I
accept has been established on the applicant’s papers.)
[6]
The university pleads that the relief sought by
the applicant is incompetent and that he has failed to make out a
case for review.
It also challenged the supposed exigency of the
matter on the basis that urgency was self-created and complains of
prejudice relating
to the truncated time periods that were imposed
upon it within which to reply. It filed a preliminary answering
affidavit and although
I afforded it an opportunity to amplify its
papers (since it indicated that should it be afforded more time, it
“would be
able to place a “record” before the
(court)”, it accepted by the date of the hearing that it had
said what it
needed to. Beyond the extract of minutes of a special
meeting of the Senate that was held on 2 February 2023, ostensibly
via
Microsoft Teams,
and the applicant’s Academic Record, it has offered no other
official historical record to show how it has
internally dealt with
the applicant’s predicament (especially between “appeal”
and referral to Senex/Senate for
“approval”) since his
supposed infraction of the University’s rules. It has also not
made available any institutional
rules or processes that illuminate
what the parties were required to do in such an instance, what formal
steps had to be taken,
or who would have had authority at any level
to decide what. Ironically the University puts that shortcoming
at the door
of the applicant for not having placed a record before
this court or even having requested one, whereas his aspiration to
understand
the position from the University’s perspective, even
if not stated in a formal request per the court’s Rules, is
plain
from his various emails to it and from the tenor of his very
plaintive affidavit and email correspondence with the University
leading
up to the issue of this application.
[7]
The university’s stance is that there is no
decision final in nature taken by the Senate that is susceptible to
judicial review.
Further, it claims that there is no final mark of
57% for the module but that such a mark (which has clearly been
recommended by
the Faculty for acceptance) is still to be approved
for
late
correction.
Without Senate approval, so it says, there is no such mark on the
applicant’s academic record. Indeed, the official
academic
record reflects the applicant to have failed the module with a mark
of 23%.
[8]
The University explains that this is because the
marks system for 2022 was closed, but it has not taken the court into
its confidence
regarding when that happened (or what exactly its
processes are in this respect), or why a trajectory that was being
followed up
until the Senate’s impugned decision of 2 February
2023 (not final on the University’s version which suggests by
necessary
implication that it is therefore still open to the
applicant to pursue as an option) is no longer possible. Evidently
the applicant
has been querying the outcome of his assessments for
the course in question since January this year with a maddening
ferocity leading
up to the issue of the present application.
[9]
The course in question, the module EDW 401,
although in the process of being phased out according to the
University, was a compulsory
module for a school experience portfolio
forming part of the applicant’s curriculum comprising of seven
components.
In order to pass it the applicant was required,
inter alia
, to submit
history method videos and his admin portfolio for the practical
training. The submission date for the videos was 2 September
2022,
and for the admin portfolio, 13 October 2022. He submitted both only
on 11 November 2022, nine and four weeks late respectively.
The
applicant has not in the papers before this court dealt with his
reasons for the delays or shared why he believes there was
merit in
his late submissions being condoned, evidently focussing more on the
fact that, according to him, he was already condoned
by his Faculty
that saw fit to assess his practical work after the fact
notwithstanding the late submissions, and to give him an
overall mark
of 57% for the course.
[10]
Quite evidently the Senex and the Senate are
dissatisfied with whatever excuse was made by or on behalf of the
applicant for the
late submission but it is not clear what the
committees were told or why they hold such a view particularly in
relation to the
applicant and the reasons which he must have provided
to his own faculty leaders to have persuaded them to ultimately give
him
a mark despite the late submissions. None of this detail has been
revealed by the University to the court.
[11]
The University’s unyielding attitude
however appears to be that since the applicant failed to meet the
deadlines for his respective
course work to be filed on time he
automatically forfeited his right to have them assessed and to
receive an outcome in respect
thereof
even if
an internal process in this instance in fact resulted in him being
condoned by his own faculty
. The University
wants the court to ignore this important feature of the applicant’s
case. It was important for me to understand
why I should ignore it,
but the University’s answering affidavit has not provided much
insight in this respect. The
applicant pleaded, for example,
that “there is no rule which permits Senate to revoke (his)
marks”. Whilst the
tenor of the applicant’s papers
suggests that his real concern resides in the fact that the Senate
ignored the positive recommendation
of his own faculty (rather than
an imagined revocation of the 57% mark), or failed to put its stamp
of approval on it to permit
the corrected mark to prevail, the answer
made by the University to this allegation skirts around the true
issue. It pleaded
instead that: “(i)t is incorrect that
Senate revoked any mark, accordingly the statement that any power to
do so is absent,
is irrelevant.”
[12]
Given its prevarication in this regard, the court
remains in the dark regarding who’s power it is to do what in
this peculiar
fact-scenario or to understand why the applicant finds
himself in the checkmate situation in which he is, leading this court
to
infer, on the premise suggested by section 5 (3) of the Promotion
of Administrative Justice Act, No 3 of 2000 (“PAJA”),
that the Senate’s failure to have endorsed the Applicant’s
corrected mark was taken without good reason.
[13]
In order to demonstrate the curious stance
adopted by the University, it cannot refute that the applicant’s
assessments were
ultimately marked at the higher rate, but it now
also insists that that mark (the revised one of 57% in which all the
applicant’s
hopes reside) came too late for submission before
the closure date for final marks to be uploaded on the University’s
system.
This appears to be its reason why it is “game over”
for the applicant who must in its view instead either re-enrol for
the module (which it has said in no uncertain terms is being phased
out) or that he must seek a re-assessment according to GR 8
of the
University’s
General Prospectus 2021
.
[14]
Without this court having been taken into its
confidence regarding the University’s marking system it is
difficult to understand
why the closure of the marks system is now
supposedly final especially against the background of the fact that
there was a motivation
and submission to the three stage committees
concerning the applicant’s scenario
inter
alia,
culminating with the Senate’s
impugned decision which, by the university’s own confusing
suggestion, is still not a
final culmination of the whole debacle.
The University, so it appears to me, is blowing hot and cold in this
regard. Why
was lip service being paid to a process that in its
view was not going to be able to ameliorate the situation for the
applicant
and the other affected students if the door had firmly
closed on their endeavours to seek condonation for their respective
failures
to have met their deadlines timeously?
[15]
I believe that there is merit in the fact that
the applicant’s lecturer for the module at least allowed the
applicant’s
course work to be marked and that the Faculty
thereafter earnestly motivated for his corrected mark to be accepted
despite his
breach of the University rules. The
University agrees that the correction had to be officially approved
according to
the rules and practices of the University, and thus it
ended with the Senate so the Senate must therefore give proper
consideration
to his unique request based on the essential features
of his case that was placed before it.
[16]
It is quite unfortunate that this court is none
the wiser what the rules of engagement were (or are) for such a
process so as to
adjudge whether the University acquitted itself of
its obligations in this respect but the strange outcome that was
reached is
to my mind a sufficient indication that it has not
properly considered the Faculty’s request to accept the
applicant’s
late corrected mark.
[17]
On 13 February 2023 the applicant obtained from
Professor Mncube (the 4
th
respondent) an extract of the Faculty’s positive submission to
Senate on the issue. This reads as follows:
“
The school
experience portfolio comprises 7 components. Student
Mbali
S (201903297)
submitted only four on time,
which resulted in a final mark of 23. The student reported that he
had a challenge uploading the video.
By the time he submitted the
video, the system was closed, so the marks could not be captured. The
Faculty requests that 23% which
was initially captured, be changed to
57%. The Faculty supports the correction of marks for the student
because he is a final year
student in the old BEd qualification that
he’s being phased out. According to the records the student has
completed all the
requirements for BEd programme except for the
Teaching Practice (EDW 401), which is a compulsory module. (See the
attached academic
records). The faculty of education, in the
past three years, followed Continuous Assessment, which does not
provide for supplementary
or special examinations for the last
outstanding module. We plead for the correction of mark by capturing
the marks that were outstanding.
If the correction of marks is
sanctioned, the students will graduate and their chances of
employment will be enhanced”.
[18]
It is hard to fathom from the limited information
placed before the court by the University why these representations
in respect
of the applicant did not succeed. Indeed, Professor
Mncube’s submission and motivation provide weighty
considerations for
the three committees to have condoned the
applicant’s infraction of the rules and to have approved the
late corrected mark.
In the Senate’s minute it is also
co-incidentally noted that the applicant “reported difficulty
in uploading videos.”
One searches in vain for any negative
reason that served before the Senex/Senate that would have operated
against condoning the
applicant’s breach and accepting his late
corrected mark.
[19]
The Senate’s impugned resolution is that it
does not support the correction of marks for the three affected
students. In the
minute provided it records its view that the
students involved had not followed the rules but that surely was the
reason in the
first place for the referral to the committees to
ascertain whether the complained of infractions could be condoned.
It asserted
that it was not satisfied that the information presented
to it was sufficient and urged upon the Faculty to discuss the matter
with the Deputy Vice Chancellor on how to proceed. This to my mind
appears to be a criticism of how the faculty handled the process
at
its level rather than in respect of the applicant’s personal
request (amongst the other students) to be condoned.
The minute
itself, evidently grudgingly provided to the applicant after numerous
requests for it even after its sign-off on 16
March only on 21 March
2023, does not provide any detail why the
applicant’s
corrected mark could not be approved. The discussion is broad
and does not speak to his unique situation so the comment in
it that
the Faculty needed to present sufficient information with which the
Senate could make an informed decision does not provide
confirmation
that the applicant fell short of the target (or the Faculty
motivating on his behalf). The further observation,
for
example, that “these cases” should not have been brought
to Senex and Senate for adjudication, it being the responsibility
of
the faculty, is most puzzling especially since it is common cause
that the Faculty did “adjudicate” the applicant’s
request to be condoned, assessed his course work, and made pertinent
recommendations that his late corrected mark be approved.
[20]
It is no wonder that the applicant has not
accepted that the Minutes are “complete” and persists in
asking for the “raw”
recordings to demonstrate how the
Senate got to its resolution concerning him. The court’s
concern is that the University
has not disclosed all the matter that
was placed before it in relation to the applicant’s unique
scenario. If the Faculty
has fallen short in relation to the
applicant’s request to be condoned in respect of process or in
any other way, a court
reviewing the University’s conduct in
ignoring the positive recommendation of the Faculty must especially
show how and why.
[21]
It is ironic and opportunistic in my view that
the University contends that its “decision” is not
capable of judicial
review because it is not final. It was contended
on its behalf that should the full information be presented (whatever
that might
be), with a solution discussed and tabled by the Faculty
in consultation with the Deputy Vice Chancellor (a process that seems
in the applicant’s situation to have already pertained), the
Senate would
then
be
able to take a decision which would not be in conflict to the
resolution. That is what it says on the one hand but with the
same
breath it maintains that because the official marking system has
closed in the interim, the putative yet to be condoned mark
can in
effect never be approved and that the applicant must instead follow
the re-enrolment or reassessment routes. (Neither
coincidentally make any sense. On its own admission the
practical training module will no longer be offered, and the GR8
option proposed does not exactly fit the situation that pertains
here).
[22]
The minute and resolution of the Senate does not
suggest that the applicant is condemned to the current predicament he
finds himself
in because the marking system has already closed. This
is a view that the University has adopted in its answering papers as
opposed
to something the Senate concerned itself with. To the
contrary it is implied in the University’s argument that the
decision “is not yet final” that it sees the referral
back to the Faculty as a possible way of generally resolving the
conundrum. It appears to me however that in the applicant’s
case there is sufficient information before it to consider
the
Faculty’s recommendation (which assumes that the relevant
information has already being provided to the Faculty and that
it
considered the reasons furnished to it by him to have persuaded it in
the first place to mark the late submissions and to have
pleaded a
case to the Senate on his behalf for his lateness to be condoned and
the late mark approved) and that the relevant committees
must
therefore simply get on with it and properly decide that narrow
question whether it can support the Faculty’s recommendation
regarding the applicant, or not. If not it must of course stand
ready to provide cogent reasons for such a decision.
[23]
In all the circumstances I am satisfied that the
applicant has made out a case for judicial review (section 8 (3) of
PAJA applies)
in the sense that the Senate has failed to take a
critical decision which it was obliged to following the faculty’s
recommendation
put before it that the applicant’s late mark of
57% should be approved. The enormous prejudice to the applicant
thereby which
he has for a long time coming sought to address
informally with the University (very volubly I might add) requires
that the decision
be taken with great alacrity.
[24]
I issue the following order:
1.
The applicant’s failure to have complied
with the rules of court with regard to the necessary forms and
service is condoned
and the matter is confirmed to have been
justified as one of urgency.
2.
The University, through its responsible
structures, is directed within 5 days of this order to properly
consider the recommendation
of the 4th respondent, read together with
all the information already furnished in support of the applicant’s
request to
have been condoned for his late submissions of the
practical training components of the EDW401 module, that his late
corrected
mark of 57% in respect of the module be accepted and
captured on the marks system, and to make a decision to approve it or
not.
3.
If the decision arising is not one of approval of
the Faculty’s recommendation, the decisionmaker is to provide
adequate written
reasons to the applicant for his/her/its decision
adverse to his interests at the same time it publishes its decision.
4.
The respondents shall pay the applicant’s
costs such as the Registrar will allow to an unrepresented litigant.
B
HARTLE
JUDGE
OF THE HIGH COURT
DATE
OF HEARING
: 24
March 2023
DATE
OF JUDGMENT
:
28 March
2023
Appearances:
For
the Applicant : In person
For
the Respondents : Mr. D Kotze instructed by Conradie Halton Cheadle
Attorneys c/o Smith Tabata Attorneys, East London (Ms Kara-Lee
Swartz)