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[2022] ZAECELLC 24
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Ayabulela v Lilitha College of Nursing and Another (EL 500/2022) [2022] ZAECELLC 24 (8 September 2022)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EAST
LONDON CIRCUIT LOCAL DIVISION)
CASE
NO. EL 500/2022
In
the matter between:
NANISE
AYABULELA
Applicant
and
LILITHA
COLLEGE OF NURSING
First
Respondent
THE
MEMBER OF THE EXECUTIVE COUNCIL
FOR
HEALTH, EASTERN CAPE PROVINCIAL
GOVERNMENT
Second
Respondent
JUDGMENT
HARTLE J
[1]
The applicant is a third year nursing
science student at the Lilitha College of Nursing (“the
College”).
[2]
Although she has practically reached her
fourth year of study her current registration status as a third year
student is due to
the fact that she failed a major module, to wit,
Psychiatric Nursing Science 1 (PNS 1), which examination was written
on 9 November
2021.
[3]
She was afforded a remark of her script and
due to an unfortunate error, which the first respondent evidently
regrets, she was wrongly
informed that her mark had changed to a pass
which entailed that she could progress to her fourth year. The
mistake in communicating
the wrong outcome to her was compounded by
the fact that she missed out on the option to rewrite the failed
module in February
2022.
[4]
The applicant lodged a grievance which was
referred to SENEX, a committee consisting of affiliated universities,
to investigate
the matter.
[5]
The committee resolved in her favour that
she be granted a “special re-assessment opportunity for the PNS
module adhering
to all the re-examination rules as per the
institution’s assessment policy”.
[6]
The decision taken was recorded as follows:
“
1)
The student needs to be granted a special re-assessment opportunity
for the PNS module adhering to all
the re-examination rules as per
the institution’s assessment policy. It needs to be clear that
should the student not pass
this assessment with 50% or more she will
need to redo her third-year modules as per the institution’s
rulings.
a)
The special re-assessment paper will be
complied by Ms J. Muller from Fort Hare using a variety of previously
moderated PNS papers.
b)
Once (the) paper is set all processes will
be followed as per the institution’s policies for examinations.
c)
It is advised that this special assessment
is written by end of next week (13.05.2022) at the latest.
d)
It is advised that the student has at least
one full week notice in writing of the date of her special
assessment.
e)
Ms J. Muller will mark the paper and Ms N.
Mafani will be the second marker. Their decision regarding the
results will be final.”
[7]
The applicant wrote the special examination
on 13 May 2022 having been given sufficient time to prepare herself.
[8]
The final result was produced on 8 June
2022. The outcome stated that all examination processes were followed
as per the College’s
assessment policy and that she “remains
as failed”.
[9]
Despite what the first respondent’s
Policy provides, namely that students are entitled to view the
examination script of their
main summative exams only, and explicitly
further prohibits the re-marking of special exam papers, the
applicant pushed the envelope
by insisting that she have access to
her special exam script and that she be afforded a re-write option
once again.
[10]
When she was not shown her exam script she
approached her current attorneys of record who demanded it from the
College.
[11]
Not yielding to the demand (the College
adverting to its firm policies in this respect as well as the special
examination conditions),
she approached this court on the basis of
urgency, two months after the result was released.
[12]
A certificate of urgency was provided by
the attorneys to the duty judge on 22 August 2022.
[13]
Although permitting the matter to be
enrolled for hearing before me on 6 September 2022, and suggesting
timeframes for the exchange
of papers and the filing of heads, my
colleague, Laing J, was astute to qualify that the directions given
by him were without any
final determination of the urgency of the
matter.
[14]
The urgency professed by the applicant, and
which was still maintained by her in arguing the matter before me as
a fully opposed
urgent application in the midst of a busy unopposed
motion court roll, is that the fourth year practical exams are
commencing on
26 September 2022 and that she will be unable to
participate in these exams unless she is in effect promoted to a
fourth year status,
assuming the re-mark goes in her favour that is.
[15]
I point out, however, that it is common
cause that she is not registered as a fourth year student, so the
target of 26 September
2022 is irrelevant and or contrived.
[16]
The purported rights she claims to assert
by the
mandamus
relief sought (on a final basis) are to have her script furnished to
her, and to insist on a remark before 26 September 2002.
[17]
She also alludes to her need to make an
informed decision and election in respect of whether to request a
remark or review the decision
of the first respondent or not as the
case may be.
[18]
Whilst
the latter reason is inclining towards a supposed entitlement to fair
and just administrative action, it is abundantly plain
from the first
respondent’s version given in opposition to her founding
affidavit (which must prevail on the basis of the
Plascon-Evans
rule)
[1]
that the applicant has
no right in this respect. Indeed, the College has done exactly as it
was both obliged and entitled to do
in terms of its examination rules
and policies. As a student of the College, it is expected of the
applicant to subscribe to these.
[19]
Mr. Mdunyela who appeared on her behalf
argued that having been hard done by it is “in the interests of
justice” that
the college be ordered to remark her script.
Whilst I have empathy for her situation, this does not however
provide an actionable
basis upon which to assert that she is entitled
to an interdict.
[20]
As an aside she has in the meantime been
advised of her mark obtained in the special exam, which is that she
obtained 49%, a clear
fail.
[21]
Notwithstanding the College’s
answering affidavit, the applicant persisted in her view that she did
well in the exam and claims
that she wants (still) to satisfy herself
that the processes outlined in clause 11 of the Student Assessment
Policy that the College
put up in its answering affidavit “were
duly followed”, this based on her personal distrust of the
College.
[22]
In my view the applicant’s fate has
been sealed and she needs to accept that she has failed PSN 1 and
that it is for this
reason that she cannot progress to fourth year
level as she has not yet met the minimum requirements for her third
year. How she
thought she might persuade this court to promote her is
quite astonishing.
[23]
Whilst she seems to have been afforded
sympathy and sensitive support in her predicament, the College is
correct in its stance that
it has a duty to act in the best interests
of all the students and to maintain minimum academic standards.
[24]
As was sagely noted by the first respondent
in its answering affidavit “It would be prejudicial to the rest
of the students
to allow the applicant to have a third bite of the
cherry by allowing her to write a third exam, when such an exam is
not permitted
in terms of the Policy”.
[25]
In
the premises the applicant has not made out a case for any relief
sought
[2]
and quite frankly it
is my view that she has abused the urgent process to obtain yet
another preferential benefit, namely that
of being heard before other
litigants waiting in the queue.
[26]
It is indeed a sad set of circumstances but
the applicant needs to focus her energies on changing her stars and
getting back into
the academic program.
[27]
It is hoped that the College will continue
to counsel the applicant and to encourage her to develop a winning
spirit rather than
remaining in the quagmire of her despair and sense
of being a hapless victim.
[28]
The costs must unfortunately follow the
result.
[29]
I issue the following order:
1.
The application is dismissed, with costs.
B
HARTLE
JUDGE
OF THE HIGH COURT
DATE
OF HEARING:
6 September 2022
DATE OF
JUDGMENT: 8
September 2022
APPEARANCES
:
For
the applicant: Mr. Mdunyelwa Instructed by Mase & Mukoyi Inc.
Attorneys, East London (ref. Mr. Mase).
For
the respondents: Mr. D Maduma instructed by The State Attorney, East
London (ref. Ms Mosia).
[1]
Plascon-Evans
Paints (TVL) Ltd v Van Riebeck Paints [1984] 2 All SA 366 (A).
[2]
It
is trite what the requirements are for a final interdict. On the
evidence there is simply no clear right to speak of and no
injury
actually committed or reasonably apprehended. There is further a
remedy which actually exists, namely that the applicant
accepts that
she has failed and sits for the requisite PSN module again.