Mohuba v University of Limpopo (4754/2019) [2021] ZALMPPHC 77 (27 October 2021)

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[2021] ZALMPPHC 77
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Mohuba v University of Limpopo (4754/2019) [2021] ZALMPPHC 77 (27 October 2021)

REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
REPORTABLE:
NO
OF
INTEREST TO THE JUDGES: NO
REVISED
CASE
No 4754/2019
In
the matter between:
DINKWANYANE
KGALEMA MOHUBA
PLAINTIFF
And
THE
UNIVERSITY OF LIMPOPO

DEFENDANT
JUDGMENT
LEDWABA
AJ
Introduction
[1]
Mr Dinkwanyane Kgalema Mohuba( the plaintiff) applied for enrolment
as a student for the degree of Doctor
of Commerce( the degree) with
the University of Limpopo( the defendant or the University) .
By way of the letter dated the 11
th
August 2016, the defendant advised the plaintiff that his application
was successful. In the plaintiff’s version, his application
constituted an offer which was accepted by the defendant and this
resulted in the agreement between himself and the defendant. He
contends that he has since complied with all requirements to be
conferred with the degree.  The defendant does not deny that
the
plaintiff was registered as its student. It denies that he has
complied with the requirements to be conferred with the degree.
[2]
For the reasons that are not relevant to decide this matter, the
defendant not only refused to confer
the degree on the plaintiff, it
also terminated his registration as its student and has rejected his
re-application. Following the
defendant’s Executive Committee
meeting of the 3
rd
October 2018,
t
he plaintiff’s
registration was termination on the 5
th
October 2018.
[3]
Aggrieved at the refusal to confer the degree and the termination of
his registration, the plaintiff has
instituted action proceedings and
prays for an order
directing the defendant
to confer the degree on him.  The defendant has raised a special
plea. The plaintiff’s particulars
of claim and the defendant’s
special plea read as follows:
Particulars
of claim
1.
The plaintiff is DINKWANYANE KGALEMA MOHUBA
a university administrator and at all relevant times hereto, the
Executive Director for
Marketing and Communications of the defendant
of 11 Apollo Street, Sterpark, Polokwane, Limpopo Province.
2.
The defendant is the UNIVERSITY OF LIMPOPO
being a university as defined in
section 1
of the
Higher Education
Act 101 of 1997
, situated at University Road, Zone A, Mankweng,
Limpopo Province, Republic of South Africa.
3.
During August 2016 the plaintiff applied
for enrolment as a student for the degree Doctor of Commerce with the
defendant, which application
the defendant accepted.
4.
In the circumstances the plaintiff and the
defendant entered into a tacit contract of which the material terms
were that the defendant
would award the said degree upon the
plaintiff once the plaintiff had been registered as a student of the
defendant for the period
prescribed by the defendant’s Senate and
completed the work and attained the standard of proficiency
determined through assessment
as required by the Senate.
5.
The plaintiff duly registered as a student
of the defendant for the period prescribed by the Senate and
completed the work and attained
the standard of proficiency
determined through assessment as required by the Senate and in all
respects entitled to the conferment
of the said degree.
6.
The defendant, in breach of the said
contract, refuses to confer the degree ….and then repudiated the
agreement ….(and) summarily
terminated the plaintiff’s enrolment
as student and refused that the plaintiff be re-registered as such.
7.
The plaintiff rejects the defendant’s
said breach and repudiation and elects to hold the defendant to the
contract between the parties.
8.
In the circumstances the plaintiff is
entitled to an order directing the defendant to confer the said
degree upon the plaintiff.
WHEREFORE
the plaintiff claims:
1.
An order directing the defendant to confer
the degree of Doctor of Commerce upon the plaintiff;
2.
An order that the defendant pays the
plaintiff’s costs of suit;
3.
An order granting further or alternative
relief to the plaintiff.
Defendant’s
special plea
1.
The defendant is an organ of state as
defined in terms of the
Promotion of Administrative Justice Act 3 of
2000
{“PAJA”}.
2.
The plaintiff alleges in paragraph 4 of his
particulars of claim that the defendant was obliged to award him a
doctorate degree after
the defendant “
completed
the work and attained the standard of proficiency determined through
assessment as required by the Senate”.
3.
On the plaintiff’s version, the
defendant’s refusal to award the plaintiff the doctorate degree in
issue (“the defendant’s
decision”) constitutes administrative
action in terms of PAJA and the plaintiff was accordingly bound to
review the defendant’s
decision in accordance with PAJA after the
plaintiff exhausted all internal remedies.
3.1
The plaintiff applied and was registered
for the Doctorate Degree in terms of the defendant’s rules in 2016.
3.2
Pursuant to an investigation the
defendant’s Executive Committee of Senate took a decision to
terminate the plaintiff’s registration
for the Doctorate Degree on
5 October 2018.
3.3
The decision to terminate the plaintiff’s
registration is valid and extant and has not been set aside.
3.4
The defendant is prohibited from awarding
the Doctorate Degree until the decision to terminate his registration
taken on 5 October
2021 has been set aside.
3.5
The defendant’s refusal to award the
plaintiff the Doctorate Degree in issue constitutes an administrative
action which remains
valid until set aside by a competent authority.
4.
It is a peremptory requirement that review
proceedings in terms of PAJA must be instituted in accordance with
Rule 53 of the Uniform
Rules of Court.
5.
The plaintiff did not institute review
proceedings in terms of Rule 53 within the prescribed time period in
accordance with section
7(1) of PAJA.
6.
In the circumstances, the plaintiff was not
entitled to institute the present action for relief that is subject
to and regulated in
terms of PAJA.
WHEREFORE
the defendant prays that the plaintiff’s action
be dismissed with costs alternatively that the plaintiff’s action
be stayed pending
the final resolution of review proceedings in terms
of PAJA instituted by the plaintiff in accordance with Rule 53.
[4]
By agreement between the parties, the special plea has been separated
to be decided on papers before the
merits.
[5]
The plaintiff’s case is that his registration by the defendant
constituted an acceptance of an offer
and has resulted in the tacit
contractual relationship in terms of which the defendant is obliged
to confer the degree on him once
he has complied with set out
requirements. He contends that having complied with his obligations
in terms of the contract, he is
holding the defendant to specific
performance of conferring the degree on him.
He avers that his
claim being contractual in nature, he has decided to vindicate it by
way of action proceedings. He further contends
that even if his
claims contains elements of legality, the Rule 53 review application
is not the only platform available to him.
He
says if the defendant took the view that the facts do not prove
contract, the defendant should have served an exception, the result
of which would have been that his claim would not be dismissed but he
would be given an opportunity to remedy the defendant’s cause
of
complaint.
[6]
The defendant denies that the plaintiff is entitled to the conferral
of the degree. In terms of its special
plea, its decisions to
terminate the plaintiff’s registration and not to confer the degree
on him constitute the exercise of public
power and are administrative
decisions which remains valid and extant until reviewed and set aside
by the competent court. It contends
that until the plaintiff’s
deregistration is set aside, it is prohibited from conferring the
degree on him and that the plaintiff’s
failure to institute review
proceedings to set these decisions aside is fatal to his case.
The defendant pleaded over that
the relief sought by the plaintiff is
incompetent.
I
understand the essence of the defendant’s special plea to be that
in the face of the plaintiff’s registration termination and
until
it is set aside, the defendant is prohibited from awarding the degree
to the plaintiff.
Analysis
[7]
The parties differ on the characterisation of the defendant’s
decisions of terminating the plaintiff’s registration,
the refusal
to re-register the plaintiff and the refusal to confer the degree on
the plaintiff. At the centre of their differences
is whether their
relationship is contractual or administrative in nature.
[8]
The plaintiff says the defendant acted as an ordinary contracting
party and regards the defendant’s
conduct as the breach of the
terms of their agreement. The plaintiff has decided to enforce the
terms of their agreement and is praying
for specific performance
[1]
that the defendant be directed to confer the degree on him.
The
defendant says its conduct of terminating the plaintiff’s
registration and the refusal to confer the degree is the exercise
of
public power derived from the Higher Education Act 101 of 1997 (the
HEA), the Institutional Statute: University of Limpopo (Institutional
Statute) and the General Rules. It says its decisions are
administrative actions as intended in section 33 of the Constitution
to
be reviewed in terms of section 6 of the Promotion of
Administrative Justice Act 3 of 2000 (PAJA). It implies that the
available
remedy is not enforcement of the terms of the agreement but
those remedies found in section 8 of the PAJA
.
The
remedy selected by a litigant to vindicate its claim is informed by
the characterisation of the conduct a litigant is complaining
about.
Having characterised the conduct as contractual, the plaintiff has
invoked private law remedy of enforcement of the terms
of the
agreement. The defendant contends that its conducts being
administrative in nature, the plaintiff should have employed
administrative
justice remedy of reviewing and setting aside the
conduct. The defendant prays for the dismissal of the plaintiff’s
action, alternatively
that the plaintiff’s action be stayed pending
the final resolution of the review proceedings to be instituted by
the plaintiff
in terms of the provisions of PAJA read with Rule 53 of
the Uniform Rules
[9]
The plaintiff has decided to approach this court by way of action
proceedings with no indication that
he intends instituting the review
proceedings and this cannot be imposed on him. His claim is
contractual in nature and he does not
claim an administrative law
remedy. There is no basis for the alternative prayer contended for by
the defendant. The pleadings contain
the legal basis of the claim
under which the plaintiff has chosen to invoke this court’s
competence to deal with his claim.
[2]
[10]
In terms of Section 37 of the HEA and after consultation with a
senate, a council of a public higher
education institution determines
the admission policy of a public higher education institution.
[3]
In terms of Rules 2.2 read with 55.2 of the General Rules of the
University
[4]
, a doctoral degree
student is required, on admission, to register by signing the
official registration form and must annually renew
his or her
registration as long as he or she continues to be student of the
University
[5]
, provided that a
student may be refused permission to renew registration for any year
of study if he or she fails to satisfy the
prescribed minimum
requirements.
[6]
This means that
until such student has complied with all the requirements of a degree
such student is enrolled for , the registration
of a student in the
position of the plaintiff must be renewed on annual basis
.
In terms of section 65B (2) the HEA, no degree may be conferred by a
public higher education institution upon any person who has
not been
registered as a student of such public higher education institution
for the period prescribed by the senate of such institution.
[7]
[11]
The relationship between a student and a university is a contractual
one renewable in respect of each academic year.
[8]
It is entered into by acceptance of a student’s application for
admission , be it a first or subsequent admission. In the absence
of
implied term binding a university to acceptance in the years
subsequent to the first year, the  university is free to accept
or refuse an offer contained in the student’s application for
readmission.
[9]
The
decision not to accept an offer to enter into a contract is
ordinarily not a reviewable decision and not one which has
to be
arrived at after application of the rules of natural justice.
[10]
[12]
Admission as a student of higher education institution entails a
contractual submission to its rules.
[11]
The renewal of registration as the student implies that the previous
registration has come to an end and with it, as a corollary
the
previous admission has also lapsed. The plaintiff’s re-admission
application was rejected in 2018
.
This is not administrative law impacting or trumping on the
contractual relationship between the parties. It is the lapsing of
the
contract on the basis of its term.
[13]
In the
Yatya
case the applicant student approached the court in 1992 for the
declaratory order that he had satisfied the requirement for the
degree
for which he had enrolled in 1985 and for an order directing
the respondent to confer a degree upon the applicant. This despite
the
fact that in 1991, an additional compulsory course was added and
the notice was issued specially advising students that the added
compulsory course was a requirement for conferment of that degree.
The court asked the question whether the requirements for the
award
of a degree are fixed and determined at the date of first
registration, or may subsequently be altered by the university in
its
discretion during the course of study?
[12]
The court said that for rationale reasons and for the assistance of
both the student and the university benefit, a renewal
of
registration is to be considered a renewal of admission as a student.
It said neither a student, when he or she first register,
nor the
university, in accepting that first registration, operate from fixed
and immaculate positions. The court ruled that the 1985
requirements
could not be used to confer the degree having regard to the 1991
registration requirements. It decided that irrespective
of the fact
that the applicant was registered in 1985, the 1991 registration
requirements determined the terms under which the requirements
of his
degree was regulated. Having decided that the applicant was bound to
comply with the requirements as laid down by the university
in 1991
the court dismissed the application for conferral of the degree.
[14]
In
Mkhize
case
[13]
it was submitted on
behalf of the university respondent that the parties’ relationship
was a pure contractual one in respect of
each academic year. In the
alternative, it was submitted that the decision not to readmit the
student was purely administrative as
opposed to a quasi-judicial act
and that the principles of natural justice of the right to be heard
did not apply.
[14]
The court decided that the relationship was contractual in nature.
[15]
The Hamata
[15]
case was about
the disciplinary hearing of the student for having published a
newspaper article. The parties accepted as their point
of departure
that the functioning of educational institution such as universities,
technikons and schools is governed by the administrative
law
principles. This was the position adopted at the subsequent Supreme
Court hearing.
[16]
[16]
In the Cape Metropolitan case
[17]
,
the municipality having granted the tender to collect arrear levies
subsequently entered into the service agreement with the service
provider. On the basis of the alleged material breach of the
contract, the municipality cancelled the contract. On the ground that
its constitutional right to administrative justice of stating its
case and be given reasons had been violated, the party aggrieved
by
the cancellation applied for the setting aside of the cancellation.
The municipality contended that because the cancellation did
not
amount to administrative action, it was entitled to summarily cancel
the agreement on the basis of material breach without affording
the
aggrieved party the procedural fairness right to be heard and to be
provided with the reasons for the cancellation of the contract.
The
Supreme Court concluded that although the cancellation of the
contract did not constitute administrative action, the aggrieved
party had the right of access to information in term of section 32 of
the Constitution.
[17]
In Logbro case
[18]
, the
question was whether the Provincial government, relying on tender
terms and conditions, could withdrew a tender without regard
to
administrative justice of giving the affected parties the opportunity
to make representation if the reconsideration ( because
the value of
the property had since increased) could lead to adverse decision. The
court found that the tender process constitutes
administrative action
( the government acting from a position of superiority or authority
by virtue of its being a public authority
in specifying the tender
terms)  with the accompanying right to the affected parties to
lawful administrative action.
The court said even
if the condition or the terms of the parties’ relationship
constitutes a contract, its provisions does not exhaust
the duty
towards the affected parties and that the principles of
administrative justice continue to govern that relationship. In
exercising contractual rights in the tender processes, there is an
obligation to act lawfully, procedurally and fairly with the result
that some of the contractual right would give way, without their
existence being rendered irrelevant, to public duties under the
Constitution and any applicable legislation. The principles of
administrative justice frame the parties’ contractual relationship
and continue to govern the exercise of the rights derived from the
contract. This means that even if the relationship between the
parties is contractual in nature, the principles of administrative
justice apply and continue to govern the exercise of contractual
rights.
The
court further said there is no general proposition that a public
authority empowered by a statute to contract may exercise its
contractual right without regard to public duties of fairness. On the
contrary the established (general) proposition is that a public
authority’s invocation of a power of cancellation in a contract
concluded on equal terms with a major commercial undertaking, without
any element of superiority or authority deriving from its public
position, does not amount to an exercise of public power.
[19]
Where
the parties contract on the terms dictated by one party acting from
the position of superiority or authority by virtue of its
being a
public authority in specifying those terms, such a party is burdened
with a public duty of fairness in exercising the powers
derived from
those terms of contract.
[20]
[18]
The similarity between the plaintiff’s case and that of Lunt
[21]
case is that in both cases, the complaint related to the refusal by
the higher education institutions to re-register students. Accepting
that the relationship between the university and the student is
contractual, the student applicant successfully approached the court
to review the university’s decision not to give the student
applicant the hearing. Having accepted that the university’s
conduct
is an administrative action which materially and adversely
affect the legitimate expectation of the applicant, the court decided
that the applicant had legitimate expectation to be heard. The
difference between these cases is that while the plaintiff is relying
on the law of contract for specific performance, in Lunt case the
applicant approached the court on the basis of administrative law.
In
Lunt case the decision to refuse to re-register the applicant was
reviewed and set aside. This is an indication that students
aggrieved
by the refusal to be re-registered with institutions of higher
learning and depending on the remedy sought, they have a
choice of
approaching the court on the basis of the law of contract or
administrative law.
[19]   The
plaintiff’s case is based on the law of contract and not on the
administrative law.  The tacit term of
the contract is stated as
being an obligation imposed on the defendant to confer the degree on
the plaintiff on compliance with the
conditions the plaintiff claims
to have fulfilled. The particulars of claim are silent about the
termination of the plaintiff’s
registration as the defendant’s
student. Whether an applicant student qualifies to be awarded a
degree is determined by the requirements
as at the date such
applicant claims to qualify to be conferred with the degree and not
as at the date of first registration. Like
in Yatya case, what
happened between the date of first registration and the date when an
applicant claims to have complied with the
requirements stated at the
date of first registration has consequences. In this case, the
plaintiff is no longer the defendant’s
student to be conferred with
any degree by the defendant. Irrespective of whether the applicant
can approach this court for specific
performance in terms of contract
or the review of administrative action, the plaintiff’s
registration status with the defendant
is an important factor that
cannot be ignored in the consideration of whether the defendant can
be ordered to confer the degree on
the plaintiff. The plaintiff’s
registration was not only terminated, the defendant has also refused
to re-register him as its student
and until that has been dealt with,
the defendant cannot be ordered to confer the degree on him. Section
65B (2) the HEA prohibits
the conferral of a degree by a public
higher education institution upon any person who has not been
registered as a student of such
public higher education institution
for the period prescribed by the senate of such institution
[20]   The
relationship between the plaintiff and the defendant started in 2016
and was terminated in 2018 and his application
to renew the
registration was rejected. An assessment of whether he qualifies to
be conferred with the degree can only be made on
the basis of his
registration status with the defendant at the date he claims to be
qualified to be conferred with the degree in
2018. The plaintiff
applied for his re-registration because he is aware that his
registration has terminated and needs to be renewed
by
re-registration. When the application to renew his registration was
rejected, the plaintiff abandoned his re-registration efforts
and
decided to approach this court to nevertheless order the defendant to
confer the degree on him. While being aware that his relationship
with the defendant as a student has terminated, the plaintiff is
approaching this court to nevertheless confer the degree on him.
Even
accepting that the plaintiff does not necessarily have to follow the
process set out in Rule 53 of the Uniform Rules to vindicate
his
claim, conferring the degree on the plaintiff in these circumstances
will not only be illegal, but will be a contradiction to
the
defendant’s decision to deregister the plaintiff.
[21]
I agree with the submission made on behalf of the plaintiff that
review proceedings by way of Rule 53 read with PAJA
is not the only
available remedy to vindicate his claim. In terms of cases such as
the Jockey Club and SAFA
[22]
,
an applicant which has decided to review administrative conduct does
not necessarily have to follow the provisions of Rule 53 and
failure
to follow this rule or its provisions in reviewing a decision of an
administrative nature is not necessarily irregular. This
is because
the provisions of Rule 53 exist principally for the benefit of an
applicant who is not the decision maker in possession
of the records
on which an impugned decision is based. An applicant can waive the
provision of the information which it does not
need or is already in
possession of such as the records and reasons for an administrative
conduct. Organs of State may not use PAJA
to review their
decisions.
[23]
Action
proceedings can be used to review decisions but that does not relieve
such plaintiff to deal with facts which have implications
on its
intended remedy, such as the fact that the plaintiff’s registration
as the student of the defendant has been terminated.
I also agree that
the fact that there may be a contractual relationship between the
parties does not mean that there may not also
be issues of
administrative law arising. On behalf of the plaintiff a number of
cases cited in footnote 11 of the heads of arguments
support the
position that the relationship between a student and a university is
contractual in nature. This does not accord with
the submission on
behalf of the defendant that the defendant’s power to terminate
student’s registration has always been accepted
as the exercise of
public power. The distinguishing feature between the plaintiff’s
case and other cases he is relying on is that
unlike in the other
cases where the prayers are about refusal for registration and
readmissions, the plaintiff prays that the degree
be conferred on
him, despite the fact that his registration has been terminated and
his application for re-registration was rejected.
[22]
The statement that the particulars of claim classify the defendant’s
conduct as administrative is not
correct. The particulars of claim
are to the effect that the defendant has breached the terms of the
agreement between the parties
and is praying for specific
performance. The claim is based on the law of contract and not on
administrative law. The special plea
states that the defendant has as
a matter of fact terminated the plaintiff’s registration as student
and cannot confer the degree
on him.  Dismissing the special
plea on the basis that it interprets the particulars of claim as
being based on contract would
be ignoring its message that the
plaintiff’s registration has been terminated as a matter of fact
with consequences which cannot
be ignored. This point has been raised
as part of special and needs to be dealt with. It cannot be deferred
to be dealt with the
main case.
[23]
The plaintiff has decided to vindicate his claim by praying for
specific performance. The defendant takes
the position that its
decisions are administrative in nature and require judicial review
proceedings in the event any party in the
position of the plaintiff
is aggrieved by the decisions. Pleadings are decided as framed and
the defendant’s decision to raise
special plea instead of an
exception suggests that although it does not agree with the remedy
sought by the plaintiff, it accepts
the particulars of claim as
framed. This matter is decided not on the choice between approaching
this court by way of action or review
proceedings. It is not about
whether the relationship between the parties is contractual or
administrative in nature.  This
case is about directing the
defendant to confer the degree on the person who is not its
registered student This is not only an attempt
at self-help but an
attempt to direct the defendant to commit an illegality of conferring
the degree on the person who is not its
student, irrespective of
whether the remedy employed by the plaintiff is contractual or
administrative in nature.
The
defendant’s special plea is not to be decided on the plaintiff’s
election to approach this court by way of action or by way
of review
proceedings. It is decided on the prayer the plaintiff is seeking.
The plaintiff is seeking for an order for specific performance
that
the defendant be directed to confer upon him the degree despite the
fact that his registration as the student has been terminated
and the
defendant has rejected his re-application. The defendant’s
cancellation of the plaintiff’s registration has factual and
legal
effect which cannot be ignored in the decision whether to order the
defendant to confer the degree on the plaintiff.
[23]
I do not think that the plaintiff is ignorant of the fact that the
defendant’s termination of his registration
has implications. He
may or may not have thought about the route associated with the
prayer to the effect that the defendant be directed
to rescind its
decision to deregister him.
[24]
A litigant in the position of the plaintiff who has both contractual
and administrative remedies cannot ignore
the fact that he is no
longer a registered student and pray that he or she be conferred with
a degree irrespective of that legal
position. The plaintiff has
decided to pray for specific performance that the defendant be
directed to confer the degree upon him.
Apart from making the
point that the plaintiff’s deregistration as the defendant’s
student remains in force and on the basis
that its decision was
administrative in nature, the defendant prays that the plaintiff’s
action be dismissed, alternatively be
delayed pending the outcome of
the review proceedings to be instituted by the plaintiff. The
alternative prayer loses sight of the
fact that the plaintiff has
deliberately elected his remedy as the enforcement of the terms of
the contract and has no intention
of reviewing the defendant’s
decisions. He cannot be forced to review the defendant’s decisions.
This matter is decided on the
pleadings as framed by the plaintiff.
[25]
There is no law or principle that says a party which has options of
employing the law of
contract to vindicate its claim is not bound by
or cannot apply the principle of administrative law. In the cases
where the courts
have accepted the relationship between the partiea
as contracual in nature, the courts have also accepted that to the
extent that
the aggrieved parties have fair procedural rights, such
relationships have administrative elements as well. Notwithstanding a
contractual
right of an organ of state to withdrew a tender, the
relationship between such public authority and the tendering private
individual
may still be governed by the principles of administrative
law when it comes to the right to procedural fairnes.
[24]
There is no bright line test for determining whether administrative
principles intrude in the contractual relationship involving
an organ
of state and a private party.
[25]
In that sense private and public law are not exclusive.
[26]
The defendant correctly points out that until the decision is set
aside, whether by judicial review proceedings, the plaintiff’s
registration termination exist in fact and it has legal consequences
that he is no longer its registered student. The consequence
of
administrative decision, whether validly taken or not cannot be
ignored. The legal position is that until set aside using the
legal
process, even an invalid administrative decision exists in fact and
it has legal consequences that cannot simply be ignored.
Ignoring
such an administrative decision is licence to self-help.
[26]
[27]
In the same way the court cannot order a defendant to honour a
prescribed claim, irrespective of its merits, this court
cannot order
the defendant to confer the degree on the plaintiff who has been
deregistered as its student.
Conclusion
[28]
The plaintiff has decided to vindicate his claim by way of action
proceedings. He is praying for specific
performance and his case is
decided on his particulars. While the litigant in the position of the
plaintiff has a choice to vindicate
his or her right in terms of the
law of contract, the terms of contract he or she is seeking as well
as the prayers sought to be
enforced must be legally enforceable.
[29]
The effect of the plaintiff’s deregistration as the defendant’s
student is that he is no longer its
student. I do not understand the
plaintiff’s position to be in dispute with this statement. He has
applied without success for
his re-registration. Even if he had
decided to follow the PAJA route to have the defendant directed to
confer the degree on him,
that would not be granted in the face of
his deregistration as the defendant’s student.
[30]
The fact that the relationship between the plaintiff and the
defendant has been terminated, whether rightly
or wrongly, cannot be
ignored where the defendant is to be directed to confer the degree on
the plaintiff. The granting of a prayer
for specific performance is
discretionary
[27]
and must be
done with due regard to the consequence of such an order. It should
not be granted where it will result in illegality,
where compliance
is difficult or impossible or is likely to subject a defendant to the
danger of contempt of court.  Section
65B (2) the HEA
prohibits
the conferral of the degree on the plaintiff for as long as he
remains not registered with the defendant. Directing the
defendant to
confer the degree on the plaintiff will be directing it to commit an
illegality.
[31]
There is no basis to grant an order for the suspension of the
proceedings pending the review application.
The plaintiff has
deliberately elected not to avail himself of the review proceedings
and this cannot impose that on him. He has
decided to avail himself
of contractual rather than administrative rights.
Order
[1].
The defendant’s special plea is upheld.
[2]
The prayer for the conferral of the degree of Doctor Commerce on the
plaintiff is dismissed.
[3]
The plaintiff is ordered to pay the cost, including the cost relating
to the employment of two counsels.
LEDWABA
LGP
ACTING
JUDGE OF THE HIGH COURT
LIMPOPO
DIVISION : POLOKWANE
APPEARANCES
For the Plaintiff
:
Adv PF Louw SC
Instructed by:

DS Sello Attorneys
Polokwane
For the Defendant:
Adv VS Notshe SC
Adv
Majozi
Instructed by:

Motalane Inc
C/O
Dikgati Mphahlele
Polokwane
Heard on:

24
th
August 2021
Judgement
delivered on:      October 2021
[1]
or
interdict to enforce or as a form of specific performance- Chritie’s
The Law of Contract in South Africa–  6
th
Edition- page 555
[2]
Gcaba
v Minister of Safety and Security & Others
(2009) ZACC 26
;
2010
(1) SA 238(CC)-p
ar
75
[3]
Paragraph 20(2) of the University of Limpopo Institutional Statute
(Institutional Statute) gives effect to this provision.
[4]
These Rules are framed in terms of section 32 of the HEA
[5]
In
terms of Rule 23.1.1, no person shall receive a qualification,
except an honorary degree, unless he or she has fulfilled all
the
requirements prescribed by the Rules for the qualification. Rule 60
prescribes the minimum two academic years   before
presentation of thesis.
[6]
In terms of paragraph 58 of the Institutional Statute admission and
registration of students are determined by the Institutional
Rules.
In terms of paragraph 31(2)(g) of the Institutional Statue, the
Senate is empowered to cancel the registration of a student.
[7]
In terms of paragraph 60 of the Institutional Statute, the award of
degrees, diplomas and certificates are determined by the
Institutional
Rules.
[8]
Yatya
v
University of Bophuthatswana
1994(2) SA 375(BG) ( Yatya case)- page 383,  Mkhize.v Rector,
University of Zululand and Another 1986(1) SA 904(D)( Mkhize
case) -
page at 904, Sibanyoni & Others v University of Fort Hare
1985(1) SA 19(CkS) at 30D-31B(  Sibanyoni case) , Lunt
v
University of Cape Town & Another 1989(2) SA 438(C) at 444 (
Lunt case)
[9]
Mkhize case
[10]
Mkhize
case– at 904 and Sibanyoni case at 301.
[11]
Hamata
& Another v Chairperson , Peninsula Technikon Internal
Disciplinary Committee & Others
(2002) ZASCA 44
– par 6
[12]
Yatya case - page 378 and 382 Mkhize case- at 904.
[13]
Mkhize
v Rector, University of Zululand & Another 1986(1) SA 901(D)
[14]
Page
903
[15]
Hamata
&
Another v Chairperson, Peninsula Technikon Internal Disciplinary
Committee & Others  2000(4) SA 621( C) – par 24
[16]
Hamata
v Chairperson , Peninsula Technikon Internal Disciplinary Committee
2002 5 SA 446 (SCA),
[17]
Cape
Metropolitan
Council v Metro Inspection Services ( Western Cape) CC & Others
2001(3) SA 1013(SCA)( (Cape Metropolitan
case)
[18]
Logbro
Properties CC v Bedderson NO & Others 2003(2) SA 460(SCA) (
Logbro case)
[19]
Logbro case – par 10
[20]
Logbro case- par 11
[21]
Lunt
v University of Cape Town & Another 1989(2)SA 438(C)( Lunt case)
[22]
Jockey
Club of South Africa v Forbes 1993(1) SA 649(A)  and South
African Football Association v Standton Woodrush (2003) 1
All SA
274(SCA)
[23]
State Information Technology Agency Soc Ltd v Gijima Holdings (Pty)
Ltd 2018(2) 23(CC).
[24]
South African National Parks v MTO Forestry & Another 2018(5) SA
177(SCA)( SANPARK)  – par 35
[25]
Pharmaceutical Manufacturers Association of South Africa &
Another : In re Ex Parte President of the Republic of South &
Others (2000)ZACC 1; 2000(2) SA 674- par 45 and SANPARK- par 37
[26]
Oudekraal
Estates (Pty) Ltd v City of Cape Town & Others 2004(6) SA
222(SCA) -par 26, MEC for Health, Eastern Cape v Kirland
Investment
( Pty) Ltd t/a Eye & Laser Institute 2014(3) SA 481(CC) –par
87-106, Merafong City Local Municipality v AngloGold
Ashanti
(2016)
ZACC 35-
par 36,37, and 41
[27]
Christie’s
The law of contract in South Africa : 6th edition-
Page
546/7