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[2020] ZALMPPHC 71
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University of Limpopo v Ambe and Another (1361/2020) [2020] ZALMPPHC 71 (25 August 2020)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(LIMPOPO
DIVISION, POLOKWANE)
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO THE
JUDGES:
YES
/NO
(3)
REVISED.
CASE
NO: 1361/2020
In
the matter between:
UNIVERSITY
OF LIMPOPO
APPLICANT
and
QUEEN
NTOMBIKAYISE AMBE
FIRST RESPONDENT
MINISTER
OF HIGHER EDUCATION AND
SECOND
RESPONDENT
TRAINING
JUDGMENT
MAKGOBA
JP
[1]
This is an application for rescission of an order granted by this
Court (per Semenya J) on 22
October 2019 under case number
2172/2019 (“the impugned order”). The impugned order in
effect conferred a Doctor of
Commerce Degree to the First Respondent.
The order was granted in the absence of the Applicant.
According
to the Applicant, it was unaware that the matter had been set down
for 22 October 2019. As a result the Applicant seeks
rescission of
the order in terms of Uniform Rule 31(2) of the Rules of this Court
and / or in terms of Rule 42(1) (a).
[2]
In the main application, the First Respondent sought and obtained the
impugned order which ordered
as follows:
2.1.
the first respondent’s decision to terminate the applicant’s
enrolment for Doctor of Commerce
study at the first respondent on 5
October 2018 is declared unconstitutional, unlawful and invalid and
is reviewed and set aside;
2.2.
the applicant has satisfied all the requirements for the completion
of the degree of Doctor of Commerce at
the first respondent;
2.3.
the first respondent’s decision not to confer the Doctor of
Commerce (“D.Comm”) degree
upon the applicant is declared
unconstitutional, unlawful and invalid and is reviewed and set aside;
2.4.
the first respondent is ordered to confer to the applicant the degree
of Doctor of Commerce at the first
graduation ceremony held by the
respondent from the date of the order.
[3]
The aforesaid impugned order relates to the review application (“main
application”)
issued by the First Respondent and sought to
review and set aside the Applicant’s decision to terminate the
First Respondent’s
enrolment for Doctor of Commerce study at
the applicant, University of Limpopo, and to not confer the Doctor of
Commerce degree
upon the First Respondent. According to the
Applicant, the decision was taken because the First Respondent
neither satisfied the
admission requirement nor the requirement for
the completion of the degree.
[4]
The Applicant failed to file an answering affidavit timeously in the
main application and this
led to the default judgment being obtained
by the First Respondent. The default judgment would not have been
obtained if the answering
affidavit had been filed as the matter
would have been fully opposed. It is against this backdrop that the
present application
is brought by the Applicant.
The
Legal Principles
[5]
The requirements that an application for rescission of judgment or
order must satisfy in terms
of Rule 31(2)(b) are well established in
the leading case of
Colyn
v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape)
[1]
where it was decided that the courts generally expect an
applicant to show good cause
(a)
by giving a reasonable explanation of his default;
(b)
by showing that his application is made
bona
fide
;
and
(c)
by showing that he has a
bona
fide
defence
to the plaintiff’s claim which
prima
facie
has
some prospect of success.
The
principle set out above entails that the Court will refuse an
application for rescission where there has been an intentional
disregard of the Rules
[2]
.
[6]
A judgment of the High Court granted in default can only be rescinded
through the provisions of
Rule 31(2)(b) or 42(1) or on the common
law. The provisions of Rule 42(1) are applicable where the judgment
or order was erroneously
granted. An order is erroneously granted if
it is legally incompetent for the Court to have made such order, if
there was an irregularity
in the proceedings or if the Court was
unaware of facts that, if known to it, would have precluded it from a
procedural and substantial
point of view, from making the order
[3]
.
[7]
For purposes of the present case I shall resort to applying the
provisions of Rule 31(2)(b).
Reasonable
explanation of the Default
[8]
It is trite that the explanation for the default must be sufficiently
full to enable the Court
to understand how it really came about, and
to assess the applicant’s conduct and motives. An application
which fails to
set out these reasons is not proper, but where the
reasons appear clearly, the fact that they are not set out in so many
words
will not disentitle the applicant to the relief sought.
See
Silber
v Ozen Wholesalers (Pty) Ltd
[4]
.
[9]
The Applicant set out hereunder the explanation and reasons for its
failure to file the answering
affidavit and the failure to attend
Court to oppose the granting of the order on 22 October 2019.
9.1
On the 17 July 2019 the answering affidavit was settled by the
Applicant’s lead counsel and transmitted
to the Applicant’s
attorney, Mr Philane Khumalo (“Khumalo”) of Motalane Inc,
the present Applicant’s attorneys
of record. Khumalo had to
ensure that the answering affidavit would reach the attention of the
deponent for signature, the deponent
being the vice-chancellor and
principal of the University of Limpopo.
The
Answering affidavit required confirmation affidavits and for that
reason it was sent to the Chairperson of the Investigation
Committee,
who was willing to give input into the opposing affidavit.
This
Investigation Committee had investigated the irregularity of the
admission and completion of
inter
alia
the First Respondent’s degree.
9.2
Between the 17 July 2019 and the date when the First Respondent filed
a notice of set down, there were
various interactions between Khumalo
and the Chairperson of the investigating team. These interactions
appear to have delayed the
finalization of the answering affidavit.
9.3
The period of these interactions coincided with the time when Khumalo
was cited for misconduct that
necessitated that he be subjected to
disciplinary hearing within Motalane Inc Attorneys. The interactions
between Khumalo and the
Chairperson of the investigating team did not
culminate into finalization and delivering of the answering
affidavit. Unfortunately
Khumalo kept this state of affairs and
information to himself. No member of the Motalane Inc had knowledge
of the progress in the
matter. Worse, this state of affairs
transcended to Khumalo’s failure to bring the notice of set
down of the application
by the First Respondent on the unopposed roll
to the Applicant’s attorneys and Counsel.
9.4
The notice of set down was served on the Applicant’s
correspondent and e-mailed to Khumalo on
12 August 2019, being the
date when Khumalo had already been cited for a disciplinary process.
Khumalo tendered his resignation
from the Applicant’s attorneys
employ with immediate effect from the end of August 2019. Under these
circumstances the Applicant’s
answering affidavit was not filed
and the notice of set down (known by Khumalo only) was not brought to
the attention of any of
the directors or members of the Applicant’s
attorneys of record.
9.5
The Applicant’s attorneys of record were, after Khumalo’s
departure, not aware that the
matter had been set down for 22 October
2019 and that the Court order had been taken in default against the
Applicant. They only
became aware of the order on 22 January 2020
when someone produced the said order at a hearing at the CCMA.
The
discovery of the Order required an investigation to be conducted as
to how the default order was taken. This required a search
into
Khumalo’s e-mail inbox which revealed the service of the notice
of set down on 12 August 2019. This explained how the
order was
obtained. It also explained how the notice of set down was not
brought to the Applicant’s attorney, Mr Motalane’s
and
Counsel’s attention as it was not forwarded to them.
9.6
The e-mails that have been traced back to Khumalo’s e-mail
inbox by the director of Motalane Inc
(Mr Motalane) demonstrated that
the delays in the finalisation of the answering affidavits were the
comments obtained from the
Chairperson of the Investigating Team. Due
to some novel issues in the comments received from the Chairperson of
the Investigating
Team and Khumalo’s conduct the affidavit was
not transmitted to the deponent.
[10]
In the light of the above explanation furnished by the Applicant, I
make a finding that the Applicant was
not in willful default. There
is an explanation for the Applicant’s failure to deliver the
answering affidavit and the reasons
why the Applicant was not aware
of the notice of set down, and of the order that was subsequently
granted by default on 22 October
2019.
[11]
Whatever inefficiency or negligence might have been there on the part
of the Applicant’s erstwhile
attorney (Khumalo) such
inefficiency or negligence cannot be imputed to the applicant in the
circumstances of the case.
In
Colyn v Tiger Foods Industries
supra it was held that the
defendant intended to defend the action, and that it was not his
fault that summary judgment application
was not brought to his
attention, as there was an inefficiency on the part of his attorney.
The Court further stated the following
in respect of penalising a
litigant for his attorney’s inept conduct of litigation:
“…
Even
if one takes a benign view, the inadequacy of this explanation may
well justify a refusal of rescission on that account unless,
perhaps,
the weak explanation is cancelled out by the defendant’s being
able to put up a bona fide defence which has not
merely some
prospect, but a good prospect of success
[5]
”.
Bona
fide Defence
[12]
The Applicant in its founding affidavit has succinctly set out facts
upon which a bona fide defence in the
main application is
established. On the basis of the report of the Investigating
Committee, the Applicant has been able to show
that the defence
raised has a prospect of success.
There
is a basis on which the Applicant has good prospects of success in
the main application, which is the Applicant’s bona
fide
defence outline below.
12.1
The First respondent ought not to have been enrolled for the Doctor
of Commerce (“D.Comm”) study as
she did not meet the
prerequisites for admission, which is what led her being
deregistered. The First Respondent did not
comply with the
Applicant’s general academic Rules promulgated in terms of the
Higher Education Act, as well as the institutional
statute for the
Applicant.
12.2
The Master’s in Business Administration (“MBA”)
degree that was obtained by the first respondent
was not at the level
required by the Rules for entrance into the D.Comm degree. It was a
level lower than what is required by the
Rules as it is not an
academic qualification but a professional one.
12.3
A Master’s degree, or equivalent, is an NQF level 9 degree in
terms of the South African Qualifications Authority
and the first
respondent’s MBA is an NQF level 8. This was clarified by the
Council on Higher Education through a communique
and directive issued
on 22 January 2016.
12.4
The admission of the first respondent was irregular. An independent
and objective investigation has confirmed that
the first respondent
ought to not have been admitted. As evidenced by the investigation
report, a reputable team of academics,
including the erstwhile
vice-chancellor of the applicant, have investigated the registration
of, inter alia, the first respondent,
and their findings are that the
first respondent’s enrolment flouted the applicable Rules for
admission into the D.Comm program.
12.5
The first respondent’s admission involved her husband who was
the head of the faculty which purported to
admit her into the D.Comm
degree. This is on the face of it irregular and constitutes a
conflict of interest. It was as a result
of this conflict of interest
that the first respondent was mistakenly admitted into the D.Comm
program. The first respondent’s
husband sat and assessed the
purported admissions of the first respondent when he should have
recused himself. He was also involved
in the submission of the first
respondent’s purported thesis.
12.6
The first respondent was not registered for the required number of
years for her to obtain the D.Comm degree. The
minimum number of
years that the first respondent was enrolled for is one and a half
(1.5) years which is inconsistent with Rule
G10 of the Rules of
doctoral degree of study that requires a minimum enrolment of two (2)
years for the completion of the D.Comm
degree.
12.7
Finally, the relief sought by the first respondent was incompetent ab
initio. In the main application, the first
respondent had not placed
expert evidence before the Court confirming that Rule G.60 of the
Rules of doctoral degree of study,
which deals with the requirements
for the conferment of the degree, had been satisfied. More so, this
Court is not vested with
the knowledge of assessing the quality or
lack thereof of a thesis and evaluating whether the academic rules
have been complied
with. Prior to the conferral of the D.Comm degree,
the thesis has to be accepted by an assessment panel and senate,
which will
confirm whether the candidate has fulfilled the
requirements.
12.8
Therefore, the impugned order is incompetent on the basis of, inter
alia, the first respondent having not met the
prerequisites for
admission into the D.Comm, the irregularities surrounding her
admission including the conflict of interest that
her husband as head
of the faculty which admitted her into the program posed, and the
fact that the Court was not competent to
have made such an order.
[13]
In my view the nature of the Applicant’s defence as outline in
paragraph 12 above, is such that it
establishes a prima facie basis
upon which the Applicant must be found to have shown good cause for
the order to be rescinded.
The First Respondent will not suffer any
prejudice if the Applicant is permitted to enter the fray an explain
itself as to what
let to the first respondent being deregistered for
the D.Comm program.
I
agree with the Applicant’s submission that the incongruity of
awarding such a prestigious degree to a person that does not
even
qualify for its enrolment manifestly justifies the rescission of the
impugned order.
[14]
In the result I grant the following order:
1.
The Order granted by this Court under case number 2172/2019 on 22
October 2019 per Semenya
J is rescinded.
2.
The Applicant is ordered to file an answering affidavit to the
application brought by the
First Respondent under case number
2172/2019 within 15 days from date of this order.
3.
The costs of this application shall be costs in the main application.
E
M MAKGOBA
JUDGE
PRESIDENT OF THE HIGH COURT, LIMPOPO DIVISION, POLOKWANE
APPEARANCES
Heard
on
: 18 August
2020
Judgment
delivered on
: 25 August 2020
For
the Applicant
: Adv. M Majozi
Adv.
K Raganya
Instructed
by
: Motalane Inc
c/o
Dikgati Mphahlele Attorneys
For
the Respondents
: Adv. S S Tebeila
Instructed
by
: M P Makwela Inc Attorneys
[1]
[2003] 2 All SA 113 (SCA) 2003 (6) SA 1 (SCA)
[2]
See Smith NO v Brummer NO
1954 (3) SA 352
(O) at 358
Burton v Barlow Rand
1978 (4) SA
794
(D) at 797
[3]
National Pride Trading 452 (Pty) Ltd v Media 24 Ltd 2010 (6) SA 587
(ECP)
[4]
1954 (2) SA 345
(A) at 353 A
[5]
Opcit footnote 1 at para 12