Brief Summary

Contract — Academic agreement — Dispute over dissertation assessment — Plaintiff, a former student, claimed he fulfilled requirements for M Med degree, while Defendant alleged failure of dissertation — Court examined the nature of the agreement between the parties, including institutional rules — Supervisor's approval of dissertation submission and subsequent failure to compile required reports led to confusion regarding assessment — Holding that the Plaintiff's dissertation was improperly failed due to the Supervisor's non-compliance with university rules, and that the Plaintiff had met the necessary academic requirements for the degree.

Comprehensive Summary

Summary of Judgment

1. Introduction

The proceedings were a High Court trial concerning a former postgraduate medical student’s entitlement to be awarded an M Med degree after completing a dissertation process governed by university rules. The plaintiff, Anil Anirudhra, sued the defendant, Sefako Makgatho Health Sciences University (which incorporated the Medunsa Campus of the University of Limpopo with effect from 1 January 2015).

The matter originated as an application brought by the plaintiff against the then University of Limpopo (Medunsa Campus) after the university treated his dissertation as failed. On 13 September 2016, that application was referred to trial by court order. In terms of that order, the founding affidavit stood as a simple summons and the answering affidavit as a notice of intention to oppose, and the plaintiff was directed to file a declaration within 45 days.

The general subject-matter of the dispute was whether the university, acting through its structures and functionaries (including the supervisor, the Higher Degrees Committee, and the Executive Dean), was contractually obliged to treat the plaintiff’s dissertation as passed and to confer the degree, and whether the university’s refusal could alternatively be attacked by way of review as administrative action.

2. Material Facts

It was common cause that the plaintiff was enrolled in the Department of Obstetrics and Gynaecology and submitted a dissertation in partial fulfilment of the requirements for the M Med degree under the university’s rules contained in the 2011 Calendar. The university rules provided a mechanism for examination of a dissertation by internal and external examiners, the compilation by the supervisor of a consolidated report reflecting the examiners’ views, and the calculation of a final mark as the average of the marks awarded by the assessors.

The plaintiff was supervised by Professor Monokoane, who was also Head of Department. The plaintiff was also assisted by the defendant’s Head of Research, Professor Towobola. On 25 May 2009, Professor Monokoane approved the dissertation for submission to examiners. The dissertation was then assessed by one internal examiner and two external examiners. One external examiner (Professor P H Wessels) awarded 55% and passed the dissertation; the internal examiner (Dr Mashamba) awarded 54% and passed it; the other external examiner (Professor E J Buchman) awarded 45% and failed it, recommending extensive revisions.

Under the applicable rules, the supervisor was required to compile a single report reflecting the views of all examiners within a stipulated time, and to channel the matter appropriately (in this case to the Executive Dean, given that the supervisor was also Head of Department). The supervisor did not compile the required consolidated report. Instead, on 28 September 2009, he sent an email indicating that the dissertation had been marked and failed and that a final report on corrections and concerns would be highlighted.

The rules allowed the Senate to seek a second external opinion (once only) where an external assessor awarded a mark below 50%. The matter proceeded on that basis: the plaintiff revised the dissertation and it was resubmitted to Professor Buchman. On 5 April 2010, Professor Buchman then awarded a mark of 60%, recording that the dissertation was satisfactory for the M Med subject to minor corrections to the supervisor’s satisfaction.

On 10 May 2010, the Chairperson of the Higher Degrees Committee, Professor Hay, wrote to the plaintiff stating that he had successfully completed the research requirements for the M Med degree and passed the final examination, but would have to wait for graduation in early 2011 to formally graduate due to training-time requirements. In oral evidence, Professor Hay stated that the letter was written at the plaintiff’s request and was not intended as an official university communication; however, Professor Hay’s evidence also confirmed his understanding that the plaintiff had passed the dissertation and fulfilled the requirements for the degree.

After the re-examination and pass mark from Professor Buchman, the supervisor nonetheless adopted the position that, because of concerns about the raw data underlying the clinical study, the plaintiff should fail the dissertation unless raw data were produced. The Higher Degrees Committee recorded that it was dealing with a situation where the candidate was “failed by the Supervisor and passed by the co-supervisor and two external examiners,” and recommended steps including that the supervisor could not retrospectively fail the candidate after approving submission, and that the candidate should submit evidence of raw data. The supervisor persisted in requiring raw data. Eventually, the matter received the attention of the Executive Dean, and the Higher Degrees Committee resolved on 17 February 2011 that patient files and operative notes were fundamental to authenticating findings and that the Executive Dean would handle the matter.

As to disputed factual aspects, there was a sharp disagreement between the plaintiff’s position (as advanced in evidence) that there were no anomalies requiring raw data verification, and the university’s position that anomalies existed and verification was required. The court expressly considered it unnecessary to decide which version was correct in order to determine the contractual dispute. The plaintiff did not testify, and evidence was led from, among others, Professor Towobola and Dr Mashamba for the plaintiff and Professor Hay, the Executive Dean, Professor Holland, and Professor Monokoane for the defendant. Professor Holland went so far as to label anomalies “fraudulent,” but conceded in cross-examination that he might have erred; the defendant did not plead fraud and the court found the evidence did not warrant such a conclusion.

3. Legal Issues

The first central legal question was whether the relationship between the plaintiff (as enrolled student) and the university was governed by contract, and if so, what the terms of that contract were, particularly concerning the dissertation examination process and the role of the supervisor after approving submission for examination.

The second legal question was whether, on a proper interpretation of the incorporated university rules, the defendant breached the contract by refusing to treat the dissertation as passed and by failing to follow the prescribed process (including the supervisor’s failure to compile the required consolidated report, and the subsequent attempt to “fail” the dissertation after examiner marks supported a pass).

A third legal question arose only as an alternative claim: whether the defendant’s refusal to confer the degree constituted reviewable administrative action, or whether it was merely the exercise (or purported exercise) of contractual rights and obligations not susceptible to administrative-law review.

The dispute thus primarily concerned the application of law to largely common cause facts, together with interpretation of the contractual terms (the university rules incorporated into the registration agreement), and an assessment of whether the defendant’s later stance could lawfully affect the outcome under those rules. To the extent that allegations of “anomalies” or possible fraud were raised, the court treated those as not determinative on the pleadings and evidence as presented.

4. Court’s Reasoning

The court accepted the line of authority recognising that the relationship between a student and a university is grounded in contract, citing earlier decisions that treat admission and enrolment as giving rise to contractual obligations. On the facts, the parties’ contract was held to be contained in the Academic Registration Form, which included an undertaking by the plaintiff to familiarise himself with, and subject himself to, the university rules and regulations; those rules were therefore treated as incorporated contractual terms.

In interpreting the relevant rules, the court applied the interpretive approach articulated in Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA), emphasising that interpretation is objective and entails consideration of text, context, purpose, and sensible meaning. Against that background, the court reasoned that when a supervisor approves a dissertation for submission to examiners, it necessarily implies that the supervisor regards it as of sufficient quality to achieve at least a pass. The rules, properly construed, did not require or permit a supervisor to revisit the dissertation after external and internal examination in a manner that would effectively supplement, detract from, or override the examiners’ marks and comments.

The court treated the supervisor’s contractual role after examination as procedural and administrative: the supervisor was obliged to compile a single report reflecting the views of all examiners within the stipulated time. The supervisor’s failure to comply with this obligation was central to the court’s conclusion that the defendant did not adhere to its own contractual framework. On the marks presented, the plaintiff’s dissertation achieved an average consistent with a pass (the judgment records an average of 56%) with only minor revisions required after the revised submission was favourably assessed.

The court further concluded that, had the supervisor complied with the rules, the Higher Degrees Committee would have recommended conferral of the degree after minor corrections, and the Executive Dean would have been positioned, in terms of the rules, to take the consequential steps contemplated (including the signing of HPCSA Form 19 as described in the rules). The later insistence on raw data verification and the attempt to treat the dissertation as failed were treated as inconsistent with the contractually prescribed process once the dissertation had been approved for examination and then assessed in the manner contemplated by the rules.

On the defendant’s reliance on alleged “anomalies” and raw data concerns, the court made an evaluative judgment that these concerns were raised only after the supervisor had approved submission and the examination process was underway, and that, on the pleaded case, such concerns could not retrospectively justify a failure outcome within the contractual scheme as interpreted. The court noted that the position could have been different had fraud been detected and properly raised at the appropriate stage, but emphasised that fraud was not pleaded and that the evidence did not justify such a finding.

Regarding the alternative review claim, the court held that it lacked merit because the source and content of the university’s power in this context arose from the contract and the common law rather than from an exercise of public power implementing legislation. Although reference was made to the defendant’s institutional statute and its empowering provisions, the court reasoned—by analogy to Cape Metropolitan Council v Metro Inspection Services (Western Cape) CC and Others 2001 (3) SA 1013 (SCA)—that the terms governing the dispute were not statutorily prescribed and the university was not acting from a position of superiority in implementing legislation. The refusal to award a pass mark and confer the degree was therefore characterised as the purported exercise of a contractual right, not administrative action, supported by the approach in Government of the Republic of South Africa v Thabiso Chemicals (Pty) Ltd 2009 (1) SA 163 (SCA) and South African National Parks v MTO Forestry (Pty) Ltd and Another 2018 (5) SA 177 (SCA).

5. Outcome and Relief

The court upheld the plaintiff’s main contractual claim and concluded that the defendant breached the contract by not following the contractual rules governing the dissertation assessment process and by refusing to confer the degree notwithstanding the examination outcome as recognised in the judgment.

The court granted an order directing the defendant to take all steps necessary to award and confer the M Med degree on the plaintiff.

The defendant was ordered to pay the plaintiff’s costs of suit, including the costs of two counsel where employed.

Cases Cited

Schoeman v Fourie 1941 AD 125.

Sibanyoni v University of Fort Hare 1985 (1) SA 19 (Ck).

Mkhize v Rector, University of Zululand, and Another 1986 (1) SA 901 (D).

Lunt v University of Cape Town 1989 (2) SA 438 (G).

Tyatya v University of Bophuthatswana 1994 (2) SA 375 (BG).

Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA).

Cape Metropolitan Council v Metro Inspection Services (Western Cape) CC and Others 2001 (3) SA 1013 (SCA).

Government of the Republic of South Africa v Thabiso Chemicals (Pty) Ltd 2009 (1) SA 163 (SCA).

South African National Parks v MTO Forestry (Pty) Ltd and Another 2018 (5) SA 177 (SCA).

Legislation Cited

Higher Education Act 101 of 1997, section 24(1).

Institutional Statute of Sefako Makgatho Health Sciences University (published in Government Gazette No 40334 of 7 October 2016), section 65(1).

Rules of Court Cited

No specific Uniform Rules of Court were expressly cited in the judgment; the matter was referred to trial by court order setting out procedural directions (including the treatment of affidavits as pleadings).

Held

The court held that the legal relationship between the plaintiff and the university was contractual, with the contract incorporating the university’s rules and regulations through the Academic Registration Form. On an objective interpretation of those rules, once the supervisor had approved the dissertation for submission and the dissertation had been assessed by the examiners with an outcome supporting a pass (subject to minor corrections), the supervisor was not permitted to retrospectively undermine that outcome by insisting on additional verification requirements outside the prescribed process.

The court further held that the defendant’s refusal to pass the dissertation and confer the degree constituted a breach of contract, and that the plaintiff was entitled to an order compelling the university to take steps to award and confer the degree. The court rejected the plaintiff’s alternative attempt to frame the refusal as reviewable administrative action, finding that the university was acting within a contractual setting rather than exercising public power in a manner susceptible to review.

LEGAL PRINCIPLES

A student’s relationship with a university, arising from enrolment and governed by agreed registration documentation, is treated as a relationship founded in contract, and the university’s rules and regulations may form part of that contract where incorporated by reference.

In interpreting incorporated institutional rules forming part of a contract, the interpretive approach requires an objective assessment of language, context, and purpose, preferring a sensible meaning consistent with the apparent function of the rules, in line with Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA).

Where university rules prescribe a dissertation examination process involving internal and external examiners, and a procedural role for a supervisor (including the compilation of a consolidated report reflecting examiners’ views), those rules may not be construed to permit a supervisor, after approving submission and after the examiners have assessed the work, to effectively re-adjudicate the dissertation in a manner that overrides the examiners’ assessment outside the established process.

A university’s refusal to confer a degree, where the dispute turns on compliance with contractually incorporated rules rather than the implementation of legislation or the exercise of public power, is not necessarily administrative action and may fall outside administrative-law review, being characterised instead as the exercise (or purported exercise) of contractual rights and obligations, consistent with the approach adopted in the cited Supreme Court of Appeal authorities.

Anirudhra v Sefako Makgatho Health Sciences University (38887/2013) [2019] ZAGPPHC 1044 (11 March 2019)