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[2019] ZAECMHC 12
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Nyume and Another v Walter Sisulu University and Others (580/19) [2019] ZAECMHC 12 (20 February 2019)
IN THE HIGH COURT
OF SOUTH AFRICA
(EASTERN CAPE
LOCAL DIVISION, MTHATHA)
CASE NO:
580/19
In the matter
between
OLWETHU
NYUME & ANOTHER
Applicants
and
WALTER
SISULU UNIVERSITY & 16 OTHERS
Respondents
EX-TEMPORE
JUDGMENT
MBENENGE JP
[1]
The applicants are two of about 74 students registered with the
Walter Sisulu University Faculty of
Health Science, studying towards
the attainment of a Bachelor of Health Science in Medical Orthotist
and Prosthetist. Their
registration with the University and
choice of the degree towards which they are studying followed upon
their
bona fide
belief that the degree was duly accredited,
but alas, that has not come to pass. They claim that they
learnt way back in
2018 that the degree was not accredited.
[2]
The applicants and other students concerned have been entertaining
the hope that at some point in time
the University would rectify the
situation and ensure that there were no adverse consequences for the
students. Anyone finding
oneself in the applicants’
situation would be concerned. The consequences of non-accreditation
are too ghastly to contemplate.
Despite the uncertainty, the
university has continued registering the students it enrolled during
2016 and 2017 towards a non-accredited
degree.
[3]
The applicants now seek, by way of urgency, a rule
nisi
returnable on 12 March 2019 calling upon the respondents to show
cause, if any, why the following order should not be made final:
“
2.1
The decision of the 1st, 4th and 5th respondents in admitting and
enrolling the applicants as students
registered in the faculty of
health, studying Bachelor of Health Science in Medical Orthotist and
Prosthetist is reviewed, corrected
and set aside.
2.2
That the decision of the 1st, 4th and 5th respondents in admitting
and enrolling the applicants
as students without accreditation by the
7th and 8th respondents, is reviewed, corrected and is declared
unlawful and unconstitutional
and is accordingly set aside.
2.3
The 1st respondent who is without accreditation is interdicted,
and/or prohibited, and/or
restrained from advertising and/or offering
the Bachelor of Health Sciences in Medical Orthotist and
Prosthetist
”
.
[4]
They have cited, as respondents, quite a number of functionaries who
may have an interest in the outcome
of these proceedings. These
include the Minister of Higher Education and Training, the Council
for Higher Education and the
South African Qualifications Authority.
For now, the applicants seek an order that, pending the return day,
the University
be restrained from offering the Bachelor of Health
Sciences in Medical Orthotist and Prosthetist.
[5]
The application does not purport to be a class action. Certain
decisions are being challenged, yet it
is not clear from a reading of
the papers as to precisely what the basis for challenging those
decisions is. This is especially
so if one has regard to the
contractual relationship that exists between the University and the
students concerned.
[6]
The requisites for the grant of an interlocutory interdict are:
(a)
a
prima
facie
right;
(b)
a well-grounded apprehension of irreparable harm if the interim
relief is not granted and the ultimate
relief is eventually granted;
(c)
balance of convenience in favor of the granting of the interim
relief; and
(d)
the absence of any other satisfactory remedy.
[7]
Mindful of this, in their quest for interlocutory interdictory
relief, the applicants have alleged that
there is no alternative
remedy, save the one they are seeking before this court. They
go on to say they harbor an apprehension
that any accreditation that
may eventuate would not have retrospective effect. How they
arrive at this conclusion is not
altogether certain from a reading of
the papers.
[8]
They furthermore say the balance of convenience favors the grant of
the relief they are seeking.
As far as I could have
ascertained, nothing from a reading of the papers resembles an
allegation that they have a
prima facie
right.
[9]
The University is not oblivious to the challenges besetting it in
relation to the degree in question.
It has, in so many words,
confessed that registering students towards the degree in question in
circumstances where the first respondent
is not accredited, is
regrettable and should never have taken place, hence there was no
intake of further students during 2018
and 2019. The university
has set in motion steps to remedy the parlous situation in which the
students, including the applicants,
find themselves.
[10] In
the affidavit deposed to by Mr Khaya Maphinda, Registrar in the
employ of the University, filed in opposition
to these proceedings,
it is stated, in paragraph 10:
“
The 1st
respondent, has adopted a view that those students have paid fees and
have been given tuition and have a lawful expectation
to graduate.
It was a consequence of the aforementioned that the Department of
Education and Training and the Council for
Higher Education and the
Health Professions Council of South Africa and the Durban University
of Technology and the 1st respondent,
brokered an agreement that is
acceptable to all of those parties. That agreement is
that the Durban University of Technology
will assess the program or
degree presented by the 1st respondent. They have an accredited
program themselves. If they
are satisfied that the degree
presented by the 1st respondent is compatible with their accrediting,
with their accredited degree,
then in those circumstances students
graduating from the 1st respondent will graduate with a Durban
University of Technology accredited
degree. An agreement has
been reduced to writing to deal with the practicalities of this
arrangement. All of the students
who are enrolled in their
third and fourth years of study are aware of the aforementioned.
Once the agreement is signed,
the university the Durban University of
Technology will complete their inspection and as I have already
stated the 1st respondent
is not admitting any new students to that
degree at present. As a parallel process the 1st respondent has
applied to the
council for higher education for accreditation of the
degree
”
.
[11]
Besides making contentions on the merits of the application, the
University has raised non-joinder of all the other
students enrolled
for the pre- final and final years of study of the degree, who are
not parties before me. Were the relief
sought in paragraph 2.3
of the Notice of Motion to be granted, says the University, the other
students who seem content with the
situation would be materially
affected by the relief, the upshot of which is to interdict the 1st
respondent from offering the
course of study. There has indeed
been a non- joinder of the majority of students who are not parties
to this application.
[12] I
am, as a matter of law, precluded from even considering whether a
case has been made out for the grant of the
interlocutory interdict
being sought. I have no discretion to exercise, until all the
necessary parties are before this Court.
In
Khumalo v
Wilkins
(1972 (4) SA 407
(N) 457A – B), Milne J said the
following:
“
Once it is
shown that a party is a necessary party in the sense that he is
directly and substantially interested in the issues raised
in the
proceedings before the court and that his rights may be affected by
the judgment of the court, the court will not deal with
those issues
without such a joinder being effected and no question of discretion
nor of convenience arises. In my view that
is what was decided
in
Amalgamated
Engineering Union v Minister of Labor
1949
(3) SALR 637
(A) 659
”
[13] It
follows from what I have mentioned that I am not able to deal with
any of the issues raised, no matter how attractive
they look, until
there has been a joinder of the other students concerned.
[14] The
only outstanding issue is that of costs. As I have said, the
application does not purport to be founded
on section 38 of the
Constitution, namely, a class action. It is also not founded on any
of the other provisions of the Constitution,
thus far. The only thing
that one can make out is that it is based on contract. Had the
application been founded on the provisions
of the Constitution, one
would have been tempted to say, by reason thereof that they are
championing a constitutional cause of
action even if they have not
been successful, costs should not follow the result. In the
instant matter there is no reason
why costs should not follow the
result, at least insofar as these proceedings relate to what happened
yesterday.
[15] The
order that I make therefore is the following.
(1)
There has been a non-joinder of other students registered for the
degree, Bachelor of Health Science in Medical
Orthotist and
Prosthetist in the faculty of Health Science, Walter Sisulu
University, Nelson Mandela Drive Campus Mthatha, during
the current
year.
(2)
In the event that the applicants are still bent on pursuing this
application they are directed to cause a
set of the papers generated
in this application to date, to be served upon the students who have
not been joined thus far, within
ten days from today.
(3)
The application is, pending the joinder of the outstanding parties,
postponed sine die.
(4)
The applicant shall pay costs occasioned by yesterday’s hearing
on the opposed scale, jointly
and severally, the one paying the other
to be absolved
.
MBENENGE
JP
JUDGE
PRESIDENT OF THE HIGH COURT
For the
applicants
: Mr
Hinana
For the
respondents :
Mr Hobbs
Date
heard
: 19 February 2019
Date
Delivered
:
20 February 2019