About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Limpopo High Court, Polokwane
SAFLII
>>
Databases
>>
South Africa: Limpopo High Court, Polokwane
>>
2018
>>
[2018] ZALMPPHC 2
|
|
Makwela v University of Limpopo and Another (4384/2017) [2018] ZALMPPHC 2 (6 February 2018)
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE
NO: 4384/2017
Not
reportable
Not
of interest to other judges
Revised.
6/2/2018
In
the matter between:
MOKIDI
LEBOGANG
MAKWELA
APPLICANT
and
UNIVERSITY
OF
LIMPOPO
FIRST
RESPONDENT
MINISTER
FOR HIGHER EDUCATION & TRAINING
SECOND
RESPONDENT
JUDGMENT
PHATUDI
M.G.:
[1]
This is a review application. The Applicant in this matter seeks
relief
inter alia
as
follows:-
a)
That, the First Respondent's decisions not to
recognize the First Applicant's course or modules completed at
University of South
Africa be declared unlawful and unconstitutional
and therefore liable to be reviewed and set aside.
b)
That, the First Respondent's decisions in
refusing to confer a degree of Bachelor of arts (Communication
Studies) on the Applicant
be declared unconstitutional and invalid;
c)
That, the First Respondent be ordered to confer
the degree Bachelor of Arts (Communication Studies) on the Applicant
at the next
graduation ceremony to be held by it after the granting
of this order;
d)
Further that, the Applicant be exempted from the
obligation to first exhaust any internal processes applicable, and
the
e)
Costs of application in the event of opposition
thereto.
[2]
The Application is resisted by the First Respondent only. As the
Second Respondent did not deliver opposing papers despite proper
service, it is assumed that it abides the decision of the court.
[3]
A BRIEF FACTUAL BACKGROUND:
3.1.
The Applicant, a former
b
ona
fide
registered student with the First
Respondent, registered her studies towards a degree Baccalareus
Artium ("Communications Studies").
("the degree")
in January 2011. Her allocated student number is 2011 14881.
3.2.
General rule 10 of the First Respondent ("the
University") regulates the maximum duration of prescribed
academic curricular
set for each registered student at the
university. In an instance where a 3 year degree duration is
prescribed, the maximum period
permissible is 5 years, while a 4 year
qualification, the maximum duration is 6 years to complete the
course.
3.3.
It is alleged that the Applicant in 2014
exhausted the 4 years of the 5 years maximum duration for her degree.
In that grace period,
she then in January 2015 sought an indulgence
or call it permission to enroll for the 2 outstanding namely, modules
media Studies
301(MDST 301) and Media Studies 302 (MOST 302) at the
University of South Africa ("Unisa"). The purpose of the
indulgence
was that on completion she would present to the First
Respondent the 2 modules due in order to satisfy the academic
requirements
for the degree.
3.4.
Pursuant to
the request mentioned, the First Respondent's Registrar granted the
request in a letter issued to the Applicant, attached
to her founding
affidavit.
[1]
("FA").
In granting the approval, Unisa was the institution nominated, and a
prescribed fee for recognition of such modules
was levied. I propose
to deal with the implications thereof later in this Judgment.
3.5.
Acting on
the permission grated, the Applicant proceeded to register the afore
mentioned modules/courses at Unisa during 2015/16
academic year. The
2 modules/courses were achieved by December 2016
[2]
,
even though it seems that the 2 modules/course were in fact achieved
in the course of May and October 2016, respectively.
3.6.
In early March 2017, the Applicant in
anticipation to square up her outstanding courses approached the
university to present, as
permitted, the achieved modules/courses in
order to fulfill the requirements for the degree so as to have it
conferred upon her
during the 2017 Autumn graduations. She was,
however, orally informed by one of the officials of the University
that she could
not graduate in 2017 due to recent changes in the
curriculum over the past year or so which were then introduced as HST
011/012,
HCOB 021/022. The Applicant subsequently sought legal
counsel to intervene on her behalf.
3.7.
In response
to the Applicant's attorneys' letter dated 29 March 2017
[3]
,
the registrar on behalf of the First Respondent advanced as reasons
for her exclusion following:
"In case of a 3 year
qualification, the maximum duration is 5 years and a 4 - year
qualification has to be completed within
a maximum of six years.
Seeing that she had already exhausted 4 years of a 5 year duration
for the qualification she was enrolled
for, the student requested
permission to register for the two outstanding modules (MDST301 AND
MOS 302) at Unisa
with the understanding that
she would present them to complete the qualification. Permission was
granted to this effect.
The student was away
from the university in 2015 and 2016 academic years, for modules that
she was supposed to have completed in
2015. Only in 2017, did the
student bring forth the two modules completed at Unisa.
Parallel to all these
developments, the University as required by the
Higher Education Act
101 of 1997
and the recently
approved Higher
Qualification Sub - Framework imperatives changed the
curriculum of B.A (Communication Studies)
programme, which means the old qualification for which the student
was enrolled had been
phased out and is no longer on offer
....."(owned emphasis)
[4]
Aggrieved by the response received and the reasons proffered by the
First Respondent's Registrar as grounds for her exclusion
from
ensuing graduations ceremony, the Applicant launched the present
application .
[5]
The crisp issues are whether the decision sought to be reviewed is
rational, and whether did not materially violate the Applicant's
rights, not only to fair administrative action, but also to her right
to freedom of education as guaranteed by the Constitution
and the
Bill of Rights, and whether that the changed curricular could operate
retrospectively to the student's prejudice.
[6]
I consider it apposite to approach these issues against the relevant
facts canvased in this matter. The following factors are,
however,
found to be common cause:
6.1
The Applicant is an erstwhile registered student
at the First Respondent's campus from 2011 to 2014. She was
registered for courses
in a curricula approved for B.A (Communication
Studies). This is a prescribed 3 year course.
6.2
Written permission was granted to her pursue the
outstanding modules/courses at Unisa, which she finalized by December
2016.
6.3
The permission obtained was at a time when the
University already "recently approved Higher Education
sub-framework imperatives
that changed the curriculum of the degree
in question". These changes effectively made the previous
curricular followed by
the Applicant obsolete as it was, "no
longer on offer".
6.4
The Applicant did in fact achieve the 2
outstanding modules/courses for which permission was given to
complete at Unisa in October
2016. The results awaited in order to
fulfill the Applicant's old curriculum towards the degree, were only
released by Unisa on
08 March 2017. A closer scrutiny of Annexure
"MLM3" reveals that the 2 modules/courses were achieved
during May and October
2016, respectively.
[7]
The reasoning by the university's Registrar that " only in March
2017, did the student bring forth the 2 modules completed
at Unisa"
is therefore with respect, , spurious, to say the least.
[8]
Furthermore, the reasoning postulated that "the degree will be
conferred when all required number of appropriate credits
has been
accumulated for a specific qualification" (Rule G35.2) could not
have been intended to operate retrospectively so
as to render the
Applicant's achievement under the previous dispensation redundant and
therefore obsolete. To hold otherwise would
lead to manifest
absurdity.
[9]
The permission granted could possibly be criticized on one or more of
the following considerations:
9.1
It is a wide blanket covering document with no
specific limitations on the time truncated within which the Applicant
would be obliged
to complete the 2 modules/ courses offered by Unisa
in respect of which permission was granted;
9.2
The said permission failed to implore upon the
Applicant about the existence of or the imminent existence of the
so-called "approved
Higher Education Qualification
Sub-Framework" imperatives that changed or were to change the
old BA (Communication Studies)
curricular and to achieve the
modules/courses within specified time lines.
9.3
Similarly, the permission did not call upon the
Applicant precisely when to "submit the original copy of your
(her) academic
record on completion." Needless to mention, the
document is for that matter to computed to compute its effective
date. This
document in the main created a culpable impression on the
Applicant's part that the approval granted was in line with existing
University rules and therefore genuine and good on its face.
[10]
The relevant document, contextually, created in my view, a legitimate
expectation to her that the degree shall upon fulfillment
of the
outstanding modules/courses under the old curricular be conferred.
[11]
The decision by the university to refuse to issue a degree
certificate to the Applicant after successfully achieving the 2
modules/courses, clearly, materially and adversely affected her
rights to her legitimate expectation.
[12]
Assuming for a moment that the university knew or reasonably ought to
have known of the new changes or imminent changes that
would
materially and adversely impede the Applicant from acquiring the
degree sought when introduced, it remains obscure as to
why it failed
to call on the Applicant and perhaps other mutually affected students
involved in the changes, to make representations
as required by law.
(See
Section 3(i) (ii) of PAJA)
[4]
The
First Respondent did not avail itself of the recourse in Section 3(i)
(ii) of PAJA as it had information at its disposal about
the effected
changes in the Curricular before it ordained the permission for
Applicant to complete her studies at Unisa.
[13]
Against the contents of Annexure "MLM2 ", (the letter of
permission) the university is furthermore by operation of
the
doctrine of estoppel precluded from relying on the true facts which,
in any event, were not drawn to the applicant's attention
when
permission was granted. The letter of permission already indicated in
Paragraphs 10(10.1 - 10.3)
supra
is wanting in detils and
precision.
In
any event, the First Respondent did not deny the existence of the
permission in its answering affidavit.
[5]
("AA")
[14]
The averment by the university that while away in 2015 Applicant
failed to renew her registration defeats all logic. This is
particularly so that she was already released and permitted to pursue
her further studies at Unisa. She could not have reasonably
been
expected to labour for the two universities simultaneously,
academically, in the same year, The results which show that she
obtained the 2 courses in 2016 are not dispute either.
[15]
The averment by the First Respondent that Applicant by not enrolling
at its institution in 2015 amounted to "interruption"
of
her further studies is untenable. There could not have been an
"interruption" in her continued studies regard being
had to
the written permission given to her by the same institution to
accomplish her studies under the old rules.
[16]
The rule governing enrolment under new rules provide that:-
Rule 4.2.1:
"Where a Rule
relating to the composition of a module/course or programme is
amended, a student who began his/her studies under
an old rule and
did not interrupt his/her studies, may complete his/her programme
under the old rule, except where Faculty Rules
determine otherwise,
subject to the stipulations under Rule G4.2.2.2 and G4-2.2.3"
[17]
But, when does "interruption" of studies occur?
Rule G.4.2.2
provides
that:-
"A student
interrupts his/her studies when he/she:
(a)
........................
(b) fails to attain the
requisite credits at a specific year level and in all events, to the
stipulations under Rule G25.1 and G26?
[18]
The real issue in this instance is whether or not the Applicant,
following the type of permission granted to her to complete
her
studies at Unisa during the subsistence of the Old curricular or
rules, "interrupted" her studies within the purview
of the
university rules, in particular Rule G4.2.2.2.2
In
my view, it cannot be said that she did "interrupt" her
studies for the reasons outlined in Paragraphs 10 to 16, above.
[19]
To that extent, I find the provisions of Rule G4.3.1 which provides
that
"where the composition of a
programme changes substantially, the student shall be required to
register under the new programme,
whether or not such student has
interrupted his or her studies"
to have
materially and adversely affected the Applicant's right to fair
administrative action. The rule and what it seeks to achieve
is also
found not only irrational but also grossly unreasonable.
[20]
The First Respondent should have in, my own opinion, still have made
recommendations through the relevant faculty and Senate,
and
formulated provisional measures to enable the Applicant and likewise
affected students who commenced their studies under the
old
programme, to complete their studies according to the new curricular
, subject to certain terms and conditions attached. Rule
G4.3.2 of
the General Rules is clear in this regard. Failure to have had
recourse to this rule, read with Rule G4.2.2.3, which
authorizes the
Senate at the recommendation of the Faculty concerned in "exceptional
circumstances", permit a student
who allegedly "interrupted"
his/her studies under such conditions as it may determine, to
continue his/her studies under
the old rule, renders the decision
affecting the applicant not to confer her degree unconstitutional and
invalid. The First Applicant
failed to apply its mind properly if it
did regarding these remedial measures.
[21]
The new rule, whether or not correctly applied, cannot be said to
have had retrospective effect in operation. If applied
retrospectively,
it could lead to a manifest absurdity piercing the
veil of fair administrative justice the Applicant is entitled to. The
decision
to deny the Applicant not to obtain the degree is not only
unlawful and irrational, but also violates the applicant's
fundamental
right to freedom of education as provided for in the Bill
of rights. Such conduct is, in short, clearly unconstitutional and
invalid.
[22]
In the premise, the court is satisfied that the Applicant has made
out a case on the merits, regard being had to the balance
of
probabilities which weigh in favour of the Applicant in the
circumstances. The Respondents , conversely, did not demonstrate
on
paper what potential or actual prejudice would it suffer if in
"exceptional circumstances" referred to in Rule G4.2.2.3,
the degree aspired for, is conferred on the Applicant. Accordingly,
the application ought to succeed, as I make the following Order:
(a)
The First Respondent's decision in refusing to
confer the degree Bachelor of Arts (Communication Studies) on the
Applicant is reviewed
and set aside;
(b)
The First Respondent's decision not to recognize
and accept the Applicant's courses (MOST 301 and MOST 302) obtained
at Unisa is
declared unlawful, unconstitutional and invalid.
(c)
The First Respondent is ordered to confer upon
the Applicant a degree in Bachelor of Arts (Communication Studies) at
the next graduation
ceremony (2018) after the granting of this order;
(d)
Further that, the Applicant be and is granted
exemption from having to first exhausted the First Respondent's
internal procedures
and remedies applicable.
(e)
Further that, the First Respondent is ordered to
pay the costs of application.
_________________
M.G
PHATUDI
JUDGE
OF THE HIGH COURT
,
LIMPOPO
DIVISION POLOKWANE
REPRESENTATIONS:
1.
Counsel for Applicant: Adv S Tebeila
Instructed
by: M.P Makwela Attorneys
POLOKWANE
2.
Counsel for 1st Respondent: Adv M.S Monene
Instructed
by: J.S Talane Attorneys
POLOKWANE
3.
Date of Hearing: 23 NOVEMBER 2017
4.
Date Delivered: 06 FEBRUARY 2018
[1]
Annexure "MLM2 P42 Paginated Index
[2]
Annexure :MLM3, P43, "FA
[3]
Annexure "MLM5, P47, "FA
[4]
Promotion of Administrative Justice Act 3 of 2000 ("PAJA")
[5]
Page 62, Para 9.2 and Para 10 paginates index - AA