About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 925
|
|
Inscape Education Group (Pty) Ltd and Another v South African Council for the Architectural Profession (37129/16) [2016] ZAGPPHC 925 (23 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NUMBER:37129/16
DATE:
23/9/16
In
the matter between:
INSCAPE
EDUCATION GROUP (PTY)
LTD
FIRST APPLICANT
MICHAEL
VAN
NIEKERKI
SECOND APPLICANT
and
THE
SOUTH AFRICAN COUNCIL FOR
THE
RESPONDENT
ARCHITECTURAL
PROFESSION
JUDGMENT
TLHAPI
J
[1]
This application was brought by way of: urgency for the following
relief:
"2.
That
a
mandamus be issued
as
against the respondent
in the following terms:
2.
1 That the respondent's
validation committee shall within
5 days
of the
granting of this order, finalize their report and recommendations
in respect of the Validation visit in respect of the First Applicant;
2.2
That the Respondent's
Board
shall
within 5 days,
after the period
defined
in
2.
1 above make
a
final decision in respect
of the validation of the relevant
courses
presented
by the First Applicant;
3.
That the First Respondent
shall register
the
Second Applicant
onto their system
as
a
candidate
draughtsperson
within 5 days
of the granting
of this order;
4.
That the First
Respondent
shall
register
all of the First Applicant's successful
graduates
onto their system,
in
the appropriate
field;
5.
Costs of
Suit, such costs to include
the
costs
consequent
upon the employment
of two counsel;
The
application was served on the respondent and issued on 10 May 2016
and it was opposed.
[2]
The founding affidavit was deposed to by Ms Helen Louise Buhrs "Ms
Buhrs'', the principal and managing director of the
applicant. The
applicant is duly registered with the Department of Higher Education
and Training as a Private Higher Education
Institution that offers
educational programmes in the architectural and related professions.
The respondent, is a regulatory body
established in terms of the
Architectural Profession Act 44 of 2000 ("the Act") and as
appears in the preamble to the
Act, is responsible 'for the
registration of professionals, candidates and specified categories in
the architectural profession;
to provide for the regulation of the
relationship between the South African Council for the Architectural
Profession and the Council
for the Built Environment'. In terms of
section 13 of the Act and subject to
sections 5
and
7
of the
Higher
Education Act 101 of 1997
the Council of the respondent is
responsible for 'conducting accreditation visits to any educational
institution which has a department
school or faculty of
architecture'. The applicant is one such institution that requires
validation from the respondent in the programme
it offers, resulting
in
the Higher Certificate in Architectural Technology. The
programme which is the subject of this application received full
accreditation by the Council of Higher Education in a letter dated 17
September 2015.
[3]
Ms Buhrs averred that the respondent's Validation Board had at the
end of 2014 and on its validation visit recommended a conditional
validation of the programme which is the subject of this application.
The recommendation was not supported at a subsequent Council
meeting
and in early January 2015 such conditional validation was withdrawn
and no reasons were given for this decision. During
September 2015
the respondent was
requested
to conduct a validation visit as required by legislation. The
respondent indicated in an email dated 8 October 2015 that
the matter
would be discussed at the Education Committee meeting on 30 October
2015. A request was made on 14 October 2015 on behalf
of the
applicant to be provided with an agenda for the meeting in an effort
to determine and understand what needed to be discussed
and decided
upon at such meeting. On 17 November 2015 respondent wrote:
"2.
The......
.
"SACAP" has
carefully
considered
the conditional
validation
which
was granted
by its
Validation Panel
on
3
December
2014 and
decided
that it was not
appropriate
to award
conditional
validation status.
3.
To this end
SACAP resolved
to grant
lnscape
Education
Group deferred
validation pending
a
full
validation
visit.
4.
SACAP
hereby
requests
lnscape
Education
Group to propose
three
(3) suitable
dates in early
2016
whereupon
a
full
validation
visit will be
conducted"
[4]
In a letter dated 20 November 2015 from the applicant's attorneys the
following dates were suggested as dates for the Validation
visit,
20
th
, 21
st
26
th
27
th
and
28 January 2016. The dates were not convenient for the panel and the
validation visit was moved to 22 and 23 February 2016.
The validation
visit would be conducted at the applicant's head office situated in
Pretoria. Furthermore, in the same letter and
also relevant to this
application and, among other requests, the respondent was requested
to confirm the following:
"2.1
That the current reference to the withdrawal of validation for
lnscape on the SACAP
website be removed
and replaced
with
a
validation
status;
2.2
That any communication
presented
to
the public
including,
but not limited to
prospective
students
of INSCAPE,
include
reference to INSCAPE'S
current
deferred
validation status.
2.3
That students
who were enrolled at INSCAPE
in the Higher
Certificate in Architectural
Technology in 2013,
2014 and 2015 will be
considered
for registration
as candidate
draughtsmen
at
SA
CAP in lieu
of
the inappropriate withdrawal
of the prior
validation status;
2.4
That permission
be granted
by
SA
CAP to INSCAPE
to communicate
the
deferred
validation status to its current students and
alumni
from 2014 and 2013 respectively;"
[5]
In response to the above letter the respondent replied on 3 December
2015:
"
2.
Please note the following
confirmations:
2.
1
SACAP
will
publish
the deferred
status.
2.2
Same
as above;
2.3
Registration
for eligible students
from
the Pretoria
Campus
ONLY
as
it was
the site that attained
Conditional
Validation;
VALIDATION
VISIT
3.
1 In terms of Section
13
of the Architectural
Act,
2000
we hereby
request
that you furnish SACAP with the valid CHE and
SAQA certificates prior
to the visit. SACAP undertakes
a
visit under the
requirements
of
the Purple Book."
Ms
Buhrs averred that this approach of dealing with only the Pretoria
Campus was new as the validation visits for all its campuses
were
conducted at its Head Office in Pretoria. They nevertheless decided
to get the validation process for the Pretoria campus
determined.
After conclusion of the Validation visit the respondent failed to
comply with clauses 7.6 and 7.7 of the Purple Book,
which required
the completion of a draft report before departure and an agreement on
the timescales for circulation and consideration
of the draft and
inputs on amendments to be effected. It was averred that there was an
undertaking that the draft report for factual
checking would be
available within one month of the visit.
[6]
On 17 March 2016 a letter on behalf of the applicant was addressed to
the respondent raising various issues. In this letter
the second
applicant was mentioned as one of the graduates who had applied to be
registered as a candidate architectural draughts
person and it
was stated that his application was in process. It was further
contended in that letter that
'
the programme
does not require the validation
of
SACAP in order for the programme
to be
offered
or to be registered
on the NQF.
The institution
however, intends
to attain full validation from
SACAP to benefit students
who enrol in the programme."
[7]
On 22 March 2016 a draft validation report was availed and the
applicant did not agree with the content as it contained many
inaccuracies. On 8 April 2016 another letter followed to the
respondent which related to applicant's letter of the 17 March 2016
and in particular the failure by the respondent to address issues
raised and to give undertakings as requested in paragraphs 9,
12 and
14 of that letter. Legal action was threatened if there was no
response by close of business on 13 April 2016. A reply was
received
on 12 April 2016 which among others referred to the draft validation
report conducted in respect of the Pretoria campus,
which report it
was contended addressed the issues raised in applicant's
letter
of 17 March 2016. The respondent further stated that
'the only
route for registration
at all professional
levels
or for upgrade thereto, is by acquisition
of qualifications
at
a
recognised
Architectural
Learning
Site.
' It was further stated that the
respondent's
registration
policy stipulated that:
"An
applicant
without any of the recognised
qualifications,
can apply for registration
as a
Candidate
Architectural
Draughtsperson,
provided
that the
applicant
has a
least 2 years architectural
experience
obtained
while registered
under
a
Registered Professional".
(my
underlining)
[8]
On 14 April 2016 a letter was sent to the respondent drawing
its attention to the input of the applicant to the draft
validation
report; the non-compliance with the timelines in the Purple Book and
expressing its expectation that a revised report
would be tabled
before the Validation Committee. It was further stated:
"With
regards
to the registration
of our
client's graduates
we note the following. Apart from
the fact that during the validation
visit you
have personally
given the undertaking that our
client's
successful graduates may henceforth
be
registered
with yourselves given
the
current awarded
validation status,
it is
furthermore
clearly
states as
follows in your
'Guidelines for the validation of courses at private
architectural
learning sites:
"Conditional
validation implies that the course broadly meets minimum
standards,
but that there are aspects that need to be rectified within
a
specified time span.
Persons
with
that qualification will be allowed to register"
No
response to this latter was provided.
[9]
The applicant averred that the second applicant had completed his
studies towards the Higher Certificate Architectural Technology
and a
transcript 'NA23', dated 28 April 2016 was annexed to the papers. The
second applicant had received an email from the respondent
on 11
April 2016 titled 'New Registration' which informed him that his
application was being disqualified because the first applicant
was
not being recognized as an Architectural learning site, further that
he did not have 'enough years experience in the Architectural
field.
He needed 2 to 3 years experience in the Architectural field. Ms
Buhrs contended that the letter was contrary to the respondents
own
information on their website setting out how one can register.
According to Matrix 2 it was stated that a person could register
as a
candidate Architectural Draughtsperson with only a grade 12
qualification. She contended further that there was no basis for
the
respondent's refusal to register the second applicant as it had
registered five of its past students this year (2016).
[10]
The answering affidavit was deposed to by Ms Marella O'Reilly ("Ms
O'Reilly), registrar of the respondent. Ms O'Reilly
averred that the
validation or accreditation of an entity such as the first applicant
is preceded by a validation visit which leads
to a validation report
which is considered by the respondent before a final decision is
taken. She contended that in this instance
it was not necessary to
bring this application on an urgent basis. The validation report was
finalised on 12 May 2016 and delivered
to the first applicant the
following day. She averred that the first applicant refused to accept
the validation report by appending
a signature on page 16 thereof.
The report was returned to the respondent with the following note:
"The
signature hereto is as acknowledgement
of receipt of
the said document.
I
am
advised not to sign the
documents as I do not agree with the contents therein as expressed in
response to SACAP previously."
The
respondent contended that if the first applicant did not agree with
the content of the said report it could only mean that the
first
applicant had appraised itself with the content of the report before
refusing to accept it. The respondent contended further
that the
relief sought in 2.1 of the Notice of Motion had been complied with.
The
first applicant conceded in reply that the respondent had complied
with the relief sought in 2.1 of the Notice of Motion. It
contended
that it would still seek a costs order associated with the relief
contained in 2.1.
[11]
The respondent contended that the relief sought in 2.2 would only be
competent if there respondent had unreasonably delayed
the decision
contemplated in the report, that 'no case had been made out in
that regard' and that such relief would
only be competent as and when
the validation report had been finalised. In reply the first
applicant contended that the dilatory
approach by the respondent and
threats of legal action which caused the respondent to conduct its
validation visit should be taken
into account in considering delay.
[12]
The respondent contended that the relief sought in 3 and 4 of the
Notice of Motion depended on the first applicant being validated
or
accredited and that such process would be engaged and a decision made
at the respondent's council meeting during June 2016.
The first
applicant disagreed as the non-validation adversely affected the
registration of Candidate Draughtspersons and, in terms
of the
Respondent's own guidelines.
Furthermore
the programme was fully accredited with the Council of Higher
Education and that its registration with SAQA was in order
and was in
the process of final registration.
There
was further an undertaking by Ms O'Reilly that pending the
finalization of its application the graduates would be registered
and
that this created a legitimate expectation in the circumstances that
the applicants are expected to act upon.
[13]
In as far as the status of the first applicant was concerned Ms
O'Reilly averred that the first applicant started offering
the
curriculum in dispute at its Pretoria Campus and had never been fully
validated or accredited. During August of 2013 a deferred
validation
was awarded as the entity had not yielded any graduates. The deferred
status was to be reconsidered at a subsequent
validation visit which
was conducted on 25 March 2014. This visit resulted in the
termination of the deferred validation and it
was recommended that
the qualification not be awarded validation status because the
'evidence provided in the form of students
work falls below SACAP's
benchmark standards.' The 2013 graduates were nevertheless allowed to
register as candidates architectural
draught persons 'in terms of the
previous validation statement (August 2013). The first applicant
appealed the 'Withdrawal of Validation'
and the appeal was dismissed.
Consequently the first applicant had no validation deferred or
conditional effective 25 March 2014
and was not entitled to register
students including the second applicant.
[14]
The first applicant contended in reply that this background
information was irrelevant for the purpose of this application
and is
meant to portray the first applicant in negative light. It contended
that the 2013 graduates were allowed to register then
and that
presently the institution did not need to have an accredited
qualification with a validation in order to be have second
applicant
registered as a candidate architectural draughtsperson. Furthermore,
the first applicant was never given reasons for
the withdrawal of its
validation, and attempts to obtain same for purposes of instituting
review proceeding as appear in a letter
dated 21 September 2015 was
met with no response. Since it was out of time to launch review
proceedings it took the option to invite
a new validation visit.
[15]
In as far is the relief sought in 2.1 there is concession that
the relief sought be abandoned since the report sought
was delivered
to the first applicant prior to the hearing on 13 May 2016. The first
applicant however contends that it was entitled
to costs for
launching of the application. This in my view will rely on whether
the application was urgent or not. This shall be
dealt with below.
[16]
As I understood the respondent the final report would still have to
be placed before the Council and considered by them at
a Council
Meeting to be convened before the end of June 2016. The first
applicant would have had to satisfy the Court that it was
in a
position to order the respondent to make a final decision in respect
of the validation of the relevant courses presented by
the first
applicant. The first applicant would have to satisfy the Court that
the respondent would be in a position to deal with
its functions as
envisaged in section 13 (b) of the Act in as far as it was duty bound
to conditionally or unconditionally grant
validation of the programme
courses in question. The first applicant has not made out a case for
such relief as envisaged in 2.2.
If the first applicant is convinced
that the court can grant such relief as envisaged 2.2 then, I ask the
question as to what weight
or status should the Court give the final
report when it has not been accepted by the first applicant by
appending a signature
of acceptance or confirmation on page 16 of
such report.
The
first applicant does mention certain irregularities regarding the
validation visit and the conduct of some of the SACAP's members
during such visit. The first applicant further questions the
competency of the visiting panel. In its commentary it states that
the non-negotiable validation was inappropriate. As I see it, this
suggests that the draft and final report were not of the quality
where a final decision could be taken to validate the relevant
courses presented by the first applicant. There is an alternative
suggestion by the first applicant in its concluding commentary that
another validation visit might be justified due to its
dissatisfaction
with the visiting panel of February 2016 but at the
cost of the respondent. The failure to sign the final report and the
dissatisfaction
with the draft and final reports makes me doubt
whether such final report is competent to be considered by the
Council for purposes
of considering validation of the relevant
courses. However, that decision is not for the Court to take as the
respondent is the
competent body vested with the expertise and power
to evaluate the competencies of the first applicant. If it states
that the final
report will be presented to the Council then the first
applicant should await the result and decide whether to review the
decision.
[17]
It is unfortunate in my view that the first applicant chose to move
the case for the second applicant. I am of the view that
not all the
information pertaining to the second applicant's application to the
respondent has been availed for the Court's scrutiny.
Having regard
to the Academic Transcript annexed to the papers it is not clear into
which group the second applicant falls. The
question is, does he fall
under the 2013 group of graduates who were allowed to register in
terms of the August 2013 validation
report or does he fall under the
2014 or 2015 group. The transcript does not give a commencement and
conclusion date of his studies
for the Higher Certificate
Architectural Technology. In the letter of 31 March 2016 at page 60
of the founding affidavit the second
applicant is mentioned as having
submitted an application which at the time was in process. It is not
clear whether his application
fell into the same category as the
application of the four graduates whose applications as Candidate
Architectural Draughtspersons
had been approved by the respondent. No
details have been provided.
[18]
While the first applicant contends that it received full
accreditation for its full programme for both contact and distance
mode of delivery and site accreditation from the Council of Higher
Education, it is not clear that accreditation contained in pages
49
and 50 of the founding affidavit under reference H/PR 154/E003CAN
related to accreditation as envisaged in the draft validation
"NA19"
and final report "AA 1" validation report, that is the
validation of relevant courses.
[19]
The letter dated 11 April 2016 to the second applicant from the
respondent should in my view be dealt with in two parts. Firstly
it
is mentioned that the first applicant is not recognized as an
Architectural learning site. On page 51 to the Founding affidavit
the
Council on Higher Education stated:
"
The Institution
is reminded
that
in order for it to enrol students
as
a
private provider
of higher
education,
the following three conditions must
at all times be fulfilled:
.
Registration
of all qualifications
with the South African
Qualification Authority on the NQF;
.Accreditation of all
higher education programmes by the HEQC
When
dealing with the applications of the graduates on page 60 of the
Founding Affidavit as at paragraph 10 it was stated that the
programme offered by the first applicant did not require validation
by the respondent to be offered or to be registered on the
NQF. This
in my view is contrary to the mandate of the respondent clearly set
out in the draft validation report and final report
which clearly
indicate that validation by the respondent was a precursor to
registration on the NQF. Ms Buhr in reply also stated
that its
registration with SAQA was in the process of final registration. This
can only mean that if this registration was not
finalized when the
application was launched the first applicant still had not met one of
the pre-requisites to qualify for enrolment
of students in the field
in question.
[20]
In giving her input on "NA 19" Ms Buhrs was not opposed to
submitting and developing a remedial plan although she
objected to
the 'awarded status of Non-negotiable Conditional Validation. As
I see it, the absence of comments marked in
red against the relevant
paragraphs on pages 99 to the founding affidavit could mean that
there was acknowledgment by the first
applicant that deficiencies
were present which needed to be addressed. The first applicant was
required to develop and submit a
remedial plan no later than 16 May
2016. In reply the first applicant points out to its remedial plan on
pages 126 to 135 of "NA
19". The first applicant contended
that the final report was produced in haste in order to avoid the
relief sought. In the
reply examples are given in paragraphs 3.2, 3.3
and 3.4. In my view these inaccuracies do not address the content of
the relief
sought which is a decision on the validation of the
relevant courses presented. I have read through some of the comments
in red
in the draft report. Unless the first applicant points out in
detail how its input and remedial plan have not been considered or
dealt with in the final report, it would be difficult for the Court
without the assistance of appropriate input to evaluate and
give an
order such as is sought in 2.2. The respondent contends that
the final report would be presented to the Council for
a decision. In
as far as the first respondent is not satisfied with such report I
can only recommend that the two reports, that
is the draft with first
applicants comments and the final report be placed before the Council
for decision. I have already expressed
my view in paragraph16 above.
[21]
There were further no comments on mandate of the respondent as
expressed in the preamble to 'NA 19' and the Final Report AA
1:
"to
determine
whether graduates
who apply
for registration
as
candidates
in
any
of the SACAP four professional
categories
who hold qualifications
from the ALS
being visited
meet
the
minimum
standards
of
competencies
and skills associated
with that
category.
A
validated qualification
enables
graduates
to register
as
Candidate
Architectural
Draughtspersons
.....
after the required
number
of
years
in-service
training
and the passing
of an examination
in professional
practice"(
my
underlining)
Neither
was there any comment or objection raised and under the heading:
"VALIDATION
PROCESS, AIM AND OBJECTIVES
Validation
is an outcomes- based, peer-reviewed
evaluation of
courses in architecture........
Accreditation
as
conducted
by the Council for Higher Education
(CHE), focuses on procedures
and processes,
and although
SACAP may comment
on
issues of governance
and administration,
those
are mainly
the domain of the CHE.
......
validation
provides
a
benchmark
of international
standard
as
well
as
allowing mobility
of
students between the
various programmes offered by validated ALSs
.
......
Specific
objectives are to:
.
recommend
to the SACAP that the qualification
concerned
meets
the prescribed
national
standard for registration purposes
....
.
communicate the results of an accreditation
visit to
the Higher Education
Quality Committee for the purpose
of approval of accreditation
and registration
of qualifications
on the National
Qualifications Framework(NQF)
by the South
African Qualifications Authority
(SAQA)
There
was again no adverse comment regarding the Criteria for Evaluation.
In as far the validation process was concerned the complaint
was that
no pre-meeting was held as prescribed in the Purple Book. The
visiting board requested a change in schedule and a private
meeting
was held to enable the board to familiarize themselves with how the
process was to enfold.
[22]
My conclusion on this first aspect relating to the second applicant
is that a case should have been made out on his behalf
that during
the period of his studies, the applicant's Pretoria Campus was a
recognized architectural site in as far as it would
have received
validation for the courses it offered. The letters of the 20 November
2015 "NA9" and 3 December 2015 are
informative in that they
confirm that validation was withdrawn and was published on the
respondent's website and that this affected
students of 2013, 2014
and 2015. In as far as the candidate draughtspersons were concerned
the respondent stated that it would
consider registration for
eligible students from the
'Pretoria Campus
ONLY
as it was the site that attained conditional validation'. In
as far as the deferred validation status was concerned the respondent
gave permission to the first applicant to communicate such
status and the ability to register with the respondent only to
the
current 2015 students and alumni from 2013 and 2014 of the Pretoria
Campus. According to the respondent deferred validation
meant that
'recommendations for unconditional validation are deferred until
the first applicant
has
complied with the requirements
for unconditional
validation'.
It contended
that the second applicant trained at a time when the first applicant
was
'not validated and
cannot legitimately
claim entitlement to the relief he
seeks
in the
application.(
my
underlining)
[23]
Secondly it was stated that the second applicant did not have enough
years of experience in the Architectural field. It was
argued on
behalf of the second applicant that what was applicable to the second
applicant was the registration matrix published
on the respondent's
website dated July 2011, being schedule 6, Matrix 2 which provides
for registration of persons with experience.
The entry level of Grade
12 was said to be applicable however the transcript annexed to the
founding affidavit shows otherwise.
The second applicant had passed
courses in architecture offered by the first applicant. The
explanatory notes to both matrix
1 and 2 stipulate supervision/
mentorship and experience. The second applicant's application form to
the respondent could have
shed light regarding the years of his
experience. If there was no reason not to register the second
applicant as argued on his
behalf, no case has been made out as to
why he had to be considered as being on equal footing with the
students who had been registered
as mentioned.
[24]
No case has been made out for the relief sought in 4 of the Notice of
Motion. The scope of the validation visit related to
the
architectural profession at the Pretoria Campus only and, this was
made clear by the respondent. It is casting the net too
wide by
stating that all successful graduates be registered on the
respondent's system 'in the appropriate field.'
URGENCY
AND COSTS
[25]
In my view the validation and accreditation of the courses and
qualifications offered by the respondent is key to successful
registration and recognition of its graduates in the architectural
profession. Section 13 of the Act is very clear as to what the
functions of the respondent in this regard entail. In as far as the
respondent contended that remedial action had not been dealt
with as
opposed to the first applicant's contention that it had complied, the
first applicant failed in reply to deal with those
aspects of its
inputs as to remedial action, which were not dealt with in the final
report. In as far as the Council of the respondent
has not dealt with
the final report, the first applicant cannot lay claim to urgency or
a right to relief as appears the Notice
of Motion, excluding 2.1. As
soon as the final report was delivered
the
alleged urgency in respect of the relief sought in 2.1 came to an
end. Furthermore the final report even though it was rejected
by the
first applicant had to be considered by the Council in June. It
was not disputed that the first applicant has not
had a deferred or
conditional validation since 25 March 2014, and that the first
applicant was not given unconditional validation.
The relief
therefore sought in the other prayers in the Notice of Motion were in
my view not competent the validation process
had not been finalised.
It is therefore appropriate that the application be dismissed with
costs.
[26]
In the result the following order is given:
1.
The application is dismissed with costs.
__________________
TLHAPI
VV
(JUDGE
OF
THE
HIGH
COURT)
MATTER
HEARD ON
: 26 MAY 2016
JUDGMENT
RESERVED ON
: 26 MAY 2016
ATTORNEYS
FOR THE APPLICANTS : FOUCHE ATTORNEYS
ATTORNEYS
FOR THE RESPONDENTS : GILDENHUYS MALATJI INC