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[2015] ZAECMHC 68
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Walter Sisulu University v Gwele (CA33/2015) [2015] ZAECMHC 68 (23 September 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE LOCAL DIVISION, MTHATHA
CASE NO. CA 33/2015
In
the matter between:
WALTER SISULU UNIVERSITY
Appellant
and
SINAZO
GWELE
Respondent
JUDGMENT
Bloem J.
[1]
On
12 June 2014 a single judge ordered the appellant to confer the
degree of Bachelor of Commerce in Economics (the B Comm Econ
degree)
on the respondent at a subsequent congregation (graduation function),
that the appellant be ordered to issue the respondent
with a
certificate for the B Comm Econ degree upon its conferment on her and
that the appellant pay the costs of the application,
such costs to
include the costs consequent upon the employment of two counsel.
The court
a quo
dismissed the appellant’s application for leave to appeal.
The appellant appeals to this court with the leave of the
Supreme
Court of Appeal.
[2]
For
the sake of convenience I shall first set out the material facts upon
which the respondent relied for the relief sought and
granted
whereafter I shall deal with the appellant’s facts. In
2010 the respondent commenced her studies towards the
B Comm Econ
degree at the appellant. At the beginning of 2013 she
registered at the appellant to study towards the B Comm
(Honours)
Econ degree. When she prepared for the conferment of the B Comm
Econ degree on her at a graduation function of
the appellant on 10
and 11 May 2013, she learned on 7 May 2013 that her name did not
appear on the list of candidates upon whom
degrees were to be
conferred. The degree was indeed not conferred on her during
the graduation function on 10 and 11 May
2013.
[3]
On
28 May 2013 the respondent was informed by Glory Willard, the
appellant’s administrator of the Faculty of Business,
Management
Sciences and Law, that the degree could not be conferred
on her because she did not complete two computer literacy modules
(CLT
1101 and 1202) which, she was told, were requirements for the B
Comm Econ degree. The respondent contacted Carl Anyangiwe,
the
Acting Executive Dean of the appellant’s Faculty of Business,
Management Sciences and Law, who referred her to Tembeka
Ndlwana, the
Acting head of the Department of Economics. Ms Ndlwana told the
respondent “
to deregister for
Honours
”. The respondent
addressed a letter dated 21 May 2013 to Prof Anyangiwe (at the
latter’s request) “
with the
hope that [her] problem will be fixed
”.
[4]
In
the meeting attended by a member(s) of the student representative
council, Ms Ndlwana, Ms Willard, Prof Anyangiwe and the respondent,
Ms Ndlwana stated that no student ever graduated without completing
the computer literacy modules. The respondent said that
she
knew of another student on whom the appellant conferred the B Comm
Econ degree during 2011 after he had completed all
the necessary
courses at the end of 2010, save for the computer literacy modules.
In due course the respondent furnished
Prof Anyangiwe with the
academic record of that graduate. The response was
that, when that graduate registered
for the B Comm Econ degree, the
completion of the computer literacy modules was not compulsory.
[5]
On
20 June 2013 the respondent wrote an examination in Monetary
Economics and on 28 June 2013 she wrote an examination in Advanced
Economics. Her script in the former was marked by the relevant
examiner but her script in Advanced Economics was not marked.
On 22 July 2013 the warden of the house in which the respondent was
accommodated requested her to vacate her room because, so she
was
told, her room had been cancelled. The house warden requested
her to hand in the key to her room but she refused to do
so.
[6]
The
respondent saw her attorney who addressed a letter dated 22 July 2013
to the appellant wherein the latter was advised to refrain
from
evicting the respondent from her room, to withdraw its “
conduct
to deregister
” the respondent, to
enrol her for the B Comm (Honours) Econ degree and to allow the
respondent to do the computer literacy
modules concurrently with the
B Comm Econ (Honours) degree, failing which the court would be
approached for appropriate relief.
Since there was no response
to the letter from her attorney, the respondent launched an urgent
application in the court
a quo
.
On 26 July 2013 the court
a quo
issued a rule
nisi
calling upon the appellant to show cause:
6.1.
why it should not be interdicted from
deregistering the respondent as a B Comm (Honours) Econ student and
from evicting her from
her room;
6.2.
why the computer literacy modules should
not “
be added in the 2013
curriculum in respect of the [respondent]
”
6.3.
why the appellant should not be directed:
6.3.1.
to confer the B Comm Econ degree on the
respondent during the September 2013 graduations; and
6.3.2.
to issue the respondent with the degree
certificate on conferment.
[7]
After
the rule
nisi
was issued various affidavits were filed on behalf of the appellant.
The main answering affidavit was deposed to by Fozia
Madhi, the
appellant’s Director of Legal Services. Except for
dealing with the merits of the respondent’s claim,
the
appellant also raised two points
in
limine
, namely that the matter was not
urgent and that the respondent should have instituted proceedings for
the judicial review of the
appellant’s administrative action in
terms of the provisions of the Promotion of Administrative Justice
Act, 2000 (Act No.
3 of 2000)(PAJA). In view of the conclusion
at which I arrive in this appeal, it is unnecessary to deal with the
issue of
urgency.
[8]
On
the merits, Ms Madhi stated that it is a compulsory requirement for
any student who studies towards the B Comm Econ degree to
attend
lectures, submit assignments and pass the examinations of the
computer literacy modules. Ms Ndlwana stated that she
repeatedly reminded all third year B Comm Econ students that the
satisfactory completion of the computer literacy modules was a
compulsory requirement. She furthermore stated that she
admitted the respondent to the B Comm (Honours) Econ degree on the
assumption that she had met all the requirements for the degree and
on the basis that her pass mark in Economics III was over 60%.
That, she said, was an error because the respondent had not met all
the requirements of the degree. She furthermore stated that
the
computer literacy modules are the only ones which the respondent
required to complete in order to qualify for the conferment
of the B
Comm Econ degree on her. Prof Anyangiwe went further. He
stated that, at a meeting held with the respondent,
she conceded that
she was aware that she had to complete the compulsory computer
literacy modules to satisfy all the requirements
for the conferment
of the B Comm Econ degree, but when she attempted to register
therefor she was unable to do so as they were
already fully
subscribed.
[9]
In
reply the respondent denied that she was ever advised that it was
compulsory to complete the computer literacy modules for the
conferment of the B Comm Econ degree. To the contrary, she
stated that she was informed that she had passed the B Comm Econ
degree whereupon she decided to apply to study towards the B Comm
(Honours) Econ degree. The appellant allowed her to register
for that
degree, something that could be done only upon successful completion
of the B Comm Econ degree.
[10]
On
14 November 2013 the court
a quo
,
after hearing submissions on the merits on the application, concluded
that it could not resolve the issue quoted hereunder and
ordered that
it be referred to the hearing of oral evidence, namely “
whether
the courses appearing as fundamentals in the [appellant’s] 2010
Prospectus are compulsory courses for the B Comm Economics
degree as
the [appellant] contends or they are not as the [respondent]
contends
.”
[11]
When
the mater came before the court
a quo
on 29 April 2014 for it to hear oral evidence, counsel for the
respondent, with reference to
Wallach v
Lew Geffen Estates CC
[1993] ZASCA 39
;
1993 (3) SA 258
(AD), submitted that, despite the interlocutory order that was
granted on 14 November 2013, it was open to the court
a
quo
to hold that it was unnecessary to
hear oral evidence on the issue that was referred for the hearing of
oral evidence on the basis
that the issue so referred was not raised
in the affidavits. The respondent opposed the application
for the matter
to be decided on the papers without the hearing of
oral evidence on the above issue. After the hearing of
submissions by
counsel, the court
a quo
held that it was unnecessary to hear oral evidence and that it would
decide the matter on the papers. Having heard the parties,
the
court
a quo
granted the order referred to in paragraph one above.
[12]
The
legislation applicable to this appeal is section 65B (2)(b) of the
Higher Education Act, 1997 (Act No. 101 of 1997) which provides
that
no degree may be conferred by a public higher education institution
upon any person who has not completed the work and attained
the
standard of proficiency determined through assessment as required by
the senate of the public higher education institution.
The
appellant made an institutional statute in accordance with
section 32
of the
Higher Education Act which
statute came into operation on 26
August 2008. In terms of paragraph 65 (2)(b) of the statute no
degree may be conferred
upon any person who has not met all the
requirements for the conferment of a degree as prescribed by the
appellant’s senate
and laid down in the rules.
[13]
The
above facts show that the appellant made at least two decisions, the
first being not to confer the B Comm Econ degree on the
respondent
without her completing the computer literacy modules and the second
being to deregister the respondent as a B Comm (Honours)
Econ student
because she had not met all the requirements for the B Comm Econ
degree to be conferred on her. Mr de la Harpe,
counsel for the
appellant, submitted that, because the appellant exercised a public
power and performed a public function authorised
by the
Higher
Education Act and
its statute when it made the decision not to confer
the B Comm Econ degree on the respondent, the respondent should have
instituted
proceedings for the judicial review of that decision in
terms of
section 6
as read with
section 8
of PAJA. Mr Zilwa SC,
who with Ms Ncalo appeared on behalf of the respondent, conceded that
the respondent would have been
in a better position if she had sought
the judicial review of the appellant’s decision not to confer
the B Comm Econ degree
on her. In my view that concession was
correctly made. It is the respondent’s case that the
appellant was wrong
to make the decision not to confer the B Comm
Econ degree on her. That decision exists in fact. To undo
that decision
the respondent should challenge it on review.
MEC
for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd
t/a Eye and Laser
2014 (3) SA 481
(CC)
at 507E-513E. Mr Zilwa submitted however that the failure to
institute proceedings for the judicial review of that decision
was
not fatal because the facts support the relief sought, namely an
interdict and mandamus. The appellant’s decision
not to
confer the B Comm Econ degree on the respondent is, in my view,
crucial in this appeal and was also crucial for the success
or
otherwise of the application in the court
a
quo
. That decision stands,
irrespective of whether it was procedurally fairly made or whether it
has substantive validity.
It stands until it is set aside by a
court in proceedings for judicial review.
Oudekraal
Estates (Pty) Ltd v City of Cape Town and others
2004
(6) SA 222
(SCA) at 242A-247A.
[14]
The
appellant’s decision has consequences. One of the
consequences of that decision is that the respondent cannot register
for the B Comm (Honours) Econ degree because she can only register
for that degree once she has completed all the requirements
of the
B Comm Econ degree.
[15]
A
further consequence of that decision for the respondent is that, for
as long as it stands, the respondent is not entitled to any
of the
relief sought in paragraph 2 of the notice of motion, namely that the
appellant be interdicted from deregistering the respondent
as a
B Comm (Honours) Econ student, that the appellant be interdicted
from evicting the respondent from the room in which
she is
accommodated while she is a B Comm (Honours) Econ student, that “
the
alleged outstanding computer literacy modules 1101 and 1102 (sic) be
added
” to the work that the
respondent must do as a B Comm (Honours) Econ student, that the
appellant confer the B Comm Econ degree
on the respondent and that
the appellant issue the respondent with a certificate indicating that
the B Comm Econ degree has been
conferred on her. The relief sought
in paragraph 2 of the notice of motion was premised on the basis that
the respondent was entitled
to the conferment of the B Comm Econ
degree. Until the appellant’s decision (not to confer the
B Comm Econ degree on
the respondent) is set aside, the B Comm Econ
degree cannot be conferred on her. She was accordingly not
entitled to the
relief set out in paragraph 2 of the notice of
motion. That is the paragraph in the notice of motion which
contains the main
relief sought by the respondent, paragraph 1
thereof dealing with urgency and paragraph 3 thereof dealing with
costs. If
she was not entitled to the relief set out in
paragraph 2 of the notice of motion her application should have been
dismissed.
[16]
Regarding
the interdict, the respondent’s case is that she completed all
the requirements for the B Comm Econ degree and that
it should
accordingly be conferred on her whereas the appellant’s case is
that she has not completed all the required courses,
the computer
literacy courses being outstanding.
[17]
The
court
a quo
found that the issue was whether the respondent had completed the
courses for the B Comm Econ degree to be conferred on her.
She
held that the answer was to be found in the appellant’
s 2010
Prospectus “
which governed the
entire program of the degree concerned”.
She
later repeated the issue by identifying it as “
whether
the [respondent] had made out a case that she met the requirements of
the degree, as required and provided in the 2010 Prospectus”.
[18]
In
my view the issue is whether the completion of the computer literacy
modules is a requirement for the B Comm Econ degree.
It is not
in dispute that the respondent did not complete those modules.
Accordingly, if it is found that the completion
of the computer
literacy modules is a requirement then the appeal must be upheld
because the respondent would then not have completed
all the
requirements for the conferment of the B Comm Econ degree. If,
on the other hand, it is found that the completion
of those modules
is not a requirement then the appeal must be dismissed because the
respondent would then have met all the requirements
for the
conferment of the B Comm Econ degree.
[19]
In
passing I point out that although the issue which I have identified
in the preceding paragraph was also identified by the parties
before
the institution of the application, the respondent did not
pertinently state that the two computer literacy modules were
not a
requirement for the B Comm Econ degree to be conferred on her.
Since that was the issue one would have expected her
to do so.
Mr Zilwa referred to a paragraph in the respondent’s founding
affidavit which he submitted must be
read to mean that the two
computer literacy modules were not a requirement of the B Comm Econ
degree. In that paragraph the
respondent stated that she was
surprised when Ms Willard informed her that she did not study
“
computer literacy which,
according to her, was a requisite for the Bachelor of Commerce in
Econonics degree
”.
According to the respondent she informed Ms Willard that the
appellant would not have admitted her to register for
the Honours
degree if she had an outstanding module and “
that
her conclusions were wrong”.
It
is not clear from that paragraph or the context of the respondent’s
founding affidavit to which conclusions she
referred. According
to that paragraph Ms Willard made two statements as a matter of
fact. The first was that the respondent
did not study computer
literacy, a fact which is not in dispute. The second statement
of fact was that the completion of
the computer literacy modules was
a requirement of the B Comm Econ degree. Ms Willard did not
draw any conclusion from those
facts. In my view that paragraph
cannot be read to mean that the respondent stated that the computer
literacy modules were
not a requirement of the B Comm Econ degree.
Even if I deal with this appeal on the assumption that the respondent
stated
in that paragraph what Mr Zilwa submitted, for the reasons set
out hereunder, the appeal must be upheld.
[20]
The
respondent sought a final interdict in the court
a
quo
. At some stage the court
a
quo
referred for oral evidence an issue
which was similar but not the same as the issue identified by me in
the preceding paragraph.
In
Plascon-Evans
Paints v van Riebeeck Paints
[1984] ZASCA 51
;
1984 (3) SA 623
(AD) Corbett JA set out the general rule to be
applied in these circumstances as follows at 634 H – 635 C:
“
It
is correct that, where in proceedings on notice of motion disputes of
fact have arisen on the affidavits, a final order, whether
it be an
interdict or some other form of relief, may be granted if those facts
averred in the applicant's affidavits which have
been admitted by the
respondent, together with the facts alleged by the respondent,
justify such an order. The power of the
Court to give such final
relief on the papers before it is, however, not confined to such a
situation. In certain instances the
denial by respondent of a fact
alleged by the applicant may not be such as to raise a real, genuine
or
bona
fide
dispute of fact (see in this regard
Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949
(3) SA 1155
(T)
at
1163 - 5;
Da
Mata v Otto NO
1972 (3) SA 858
(A)
at 882D - H). If in such a case the respondent has not availed
himself of his right to apply for the deponents concerned
to be
called for cross-examination under Rule 6 (5)
(g)
of the Uniform Rules of Court (
cf
Petersen v Cuthbert & Co Ltd
1945 AD 420
at 428;
Room
Hire
case
supra
at 1164) and the Court is satisfied as to the inherent credibility of
the applicant's factual averment, it may proceed on the basis
of the
correctness thereof and include this fact among those upon which
it determines whether the applicant is entitled to
the final relief
which he seeks (see eg
Rikhoto
v East Rand Administration Board and Another
1983
(4) SA 278 (W)
at
283E - H). Moreover, there may be exceptions to this general rule,
as, for example, where the allegations or denials of the
respondent are so far-fetched or clearly untenable that the
Court is justified in rejecting them merely on the papers (see
the
remarks of BOTHA AJA in the
Associated
South African Bakeries
case,
supra
at 924A).”
[21]
As pointed out
above, it is the appellant’s case that the respondent was
repeatedly informed of the compulsory nature of the
computer literacy
modules. In this regard reference is made to the evidence of Ms
Ndlwana who stated that she reminded all
third year B Comm Econ
students to register for the computer literacy modules, being a
requirement of that degree. Surprisingly,
in her replying
affidavit the respondent did not deny Ms Ndlwana’s evidence in
that regard. Instead she invited the
court’s attention
to, what she termed as, Ms Ndlwana’s careless statement in that
regard. Absent a denial, Ms
Ndlwana’s evidence stands
unchallenged and must be accepted.
[22]
I
also refer to the evidence of Prof Anyangiwe who stated that at a
meeting with the respondent “
she
conceded that she was aware that she had to complete the compulsory
computer literacy courses but that when she attempted to
register for
the courses she was unable to do so as the courses were already fully
subscribed
”. In reply the
respondent denied that she made that confession to Prof Anyangiwe.
The appellant does not offer
a bare denial that the respondent met
all the requirements of the B Comm Econ degree. That denial is
supported by the evidence
of
inter alia
Prof Anyangiwe. Although his version is denied by the
respondent, I cannot describe Prof Anyangiwe’s denial of the
respondent’s allegation (that she met all the requirements of
the B Comm Econ degree) as so far-fetched or clearly untenable
that
it justifies a rejection merely on the papers. On the basis of
the general rule set out in the
Plascon-Evans
Paint
case I have to accept the facts
set out in the affidavits of Ms Ndlwana and Prof Anyangiwe.
Those facts are that the computer
literacy
modules
are compulsory requirements for the B Comm Econ
degree. It is common cause that the respondent did not complete
those
modules
.
In terms of the
Higher Education Act and
the appellant’s
statute the B Comm Econ degree can accordingly not be conferred
on her. In the circumstances,
the appeal must be upheld.
[23]
There
is no reason why the costs of the appeal should not follow the
result, such costs to include the costs of the application
for leave
to appeal to the court
a quo
and the Supreme Court of Appeal. Regarding the costs of the
application in the court
a quo
,
although the application should have been dismissed, it does not
follow that the appellant is entitled to the costs thereof.
The
respondent was not properly treated by the appellant. She was
allowed to register for the B Comm (Honours) Econ degree
at the
beginning of 2013 after the appellant had represented to her that she
had complied with all the requirements for the B Comm
Econ degree.
It was only a few days before the graduation ceremony in May 2013
that the respondent was informed that the
computer literacy modules
were still outstanding. In the light the appellant’s
above conduct I would not grant it the
costs of the application.
In the circumstances, a fair order would be that each party pay her
or its own costs of the application
in the court
a
quo
.
[24]
In
the result, the following order is made:
24.1.
the appeal is upheld with costs, such costs
to include the costs of the application for leave to appeal to the
court
a quo
and the Supreme Court of Appeal; and
24.2.
the order of the court
a
quo
is set aside and replaced with the
following:
“
The application is dismissed with each
party to pay her or its own costs of the application”.
_________________________
G H BLOEM
Judge
of the High Court
I
agree
L
P PAKADE
_________________________
Judge of the High Court
I
agree
J
ROBERSON
__________________________
Judge of the High Court
For the appellant :
Adv de la Harpe instructed by Drake Flemmer & Orsmond (EL) Inc,
East London
For
the respondent :
Adv Zilwa SC and Adv Ncalo instructed by Makhangela Mntungani Inc,
Mthatha
Date of hearing :
11 September 2015
Date of delivery of the judgment :
23 September 2015